ue Industrial law + registered organization - validity cf purported "suspension" of members challenged under s.141 - after proceedings instituted di:ective given that membcrs nol co work with applicant - claim for intexim ocders re directive - jurisdiction of court - principles governing discretion ~ balance of convenience - cost to organizction if interim orders made --alleged delav in seeking relief - Conciliation and Arbitration Act 1904 s.140.s.1]41(1) & (2) Practice - procedure - application by s+respondencs for change of venue - principles applicable ~ possible adverse t effect of change of venue upon applicant's application fer firancial assistance by Commonwealth - priuciples applicable - Fedecal Court of Australia Act 1976 8.48 RICHARD JAMES SQUIRES v, KETTH STEPHENSON and others (V. No. 6 of 1981) Corais: KEELY J. Place: Me Lbourne Date: 7 July 1981 RECEIVED =~9 JUL 1981 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION . V. No. 6 of 1981 eee IN THE MATTER of the Conciliation and Arbitration Act 1904 AND IN THE MATTER of applications under Sections 140 and 141 of the said Act BETWEEN: RICHARD JAMES SQUIRES Applicant AND: KEITH STEPHENSON, GLEN HOLLAND, PETER JACOBS, WARREN SMITH, RENE HERBERT, DAVID BARWICK, LEW JACKSON, DAVID LOMAS, CHARLIE LUCAS, GARRY MORRIS, PUG MURPHY, MICHAEL SSEDHAN, CHRISTOPHER TREGEAGLE, TONY BAKER, MALCOLM MILLER, JOHN JENKINS, TREVOR WILKINS, DAVEY JONES AND FLIGHT STEWARDS' ASSOCIATION OF AUSTRALIA Respondents ORDER JUDGE MAKING ORDER: KEELY Jd. WHERE MADE: Melbourne DATE OF ORDER: 7 July 1981 THE COURT ORDERS THAT: 1. Part of the proceedings, namely the hearing until the oon SE AN eee i CM ate Shanta ee SANE tine ee Law! Pete wee ett ete ser me en tee close of the case for the respondents, Sydney. 2. Liberty to apply reserved to all shall be conducted in parties upon not less than three days' written notice to all other parties. 3. The parties shall arrange with the Registrar a date for hearing. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION BETWEEN: AND: v. No. 6 of 1981 IN THE MATTER of the Conciliation and Arbitration Act 1904 AND IN THE MATTER of applications under Sections 140 and 141 of the said Act RICHARD JAMES SQUIRES Applicant KEITH STEPHENSON, GLEN HOLLAND, PETER JACOBS, WARREN SMITH, RENE HERBERT, DAVID BARWICK, LEW JACKSON, DAVID LOMAS, CHARLIE LUCAS, GARRY MORRIS, PAUL MURPHY, MICHAEL SHEEHAN, CHRISTOPHER PREGEAGLE, TONY BAKER, MALCOLM MILLER, JOHN JENKINS, TREVOR WILKINS, DAVEY JONES AND FLIGHT STEWARDS' ASSOCIATION OF AUSTRALIA Respondents REASONS FOR JUDGMENT 7 July 1981 KEELY J. em tbe te bn TIT me i ee ee pee re ne ee Richard James Squires (the applicant) is a member of the Flight Stewards Association of Australia (the respondent organization), an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act). The respondent Smith is and was at all material times the federal secretary of the respondent organization. Mr Smith gave evidence that the individual respondents constitute the whole of the elected officers of the respondent organization. On 30 April 1981 the federal council of the respondent organization carried a resolution: "That in accordance with Rule 21(h) and 12A(m) (iii) Mr. Squires be fined'$20.00 and suspended for one month, this suspension to take effect June 1, 1981." On 4 May 1981 an order was mad@e by Northrop J. calling upon each of the respondents to show cause why orders should not be made under s.140 and s.141 of the Act, which orders included the following: "1. That the respondents and each of them (other than Flight Stewards' Association of Australia) perform or observe the rules of the _ said organisation by treating as null and void and of no legal effect the charge against the Applicanc purportedly laid in accordance with Rule 21 of the rules of the said organisation referred to in a letter to the Applicant dated the eighteenth day of March 1981 signed on behalf of the respondents by the respondent Smith; 2. That the respondents and each of them (other than Flight Stewards' Association of Australia) perform or observe the rules of the said organisation by treating as null and void and of no legal effect so much of the proceedings of the meetings of the Federal Council of the said organisation held on the sixteenth day of March and the seventh, twenty-first and thirtieth days of April 1981 as purported to deal with the charge against the Applicant purportedly laid in ein genre game UN ee fe or ea a 7h hn RR ne ERA Pa A na hates ba re i were notice orders accordance with Rule 21 of the rules of the said organisation referred to in a letter to the Applicant dated the eighteenth day of March 1981 signed on behalf gf the respondents by the respondent Smith; 3. That the respondents and each of them (other than Flight Stewards' Association