Johnson, L.P. v Frizziero, G

[1989] FCA 183

/ . GENERAL DISTRIEUTIOK SOT REQUIRJD

I

IN THE FEDERAL COURT OF AUSTRALIA)

1

VICTORIA	DISTRICT	REGISTRY	)	VI	No.	8	of 1989
1

INDUSTRIAL DIVISION	)
B E T W E E N :

LESLIE PAUL JOHNSON

Applicant

A N D :

C. FRIZZIERO, G.

GRUNDY, E. HILL, B. JUDGES. J. HAVRODIS, C. MUSCAT, T. RUSSO, D. SHERRY, S. SKIDMORE,

T. SPITERI, A.

SPEZZIGU, J. STEVENS

and S. WHIDBOURNE

Respondents

24 APRIL, 1 9 8 8 KEELY J.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM TRANSCRIPT)

opinion the applicant has shown that there is a

I have taken the opportunity of carefully consrdering

over the week-end the submissions advanced by both counsel

and studying the Federal Rules and the rules of the Victorian

Branch ("the Branch")	of	the Confectionery Workers Union
( "the Union").

L.

serious question to be tried as to the matters raised by the

rule to show cause, granted on 29 March 1989 and amended on

14 April 1989. Those matters Include the valldity of the

resolution, set out In the rule to show cause, which

resolution was carried by the Branch Commlttee of Management

on 7 February 1989, the purported engagement by Mr.

Frizziero, acting as Branch Secretary, of solicitors, and the

question whether a payment of $42,000 made by hlm on 3 March

1989, by a cheque drawn on Branch funds, was "unauthorised

and improper".

Miss Hlckey, of counsel, on behalf of the respondents

Frizziero, Grundy, Mavrodls, Muscat, RUSSO, Stevens and

Whidbourne ("the respondents"), submltted on Frlday and today

that the applicant has failed to show any serious question to

be tried. She has taken the court to a substantial number of

Federal and Branch rules in considerable detall. Having

considered, at the week-end, her submissions as to the proper
construction of those rules, and having heard her submissions

today, I am unable to uphold the submission that there is no

serious question to be tried.

Mr. Frizziero has sworn an affidavit on behalf of the

respondents which, deallng wzth the balance of convenlence,

refers to his apprehenslon that, if the interim order sought
is made, the respondents "will be prevented from actually
prosecuting" certain appeal proceedings (para 20); further,

that he has been advlsed by hrs solicitors, and belleves that

such an interim order "will prevent the legal representation of" the respondents in the present proceedings (para 21).

Plainly the interim order sought could	not prevent them from
having legal representation; presumably	the statement in the

affidavit and the solicitors' advice were both intended to mean that the respondents would be prevented from having such legal assistance paid for out of the Branch funds. Mr. Frizziero also deposed that the sollcitors had advrsed him "that legal $id would not be granted" to the respondents; It

was explained by Miss Hickey that "legal aid" referred to

"financial assistance" under S. 342(2) of the Industrial

Relations Act 1988 - the section deallng with matters previousPy dealt with by S. 141A and S. 1418 of the

Conciliatlon and Arbitration Act 1904.

I have examined the statutory provisions and the

"Guidelines" under the previous Act relating to that subject

matter, which are Exhibit CFlO to the affidavit of Mr. Frizziero. The section expressly refers to "hardship" to a

person if legal assistance were refused; the guidelines

include the statement that a "broad interpretation is to be

given to the word 'hardship'". On the material no

application for financial assistance has yet been made on behalf of the respondents. On my reading of the relevant

statutory provision, and of the guidelines in force under	the
previous legislation, it is most unllkely that the	Minister,

if the matter were properly presented to him so as to make clear what are the Issues before the court, would make a decision at this stage that financral asslstance to the

respondents would be refused i.e. would not be granted in the

ultimate result even if the court were to decide In these

proceedings that the Branch could not valldly pay the costs

of the respondents in the earlier proceedings before Gray J.

On the material I do not consider that the respondents

will suffer any inconvenlence or hardshlp if the interim

order is made. On the other hand I am satisfied that there

would be some inconvenience and hardshlp to the applrcant, as
a member and Assistant Secretary of the Branch, if the
inter3m order is refused; the respondents would remain free

during the perlod from now untll the determlnatlon of thls

matter (the hearing of whlch is fixed to commence on 24

August 1989) to draw further cheques	on the Branch's	funds
for payments to their solicitors.
In my opinion the interim order should be made "for the purpose of maintaining the status quo, or malntainlng	a

state of affairs which is on the balance of convenience

appropriate to be maintained until the trial". That passage

is from the reasons for judgment of Lush J. in Slater Walker

Superannuation Pty. Ltd. v Great Boulder Gold Mines Ltd.

