Re John Thomas Roberts v the Buliding Workers' Industrial Union of Australia and Don Mcdonald [1987] FCA 32; 18 IR 39 (12 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: JOHN THOMAS ROBERTS
And: THE BULIDING WORKERS' INDUSTRIAL UNION OF AUSTRALIA and DON McDONALD
No. NSW 24 of 1986
Practice and Procedeure - Industrial Law
18 IR 39

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Practice and Procedure - striking out claims where no proceeding - whether power to strike out at any time - whether claims clearly unarguable.

Industrial Law - registered organization - entitlement to membership - whether jurisdiction to decide validity of demand for payment - performance and observance of the rules - method of commencing proceedings.

Conciliation and Arbitration Act 1904, ss. 140, 141,(1)(d), 144

Builders Labourers Federation (Cancellation of Registration- Consequential Provisions) Act 1986.

Federal Court of Australia Act 1976, s. 21

Builders Labourers Federation (Cancellation of Registration - Consequential Provisions) Regulations

Federal Court Rules o.1 r., o.4 rr. 6(1), 15, o. 11 r 16, o. 20 r. 2, o. 40 rr. 5, 6.

Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

General Steel Industries Inc. v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Cook v. Crawford (1982) 62 FLR 125

Mcleish v.Faure (1979) 40 FLR 462

HEARING

SYDNEY
12:2:1987

Solicitors for Applicant: Geoffrey Edwards & Co.

Counsel for Applicant: Mr. W.R. Haylen

Solicitors for First and Second Respondents: Taylor & Scott

Counsel for First and Second Respondents: Mr. J. Shaw Q.C., Mr. S. Rothman

ORDER

The claim the subject of the first paragraph numbered 5 in the application dated 29th September 1986 is dismissed.

The claim against the second respondent the subject of the paragraph numbered 6 in the said application is dismissed.

Otherwise the motions the subject of the notice of the motion filed on 29th October 1986 are dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

DECISION

The original application in this matter was filed on 29th September 1986. The specific relief sought in the application is as follows:

1. A declaration that the Applicant is entitled to membership

of the Building Workers' Industrial Union of Australia.

2. A declaration that the applicant is entitled to membership
of the Builders' Workers' Industrial Union of Australia
without the imposition of any condition of beyond the
conditions appearing in the Rules of the Building Workers'
Industrial Union of Australia.

3. A declaration that the Respondents requirement that the
Applicant lodge a bond in the sum of Ten Thousand Dollars
(10,000.00) as a condition of becoming a member of the
B.W.I.U. and as a condition of issuing him with a membership
card and a clearance to work in the industry covered by the
organisation, is null and of no effect.

4. A declaration that the requirement of the
Respondents that the Applicant pay into trust the
sum of $10,000.00 on account of legal costs arising
in matter G 164 of 1986 is a contravention of S.140
of the Conciliation and Arbitration Act in that it
imposes upon Applicants for membership a condition,
obligation or restriction which, having regard to
the objects of the Act and the purposes of the
registration of organisations under the Act is
oppressive, unreasonable or unjust.

5. A declaration that the Respondents and each of them
are in breach of S.141 of the Conciliation and
Arbitration Act refusing to admit the Applicant to
membership of the Organisation in accordance with
the Rules of the Organisation and in particular by
compliance with the Contributions Rules of the
Organisation.

5. A declaration that the Respondents in requiring the
Applicant to lodge a bond of $10,000.00 to secure
membership of the Organisation such being a
security for costs in matter G 164 of 1986 is in
contempt of the Court.

6. An order directing the Respondents to refund the
$10,000.00 bond received by them on behalf of the
Applicant."

The application was accompanied by an affidavit of the applicant. The following is a summary of the facts alleged in that affidavit.

2. The applicant holds a Certificate of Competency as a rigger class 1 and a Certificate of Competency as a dogman class 2. He has held those certificates since 10th January 1980. Since January 1980, he has worked as a rigger and scaffolder. Since the beginning of 1985 he has been employed by Alpine Erections and/or Murlar Pty. Limited as a rigger and scaffolder.

3. In matter No. G164 of 1986, the applicant sued a number of parties, alleging that an arrangement existed between Murlar Pty. Limited, the Building Workers' Industrial Union of Australia and others, requiring the applicant to resign from the Australian Building Construction Employees and Builders Labourers Federation and to join the Building Workers' Industrial Union of Australia, which arrangement was contrary to the provisions of s. 45E of the Trade Practices Act 1974. The applicant did not wish to resign his membership of the Australian Building Construction Employees and Builders Labourers Federation ("the B.L.F."), or to join the Building Workers' Industrial Union of Australia (the "B.W.I.U."). Prior to the final determination of the proceeding, the applicant continued in his employment with Murlar Pty. Limited by reason of an order of the Court made on 5th May 1986. On 22nd August 1986, matter No. G164 of 1986 was determined against the applicant. The Court awarded costs against the applicant. On the following day, Murlar Pty. Limited ceased to employ the applicant.

4. On 8th September 1986, the applicant attended at the offices of the B.W.I.U. He filled out an application for membership, indicating that he was a member of the B.L.F. He paid the sum of $77.00, as joining fees and contributions, and was issued with a receipt for that sum. The applicant was then told that he would have to face the Executive of the B.W.I.U. before being allowed to work, that he could not work with just the receipt, and that he would have to face the Executive before being given an O.K. card. He was told that this arrangement applied only to certain people. Indeed, whilst he was in the office, another person attended and apparently joined the B.W.I.U. and received an O.K. card, without being told that the would have to face the Executive. The applicant was also told that he would have to speak to the Assistant Secretary of the B.W.I.U., who was not then present.

5. A day or two later, the applicant met with the Assistant Secretary of the B.W.I.U., who told him that he would not receive an O.K. card from the B.W.I.U. until the Executive had considered his application. He was told that the Executive would meet on the following Tuesday. An arrangement was made for him to address the Executive, and he did attend and address the Executive on 15th September 1986. He was subsequently told that the Executive had decided that before he would be admitted to membership he would have to pay the sum of $10,000.00 into a trust account, to cover legal expenses incurred by the B.W.I.U. in defending the application made under the Trade Practices Act 1974. On 18th September 1986, at the offices of the B.W.I.U., the applicant was told by the Secretary of the B.W.I.U. that he was required to lodge $10,000.00 in trust before he would be admitted to membership.

6. On 19th September 1986, the applicant attended a meeting of scaffolders held at the offices of the B.W.I.U. This meeting discussed the Executive's decision. A motion was proposed that the scaffolders pay the $10,000.00 to the Union from a fighting fund maintained by them. The applicant spoke against this proposal. He did not believe that the B.W.I.U. had any right to require him to pay the $10,000.00 before giving him a ticket, and he was opposed to the scaffolders depleting their fighting fund in support of him. Despite his opposition, the proposal was adopted and the sum of $10,000.00 was paid to the B.W.I.U. on the applicant's behalf.

7. Pursuant to directions given in this proceeding, points of claim were filed on 8th October 1986. It is necessary to set out those points of claim in full:

"1. The Applicant is a qualified Rigger and Scaffolder
who is and has been employed within the industries
covered by the Industry & Eligibility Rule of the
First Respondent and in particular in relation to
the Industry covered by the First Respondent as a
result of Regulations made pursuant to the
provisions of the Builders' Labourers' Federation -
Cancellation of Registration (Consequential
Provisions) Act, 1986.

2. The First Respondent is an organization of
employees registered pursuant to the provisions of
the Conciliation and Arbitration Act, 1904.

3. The Second Respondent is the Secretary of the New
South Wales Branch of the First Respondent.

4. The Applicant has applied to join the First
Respondent. The Respondents have placed a
condition precedent (the said condition) to
granting membership of the organization to the
Applicant, the said condition being the payment of
$10,000.00 into Trust to cover the costs of the
First Respondent in Matter G No: 164 of 1986 which
were proceedings brought by the Applicant against
the First Respondent and others purportedly
pursuant to the provisions of the Trade Practices
Act, 1974.

