JUDGMENT No. AB 27 mmmnner CATCHWORDS Industrial law - appeal - registered organizations ~ prohibition on use of funds and resources of registered organization to produce material advantaging particular candidates during elections - relevance of evidence of subjective intention of officers in whom power to authorize expenditure is vested - power of Federal Court under s.141 of Conciliation and Arbitration Act 1904 to order repayment of moneys expended without lawful authority - whether limited to securing performance of existing obligations under the rules, or extending to remedying past breaches - s.141(1G) Conciliation and Arbitration Act 1904. Conciliation and Arbitration Act 1904 s.141(1G) H.d. DARROCH and OTHERS v. LINDSAY JAMES TANNER V. No. 57 of 1986 NORTHROP, KEELY AND RYAN JJ. 3 SEPTEMBER 1987 MELBOURNE eet ere et ere eer sere SI TIT en nny ee a ee ee er ere " - te a 2 v , + a ae Het . stow rote " and Sas SSE Da IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) V. No. 57 of 1986 ) INDUSTRIAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN H.Jd. DARROCH, J.P. MAYNES, K.Y¥. HARVEY, M.J. O'SULLIVAN and H, ARMSTRONG Appellants (Respondents) and LINDSAY JAMES TANNER Respondent (Applicant) COURT: NORTHROP, KEELY AND RYAN Ju. DATE : 3 SEPTEMBER 1987 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT:-— 1. The appeal be allowed in part. 2. Orders 1(b) and 2 of the judgment made on 19 December 1986 be set aside. 3. Otherwise, the orders be affirmed. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court.) St po ee wot ate a nm open Sn ger e+ . "3 A IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V. No. 57 of 1986 wewvew INDUSTRIAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA H.J. DARROCH, J.P. _MAYNES, K.¥. HARVEY, M.J. 0' SULLIVAN and H. ARMSTRONG Appellants (Respondents) and LINDSAY JAMES TANNER Respondent (Applicant) COURT: NORTHROP, KEELY AND RYAN Ju. DATE : 3 September 1987 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT The appellants have appealed against orders made by the Court on 19 December 1986 under sub-section 141(1G) of the Conciliation and Arbitration Act 1904 ("the Act"). - That sub-section provides:- "141(1G) An order under this section may give directions for the performance or:observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules." pre tcs rap seen, eee » oe rn rs be 7 cot "ommemeny ome ee im ee Le we mer Kee '7 ans Shahetel: Salar earemmnmemnah anni tated? wart nee way The orders appealed from are set out:- "l. The Respondents (the present appellants) and each of them perform and observe the rules of the Federated Clerks Union of Australia by - (a) treating as null and void and of no effect the resolution of the State Executive of the Victorian Branch made the 7th day of November, 1985 authorising the expenditure of the funds and resources of the Union by the preparation, publication and distribution to members of the Central and Southern Queensland Branch of the Union of the publication entitled 'Union Funds Misused' ('the publication'); (b) repaying to the Federated Clerks Union of Australia the amount of $7,687.51 that amount being the costs so expended in relation to the preparation, publication and distribution to the members of the Federated Clerks Union of Australia, Central and Southern Queensland Branch of the publication. 2. That the Respondents (the present appellants) pay the sum of $7,687.51 within 21 days of service of a copy of this order upon the Respondents' solicitor." The facts relevant to the appeal can be stated shortly. Each of the appellants is a member of the Federated Clerks' Union of Australia ("the Union"), an organization of employees under the Act. Each of the appellants is attached to the Victorian Branch of the Union and together they constitute the State Executive of that Branch. The respondent is a member of the Union attached to the Victorian Branch. On 7 November 1985 the appellants, in their capacity as members of the State Executive and in purported exercise TID Te mae sae r =p eee ee oe. y 7 ~ peer ee aie aay ees wee epee ee re eee ge — -~ ' . » a opere oe a a rr rr A SPSS of powers conferred upon them by the rules of the Union including the rules of the Victorian Branch, by resolution authorized the expenditure of funds and resources of the Union under the control of the Victorian Branch for the preparation, publication and distribution to members of the Union attached to the Central and Southern Queensland Branch of a pamphlet entitled "Union Funds Misused" ("the publication"). At the time of the resolution and at the time when the publication was distributed in Central and Southern Queensland, elections were being conducted within the Central and Southern Queensland Branch for offices within that Branch. From a consideration of the contents of the publication, the learned trial Judge found that the publication was an electioneering pamphlet directed as far as possible to all financial members of the Union attached to the Central and Southern Queensland Branch of the Union. Counsel for the appellants did not invite this Court to analyse the contents of the publication and did not dispute his Honour's finding. Implicit in that finding is the conclusion that the publication, on its face, tended to support or promote