Armstrong, Jan v Elliott, Rob & Ors [1997] FCA 1374

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - registered organisation - performance and observance of rules of registered organisation - rule to show cause - whether rule to show cause should be made absolute against respondents yet to appear in proceedings.

Workplace Relations Act 1996 (Cth) JAN ARMSTRONG v ROB ELLIOTT & ORS VG 273 of 1997 MARSHALL J MELBOURNE 28 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 273 of 1997

BETWEEN: JAN ARMSTRONG

Applicant

AND: ROB ELLIOTT & ORS

Respondent

JUDGE: MARSHALL J

DATE OF ORDER: 28 october 1997

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The motion, notice of which was given on 22 October 1997, be adjourned until the trial of the application. 2. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 273 of 1997

BETWEEN: JAN ARMSTRONG

Applicant

AND: ROB ELLIOTT & ORS

Respondent

JUDGE: MARSHALL J

DATE: 28 october 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT The matter before the Court this morning is a notice of motion in which the applicant, Ms Armstrong, seeks an order against the respondents, other than the first respondent Mr Elliott, that the rule to show cause be made absolute. Mr Friend, counsel for Mr Elliott, applied for the motion to be adjourned until the trial of the application. Mr Borenstein, counsel for Ms Armstrong, opposed an adjournment of the motion. The rule to show cause was made on 12 June 1997. Paragraph 1 of the rule called upon the respondents to show cause why an order should not be made treating as null and void, a certain resolution of the National Executive of the Health Services Union of Australia, ("HSUA") made on 1 May 1997. The respondents were, at the material time, members of the National Executive of HSUA. On 19 June 1997 the Court heard an application for interim relief in the proceeding which was in identical form to the final release sought. In its judgment of 25 June 1997 the Court refused the application for interim relief. See Armstrong v Elliott (Marshall J, 25 June 1997, unreported). On the material then before the Court, it was held that "a clear case for interim relief had not been established." This observation was made in light of the fact that the interim relief sought was in the same terms as the final relief sought. Mr Kenzie QC, appeared for Mr Elliott on 19 June 1997. When announcing his appearance, Mr Kenzie said: "I appear for the respondent, Elliott. I think I am instructed, or to be instructed by some others of the respondents, but I will not be able to indicate that to your Honour for the next couple of minutes or so." Mr Kenzie did not subsequently announce an appearance for anyone other than Mr Elliott. On 7 July 1997 a directions hearing was held in the matter. Appearances were made for Ms Armstrong and Mr Elliott. A timetable for the filing and serving of affidavits and contentions was agreed upon. It involved no other parties. Further consent orders concerning affidavits and contentions involving only Ms Armstrong and Mr Elliott were made on 15 October 1997 which included the completion of the filing of affidavits and contentions by 3 December 1997 and the adjournment of the directions hearing to 8 December 1997. On 22 October 1997 the notice of motion, the subject of the current adjournment application was issued. On the same day I made an order for substituted service of the motion and for the abridgment of time to enable the motion to be dealt with this morning. No additional parties appeared this morning. No notices of appearance have been filed by any respondent other than Mr Elliott. Mr Borenstein accepted that if the Court proceeded to hear the motion it would require evidence which would support a determination that the rule to show cause should be made absolute. Mr Borenstein referred the Court to hitherto uncontested evidence that the impugned resolution was incorrectly declared as carried when it was actually lost. It is uncontested at this stage because Mr Elliott has until 5 November 1997 to file and serve his affidavits. Mr Friend filed in Court an affidavit of Mr Elliott affirmed this morning. Mr Elliott deposes that in that affidavit that a meeting of the National Executive of HSUA occurred on 21 October 1997. He said that he "...told those members there present that (he) had instructed Solicitors to appear on (his) behalf in the matter and that (he) intended to oppose the Application." He went on to add, at paragraph five of the affidavit as follows: "At that meeting I also told the members present that they could instruct Solicitors to appear on their behalf in the application also, or alternatively they could simply leave the matter in my hands. I told them that it was a matter for them to decide whether they instructed Solicitors to act or not." Mr Borenstein invited me to conclude from Mr Elliott's affidavit that the other respondents had no interest in the outcome of the matter. Mr Friend submitted that it is difficult to be certain from the material before the Court as to what the attitude of the other respondents is to the rule to show cause. I accept Mr Friend's submission. I have no evidence before me or any other material which discloses the attitude of any respondent other than Mr Elliott to the proceeding. It is unsatisfactory for the Court processes that the other respondents have chosen to leave the Court in a position where it has no knowledge of their attitude to the proceedings. However a determination, effectively made ex parte, that the rule to show cause should be made absolute against the respondents, other than Mr Elliott, would be the likely result of a refusal of the adjournment. It is also more likely than not that the proceedings would continue as against Mr Elliott. It is possible that the result of those proceedings would be that the rule to show cause as against Mr Elliott, may be discharged. Consequently, there is a prospect that in contested proceedings involving Mr Elliot, the Court may come to a different conclusion than the one it may have reached had the issue been determined on an ex parte basis against the respondents who have yet to appear. This would be a most unsatisfactory situation for the Court and the administration of justice. The impugned resolution has either been made contrary to the rules or it has not. There is no halfway house. There also should be no possibility of inconsistent answers to the question as to whether or not the rules of the HSUA have been complied with. Whilst I have sympathy with the position of Ms Armstrong in wishing to know the attitude of the other respondents to the proceeding, it should be noted that as late as 15 October 1997 this matter was proceeding on a basis, through consent directions, where the only active participants were Ms Armstrong on the one side of the record and Mr Elliott on the other. Questions arising for determinations in adjournment applications often involve matters of fine balance and call for the exercise of one's discretion in all the circumstances. The potential embarrassment to the Court of the existence of two inconsistent findings on the issue of compliance with the rules and the fact that the matter proceeded as it did up until 15 October 1997, leads me to favour the granting of the adjournment. I am so inclined, notwithstanding the understandable concerns which Mr Borenstein expressed regarding the attitude taken to the proceedings by respondents, other than Mr Elliott. Therefore the Court orders as follows: 1. The motion, notice of which was given on 22 October 1997, be adjourned until the trial of the application. 2. Costs be reserved. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall