ee Bq COMMONWEALTH OF AUSTRALIA IN THE FEDERAL COURT V No. 19 of 1977 OF AUSTRALIA INDUSTRIAL DIVESION In the matter of - THE CONCILIATION AND ARBITRATION ACT 1904 Between — RICHARD WILLIAM HILL Claimant And - KENNETH OPHEL wa Respondent ORDER JUDGES MAKING ORDER: Smithers, Franki and Northrop, JJ. DATE OF ORDER: 13th October 1977 WHERE MADE: Melbourne THe COURT ORDERS THAT: 1. The Rule Nisi herein be discharged. me Se ee SMITHBRS, J: In this case we are satisfied that the claimant PBE/RI Ophel has failed to establish that either of the respondents is failing to perform or observe any rule of the association which he is under any express or implied obligation to perform or observe. We have examined all the rules referred to by Mr. Cooney with a view to ascertaining whether, in the circumstances disclosed to the court, there could be found any express or itplied obligation which the respondents or eitner of ther could possibly be said to be falling to observe or perform. It was our view that it was arguable that in the circumstances in which claims of the claimant were outstanding asainst the association and required the attention of the association either at its federal level of managerent or its branch level of managerent, a duty could be implied that the executive officers such as the president and the secretary, should take all reasonable steps to bring such claims before the appropriate committee of wanagement for decision. It became clear however on the evidjence of the respondents that this duty, if actually created by the rules, had been fully performed and observed. The claims were brought before the branch management committee and were referred by that committee to the federal committee of management which rejected them, accordingly, even on the view of the rules most favourable to the claimant, there 1s no outstanding un- performed obligation thereunder in either of the respondents and there was no such obligation at the commencement of these proceedings. We assume, without deciding, that the evidence before us establishes & prima facie outstanding liability of the association, through the branch, in favour of Mr. Hill in respect of certain accounts. It was argued by Mr. Cooney that once such a liability was shown there arose under the rules an obligation 1n the secretary and president to sign a cheque against the association brancn funds and to forward the same to Mr. Hill for the arount of the liability, But on the prover interpretation of the rules it is our view thet the obligation to do these things does not arise out of the mere existence of a Liability but only when there is a liability the discharge of which is authorised by the relevant governing body. There 1s nothing in the evidence before us to show that the discharge of the alleged liability to Mr. Hill was ever authorised by the relevant governing body. There 1s evidence however that when the claimant 684A 13/10/77 (Continued on pase 68B) ae no. submitted his claims to the branch, the secretary duly referred the same to the governing body, as it was his duty to do, and that governing body, being the governing pody of the branch, did not authorise payment but referred the question to the federal committee of management, The federal committee of management decided that the amounts in question should not be paid and the liabilities if they existed - which was not accepted - should not be discharged. In this connection it is pertinent to observe: (a) that rule 14 of part 2 of the association's rules cannot be read as imposing a duty on the president and secretary actually to pay out money to discharge liabilities the discharge of which has not been authorised by the aporopriate body and, (b) that rule 22 of part 1, particularly parts (b) and (e) of that rule and rules 1 and 5(c) of part 2, make clear that in a case like this it is the committee of management of the branch which is the apprepriate governing body to authorise discharge of liabilities and is the body having, subject to control by branch meetings, the control of the funds under the , management of the branch. Accordingly, the rule nisi will be discharged. cencenteean depeteaateamaaateatid wet apes mae 7 anus o. a