5. At the time of the imposition of the said condition
by the Respondents no claim for costs had been made
on the Applicant by the First Respondent or any
other person acting on behalf of the First
Respondent.

6. At the date of filing this Application no claim for
the payment of money on account of costs had been
made on the Applicant by the Respondents or any
person acting on behalf of the First Respondent.

7. The First Respondent is a party to a Memorandum of
Understanding for the improvement of industrial
relations in the building industry.

8. The requirements of the said Memorandum of
Understanding and the practice in the building
industry in New South Wales is one of "no ticket -
no start" and that practice has existed at least
since the 14th August 1984 being the date on which
the Memorandum of Understanding became effective.

9. The arrangement in respect of "no ticket - no
start" is, inter alia, for the following employment
procedures:-

(a) a prospective employees(sic.) attends at the
workplace designated in any particular
advertisement;
(b) subject to the preference of employment
provisions operating in awards, the employee
is engaged;
(c) if the employee is not a Union member and the
site is in the metropolitan area, the employee
is then sent to the Union Office to obtain a
Union ticket;
(d) In non-metropolitan centres, a receipt for
payment to the job steward for the Union is
sufficient evidence of membership of Union;
(e) Having obtained either a Union ticket or in
the case of non-metropolitan sites, a receipt
from the job steward, the employee is entitled
to commence the performance of his or her
duty.

10. The requirements of the said Memorandum of
Understanding and the practice in the Building and
Construction Industry in New South Wales and the
effect of the said Memorandum of Understanding is
that building industry employers and Building
Industry unions require a person to be a financial
member of an appropriate union before that person
can commence in paid employment in the Building &
Construction Industry.

11. The Applicant may only work in the Building &
Construction Industry and in particular, for Murlar
Pty Limited, if he possesses a financial ticket and
"O.K. Card" from the First Respondent.

12. On some occasions the Applicant may be able to work
as a Rigger and Scaffolder in the Building &
Construction Industry by obtaining a current ticket
in the Australian Workers' Union but to be
employable in any practical sense within the
Building & Construction Industry the Applicant is
also required to possess a ticket in, and receive
an "O.K. Card" from, the First Respondent.

13. $10,000.00 has been paid into the Trust Account of
W.C. Taylor & Scott, Solicitors acting for the
Respondents in satisfaction of the Terms of the
said condition imposed by the Respondents on the
Applicant.

14. The $10,000.00 so paid into Trust on behalf of the
Applicant was paid from the Fighting Fund operated
by Riggers and Scaffolders employed in the Building
and Construction Industry employed by Murlar Pty
Limited and/or its associated companies.

15. It is just and proper that the sum of $10,000.00 be
repaid to the "Riggers and Scaffolders Fighting
Fund" by the Respondents.

16. The said condition imposed upon the Applicant by
the Respondents in order to obtain membership of
the First Respondent is not a requirement
authorised by the Conciliation and & Arbitration
Act or by the registered Rules of the First
Respondent.

17. The Applicant is entitled to membership of the
First Respondent free from any condition or
requirement in terms of the said condition.

18. The Respondents in requiring the Applicant to
comply with the said condition is in breach of
Section 141 of the Conciliation & Arbitration Act.

19. The Applicant is entitled to membership of the
First Respondent by complying with the provisions
of the registered Rules of the First Respondent.

20. In so far as it may be alleged that the Rules of
the First Respondent authorize the imposition of
the said condition those Rules are bad and contrary
to the provisions of the(sic.) Section 140 of the
Conciliation and Arbitration Act.

21. The Court has dealt with the question of costs in
matter G No: 164 of 1986 and the Respondents have
available to them the due processes of the Court to
enforce the Order for costs should the Order be
disobeyed by the Applicant.

In so far as the said condition seeks to enforce
the Court's Order for Costs other than in
accordance with the processes provided by the Act
by law, the Respondents are in contempt of the
Court.

22. The said condition is against public policy because
of the circumstances set out herein and further
because such a condition is and would be likely to
inhibit an applicant for membership or a member of
an organization from taking proceedings in the
Court or in any Court or Tirbunal(sic.) of
competent jurisdiction.