of Australia) perform or observe the rules of the said organisation by : (a) Treating and describing the Applicant for all purposes of the rules as a financial member of the said organisation; (b) Refraining from describing the Applicant as a person who had resigned from membership or been suspended er expelled from membership in the said organisation or who had been or should be disciplined by Federal Council of the said organisation." On 5 June 1981, after hearing evidence and argument on a of motion by the applicant, I made the following interim under s.141(2) of the Act: "(1) That pending the hearing and determination of the proceedings the respondent treat as null and void and of no legal effect the purported directive of ~the Federal Council of the Respondent Organization refetred to in the special news sheet of the organization dated 22 May 1981 signed by the respondent Smith as follows: 'Directive Federal Council directs all FPSAA members hot to operate with Mr R J Squires should he be rastered as a cabin crew member in any category for a period of one month commencing June 1, 1981. Further, such directive applies world wide.' (2) That the respondent Smith communicate the terms of the foregoing interim order of the court to each member of the respondent organization by pre-paid ordinary post to be addressed and posted to each such member at his home address as appearing in the records of the respondent organization, such posting to take place in Sydney ~ pen we hat ~ wep 4, in the presence of the applicant or his representative no later than 5 pm on Wednesday, 10 June 1981. (3) That pending the hearing and determination of the proceedings the respondents and each of them shall not advise, encourage or incite Qantas Airways Limited to take any action to injure the applicant in his employment or alter his position to his prejudice. (4) That pending the hearing eand determination of the proceedings the respondents and each of them shall not take or threaten to take any action having the effect, directly or indirectly of prejudicing the applicant in his employment. (5) That liberty to apply be reserved to the applicant on 24 hours notice to the respondents." Those orders were made late that afternoon and were accompanied by brief reasons for the orders, which I shall now elaborate at the request of Mr Kenzie of counsel, who appeared for all the respondents. Mr B. Shaw Q.C. apppeared with Mr T. Ginnane, of counsel, for the applicant. By letter dated 1 May 1981 the respondent Smith wrote to the applicant informing him that the federal council had on 30 April 1981 imposed on him "a penalty of $20.00 fine and in addition to a period of one months suspension from membership of the Association taking effect from June 1, 1981". The letter pointed out that the applicant had the right to appeal against the decision which appeal "shall be made within one month of the decision appealed against". Mr Smith enclosed with the letter a copy of a letter he had written to Qantas Airways Limited (Qantas) on the same day, which read as follows: i -- ~ " we ee ay —— a rs wee de ae we ee ere tte eee neem en ee ee ek ree at ee a eee NE ne Lee aL a a Oe ane nS a - tte ee ale "May 1, 1981. Mr. C.S. King, Senior Industrial Relations Officer, Ref: WBS.468 Qantas Airways Limited, 70 Hunter Street, SYDNEY. 2000. Dear Sir, Discipline of Members. Re: R.J. Squires, Federal Council, at a meeting held in the boardroom of the F.S.A.A. office on April 30, 1981, considered charges made against one R.J. Squires, 'in absentia', in accordance with Association rule 21 paragraph 4 'Discipline of Members'. Mr. Squires has been found guilty of a _ serious breach of the Association rules. Accordingly he will be suspended from Association membership for a period of one month, taking effect from June 1, 1981. Be advised, that during the period of suspension, that no member of the F.S.A.A. should be asked by Qantas to operate with Mr. Squires. To do so would invite unfortunate incidents which would be counter productive to Qantas and this organisation. Yours faithfully, ~ Warren B. Smith. Federal] Secretary." It will be noted that the letter did not suggest that the members had been directed not to operate with Mr Squires but did "advise" Qantas not to ask members to work with the applicant and that "to do so would invite unfortunate incidents", Mr Squires gave evidence that he had been away from Australia for seven days and did not receive the letter and its enclosure until about 10 May 1981. ibteelliehe bite eee ee re cme net ee ee eee ee eer ed The respondent Smith said in evidence that he sent to all members of the association (approximately 1800) on 22 May 1981 a "Special News Sheet" which read as follows: "Flight Stewards' Association of Australia SPECIAL NEWS SHEET > May 22, 1981. DISCIPLINE OF MEMBERS: RE: R.J. SQUIRES. Dear Member, Federal Council, at a meeting held April 30, 1981, in the boardroom of the F.S.A.A. office, considered charges made against the abovenamed member of the Association. The charge was laid by the Association's Junior Vice-President, Peter Jacobs and reads as follows: 'Mr. Warren Smith, F.S.A.A. Dear Sir, I wish to charge Mr. Rick Squires with advocating disobedience of a lawful decision of Federal Council, in that he included in a telegram, 'addressed to the Federal Secretary, advising his intention to resign from the membership of the Flight Stewards Association, the following words "Naturally it follows that I will be offering my services to Qantas forthwith". The above charge is made in accordance with clause 21 - Discipline of Members, paragraph (A) sub-paragraph (iv). At the time of Mr. Squires offer of his services to Qantas, the Association was involved in a well publicised dispute with Qantas during which al] members of the Flight mw me perme me AE kA ane RLU Sr ae ecm cme ee Meena ner ned Ee eae oe Stewards Association were required to refuse to operate the S.P. Variant when reporting for duty. Such action in accordance with the direction of the Federal Council by necessity led to the standown of several hundred Flight Stewards. It is my belief that Mr. Squires should be disciplined for his actions as outlined by him i.e. the offering of his services to Qantas unqualifiedly and forthwith. Yours faithfully, P.M. Jacobs.' At the meeting of April 3060 the matter was considered and the following resolution passed: 'THAT in accordance with Rule 21(h) ané 12A(m)(iii) Mr. Squires be fined $20.00 and suspended for one month, this suspension to take effect June 1, 1981'. DIRECTIVE: Federal Council directs all F.S.A.A. members not to Operate with Mr. R.J. Squires should he be rostered as a cabin crew member in any category, for a period of one month commencing June 1, 1981. Further, such directive applies worldwide. Mr. Squires has commenced proceedings in the Federal Court against the Association and all members of Federal Council seeking, among other things, orders challenging the validity of the resolution of Federal Council of April 30, 198]. Members will be advised of proceedings. Yours faithfully, ' (signed) Warren B. Smith. Federal Secretary." wee eet we ee Mr Smith gave evidence that the directive there set out was carried by resolution of the federal council at its meeting on 22 May 1981. Before that time Mr Smith had as a respondent been served with and had read what were described as the "court ee eat ot Se Laer ce TEE papers" in this matter. In addition he and each of the other respondents had on 14 May 1981 entered' an appearance by a solicitor. It was conceded by Mr Kenzie that no "letter or other writing" existed by which Mr Smith had "at any time prior to 30 April 1981 communicated to the applicant the terms of the writing signed 'P.M. Jacobs' set out on page 1 of Special News Sheet dated May 22, 1981" which appears above. Reference to the Special News Sheet shows that that "writing" constituted the "charge laid by the Association's Junior Vice~President, Peter Jacobs" against the applicant. It was the charge considered at the meeting on 30 April 1981 of the federal council which carried the resolution quoted above. It was not suggested by counsel for any party that the principles applicable to interim orders were different from those enunciated by the Full Court of the High Court in Beecham Group Ltd v. Bristol Laboratories Pty Ltd (1968) 118 C.L.R. 618, namely, that the court must censider both the prima facie strength of the applicant's claim and the balance of convenience. In World Series Cricket Pty Ltd v. Parish (1977) 16 A.L.R. 181 Bowen C.J. applied the principles set out in Beecham's Case (supra) but (at p.186-187) added: "Proceedings under the Trade Practices Act have a special character in that the Act deals with the protection of the public interest ... - otal That is not to say that there are not special factors to be taken into account when exercising yurisdiction under the Trade Practices Act. Special considerations with respect to interlocutory injunctions apply in other fields including common law injunctions to restrain defamation, injunctions to restrain breach of a patent and injunctions to restrain breach of copyright. In the same way special considerations will arise under the Trade Practices Act, and the Court will not necessarily apply all of the principles which a court of equity would apply ina suit where only individual interests of private litigants were in issue." we Special factors may similarly need to be taken into account in exercising jurisdiction to make interim orders under s.140 or s.141 of the Act which, like the