Tanner, L.J. v Darroch, H.J.

[1988] FCA 281

3UDGMENT No. 2 .......-._. - , - ! r -eL

Indutrial law - registered organization - rules -

perfornance or observance - applicant ceasing to hold offices

on which entitlement to orders based - whether Court can make order - absence of continuing obligation on respondents -

prospective nature of orders Court can	make.
Conciliation and Arbitration Act	1904 s.141.

LINDSAY JAllEs TANNER v. H. J. DARROCH. J .P . PULYNES. K:Y.

Wm. M.J. O'SULLNAN

No. V 224 of 1987

GRAY J.

HELBOURNE

24TH M Y 1988

No. V224 of 1987

LINDSAY JAKES TANNER

Applicant - -

-and-

H.J. DARR O C H . J .P . MAYNES,

K . Y . HARVEY, H.J. O'SULLIVAN

Respondents

-:  Gray J.

PLACE: Melbourne

-:  24th May 1988

M W O R E REASONS FOR JUlXMENT

The rule to show cause in these proceedings was

granted on 16th December 1987. In its final amended form,

the applicant seeks orders under S. 141 of the Conciliation snd Arbitration Act 1904 ("the Act") of three kinds. The

first kind of order sought is that the respondents supply

infOmtiOzl for the applicant.	The second	is	that	the
respondents give to	the	applicant	access to certain

docwnts. The third kind of order sought is that the

respondents refrain or desist from	giving the applicant
certain directions.

At the time when the rule to show cause MS

obtained. the applicant held the elected position of

assistant secretary Of the Victorian branch of the Federated

Clerks Union of Australia. By virtue of holding that

position,, i the applicant was also a member of the state executive, the state council, and the state conference of

that branch. The respondents hold and held various other

offices within that branch. Together with the applicant they

made up the state executive. The respondents were also

members of the state council and the state conference.

The matter proceeded to the stage of trial, and the

trial was completed on 29th March 1988. On that date, the

~

Court reserved its judgment on the matter. Wilst the

judgment was in the course	of preparation, the respondents
filed a notice of motion on 9th May	1988 seeking leave to

make further submissions, by reason of an event which

occurred after 29th March.

The event which vas relied upon was a letter dated

9th M y 1988 from the applicant to the first respondent,	by
which the applicant tendered his resignation from the	office
of assistant secretary, effective from 16th May.	As a result
of that event, the respondents seek the discharge of the rule
to show cause, for the	reason that the basis for making any

of the orders sought by it has disappeared. The Court has

now heard argument from Mr. Tracey, who appeared with Ur. O'Callaghm P.C. for the respondents, and from Hr. Hurley,

who appeared vith Hr. Pehring for the applicant. and from Hr.

Ilcken, the solicitor for the respondents, in reply.

. 3 .

For the purposes of this judgment, it is assumed

that the applicant vould t u v c bccrl c r t L i L l r r l Lu some or

#

all of the relief sought in	the rule to show cause.	That
sssunQtion is made without	any decision or indication	as to
its correctness.

Mr. Tracey first put the proposition that the Court

had no longer any jurisdiction to deal with this matter. The

jurisdiction of the Court to deal with an application by a

member of a registered organization for an order under s.141

is found effectively in sub-s.(l) of that section. It

depends upon the applicant being a member of the organization

concerned. Hr. Hurley has pointed out correctly that the

applicant has not ceased to be a member and is therefore

still entitled to approach the Court for a determination of

an application under the section.

The problem that arises seems to ne to be more one

of power. The power of the Court to make an order is found

in sub-s.(lG) of s.141 in the following terms:

directions for the performance or observance	"An order under this section may give
of any of the rules of an organization by any
person who is under an obligation to perform
or observe those rules."