This is especially so where a system of "no ticket
- no start" is applied by employers and
organizations in the relevant industry.

23. The said condition is illegal.

24. By virtue of the foregoing the Applicant seeks the
Orders set out in the Application filed herein."

Points of defence were filed on 17th October 1986. In them, the respondents admitted the allegations made in paragraphs 1, 2 and 3 of the points of claim, denied or did not admit the remaining paragraphs, and raised some positive defences. On 29th October 1986, a notice of motion was filed by the respondents, seeking that the points of claim be struck out as disclosing no cause of action or no justiciable issue. Specific orders striking out paragraphs 18, 19 and 20 of the points of claim were also sought.

8. On 17th December 1986, Mr. J. Shaw Q.C. and Mr. Rothman moved the Court on behalf of the respondents. Mr. Haylen appeared on behalf of the applicant. The applicant applied to amend the application by adding a claim for a declaration that the first respondent, in imposing conditions upon the admission to membership of the applicant, was and is in contravention of s. 143(1)(d) of the Conciliation and Arbitration Act 1904. No notice had been given of this proposed amendment, and it was agreed between the parties that the respondents would reserve their rights with respect to the application to amend.

9. The first question which arises is whether it is open to the Court to strike out anything at this stage of this proceeding. Under o. 4 r. 6(1) of the Federal Court Rules, an applicant is required to file and serve with the application either an affidavit or a statement of claim, whichever is appropriate. It is clear from the definition of "pleading" in o. 1 r. 4 that a statement of claim is a pleading, but an affidavit is not. Nor are points of claim, which the Court in its Industrial Division commonly orders to be delivered for the purpose of clarifying issues, where an applicant has elected to file and serve an affidavit with the application. Order 11 r. 16 provides as follows:

"16. Where a pleading-

(a) discloses no reasonable cause of action or defence
or other case appropriate to the nature of the
pleading;

(b) has a tendency to cause prejudice, embarrassment or
delay in the proceeding; or

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceeding order that
the whole or any part of the pleading be struck out."

It is to be noted that this rule is applicable only to the striking out of a pleading or any part of a pleading. It cannot apply to the striking out of an affidavit or points of claim. Where no pleading is involved, it is necessary to resort to o. 20 r. 2, or to the possible inherent power of the Court to control its proceedings and to prevent abuse of its process. Order 20 r. 2 provides as follows:

2. (1) Where in any proceeding it appears to the
Court that in relation to the proceeding generally or in
relation to any claim for relief in the proceeding-

(a) no reasonable cause of action is disclosed;

(b) the proceeding is frivolous or vexatious; or

(c) the proceeding is an abuse of the process of the
Court,

the Court may order that the proceeding be stayed or
dismissed generally or in relation to any claim for
relief in the proceeding.

(2) The Court may receive evidence on the hearing of
an application for an order under sub-rule (1)."

10. Mr. Haylen did not concede the existence of an inherent power in the Court to strike out or dismiss proceedings where no cause of action is disclosed, and argued that o. 20 r. 2 is inapplicable to the present case. He relied upon the presence in o. 11 r. 16 of the words "at any stage of the proceeding", and the absence of those words from o. 20 r. 2, to argue that o. 20 r. 2 is only applicable before any step is taken by a respondent in a proceeding, other than the entry of an appearance. No authority was cited for this limited view of the application of o. 20 r. 2. No reason exists, other than the difference in wording between o. 20 r. 2 and o. 11 r. 16 for the adoption of such a view. It is sometimes legitimate to construe legislation by reference to the specific inclusion in one provision of a subject which is omitted from another. This process, however, is not an inflexible rule, but merely a guide to construction. In a case such as this, where the two provisions are not adjacent in the legislation, and deal with different subjects, it is difficult to say that the omission of the words "at any stage of the proceeding", or similar words, from o. 20 r. 2 was the deliberate act of the framer of the rules. In addition, it is clear that the intention of o. 20 r. 2 is to enable the Court to do justice between the parties to a proceeding at an interlocutory stage where no case is made out. It would therefore be wrong to imply into o. 20 r. 2 some limitation in point of time within which the powers it gives could be exercised. I therefore hold that o. 20 r. 2 is applicable at this stage of the proceeding, and proceed to consider the respondents' motion by reference to it. This conclusion makes it unnecessary to consider the question of an inherent jurisdiction of the Court to strike out proceedings where no real claim is made.

