Kenneth Charles Mooney v Michael Wirrick, Colin O'Malley, Barry Healy, Rod Waters, Ian Jane, John Davidson, Bob Petrovski, Mark Kingsbury, Michael Sacco, Robert Carter, George Pascoe, Jim Fokianos

[1996] IRCA 64

DECISION NO:  64/96

CATCHWORDS

REGISTERED ORGANISATIONS - application for interim orders  - balance of convenience - whether the granting of interim relief would create division within the Branch

Industrial Relations Act 1988 s 209

Bullock and Others v The Federated Furnishing Trades Society of Australasiaand Others (No 1) (1985) 5 FCR 464, 472

Morris & Ors v O’Grady& Ors; Re Application of Raffa (1991) 37 IR 196, 221

No. VI 1135 of 1996

KENNETH CHARLES MOONEY v MICHAEL WIRRICK, COLIN O’MALLEY, BARRY HEALY, ROD WATERS, IAN JANE, JOHN DAVIDSON, BOB PETROIVSKI, MARK KINGSBURY, MICHAEL SACCO, ROBERT CARTER, GEORGE PASCOE, JIM FOKIANOS

Marshall J
Melbourne
20 February 1996

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )

No. VI 1135 of 1996

BETWEEN:  

KENNETH CHARLES MOONEY

Applicant

AND:

MICHAEL WIRRICK, COLIN O’MALLEY, BARRY HEALY, ROD WATERS, IAN JANE, JOHN DAVIDSON, BOB PETROIVSKI, MARK KINGSBURY, MICHAEL SACCO, ROBERT CARTER, GEORGE PASCOE, JIM FOKIANOS

Respondents

JUDGE:         Marshall J

PLACE:         Melbourne

DATE:  20 February 1996

ORDER

THE COURT ORDERS THAT:

1.The application for interim orders be dismissed

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )

No. VI 1135 of 1996  

BETWEEN:  

KENNETH CHARLES MOONEY

Applicant

AND:  

MICHAEL WIRRICK, COLIN O’MALLEY, BARRY HEALY, ROD WATERS, IAN JANE, JOHN DAVIDSON, BOB PETROIVSKI, MARK KINGSBURY, MICHAEL SACCO, ROBERT CARTER, GEORGE PASCOE, JIM FOKIANOS

Respondents

JUDGE:         Marshall J

PLACE:         Melbourne

DATE:  20 February 1996

EXTEMPORE REASONS FOR DECISION

On 2 February 1996, Gray J granted a rule to show cause pursuant to s209 Industrial Relations Act 1988. The rule was directed to the respondents and required them to show cause why orders should not be made against them which would have the effect of recognising the applicant as continuing to hold the following honorary offices within the Victorian Branch of the Federated Gas Employees Industrial Union (“the Union”):-

• President

• Trustee

• Federal Council Delegate

The applicant is a member of the Union and in October 1994 was elected for a two year term to the offices set out in the preceding paragraph.  The respondents constitute the Committee of Management of the Victorian Branch of the Union (“the Branch”).

On 8 November 1995 the applicant chaired a quarterly general meeting of the Branch.  There is a dispute between the applicant and the respondents (other than Mr Kingsbury who did not appear on the return of the rule to show cause) as to whether or not the applicant resigned from the offices which he then held.  There is conflicting material in the affidavits which have been filed by the parties on the issue central to the proceedings i.e. whether or not such a resignation occurred.  No deponent of any affidavit was cross-examined when the applicant pressed his application for interim relief before the Court this morning.  In the circumstances the Court is in a difficult position in that it is almost impossible to determine whether or not the application discloses a serious question to be tried which has some prospect of succeeding.  See Bullock and Others v The Federated Furnishing Trades Society of Australasia and Others (No 1) (1985) 5 FCR 464, 472 per Woodwood J. For the purposes of the application for interim relief I assume that there is a serious issue to be tried in the substantive application.

I now turn to the issue of balance of convenience.

The evidence reveals that there is tension between the applicant and most members of the Committee of Management of the Branch on the question of the future of the Union and on the issue of which other organisation it should amalgamate with.  If the applicant was granted interim relief, I believe that his presence in Committee of Management meetings, and even perhaps his chairing of general meetings, would have a strong tendency to prove divisive within the Branch.  Disruption of unity within an organisation registered under the Industrial Relations Act 1988 (“the Act”) was held in Morris & Ors v O’Grady & Ors; Re Application of Raffa (1991) 37 IR 197, 221 to be a matter which a management committee of a branch of an organisation was entitled to have regard to in deciding upon which organisers it would dismiss. In my view it is also an important matter to consider when the grant of an interim order under s209 of the Act is likely to have the effect of creating division within a branch committee and disturb the workings of what, on the evidence, is presently a united committee. This aspect weighs heavily in favour of the position of the respondents on the question of balance of convenience.

Also relevant to the question of balance of convenience is the fact that the applicant did not avail himself of an invitation to attend a Branch Committee of Management Meeting on 2 February 1996 on a without prejudice basis, notwithstanding that he was physically present on the relevant  premises for another purpose.  The only evidence before the Court dealing with the applicant’s non attendance at the Committee of Management meeting relates to the applicant’s view of the capacity in which he believed he was invited to attend the meeting.  Having viewed the text of the letter which invited him to the meeting I do not believe that his understanding of the capacity in which he was invited to attend withstands rational analysis.  This aspect also favours the respondents on the question of balance of convenience.

The applicant’s return to active office as President and Trustee would displace persons from those offices, being persons who were appointed to fill casual vacancies by the Committee of Management.  It is preferable that these persons not be displaced from their offices unless it is clearly determined that no such casual vacancy has truly arisen.  This is yet another factor which weighs the balance of convenience in favour of the respondents.

No person has been elected to fill any vacancy in the office of Federal Council Delegate as a result of the events of 8 November 1995.  There is no evidence before the Court to suggest that the Federal Executive of the Union does not recognise the applicant as a Federal Council Delegate.  There is no reason to believe that his tenure in that office is under any real threat.  If events transpire to the contrary, it will be open to the applicant to apply to the Court to renew his application for interim relief in respect of that office.

In my view all the matters referred to above on the issue of balance of convenience outweigh the prejudice which the applicant will suffer in not being able to attend meetings of the Branch Committee of Management until the final hearing and determination of the rule to show cause.

The application for interim orders is dismissed.  The Court will now hear submissions regarding any orders which the parties seek to be made for the further conduct of the matter.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  20 February 1996

Counsel for the Applicant:  Mr Bruce Shaw

Solicitor for the Applicant:  J N Zigouras & Co

Counsel for the Respondent:  Mr Herman Borenstein

Solicitor for the Respondent:  Slater & Gordon

Date of hearing:  20 February 1996

Date of judgment:  20 February 1996