Harris, W. v Arndt, R
[1985] FCA 491
•15 AUGUST 1985
And: ROBIN ARNDT and ANOR
No. 16 of 1985
Industrial Law
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)
Industrial Law - availability of roll of organization for inspection - roll at all times available - application nevertheless made to inspect it - rule nisi discharged on claimant's application - whether proceedings instituted vexatiously or without reasonable cause.
Conciliation and Arbitration Act 1904, s. 197A
SYDNEY
#DATE 15:8:1985
The rule nisi made by the Honourable Mr. Justice Evatt on 9 August 1985 be discharged.
The claimant pay the respondents' costs of the rule, but to the extent of one set of costs only.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The return of the rule in this matter was for 9.30 this morning. When the matter was called on it became clear that the claimant did not wish to proceed with the rule because the relief which had been sought was available to the claimant under the provisions of the rules and the union official concerned was prepared to provide the information which was required. Accordingly, counsel for the claimant indicated that she did not wish to pursue the proceedings. Thereupon the respondents sought, pursuant to section 197A of the Conciliation and Arbitration Act 1904, an order for costs saying that the proceedings had been instituted, if not vexatiously, then without reasonable cause.
The afternoon has been occupied with evidence from Mr. Arndt, the first respondent, who is the general secretary of the union, that is to say the Australian Postal and Telecommunications Union, Mr. Harris who is the claimant, and a Mr. Jarman, who is a vice-president. I have also considered affidavits sworn by Mr. Harris, firstly the affidavit in support of the rule which was sworn on 7 August last, and secondly, an affidavit filed in court today, which was sworn today. Annexed to the earlier affidavit were two letters which, according to Mr. Harris's evidence, were sent respectively to Mr. Watson and Mr. Arndt. The letters are dated 1 July 1985. In the letter to Mr. Watson, Mr. Harris said:-
"I have approached the Federal Secretary seeking access to those records in accordance with Rule 23 of the New Union Rules. He advises me that he has no such records."Rule 54 provides:-Mr. Harris has conceded in cross-examination that that last statement was wrong. It was not corrected in his evidence until he was cross-examined. The statement was a statement which was before Evatt J. who made the rule nisi and may well have been critical in his consideration of the question of whether he should sign the rule or not.
The rules of the union which are in question are rules 23 and 54. Rule 23 provides:- "The General Secretary-Treasurer shall keep a register of the names and addresses of all members of the Union, which shall be open for inspection by the Industrial Registrar and financial members of the Union between the hours of 9 a.m. and 4 p.m. at the Head Office of the Union."
"Each Branch Secretary shall keep a correct register of the name, address and number of tickets of each member in his Branch, and shall supply a copy of the same to the General Secretary-Treasurer when required."The evidence of Mr. Arndt establishes that these rules are complied with. The membership roll provided for in rule 54 is kept and copies are supplied from time to time by the branch secretary, Mr. Watson. Pursuant to rule 23 the register is available at the head office of the union in Melbourne for inspection by the Industrial Registrar and by members, and it is the fact that this is so which has satisfied Mr. Harris that he does not need to pursue the application which he has made. Really his case was based on what he claims to have been inadequate information which was given to him by Mr. Arndt when a request was made, and given also, so he says, to other members of the union.
It is difficult in a comparatively short time to make an adequate assessment of evidence but I have misgivings about Mr. Harris' evidence, I regret to say, particularly because of the uncorrected error in his letter to which - have earlier referred. It seems to me that, if this matter had been given more thought, particularly bearing in mind the fact that Mr. Harris was legally represented at least by 2 July 1985 when the letters were sent, and I interpolate to say that the letters were in each case drawn by his solicitors, an appropriate course would have been to write to Mr. Arndt, either personally or by a solicitor, asking for inspection of the roll, which is provided for in rule 23. I am satisfied that if that had been done, the information which the claimant, Mr. Harris, now has would have been provided to him.
On that basis, it does seem to me that however understandable the reasons for the institution of these proceedings may have been in Mr. Harris' mind, the proceedings were instituted without reasonable cause. In those circumstances, I think I should accede to the application for costs which was made.
However, I do not, on the face of the proceedings and of the evidence which I have heard this afternoon, see why it was necessary for the two respondents to be separately represented. I have been pressed with submissions concerning the need for this in a situation where the officials have different duties under the rules and where there are different factions on the executive. I can understand that in some circumstances separate representation may be necessary, but Mr. Watson, as branch secretary, was himself under no obligations to produce a roll, or a copy of a roll to a member; Mr. Arndt alone had that responsibility. It seems to me that it would not be appropriate, however desirable Mr. Arndt and Mr. Watson may feel that it was to be separately represented, to visit the claimant with two sets of costs.
Accordingly, the order that I make is that the rule nisi be discharged; the claimant is to pay the costs of the respondents to the rule but limited to one set of costs.
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