tp: 6b Beep CATCHWORDS Practice and procedure - striking out claims where no pleading - whether power to strike out at any time - whether claims clearly unarguable. Industrial law - registered organization - entitlement to membership - whether jurisdiction to decide validity of demand for payment - performance and observance of rules - method of commencing proceedings. Conciliation and Arbitration Act 1904, ss. 140, 141, 143(1)(d), 144, Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 Federal Court of Australia Act 1976, s. 21. Builders Labourers Federation (Cancellation of Registration - Consequential Provisions) Requlations Federal Court Rules o. lr. 4, 0. 4 rr. 6(L), 15, 0. ll v. 16, 0. 20 vr. 2, o. 40 rr. 5, 6. Dey v. Victorian Railways Commissioners (1949) 78 C.L.R. 62 General Steel Industries Inc. v. Commissioner for Rallways (N.S.W.) (1964) 112 C.L.R. 125 Cook v. Crawford (1982) 62 F.L.R. 34 McLeish v. Faure (1979) 40 F.L.R. 462. sot JOHN _T. ROBERTS v. AUSTRALIA & ANOR. -2- THE BUILDING WORKERS' N.S.W. No. 24 of 1986 GRAY J. SYDNEY 12TH FEBRUARY 1987. INDUSTRIAL UNION OF Ww ow IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. No. 24 of 1986 ) INDUSTRIAL DIVISION ) JUDGE: DATE: BETWEEN: JOHN THOMAS ROBERTS Applicant AND THE BUILDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA First Respondent DON McDONALD Second Respondent GRAY J. 12TH FEBRUARY 1987 MADE: SYDNEY WHERE MINUTE OF ORDER THE COURT ORDERS THAT: l. ny . Note: The claim the subject of the first paragraph numbered 5 in the application dated 29th September 1986 is dismissed. The claim against the second respondent the subject of the paragraph numbered 6 in the said application is dismissed. Otherwise the motions the subject of the notice or motion filed on 29th October 1986 are dismissed. Settlement and entry of orders 1s dealt with by Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. No. 24 of 1986 ) INDUSTRIAL DIVISION ) BETWEEN: JOHN THOMAS ROBERTS Applicant AND THE BUILDING WORKERS ' INDUSTRIAL UNION OF AUSTRALIA First Respondent DON McDONALD Second Respondent JUDGE: GRAY J. DATE: 12TH FEBRUARY 1987 REASONS FOR JUDGMENT The original application in this matter was filed on 29th September 1986. The specific relief sought in the application 1s as follows: "1. A declaration that the Applicant is entitled to membership of the Building Workers' Industrial Union of Australia. 2. A declaration that the Applicant 15 entitled to membership of the Building Workers' Industrial Union of Australia without the imposition of any condition beyond the conditions appearing in the Rules ot the Building Workers' Industrial Union of Australia. 3. A declaration that the Respondents requirement that -2- the Applicant lodge a bond inthe sum of Ten Thousand Dollars ($10,000.00) as a condition of becoming a member of the 5B.W.I.U. and as a condition of issuing him with a membership card and a clearance to work in the industry covered by the organisation, is null and void and of no effect. 4. A declaration that the requirement of the Respondents that the Applicant pay into trust the sum of $10,000.00 on account of legal costs arising in matter G 164 of 1986 18 a contravention of $.140 of the Conciliation and Arbitration Act in that it imposes upon Applicants tor membership a condition, obligation or restriction which, having regard to the objects of the Act and the purposes of the registration of organisations under the Act 18s oppressive, unreasonable or unjust. S. A declaration that the Respondents and each of them are in breach of 8.141 of the Conciliation and Arbitration Act refusing to admit the Applicant to membership of the Organisation in accordance with the Rules of the Organisation and in particular by compliance with the Contributions Rules of the Organisation. oi . A declaration that the Respondents in requiring the Applicant to lodge a bond of $10,000.00 to secure membership of the Organisation such being a security for costs in matter G 164 of 1986 is in contempt of the Court. 6. An order directing the Respondents to refund the $10,000.00 bond received by them on behalf ot the Applicant." The application was accompanied by an affidavit of the applicant. The following is a summary of the facts alleged in that affidavit. The applicant holds a Certificate of Competency as a rigger class 1 and a Certificate of Competency as a dogman class 2. He has heid those certificates since 10th January 1980. Since January 1980, he has worked as a rigger and scatfolder. Since the beginning of 1985 he has been employed by Alpine Brections and/or Murlar Pty. Limited ag a rigger and scaffolder. -3- In matter No. G164 of 1986, the applicant sued a number of parties, alleging that an arrangement existed between Murlar Pty. Limited, the Building Workers' Industrial Union of Australia and others, requiring the applicant to resign from the Australian Building Construction Employees and Builders Labourers Federation and to join the Building Workers' Industrial Union of Australia, which arrangement was contrary to the provisions of s. 45E of the Trade Practices Act 1974. The applicant did not wish to resign his membership of the Australian Building Construction Employees and Builders Labourers Federation ("the B.L.F."), or to join the Building Workers' Industrial Union of Australia (the "B.W.I.U."). Prior to the final determination of the proceeding, the applicant continued 1n his employment with Murlar Pty. Limited by reason of an order of the Court made on 5th May 1986. On 22nd August 1986, matter No. G164 of 1986 was determined against the applicant. The Court awarded costs against the applicant. On the following day, Murlar Pty. Limited ceased to employ the applicant. On 8th September 1986, the applicant attended at the offices of the &.W.I.U. He filled out an application for membership, indicating that he was a member of the B.L.F. He paid the sum of §77.00, as joining fees and contributions, and was 1ssued with a receipt for that sum. The applicant was then told that he would have to face the Executive of the B.W.I.U. before being allowed to work, that he could not work with just the receipt, and that he would have to face the Executive before being given anO.K. card. He was told that this arrangement applied only to certain people. Indeed, whilst he was in the otfice, another person attended and apparently joined the ~4- B.W.I.U. and received an 0O.K. card, without being told that the would have to face the Executive. The applicant was also told that he would have to speak to the Assistant Secretary of the B.W.I.U., who was not then present. A day or two later, the applicant met with the Assistant Secretary of the B.W.I.U., who told him that he would not receive an 0.K. card from the B.W.1I.U. until the Executive had considered his application. He was told that the Executive would meet on the following Tuesday. An arrangement was made for him to address the Executive, and he did attend and address the Executive on 15th September 1986. He was subsequently told that the Executive had decided that before he would be admitted to membership he would have to pay the sum of $10,000.00 into a trust account, to cover legal expenses incurred by the B.W.I.U. in defending the application made under the Trade Practices Act 1974. On 18th September 1986, at the offices of the B.W.I.U., the applicant was told by the Secretary of the B.W.I.U. that he was required to lodge $10,000.00 in trust before he would be admitted to membership. On 19th September 1986, the applicant attended a meeting of scaffolders held at the offices of the B.W.I.U. This meeting discussed the Executive's decision. A motion was proposed that the scatfolders pay the $10,000.00 to the Union from a fighting fund maintained by them. The applicant spoke against this proposal. He did not believe that the B.W.I.U. had any right to require him ta pay the $10,000.00 before giving him a ticket, and he was opposed to the scaffolders depleting their fighting fund in support of him. Despite his opposition, the proposal was adopted and the sum of $10,000.00 was paid to the B.W.I.U. on the ~5 - applicant''s behalf. of claim were filed on 8th October 1986. Pursuant to directions given in this proceeding, points out those points of claim in full: "L, The Applicant is a qualified Rigger and Scaffolder who is and has been employed within the industries covered by the Industry & Eligibility Rule of the Pirst Respondent and in particular in relation to the Industry covered by the First Respondent as a result of Regulations made pursuant to the provisions of the Burlders' Labourers' Federation - Cancellation ot Registration (Consequential Provisions) Act, 1986, The First Respondent is an organization of employees registered pursuant to the provisions of the Conciliation and Arbitration Act, 1904. The Second Respondent is the Secretary of the New South Wales Branch of the First Respondent. The Applicant has applied to join the First Respondent. The Respondents have placed a condition precedent {the said condition) to granting membership of the organization to the Applicant, the said condition being the payment of $10,000.00 into Trust to cover the costs of the First Respondent in Matter G No: 164 of 1986 which were proceedings brought by the Applicant against the First Respondent and others purportedly pursuant to the provisions of the Trade Practices Act, 1974. At the time of the imposition of the said condition by the Respondents no claim for costs had been made on the Applicant by the First Respondent or any other person acting on behalf of the First Respondent. At the date of filing this Application no claim for the payment of money on account of costs had been made on the Applicant by the Respondents or any person acting on behalf of the First Respondent. The First Respondent 1S a party to a Memorandum of Understanding for the improvement of industrial relations in the buiiding industry. {It 1s necessary to set 10, ll. 12. 