McGee, S. v Sanders, J.H

[1991] FCA 208

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) No. V1 32 of 1991
1
INDUSTRIAL DIVISION	)
B E T W E E N :

STEVEN McGEE

Applicant

A N D :

J. H. SANDERS, C. KEILY. K. WISE. H. E. WEIR, G. R. NEWMAN, R. J. HORE. B. R. AGG. D. CRUMP. K. J. CONNORS. G. WOOD. J. M. BILTRIS, J. B. WHITE, D. A. PORTER and P. POWER - .

Respondents

22 APRIL, 1991 KEELY J.

REASONS FOR JUDGMENT - DELIVERED EX TEMPORE

As to order 1 of the interlocutory orders sought, it has

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been conceded by counsel for those respondents who have entered an appearance (whom I shall call "the respondents") that there is "a serious question to be tried in relation to whether or not rule 37 has been complied with" (transcript p. 31). However, he has submitted that the applicant's prospects of success on that question "are not great". Since the matter was adjourned last Wednesday, 17 April, I have read the transcript of the arguments on that question and I have heard	advanced by the parties I am unable to accept the respondents'	further argument today. Having considered the submissions
submission that the applicant's prospects of success "are not great".
In my opinion his prospects of success on that serious question to be tried are sufficiently strong for the court in the exercise of its discretion, to make the interlocutory order sought, the court having formed the opinion that the "balance of convenience" test supports the making of the order.

Accordingly I shall make the order sought in paragraph 1

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of the applicant's claim for interlocutory relief.

I am not satisfied that it is necessary to make the second order sought i.e. as to the applicant's attendance at meetings; in addition, as drafted it might have unintended effects. Accordingly that proposed order will not be made but

liberty to apply will be reserved to the parties.

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As to the third order sought by the applicant, I am not satisfied that there is a serious question to be tried as to whether the rules impose an obligation on the respondents, or any of them, to permit the applicant to have access to and to inspect the large number of documents, dating back to 27 September 1989, described in paragraphs (a), (b) and (c) of the proposed order. Further, I am not persuaded that the balance of convenience supports the making of that proposed order.

An additional matter tending against the making of that order is the fact that approximately 18 months has elapsed since the applicant first became "concerned as to whether the Rules were being observed ... in particular in relation to the financial administration and management of the Branch" - taking those words from paragraph 5 of the applicant's

affidavit sworn 5 April 1991. Although he has been active

during that period in seeking documents, he did not seek any order from the court until April 1991, which was after the decision of the Branch Management Committee to suspend him from his office as Branch Trustee. In all the circumstances in my opinion the court should decllne to make the o?d&r

sought in sub-paragraphs (a), (b) and (c) of paragraph 3 of
the applicant's claim for interlocutory relief.

The respondents' counsel in the course of his submissions this afternoon stated that he would not oppose an order in the terms of sub-paragraph (d) of the applicant's proposed order 3, as amended during the address by the applicant's counsel.

Accordingly that order will be made.

The orders will only be made against those respondents who have filed a notice of appearance. I have noted that the Registrar has received letters, apparently from the other four respondents, consenting "to the Court making the orders". I do not consider that those letters are a sufficient basis for making orders binding on them.

The orders of the court are that the respondents, J. H. Sanders, C. Keily, K. Wise, H. E. Weir, B. R. Agg, K. J. Connors, G. Wood, J. M. Biltris, D. A. Porter and P. Power and each of them:-

1.    Perform and observe the rules of the Transport Workers'

Union of Australia ("the organisation") by desisting from

implementation of the purported resolution of the

Committee of Management of the Victorian Branch of the

organisation at its meeting on 12 March, 1991 suspending

the applicant from the office of Branch Trustee within

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the Victorian Branch of the organisation.

2.   Perform and observe the rules of the organisation by

ceasing to deprive the applicant of access to and inspection of all minutes of meetings of the Committee of Management held in 1991 and all reports tabled at such

meetings. -

I certify that this and the foregoing

three pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 22 April, 1991.

Associate: / l ~ d G

Dated: 22 April, 1991.

Dates of Hearing	17 and 22 April, 1991
Date of Judgment	22 April, 1991
Solicitor for Applicant	Holding Redlich
Counsel for Applicant	M. Hickey
Solicitor for Respondents	Harry Nowicki & Co.
Counsel for Respondents	H. Borenstein