Trade Practices Act, is also concerned with the public interest. However, no such factors were suggested by any party in the hearing of this application for interim orders. Mr Kenzie did not contend that the applicant had not shown a prima facie case within the meaning of those principles. I accept Mr Shaw's submission that it is proper for the court, in exercising its discretion, to have regard to the strength of that prima facie case. I have not had the benefit of any argument from Mr Kenzie as to the strength of that prima facie case. Because these are applications for interim orders it is desirable that I should not form any concluded views as to the evidence or as to the issues in the proceedings, but on the evidence before the court at this stage it is a strong prima facie case. I consider that if the evidence remains as it is To Pa eran amt eee nn uy Sn pee I nee ener me ene ee yey a eos Se ee AD ol ten alae Pca oe Sore % Aa Ae ro Nihon 1 AMMEN am mete eae oe ete hee need ee we te eee be ee wee oe aed ee ee a ee ee tees 2 an ATE ae 10. there is a probability that the applicant will be held entitled to succeed, There is evidence that on 1 June 1981 the applicant was told by other members of the respondent organization that they had been directed to walk off the aircraft when the applicant reported for duty the following day; the applicant telephoned his solicitor, Mr A. J. Macken, on 1 June 1981 and on the following day went to the airport for the flight from Bahrain to London, on which flight he was to have been senior steward. Mr Kenzie stated that he did not dispute that, as a result of the directive, the applicant, who wished to work, was not allowed to do so. In opposing the claim for interim orders Mr Kenzie said that: "the delay that has taken place in the commencement of "the proceedings insofar as they concern the interim order is a critical factor because it has fundamentally affected the balance of convenience. It has affected it in such a way as to prejudice the respondents or at least the unions of which they are offiters." As to the delay, Mr Kenzie did not suggest that the applicant should have sought interim orders at the time when he obtained from Northrop J. the rule to show cause. At that time the directive to the respondent organization's members had not been resolved upon by federal council. Mr Kenzie submitted that the eemproare fern me me eee «eens om eee ee etm ated ed ME j « ee ene li, delay began when, on 10 May 1981, the applicant received the letter from Mr Smith enclosing a copy of the letter to Qantas. Mr Kenzie argued that it was open to the applicant to file and serve a notice of motion at that stage instead of waiting until 2 June 1981, Under skilful cross examination by Mr Kenzie, Mr Squires assented to the suggestion that after receiving the letter from Mr Smith on 10 May 1981 he knew that on 1 June 1981 the other members would refuse to work with him. It is difficult to understand how the applicant could "know" on 10 May 1981 what was going to happen on 1 June 1981, but he may have interpreted the question by Mr Kenzie as meaning "believe" rather than "know", In re-examination he gave the following evidence: "Can you tell us when before that time, (i.e. 2 June 1981) if it was before that time, when you first felt yourself that that was going to happen?-~-I do not think I ever really knew before that time that was going to happen. I was not convinced that all the members would refuse to operate with me." Despite the earlier answer in cross examination, the latter answer is not an improbable one, having regard to the fact that, as Alexander Pope expressed it, "hope springs eternal in the human breast". For the purpose of the application for interim orders I accept it as being true. In my opinion the applicant, as an individual litigant RN REN eine ETE pT GRIN ren te ee eee . we ee te me SNe OR ae ee te onal ete eaten ime MRE at AAT IR A UY Pe la ek ed TM Nn Ma oe eT Se Wade Las a a a a ee or aS - we ee we 12. who had applied for financial assistance in the conduct of the litigation, could not have been reasonably expected to act more quickly in deciding to take further steps by way of seeking interim orders, thereby incurring further legal costs. I do not consider that in all the circumstances the applicant was guilty of delay sufficient to justify the court in its discretion refusing to grant interim orders. In this connection I do not consider that the decision of Evatt J. in Cook v. Crawford and others (unreported judgment delivered 14 September 1979) supports Mr Kenzie's argument having regard to the different circumstances there before the court. Matters referred to by Evatt J. included (a) the applicant had advanced no argument as to the strength of the case for showing a denial of