= 7 CATCHWORDS Industrial Law - Application for interim orders - Jurisdiction of Court constituted by single Judge where (earlier) "proceedings" part heard before a Full Court - ' Whether order sought has "any relation to the matters to which the proceedings relate" - Principles applicable to making interim orders ~ Conciliation and Arbitration Act 1904 ss. 118C, 140(10) and 141(2). J. S. THOMPSON & ORS v. L. C. TOWNSEND & ORS V. No. 31 of 1979 Coram: Keely J. 16 August 1979 Melbourne. IN THE' FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION V. No. 31 of 1979 VICTORIA DISTRICT REGISTRY IN TIIE MATTER of the Conciliation and Arbitration Act 1904 and IN THE MATTFR of an Application spursuant to section 140 and section 141 of the said Act BETWEEN: JOE SLATER THOMPSON, JAMES O'NELLL and WILFRED TAYLOR Applicants and L. C. TOWNSEND, J. K. SANDILANDS, D. E. JARRAD, J. E. BUCK, W. J. ALLAMBY, D. J. FOREMAN, J. D. BENNETT, P. W. NEHAM es G. J. BURGE, A. McDONALD, C. AUSTIN, THE VEHICLE BUILDERS EMPLOYEES' FIDERATION OF AUSTRALIA, GARRY ERNEST SHERRIFF, E. M. McMANUS, S. LOUCANARIS, J. E. FORD, A. HARVEY, 'T. GEARON, P. SLEVIN, J. J. McDOUGALL, R. BENNION, A. C. KNIGHT and M. ANDERSON Respondents ORDER JUDGE MAKING ORDER: Keely J. ' DATE OF ORDER: 16 August 1979 WHERE MADE: Melbourne THE COURT ORDERS THAT: 1. Application dismissed. IN THE FEDERAL COURT OF AUSTRALIA ) > | INDUSTRIAL DIVISION ) V. No. 31 of '1979 ) ) VICTORIA DISTRICT REGISTRY IN THE MATTER of the Conciliation and Arbitration Act 1904 and IN THE MATTER of an Application "pursuant Lo section 140 and section 14 of the said Act BETWEEN: JOE SLATER THOMPSON, JAMES O'NEILL and WILFRED TAYLOR Applicants and L. C. TOWNSEND, J. K. SANDILANDS, E. JARRAD, J. E. BUCK, W. J. ALLAMBY, - J. FOREMAN, J. D. BENNETT, P. W. NEAM, G. J. BURGE, A. McDONALD, C. AUSTIN, THE VEHICLE BUILDERS EMPLOYEES' FCDERATION OF AUSTRALIA, GARRY ERNEST SHERRIFF, E. M. McMANUS, S. LOUCANARIS, J. E, FORD, A. HARVEY, T. GEARON, P. SJEVIN, J. J. McDOUGALL, R. BENNION, A. C. KNIGHT and M. ANDERSON Respondents D. D REASONS FOR JUDGMENT 16 August 1979 KEELY J. This is an application for interim orders pursuant to s.140(10) and s.141(2) of the Conciliation and Arbitration Act 1904. As amended at the hearing the application seeks the following orders: "1, That pending the furlher order of the Court all parties to the above proceedings treat as null and void and of no legal effect all purported resolutions of a meeting or meetings of the Federal Council of the respondent organisation purportedly called for the fifteenth, seventeenth and eighteenth days of August 1979 and any adjournment thereof and any meeting of the Executive CommitLlee held in connection with such meeting or meetings. 2. That pending the further Order of the Court the fifteen delegates to represent the respondent organisation at the Australian Council of Trade Unions 1979 biennial Congress shall in addition to the Federal Secretary and Federal Assistant Secretary be such other members of the respondent organisation as are appointed as such delegates by the Branch Committee of management of each of the Queensland, New South Wales, Victorian and South Australian Branches cach Branch to appoint three delegates except the Victorian Branch which shall appoint four delegates." The Court's power to make interim orders exists "at any time after proceedings under" s.140 or s.141 have been instituted. Proceedings under both of those sections have been instituted | (Matter V. No. 12 of 1979) and are at present part heard before a Full Court which heard the matters for several days in June 1979 and is to resume the hearing on 17 September 1979. The power invoked under s.141(2) in these proceedings is to "make such interim orders as it thinks fit in relation to the matters to which the proceedings relate" i.e. the proceedings before the Full Court. The application for interim orders was opposed by Mr Harrison on behalf of all of the respondents other than the respondents Garry Ernest Sherriff, E. M. McManus, S. Loucanaris, J. E. Ford, A. Harvey, T. Gearon, P. Slevin, J. J. McDougall, R. Bennion, A. C. Knight and M. Anderson. The respondents represented by Mr Harrison also constitute all of the respondents in the Full Court proccedings except J. $. Thompson, J. O'Neill and W. Taylor, who are the applicants for the interim orders. The present application was heard on Tuesday, Wednesday and today. As the application rclated to meetings proposed to be held yesterday (now adjourned until Friday) and