JUDGMENT No, 23+ 4 <S— Industrial law - registered organization - rules - performance or observance - applicant ceasing to hold offices on which entitlement to orders based - whether Court can make order - absence of continuing obligation on respondents - prospective nature of orders Court can make. Conciliation and Arbitration Act 1904 s.141. Y_ J. Tv. Vv. H.J. DARROCH, J.P. MAYNES K.Y. HARVEY, M.J. 0O'SULLIVAN No. V 224 of 1987 GRAY J. MELBOURNE 24TH MAY 1988 ) ) QF AUSTRALIA ) No. V224 of 1987 ) VICTORIA DISTRICT REGISTRY ) ) : ViSLON ) LINDSAY JAMES TANNER Applicant -and- H.J.__DARROCH, J.P. MAYNES , K.Y. HARVEY, M.J. O'SULLIVAN Respondents JUDGE: Gray J. PLACE: Melbourne _- DATE: 24th May 1988 EX 0. ONS FOR JUDG! The rule to show cause in these proceedings was granted on 16th December 1987. In its final amended form, the applicant seeks orders under s. 141 of the Conciliation and Arbitration Act 1904 ("the Act") of three kinds. The first kind of order sought is that the respondents supply information for the applicant. The second is that the respondents give to the applicant access to certain documents. The third kind of order sought is that the respondents refrain or desist from giving the applicant certain directions. At the time when the rule to show cause was obtained, the applicant held the elected position of assistant secretary of the Victorian branch of the Federated Clerks Union of Australia. By virtue of holding that position! the applicant was also a member of the state executive, the state council, and the state conference of that branch. The respondents hold and held various other offices within that branch. Together with the applicant they made up the state executive. The respondents were also members af the state council and the state conference. The matter proceeded to the stage of trial, and the trial was completed on 29th March 1988. On that date, the Court reserved its judgment on the matter. Whilst | the judgment was in the course of preparation, the respondents filed a notice of motion on 9th May 1988 seeking leave to make further submissions, by reason of an event which occurred after 29th March. The event which was relied upon was a letter dated 9th May 1988 from the applicant to the first respondent, by which the applicant tendered his resignation from the office of assistant secretary, effective from 16th May. As a result of that event, the respondents seek the discharge of the rule to show cause, for the reason that the basis for making any of the orders sought by it has disappeared. The Court has now heard argument from Mr. Tracey, who appeared with Mr. O'Callaghan Q.C. for the respondents, and from Mr. Hurley, who appeared with Mr. Pehring for the applicant, and from Mr. Macken, the solicitor for the respondents, in reply. For the purposes of this judgment, it is assumed that the applicant would have beon crlilled Lv some or all of the relief sought in the rule to show cause. That assumption is made without any decision or indication as to its correctness. Mr. Tracey first put the proposition that the Court had no longer any jurisdiction to deal with this matter. The jurisdiction of the Court to deal with an application by a member of a registered organization for an order under s.141 is found effectively in sub-s.(1) of that section. It depends upon the applicant being a member of the organization concerned. Mr. Hurley has pointed out correctly that the applicant has not ceased to be a member and is therefore still entitled to approach the Court for a determination of an application under the section. The problem that arises seems to me to be more one of power. The power of the Court to make an order is found in sub-s.(1G) of s.141 in the following terms: "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." In Darroch vy. Tanner (1987) 74 A.L.R. 559 at pp. 564-565 the Full Court set out that subsection, emphasising some of the words in it by means of italics. After then quoting from the judgments of Latham C.J. and Dixon J., as he then was, in -_ Vv. Co ° of nei tion and Arbitration; Ex parte Barrett (1945) 70 C.L.R. 141, the Full Court went on to say: "Those two passages reflect the words in 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 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 dces not empower the court to give directions designed to overcome the effect of @ 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." 'thal cuse wes concerned with the question whether persons who had improperly spent the funds of a registered organization could be called upon after the event to repay those funds. It was not acase in which some supervening event occurred between the grant of a rule to show cause and the date when the Court would have made orders under s.141 for the performance or observance of the rules. Nevertheless, it does give some indication as to the prospective nature of orders which the Court is empowered to make under subsection (1G). ' Similar fndications appear from the judgment of Keely J. in Magner Vv. Fowler (1979) 26 A.L.R. 671 especially at pp. 698 and 701, where his Honour cited the judgment of O'Mara J. in Hay v. Australian Workers Union (1944) 53 C.A.R. 108, at pp. 123-124. In that judgment O'Mara J., in dealing with the power of the court to make orders under the predecessor of s.141 and the nature of the obligation in respect of which orders were made, said: "The obligation must be one existing at the time when the court makes its order and one which the person is permitted to discharge in the future." Keely J. adopted the phrase "passed and closed" from the judgment of O'Mara J., by way of referring to the kinds of matters in respect of which orders cannot be made under s.141. In my view the kinds of orders which can be made under s.141 are orders which are prospective, in respect of obligations which exist at the date when the orders are made and which will continue into the future. In the present case, Mr. Hurley argued that such continuing obligations do exist. On his argument the obligations crystallized on and prior to 16th May when the applicant's resignation took effect, and those crystallized obligations remain. If this view were taken it would mean that the respondents would now become obliged by order of the Court to give the applicant information, documents and access to documents and to cease to give him certain kinds of directions, even though he no longer holds the position of assistant secretary or any of the other offices which justified his receipt of that information, those documents, that access, or his entitlement to be free of those directions. In my view, this shows the obligations sought to be enforced to have become past obligations. The obligations contemplated by s.141(1G) cannot include that kind of past obligation. The issue of any entitlement of the applicant to the orders he seeks is an issue of an entitlement which is now passed and closed. The applicant could not make any legitimate use of the information he derived from the making of the orders in his present position of being other than the assistant secretary of the branch. Argument also took place on questions of discretion in the event that the Court did have power to make the orders. It is unnecessary for me to pronounce upon questions of discretion. I should say, however, that if the matter were one of discretion, the most weighty factor would be that the applicant, no longer being in a position where he is obliged to make use of information for the benefit of the organization, cannot legitimately claim an entitlement to receive that information by virtue of that position. > ¥ It may be that the management of the Victorian branch of the Federated Clerks Union of Australia was improperly carried out whilst the applicant held his position, by reason of his not being given the information and the documents that he sought, or by reason of his being given the directions that he sought to be freed from, but that is not a matter on which the Court can now pronounce properly under s.141 of the Act. For these reasons I propose to order that the rule to show cause be discharged. The order of the Court in this proceeding, therefore, is that the amended rule to show cause is discharged. Appearances Counsel for the applicant: Mr. T. Hurley Mr. I. Fehring Solicitors for the applicant: Holding Redlich Counsel for the respondent: Mr. P. O'Callaghan Q.C. Mr. R. Tracey Solicitors for the respondent: A.J. Macken & Co. Date of Hearing: 24 May 1988 1 certify that this and the preceding seven (7) pages aré a true copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: g Sune 19788 ; Associate: hrehumn A4Lb