Hill, Richard William v Ophel, Kenneth

c r

COMM~NIC~PLLTH

AUSTRALIA

I N THE F'EDEW COURT

V No. 19 of 1977

OF AUSTRaIA

INDUSTRIAL	DIVISION	In the matter oI" -
THE CONCILIATION AND ARBITRATION
ACT 1904

Between -

RICHARD wrLLrm HIU

Claimant

And -

KENNETH OPHEL

6 Respondent

JUDGES MAKING ORDER:

Smithe rs , Frardki and Northrop , JJ.

DATE OF	ORDER:	13th October 1977	! '
Melbourne

THE COURT ORDERS THAT:

1. The Rule Nisi herein be discharged.

SMITHERS,

I n t h i s ca se we

are s a t i s f i e d

t h a t

the c l a i n a n t

has

f a i l e d t3

e s t a b l i s h t h a t e l t h e r

t h e

respondents

i s f a i l i n g t o

perfor!

o r obs2rve any ru le of

the

associat ion which he

i s under any express

o r i r rp l ied

obligation to perform o r observe.

bJe have

examined

all

t h e r u l e s r e f e r r e d

by Mr.

Cooney ~ 1 c h

-Jiew

t o a s c e r t a i n i n g w h e t h e r ,

the

c i r cuEs tances d l sc l a sed

the

cour t ,

there

could

found

any expres s o r i lrplied obllgatt lon which

the

respondents o r e i t h e r o f

t b w cou ld poss ib ly

s a i d

- ,

t o be

f a l l l n s t3

obseroe o r perform.

It was

o u r view

t h a t i t was

a r g u a b l e t h a t

i n t he

circut!!szances

i n : ~ h i c h claiEs

o f t h e c l a i F a n t

were	o u t s t a l d l n g a : a l n s t t h e a s s o c i a t i o n a n d r e q u i r e d t h e

a t t e n t i o n o f	t:lo	a s s o c i d t i o n e i t h s r	a t i t s f e d e r a l l e v e l	I .
' ,

o1̂ managen;ent o r i t s b r a n c h l e v e l

managment,

d u t y

cou ld be i t rp l i ed tha t

the

e x e c u t l m o f f i c e r s s u c h a s t h e

p r e s l d e n t a n d

the

s e c r a t s r y ,

s h u l d take

a l l reasonable

steps

t o b r i n g s u c h c l a m s b e f o r e t h e a p p r o p r i a t e

c o n n i t t e e o f n a n a g m e n s

f o r

decision.

I t bacaEe

c l e a r

however

t h e

e v l l e n c e

the

r e s p o n d e n t s t h a t

t h i s

du ty ,

i f

a c t u a l l y c r e a t e d

the ru l e s , had been fu l ly

perforped and observed.

The

c la i r r s were Srought before

the branch

management

cmr? i t tee and were r2fer red by tha t cor rn i t tee

to the federal corrmttee of tranagztrent which

jected

them.

accordingly, e v m 3 n Y-ie view o f

t h e

r u l e s

nest

f a w u r a b l e t o t h e c l a i p a n t , t h r e

1 s no

ou t s t and ing

un-

pe r famed ob l iga t lon th2 reunde r

i n e i t h e r

o f

the

respondents and there

was

such obl iga t lon

a t the

comencenent of

these proceedlngs.

assume,

w i t n m t dec id ing ,

tha t

the

ev idence

be fo re

u s

establishes

p r i m a f a c l e o u t s t a n d i n g l i a b i l i t y

o f

the

assoc ie t ion ,

th rough

the

j ranch ,

f a v o w o f

Mr.

Hill

l n r e s p e c t o f

cer ta in accounts .

I t 172s argued by

Mr.

Comey tha t once such

liability

was

s h o w t h z r e a m s e

under

t he

rules an

obli2,atlrJn

I n t'hs

s e c r e t a r y a n d p r z s i d e n t

t o

sign a

cheque againzt

the

assoc ie t lon branch funds and

forward

t h e

sax2

to Mr.

H i l l For

the evount of

t he

l i a b i l i t y .