on Friday and Saturday of this week (August 15, 17 and 18 respectively) it is necessary that the matters be determined today. A question was raised 'as to whether s.140(10) and s.141(2), in conferring upon "the Court" the power to make interim orders, conferred that power upon the Court constituted by a single judge in the present case. The question arises because the "proceedings ... (which) have been instituted" (which proceedings are a condition precedent to the existence of the power to make interim orders under either s.140(10) or ¢.141(2)) have been the subject of an order under s.118C, made by the Court constituted by a single judge, "that the proceedings be heard and determined by a Full Court". In the time available this question has not been argued as fully as I would have wished. However, the urgency of this application requires that it be decided and I have reached the conclusion that the power is exercisable by the Court constituted by a single judge. S.118A(4A) provides (inter alia) that the original jurisdiction of the Court under s.140 and s.141 of the Act "shall be exercised by a single judge". The single judge in exercising that jurisdiction "may, at any stage of the praceedings ... order that the proccedings be heard and determined by a Full Court" (s.118C). In my view the exercise of that power under s.118C in Matter V. No. 12 of 1979 docs not operate to require thut the power conferred upon the Court by s.140(10) and s.141(2) be exercised by a Full Court. Mr O'Callaghan Q.C., who appeared with Mr Ray Johnstone for the applicants, did not submit that, in considering whether to make the interim orders sought, the relevant principles are different from those to be observed in dealing with applications for interlocutory injunctions. As the High Court said in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618 at 622 and 623: "The Court addresses itself in all cases, patent as well as other, to two main inquiries. The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is directed to this aspect of the matter. It is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." . I turn to the first matter - whether the applicants have made out a prima facie case. As this is an application for interim orders it is not desirable that I should form any concluded views as to the evidence on the issues in dispute. The applicant J. S. Thompson is a member of Federal Council and the Branch Secretary of the New South Wales Branch of The Vehicle Builders Employees' Federation of Australia (the Federation). There is evidence that he received from the respondent, L. C. Townsend, who is the Fedcral Secretary, on Friday, 6 July 1979 a telex message and on Monday, 9 July 1979 a letter with certain enclosures relating to the proposed alterations to the rules. The letter was dated 5 July 1979, was headed "To all State Branch Secretaries and Federal Councillors" and concluded by saying "It follows that there will be meetings of the Federal Council on the 15th, 17th and 18th August, 1979 respectively", There is no evidence at present before the Court as to when the letter was posted. Rule 50 of the certified rules of the Federation (the rules) provides as follows: "S50, Amendment of Federal Rules (a) Amendments may be made to these Rules and new rules may be made and any existing rule may be deleted ox deleted and replaced by a new rule, by a resolution carried at a meeting of Federal Council. of which not less than six wecks' notice in writing specifying the nature of the proposed alteration to the rules shall be given to each member of Federal Council. (b) The Federal Secretary shall give to each Branch Secretary not less than six weeks notice in writing of any meeting of Federa] Council at which an alteration or amendment of these Rules if (is) proposed to be made. Such notice shall specify the nature of the proposed alteration or amendment. (c) Upon receipt of the notice referred to in the last preceding sub-rule, each Branch Secretary shall call a general meeting of his Branch for the purpose of considering the proposed alteration or amendment. Each such Branch meeting shall be held not less than two weeks prior to the mecting of Federal Council at which the alteration or amendment is proposed to be made. (d) Each of the Branch Meetings referred to in the preceding sub-rule shall be called by notice specifying the nature of the proposed alteration or amendment and given not less than two wecks prior to the date fixed for each respective Branch meeting." The applicants contend that neither of the meetings of Federal Council called for 15 and 18 August 1979 is a meeting "of which not less than six weeks' notice in writing" has been "given to each member of Federal Council" and given "to each Branch Secretary" as required by Rule 50(a) and (b) of the rules. Y , It was argued by Mr Harrison for the respondents to the present application that the requirements of Rule 50(a) are met if the "notice in writing" has been posted six weeks before the proposed meeting. I am unable to accept that contention as the rule requires that the recipients of the notice in writing shall be given, (i.e. shall havé "not less than six weeks' notice" both of the meeting and of "the nature of the proposed alteration to the rules", Mr Harrison referred to the possibility of a situation where a member of Federal] Council would have received the notice in writing in the ordinary course of post but failed to do so by reason of his absence from his office on leave. It may be that such a failure would not result in noncompliance with Rule 50(a) but it is unnecessary to consider that question in this matter. It was also argued by Mr Harrison that the telex message sent and received on Friday, 5 August 1979 constituted a "notice in writing" within Rule 50(a). Assuming that a telex message may constitute a "notice in writing" within the meaning of Rule 50, in my view the telex message sent and received did not specify "the nature of the proposed alteration to the rules" within the meaning of Rule 50(a). On the material before me I have formed the opinion that the applicants have established a prima facie case that the requirements of Rule 50(a) as to the method of making amendments to the rules were not compJied with in such a manner as to permit amendments to be made to the rules at the proposed meetings of the Federal Council on August 15 or 18. I also consider that the applicants have established a prima facie case that the Federal Secretary failed to comply with Rule 50(b) in that he failed to "give to each Branch Secretary mot less than six weeks' notice in writing of any meeting of Federal Council at which an alteration or amendment of" the rules was proposed - the notice being required to "specify the nature of the proposed alteration or amendment", Rule 50(c) requires that "each Branch Secretary shall call a general meeting of his Branch for the purpose of considcring the proposed alteration or amendment. Each such Branch meeting shall be held not less than two weeks prior to the meeting of Federal Council at which the alteration or amendment is proposed to be made", It is common ground that no such meeting of the New South Wales Branch was called or held. Mr Harrison argued that the applicants should not be permitted to take advantage of the failure of the applicant Thompson to call a meeting of the New South Wales Branch. However, the material before me establishes a prima facie case that the applicant Thompson was not under any duty to call such a meeting of the New South Vales Branch because he had not received six weeks' notice in writing of the proposed meetings of Federal Council. I also consider that the applicants have established a prima facie case that the rules did not authorise the Federal Executive or the Federal Secretary to take action to have the Federal Council meeting which adjourned in March 1979 resume on Friday, 17 August 1979, In considering that question I have carefully considered Rule 13 and Rule 17(e) upon which Mr Harrison placed particular reliance. It is strongly arguable that the requirements of Rule 50 as to the amendment of Federal rules are mandatory (sce Morris v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 21 A.L.R. 425 and Roots v. Mutton (1978) 32 F.L.R. 15). Im the light of the material before the Court at this time I consider that, in respect of paragraph 1 of the present application, the applicants have made out a prima facie case within the meaning of the passage which I have quoted from Beecham's Case (supra). I am also satisfied that an order granting substantially the interim relief sought in paragraph 1 of the application (but altered in form so as to refer only to such resolutions as may be passed) would be an order "in relation to the matters to which the proceedings (Matter V. No. 12 of 1979) relate" as required by s.141(2) (see also s.140(10)). However, I am not satisfied that the order sought in paragraph 2 of the application (as to representation of the Federation at the A.C.T.U. 1979 Ricnnial Congress) would