natural justice; (b) despite the decision the subject of the proceedings the applicant still retained office within the State Union; and (c) the hearing of the main case was due to commence in three weeks. These matters May be contrasted with the present case where (a) the applicant has shown a strong prima facie case; (b) if the directive is obeyed the applicant will probably be prevented from working; and (c) no date had ~ or has yet - been fixed for the main hearing. In any event, an early hearing could not have resulted in a judgment at a time that would have prevented the "suspension" for the month of June 198] from operating. Only interim orders could have that effect. He Cade Terr nt nae a ied 13. Mr Kenzie also cited an unreported decision in Roots v. Mutton of Smithers, Evatt and Northrop JJ. on 22 December 1977 on an application for interim orders. However, I do not consider that that judgment of the Full Court establishes any principle which requires me to exercise my discretion against the applicant in this case. There, the Full Court decided that the applicant's case was not so strong that it ought on balance to overrule considerations of convenience raised by the respondents, Those considerations included the Full Court's view that, if it made interim orders and the respondents were ultimately to succeed, then the penalty imposed on the applicant would be illusory. This latter aspect was touched on briefly in the arguments before me but I do not find it necessary to decide whether the suspension of one month could be made to operate at a later date if the respondents succeed at the trial of the action on that aspect. However, I should point out that, if the legal effect of the rules is, as Mr Kenzie submitted, that the date fixed for the suspension (namely, 1 June 1981) cannot be altered, then similar problems would have been encountered if the applicant had exercised his right to appeal on the last day of the period of one month allowed to him under the rules. Perhaps I should add that I do not regard Thompson and others v, Townsend and others (1979) 38 F.L.R. 143 as supporting Mr Kenzie's submissions on either jurisdiction or on discretion. ieee et ne a i see ee 7+ a a a roe atte Nk Na er he a tinted CARR" MEINE WAM ceiRt riot eae ta Nee a BR ce wee ae Cobar ea ye cewen pre ee 14. Although I have referred to those cases cited by Mr Kenzie in the course of his well prepared and ably presented argument for the respondents, in my opinion it is not desirable for the court to seek to compare the various considerations relied upon by counsel with other considerations referred to by a court in an earlier case in granting or refusing to grant interim orders. As Lush J. said in Slater Walker Superannuation Pty Ltd v. Great Boulder Gold Mines Ltd [1979] V.R. 107 at p.110: "The weight to be given to the various considerations shown by the authorities to be relevant will vary from case to case. ... The authorities refer to the use of the injunction for the purpose of maintaining the status quo or Maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial. They refer to avoiding irreparable harm to the plaintiff. ... There will be other situations in which thougn the plaintiff's proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintif£ irreparable harm, while to grant it would not greatly injure the defendant. The possible variety of situations is unlimited." The Full Court of the Victorian Supreme Court in Magna Alloys & Research Pty Ltd v. Coffey and others [1981] V.R. 23 at p.28 adopted that statement "as a correct and useful statement of law". In my opinion this is a case where the court should make interim orders "for the purpose of maintaining the status quo, or establishing or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial". See orn ee wee me cee a ee comme eee we ead mee Abe ketene a me ee aS ee Oe eS tk eas mam ete een mee abetted eben ee ee « seem ere one utes er es : mee ne Or rs rr rs nee wt ae Meee toi 15. The inconvenience to the applicant if interim orders were not made was obvious at the time of the hearing; the "directive" of the federal council - which specifically said that it "applies worldwide" ~ was likely to result in the members of the respondent organization refusing to work with the applicant - as they had done at Bahrain. Notwithstanding Mr Kenzie's argument that only a small period of time was involved (because the applicant was to begin annual leave on 15 June 1981) in my opinion there would be a very clear case of inconvenience to the applicant. It is a very serious matter for an employee to be faced with a situation where the members of his own union refuse to work with him, Shortness of the period involved does not make this a minor inconvenience, As to the inconvenience to the