Industrial Law - conciliation and arbitration - performance or observance of rules - whether rules oppressive, unreasonable or unjust - motion by respondents to strike out parts of rule nisi - allegation that parts of rule nisi frivolous, vexatious or without reasonable cause - power of Federal Court to deal with matter summarily - need to identify rules in respect of which performance or observance sought - relevance of earlier proceedings in Federal Court - validity of requirement that branches be financial to be represented on Federal Council - financial standing of Western Australian branch - position of General Secretary-Treasurer of union - whether rules for election in conformity with requirements of Act - whether direct voting system or collegiate voting system - submission of industrial disputes by union to branches - need for union to provide branch secretary with information - size of executive committee of branch - validity of rule for selection of delegates to ACTU congress - costs of proceedings under Conciliation and Arbitration Act in Federal Court - whether order for costs governed by 3.197A of Conciliation and Arbitration Act Conciliation and Arbitration Act 1904 ss. 4, 133, 140, 141, 141B, 197A Federal Court of Australia Act 1976 ss. 23, 43 Conciliation and Arbitration Requlations reg. 115 Federal Court Rules 0.20 r.2(1), 0.4 r.15(4) RUTH MARGARET _GENEFT' ae F.E. EETERS® W, _CLARINGBOLD, L. FARRELLY, T. BRYDEN, HARDING, BROOMFIELD, C. GEORGE, R. SMITH, K, BOYD, P. fcGARRY. K. COLL ANS and THE CLOTHING 7 ALLIED TRADES UNION OF AUSTRALIA No. WA 2 of 1984 TOOHEY J. PERTH 27 JULY 1984 IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) No. WA 2 of 1984 DISTRICT REGISTRY ) INDUSTRIAL DIVISION ) BETWEEN: RUTH MARGARET GENEFT' Applicant and F.E. PETERSON, W. CLARINGBOLD, L. FARRELLY, T. BRYDEN, F'. HARDING, R. BROOMFIELD, C. GEORGE, R. SMITH, K. BOYD, P. McGARRY and K. COLLINS First Respondents and THE CLOTHING AND ALLIED TRADES UNION OF AUSTRALIA Second Respondent JUDGE MAKING ORDER 3 Toohey J. DATE OF ORDER 3 27 July 1984 WHERE MADE H Perth THE COURT ORDERS THAT: 1. The applicant have leave to amend para. 4 of the rule nisi in accordance with the applicant's notice of motion filed 26 June 1984. The applicant's application for leave to amend the rule nisi by adding rule 16 in accordance with the notice of motion filed 26 June 1984 is refused. The applicant's application to amend the rule nisi by adding para. 1A and para. 6(b) in accordance with the notice of motion filed 26 June 1984 is adjourned to the hearing of the application. Pursuant to the respondents' notice of motion filed 2 April 1984, paras 1, 5, 6, 7, 8, 11, 12 and 15 of the rule nisi are struck out. The costs of the hearing of the respondents' notice of motion filed 2 April 1984 are reserved. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION No. WA 2 of 1984 wewevrnw BETWEEN: RUTH MARGARET GENEFF Applicant and F.E. PETERSON, W. CLARINGBROLD, L. FARRELLY, T. BRYDEN, F. HARDING, R. BROOMFIELD GEORGE, R. SMITH K. BOYD, P. McGARRY and K. COLLINS First Respondents and THE CLOTHING AND ALLIED TRADES UNION OF AUSTRALIA Second Respondent CORAM: TOOHEY J. 27 JULY 1984 REASONS FOR JUDGMENT The applicant, Mrs Geneff, is the secretary of the Western Australian Branch ("the Branch") of the second respondent, the Clothing and Allied Trades Union of Australia ("the Union"), which is an organisation registered under the provisions of the Conciliation and Arbitration Act 1904 ("the Act"). The first respondents have been joined by reason of their position as members of the Federal Council of the Union. Of the first respondents, the only one to whom any particular reference was made in the proceedings was Mr Peterson who is the General Secretary-Treasurer of the Union. For some years relations between Mrs Geneff and the Federal Council have been strained, mainly it appears because of doubts expressed by the Federal Council as to the financial standing of the Branch. Other applications have been made to the Federal Court which bear on the matters now before the Court. Some reference to events leading up to the present application is necessary to understand the issues involved. On 29 July 1980, in matter No.WA 5 of 1980, Mrs Geneff obtained a rule nisi against the Union and persons then comprising its Federal Council to show cause why an order should not be made directing them to observe various rules of the Union. Acknowledging that some of the relief sought within the rule nisi was not within the power of the Court to grant and that some did not truly reflect the matters of complaint, Mrs Geneff sought leave to amend the terms of the rule nisi, in part by way of clarification and in part by way of addition. The respondents to that application opposed any amendment of the rule nisi. There was a hearing of the application to amend which was allowed in part. Some of the amendments sought were rejected on the ground on that no arguable case had been presented to justify their inclusion. The decision is reported as Geneff v. Peterson (1980) 49 FLR 64. On 26 November 1980 matter No. WA 5 of 1980 came before Evatt J. in Perth. Mrs Geneff sought an adjournment of the application, saying that she did so with the consent of the respondents. She also mentioned that she would be in Melbourne for several days as from 2 December 1980. Evatt J. adjourned the matter generally, giving liberty to the parties to list the matter in Melbourne between 2 and 5 December, with further liberty to restore the matter to the list after 5 December 1980 on 14 days notice. No further step was taken in that matter until April 1984 when the respondents thereto filed a motion that the application be dismissed for want of prosecution. The motion was mentioned in the course of the proceedings in No. WA 2 of 1984 (the present matter) and, by consent, the application was dismissed. To go back in history a little, on 7 April 1981 Mrs Geneff obtained in the Federal Court in Sydney a rule nisi against the members of the Federal Council to show cause why orders should not be made directing them to observe and perform certain rules. That matter is No. NSW 8 of 1981. On 9 April 1981 the NSW proceedings came before Morling J. on an application for interim orders. Certain orders were granted because counsel for the respondents in that application informed the Court that he could not submit that a prima facie case did not exist. The orders in part related to the attendance of Mrs Geneff at a Federal Council meeting then taking place. The N.S.W. application came on again before Morling J. for directions on 16 April and 15 May 1981; on the last occasion it was discontinued on Mrs Geneff's application. It is now possible to turn to the matter presently before the Court. On 2 February 1984 this Court granted a rule nisi against the present respondents to show cause why a number of orders should not be made. Some of the orders related to performance or observance of rules of the Union; some challenged the validity of rules. On 24 February there was a directions hearing in the course of which the respondents applied for a change of venue to Sydney, both generally and alternatively in respect of what their counsel described as "the interlocutory aspects of this matter". Asked to explain what was meant by "interlocutory aspects", counsel said that a number of the orders contained in the rule nisi were the subject of orders made by this Court in No. WA 5 of 1980, that some had been rejected by the Court in that application and that others were still pending therein. Counsel argued in effect that most if not all of the orders being sought in No. WA 2 of 1984 were thereby vexatious or without reasonable cause. The application for a change of venue was refused. By notice of motion filed 2 April 1984 the respondents sought the discharge of most of the orders the subject of the rule nisi on the ground that they were frivolous, vexatious or without reasonable cause. Counsel for the respondents acknowledged that there were some disputed questions of fact which made it inappropriate to include in the motion all the orders in the rule nisi. But, he said, those questions were only a minimal part of the application and, by exercising its undoubted jurisdiction, the Court could substantially narrow the issues truly in dispute between the parties. To the extent that this is possible, it isa sensible course and one I propose to follow. I should add that, after I heard the submissions of counsel for the respondents, Mrs. Geneff changed her solicitors and counsel and an adjournment was necessary to enable her present advisers to become familiar with what was involved in the proceedings. When the hearing resumed on 26 June 1984 counsel for Mrs. Geneff moved to amend the rule nisi. To some extent the amendments sought were designed to clarify the rule and accordingly were granted. But in part they were an attempt to broaden the scope of the rule. It was inappropriate to allow this step when the Court had before it a motion designed to dispose of certain matters summarily. I therefore directed that these sections of Mrs. Geneff's motion to amend should be adjourned until the outcome of the respondents' motion was known. In two respects (paras 4 and 16) I permitted Mrs. Geneff's counsel to argue the case for amending the rule nisi, on the basis that this would enable the Court better to assess the desirability of granting those amendments while the respondents' motion was on foot. For a better understanding of these reasons for judgment, I attach by way of a schedule the rule nisi as amended on 26 June, with the amendments, in respect of which leave to argue was granted, underlined. While a motion of the present kind may not be usual in proceedings under the Conciliation and Arbitration Act, I am satisfied that the Court has power to make the orders asked for by the respondents. Section 23 of the Federal Court Act 1976 empowers the Court, in relation to matters in which it has jurisdiction, to make "orders of such kinds, including interlocutory orders, ... as the Court thinks appropriate". Order 20, Rule 2(1) of the Federal Court Rules reads: "Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding". In my view that provision is applicable to the claim for relief in the present rule nisi and, if a case is made out, the Court may dismiss any part of that rule nisi. In any event, as Bowen C.J. pointed out in Hughes Motor Service Pty. Ltd. v. Wang Computer Pty Ltd. (1978) 35 FLR 346 at p.351, "... this Court has a general power to control its own proceedings". If it appears to the Court that relief sought in a rule nisi granted under the provisions of the (Conciliation and Arbitration Act cannot succeed, whatever factual issues there may be between the parties, it is appropriate and convenient to dispose of that part of the claim in a summary manner. In an affidavit filed in these proceedings, Mr Peterson deposed to the history of this matter and, in a convenient way, referred to each paragraph of the rule nisi and, for reasons there advanced, sought the discharge of the paragraph. While convenient, such a course has its drawbacks. In particular, it produced from Mrs. Geneff a lengthy affidavit which in turn was part factual and part argumentative. Deponents of affidavits should confine themselves to the facts and leave argument to the legal representatives. Having said that, I propose to follow the sequence and headings of Mr. Peterson's affidavit. The reference to orders is to the numbered paragraphs of the rule nisi. ORDER 1 This part of the rule nisi seeks a declaration that rule 16(b) of the Union's rules contravenes sub-s.140(1) of the Act. Rule 16(b) reads: "Before any Branch can be represented on the Federal Council ail per capita dues and levies imposed on a per capita basis shall be paid unless the Federal Council for special reasons has granted to any Branch exemption or suspension of payment for the time being ...". Mrs Geneff contends that this rule is contrary to sub-s.140(1) of the Act as imposing conditions, obligations or restrictions which are oppressive, unreasonable or unjust. In Geneff v. Peterson at p.67 I said of rule 16(b): "The rule requires that before a branch can be represented on the federal council all per capita dues and levies shall be paid, unless an exemption or suspension has been granted. In my view a requirement that a branch be financial does not impose conditions that are oppressive, unreasonable or unjust nor is it contrary to the concept of the control of committees of an organisation and its branches by the members. It may be that in a particular case the imposition of a levy is open to challenge but no such case has been presented here. In my view there is no substance in the order sought and the application to amend or to include it should not be allowed". The respondents to that application were the then members of the Federal Council. Since that membership has changed, and since what was said was in connection with an application to amend, not a final determination, it would not be accurate to refer to my earlier decision as res judicata or as giving rise to issue estoppel. Nevertheless I am still of the opinion expressed in that earlier decision. It is a conclusion which does not depend upon findings of fact. I adhere to it and am of the opinion that this part of the rule nisi cannot succeed; to that extent the rule nisi should be discharged. Counsel for Mrs. Geneff submitted that rule 16(b) was objectionable because it could operate to deprive a member of the Union, who was financial, from being represented on Federal Council. But that argument overlooks the need of a federal organisation for finance from its constituents. There is nothing oppressive, unreasonable or unjust in a requirement that constituents be financial. Nor is there anything objectionable in a provision that for 'special reasons' the Federal Council may grant exemption from that requirement. An exercise of discretion is intended and it is for the benefit of a branch. There may be a complaint about the way in which the discretion is exercised on a 10. particular occasion, but that does not go to the validity of the rule. ORDER 4 This part of the rule nisi originally sought an order directing the first respondents to perform and observe the Union's rules "by recognising the right of the Applicant to be permitted to attend all meetings of the Federal Council ... so long as the Applicant is the Secretary of the Western Australian Branch ...". The amendment, which I gave counsel for Mrs. Geneff leave to argue, would confine the matter to requiring the first respondents to admit Mrs. Geneff to all meetings of Federal Council, so long as she is secretary of the Branch. This matter is tied up with the financial status of the Branch. If the Branch is financial, it follows from a general reading of rule 16 - Constitution of Federal Council - that Mrs Geneff as secretary of that branch is entitled to attend meetings of the Council. That is a question of fact and cannot be disposed of summarily. Mr Peterson's affidavit refers to the discontinuance of the 1981 proceedings "in circumstances where the issue of the financiality of the Western Australian Branch remained in ll. contest". But in my view that would not be sufficient justification for striking out that part of the rule nisi. The respondents further contend that the order sought is in the abstract and does not refer to any particular rule as required by Order 4 Rule 15 of the Federal Court Rules. As will appear, the criticism that Mrs Geneff has not referred to particular rules was repeated in respect of several of the orders the subject of the rule nisi. I shall say something of the operation of Order 4 Rule 15 later but for the moment it is enough to note that although the rule nisi does not, in this respect, refer to any particular rule of the Union, rule 16 is clearly in contemplation. No case has been made out for the discharge of this part of the rule nisi. In the circumstances it is proper to allow the amendment sought in respect of this order; it brings out more clearly the issue between the parties. Whether the relief asked for should be granted must abide the substantive hearing. ORD 3 : (Insofar as that order involves a challenge to rule 16(a)) and ORDERS 9 and 10. These parts of the rule nisi are concerned largely with the position of Mr Peterson as the Secretary-Treasurer of the Union. They constitute a challenge to his position and to the rules which permit it to exist, the argument being that the rules are in conflict with s.133 of the Act which requires that the 12. holder of an office be elected either by a direct voting system or by a collegiate electoral system, as those terms are defined. In Geneff v. Peterson I dealt with these matters to some extent but did not resolve the point as there remained an arguable issue of fact, whether the General Secretary-Treasurer had been elected to office under a collegiate electoral system or a direct voting system. It is acknowledged in Mrs Geneff''s affidavit of 15 November 1983, para 21 that in 1966 Mr Peterson was "elected by direct voting system into the position of a Federal Councillor representing the New South Wales Branch and then by collegiate vote into the position of General Secretary/Treasurer". Paragraph 22 of that affdiavit reads in part: "The Respondent Peterson in all subsequent elections has not been a Federal Councillor elected onto Federal Council by a direct voting system, but has only been elected by fellow councillors in a collegiate vote with no first stage election as required by Section 133(1)(a) of the Act. His position on Federal Council has at all material times since 1966 been by virtue of his office as General Secretary/Treasurer pursuant to Rule 16(a) of the Rules of the Union". Under rule 16(a)(i) the Federal Council consists of a number of delegates from each branch "plus the General Secretary- Treasurer who shall by virtue of his office be a member of the Federal Council with rights equal to those of other members". By reason of rule 16(a)(ii) the secretary of a branch is one of the 13. delegates from that branch to Federal Council and "when provision is made for one delegate only froma Branch, he shall be such delegate". Rule 16(d) provides that delegates from each branch shall be elected according to rule 45. Rule 45 deals with branch elections and requires that the office bearers there named, including branch delegates to the Federal Council, shail be elected by secret ballot of members of the branch. Although rule 16(a)(ii) refers to the secretary of a branch, rule 45 does not identify anyone by that description. It must be assumed that the reference in rule 45 to the Branch Secretary-Treasurer is the person to whom rule 16(a)(ii) refers. It is now necessary to turn to rule 18 which deals with the officers of the Union viz. a President, two Vice-Presidents, three Trustees and a General Secretary-Treasurer, all of whom are elected annually except for the General Secretary-Treasurer who is elected every 4 years. Rule 18(a) includes this provision: "The Officers of the Union shall be elected by the Federal Council from amongst the members of the Federal Council by secret ballot". I am unable fully to reconcile rules 16 and 18. Taken on its own rule 18 is clear enough in so far as it provides that officers of the Union shall be elected by the Federal Council from among its members, even though this means that seven officers have 14. to be elected from within a body that is not much larger in numbers. But the real difficulty I have is in understanding how the General Secretary-Treasurer is "by virtue of his office ... a member of the Federal Council". According to rule 18, he must be amember of the Federal Council in order to be elected General Secretary-Treasurer, yet rule 16(a) speaks of him as if he is in some way additional to those who are delegates. This matter was not addressed by counsel who directed their attention to the question whether rule 16(a) met the requirements of s.133 of the Act. Sub-section 133(1), so far as is relevant, requires that the rules of a Union: "(a) shall provide for the election of the holder of each office within the association or organisation either by - (i) a direct voting system; or (ii) a coliegiate electoral system being, in the case of a full-time office, a one-tier collegiate electoral system". The words "a full-time office" were substituted for "an office the duties of which are of a full-time nature" by amendment No. 115 of 1983, which commenced on 16 December 1983. Sub-section 4(1) of the Act defines "collegiate electoral system" to mean "a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages 15. at which persons are elected by and from the persons elected at the next preceding stage". "One-tier collegiate electoral system" is defined to mean "a collegiate electoral system comprising only one stage after the first stage". Read together, the definitions mean that in the case of the holder of a full time office (which the office of General Secretary-Treasurer is), there is compliance with 5.133 if a person is elected to that office by a direct voting system or by a direct voting system followed by one stage at which persons are elected by and from the persons elected thereby. There is in sub-s.4(5) a formula which deems an electoral system to comply with the definition of "collegiate electoral system", notwithstanding that the persons by and from whom persons are elected at a subsequent stage include persons (not exceeding in number 15% of the total number of the body) who are the holders of offices entitling them to membership of that body but are not members of that body by virtue of an election, "being persons each of whom has held such an office (whether the one office or not) at all times since being elected to such an office under a collegiate electoral system, ora direct voting system, as defined in sub-section (1)". Counsel for the respondents submitted that it was apparent from Re Airline Hostesses'' Association (1980) 48 FLR 214, a decision of the Full Court of the Federal Court handed down shortly after judgment in Geneff v. Peterson, that the structure in the Union's rules was in conformity with the requirements of the Act. He submitted that it was not necessary that each office ae ce ' 16. be the subject of a separate election, so long as' the holder of the offices in question was elected either by a direct voting system or a one-tier collegiate electoral system. He referred in particular to the judgment of Bowen C.J. at pp.219-224. At p.223 his Honour said: "Thus, each office must have an appropriate electorate depending upon the nature of the office. This does not seem to me to preclude a branch electing a president both as its head and its representative at the federal level. ... The Act recognises that the persons elected to particular offices may be ex officio members of a body 'by and from whom persons are elected'". Re Airline Hostesses' Association recognised that persons elected to particular offices (in this case the branch secretaries) may be ex officio members of a body (the Federal Council) by and from whom persons are elected (the officers of the Union); that body could be a committee of management or other policy or management body. The delegates to Federal Council are elected by members of the branches and so are elected by a direct voting system as that term is defined in sub-s.4(1) of the Act. And that is so even though a person elected by the members of a branch as its secretary is ex officio one of the delegates to Federal Council. The members of Federal Council elect the officers of the Union. It may be said then that the election of office bearers by the ee ene Wren ee ET eS Dy - a cc am dieteammaic adden ndimame ae 17. members of Federal Council is a compliance with the collegiate electoral system and indeed with the one-tier collegiate electoral systen. That conclusion is justified by the reasoning in Re Airline Hostesses' Association though in that case the federal president, vice-presidents and secretary, while ex officio members of the federal council, were elected to their respective positions by secret postal ballot of all financial members. However, Mr. Kenzie, counsel for the respondents, acknowledged that "Mr. Peterson is not elected by a direct voting system or a collegiate electoal system ... because he ... does not go back to the electorate each time - that is, the rank and file. He is elected by and from the council, but he is the only person in that category on the council, and it is to his position that section 4(5) that is, the extension of collegiate electoral system, is addressed" (transcript p.284). Mr. Kenzie''s submission may be correct but it depends upon establishing facts not presently before the Court. I do not regard the statements in Mrs. Geneff's affidavit of 15 November 1983 as sufficient in that regard. Precise evidence is necessary as to the method by which Mr. Peterson was first elected to the position of General Secretary-Treasurer and the methods by which he has been elected subsequently. That evidence may throw light upon the difficulty I have in reconciling rules 16 and 18. em eee mand Li Yow 1 hen desi 2. ~2 7. abl nested w wed? 18. In the circumstances I decline to strike out these parts of the rule nisi. Counsel for the respondents drew attention to sub-s.141(5) of the Act which precludes the making of an order under s.141 "that would have the effect of treating as invalid an officially conducted ballot or a step in such a ballot". He also drew attention to sub-s.141(6) which precludes the making of an order under s.14]1 that would have the effect of treating as invalid an election to an office inan organisation that was completed before the institution of proceedings under the section, except as provided therein. Whether either of those sub-sections is applicable depends upon evidence which is not presently before the Court. These questions too must abide the substantive hearing. ORDER _14 This part of the rule nisi directs Mr Peterson to comply with rule 27(a) of the Union's rules by submitting to Mrs Geneff, so long as she is secretary of the Branch, particulars of industrial disputes before they are submitted by the respondents to the Australian Conciliation and Arbitration Commission, where those disputes extend to Western Australia. I dealt with this matter in Geneff v. Peterson at p.68 where I said: 19. "There was no challenge to the rule itself and the respondents complain that the applicant seeks an order in the abstract. In my view the court should not order the respondents, in general terms, to observe the requirements of the rules. It is necessary to point to some respect in which the rule has been breached or perhaps circumstances which point irresistably to a proposed breach". The present rule nisi seeks an order, not by reference to particular situations, but in terms of the rule itself. More accurately, it seeks an order in terms more limited than rule 27(a) which is not confined to a particular State. However, in para.28 of her affidavit sworn 15 November 1983, Mrs. Geneff referred to particular industrial disputes which it is said Mr. Peterson failed to submit to her as secretary of the Branch. Thus the situation has lost some of the abstractness to which I referred in my earlier decision. Therefore I am not prepared to strike out order 14 though, if the matter comes on by way of substantive hearing, Mrs. Geneff must be prepared to particularise in better detail the occasions of which she complains. It may help in the ultimate disposition of order 14 if I say something about the meaning and operation of rule 27(a). There was some discussion with counsel as to the interpretation of "submitted" and "submit". In the first instance I take it to mean lodged with the Commission. In the second, the position is not so clear. Does it mean simply that the "Federal Secretary" must 20. apprise branch secretaries of a dispute to be referred to the Commission? Or does it mean that he must obtain their consent before referring a dispute? Regulation 115(1)(d) of the Conciliation and Arbitration Regulations requires that the affairs of an association applying for registration be regulated by rules which provide inter alia for: "(vii) The power of submitting industrial disputes to conciliation or arbitration under the Act". Presumably that is the reason for rule 27. As an intransitive verb, submit has the notion of placing oneself under the control of or becoming subject to or subordinate to another. Thus when counsel make submissions to the Court, they do so not merely for the purpose of informing the Court but with a view to having their argument determined by the Court. Such a construction of rule 27(a), requiring the concurrence of branch secretaries, would present considerable practical difficulties for the Union and would impede the conduct of its affairs. This was not a construction urged on me by counsel for Mrs. Geneff. He was reluctant to press the submission any further than to say that notice of a dispute intended to be referred to the Commission must be given to branch secretaries. Certainly rule 27(a) requires that an "industrial dispute" be referred to branch secretaries before it is submitted to the Commission. Since the applicant 21. does not contend that the concurrence of the secretaries must first be obtained, I do not think I should say any more on this aspect. But a dispute, necessary to ground the jurisdiction of the Commission, must be an interstate industrial dispute. That is what regulation 115(1)(a)(wii) is concerned with and rule 27(a) likewise. Once the jurisdiction of the Commission has been attracted, an award may be varied on an interstate or intrastate basis. R. v. Commonwealth Conciliation and Arbitration Commission; Ex parte State Electricity Commission of Victoria (1978) 21 ALR 293. That assumes the matter which is the subject of the proposed variation to be within the ambit of the dispute. If a variation of an existing award is sought relating to only one State, there appears to be no obligation to refer the matter to the branch secretaries though prudence would dictate that the secretary of a branch whose members are likely to be affected by the variation should at least be informed. For the reasons given earlier, I am opinion that order 14 should not be struck out. ORDERS 5, 6, 7, 8, 11 and 12 These parts of the rule nisi, for the most part, seek orders directing Mr. Peterson to perform and observe the Union's 22. rules by giving Mrs. Geneff notice of meetings of Federal Council, the agenda therefor, detailed answers to certain questions asked of him regarding the affairs of the Union, and to furnish information regarding proceedings in various industrial trubunals. The respondents make a general complaint that in none of these orders sought does Mrs. Geneff identify any particular rule which it is said there has been a failure to observe or perform. I agree with this criticism. In Allen and Park v. The Building Workers' Industrial Union of Australia (unreported decision delivered 12 March 1984) I said: "It is important that those responsible for the making of an application under s.140 not lose sight of order 4 rule 15(4) of the Federal Court Rules which requires the affidavit in support to set forth inter alia: (a) The rule or the rules of the organisation the performance of which is in question." I stress again the need for applicants proceeding under 8.140 to comply with the rule. In the present case the omission is not merely formal for the applicant was not able to point to particular rules justifying the relief for which she asks. Furthermore, in many respects the relief sought is in abstract terms which, in my view, are not appropriate. Where an applicant seeks orders under s.140, it is necessary to allege with some particularity the respects in which it is said that there has 23. been a failure to perform or observe the rules. This is essential to avoid a situation in which the Court is called upon to give merely an advisory opinion and also is asked to make an order in abstract terms incapable of enforcement. Order 5 is in the form of a direction to Mr. Peterson to give the applicant advance notice of meetings of Federal Council, within a reasonable time of each meeting. The respondents' answer is simply that rule 16(e), amended on 8 December 1981, provides expressly for "at least 4 days' notice in writing" of all meetings of Federal Council. There is no room for implying a requirement of "reasonable notice". I agree. Order 6 seeks a direction for Mr. Peterson to notify the respects in which it is said that the Branch is unfinancial, with particular reference to moneys said by Mr. Peterson to be due by the Branch to the Union. But questions of the financial standing of a branch are not for the General Secretary-Treasurer; they are for Federal Council. Order 7 requires Mr. Peterson to give the applicant, with notice of meeting of Federal Council, an agenda. This is not unreasonable but there is no rule requiring it to be done and no justification for implying such a rule. Again, as to Order 8, there is no rule that requires Mr. Peterson to provide answers to the questions asked of him by Mrs. 24. Geneff. Like many of the complaints Mrs. Geneff makes, it is not that there has been a failure to observe a rule; her real complaint is that the rules are not adequate in a number of respects. Order 11 calls upon the Federal Council to perform and observe the Union's rules "by treating as null and void any resolution of the Federal Council ... purporting to give the working party (referred to in paragraph 24 of Mrs. Geneff's Affidavit) power to make agreements binding upon the Second Respondent and/or the members thereof and treat as null and void any decision made by the working party purporting to bind the Second Respondent and/or the members thereof". The short answer to this clain, all other considerations aside, is that nowhere in Mrs. Geneff's affidvait is it alleged that any such resolution exists. Furthermore, Mr. Peterson has positively deposed to the fact that none does exist. The respondents acknowledge that the "working party" would have no power to bind the Union or its members; it is a body to whom certain powers of negotiation are delegated. The relief sought in Order 12 falls into the same category as some of those orders just discussed. The applicant has failed to identify a rule which expressly or by implication obliges Mr. Peterson to do what she asks. Nevertheless common 25. sense dictates that the Branch should be informed of those matters mentioned in Order 12. In my view Orders 5, 6, 7, 8, 11 and 12 should be discharged. ORDER 3 : (Insofar as it involves a challenge to rule 42(a)) The respondents accept that in some respects this order involves questions of fact which cannot be resolved within the context of the present motion. But they argue that insofar that the order may involve a challenge to rule 42(a), the application is misconceived. Rule 42(a) provides that the affairs of each branch shall be managed by an Executive Committee which shall consist of the officers there named and "20 other Representatives elected by and from the members of the Branch". Counsel for the respondents pointed out that the positions of representatives are not paid positions and therefore there can be no argument that the finances of the Union are being dissipated unnecessarily. The complaint is one of over- representation which, counsel for the respondents submitted, cannot be said to be contrary to the letter or spirit of the Act. That is true as far as it goes. But because there are questions of fact involved, it is not appropriate to strike out order 3. In 26. particular, the applicant argues that the rule imposes difficulties on a relatively small branch, necessitating frequent elections. It ought to be a matter capable of resolution by an amendment to rule 42{a) to cater for branches of varying sizes. ORDER _ 15 This order seeks a direction that the Union's rules are invalid, in particular rule 45(A), "in that they impose upon members ... restrictions which having regard to the objects of the Act... are unreasonable or unjust in that they do not encourage the full participation by members of the Second Respondent in the affairs of the Second Respondent". The rule nisi particularises these respects by alleging that the rules do not provide for the selection of delegates to the ACTU Congress in such a manner as to ensure that each branch has a delegate. Mrs. Geneff seeks an order that the Union amend its rules within three months to remedy this defect. The respondents argue that this part of the application is vexatious in so far as in the 1980 proceedings Mrs. Geneff sought an order for the addition of a rule that delegates to the Congress shall be represented from each State and in proportionate representation. However, as the 1980 application has now been dismissed, there can be no challenge to the inclusion of this 27. order in the rule nisi on the ground that it is presently before the Court in other proceedings. But the respondents say that a delegate to the ACTU Congress does not hold "office" within the meaning of the Act and therefore there is no obligation for the rules to provide representation as contended for by Mrs Geneff. I agree; this part of the rule nisi should be discharged. ORDER 16 This was one of the two orders which I gave leave to the applicant to argue by way of amendment to the rule nisi when the hearing resumed on 26 June 1984. This order seeks a declaration that rule 18 of the Union's rules is invalid as being contrary to para. 133(1)(a) of the Act, in that the position of General Secretary-Treasurer is not and has not been filled by an election in conformity with the provisions of the Act. Tt seeks consequential orders and directions that the position be declared vacant and that there be an election to fill the office. If the position of General Secretary-Treasurer has not been filled by an election in conformity with the provisions of the Act, that is not a reason for declaring rule 18 to be invalid. It may be a reason for challenging the position of Mr. Peterson as 28. General Secretary-Treasurer. I have already said something of rule 18 and its relationship to rule 16(a) and of the difficulty I have in reconciling the two. But, on any view of the matter, I do not think that order 16 presents a case for the invalidity of rule 18 and in particular that it adds anything to what is asked for in order 3. I therefore decline to allow this amendment. SUMMARY OF ORDERS MADE It should be said again that the Court is presently dealing with a motion by the respondents to strike out certain portions of the rule nisi. In the light of these reasons, I propose that orders 1, 5, 6, 7, 8, 11, 12 and 15 should be struck out. Order 13 is included in the respondents' motion; it seeks an order directing the members of Federal Council to perform and observe rule 17(m) by paying to the applicant the sum of $601.20. Rute 17(m) obliges Federal Council to pay certain expenses of delegates to the council. Counsel for the respondents acknowledged that Mrs. Geneff's entitlement to such an order depended upon the financial status of the Branch and made no particular submissions on the matter. This order must abide the outcome of the substantive hearing. I give leave to the applicant to amend order 4 of the rule nisi in accordance with the notice of motion. I refuse the application for leave to amend the rule nisi by adding rule 16. 