13. -~6- The requirements of the said Memorandum of Understanding and the practice in the building industry in New South Wales is one of "no ticket - no start" and that practice has existed at least since the 14th August 1984 being the date on which the Memorandum of Understanding became effective. The arrangement in respect of "no ticket - no start" is, inter alia, for the following employment procedures:- (a) @ prospective employeesfsic.1] attends at the workplace designated in any particular advertisement; (b) subject to the preference of employment provisions operating 1n awards, the employee 1s engaged; (ec) df the employee is not a Union member and the site is in the metropolitan area, the employee 1s then sent to the Union Office to obtain a Union ticket; (d) In non-metropolitan centres, a receipt for payment to the job steward for the Union is sutficient evidence of membership of Union; (e) Having obtained either a Union ticket or in the case of non-metropolitan sites. a receipt from the job steward, the employee is entitled to commence the performance of his or her duty. The requirements of the said Memorandum of Understanding and the practice in the Building and Construction Industry in New South Wales and the etfect of the said Memorandum of Understanding 18 that building industry employers and Building Industry unions require a person to be a financial member of an appropriate union berore that person can commence in paid employment in the Building & Construction Industry. The Applicant may only work in the Building & Construction Industry and in particular, for Murlar Pty Limited, if he possesses a financial ticket and "O.K. Card" from the First Respondent. On some occasions the Applicant may be able to work as a Rigger and Scaffolder in the Building & Construction Industry by obtaining a current ticket 1n the Australian Workers' Union but to be employable in any practical sense within the Bu1lding & Construction Industry the Applicant is also required to possess a ticket in, and receive an "0.K. Card" from, the First Respondent. 310,000.00 has been paid into the Trust Account of W.C. Taylor & Scott, Solicitors acting for the Respondents in satisfaction of the Terms of the w 14, is. 17. 18. 19. 20. ai. -7- said condition imposed by the Respondents on the Applicant. The $10,000.00 so paid into Trust on behalf of the Applicant was paid trom the Fighting Fund operated by Riggers and Scaffolders employed in the Building and Construction Industry employed by Murlar Pty Limited and/or its associated companies. It is just and proper that the sum of $10,000.00 be repaid to the "Riggers and scaffolders Fighting Fund" by the Respondents. - The said condition imposed upon the Applicant by the Respondents in order to obtain membership of the First Respondent 1s not a requirement authorised by the Conciliation and & Arbitration Act or by the registered Rules of the First Respondent. The Applicant is entitied to membership of the First Respondent free from any condition or requirement in terms of the said condition. The Respondents in requiring the Applicant to comply with the said condition is in breach of Section 141 of the Conciliation & Arbitration Act. The Applicant is entitled to membership of the First Respondent by complying with the provisions of the registered Rules of the First Respondent. In so far as it may be alleged that the Rules of the First Respondent authorize the imposition of the said condition those Rules are bad and contrary to the provisions of thelsic.] Section 140 of the Conciliation and Arbitration Act. The Court has dealt with the question of costs in matter G No: 164 of 1986 and the Respondents have available to them the due processes of the Court to enforce the Order for costs should the Order be disobeyed by the Applicant. In so far as the said condition seeks to enforce the Court's Order tor Costs other than in accordance with the processes provided by the Act by law, the Respondents are in contempt of the Court. The said condition 1s against public policy because of the circumstances set out herein and further because such a condition 1s and would be likely to inhibit an applicant for membership or a member of an organization from taking proceedings in the Court or in any Court or Tairbunalfsic.] of competent jurisdiction. -~ B- This is especially so where a system of "no ticket - no start" 1s applied by enployers and organizations in the relevant industry. 23. The said condition is illegal. 