Anthony Ross Benson and Construction Forestry Mining and Energy Union and Others [1995] IRCA 102

IN THE INDUSTRIAL RELATIONS COURT COURT OF AUSTRALIA No TI 120 of 1994 No TI 200 of 1994 TASMANIA DISTRICT REGISTRY B E T W E E N : ANTHONY ROSS BENSON Applicant CONSTRUCTION FORESTRY MINING AND ENERGY UNION AND OTHERS Respondents COURT: NORTHROP J PLACE: HOBART DATE: 23 FEBRUARY 1995 REASONS FOR JUDGMENT I propose to grant the adjournment sought by the respondents but in doing so I would incorporate the comments I have just made and draw attention to the fact that the rule nisi granted in matter No TI 200 of 1994 and supported by the affidavit sworn 15 November 1994 appears to be limited to the question of whether the purported resolutions relied upon by the respondents in removing the applicant from his elected office were within the powers conferred upon the respondents by the rules of the organisation and having regard to the provisions of the Industrial Relations Act 1988 dealing with the removal of elected officers. The same argument would arise in relation to the purported amendment of the rules to purport to give this power to the relevant respondents, the claim being made by the applicant that that amendment itself was not made in accordance with the rules and in any event still offends the requirements of the Act. In matter No TI 200 of 1994 directions were given on 8 December that the respondents file any answering affidavits on or before 10 February 1995. The procedures for this type of action are made clear by the Industrial Relations Court Rules. The application, initially, is made for a rule nisi supported by an affidavit. If granted then normally the respondents are directed to file answering affidavits. This is done to enable the parties and the Court to know what are the facts agreed or disputed and what flows from those facts. As a matter of practice there has developed a procedure where, in appropriate cases, the Court directs that each party file and serve contentions of fact and of law to augment the affidavit procedure. This was designed originally as an aid to narrow the issues but from experience it appears that those documents of contentions of fact and law have been designed to conceal more than they disclose. They are taking on more and more the nature of obscure pleadings and I must indicate that to some extent I have become disillusioned with that practice. In the present case, there has been no direction given for the filing and serving of contentions of fact and law. Towards the end of January 1995 the solicitors for the respondents wrote to the solicitor for the applicant raising an issue of whether the applicant was relying upon any question of mala fides on the part of the respondents in the exercise of their powers by which they purported to remove the applicant from his elected office. The justification for that letter appears to be that in the earlier proceedings matter No TI 120 of 1994 in which the applicant had commenced proceedings seeking a remedy for unlawful termination, the affidavit material may have been sufficient to found a claim based upon improper purposes. That could have been used for an argument that the termination was invalid under the relevant provisions of the Industrial Relations Act dealing with unlawful termination, Part VA Div 3. At an earlier stage the Court drew attention to the fact in a directions hearing in that matter that the procedures seemed to be wrong and that it would appear that the real issues related to the question of whether there had been an observance or failure to observe the rules of the organisation in purporting to remove from office an elected officer. Following that matter being raised, the applicant applied for and was granted the rule nisi in matter No TI 200 of 1994 to which I have referred. As a matter of convenience these two matters are proceeding on the basis they always be listed together so that in due course the two matters would come on for trial before the one judge at the one time to enable that judge to determine whether to hear the two cases together or one after the other. From what I know about the matters at present, I would have anticipated the appropriate course for the Court to adopt would be to hear matter No TI 200 of 1994 first on the basis that if that matter proceeded and the applicant succeeded, the other matter would fall by the way since all necessary consequential orders could be made in matter No TI 200 of 1994 to ensure the applicant had not suffered any disadvantage by reason of the non observance of the rules by the respondents. In all those circumstances, on a proper analysis of the position, it is difficult to understand why the respondent solicitors wrote to the applicant's solicitors suggesting he should include a further claim to support the rule nisi based upon lack of bona fides. The solicitor for the applicant, apparently, did not realise the trap which had been set and replied to the effect that he may well want to rely upon the claim that the purported exercise of powers were for an improper purpose and therefore invalid. Such a claim only becomes relevant if otherwise the powers have been validly exercised. If the powers do not authorise the removal from office of the applicant any question of bona fides just does not arise. Because of that, the solicitor for the applicant should have told the solicitors for the respondents to comply with the directions the Court made on 8 December and file any answering affidavits by 10 February 1995. During the course of submissions attention was drawn to the Rules of the Industrial Relations Court as to what can happen if a party does not comply with a direction of the Court. In particular reference was made to Order 10 rule 7(1)(b) that if a party in default is a respondent, the Court may enter judgment or make an order against the respondent. This is to be done on notice by the other party and no notice has been given in this case. The Court is concerned further by the fact that here the applicant, apparently, was removed from office about the middle of May 1994. Since then he has not been able to perform the functions for which he had been elected. He has not been receiving the wage entitled to the holder of that office. We are now towards the end of February 1995 and the matter has not got very far at all. This is a matter which the Court views with some concern but in all the circumstances the Court cannot take the matter much further today. I have made these comments with the intention that they be transcribed and made available to the legal advisers of both parties and to the respondents to make it clear that the Court expects compliance with its orders. The Court expects the matter to proceed with orderly diligence. The Court will not be lenient in the future if there is a non-observance of its directions. There is an added problem, if the applicant does decide for some reason to widen the grounds upon which it is seeking orders, of necessity, that would delay the hearing even further. A nice question would arise whether, in the exercise of its discretion, the Court would give leave to the applicant to include those matters in the existing rule nisi or direct that a separate application be made based upon lack of bona fides. On the facts already before the Court, the legal argument may be open. The next sittings of the Court in Hobart are due to be commenced on Monday, 3 April 1995. I adjourn the directions hearing in matter No TI 120 of 1994 to those sittings at a date to be determined by the registrar. In matter No TI 200 of 1994 I direct that the respondents file and serve the answering affidavits on or before Tuesday, 21 March 1995. I further direct that the directions hearing in this matter be adjourned to the same time as the directions hearing in matter No TI 120 of 1994. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of The Honourable Justice R.M. Northrop. Associate: Date: