Re Australian Transport Officers Federation v the State Public Services Federation [1981] FCA 10; (1980) 50 FLR; 438 (13 February 1981)

FEDERAL COURT OF AUSTRALIA

Re: THE AUSTRALIAN TRANSPORT OFFICERS FEDERATION
And: THE STATE PUBLIC SERVICES FEDERATION [1981] FCA 10; (1980) 50 FLR 438
No. 25 of 1980
Industrial Law - Conciliation and Arbitration

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Sweeney(1), Evatt(1) and Northrop(1) JJ.

CATCHWORDS

Industrial law - application for deregistration - failure to observe rules providing for alteration of rules re conditions of eligibility - Registrar's satisfaction that alteration made in accordance with procedures laid down in rules condition precedent to consent - applicant not estopped by decision of Deputy President - Motion to set aside originating process - Jurisdiction to hear application under s.143(1)(c) where rules alleged not to have been observed are rules prescribing method of altering rules

Conciliation and Arbitration Act, 1904, ss.88F, 139, 143

Conciliation and Arbitration - Registered organization - Application for deregistration of organization - Failure to observe rules providing for alteration of rules as to conditions of eligibility for membership - Decision of Conciliation and Arbitration Commission that alteration made in accordance with rules - Applicant not estopped thereby - Jurisdiction to hear deregistration application where ground relied upon alleges non-observance of prescribed method of altering rules - Conciliation and Arbitration Act 1904 (Cth), ss. 24, 25, 40, 41, 58(5), 59, 139, 143(1) (a), (c) - Federal Court Rules, O. 9, r. 7. Section 143(1) (c) of the Conciliation and Arbitration Act 1904 provides that any organization may apply to the court for an order directing the cancellation of the registration of an organization on the ground that: "(c) the rules of the organization, in so far as they provide for a matter in accordance with the prescribed conditions, have not been observed."

The applicant sought the deregistration of the respondent and relied under s. 143(1) (c) of the Act on the alleged failure of the respondent to observe those of its rules which prescribed the method of altering the rules. This was in terms a matter in accordance with the prescribed conditions within s. 143(1) (c) of the Act. The respondent by notice of motion pursuant to O. 9, r. 7 of the Federal Court Rules sought to set the application aside.

Held: Per curiam - (1) The rules of the respondent that prescribed the method of rule alteration were mandatory and in the instant case had not been observed.
(2) Although a decision of a Deputy Industrial Registrar under s. 139 of the Act that the alterations of the respondent's rules had not been in accordance with the relevant procedures established by the rules had been overturned by a decision of the Conciliation and Arbitration Commission (the Commission) the applicant was not estopped thereby because: (a) The decision of the Commission was not final and did not dispose of the matter. Blair v. Curran [1939] HCA 23; (1939), 62 CLR 464, applied. (b) It was doubtful whether the principles of estoppel in pais either res judicata, estoppel by cause or issue estoppel apply to proceedings in the Commission. Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia [1925] HCA 27; (1925), 36 CLR 442; Re Australian Actors' Union; Ex parte J. C. Williamson Ltd. (1912), 6 CAR 89; R. v. Australian Public Servants Association (1924), 20 CAR 115, referred to.
(3) The court had jurisdiction to act under s. 143(1) (c) where the rules alleged not to have been observed were rules prescribing the method of altering rules.

R. v. Gough; Ex parte Municipal Officers' Association [1975] HCA 30; (1975), 133 CLR 59, referred to.
(4) Notice of motion dismissed.

HEARING

Sydney, 1980, December 11-12; 1981, February 13. 13:2:1981
NOTICE OF MOTION.

Notice of motion to set aside application.

E. A. H. Laurie Q.C. and M. F. Moore, for the applicant.

P. J. O'Callaghan Q.C. and L. M. Lamprati, for the respondent.
Cur. adv. vult.

Solicitors for the applicant: Geoffrey Edwards & Co.

Solicitor for the respondent: A. J. Macken.
T. J. GINNANE

ORDER

1. The application be adjourned sine die.

2. Liberty is reserved to either party to apply on 48 hours notice.

3. The notice of motion be dismissed.

Orders accordingly.

DECISION

This is an application by the Australian Transport Officers Federation ("the applicant") seeking an order under s.143(1)(c) of the Conciliation and Arbitration Act, 1904 ("the Act") for the deregistration of the State Public Services Federation ("the respondent") on the ground that the respondent has not observed its rules so far as they provide for a matter in accordance with the prescribed conditions. The particular rules with which we are concerned are rules providing for the alteration of the rules which is in terms a matter in accordance with the prescribed conditions. Both parties are organizations registered under the Act.

The application before us arises out of an application made to the Industrial Registrar for his consent to an alteration of the rules of the respondent relating to conditions of eligibility for membership. The application was heard by Deputy Industrial Registrar Cogar. The applicant was one of 18 objectors to the respondent's application. During the proceedings before him, the Registrar heard argument on a preliminary question. This was whether the alteration to which the consent was sought had been made in accordance with the relevant procedures laid down by the rules of the respondent. Section 139(1) provides that such an alteration of rules shall not have effect unless the Registrar consents to it upon an application made as prescribed. Section 139(2) provides that the Registrar may consent to the alteration in whole or in part but shall not so consent unless he is satisfied that the alteration has been made in accordance with the relevant procedures laid down by the rules of the organization applying.

The Registrar ultimately held that the alteration had not been made in accordance with the relevant procedures and he thereupon dismissed the application. Pursuant to s.88F of the Act the respondent sought leave to appeal to the Conciliation and Arbitration Commission against the decision of the Registrar. Leave was granted and the Commission thereupon proceeded to hear and determine the appeal. The powers of the Commission under s.88(5) were exercised by a Deputy President. Upon the determination of the appeal the Commission upheld the appeal and quashed the decision of the Registrar who thereupon relisted the application for further hearing and has now fixed further dates for hearing.

Section 139 makes the jurisdiction of the Registrar to consent to an alteration subject to the condition precedent that he is satisfied the alteration has been made in accordance with the relevant procedures laid down by the rules of the organization. The allegation before us is that the respondent did not comply with the relevant procedures laid down by its rules in making the alteration and consequently its rules on this matter have not been observed and the applicant seeks a ruling on this issue. In addition to the application under s.143 by the applicant, there was before us a notice of motion issued in that application pursuant to Order 9 Rule 7 of the Rules of Court, seeking an order that the originating process be set aside.

On the matters being called, counsel for the parties asked that both the motion and the application be taken together. It was agreed that the issues to be argued were:

1. Whether the application under s.143 by the applicant is competent in the sense that there is jurisdiction to hear it.

2. Whether there had been an estoppel which would preclude it being heard; and

3. Whether the judgment of the Deputy President was correct and the condition precedent in s.139(2) had been complied with.

The Court thereupon heard the two matters together and proceeded to deal with the issues.

We take first the question whether the purported alteration to the rules to which consent was sought had been made in accordance with the relevant procedures laid down by the rules of the respondent being the organization applying for the consent of the Registrar.

The respondent is an organization consisting of six branches. Its rules provide for four federal officers. Provision is also made for a federal council and in r.8(a) it is said that the federal council shall be the supreme governing authority of the respondent. The federal council consists of the four officers together with three delegates from each branch. We were informed there were six branches. In addition to the federal council there is a federal executive but nothing turns on that. Rule 10 sets out in a number of sub-clauses various powers which may be exercised by the federal council. They include power to (i) make, amend or rescind any of the rules of the federation. Federal council is to meet at least two yearly and in addition at such other times as it deems necessary and whenever a meeting is convened by the federal executive under r.8(c) or by a request by or on behalf of three branches under r.8(d). Rule 11 deals with meetings of the federal council and it provides as follows:

(11) MEETINGS OF FEDERAL COUNCIL

(A) On the assembling of the Federal Council the Federal President or in his absence the Federal Vice-President or in the absence of both a delegate to Federal Council elected by the persons assembled for the meeting shall preside as Chairman.

