Rolph, John Charles v Eowlings, Frederick Athol & Anor [1984] FCA 300

Disbtiict Lex etors _ mod - a phtetin

Hu for we pyten ony

300 minty 2664tleH .

CATCHWORDS CP 26/4

Industrial law - refusal of order nisi - necessity of establishing prima facie case of existing or threatened failure to perform or observe rules - rules permitting removal of branch officer by majority of members attending

duly summoned branch meeting no unreasonable, oppressive

or unjust.

JOHN CHARLES ROLPH v FREDERICK ATHOL ROWLINGS and TRANSPORT WORKERS UNION OF AUSTRALIA

Conciliation & Arbitration Act 1904, ss. 140 and 141

CORAM : KEELY J. DATE : 13 SEPTEMBER, 1984 PLACE : HOBART

IN THE FEDERAL COURT OF AUSTRALIA )

) TASMANIA DISTRICT REGISTRY ) )

INDUSTRIAL DIVISION

BETWEEN

JOHN CHARLES ROLPH

AND : FREDERICK ATHOL ROWLINGS and TRANSPORT WORKERS UNION OF AUSTRALIA DATE : 13 SEPTEMBER, 1984 KEELY J.

ORAL REASONS FOR JUDGMENT

HIS HONOUR: Perhaps I should just say to you, Mr Rolph, this 1s not in a form in which it can be handed out but it will be taken down by the court reporters and made available as soon as the transcript 1s normally available.

The purpose of section 141 of the Conciliation and Arbitration Act 1904 1s to enable a member of a registered organisation to obtain orders from this court giving directions to other members of the organisation to perform and observe its rules. Section 141 (1) $c) makes clear any such directions are to be given to a "person who 1S under an obligation to perform or observe those rules". In my opinion, it would not be proper for the court to make an order which, although purporting to give directions for the observance of rules, was, 1n essence, no more than a declaration in respect of the validity of events which occurred 8 years ago.

The applicant has had an opportunity to consider this difficulty as the Registrar, at my direction, drew the matter to his attention last Tuesday. Today he has been unable to point to any recent action of the respondent or any threatened future action which would constitute a failure by the respondent to perform or to observe the rules. The applicant's inability to do so is consistent with what he apparently conceded before a full court in Rolph v Transport Workers Union of Australia (T No 1 of 1984 - unreported judgment 25 July 1984).