Hospital Employees Federation of Australia v Royal Australian Nursing Federation

[1988] FCA 650

i

. NOT FOR DISTRIBUTION

IN THE F'EDEFAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT 5 of 1988
DISTRICT REGISTRY	)
1

.I INDUSTRIAL DIVISION )

BETWEEN:  HOSPITAL EMPLOYEES'
FEDERATION OF AUSTRALIA

Applicant

AND :  ROYAL AUSTRALIAN NURSING
FEDERATION

Respondent

MINUTE OF ORDER

JUM;E MAKING ORDER	: Neaves J.
DATE OF ORDER	: 4 November 1988
WHERE MADE	: Canberra
THE COURT ORDERS	THAT:

'.

1. The applicant file and serve on o k . ~ .-,

before 18 November 1988 a statement of .

on or before 16 December 1988.

the contentions of fact and	law on which
it relies.

2 . The respondent file and serve on or

before 2	December 1988 a statement of
the contentions of fact and law	on which
it relies.

3 . The application proceed on affidavit

evidence subject to the right of either

party to adduce additional evidence

orally at the hearing.

4 . The applicant file and serve any

affidavits on which it intends to rely

5. The respondent file and serve any

affidavits on which	it intends to rely
on or before	20 January 1989.

6 . The applicant file and serve any

affidavits in reply	on or before 27
January 1989.

7.   The application be listed for further

directions on 10 February 1989.

8.   Either party have liberty to apply on two days’ notice.

m: Settlement and entry of orders is dealt with in Order	36
of the Federal Court Rules.

J

IN THE FEDERAL COURT OF AUSTRALIA	)
)

AUSTRALIAN	CAPITALTERRITORY	1
) No. ACT 5 of 1988
REGISTRY	~~~~	DISTRICT	)
)

DIVISION INDUSTRIAL )

BETWEEN: HOSPITAL EMPLOYEES'

FEDERATION OF AUSTRALIA

Applicant

AND:  ROYAL AUSTRALIAN NURSING
FEDERATION

Respondent

CORAM: Neaves J.

DATE:  4 November 1988

REASONS FOR JUDGMENT

The Hospital Employees' Federation of Australia ("the

applicant") has, by application dated 25 October 1988,

commenced a proceeding in this Court agalnst the Royal

Australian Nursing Federation ("the respondent") pursuant to

s.143(1) of	the Conciliation and Arbitration Act 1904	(Cth)
("the Conciliation and Arbitration	Act") for an order directing
the cancellation of	the registration	of the respondent under

that Act. The grounds relied upon are those prescribed by pars

(c)and (k) of s.143(1), namely that he rules of the

organization, in so far as they provide for a matter in

accordance with the prescribed conditions, have not been

observed (par.(c)) and that the organization has engaged in, or
is engaging in, conduct or activities not authorised by or in

. b 2.

accordance with its rules (par.(k)). Although the application

does not identify the rules of the respondent which are alleged

not to have been observed, it is apparent from the statement of

claim which was filed with the applicatlon that the relevant rule is the rule specifying the conditions of eligibility for membership of the organization.

The statement of claim, after asserting (par.1) that

the	applicant	and	the	respondent	are	duly	registered
organizations	within	the	meaning	of	the	Conciliation	and

Arbitration Act and (par.2) that the applicant has the right to
enrol into its membership "Wardsmen and Social Therapy Aides in
the Australian Capital Territory", alleges (par.3) that the
respondent does not have the right to enrol into its membership
"Wardsmen or Social Therapy Aides in the Australian Capital
Territory", and further (par.4) that, in breach of its rules
and its obligations under the Conciliation and Arbitration Act,
the respondent has enrolled, and has attempted to enrol, such
persons into its membership. The statement of claim gives no
further particularity of the matters upon which the applicant

relies to support the claim for relief, including interlocutory

relief, which is made. In particular, it does not identify the

persons whom it is said the respondent has enrolled or

attempted to enrol contrary to its rules and does not state the

facts from which the conclusions are drawn that those persons

fall within the eligibility rule of the applicant but not

within the eligibility rule of the respondent.

The matter came before the Court on a directlons

hearing on 31 October 1988. Counsel for the respondent

submitted that the Court constituted by a single Judge was not
empowered to give directions in the matter, that power being

required to be exercised by a Full Court consisting of at least

three Judges. Reference was made to	s.ZO(1)	of the Federal
Court of Australia Act 1976 (Cth)	("the Federal Court	Act") and

to s.l18A(4B) of the Conciliation and Arbitration Act. The

former section provides:

"(l) Except as otherwise provided by this

Act or any other Act, the original jurisdlctlon

of the Court in either Division shall be

exercised by a single Judge."

The reference to either Division includes a reference to the

Industrial Division of the Court (see s.13). Section

llBA(4B) of the Conciliation and Arbitration Act provides that "the original jurisdiction of the Federal Court of

Australia under section .... 143" of that Act be exercised

in the Industrial Division by a Full Court. Counsel also

referred to the legislative history of s.118A of the

Conciliation and Arbitration Act	(see Act No.160 of 1976 and
Act No.53	of	1978) and to the decision of Keely J. in

Bursess v. Municipal Officers' Association of Australia (24

February 1984 - unreported).

In my opinion this submission should be rejected.

Whatever may have been the position prior to 1 October 1984 when the amendments to the Federal Court Rules effected by

. ! 4.

Statutory Rules 1984 No.258 came into operation, as to which

I need express no opinion, the situation since that date has

been, and is, that the power of the Court constltuted by a
single judge to give directions in a case such as this is
expressly provided for by those rules. Order 10, rule l(1A)

provides :

“In any proceeding which is to be heard by a

Full Court, whether in the original or appellate

jurisdiction, such directions as is thought

proper with respect to the conduct of the

proceeding may be given by the Court constituted

by a single Judge.

That rule is, I think, clearly within the scope of

the rule-making power conferred upon the Judges of the

Court, or a majority of them, by	s . 5 9 of the Federal Court
Act. That power is expressly limited to the making	of Rules

of Court which are not inconsistent with the Federal Court

Act but	I can discern no basis upon which it can properly be
said that Order	10, rule l(1A) is inconsistent with that

Act. Nor, in my opinion, is that rule inconsistent with the

requirement of s.l18A(4B) of the Conciliation a d

Arbitration Act to which reference has already been made.

I, therefore, propose to exercise the power to give

directions with respect to the conduct of the proceeding.

I have already briefly touched upon the

deficiencies in the statement of claim. It would, in my

view, facilitate the elucidation of the real issues between
the parties if the applicant were required to file and serve

. I 5.

a statement of the facts on which it relies and the

contentions of law which are said to support he

propositions set out in pars 2 - 5 inclusive of the

statement of claim.	The statement should include material
upon each of the matters to which	I have previously referred

in commenting upon the statement of claim. The respondent

should also be required to file and serve a statement of the

facts and contentions of law on which it relies.

The applicant seeks a direction that the respondent

file and serve an affidavit of documents and that there be

inspection of the documents	so disclosed. The documents of
which inspection is sought are described	as -

"All internal memoranda, resolutions of its

National andlor Branch bodies, committees or

sub-committees, minutes of National and Branch

bodies and committees or sub-committees, and any

other document relating to the coverage and

enrolment and intended enrolment of -

(a) wardsmen;

(b) hospital assistants;

( c )	social therapy aides,
in the Australian Capital Territory including

any letters to the respondent or by the

respondent to other persons and file notes of

telephone calls and any other memoranda relating

to the coverage and enrolment and intended

enrolment of those persons."

It may be noted, at once, that, in seeking documents in

relation to the enrolment or intended enrolment of "hospital

assistants", the request travels beyond any allegation in

the statement of claim.

The applicant further seeks a direction that the

respondent, by the Branch Secretary of its Australian

Capital	Territory	Branch,	answer	on	ath	certain
interrogatories.	A	first	draft	of	the	interrogatories

proposed to be administered was handed to the Court and	made
available to counsel for the respondent.	I need not set out

the detail of those draft interrogatories. It is clear that

much refinement of the draft is necessary.

It follows from what I have said above concerning

the need to identify and define the issues between the
parties that it is not possible, at this stage, to make an

informed decision whether, if it were otherwise open to the

Court to do so, directions should be given requiring

:c

discovering a d permitting terrogatories be to

administered. I think it would be appropriate to address

that question before considering the submission put to the

Court on behalf of the respondent that the proceeding, being

a proceeding for the cancellation of the registration of the

respondent under the Conciliation and Arbitration	Act, falls
within that class of proceeding in relation to which the

courts will, in the absence of any statutory provision to

the contrary, refuse to make an order that a party

respondent	disclose	information	or	discover	or	produce
documents.

I give the following directlons -

1. The applicant file and serve on or

before 18 November 1988 a statement of

the contentions of fact and law	on hich
It relies.

2 . The respondent file and serve on or

before 2 December 1988 a statement of

the contentions of fact and law on which

it relies.

3 . The application proceed on affldavit

evidence subject to the right of either

party to adduce additlonal evidence

orally at the hearing.

4 . The applicant file and serve any

affidavits on which it intends to rely

on or before 16 December 1988.

5. The respondent file and serve any

affidavits on which It Intends to rely

on or before 20 January 1989.

6. The applicant file and serve any

affidavits in reply on	or	before	27
January 1989.

7 .   The application be listed for further directions on 10 February 1989.

8. Either party have liberty to apply on

two days' notice.

I certify that this and

the preceding 6 pages are

true a copy of the

Reasons Judgment for

herein of the Honourable

Mr Justice Neaves.

Associate

Dated:  4 November 1988