11. In the course of argument, counsel for both parties recognized that there is little point in striking out the points of claim, whilst leaving the application intact. The applicant was made aware by the notice of motion and its accompanying affidavit that the substance of the motion is to bring this proceeding to an end. I therefore consider whether the whole or any part of the application should be dismissed as disclosing no cause of action or no justiciable issue.

12. Mr. Shaw conceded that the tests to be applied on an application such as this are those laid down in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, at pages 84-85 per Latham C.J. and page 91 per Dixon J. (as he then was) and General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125, at page 129 per Barwick C.J. These tests have been stated in different ways, but the substance of them is that a respondent must show the claim to be clearly unarguable, in order to succeed on an application to dismiss a proceeding or part thereof.

13. The major issue in the present case is whether the applicant has made any sustainable application pursuant to s. 144 of the Conciliation and Arbitration Act 1904 ("the Act"). The relevant parts of that section are as follows:

"144(1) A person employed in connection with an
industry, or engaged in an industrial pursuit, is,
unless he is of general bad character, entitled, subject
to payment of any amount properly payable in respect of
membership, to be admitted as a member of an
organization (being an organization of employees in or
in connection with that industry or of employees engaged
in that industrial pursuit) and to remain a member so
long as he complies with the rules of the organization.

144(2) Sub-section (1) does not entitle a person to
be admitted as a member of an organization unless he is
included in a category of persons who are elibible for
membership of the organization under the rules of the
organization, or to remain a member if he ceases to be
so included and the rules do not permit him to remain a
member.

...

144(5) Where a question or dispute arises as to the
entitlement under this section of a person to be
admitted as, or to remain, a member of an organization,
that person, a person who is or desires to become the
employer of that person or the organization may apply to
the Court for a declaration as to the entitlement of
that first-mentioned person under this section.

..."

14. Mr. Shaw pointed to the requirement under sub-section (2) that a person be eligible for membership "under the rules" of the relevant organization. He tendered extracts from the rules of the B.W.I.U. which included r. 2, the rule which defines the categories of persons eligible to be members of the B.W.I.U. Rule 2 contains no reference to riggers or scaffolders. By virtue of the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Regulations, made pursuant to the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986, persons employed or usually employed in the classifications of scaffolder, rigger performing rigging work that is an integral part of, or is incidental to, a tradesman's work, or assistant rigger assisting a rigger specified in the immediately preceding classification in New South Wales, Victoria and the Australian Capital Territory became eligible to belong to the B.W.I.U. Mr. Shaw argued that the applicant could not bring himself within s. 144 of the Act, because his eligibility for membership of the B.W.I.U. arose from the Regulations, and not from the rules of the B.W.I.U. This argument overlooked the terms of r. 2 of the B.W.I.U.'s rules. Under that rule, persons "employed in, usually employed in or qualified to be and desirous of being employed in or seeking to be employed in or in connexion with the industry or industries, and/or occupation and/or calling, and/or vocations, and/or industrial pursuits of...carpenters or joiners" are eligible to be members of the B.W.I.U. The question of Mr. Roberts's eligibility cannot be resolved merely by his statement in an affidavit that he has worked as a rigger and a scaffolder. Nothing on the face of the affidavit excludes the real possibility that Mr. Roberts has been employed as a rigger or scaffolder in or in connection with the industry of carpenters or joiners. The question whether Mr. Roberts is eligible to join the B.W.I.U. under its rules, as distinct from under the Regulations, is incapable of resolution without the determination of questions of fact. Mr. Shaw conceded that if questions of fact arose, which depended upon evidence for their determination, the respondents' application to strike out or dismiss the proceeding could not succeed on this ground.