candidates or a group of candidates and to disparage other candidates or groups of candidates. Before proceeding further, attention should be drawn to the fact that inthis case the appellants were purporting to authorize the expenditure of funds of the Union under the management of the Victorian Branch in relation to eee ae eee oe omen me gee —-+ cotter og eee oe me. wn - rr rei acto sees wos the affairs of the Union in Queensland affecting members of the Union attached to another Branch of the Union. The question of whether the rules of the Union empowered the appellants to do this was not debated before us. We are not to be taken as accepting that the rules of the Union conferred such a power on the State Executive of the Victorian Branch. This appeal falls to be decided on a narrower point and on the assumption that, if special considerations applicable to the expenditure of the resources of an organization during an election within that organization did not apply, the expenditure would otherwise be within power. . Counsel for the appellants attacked the conclusion of the trial Judge by pointing out that his Honour accepted evidence given by the appellant Darroch that the purpose for distributing the publication in Queensland was to correct misstatements of fact concerning certain policies and practices followed in the Victorian Branch which had been made by officers within the Central and Southern Queensland Branch of the Union to members of the Union attached to that Branch. Acceptance of that evidence led his Honour to hold that "the applicant (the present respondent) has failed to establish a lack of bona fides or the existence of an extraneous or improper purpose" on the part of the appellants. Counsel for the appellants contended that the trial Judge had ignored that finding when considering whether to make the order 1(a) and thus was in error. In considering this question, his Honour said:- pO et ne rary ray eek ' . Z wenn tee ee eee nee + ee 7 - oa ' oa eo are eee, FO gto pre see - wot yet ow ",.. If, on a fair view of the publication in question, it amounts to electioneering, its production and distribution will be beyond the power given by the rules, whatever may have been the subjective intent of those producing and distributing the publication." The law to be applied in cases such as this has been discussed by a Full Court of this Court in two recent decisions. In Scott v. Jess (1984) 3 F.C.R. 263, two separate appeals from two separate interlocutory orders made in the one proceeding were heard together. In the first appeal, officers of an organization of employees, in the purported exercise of administrative powers conferred upon them, had expended resources of the organization in publishing and distributing to members of the organization, while an election was being conducted, publications which tended to support a group of candidates in that election. Interim orders had been made under sub-section 141(2) of the Act directing those officers to perform and observe the rules of the organization by refraining from using the resources of the organization to support or promote a candidate or group of candidates or to defeat a candidate or group of candidates seeking office in the election then being conducted. On 2 March 1984, the Court refused a motion by the officers that the application in which the orders had been made _ disclosed no cause of action and the officers appealed from that order. The second appeal related to matters with respect to other elections which had not commenced. eleteteed Tamera we ne peage ce re 7 renee) ro: pres wee ee Ae a 5 oF 3 ' nt With respect to the first appeal, in a joint judgment, Evatt and Northrop JJ. at pp.269-271 considered a number of earlier authorities containing statements of the applicable law. Their Honours discerned in the provisions of the Act and the Conciliation and Arbitration Regulations a requirement that elections of officers of registered organizations be conducted fairly, and went on to say, at p.272:- "Implicit in that concept of fair play is the principle that the officers exercising power within an organisation shall not exercise that power to authorise the use of the resources of the organisation to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election to offices within the organisation. In the present case it is not necessary to determine what are the limits of the conduct of an election. For present purposes it is sufficient to say that the election commences at least at the closing of nominations for candidates for the election and continues at least until the close of the ballot for that election. If during the conduct of an election, officers of an organisation expend the resources of the organisation on conduct which tends to support or promote a candidate or a group of candidates at that election, directions may be given under $.141(1G) of the Act that they perform and observe the rules of the organisation by refraining from so expending the resources of the organisation. or necessity, the rules cannot provide for that type of expenditure, any specific rule purporting to authorise that type of expenditure being, in all probability, in contravention of s.140(1) of the Act; cf. Dugmore v. Porter (1983) 3 I.R. 418, and on appeal Porter v. Dugmore (1984) 3 F.C.R. 396." — a a . > q a In that case there was no evidence, apart from the contents of the publications themselves, as to the intention, purpose or motive of the officers in expending the resources of the organization in publishing and distributing the material in question. The first appeal was dismissed. A similar issue arose in Tanner v. Maynes (1985) 63 A.L.R. 197. In that case, the applicant sought orders that the respondents perform and observe the rules of an organization of employees by treating as null and void and of no effect a resolution passed by the respondents who were officers of the organization "in so far as that resolution purported to authorize the preparation, publication and distribution of" a leaflet which the applicant claimed tended to support or promote a group of candidates during elections then being conducted and,in addition, in relation to other elections to commence at some time in the future. Consequential orders were sought. Interim orders were made in relation to the elections being conducted and the application was referred to a Full Court for hearing and determination. When the application came on for hearing before the Full Court, the elections being conducted at the time when the interim orders had been made were completed and the future elections had not commenced. The orders sought were refused. At pp.205-206, Evatt and Northrop JJ. summarized two of the principles from the judgment of the Full Court in Scott v. Jess (above) as follows:- are een, - 4 Ve ie * ~y wep tegen weg era pa ee oe: "Principle (1) Officers excercising power within an organization shall not exercise that power to authorize the use of the resources of the organization to support or promote a candidate or a group of candidates during the conduct of an election to offices within the organization. Principle (2) Officers of an organization are under a duty to exercise powers conferred upon them by the rules of the organization bona fide for the purposes for which the powers are conferred." Their Honours then acknowledged that principle (2) may have application to the distribution of material before the commencement of an election, after saying at p.206:- "Principle (1) imposes an absolute prohibition on the exercise of powers by officers of organizations. It is an absolute prohibition which applies during a restricted period, namely during the conduct of the election." In Tanner v. Maynes (above) the substantial issue concerned the future elections. The present appeal concerns actions taken whilst an election was being conducted. Therefore, nothing said in these reasons should be taken as expressing an opinion on the law to be applied where actions have been taken which may affect elections which have not commenced at the time of such actions. The authorities to which we have referred make it clear that when a complaint is made that members of an organization are, while an election is being conducted, using the resources of an organization ina way which has the ee are —-. Paes 7 7 ree eo peeneee Tv we eye ee POURS ee ete ree eee me effect of unfairly supporting or promoting a candidate or group of candidates, the intention, purpose or motive of those members cannot make the expenditure of the resources of the organization permissible. The matter for consideration is, first, whether the resources are being used. If the complaint relates to a publication, it is necessary also to look at the publication and determine whether it tends to support or promote a candidate or a group of candidates to the detriment of other candidates. In some cases, it may he necessary to have regard to extrinsic facts known to persons to whom the publication has been distributed to determine whether it has that impermissible tendency. However, the intention of those who use the resources of the organization to publish the material has no bearing on this question. Thus, in the present case, the evidence given by the appellant Darroch could not be relied on as changing the character of what was conceded to be electioneering material. Insofar as it was directed to the circumstances under which the resources of the Union were expended on the printing and distribution of the publication, Mr. Darroch's evidence may have been relevant for other questions, but that evidence did not and could not alter the nature of the publication. Insofar as it was directed to whether the respondents had exercised their powers for the purposes for which powers were conferred on them, the evidence was irrelevant. Accordingly, the trial Judge was correct in disregarding his finding on that issue when considering whether the publication was "electioneering. " > tee + tee oe eS, * Se py et hens - 10 - Before the Full Court, counsel for the appellants did not attempt to justify the publication on the basis that it was not "electioneering." It was distributed to members entitled to vote at the elections then being conducted in another branch of the Union. The respondents had no power to use the resources of the Union for that purpose. The appeal, insofar as it relates to order l(a) must be dismissed. It follows therefore, that the expenditure made by the respondents for the printing and distribution of the publication, namely $7,687.51, from the resources of