NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. Q 13 of 1985 were vw INDUSTRIAL DIVISION BETWEEN: BERNADETTE CALLAGHAN and OTHERS AND: FEDERATED CLERKS UNION OF AUSTRALIA and OTHERS 5 NOVEMBER, 1986 KEELY J. REASONS FOR JUDGMENT (DELIVERED EX TEMPORE ~- REVISED FROM TRANSCRIPT) [s I have approached the determination of this motion on the basis that the applicable principles are those relating to the granting of interlocutory injunctions. The relevant authorities were cited by Mason A.C.J. in Castlemaine i Toohevs Limited and Gthers v The State of South Australia (unreported - published 3 October 1986). In deciding the matter I have assumed that there is a serious question to be tried in the substantive proceedings which were described by the applicants' counsel- as being complex. I have also assumed in the applicants favour that, un the absence of the orders sought, the Nationa will exclude from i1ts meeting the representati RECENED * 4 4NOV1986 DERAL COURT OF Fe AUSTRALIA re aN PRINCIPAL Ny. REGISTAY aan NX. Central and Southern Queensland branch (the bran¢h wa ee woes nae poe It will not be known until judgment is given in the substantive proceedings whether such conduct by the respondents would constitute a failure to perform or observe the relevant rules. It is necessary therefore to consider (1) where the balance of convenience lies, and (2) whether there is any countervailing reason why the orders sought should not be made. As to the balance of convenience, 1t is not easy, on the material before the court, to predict and compare the likely effects upon the respondents and the applicants, respectively, of the making of the orders sought on the one hand or of the refusal to make such orders on the other. As the respondents' counsel said, it is difficult to decide in advance what will be the effect, upon the validity of resolutions carried by the National Council, if the branch's representatives are permitted to attend and to vote and it is later decided that they were not entitled to be present. Consideration of that question at the present time necessarily has to be made without having detailed information as to all relevant matters. It may be added that the material relied upon, taken at its face value, does not show that the _applicants believed, until October 1986, that they would be allowed to attend and vote at the National Council meeting commencing ~ve pepe mary eee . ah OF we me, yo ca wp ee res me os Km aes ey tomorrow. The first applicant deposed to the fact that neither she nor the other applicants who were national councillors had been given a postal vote since the resolution by the National Council, in March 1985, that the branch "be declared unfinancial"; there is other evidence that seven postal votes of the National Council had been conducted since March 1985. The agenda for the meeting of the National Council, which commences tomorrow morning, includes items regarding various industrial matters; for example, a log of claims (item Al); altered constitutions of other unions, (item A2); superannuation - white collar workers (item Al9); personnel files - employee rights (item A25); Liberal/National Party industrial relations policy (item A239); anti-union trends in Australia (item A31); rules - proposed amendment to provide direct election of national president, secretary and assistant secretary (item A35); organising - cail to increase FCU membership (item A338). In addition there are items which relate toa very wide area, e.g. Family Court maintenance (item All); taxation (item Al2); price marking (item Al13), and Australia "card (item Al4). There may be resolutions carried by National Counc1z]l on some of those items which all parties would wish to be valid resolutions and would want implemented without delay in the interests of the members. Sag or avs Se tren ee rene . On all of the material and inthe light of the submissions I am not persuaded that the balance of convenience favours the making of any of the orders sought. Perhaps I should add that I am unable to uphold the submission of the applicants' counsel that they gain support fromsz(f) and 167 of the Conciliation and Arbitration Act. IT have also considered whether there is any other countervailing factor which militates against the making of the orders. It cannot be gainsaid that there has been very considerable delay by the applicants in the prosecution of the substantive proceedings. In my opinion, notwithstanding the affidavit filed by the applicants in relation to the delay, there has been no adequate explanation for that delay. The original rule to show cause was granted, at the applicants' request, on 7 November 1985 and a detailed timetable was ordered by Spender J. on 11 December 1985. On 6 May 1986 Spender J. gave a new timetable which required the parties to approach the Registrar on 7 July 1986 regarding a date for the hearing of the substantive matter. The respondents said that they were ready; however, the applicants were not ready on 7 July 1986, saying that they intended to seek a further order nisi and a joint hearing of that proposed matter with that of the order nisi granted on 7 November 1985. ee a . tot : However, the applicants did not in fact apply for a further order nisi until 22 October 1986. That delay of over three months occurred notwithstanding the fact that, at a date as early as March 1986, the applicants' solicitors had already given some consideration to the need to widen the scope of the original order nisi. The substantive matter could have been heard by the court in August and/or September of this year had the applicants been ready to put their casee. Accordingly, if the applicants had acted with proper expedition 1t is quite possible the matter would have been decided by now. At least the hearing would have been completed and, as a result, the trial judge would have been in a much better position to decide, in the light of all the material and the submissions put to him, whether he should make interim orders if he was not able to give judgment in the action.' To give the applicants now, on an interim basis, the erders they seek would not be a proper exercise of the court's discretion. In my opinion, by reason of that delay alone, the court should, in the exercise of its discretion, refuse to make the interim orders sought. In any event, as I have already said, in my opinion, the matters put by the applicants as to the balance of wr ene nee, wer oe ae" ef ane voor ore convenience do not support the making of the orders sought. Accordingly the motion is dismissed. ADDENDUM During the hearing which preceded the delivery of the above reasons for judgment, Dr. Jessup, of counsel, on behalf of the respondent Michael Patrick Bourke, gave the following undertaking to the court: "That if the branch becomes financial to the satisfaction of the national executive, or if the branch secures a... final order from the court that, or to the effect that, the respondents treat the branch as financial, he will thereupon resign his position as vice-president. 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