be an order "in relation to the matters to which the proceedings relate", or an order "in relation to a matter meh eae to which the matters raised in the proceedings are relevant" as required by s.140(10). Mr O'Callaghan was unable to refer me to any reference to the A.C.T.U. Biennial Congress in (a) the | rule to show cause in Matter V. No. 12 of 1979; (b) the affidavit of the claimant G. E. Sherriff in those proccedings (except a resolution contained in the Minutes annexed to it) or (c) in the rules of the Federation - other than Rule 53 which deals with "where the rules are silent". Accordingly, in my view the Court has no jurisdiction to make the interim order sought in paragraph 2 of the present application. It is convenient to refer at this stage to two arguments put by Mr Harrison that the Gourt should not make an order under s.141(2) of the Act in al] the circumstances, i.e. that it should exercise its discretion against making such an order. Ie first argued that an order made by the Court granting paragraph 1 of the application would "foreclose" the respondents from subsequently seeking to raise the question of the validity of the meetings in the proceedings in the Full Court. I am unable to accept that submission. S&.141(3) expressly provides that an interim order "continues in force, unless expressed to operate for a shorter period or unless sooner discharged, until the completion of the proceedings under this section", i.e. until the completion of the proceedings under s.141, the hearing of which is listed to resume in the Full Court on 17 September 1979, A provision similar to that which I have just quoted from s.141(3) is ~ 10 - contained in s.140(11) with reference to an interim order made under s.140(10). ) Mr Harrison also relied upon the delay in making the present application. On the evidence before the Court Mr Thompson, the Secretary of the New South Wales Branch, was absent on leave from the evening of Friday, 6 July 1979 unLil the morning of Monday, 235 July 1979. The present application was filed on Friday, 10 August 1979. On Thursday, 9 August 1979, the applicant J. S, Thompson had sent to the Federal Secretary, the respondent L. C. Townsend, a telex stating that he had received legal advice that neither the telex of 6 July 1979 nor the letter dated 5 July 1979 and its enclosures which was received on 9 July 1979 constituted notice for the purposes of Rule 50(b). His telex message proceeded to request confirmation "that no purported meetings of Federal Council will be held on 15, 17, and 18, August 1979" and informing the respondent Townsend that unless he received such confirmation he would apply immediately to this Court for orders restraining the holding of the mcetings. I accept the submission by Mr O'Callaghan that the material before the Court does not warrant a finding that there has occurred any delay that is relevant to the exercise of the Court's discretion as to whether to make the interim orders sought. As to the interim order sought in paragraph 1 of the present application, having regard to the prima facie case of a failure Lo comply with the mandatery requirements of Rule 50(a), (b) and (c), I nuw consider the second aspect referred to in the passage which I have quoted from Beccham's Case (supra). Although the question is not simply one of convenience - as the passage quoted shows - it is referred to as the "balance of convenience" aspect. On all the material before the Court I am not satisfied that any inconvenience or injury which the applicants would be likely to suffer if an interim ordcr as sought in paragraph 1 of the application were refused, would outweigh any injury which the respondents would suffer if such an interim order were made. On this aspect the affidavit of the applicant J. S. Thompson included the following paragraphs: "13, I say that the proposed alterations to rules and other matters intended to be considered by the purported meetings of Federal Council] involve matters of fundamental importance to the New South Wales Branch and other branches including the abolition of existing sub-branches, the restriction of the present rights of branches to create sub-branches, restrictions on or removal of the existing rights of branches as to their internal organisation their relationship with other branches and their entitlement or representation on Federal Council purportional (sic) to their membership. 