the Union was so made without lawful authority. It is necessary to determine, therefore, whether, in this case, orders under sub-section 141(1G) of the Act can be made requiring the respondents to repay that money to the Union. The relevant parts of the orders appealed from on this issue are set out:- "lL. The Respondents (the present appellants) and each of them perform and observe the rules of the Federated Clerks Union of Australia by - (b) repaying to the Federated Clerks Union of . Australia the -amount of $7,687.51 that amount being the costs so expended in relation to the preparation, publication and distribution to the members of the Federated Clerks Union of Australia, Central and Southern Queensland Branch of the publication. meets pee ae ger ae et Te we eters ee - Sr rn ap tt egrer e eg ae e ore yor le ! t . Noy al ' Ld : -7 Re - l1- 2. That the Respondents (the present appellants) pay the sum of $7,687.51 within 21 days of service of a copy of this order upon the Respondents solicitor." Counsel for the appellants contended that the Court had no power under sub-section 141(1G) of the Act to make orders in those terms. He accepted that the Court had power to give detailed directions for the doing of acts which will constitute performance or observance of the rules, that the directions do not have to be cast in the terms of a particular rule and that the directions can be moulded to secure future performance or observance of the rules. However, he submitted that, notwithstanding the finding by the Court that the resolution carried on 7 November 1985 was in breach of the rules and that that resolution be treated as null and void and of no effect, sub-section 141(1G) of the Act did not empower the Court to make orders for the repayment of moneys. Sub-section 141(1G) of the Act reads as follows:- "An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules." (emphasis added.) Dealing with those words, then appearing in s.58E of the Act of 1904-1934, in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 C.L.R. 141, Latham C.J., at pp.156-157 said:- if Oe ee eee + epee ne 2 - . seen ee ee ee ee pee eee oe a a a wer eg er eee : arte te ae . ey npe— -12- "In my opinion, these words contemplate the giving of detailed directions for the doing of acts or observance of forbearances which will constitute performance or observance of the rules." (emphasis added.) In the same case Dixon J., at p.163 said:- "The directions are 'for,' that is, 'for the purpose of securing,' the performance, which is active, or the observance, which is passive, of the rules of the organization. The performance or observance is to be by someone under an obligation to perform or observe them." Those two passages reflect the words in sub-section 141(1G) to which emphasis has been added above, and support the view that, at the time of the giving of the directions, the persons to whom they are given must be persons "under an obligation to perform or observe" the rules. In our opinion the power conferred by sub-section 141(1G) to "give directions for the performance ... of any of the rules ... by any person who is under an obligation to perform ... those rules" does not empower the Court to give directions designed to overcome the effect of a past breach of a rule unless there is, on a proper construction of the rules, a continuing obligation to observe the rules, and the direction is given to secure the performance of that obligation under the rules. eaten a ere rook spear Se pe eres eres - 13- It would be different if, at the time when the directions were given, the rules imposed an obligation upon the persons to whom they were given and the directions were for the purpose of securing the performance of that existing obligation. For example, where the Court, in an appropriate case, has made an order giving directions for the performance of the rules of an organization by treating as invalid a purported dismissal from office of a person elected to an office (cf. sub-section 133(1)(f) of the Act), the Court is empowered to give directions for the performance of the rules by recognizing the office-holder concerned as still holding that office. The invalid expulsion would be treated as a nullity with the result that in law the office-holder had never ceased to hold that office. The latter direction would be based upon the respondents' obligation, under the rules, to recognize as an office-holder, the person who held the office and to accord to him the rights which the rules conferred on him in that capacity. That obligation extends to a person who has been invalidly expelled from the office, and would support an order under s.141 that the respondents perform the rules by treating his expulsion as null and void. In Opitz v. Barrett (1945) 54 C.A.R. 561 at p.579, Piper C.J. gave directions to the respondents "to recognize (Ccertain members] as the Branch Council now duly in office" - based upon rules providing that persons elected in 1944 were to "hold office until their successors are elected" (ibid at p.577). Notwithstanding arguments criticizing the directions "to recognize ECthose members as being] now duly in office", Yr ee rere mone vane a rr ae of ae ery Cowes - 14 - the directions were upheld by the High Court in Barrett's Case (supra) - see Latham C.J. at pp.157-158, Dixon J. at p.170 and McTiernan J. at p.174; cf. Starke J., at p.16l. In The Queen v. Joske and others; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 C.L.R. 194, Mason and Murphy Jd., at p.212 said:- "The judgments of this Court in R. Vv Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70C.L.R. 141 make it perfectly clear that sub-s. (1) of s. 141 is not confined to the making of orders directing the performance or observance of a particular rule or particular rules of the organization, as the prosecutors would have it, and that it extends, as its words explicitly state, to the giving of directions for the performance or observance of any of the rules of an organization, that is, for the doing of acts which will conduce to the performance or observance of such rules." It will be seen that in that passage Mason and Murphy JJ. were restating principles which had been enunciated in Barrett's Case and were not extending those principles. We do not understand it to have been suggested by the learned trial Judge or by counsel for the respondent - nor do we consider that it could be suggested - that his Honour had power to make orders l(b) and 2, on the basis that, in the words of Mason and Murphy JJ., they "will conduce to-the ~ performance ... of such rules" in the-- sense- that members may be more likely to perform their obligations under the various provisions of the rules in future if it were to become known by the members generally that the Court may order payment of money by members constituting a body omnes ee een ee a para eers _ 7 7" BO ee gc sry rs YT API tee ree oe bes - 15 - which carried a resolution not authorized by the rules. It may be added that a question may arise as to whether, in any event, such an order could be made against members of such a body unless they had been shown by the evidence to have voted in favour of the motion which became the resolution. Counsel for the respondent was not able to refer the Court to any rule of the Union which imposed upon any of the appellants, at the time of the making of the orders on 19 December 1986 or at any other time, an obligation to reimburse the Union out of their own funds any money paid to a third party in accordance with the resolution which has been held to be null and void. Counsel for the appellants cited Austin Vv. Deloraine (1959) 1 F.L.R. 297, in which the Commonwealth Industrial Court refused to make an order under s.141 that an organizer of an organization of employees pay to its trustees "all moneys received by him as members' entrance fees and dues" in circumstances where he had "not accounted to the proper authority for those moneys." Spicer C.d., with whom Morgan J. agreed, said at p.298:- "For myself I am unable to see anything in the rule, in the circumstances that have been recounted to us, that Places such an obligation upon Deloraine. It seems to me there area lot of answers that could be given. One is that on the facts before us it would not now seem that he has in his possession identifiable property of the organization that could be pointed to in such a way for the organization to be able to say 'that is our property'. Reo oer quae ooe ay ost, racy epee ere au, somone pee bone ee en en rer ee . an : ' = i wee per een - 16 - I think the true position is that Deloraine owes money to the organization in relation to entrance fees and dues that he has collected and which he has not accounted for. It may be that the organization has some remedy to recover them from him - I am not saying it has not - but I do not think it is the remedy that it seeks in this case." Dunphy J. at p.298 said:- "I think the rule should be discharged. To gucceed I think there should be a rule applying to members or organizers comparable with r. 15, which throws the responsibility on the shop stewards of paying money to the union that they have received on behalf of the union. As far as I can see in the rules, there is no such obligation directly imposed on members or organizers or officers other than shop stewards and, as a consequence, there is no rule that can be enforced against this particular respondent." Counsel for the appellants pointed out that Austin v. Deloraine was expressly followed by the Supreme Court of South Australia in Edwards v. Federated Moulders (Metals) Union of Australia (1982) 74 F.L.R. 438, where Zelling J., at p.444 said:- "There is no rule of the union that I can find covering procedure and accordingly no rule that they could be commanded to perform or observe in relation to the impugned meeting of November 1980. If there is no procedural rule to be performed or observed, then there is no jurisdiction in the Australian Industrial Court to make any order under -s. 141: see the decision of the Full Court of the Commonwealth Industrial Court in Austin Vv. Deloraine (1959) 1 F.L.R. 297 and the decision of that Court in McLure v. Mitchell (1974) 6 A.L.R. 471." orem pore rere o oo wee en ern . oT - 17 - Counsel for the appellants and the respondent each referred the Court to the decision of the Australian Industrial Court in McLure v. Mitchell (1974) 6 A.L.R. In that case the majority, Spicer C.J. and Dunphy refrained from making one of the orders sought, saying p.474:- "These proceedings have been brought against the