24. By virtue of the foregoing the Applicant seeks the Orders set out in the Application filed herein." Points of defence were tiled on 17th October 1986. In them, the respondents admitted the allegations made in paragraphs 1, 2 and 3 of the points of claim, denied or did not admit the remaining paragraphs, and raised some positive defences. On 29th October 1986, a notice of motion was tiled by the respondents, seeking that the points of claim be struck out as disclosing no cause of action or no justiciable issue. Specific orders striking out paragraphs 18, 19 and 20 of the points of claim were also sought. On 17th December 1986, Mr. J. Shaw Q.C. and Mr. Rothman moved the Court on behalf of the respondents. Mr. Haylen appeared on behaif of the applicant. The applicant applied to amend the application by adding a claim for a declaration that the first respondent, in imposing conditions upon the admission to membership of the applicant, was and is in contravention of s. 143(1)(d) of the Conciliation and Arbitration Act 1904. No notice had been given of this proposed amendment, and it was agreed between the parties that the respondents would reserve their rights with respect to the application to amend. The first question which arises is whether it 1s open to the Court to strike out anything at this stage of this proceeding. Under o, 4 4r. 6(1) of the Federal Court Rules, an applicant is required to tile and serve with the application -9- either an affidavit or a statement of claim, whichever is appropriate. It 1s clear from the definition of "pleading" in o. lr. 4 that a statement of claim 1s a pleading, but an affidavit 13 not. Nor are points of claim, which the Court in its Industrial Division commonly orders to be delivered for the purpose of clarifying issues, where an applicant has elected to file and serve an affidavit with the application. Order 11 r. 16 provides as follows: "16. Where a pleading- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out." It is to be noted that this rule is applicable only to the striking out of a pleading or any part of a pleading. It cannot apply to the striking out of an affidavit or points ot claim. Where no pleading 1s involved, it 18 necessary to resort to o. 20 ce. 2, or to the possible inherent power of the Court to control its proceedings and to prevent abuse of its process. Order 20 r. 2 provides as follows: 2. (1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for reliet in the proceeding- 'a@) mo reasonable cause of action 1s disclosed; tb) the proceeding 1s frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, - 10 - the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, (2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1)." Mr. Haylen did not concede the existence of an inherent power in the Court to strike out or dismiss proceedings where no cause of action is disclosed, and argued that o. 20 r.2 is inapplicable to the present case. He relied upon the presence in Oo. llr. 16 of the words "at any stage of the proceeding", and the absence of those words from o. 20 r. 2, to argue that o. 20 t. 2 is only applicable before any step 1s taken by a respondent ina proceeding, other than the entry of an appearance. No authority was cited for this limited view of the application of o. 20 Yr. 2. No reason exists, other than the difference in wording between o. 20 r. 2 and o. i1r. 16 for the adoption of such a view. It 1s sometimes legitimate to construe legislation by reference to the specific inclusion in one provision of a subject which is omitted from another. This process, however, 15 not an inflexible rule, but merely a guide to construction. Ina case such as this, where the two provisions are not adjacent in the legislation, and deal with different subjects, it 1s difticult to say that the omzssion ot the words "at any stage of the proceeding", or similar words, from o. 20 r. 2 was the deliberate act of the framer of the rules, In addition, it is clear that the intention of o. 20 r. 213 to enable the Court to do justice between the parties to a proceeding at an interlocutory stage where no case is made out. ft would therefore be wrong to imply into o. 20 r. 2 some limitation in - li - point of time within which the powers it gives could be exercised. I therefore hold that o. 20 r. 2 18 applicable at this stage of the proceeding, and proceed to consider the respondents' motion by reference to it. This conclusion makes it unnecessary to consider the question of an inherent jurisdiction of the Court to strike out proceedings where no real claim is made, In the course of argument, counsel for both parties recognized that there is little point in striking out the points of claim, whilst leaving the application intact. The applicant was made aware by the notice of motion and its accompanying affidavit that the substance of the motion is to bring this proceeding to an end. I therefore consider whether the whole or any part of the application should be dismissed as disclosing no cause of action or no justiciable issue. Mr. Shaw conceded that the tests to be applied on an application such as this are those laid down in Dey v. Victorian Railways Commissioners (1949) 78 C.L.R. 62, at pages 64-85 per Latham C.J. and page 91 per Dixon J. (as he then was) and General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125, at page 129 per Barwick C.J. These tests have been stated in different ways, but the substance of them is that a respondent must show the claim to be clearly wunarguable, in order to succeed on an application to dismiss a proceeding or part thereotr. The major issue in the present case is whether the -12- applicant has made any sustainable application pursuant to s. 144 of the Conciliation and Arbitration Act 1904 ("the Act"). The relevant parts of that section are as follows: "144(1) A person employed in connection with an industry, or engaged in an industrial pursuit, is, unless he is ot general bad character, entitled, subject to payment otf any amount properly payable in respect ot membership, to be admitted as a member of an organization (being an organization of employees in or in connection with that industry or of employees engaged in that industrial pursuit) and to remain a member so long as he complies with the rules of the organization. 144(2) Sub-section (1) does not entitle a person to be admitted as a member of an organization unless he is included in a category of persons who are elibible for Membership of the organization under the rules of the organization, or to remain a member if he ceases to be so included and the rules do not permit him to remain a member. vee 144(5) Where a question or dispute arises as to the entitlement under this section of a person to be admitted as, or to remain, a member of an organization, that pergon, a person who is or desires to become the employer of that person or the organization may apply to the Court for a declaration as to the entitlement ot that first-mentioned person under this section. Mr. Shaw pointed to the requirement under sub-section (2) that a person be eligible for membership "under the rules" of the relevant organization. He tendered extracts from the rules ot the B.W.I.U. which included r. 2, the rule which defines the categories of persons eligible to be members of the 8B.W.I.U. Rule 2 contains no reference to riggers or scattolders. By virtue or the Builders Labourers' Federation (Cancellation of Registration ~- consequential Provisions) Regulations, made pursuant to the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986, persons -13- employed or usually employed in the classifications of scaffolder, rigger performing rigging work that 1S an integral part of, or is incidental to, a tradesman's work, or assistant rigger assisting a rigger specified in the immediately preceding classification 1n New South Wales, Victoria and the Australian Capital Territory became eligible to belong to the B.W.I.U. Mr. shaw argued that the applicant could not bring himself within s. 144 of the Act, because his eligibility for membership of the B.W.I.U. arose from the Regulations, and not from the rules of the B.W.I.U. This argument overlooked the terms of r. 2 of the B.W.I.U.'s rules. Under that rule, persons "employed in, usually employed in or qualified to be and desirous of being employed in or seeking to be employed in or in connexion with the industry or industries, and/or occupation and/or calling, and/or vocations, and/or industrial pursuits of...carpenters or joiners" are Cligible to be members of the B.W.I.U. The question of Mr. Roberts's eligibility cannot be resolved merely by his statement in an affidavit that he has worked as a rigger and a scaffolder. Nothing on the face of the affidavit excludes the real possibility that Mr. Roberts has been employed as a rigger or scatfolder in or in connection with the industry of carpenters or joiners, The question whether Mr. Roberts is eligible to join the B.W.I.U. under its rules, as distinct from under the Regulations, is incapable of résolution without the determination of questions of fact. Mr. Shaw conceded that 1f questions of fact arose, which depended upon evidence for their determination, the respondents' application to strike out or dismiss the proceeding could not succeed on this ground. - 14 - The second argument relied upon by Mr. Shaw with reference to the applicant's claim under s. 144 was that there did not exist at any relevant time any controversy as to the applicant's eligibility to become a member of the B.W.I.U. All that occurred, so Mr. Shaw said, was that a condition precedent to membership was imposed. The condition was met by the payment of $10,000.00, and the applicant was admitted to membership. Mr. Shaw made a clear statement to the Court that the respondents regard the applicant as a member of the B.W.I.U. Accordingly, Mr, Shaw submitted that no question or dispute arises as to the entitlement under s. 144 of the applicant to be admitted as, or to remain, a member of the B.W.I.U. Section 144(5) is therefore not fulfilled. This argument is undoubtedly persuasive, but the Court cannot view the matter at this stage as 1f it were disposing of the matter finally. The question 1s whether the applicant has an arguable case. Section 144(5) refers to a question or dispute "as to the entitlement under this section of person ta be admitted as a member". The entitlement itself comes from s. 144(1). It ts an entitlement to be admitted "subject to payment of any amount properly payable in respect of membership". It is arguable that the payment of $10,000.00 was not an amount properly payable in respect of membership, and that therefore a question or dispute does arise as to the entitlement of the applicant to be admitted to membership of the B.W.I.U. without having been forced to make that payment. In other words, the view might be taken that s. 144(5) gives to the Court jurisdiction to determine whether an amount demanded as a - 15 - condition precedent for membership of an organization 1s an amount properly payable in respect of membership. This may not be the view which the Court takes on a final determination of the Matter, but for present purposes, in the absence of clear authority, 1t must be regarded as arguable. One further point, which was not argued, arises from paragraph 5 of the respondents' points of defence, which alleges: "S$, Further, and in the alternative, the Respondents Say that a person who is and remains in breach of an order of the Federal Court of Australia to pay costs to another party 1n accordance with law may, for the time during which he declined so to pay, be regarded aS a person ot general bad character within Section 144(1) of the said Act." There can be little doubt that one of the questions with which the Court may deal under s. 144(5) of the Act is the question whether a person lacks the entitlement to become or remain a member of a particular organization under s. 144(1) because he or she is of general bad character. It maght be thought that paragraph 5 of the points of defence raises this issue against the applicant. If so, it is difficult for the respondents to contend that the application raises no justiciable issue. It follows that the claims 1n paragraphs 1 and 2 of the declaration are arguable and must be allowed to proceed. Paragraphs 3 and 4 of the application seek declarations relating to the requirement tor the payment of $10,000.00. To the extent to which these declarations might depend upon the application of s. 140 of the Act, Mr. Shaw took the point that - 16- the proceeding had not been commenced by Rule to Show Cause, as 1s required by o. 4 r. 15 of the Federal Court Rules. It is true that, in order to obtain any relief ot the kinds which the Court may give under s. 140(5D), a member of an organization must apply to the Court under s. 140(2), and that application must comply with o. 4r. 15 of the Federal Court Rules. It is now well established, however, that questions of the effect of s. 140(1) may arise in proceedings other than those brought under the section itself, and, when arising, must be considered. See the discussion in the judgment of Sheppard J., with whom Keely J. concurred on this point, in Cook v. Crawford (1982) 62 F.L.R. 34, at pages 109-lle, and the cases referred to in that discussion. It is therefore arguable that, ina proceeding in which the applicant relies upon s. 144, where a question arises of any contravention of s. 140(1) by a rule of an organization, or of the validity of any act which depends upon such a rule, the Court is bound to decide those questions as a step towards determining the application under s. 144. The resulting determination under s. 140 will not have the same effect as will relief granted under that section itself, but will have effect as between the parties to the particular proceeding. As to whether it is appropriate to seek declarations, Mr. Haylen relied on s. 21 of the Federal Court of Austrailia Act 1976, and upon the judqment of the Full Court in McLeish v. Faure (1979) 40 P.L.R. 462, at pages 471-476, There can be no doubt that the Court has the power to grant a declaration as to the effect of s. 140 upon the rules of an organization, even in a proceeding not brought under the section itself. It is therefore - 17 - arguable that the claims in paragraphs 3 and 4 of the application should proceed. Whether a declaration will be granted at the trial is, of course, an entirely separate question. The first paragraph numbered 5 in the application seeks a declaration that the respondents "are in breach of s. 141" of the Act. Section 141 provides for applications to the Court by members of organizations, seeking orders giving directaons for the performance or observance of the rules of organizations, and for the jurisdiction of the Court to hear and determine such applications. With one exception, it is entirely inappropriate to allege "breach" of the section. The exception 1s that, if an order had already been made pursuant to s. 141, it might be said that a person failing to comply with the order of the Court, and therefore exposed to the penalty provided for by s. 141(4), was in "breach" of the section. There is no suggestion in the present case that any order pursuant tos. 141 of the Act has been made. Im addition, 90. 4 r. 15 of the Federal Court Rules provides for the commencement of proceedings under s. 141 by Rule to Show Cause. There is no authority that the Court may consider s. 141 in any proceeding other than one brought by this means. The manner of bringing a proceeding under s. 141 1s not merely a matter of form; a judge of the Court considers an application for a Rule to Show Cause, and determines that there 1s an arguable case, before such a rule 18 granted. Consequences for the applicant also flow from the granting of a Rule to Show Cause, by virtue of s. 141A of the Act, which provides for financial assistance to an applicant "where a rule has been granted" under s. 140 or s. 141. It 18 most inappropriate that - 18 - the Court should attempt to consider s., 141 other than in a proceeding properly brought. The claim in the first paragraph numbered 5 of the application will therefore be dismissed. The second paragraph numbered 5 in the application seeks a declaration that the respondents are in contempt of court. Order 40 r. 5 of the Federal Court Rules deals with applications for punishment for contempt; 1t appears to be mandatory in form, and requires that an application be made by motion on notice. Order 40 r. 6 requires a statement of charge, specifying the contempt, to be filed with the notice of motion or application. In the present case, no punishment is sought. What is sought is merely a declaration. It 1s difficult to see of what use a declaration could be, and even more difficult to envisage the Court granting such a declaration. Little argument was directed to this question on the application by the respondents, and I am reluctant to dismiss the claim in those circumstances. At present, [I am not persuaded that the claim for a declaration as to contempt 1s unarguable, The order sought in paragraph 6 12S an order directing both of the respondents to refund the $10,000.00. As against the B.W.I.U., such a claim might be based upon the alleged incapacity of the organization to demand that sum, with the conscquence that the money is money had and received by the B.W.1.0. to the use of the applicant. Plainly, there are difficult questions involved, and the claim must be regarded as arguable. Not the least ofr the difficulties is the fact that the persons who paid the $10,000.00 are not parties to the proceeding. Nor are the persons who are - 19 + alleged to hold the sum in trust. An interesting question may arise whether the Court can compel payment to other parties who do not seek such payment in the proceeding. As against the second respondent, the claim must be based on s. 141 of the Act. No allegation 1n the applicant's affidavit, or in the points of claim gives rise to any other conclusion. In particular, it is not alleged that the second respondent is in some way a constructive trustee of the money for the applicant. For the same reasons as I have given in relation to the first paragraph 5 of the application, this claim against the second respondent must be dismissed. In many ways, the removal of the claims under s. 141 for the return of the money no doubt deprive the applicant of a great deal of what he sought in this proceeding. The dismissal of these claims at the present time, however, does not prevent the applicant from seeking relief pursuant to s. 141 of the Act in the proper way. It should be emphasized that nothing said in this judgment about the remaining claims should be taken to encourage the applicant in the belief that he will necessarily be granted the relief he seeks, or to encourage the respondents in the belief that they will necessarily succeed. All that is determined is that the remaining claims are arguable. The order of the Court will be that the claim the subject of the first paragraph numbered 5 1n the application and the claim the subject of paragraph 6 in the application as against the second respondent are dismissed. Otherwise, the motions the subject of the notice of motion filed on 29th October 1986 are dismissed. - 20 - I have left open the application to amend by adding a further claim for a declaration that the B.W.I.U. has acted in contravention of s. 143(1)(d) of the Act. Full argument on that application to amend has not yet been heard. Solicitors for Applicant: Counsel for Applicant: Geoffrey Edwards & Co. Mr. W.R. Haylen Solicitors for First and Second Respondents: Counsel for First and Second Respondents: Taylor & Scott Mr. J. Shaw Q.C., Mr. S. Rothman eee oer I certify tims this and the 19 preceding piivs ace a toue cepy of the Reasons for Fuagne.t uczern of his Honour mur. Justice Dated: (Yeler .