29. I earlier allowed the amendment sought to orders 2 and 15 of the rule nisi. I adjourn for determination on the substantive hearing of this matter the amendment sought by the introduction of order 1A and the introduction of order 6(b). The respondents submitted that, in the event of their motion succeeding, there should be an order for costs in their favour. They also submitted that the applicant should pay the costs of matter No. WA 5 of 1980 which was dismissed, by consent, in April 1984. It is convenient to deal with that application in the course of these reasons. The respondents pointed first to s.197A of the Act which, in the circumstances there mentioned, precludes an order for costs "except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause". They submit that the present proceedings were instituted vexatiously or without reasonable cause, having regard to the determination made by this Court in Geneff v. Peterson, the argument being that the present application does no more than seek to revive issues already determined. But the respondents go further, for their primary submission on the matter of costs is that 38.197A has no application to proceedings in the Federal Court. In support of 30. this submission they point to the decision of Northrop J. in Bourke v. Mapstone (unreported decision delivered 10 April 1984). His Honour noted that s.197A is concerned with proceedings before specified tribunals and courts, none of which is the Federal Court. After an examination of the legislation, his Honour concluded: "In my opinion, on its proper construction s.197A Conciliation and Arbitration Act has no application to proceedings before the Federal Court brought under the Conciliati and Arbitration Act. is face, s.197A Conciliation and Arbitration Act is not an Act providing that costs in a proceeding before the Federal Court shall not be awarded except as therein specified. Accordingly, that section can have no application under 5.43 Federal Court of Australia Act". I have not done justice to his Honour's' reasons for reaching the conclusion he did; it is enough for present purposes to note the existence of the decision and to note that his Honour expressly declined to follow the decision of Ellicott J. in Stapleton v. African Lion Safari Pty. Ltd. (1982) 43 ALR 385. The question of costs was argued before me but I do not think it is appropriate at this stage to deal with that issue so far as the present application is concerned. Whether the present application was instituted vexatiously or without reasonable cause or whether, assuming the constraints of s.197A to have no application, an order for costs is appropriate must depend upon 31. the outcome of a hearing on the merits. The ultimate outcome remains to be determined. So far as the respondents' motion is concerned, it has succeeded in part and failed in part and, in my view, it would be artificial to consider the question of costs of the motion divorced from a final decision in this matter. In that event, an expression of opinion by me as to whether I should follow Bourke v. Mapstone or Stapleton v. African Lion Safari Pty. Ltd. is premature and unnecessary, particularly as the final decision may be that of another judge. As far as application No. WA 5 of 1980 is concerned, no costs were sought when I gave judgment in 1980 or, as I understand it, when the matter was before Evatt J. No doubt those proceedings were instituted and resisted in the belief that s.197A was applicable. Any costs incurred by the respondents since then would be minimal. Whether the question is governed by s.197A or by more general considerations, I do not consider it appropriate that there be any order for costs in this matter. Even if the constraints imposed by s.197A are not applicable, the section may well be thought to express a philosophy relevant to proceedings under the Act where the Federal Court is seized of a matter. But I express no concluded view on that question; it is enough that I find in the circumstances no justification for ordering Mrs. Geneff to pay the respondents' costs of the earlier application. If thought appropriate, the respondents to that application, other than the Union, may invoke 3.141B of the Act. But there is no reason to doubt that the Union itself will meet the costs of all 32. respondents since all were represented by the same solicitors and counsel. CONCLUSION I cannot leave this matter without returning once more to its history. Mrs. Geneff has instituted three proceedings against the Union and its Federal Council, two in this State and one in New South Wales. There have been proceedings before the Federal Court since July 1980, a period of 4 years. Although the respondents' motion has served a useful purpose, the parties are not much closer to coming to grips with the real issues between then. As I said at the beginning of these reasons, the area of dispute between the applicant and the respondents seems to relate primarily to the financial standing of the Branch. In addition, it is apparent that Mrs. Geneff challenges the position of Mr. Peterson as General Secretary-Treasurer. Whether that is a view shared by other members of the Branch did not appear. There has been long and, no doubt, costly litigation, little of which has been directed at a resolution of the real areas of dispute. In my view the present application, that is the rule nisi in the form which it now has as a result of the orders made by me, should proceed to the earliest possible hearing. By now, the issues should be sufficiently defined though I appreciate that there may be some interlocutory matters, in particular discovery of documents, that need to be attended to before the parties are 33. ina position to deal with a substantive hearing. that there be no further delay. I would urge 34. SCHEDULE As against the Second Respondent an Order declaring that Rule 16(b) of the Rules of the Second Respondent contravenes sub-section (1) of Section 140 of the Conciliation & Arbitration Act 1904. As against the Second Respondent an Order declaring that Rule 16(e) of the Rules of the Second Respondent contravenes subsection (1) of Section 140 of the Act on the grounds contained in paragraph 7 of the Affidavit of Ruth Margaret Geneff sworn the 15th November, 1983 and filed herein ("Mrs. Geneff's Affidavit"). As against the Second Respondent an Order declaring that Rule 16(e), 16(a), 41(b) and 42(a) of the Rules of the Second Respondent are invalid in the respects referred to in Paragraphs 7, 8 and 9 respectively of Mrs. Geneff's Affidavit. Directing the First Respondents to admit the Applicant to all meeting of the Federal Council of the Second Respondent so long as the Applicant is the Secretary of the Western Australian Branch of the Second Respondent. Directing the First Respondent Peterson to observe and perform the Rules of the Second Respondent by sending to the 35. Applicant in advance of each meeting of Federal Council of the Second Respondent Notice of each meeting of Federal Council that is to be held such Notice to be given to the Applicant within a reasonable time of each such meeting. Directing the First Respondent Peterson to observe and perform the Rules of the Second Respondent by notifying the Applicant of the respects in which it be alleged that the Western Australian Branch of the Second Respondent is unfinancial within the meaning of Rule 16(b) of the Rules of the Western Australian Branch of the Second Respondent full details showing the dates on which from lst January, 1980 and subsequently it be alleged by the Respondent Peterson moneys due from the Western Australian Branch of the Second Respondent to the Second Respondent together with full particulars of all payments received since those dates and full particulars showing how such amounts (if any) as the Respondent Peterson alleges has not been paid to the Second Respondent by the Western Australian Branch thereof is calculated. An Order directing the Respondent Peterson to give to the Applicant with Notice of each meeting of Federal Council of the Second Respondent a detailed Agenda of the business to be conducted at each such meeting. 10. ll. 36. Directing the Respondent Peterson to observe and perform the Rules of the Union by providing the Applicant within 7 days with full and detailed answers to the questions asked of the Respondent Peterson in the letter of the Applicant to the Respondent Peterson dated the lst June 1983 which is Exhibit "B" to Mrs. Geneff's Affidavit. An Order directing the First Respondents to observe and perform the Rules of the Second Respondent by declaring the office of General Secretary/Treasurer vacant and by calling for fresh elections to that position in accordance with the Rules of the Second Respondent. An Order directing the Respondent Peterson to observe and perform the Rules of the Second Respondent by ceasing to hold himself out as General Secretary/Treasurer of the Second Respondent. Directing the First Respondents to perform and observe the Rules of the Second Respondent by treating as null and void any resolution of the Federal Council of the Second Respondent purporting to give the working party (referred to in paragraph 24 of Mrs. Geneff's affidavit) power to make agreements binding upon the Second Respondent and/or the members thereof and treat as null and void any decision made by the working party purporting to bind the Second Respondent and/or the members thereof. 12. 13. 14, 37. Directing the Respondent Peterson to perform and observe the Rules of the Second Respondent by forwarding to the Applicant at monthly intervals so long as the Applicant is Secretary of the Western Australian Branch of the Second Respondent all information coming into the possession of the First Respondent regarding the following:- (a) Proceedings in the Australian Conciliation and Arbitration Commission Federal Court of Australia and all other Courts, Industrial Tribunals, Boards of Reference, including but without limiting the effect of the foregoing information regarding industrial matters or industrial disputes in which the Second Respondent or a Branch thereof is involved including information of the foregoing type which has been provided to the Respondent Peterson by Branches of the Second Respondent other than the Western Australian Branch. An Order directing the First Respondents to perform and observe the Rules of the Second Respondent by paying to the Applicant $601.20 pursuant to Rule 17(m) of the Rules of the Second Respondent. An Order directing the Respondent Peterson to comply with Rule 27(a) of the rules of the Second Respondent by submitting to the Applicant so long as she is Secretary of 15. 16. 38. the Western Australian Branch of the Second Respondent particulars of industrial dispute prior to their being submitted by the First Respondents to the Australian Conciliation and Arbitration Commission where those disputes extend to Western Australia. An Order that the Rules of the Second Respondent are invalid (as is, in particular Rule 45A), in that they impose upon members of the Second Respondent restrictions which having regard to the objects of the Act as contained in Section 2(f) thereof are unreasonable or unjust in that they do not encourage the full participation by members of the Second Respondent in the affairs of the Second Respondent in the following respects. They do not provide for the selection of delegates from the Second Respondent to the A.C.T.U. Congress in such a manner as to ensure that each Branch of the Second Respondent has a delegate included among the delegates from the Second Respondent to each A.C.T.U. Congress and the Applicant seeks an Order that the Second Respondent be directed to amend its Rules within three months from the date of the Order to remedy the defect. (a) That Rule 18 of the said Rules be declared invalid in that the same is contrary to Section 133(1)(a) of the Conciliation and Arbitration Act, in that the position of General Secretary/Treasurer of the Respondent Union cog, tk w apt (b) 39. is not and has not been filled by an election in conformity with the provisions of the said Act. Consequential orders and directions that the position of Secretary/Treasurer of the Respondent Union be declared vacant, and that there be an election to fill such office within two months of the date of any order made ursuant to this said Rule. I certify that this and the thirtyeight preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey Associate Dated: 27 July 1984