But

t h e p r o ; ) s r i n t e r p r c t a t i m

the

r u l e s

i t i s o u r

view

t h e t t h e o b l i g a t x n t o

t'nese

th lngs does no t

a r i s e o u t o f

t'ne

m r e s x l s t e n c e of

l i a b l l i t y b u t o n l y

when

t h s r e 1 s a

l i a b i l i t y t b discharge of whlch

i s

a u t h o r i s e d b y

t h e

relevant governln; body.

There

1 s n o t h m g i n

the

w i d e n c e b s f o r e

t o

show

t h a t t h e d l s c h a r g a o f t h e e l l e g e d l i a b i l i t y

Mr.

H111

was

e v c r a u t h o r i s 2 2

t h a r e l e v a n t g v c r n i n g

body.

Ther?

1 s evldence hsw?v?r

t h s t when

t h s c l a k a n t

PBE/EJ

Ophel

submitted

h i s

c l a i m s t o t h e b r a n c h , t h e s e c r e t a r y d u l y

r e f e r r e d t h e

same

to the govern ing body,

i t was

his

d u t y t3 do,

and

that governsng body, being

the

governing

body of the branch,

d ld

n o t a u t h o r l s e

payment

b u t

r e f e r r e d t h e q u e s t i o n t o t h e f e d e r a l c o r n n i t t e e o f

management.

The

federal commit tee

management

dec ided tha t

t h e

amounts

In ques t ion shou ld no t be pa id

and

t h e

l i a b i l i t i e s i f they ex i s t ed	- which was	not accepted	-
should not be d ischarged .

I n this

connect ion

i t

i s pe r t inen t t o obse rve :

(a>

that

r u l e 14 of

p a r t

t h e a s s o c i a t i o n ' s r u l e s

cannot be read as imposing

duty on

r;he

p r e s i d e n t

and

s e c r e t a r y a c t u a l l y t o p a y o u t

money

t o d l s c h a r g e

l i a b i l i t i e s t h e d i s c h a r g e o f w h i c h	has	no t been
au thor l sed by the aporopr ia te body	and,

(b )

that

r u l e

p a r t 1, p a r t i c u l a r l y p a r t s ( b )

and

( e )

that r u l e and rules

1 and 5 ( c ) of p a r t 2 , make

c l e a r

that i n a

c a s e l i k e

this

i t i s the comni t tee

management

of the branch which

i s the awprnpr ia te

govern ing body to au thor i se d lscharge

l i a b i l i t i e s

and

i s

the body hav ing , subJec t t o con t ro l

branch

meet ings ,

t he

con t ro l

the

funds

under

the

- management of the branch.

A c c o r d i n g l y , t h e r u l e n i s l

will

be d ischarged .

---_

__ - -.

. .

-_-_.

.-~ c

_. ..-

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_ _ .-

- ._

The case of Hill, Richard William v Ophel, Kenneth involved a dispute between Richard William Hill, the claimant, and Kenneth Ophel, the respondent, concerning alleged breaches of rules by Ophel. The case was heard in the Federal Court of Australia's Industrial Division. The primary legal issue before the court was whether Ophel had failed to perform or observe any rule of the association for which he was obligated. The court examined the association's rules and found that while there might be an arguable duty for executive officers to bring certain claims before the appropriate management committee, this duty had been fulfilled in this case. The claimants' concerns were presented to the branch management committee and subsequently to the federal committee of management, which rejected the claims. Consequently, the court concluded that there was no outstanding obligation under either of the respondents.

The court also considered whether the association had a prima facie liability to Hill in respect of certain accounts. It was argued that once such a liability was established, there was an obligation on Ophel to sign a cheque against the association's branch funds and forward it to Hill. However, the court found that this obligation only arose when there was a liability whose discharge was authorized by the relevant governing body. There was no evidence that the discharge of the alleged liability to Hill was ever authorized by the relevant governing body. Instead, the court found that the governing body of the branch did not authorize the payment and referred the matter to the federal committee of management, which decided against payment. The court held that certain rules did not impose a duty on Ophel to pay out money to discharge liabilities without authorization by the appropriate body.

Based on this reasoning, the court discharged the rule nisi, finding that Hill had failed to establish that either respondent was failing to perform or observe any rule of the association. The decision concluded that there was no outstanding unfulfilled obligation under the association's rules by either respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established