In Brroch v. (1987) 74 A.L.R. 559 at pp. 564-565

the E U L Court set out that subsection, emphasising some of

the vords in it by m a n s of italics. After then quoting from

the juigments of Latham C.J. and Dixon J.,	as he then was, in
R. v. Conromealth Court of Conciliation and Arbitration: Ex W t e Bsrrett (1945) 70 C.L.R.	141, the Full Court went on to
say :

Those two passages reflect the words in section 141(1G) to which emphasis has been added above and support the view that at the

time of the giving of the directions the -

persons to whom they	are given must be persons
under M obligation to perform	or observe the
rules.	In our opinion the power conferred by

section 141(1G) to give directions for the
performance of any of the rules by any person

who is under an obligation to perform those

rules does not empower the court to give

directions designed to overcome	the effect of
a past breach of	a rule unless there is on a
proper construction af the rules a	continuing

obligation to observe the rules and the

direction is given to secure the performance

of that obligation under the rules."

'I'traL case! was cwcerned vZth the question uhether persons who

had improperly spent the funds of a registered organization
could be called upon after the event	to repay those funds.

It was not a case in which some supervening event occurred between the grant of a rule to show cause and the date when the Court would have made orders under s.141 for the perforlance or observance of the rules. Nevertheless, it

does give some indication as to the prospective nature Of

L 5.

orders which the Court is empowered to make under subsection

(1G).

r

Similar hdications appear from the judgment of

Keely J. in Maner V. Fowler (1979) 26 A.L.R. 671

especially at pp. 698 and 701, where his Honour cited the

judgment of O'Mara J. in m v v. Australian Workers Union

(1944) 53 C.A.R. 108, at pp. 123-124. In that judgment

O'Mara J., in dealing with the pover of the court to make orders under the predecessor of s.141 and the nature of the obligation in respect of which orders were made, said:

_ -

"The obligation must be one existing at the

tine when the court makes its order and one which the person is permitted to discharge in

the future. "

Keely J. adopted the phrase "passed and closed" from	the
judgment of O'Hara J., by way of	referring to the kinds of
matters in respect of	which orders cannot be made under

s.141. In my view the kinds of orders which can be made

under s.141 are orders which are prospective, in respect of

obligations which exist at the date when the orders	are made
and which will continue into the future.

In the present case, Hr. Hurley argued that such

continuing obligations do exist. On his argument he

obligations crystallized on and prior to 16th May when the

applicant's resignation took effect, and those crystallized

obligations remin. If this view were taken it would mean

that the respondent6 uould now become obliged by order of the Court to pive the applicant information, documents and access to docrncntr and to cease to give h i m certain kinds of

directions, even though he no longer holds the position of

assistant secretary or any of the other offices which

justified his receipt of that information, those documents,

that access, or his entitlement to be free of those

directions. In my view, this shows the obligations sought to

be enforced to have become past obligations. The obligations

contemplated by s.l4l(lG) cannot include that kind of past

_ -

obligation.

The issue of any entitlement of the applicant to

the orders he	seeks is an issue of an entitlement which	is
n w	passed and closed.	The applicant could not make any

legitimate use of the information he derived from the making of the orders in his present position of being other than the

assistant secretary of the branch.

Argument also took place on questions of discretion

in the event that the Court did have power to make the
orders. It	is unnecessary for me to pronounce upon questions

of discretion. I should say, however,	that	if the matter
were one of discretion, the	most weighty factor would	be that

the applicant, no longer being in a position where he is

obliged to mJte use of information for the benefit of the

organization, cannot legitimately claim	an entitlement to
receive that information by virtue	of that position.

It nap be that the management of the Victorian

branch of the Federated Clerks Union of Australia was

improperly carried out whilst he applicant held his

position, by reason of his not	being given the	information
and the documents that	he	sought, or by reason of his being

given the directions that he sought to be freed from, but

that is not a matter on which the Court c m now pronounce

properly under s.141 of the Act.

_-

For these reasons I propose to order that the rule

to show cause be discharged. The order of the Court in this

proceeding, therefore, is that the amended rule to show cause

is discharged.

ADDearanCa

Counsel for the applicant:  Mr. T. Hurley

Mr. I. Fehring

Solicitors for the applicant:	Holding Redlich
Counsel for the respondent:	Mr. P. O'Callaghan P.C. Mr. R. Tracey
Solicitors for the respondent:	A.J . Macken & Co.
Datu of Hearing:	24  Nay 1988

l certify that this and the preceding seven ( 7 ) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray.