bo? GENERAL DISTRIBUTION NOT REQUIRED (" THE FEDERAL CoUPT OF AUSTRALIA ' ICTOPTA DISTRICT PEGTIETRY ' Ne. 7 G2 or 1986 IMDUSTRIAL OLVISTON tt BETWEEN: TENNIFEP GLOUTSE GIERS Applicant AND: JUDITH SDELE COONEY Fezpondent tl DECEMBER, 1396 KEELY J GEADONS FOR JUDGMENT 'Delivered ax tempore - revised from transcript: Tn order to succeed under s. l4l of the Conciliation and Arbitration Act 1994, an applicant has to satisty the court that the respondent against whom an ordér 13 sougnt 15 a person who 13 under an obligation to perform or observe the rules of the registered organization (3. 1l¢l(1G:1). The words "thase cules" ain that sub-section refer to the particular tules the subject of the" proceeding and not to the rules in general; that 15 to say they reter to the rules in respect of which the court 13 asked to make an order giving directions for their pertormance or observance. In this case it is contended that the respondent, as Federal Secretary or the Royal Australian Nursing Federation. has a duty. under rule 18(f), to "serve a Notice of Meeting on each Federal Councillor at least twenty-eight (28) days before the date 3et for such Meeting", rererring to the meeting whicn the present applicant has decided should be held on Ll January of next year. Yn the facts which have been admitted by counsel for the applicant '(for the purposes ot these proceedings). it 3eems ta me to be clear that the respondent 13 not at present under a duty to perform or observe rule ldif) by serving a notice orf the propoged special Meeting or Federal Council. I have tormed that opinion because or a number or matters, commencing with the decision or the Federal Council. on 22 June 1386, "to grant the respondent leave of absence from 22 June 1986 to 3 February 41987". On 22 June 1986, it also resolved "to authorize the Executive Committee of the Federal Council to address the matter of the leave of the Federal Secretary and the appointment of a person to fulfil the duties or the Federal Secretary". The autharity conferred on the Executive Committee was exercised on 30 June 1986, when it "empowered Enid Jenkins to pertorm the tunctions of Federal Secretary during the absence on leave ot the respondent or until such time as the Executiv Committee should determine" (those three passageg3 are taken from the document ort "admitted facts" given to the court by the applicant 3s counsel). a In addition, the applicant, acting in her capacity as Pederal Fresident, at the direction of the Federal Council, wrote to the respondent a letter. dated ? October 1926, which concluded: - cy ",.. the Federal Council further requested that I ask you to vefrain trom any turther activities as the Federal Secretary during your absence on leave." In my opinion, in the light of those matters, 1t is quite plain, despite the resourceful arguments advanced by Or. Buchanan y.C.. on pehalf of the applicant. that at the present time the duty under rule 18(f) does not devolve upon the respondent. She 1s currently on leave of absence from her duties as Federal Secretary, having been granted that leave ot absence by the Federal Council which had the express power to do 30, as appears from rule 26(c); that sub-rule, so far as material. states that:- "The Secretary shall be... allowed such leave of absence as the Federal Council may determine." That power having been exercised, the respondent is on leave and in my opinion 13 not under any duty to give the notice which, by reason ot the provisions of rule 18(f), she would otherwise be required to give. { perhaps should say that if, contrary to the opinion just expressed. which I quite tirmly hold, there 15 nonetheless a duty upon the respondent to exercise that function under cule L&it?r, a question would arise as t9 whether the court, in the exercise or its discretion, should make the orders sought; matters wnich would be relevant te that discretion are that the respondent 1s on leave ot absence. that a person has been appointed to perrorm 'the - function ot Pederal Secretary during her absence on leave, and that the respondent has been asked by the applicant, at the direction of the Federal Council, "to refrain from any Further activities as the Federal Secretary during Cher] absence on leave". In those clrcumstances, in my opinion 1t would not be a proper exercise or the court's discretion to make an order giving directions to the respondent to pertorm and observe the aub-rule. A reference may be added, as to the power ot Federal Council to take the action which 1t has. to one ather rule, namely, rule 13, which provides that:- "The arfairs of the Association shall be managed by a Federal Council which shall be the highest deliberative body of the Association." In addition. Federal Council 18. under rule 15. "the Committee of Management of the Association." Accordingly [ do not think there can be any doubt that 1t had the power to act as it did; the proper functioning of the reqistered organization required that 1¢ should have power to appoint a mn person to pertorm the dutile3 ot the office or Federal gecretary, turing the absence on leave of the respondent. For those reasons. in my opinion it 1s clear that at this fime the duty under rule laif: no longer devolves on the respondent. Accordingly, the rule to show cause, made on 3 December 1980, will be discharged. (Me, Faygenbaum y.C. applied for costs.) Io reject Mr. Faygenbaum s application for costs. The principles relating to the court s discretionary power under s. 197A to order the payment of costs by an applicant, on the ground that he had instituted the proceeding without reasonable cause, were eénuncliated in Heidt v Chrysler Sustralia Ltd. (1976) 26 PLR 257 at 272-5. That was 2 decigzion ot Northrop J. ain which he applied, to such an application, the principles laid down in cases such as' the General Steel case (1969) Ll2 CLR 125 at 138. I rerer to the well known dictum of Sir Gartield Barwick as to the circumstances 1n which a court may summarily terminate an action. Northrop J. took the view that, having regard to the policy of the legislature eénunciated ins. I197A, 1t 128 necessary tor 4 respondent seeking costs to show that the applicant 3 claim was "manifestly groundless" or, ag it has been expressed elsewhere, "bad beyond argument". In Lilley v Nauru GCocal Government Council ('unreported - delivered 21/11.1979) I axpressed agreement with that opinion of Northrop J. Notwithstanding that [I rormed a strong view that the Z3ubstantive application should fail. in my opinion it can not - be said that the application was "bad beyond argument". In my opinion 1t was not instituted "without reasonable cause". Having regard to the circumstance that the holding of the meeting involved bringing the members of Federal Council to Melbourne trom all states and the Territories, at considerable expense to the tederally registered organization, 1t wags understandable that the applicant should wish to avoid. af possible, the risk of some member successtullv contending after the meeting that the wrong pergon had signed the notice and that it shoulda have Deen Signed by the respondent. I may add that when the court adjourned at lunchtime 1t was Likely that the matter would be adjourned to next Wednesday. It was only upon retlecting on the matter during the Luncheon adjournment, and looking at the rules in greater detail than had been possible during the morning, that [ tended to the conclusion that the applicant's argument should not be upheld. However, it can mot tairly be described as being "bad beyond argument" 30 [ am not prepared to make an order tor the appiscant—topay the xespendent S$ costs. Toeertifr th to gris ans the Ewe ore Ants {Og foe t AR 7s °S oF mm cer of the Rev - 77 J gmentiel. not. a. *.0ur Datel W Vecember (996 Me Jassie Keely.