[l9791 VR 107 at 110 and was adopted "as a correct and useful

statement of law" by the Full Court of the Victorian Supreme

. 5.

Court in Magna Alloys and Research Pty. Ltd.	v Coffey [l9811
VR 23 at 28 (see also Squires	v Stephenson (1981) 53 FLR 1 6 4
at 172-173).

In reaching my conclusion as to the balance of

convenience,	I	have not had regard to the interests of the
members of the Union and the Branch.	I	have excluded that
matter from my conslderation because of the statement	In R v	-

Joske; ex parte Shop Distributive and Allied Employees' --. - . .-

Association (1976) 135 CLR 194 at 113 by Mason and Murphy JJ.

that the history of S. 141(2) "suggests that ... lt is

designed to enable the Court to make any interlocutory order

which will safeguard the position and interests	of parties
pending a final determination ?..'l.	The word "parties", to
which I have added emphasis	in the quotation, may be thought

to require the court, as a matter of law rn the exercise of

its discretion, to consider the interests of the partles only

and not those of the members in general. As that question

has not been fully argued in the present hearing	I have not
formed any concluded opinion	on It.

It appears to be arguable that the statement by Mason

and Murphy JJ. is not intended to so confine the interests

proper to be taken into account in considerlng whether to

make an interim order. In considering whether to make

interlocutory orders in other litigation, i.e. in proceedings

which have not been brought under the Conciliation and

Arbitration Act 1904	or its successor, it is appropriate for
the court to confine its conslderation to the interests	of
the parties. Having regard to the nature	of the jurisdlctlon
conferred upon the court to deal with applications under	S.

209 (and its predecessor S. 141) and the history of that

section, in my vrew	it is arguable that the court may, in
appropriate circumstances, take into account the Interests	of

the members of the Union or Branch. The reference in S. 209

to having "the matter ... resolved within the organisatlon"

may lend some support to such an argument. As Stephen	J.
said in -	R v Joske (supra, at 204). the "matters to which the
proceedings relate" may include "the substance	of the dispute
which underlines [the] complaint".	In the present case the
underlylng dispute is as to'the	use of Branch funds for the
payment of costs.

Miss Hickey also submitted that the court should

refuse to make the interim order sought in the exercise of a

discretionary power sald to be conferred by S. 209 of the

Industrial Relations Act 1988. M1ss Hickey submltted that

the applicant had failed to take "all reasonable steps to try

to have the matter the subject of the application resolved within the organisation". She contended that there were 3 courses which the appllcant could have taken to have the

matter resolved within the Union:

1. to seek to have the resolution of 7 February 1989

rescinded

"

l .

2.       to seek a speclal meeting of the Branch under Branch Rule 24(3)

3. to endeavour to have a petition under Branch Rule 35.

On the material put before the court, Including the affidavit

by Mr. Frizziero, item 1 would be quite unreal, item	2 would
require "a request in writing from at least	100 members" and

item 3 would require that a petitlon be signed by 50

financial members.

I

The existence of those three courses of action, which

have been theoretically open to the appllcant, does not

persuade me that he has failed to take "reasonable Steps"

within the meaning of S. 209. Accordingly, assuming, wlthout

deciding, that S. 209 intends that the failure to take

"reasonable steps to try to have the matter . . . resolved

within the organisation" would, in itself, warrant the court,

in the exercise of its discretion to refuse to make the

interim order sought, I am not prepared to exerclse my

discretion against the applicant.

For those reasons, in my oplnion It is proper that the

interim order be made. Accordingly, the court orders that
the respondents Frizziero, Grundy, Mavrodis, Muscat, RUSSO,
Stephens and Whidbourne, and each of them refrain from
incurring any further liability or making any further payment

to Gill Kane 6 Brophy, on behalf of the Confectionery

Workers' Union of Australia or the Vlctorian Branch thereof,
in respect of the matters referred to in the Committee of
Nanagement resolution of 7 February 1989, referred to in the

Rule to Show Cause herein.

I certify that this and the

foregoing seven pages are a

true copy of the Reasons for

Judgment of Mr. Justice Keely

as recorded in the draft

transcript and revised by his

Honour this day.

Date:  26 April, 1989