respondents, Mr Kenzie relied upon the likely cost (some $800-$900) to them or to the respondent organization if an interim order were made in the terms of order 2, requiring the expenditure of money on postage, inter alia. I accept Mr Shaw's argument that any expense that will be incurred by the respondents in complying with the interim order can be fairly said to be an expense directly resulting from the action of the respondent Smith, in accordance with the resolution of the federal council carried on 22 May 1981, in sending the directive to the members of the association on 22 May 1981. At that time the respondents knew that a judge of this court had granted a rule calling upon each of them to show Te A ket ee ee oe HE an bat ram ean he na ee ho te we eek sgeenggre wes + ee 16. cause, inter alia, why orders should not be made by the court that the respondents treat as null and void and of no legal effect both the charge against the applicant and the proceedings at meetings of the federal council and also to show cause why an order should not be made by the court that the respondents refrain from describing the applicant as a person who had been suspended. Thus the respondents knew, at the time of voting for the "directive" on 22 May 1981, that the validity of the suspension was a matter to be decided by this court - a matter as to which Northrop J. had already decided that the applicant had established a prima facie case, Notwithstanding those facts, the later meeting of the federal council, on 22 May 1981, decided - at a time when under rule 12B(iii) it was still open to the applicant to appeal - to issue the "directive" to all the respondent organization's members that they should not "operate" with Mr Squires and to incur the cost involved in posting the letter containing the directive to approximately 1800 members. Of course, it is true, as Mr Kenzie submitted, that the grant of a rule to show cause does not in law require respondents to withhold action, nor does it entitle an applicant to interim orders. But further action by respondents, giving effect to a decision the subject of a rule to show cause, is plainly relevant to an application for interim orders, In the circumstances of this case, I accept Mr Shaw's submission that the cost of overcoming the effect of that "directive" is a self~inflicted wound and is not a reason why the respondents' dae ORR TB Ree ee TREE HE tie Nell a Hee Toem en DAP A IN Cams om tS te) Eat tan ee ee Nee rt seme tee eres a ee ee en a — oo s * . 17. inconvenience should be regarded by the court as being greater than that of the applicant. In my opinion it is plainly not a sufficient reason for the court to exercise its discretion against the applicant. I also reject Mr Kenzie's argument that the court lacked jurisdiction to grant the interim orders sought. The application for interim orders was made under s.141(2) of the Act, which reads as follows: ~ "At any time after proceedings under this section have been instituted (including proceedings instituted before the commencement of this sub-section), the Court may make such interim orders as it thinks fit in relation to the matters to which the proceedings relate." Mr Kenzie argued that the proceedings instituted by the rule to show cause granted by Northrop J. do not relate to the "directive" of the federal council on 22 May 1981 because that directive was not in existence at the time the proceedings were instituted. In my opinion the power conferred by s.141(2) should not be so narrowly construed that it is not available to enable the court in' a proper case to restrain a respondent to proceedings already instituted under s.141(1) from taking steps to enforce or give effect to a decision made earlier, the validity of which is in issue in the proceedings. Section 141(2) confers a power to "safeguard the position and interests of parties pending a final determination provided that it bears a relationship 'to the matters to which the proceedings tae er rar neey ese ay 18. relate'", Those words are taken from R. v. Joske (1976) C.L.R. 194 at p.213 where Mason and Murphy JJ. said: "The power to make interim orders, given by sub-s. (2), is likewise not limited to the giving of directions to perform or observe rules. The terms of the grant to the Court of authority 'to make such orders as it thinks fit in relation to the matters to which the proceedings relate' indicate that the Court has a wide discretion as to the form of order to be made. The exercise of this discretion cannot be restricted to the making of orders for the performance or observance of the rules, or for that matter to directions as to Matters which will.