CATCHWORDS Industrial law - availability of ersll of onYaanization fr inspection ~ roll at all times available - applicaricn nevertheless made fo inspect it - rule nisi discharaed on claimant's applicarion - whether proceedings instituted vexaticusly or without reasonable cause. Conciliation and Arbitration Act 1904, s. 197A WARREN HARRIS v. ROBIN ARNDT and ANOR. No. 16 of 1985 Coram: Sheppard J. Date : 15 August 1985 Place: Sydney ma yy < QUTEE I ae Tat pre wee Per enn Smee ar re MW THE FROEPSL COURT OF AVISTOALTA et NEW SOUTH VIALES DISTFICT REGTISTET INDUSTPTAL CTVTISTGN ) y } No, Wo cf Ls8t \ } RETWEEN : "WARREN HArRTS Claimant ROBIN ARNDT ana ANGR. Respondents MINUTES OF ORDER JUDGE MAKING ORDER: Sheopard J. DATE OF ORDER : 15 August 1985 WHERE MADE : Svdnev THE COURT ORDERS THAT: 1. The rule nisi made by the Honourable Mr. Justice Evatt on 9 Auaust 1985 be discharged. 2. The claimant pay the respondents' costs of the rule, but to the extent of one set of costs only. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. i i a oe ae 7 Y . cary +) am mene =1 fa wr=} bay4 AJ ds mt tits ~ he a eg U Hen iw ai Ad i Dei el it ry ig wc woe ee1) let D>) "4 ry a 'DD mm rn ries] 47] i: cs ea] WAPSET HARE TE yal q os auBel ROBT ARNDT and ANGR, Pesponients CORAM: Sheppard J. DATE : 15 August 1985 .REASONS FOR JUDGMENT HIS HONOUR: The ceturn of the rule in this matter was for 9.30 this morning. When the matter was called on 1t became clear that the claimant did not wish to proceed with the rule because the relief which had been _ sought was available to the claimant iumder the provisions of the rules and the union official concerned was prepared to provide the information which was required. Accordinaly. counsel for the claimant indicated that she did not wish to oursue the proceedings, Thereunon tne raspondents sought, pursuant to section 197A of the Canciliation and Arbitration Act 1904, an order for costs saving that the proceedings had been instituted, if not vexatiously, then without reasonable cause, 2 pe ee ree oe or vet ensrrae gt le i te i ae sew = ' ' c we "eoa, qo oaralc. bhe first respondent. who i135 the general secretary af rhe union. the claimant. and a Mr. Jarman. wha i5 a x par] ps a D> " png fy mf g betF we +] x re) 1" a vice-presigent. IT have alsa considered affidavits sworn by Mr. ly coche affidavit in siwppert of the rule which was sworn on 7 Buqust last, and secondly, an affidavit filed in couct today, which was sworn Eadayv. Annexed to the earlier affidavit were two letters which. according to Mr. Harris''s evidence, were sent respectively to- Mr. Wacson and Mr. Arndt. The letters are dated 2 July 1385. In the letter to Mr. Wahson, Mr. Harris "T have aporoached the Federal Secretary seeking access to those records in accordance with Rule 23 of the New Union Rules. He advises me that he has no such records." - Mr. Harcis has conceded in cross~examination that that last statement was wrona. It was not corrected in his evidence until he was cross-examined. The statement was a statement which was before Evatt J. who made the rule nisi and mav well have been critical in his consideration of the question of whether he should sian the rule or not. The rules of the union which are in question are rules 23 and 54. Rule 23 provides:- "The General Secretarvy-Treasurer shall keep a (ope \: Wwrowapes nee SUS mo res on F the manes and addresses of all the Union. which shall be oven for i by the tindustrial Registrar and t meres GE tne Vnion between rhe hours of Q@ a.m. and 4 -F.m. at the Head Office of the U Rule 54 provides:- "Fach Branch Secretary shail keep aA rarrect e vecister of the name, address and number sf hickets of each menber in his Branch, and shall supply a copy of the same toa the General Secretary-Treasurer when required." The avidence of Mr. Arndt establishes that these rules are complied with. The membership roll provided for in rule 54 is kept and copies are supplied from time to time by the branch secretary, Mr. Watson. Pursuant to rule 23 the register is available at the head office of the union in Melbourne for inspection by the Induscrial Reqistrar and by members, and it is the fact that this is so which has satisfied Mr. Harris thak he does not need to pursue the application which he has made. Really his case was based on what he claims to have heen inadequate information which was aqiven to him by Mr. Arndt when a request was made. and given alsa, so he savs, to ather members of the union. Tt is difficult ina comparatively short time to make an adequate assessment of evidence but I have misqivindgs about Mr. Harris' evidence. I reaqret to sav, particularly because of the Te or meee ope ee se ney umecocrected error in his letter-toawwhick T have sarlier rarecred, It geems to me that. if this matte: rad been civen more thoauwnr, eepresented at least by 2 Juivy 1385 shen fhe lenrers vere sen. and I interpolate to savy that the letters were in gach case dracon by his solicitors. an appropriate course would have been to write so Mr. Arndt. either wersonallvy of bv a solicitor, asking foe inspection of the roll, which is provided for in rule 23. Tam satisfied that if that had been done, the information which the claimant. Mc.- Harris. now has would have been provided fo him. On that basis. it does seem to me that however iinderstandable the reasons for the institution of these proceedinas may have been in Me. Harris' mind. the proceedings were instituted without reasonable cause. In those circumstances. I think I should accede to the apolication for costs which was made. However, IT do nat, an the face of the vroceedinas and of the evidence which I have heard this afternoon, see why it was necessarv for the two respondents to be separately represented. I have been pressed with submissions concerning the need for this in a situation where the officials have different duties under the rules and where there are different factions on the executive. I can understand that in some circumstances separate representation may be necessary. but Mr. Watson. as branch secretarv. was himself under no obligations to produce a roll. or a copy of a roll to amamber: Mr. Arndt alone had that ? eax adeond agnonsibility. [It seems to me thet it would now be appropriates, FES LY PP however desirabie Mr. "Aendt and Mr. Watson ray feel thar it vas ro be separately represented. ta wisit the claimant with two sevs Accordingly, the order that I make is that the rule nisi he ! discharged; the claimant is to pay the costs of the resvonderts to the rule |» but limited to one set of masts. wees i certify that this and the AR preceding pages are a true copy of the reasons for Judgment herein cf Tha Honourable Mr Justice Sheppard. d Je / Associate " Dated "S AvEuST /78S~