King v Construction Forestry Mining & Energy Union [2000] FCA 616

FEDERAL COURT OF AUSTRALIA King v Construction Forestry Mining & Energy Union [2000] FCA 616

INDUSTRIAL LAW – rules – directions for performance – whether matter passed and closed – whether "removal from office" Workplace Relations Act (1996) (Cth), s 209 Federal Court Rules,O 20 r 2 Darroch v Tanner (1987) 74 ALR 559, followed Hayes v AWU (1944) 53 CAR 108, cited Krantz v Maynes (1967) 10 FLR 134, cited Lawrence v Fry (1998) 86 IR 205, considered Magner v Fowler (1979) 26 ALR 671, cited Webster v Lampard (1993) 177 CLR 598, followed DAVID KING V CONSTRUCTION FORESTRY MINING AND ENERGY UNION W98 OF 1999 R D NICHOLSON J 12 MAY 2000 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W98 OF 1999

BETWEEN: DAVID KING

Applicant

AND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Respondent

JUDGE: R D NICHOLSON J

DATE OF ORDER: 12 MAY 2000

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The respondent's notice of motion filed on 20 April 2000 be allowed. 2. The applicant's application dated 1 September 1999 be struck out. 3. The applicant's notice of motion dated 2 February 2000 for leave to amend his application be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W98 OF 1999

BETWEEN: DAVID KING

Applicant

AND: CONSTRUCTION FORESTRY MINING AND ENERGY UNION

Respondent

JUDGE: R D NICHOLSON J

DATE: 12 MAY 2000

PLACE: PERTH

REASONS FOR JUDGMENT 1 The respondent brings a notice of motion for the applicant's application to be struck out or summarily dismissed. That application is brought in reliance upon O 20 r 2 of the Federal Court Rules on the grounds that the application discloses no reasonable cause of action or is frivolous or vexatious. It is common ground that this notice of motion falls to be judged in accordance with the test in Webster v Lampard (1993) 177 CLR 598, namely whether on the material before the Court it is clear that the "action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail." 2 The applicant brings a notice of motion seeking leave to amend his application in terms of a minute of proposed amended application. 3 The existing application seeks directions pursuant to s 209 of the Workplace Relations Act (1996) (Cth) ("the WP Act'). It claims, firstly, a declaration that the respondent has breached its rules in that "it removed [the applicant] from office" otherwise than in accordance with the rules. Secondly, it seeks reimbursement of monies being "the difference between salary that the applicant would have received had he not been removed from office and the amount of salary the applicant has received since being removed."