-conduce to performance or observance of the rules. The history of sub-s. (2) suggests that in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bears a relationship 'to the matters to which the proceedings relate'. The judgments of this Court in Reg. v. Forbes; Ex parte Bevan (1972) 127 C.L.R. 1 drew attention to the limitation attaching to the power to make interim orders given by sub-s. (2) in its then restricted form. Subseguently the sub-section was amended to overcome this limitation by Act No. 37 of 1972 which enacted the sub-section in its present form. The only relevant limitation on the Court's power to pronounce an interim order is to be found in the concluding words of the sub-section. Yet they are not susceptible of the construction which the prosecutors seek to place upon them. It is impossible to read 'the matters to which the proceedings relate' as signifying no more than the relief claimed by the applicant in the proceedings, or, for that matter, than the issves which are raised for decision in the proceedings. The words, we think, signify the controversy between the parties to which the proceedings relate, whether or not it be crystallized as an issue in these proceedings or in the form of the relief sought." In that case, at pp.200-201, Barwick C.J. said: ee a red EEN Re Te Ce te amen ee - -- ae oe nee wee ene et eet ee ee ee oe eC) 19. "The power given by that section is not confined to the making of orders for the performance of or observance of rules of an organization: nozr to orders germane to the relief claimed in the proceedings. The matter actually in dispute between the parties out of which the proceedings have arisen and to which they relate will satisfy the limitation contained in the final words of the sub-section." And, at p.204, Stephen J. said: "But this is a consideration quite unrelated to the meaning of the limiting words of sub-s. (2) - 'matters to which the proceedings relate'. Such 'matters' must, I think, be found either in the 'complaint by any member of an organization" by which proceedings are initiated or else, perhaps, in the substance of the dispute which underlies that complaint and which the relief sought seeks to resolve." Mr Kenzie did not put submissions as to the form of the interim order sought other than paragraph 3 of the notice of motion (which became order 2 of the interim orders). However, in all the circumstances of the case, including the issue of the "directive", during the time within which the applicant had a right to appeal and after the respondents had been served with the rule to show cause granted by Northrop x, I decided not to extend the time there sought by the applicant, namely, 5 pm on Wednesday, 10 June 1981. As I said in my short oral reasons for making the orders: "It may well be that the respondents will have to take emergency action over the weekend, but if they do it is justifiable in the circumstances." AT Por Sa eae nets o eae ere gS a ae awesome ee ed cae | te we ee ee er ao . Pa me wee eee me ne eRe Renee 6 20. On 5 June 1981 I reserved my decision on an application by the respondents for a change of venue from Melbourne to Sydney. Mr Kenzie relied on the uncontradicted evidence of Mz Smith that (1) the respondent organization's registered office is in Sydney, (2) it has no office elsewhere in Australia, (3) the respondent Smith who is the only full time officer (other than a research officer who is not elected) resides in Sydney, (4) the applicant and ail the other individual respondents (who, as I have said earlier, constitute all the elected officers of the respondent organization) reside in Sydney, (5) the events the subject of these proceedings (other than the implementation in Bahrain by the members of the respondent organization of the ""directive") occurred in Sydney, and (6) all of the members of the respondent organization except approximately 120 based in London, have Sydney as their home base and are employed by Qantas, the head office of which is in Sydney. Mr Smith also said that of the membership of the respondent organization "99,9 per cent all live in Sydney or its close environment". Although it is difficult to reconcile the latter statement with (6} above, plainly on any view, the vast majority of the members of the respondent organization live in Sydney. Although I was not referred to any authorities on this aspect, the principles are clearly set out in Williams "Supreme Court Practice" Volume I pp.1537-8. The plaintiff has the right to fix the venue where he likes unless he acts capriciously and ner ae ere Se Ne ate 21. so creates great and manifest inconvenience to the defendant (Mahnke v. Schmidt (1889) 15 V.L.R. 364; Cording v. Trembath [1921] V.L.R. 163; Ryan v. Harrison [1957] V.R. 210). As to the desirabililty of the hearing being at the place where the cause of action arose, and where the witnesses reside, see O'Brien v. Scott (1900) 6 A.L.R. (C.N.) 45 and Egan v. Barrier Branch of the Amalgamated Miners' Association of Broken Hill (1917) 34 W.N. (N.S.W.) 13. In general, a change will not be ordered on the ground merely that the cause of action arose elsewhere (Parnell v. McLaughlin Ltd (1919] St. R. Qld 145). An order for change of the venue may be made if the defendant and a number of his witnesses reside near the place where it is said the action should be heard (Wilson v. Syme (1880) 6 V.L.R. (L) 260), particularly if the cause of action arose at that place (Australian Joint Stock Bank Ltd v. Hockey (1903) 20 W.N. (N.S.W.) 32; Permewan Wright & Co. Ltd v. Pearce (1903) 20 W.N. (N.S.W.) 202). Applying those principles to the facts relied upon by Mr Kenzie and summarized above, there is a strong case for deciding that the applicant's right to initially choose the venue must give way because of the balance of convenience and accordingly directing a change of venue to Sydney insofar as the case is likely to involve calling a number of witnesses who reside in Sydney. As Mr Kenzie pointed out, the applicant's affidavit in support of the rule to show cause expressly alleges that seven of the respondents "are invincibly biassed against me". If may see "- ee Ab tt well be necessary for each of them to give evidence and they all reside in Sydney - as does the applicant. I do not consider that this aspect is answered by Mr Shaw's submission that there would be little inconvenience to them because they are all members of a very mobile profession and that they are entitled te cheap air fares by virtue of their employment by Qantas. Apart from relying on the applicant's right to fix the venue unless he thereby creates great inconvenience, the only point of substance advanced by Mr Shaw on this question was that the applicant has engaged a solicitor in Melbourne, who has briefed two members of the Victorian Bar to conduct the case and that a considerable amount of work already done on the case would be to some extent lost if the applicant were now forced to brief Sydney counsel, It was suggested that the applicant might be forced to do so - despite his wish to retain Melbourne counsel - because when financial assistance from the Commonwealth under s.141A is granted it is normally on condition that the solicitor briefs counsel from the State in which the Matter is to be heard. Mr Macken, the applicant's solicitor, gave evidence that _this was so "unless the Attorney-General otherwise directs", It cannot be said that the applicant has acted "capriciously" in having the matter returnable in Melbourne. It may well be that the Attorney-General will otherwise direct in a case such as this in which the proceedings were instituted in Melbourne by a Melbourne solicitor, the application for a rule to show cause was heard in Melbourne and ek noe made returnable by Northrop J. in Melbourne and there has already been a hearing in Melbourne of the application for interim orders and the application for a change of venue. Tt may be that further information can be obtained on that aspect and also as to the number of persons residing in Sydney who are to be witnesses in the case. It is possible that there will be a substantial amount of time spent on legal argument. One estimate of the overall hearing time was 8-10 days. As to that aspect of the case the claim for a Sydney hearing has far less weight and it may be that the fairest course is to have part of the hearing in Sydney and part in Melbourne - particularly if the applicant would otherwise lose the Melbourne counsel of his choice who have already worked on the case, presumably conferred with him and appeared for him. The evidence before me does not establish what the practice as to financial assistance from the Commonwealth is where a case is to be heard partly in one State and partly in another, Section 48 of the Federal Court of Australia Act 1976 reads as follows: * "The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes." In all the circumstances I have decided to direct that part of the proceeding, namely the hearing until the close of the case 6 ot ee ee ee a - .*~ ~~~ pam hee we ne Po Ree a a ee 24, for the respondents, shall be conducted in Sydney. The question of whether the remainder of the hearing should be in Melbourne or in Sydney is a matter which can be determined at a later date. This may be done either on a further hearing of this application (as to which I shall reserve liberty to any party to apply) or at the hearing by the trial judge. The parties are directed to arrange with the Registrar a date for hearing. I certify thet this and the 23 preceding pages are a true copy of the Reasons for Judgment herein of his Honovr Mr. Justice K€E¢y (ble Associate Dated: 7 Te44 WH ee ee we ew me ee nee weer ee ee re es ew ee mee a ~ hao