14. JI am concerned that unless restrained by order of this Honourable Court decisions may be purportedly nade and acted upon at the said purported meetings of Federal Council which are contrary to the best interests of the respondent organisation and the members of the New South Wales Branch and which may be adopted by reason of the invalidities referred to in the above proccedings and in this my affidavit." However, if any of the proposed meetings of Federal Council are held aud if any resolutions are made purporting to alter the rules of the Federation then any such alterations will "not have effect until particulars of the alteration have been filed in the office of the (Industrial) Registrar and the Registrar has certified that the alteration ... has been made in accordance with the relevant procedures Jaid down by the rules ..." (s.139(4)). In addition, Mr Harrison has undertaken that, until the Full Court hag decided the matter, none of the respondents for whom he appears wil] request the Industrial Registrar to grant his certificate (under s.139(4)) as to any @ such alterations to the rules. If any of the proposed meetings challenged in the present matter are held and any resolutions are carricd - whether by way of purported alteration to the rules or otherwise - then it will be open to the present applicants to apply for a rule to show cause directing the present respondents to treat any such resolutions as being null and void and of no legal effect. If desired an application could be made to have any such @ proceedings heard and determined by a Full Court. A request could be made that it be heard by the Full Court dealing with Matter V. No. 12 of 1979 on 17 September 1979. Further, if any good reason existed for an earlier determination as to the validity of any resolutions carried at any such meetings, the rule to show cause could be made returnable before a single judge at an earlier point of time for final determination. Alternatively, an application could be made to a single judge for the making of interim orders. aa a atlanta ina) oc <5 ed. "<n Matantin "i ne 12s lod ibteinaimiameat 7 ranean nr aiadodeanehd dante nara Any such hearing would be at a time when the Court determining the matter had evidence as to the precise terms of any resolutions. Further, if interim orders were sought, the Court would be able to consider the application in the light of evidence directed specifically to the harm alleged by the applicant to warrant the making of interim orders. One of the difficulties of the present case is to consider the question of likely inconvenience or injury to the applicants in respect of resolutions which have not yet been passed and which may not be passed at meetings which have not yet been held and which may not be held. This difficulty was illustrated by Mr O'Callaghan who, in answer to a question from the Court as to precisely what injury or inconvenience would be likely to be suffered by the applicants if the interim order sought were refused, said (inter alia) that "there may be other harm we cannot identify". Mr O'Callaghan referred to two specific matters. One was to suggest that the respondents intended to forward any altcrations to the rules to the Industrial Registrar - a matter to which I have already referred, and as to which Mr Harrison's undertaking is relevanc. The other matter was to contend that any purported amendments to the rules at the meetings would proceed without the proposed amendments having been considered by the New South Wales Branch. This does not in my view in the circumstances of this case constitute a sufficient reason for making interim orders as distinct from making orders if and when the matter is before the Court for final determination. 8 MUTE tne ily he tegen . Lastly, Mr O'Callaghan submitted that the Court should be astute to deal with any invalid actions. However, as I have said earlier, he refrained from submitting that the principles relating to interlocutory injunctions were not applicable to the present application for interim orders. On those principles in order to succeed he must satisfy the Court as to the "balance of convenience" as explained in Beecham's Gase (supra). In my view the applicants have failed to do so. Perhaps I should add that on the material placed before the Court I am also not satisficd that any inconvenience or injury which the applicants would be likely to suffer if an interim order, as sought in paragraph 2 of the application, were refused, would outweigh any injury or inconvenience which the respondents would suffer if such an interim order were made. Accordingly, the applicalion is dismissed.