(B) The Federal Secretary shall read the delegates' credentials and on the acceptance of same Federal Council shall unless otherwise determined by Federal Council proceed to business in the following order:

1. Hours of sitting and agenda.
2. Roll call.
3. Minutes of the previous Federal Council Meeting. Minutes of Special Federal Council Meetings (if any).
4. Appointment of a Returning Officer.
5. Correspondence.
6. Balance Sheet, Statement of Income and Expenditure and Auditor's Report.
7. Federal Secretary's Report.
8. Accounts.
9. Branch Reports.
10. Rules - new rules, amendments and rescissions.
11. Agenda items.
12. General business.
13. Declaration of any result proceeding from insufficient nominations received to require a ballot for any of the offices of Federal President, Federal Vice-President, Federal Secretary and Federal Assistant Secretary and statement by Returning Officer regarding arrangements for a ballot of all financial members of the Federation in respect of these Federal offices for which more than one nomination has been received.
14. Venue of next ordinary two-yearly Federal Council meeting.

(C) Federal officers, Federal Executive and any Branch may place any item of business on the agenda of the ordinary two-yearly meeting of Federal Council and on the agenda of any meeting of Federal Executive. All items from Branches for the Agenda of Federal Council shall be in writing and forwarded to the Federal Secretary not less than sixty (60) days prior to the date of such meeting and shall be circulated by the Federal Secretary to each Branch and member of Federal Council not less than thirty (30) days prior to the date of such meeting. A member of Federal Council who wishes Federal Council to consider any matter not on the agenda for that meeting and not involving any addition to or amendment or rescission of any Federal rule may have such matter considered if by two-thirds majority the assembled members resolve to consider the particular matter sought to be brought forward.

(D) If the Federal Executive or any Branch desires Federal Council to consider any addition to or amendment or rescission of any Federal rule notice shall be given to the Federal Secretary at least sixty (60) days prior to the ordinary two-yearly meeting of Federal Council or a Special Meeting of Federal Council specifying the new rule amendment or rescission sought and each Branch Secretary and member of Federal Council shall be given at least thirty (30) days written notice by the Federal Secretary that such new rule amendment or rescission is to be considered by Federal Council.

(E) Any three Branches may within ninety (90) days of the rising of Federal Council or Federal Executive by special resolution of their respective Branch Councils request a postal ballot of the whole of the financial membership of the Federation on any decision of Federal Council or Federal Executive specified in that request and such decision shall thereupon be submitted to a postal ballot of the whole of the financial membership. Any such ballot shall be conducted by the Federal Returning Officer at the expense of all the Branches each of which shall forward to the Federal Returning Officer within two weeks of being so requested by the Federal Returning Officer a cheque for so much of the total expenses of the postal ballot as estimated by the Federal Returning Officer as the financial membership of each Branch bears to the total financial membership of the Federation. The result of any such ballot shall be binding on the Federal Council or Federal Executive.

(F) Within thirty (30) days of the rising of the Federal Council or Federal Executive, the Federal Secretary shall forward to each Branch and to each member of Federal Council a copy of the draft minutes of that meeting.

Rule 11(C) provides methods by which federal officers, the federal executive or a branch may have items placed on the agenda for federal council or the federal executive. It also provides a method whereby a member of federal council may have that body consider a matter not on the agenda for a meeting providing it does not involve any addition to or amendment or rescission of any federal rule.

Rule 41 provides for the taking of a postal ballot of the federal council. It provides "any decision required to be made by . . . federal council may be made by post and any decision so made shall be as valid and effectual for all purposes as if that decision had been made by . . . federal council . . . in meeting assembled". This provision is subject to two provisos, the first that every member of federal council has an opportunity to vote and the second that 75% of those entitled to vote do vote. It is common ground that the procedures set out in r.11(D) were not followed and the question then is the validity of a resolution amending the rules carried by post in these circumstances.

In our view, r.41 itself answers the question. The resolution carried by ballot is to be as valid and effectual as if it had been carried at a meeting. If a resolution amending the rules had been carried at a meeting without the procedures prescribed by r.11(D) being adopted, it would not be effective to alter the rules. Two steps are contemplated by r.11(D). The first that 60 days notice of a wish by the federal executive or a branch to alter a rule be given to the federal secretary and second that 30 days notice be given by the federal secretary to each branch secretary and member of the federal council that such new rule amendment or rescission is to be considered by federal council. It will be noted that the language used is in terms mandatory and in this respect it differs from the provisions in r.11(C). It will be noted in addition that the draftsman in dealing with r.11(C) has taken care to ensure that the requirements of that rule are directory and not mandatory. It is common ground that the provisions of r.11(D) were not complied with.

It is difficult to think of any subject matter more important in the affairs of an organization than its own legislative power and in our view r.11(D) is properly treated as mandatory and we are satisfied the draftsman so intended it. Rule 11(D) prescribes expressly a procedure to be followed as a condition precedent to the exercise of the power to alter rules of the respondent conferred by r.10(i). This being so, had the resolution, the subject of the postal ballot, been carried at a meeting of the federal council it would not have been valid and would not have effected any alteration of the rules because of the failure to comply with the mandatory requirements of r.11(D). Under r.41 the resolution carried in the postal ballot is only as valid and effectual as it would be if it had been carried at a meeting and in these circumstances it does not effect an alteration of the rules. The fact that the requirement of the two provisos to r.41 have been complied with cannot and does not give validity to a decision taken in disregard of the mandatory procedures described expressly by r.11(D).

This being so, it is clear that the respondent in basing its application for consent under s.139 on this invalid amendment and in seeking to alter its rules relating to conditions of eligibility in the manner in which it is doing is not observing its rules dealing with the alteration of rules.

The question which then arises is whether the applicant is estopped by the decision of the Deputy President from so contending. It was put that estoppel did arise both by res judicata and issue estoppel. We do not think any question of res judicata arises. In Jackson v. Goldsmith, [1950] HCA 22; 81 C.L.R. 446 at 466, Fullagar J. described estoppel by res judicata:

"The rule as to res judicata can be stated sufficiently for the present purposes by saying that where an action has been brought and judgment has been entered in that action, no other proceedings can therafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of "estoppel" at all. It is a broad rule of public policy based on the principles expressed in the maxims interest rei publicae ut sit finis litium and nemo debet bis vexari pro eadem causa."

We doubt if one can describe the proceedings before the Registrar or the subsequent appeal to the Commission as being an action brought but even if it is, it is clear that the decision of the Deputy President confined as it was to a quashing of the decision on a particular point of the Registrar, did not dispose of the matter and that whatever cause of action there was still remains. Nor in our view can it be said that the decision was final. In the well known judgment of Dixon J., as he then was, in Blair v. Curran, [1939] HCA 23; 62 C.L.R. 464, his Honour said at p. 531:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

and at p. 532:

"The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."

It is important to have regard to the Conciliation and Arbitration Commission as established under the Conciliation and Arbitration Act. It is a tribunal clearly established by the legislature to act as a tribunal in determining matters arising under s.51(xxxv) of the Constitution and of course incidental matters. Its procedures are as specified in ss.39, 40 and 41 of the Act. At least since the 1956 amendment, the legislature has taken precise care not to vest it with judicial power. The description of it as a Commission rather than a Court is not of course really material but when regard is had to the Commission and its powers it is clear that it falls into a materially different class from, for example, the Board, whose powers were dealt with in Administration of Papua and New Guinea v. Dagra Guba, [1973] HCA 59; 130 C.L.R. 353.

It has been held that a decision of the Commission exercising power not judicial in nature did not operate by way of estoppel to preclude the Australian Industrial Court from deciding an issue as to the meaning of union rules. In The Queen v. Gough; Ex Parte Municipal Officers Association, [1975] HCA 30; 133 C.L.R. 59, the facts were that the Commission had decided that persons employed in certain callings by certain employers were within the conditions of eligibility rule of the Municipal Officers Association. Thereafter another union brought proceedings seeking the deregistration of the Municipal Officers Association on the ground that the rules of that organization had not been observed. It was argued that "the Industrial Court should have treated itself as bound by the determination of the Commission that there was an industrial dispute" and reliance was placed in particular on s.60(2). This argument was dealt with by the Court and rejected at pp.70-71. The only other case which has come to notice where the question of estoppel in proceedings of a wage fixing tribunal has arisen is The Queen v. Best, 1965 Tas. S.R. 123. There a wages board under the Wages Boards Act, 1920 had before it in 1964 a dispute between an employer and a union as to which determination applied to certain work. A compulsory conference was held and the President of the Wages Board decided to make no order. In 1965 another compulsory conference was held and the Court held that the principle of res judicata could not be invoked.

One remaining case is Re T.W.U., 1969 (N.S.W.) A.R. 98. In that case the Industrial Commission of New South Wales in court session in dealing with an application by the T.W.U. to have registered an alteration of its eligibility for membership rule held that certain objectors were not precluded on the basis of estoppel arising from a decision between the same parties on an application for a writ of prohibition by the Court of Appeal of New South Wales (see p. 104).

The Australian Industrial Court and the Federal Court have proceeded on the basis that in appropriate proceedings the Court is not precluded from investigating the validity of alterations to the rules of an organization which had been certified by the Registrar under s.139 of the Act, see for example, Krantz v. Maynes, (1967) 10 F.L.R. 134 and Kayne v. Banks (1978) 22 A.L.R. 255. Likewise in proceedings under s.140 and s.141 of the Act the Courts have proceeded on the basis that they were not precluded from investigating the validity of the rules of an organization which have come into effect upon the Registrar certifying that in his opinion the rules are not contrary to the provisions of s.140(1) of the Act. This practice supports our opinion that in this case no question of issue estoppel can arise.

We have considerable doubt whether the principles of estoppel in pais either res judicata, estoppel by cause or issue estoppel apply to proceedings in the Conciliation and Arbitration Commission. Some consideration was given to the question in Australian Commonwealth Shipping Board v. The Federated Seamen's Union of Australasia, [1925] HCA 27; 36 C.L.R. 442. In that case a distinction was made between the effect of unreversed decisions of a court exercising judicial power and the then Commonwealth Court of Conciliation and Arbitration exercising powers then regarded and treated as non-judicial.

It is true that both the Commission, when hearing the appeal from the Deputy Industrial Registrar and the Deputy Industrial Registrar, were under a duty to act judicially (Pitfield v. Franki[1970] HCA 37; , 123 C.L.R. 448; The Queen v. Commonwealth Conciliation and Arbitration Commission, [1969] HCA 10; 122 C.L.R. 546 at 552). The Commission does not sit to enforce existing private rights but rather to exercise an administrative arbitral system and create by means of conciliation or arbitration new rights and modify existing rights. The principles upon which estoppel is founded are stated to be the well known Latin maxims interest rei publicae ut sit finis litium and nemo debet bis vexari pro eadem causa. Whether this broad rule of public policy and these principles are applicable in the case of these functions seems to us a matter of considerable doubt. The statute shows the concern of parliament that a system of settling and preventing industrial disputes should be established and function and it is for this purpose of course that organizations are created and subjected to statutory qualifications. The manner in which the Commission functions under the statute seems to us to show that the view has been taken that there is greater public interest in the prevention and/or settlement of industrial disputes than in bringing litigation to an end or ensuring that nobody has to defend himself twice in the same case.

Research has not shown any case in which within the Commission a decision and order on an issue has been held to give rise to an estoppel. Indeed while it is a system which places an important emphasis on litigation by way of arbitration, that is an arbitration the characteristics of which are set out in the statute. It has marked differences from the arbitrations under, for example, the English Arbitration Act, 1950.

It may be mentioned that the procedures prescribed in ss.24 and 25 of the Act and the sections prescribing procedures such as ss.40 and 41, do not seem to contemplate the existence of either of the broad principles expressed in the maxims.

Indeed the Commission has held that in its award making powers, there is no onus on a party in cases where an award had been made between the same parties to show that something had occurred which made it proper to alter the pre-existing decision and prescription (Re Federated Ship Painters and Dockers Union of Australia, 94 C.A.R. 579 at p.611). Indeed the provisions of the Act seem quite inconsistent with the existence of estoppels.

A dispute comes before the Commission and after the exhaustion of conciliatory procedures the dispute is arbitrated upon. There are parties to the hearing and the award may bind only them or it may bind parties to the dispute who take no part in the hearing. An award is made for a period of time but even during that period it may be varied (s.59). Again, during the period fixed for the award to continue in force, a further industrial dispute may arise between the same parties and on the same subject matter and an award may then be made (s.58(5)).

Section 21 of the Act, enabling the Commission to act on its own motion, reinforces the view that estoppels do not apply. It is difficult to regard the hearing and determination of a dispute and the award or order resulting therefrom as a cause and we are of the view that clearly no estoppel arises in award proceedings.

It is difficult considering these provisions to regard what may be decided in an award as giving rise to an estoppel nor does it appear that the decision of the Commission on an appeal under s.88 falls within the circumstances in which issue estoppel arises: Halsbury, 4th edition, Volume 16, paragraphs 1527 and 1530. We think no difference is to be drawn between an award or an order determining industrial matters or the functions of the Deputy Industrial Registrar or the Commission on matters such as its control over organizations. In both of them there are wider aspects of public interest involved which in our view override the considerations of public interest expressed in the two maxims.

We have already pointed out the basis on which the Australian Industrial Court and this Court have proceeded in considering the validity of alterations to rules. In the particular case we have before us, the view that estoppel does not arise is fortified by a consideration of s.143(1)(a). The Registrar makes the same type of decision in registering an association as he does in certifying rules. In each case parties may appear in opposition. In the case of registration, an unsuccessful objector before the Registrar may then proceed under s.143(1)(a) and secure the cancellation of the registration, having regard to matters going to the right of the association to be registered (In Re Australian Actors' Union, 6 C.A.R. 89 per Higgins J. and Victoria v. Australian Public Servants Association, 20 C.A.R. 115 per Powers J.). This section seems to us clearly inconsistent with there being any estoppel arising in proceedings before the Commission or the Registrar. In our view then in this case no question of issue estoppel can arise.

The remaining question raised before us was whether this Court under s.143(1)(c) has jurisdiction where the rules alleged not to have been observed were rules prescribing the method of altering rules. It was claimed that s.139(2) and (4) constituted an exclusive code and the only method of dealing with the question of compliance or otherwise with such a rule. While the sub-sections of s.139 were varied by Act No. 108 of 1977, it had long been the practice of the Registrar and the Commonwealth Court of Conciliation and Arbitration to require that rules lodged for either certification or consent could only be dealt with under the then statutory provisions if they had been validly adopted according to the relevant rules of the organization: Gould v. Australian Railways Union, 87 C.A.R. 939. The Court at p. 940 said:

"This is an appeal by a member of the Australian Railways Union against the "act or decision" of the Industrial Registrar in registering certain purported alterations to that Union's rules.

The alterations in question were made in 1956 at a meeting of certain members of the Union purporting to be a meeting of its Australian Council which, according to the rules, exercises supreme control of the Union and alone has the power of making, amending and rescinding rules.

The critical question on the branch of the appeal so far heard is whether the alterations were validly made at that meeting."

A further example of the practice is shown in Re A.W.U., 95 C.A.R. 1005 at 1014.

It may be observed that Act No. 108 of 1977 not only amended s.139 in the manner stated but also s.143. Section 143 now provides in s.s.(1) the grounds on which an order for cancellation of registration may be sought and provides in s.s.(3c) for certain powers where the Court is satisfied that the rules of the organization have not been observed. Moreover in the case to which reference has been made already, The Queen v. Gough; Ex Parte Municipal Officers Association, the precise matter before the Court concerned an application by one organization to have the registration of another organization cancelled on the ground that it was failing to observe its rules. We see no reason why the insertion in specific terms in s.139 of the practice followed hitherto should be taken to have effected an amendment of s.143(1)(c).

A question whether rules have been observed may of course be raised by a member of an organization under s.141. The effect of s.143 is that under s.s.(1)(c) that question may be raised by any organization or person interested or the Minister or indeed the Registrar. A like position obtains with the powers under s.140. The question whether rules comply with that section may be raised by a member and like questions may be raised by any other persons under s.143(1)(b). No way was suggested in which the existence of these powers in s.141 or s.140 would make the scheme of the Act unworkable and we are satisfied that s.143(1)(c) is not to be read down so as to exclude rules providing for the manner of alteration of rules. The Court then in our view has jurisdiction to entertain this application.

Counsel for the applicant stated that the applicant would be satisfied if at the stage when the Court was satisfied that the rules had not been observed it had an opportunity of seeking an order under s.s.(3c). Before making any such order it was agreed that the persons against whom the order was sought would necessarily be given an opportunity of being heard. In our opinion we should express our view that the Court is satisfied that the rules of the organization, namely rules 10(i), 11(D) and 41 have not been observed. The matter will be adjourned. We will reserve liberty to apply to either of the parties. In these circumstances the notice of motion cannot succeed and the Court dismisses it.