15. The second argument relied upon by Mr. Shaw with reference to the applicant's claim under s. 144 was that there did not exist at any relevant time any controversy as to the applicant's eligibility to become a member of the B.W.I.U. All that occurred, so Mr. Shaw said, was that a condition precedent to membership was imposed. The condition was met by the payment of $10,000.00, and the applicant was admitted to membership. Mr. Shaw made a clear statement to the Court that the respondents regard the applicant as a member of the B.W.I.U. Accordingly, Mr. Shaw submitted that no question or dispute arises as to the entitlement under s. 144 of the applicant to be admitted as, or to remain, a member of the B.W.I.U. Section 144(5) is therefore not fulfilled.

16. This argument is undoubtedly persuasive, but the Court cannot view the matter at this stage as if it were disposing of the matter finally. The question is whether the applicant has an arguable case. Section 144(5) refers to a question or dispute "as to the entitlement under this section of person to be admitted as a member". The entitlement itself comes from s. 144(1). It is an entitlement to be admitted "subject to payment of any amount properly payable in respect of membership". It is arguable that the payment of $10,000.00 was not an amount properly payable in respect of membership, and that therefore a question or dispute does arise as to the entitlement of the applicant to be admitted to membership of the B.W.I.U. without having been forced to make that payment. In other words, the view might be taken that s. 144(5) gives to the Court jurisdiction to determine whether an amount demanded as a condition precedent for membership of an organization is an amount properly payable in respect of membership. This may not be the view which the Court takes on a final determination of the matter, but for present purposes, in the absence of clear authority, it must be regarded as arguable.

17. One further point, which was not argued, arises from paragraph 5 of the respondents' points of defence, which alleges:

"5. Further, and in the alternative, the Respondents
say that a person who is and remains in breach of
an order of the Federal Court of Australia to pay
costs to another party in accordance with law may,
for the time during which he declined so to pay, be
regarded as a person of general bad character
within Section 144(1) of the said Act."

There can be little doubt that one of the questions with which the Court may deal under s. 144(5) of the Act is the question whether a person lacks the entitlement to become or remain a member of a particular organization under s. 144(1) because he or she is of general bad character. It might be thought that paragraph 5 of the points of defence raises this issue against the applicant. If so, it is difficult for the respondents to contend that the application raises no justiciable issue.

18. It follows that the claims in paragraphs 1 and 2 of the declaration are arguable and must be allowed to proceed.

19. Paragraphs 3 and 4 of the application seek declarations relating to the requirement for the payment of $10,000.00. To the extent to which these declarations might depend upon the application of s. 140 of the Act, Mr. Shaw took the point that the proceeding had not been commenced by Rule to Show Cause, as is required by o. 4 r. 15 of the Federal Court Rules. It is true that, in order to obtain any relief of the kinds which the Court may give under s. 140(5D), a member of an organization must apply to the Court under s. 140(2), and that application must comply with o. 4 r. 15 of the Federal Court Rules. It is now well established, however, that questions of the effect of s. 140(1) may arise in proceedings other than those brought under the section itself, and, when arising, must be considered. See the discussion in the judgment of Sheppard J., with whom Keely J. concurred on this point, in Cook v. Crawford (1982) 62 FLR 34, at pages 109-116, and the cases referred to in that discussion. It is therefore arguable that, in a proceeding in which the applicant relies upon s. 144, where a question arises of any contravention of s. 140(1) by a rule of an organization, or of the validity of any act which depends upon such a rule, the Court is bound to decide those questions as a step towards determining the application under s. 144. The resulting determination under s. 140 will not have the same effect as will relief granted under that section itself, but will have effect as between the parties to the particular proceeding.

20. As to whether it is appropriate to seek declarations, Mr. Haylen relied on s. 21 of the Federal Court of Australia Act 1976, and upon the judgment of the Full Court in McLeish v. Faure (1979) 40 FLR 462, at pages 471-476. There can be no doubt that the Court has the power to grant a declaration as to the effect of s. 140 upon the rules of an organization, even in a proceeding not brought under the section itself. It is therefore arguable that the claims in paragraphs 3 and 4 of the application should proceed. Whether a declaration will be granted at the trial is, of course, an entirely separate question.

21. The first paragraph numbered 5 in the application seeks a declaration that the respondents "are in breach of s. 141" of the Act. Section 141 provides for applications to the Court by members of organizations, seeking orders giving directions for the performance or observance of the rules of organizations, and for the jurisdiction of the Court to hear and determine such applications. With one exception, it is entirely inappropriate to allege "breach" of the section. The exception is that, if an order had already been made pursuant to s. 141, it might be said that a person failing to comply with the order of the Court, and therefore exposed to the penalty provided for by s. 141(4), was in "breach" of the section. There is no suggestion in the present case that any order pursuant to s. 141 of the Act has been made. In addition, o. 4 r. 15 of the Federal Court Rules provides for the commencement of proceedings under s. 141 by Rule to Show Cause. There is no authority that the Court may consider s. 141 in any proceeding other than one brought by this means. The manner of bringing a proceeding under s. 141 is not merely a matter of form; a judge of the Court considers an application for a Rule to Show Cause, and determines that there is an arguable case, before such a rule is granted. Consequences for the applicant also flow from the granting of a Rule to Show Cause, by virtue of s. 141A of the Act, which provides for financial assistance to an applicant "where a rule has been granted" under s. 140 or s. 141. It is most inappropriate that the Court should attempt to consider s. 141 other than in a proceeding properly brought. The claim in the first paragraph numbered 5 of the application will therefore be dismissed.

22. The second paragraph numbered 5 in the application seeks a declaration that the respondents are in contempt of court. Order 40 r. 5 of the Federal Court Rules deals with applications for punishment for contempt; it appears to be mandatory in form, and requires that an application be made by motion on notice. Order 40 r. 6 requires a statement of charge, specifying the contempt, to be filed with the notice of motion or application. In the present case, no punishment is sought. What is sought is merely a declaration. It is difficult to see of what use a declaration could be, and even more difficult to envisage the Court granting such a declaration. Little argument was directed to this question on the application by the respondents, and I am reluctant to dismiss the claim in those circumstances. At present, I am not persuaded that the claim for a declaration as to contempt is unarguable.

23. The order sought in paragraph 6 is an order directing both of the respondents to refund the $10,000.00. As against the B.W.I.U., such a claim might be based upon the alleged incapacity of the organization to demand that sum, with the consequence that the money is money had and received by the B.W.I.U. to the use of the applicant. Plainly, there are difficult questions involved, and the claim must be regarded as arguable. Not the least of the difficulties is the fact that the persons who paid the $10,000.00 are not parties to the proceeding. Nor are the persons who are alleged to hold the sum in trust. An interesting question may arise whether the Court can compel payment to other parties who do not seek such payment in the proceeding. As against the second respondent, the claim must be based on s. 141 of the Act. No allegation in the applicant's affidavit, or in the points of claim gives rise to any other conclusion. In particular, it is not alleged that the second respondent is in some way a constructive trustee of the money for the applicant. For the same reasons as I have given in relation to the first paragraph 5 of the application, this claim against the second respondent must be dismissed.

24. In many ways, the removal of the claims under s. 141 for the return of the money no doubt deprive the applicant of a great deal of what he sought in this proceeding. The dismissal of these claims at the present time, however, does not prevent the applicant from seeking relief pursuant to s. 141 of the Act in the proper way. It should be emphasized that nothing said in this judgment about the remaining claims should be taken to encourage the applicant in the belief that he will necessarily be granted the relief he seeks, or to encourage the respondents in the belief that they will necessarily succeed. All that is determined is that the remaining claims are arguable.

25. The order of the Court will be that the claim the subject of the first paragraph numbered 5 in the application and the claim the subject of paragraph 6 in the application as against the second respondent are dismissed. Otherwise, the motions the subject of the notice of motion filed on 29th October 1986 are dismissed.

26. I have left open the application to amend by adding a further claim for a declaration that the B.W.I.U. has acted in contravention of s. 143(1)(d) of the Act. Full argument on that application to amend has not yet been heard.