Secretary alone and we are unable to discover any rule of the organization which he can be called upon to observe and perform in relation to the reimbursement by him of the moneys in question. More appropriate respondents to such an application would seem to us' to be the members of the Finance Committee. They, however, apart from Mitchell, are not parties to these proceedings and an order against them under s 141 would, in any event, seem of doubtful validity except in relation to the performance by them of their clear duty to report to the Branch meetings in the future." Joske J. dissented, taking a different view of the powers the Court under s.14l. Referring to the office of Branch Secretary, which was held by the respondent Mitchell, Honour said at p.486:- "... the real width of his authority is shown by the provision of the rule that he is to transact the business of the Branch, and he must exercise his authority in accordance with the rules of the organization and for its benefit. ... If moneys of the Branch go into his pocket without lawful authority he must account for them and repay them to the Branch. Unless and until he does so he is in breach of r 15 of the Branch rules and is not administering the affairs or business of the Branch or carrying out its rules. In particular he is not transacting the business of the Branch if he does not account to it for the moneys in his pocket to which he has no right and which he is retaining without lawful authority. The court, in my 471. J., at of his ee eo comeenende maemneearrl -18- opinion, is empowered under 5s 141 to give directions for carrying out Branch rule 15 by directing the Secretary to account for and repay to the Branch any moneys which he may have received without lawful authority." Even if the reasoning of Joske J. in McLure v. Mitchell were to be preferred to that of the majority in that case, it is not applicable to the present case because it is based upon the statement that the Secretary "must account for them and repay them to the Branch ... until he does so he is in breach of ry 15 ..." - referring to moneys paid to him "without lawful authority." Here, no such obligation under the rules can be identified which for the reasons expressed by the High Court in Barrett's Case, and amplified above, is necessary to found an order under s.141 requiring some active performance in the sense used by Dixon J. in that case at p.163. Further, even if there were an obligation to repay moneys received where the payment was "without lawful authority," it would not assist the respondent to the present appeal because, on the evidence, the moneys were not paid to any of the appellants but were paid presumably to the printer of the pamphlet and to Australia Post for postage, and by way of reimbursing the National Office for the address labels. Certainly the printer and Australia Post were not, and could not have been, parties to the proceeding before the learned trial Judge. ee tne ee we oe " . eer yt ' oa a cl aeepeo ne "poe a a ° = . : ~ ve - -~ 19 - Reference was made to another decision of the Australian Industrial Court in Gordon v. Carroll (1975) 6 A.L.R. 579. In that case Smithers, Woodward and St. John JJ. referred to the decision in McLure v. Mitchell but held, at p.602, that "the rules of a union could be supplemented by implied terms" and, at p.606, that there was "an implied term that the secretary (treasurer) must account to the organization for all moneys of the organization held by him." Their Honours held, at p.603, that "such implied terms can be the subject of directions pursuant to s 141." With great respect for the opinions expressed by the members of the Court in that case, at p.602, we prefer the view that the rules cannot "be supplemented by implied terms", as distinct from permitting the ascertainment of "the meaning of the rules upon their true construction" per Smithers J. in Porter v. Dugmore (1984) 3 F.C.R. 396 at p.408. However, even if there may be implied terms in the rules of registered organizations generally, and if a relevant implied term could be spelled out of the rules of the Union for the purposes of the present case, in our opinion "the rules of an organization" referred to in sub-section 141(1G) of the Act donot include any such implied term; see Dugmore v. Porter (1982) 3 I.R. 418 per —V—4-—— en —- - 20 - Northrop J. at pp.421~-422. It should be added that, before the learned trial Judge, the respondent to this appeal "did not attempt to rely upon the implied terms or implied rules approach." For the reasons given, in our opinion, the learned trial Judge did not have power to make orders l(b) and 2. Accordingly, the appeal will be allowed in part and orders l(b) and 2 of the judgment made on 19 December 1986 will be set aside. I certify that thzs and the nineteen (19) preceding pages are a true copy of the Reasons for Judgment herein of the Court. Associate .. Shera. Lf. alae cece eee Date ot YEP KOH SS IO, —— Counsel for the Appellants: Solicitor for the Appellants: Counsel for the Respondent: Solicitors for the Respondent: Dates of Hearing: Date of Judgment: R.R. Tracey T. M. Kelleher W. B. Strugnell Ryan Carlisle Needham Thomas 16, 17 June 1987 3 September 1987 "© ee en pe er en eee at a a a ra ao Aer niger teams ore 6 pow eee, pt + '