Duff v McCarney [2008] FCA 1429 (15 September 2008)

Last Updated: 18 September 2008

FEDERAL COURT OF AUSTRALIA

Duff v McCarney [2008] FCA 1429

Federal Court Rules O 48 r 7, O 48 r 8
Workplace Relations Act 1996 (Cth) Schedule 1 (s 164, s 164A)
























ALAN DUFF v STEPHEN MCCARNEY and EARL SETCHES
NSD 1452 OF 2008

BUCHANAN J
15 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1452 OF 2008

BETWEEN:

ALAN DUFF Applicant

AND:	STEPHEN MCCARNEY First Respondent EARL SETCHES Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	15 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Stephen McCarney and Earl Setches appear before the Federal Court of Australia at 9.30am on Thursday 18 September 2008 in the state of NSW at Sydney to show cause why orders should not be made in the rule to show cause upon which the applicant moves and which is supported by the affidavits of Alan Duff and David Kelly affirmed on 15 September 2008.

2. To the extent necessary, time required for service of the rule to show cause and supporting affidavits is abridged.

3. Service may be effected in the fashion sought in paragraphs (a) and (b) on the third page of the rule to show cause.

4. The further hearing of this matter is adjourned to 9.30am on Thursday 18 September 2008.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1452 OF 2008

BETWEEN:

ALAN DUFF Applicant

AND:	STEPHEN MCCARNEY First Respondent EARL SETCHES Second Respondent

JUDGE:	BUCHANAN J
DATE:	15 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 This matter comes before me as Duty Judge. The applicant, Mr Duff, seeks an ex parte order under O 48 r 8 of the Federal Court Rules in the form of a rule to show cause. Order 48 deals, so far as is relevant to the present matter, with a mechanism for seeking orders under ss 164 and 164A of Schedule 1 of the Workplace Relations Act 1996 (Cth) (‘the Act’). Section 164 permits the Court to make an order directing the performance or observance of a rule of an organisation registered under the Act. Section 164A permits the Court to make an order directing that specified things be done to rectify a breach of such a rule.

2 An application for a rule to show cause under O 48 must be supported by an affidavit, which states certain identified matters (O 48 r 7(2)). Order 48 r 7(4) provides:

‘7(4) If the application is made under section 164 of the RAO Schedule, the affidavit must state:

(a) the nature of the order sought by the applicant; and

(b) each rule of the organisation the applicant seeks to have performed or observed by a person who is under an obligation to perform or observe the rule; and

(c) the ground relied on by the applicant to establish the obligation of the person to perform or observe the rule.’

(The RAO Schedule is Schedule 1 of the Act.)

3 Order 48 r 7(4A) provides:

‘7(4A) If the application is made under section 164A of the RAO Schedule, the affidavit must state:

(a) the nature of the order sought by the applicant; and

(b) each rule of the organisation the breach of which the application seeks to rectify; and

(c) the facts and other reasons relied on by the applicant in support of the application.’

4 The application for a rule to show cause was supported by affidavits affirmed by Alan Duff, the applicant and David John Kelly. Mr Duff deposed that he is the Branch Assistant Secretary of the NSW Branch of the Plumbing Division (‘the Division’) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘the union’), which I take to be an organisation registered under Schedule 1 of the Act.

5 Mr Duff deposed that the first respondent, Stephen McCarney is the Branch Secretary of the NSW Branch of the Division and the second respondent, Earl Setches, is the Federal Secretary of the Division. Both Mr Duff and Mr Kelly identified Mr Kelly as a person who was employed as a temporary organiser in the NSW Branch of the Division, whose employment was purportedly terminated by Mr McCarney by letter dated 10 September 2008.

6 Mr Duff’s affidavit drew attention to rr 48 and 55 of the Rules of the Division. Rule 48 empowers the committee of management of a branch to conduct the business of a branch, and, in particular, to employ temporary organisers. Rule 55 sets out the duties of a branch secretary, but does not, by its terms, empower a branch secretary either to employ temporary organisers, or terminate their employment. Mr Duff deposed that no resolution had been passed by the branch committee of management to terminate Mr Kelly’s employment, or approving the termination of his employment by Mr McCarney. Mr Pearce, who appeared today for the applicant, has informed me that the committee of management is to meet at 1 pm on Wednesday and that there will be a special meeting of the Branch held thereafter.

7 Mr Kelly’s affidavit gave a short account of the circumstances in which he said he came to be employed by the NSW Branch, his duties from about 24 September 2007, and the circumstances in which, on 12 September 2008, he was handed, by Mr McCarney, the letter purporting to terminate his employment.

8 The orders which Mr Duff will seek, if the rule to show cause is granted, include orders by way of interim and interlocutory relief. In submissions before me today, Mr Pearce has asked for immediate interim relief, arguing that relief is available in appropriate circumstances, and that, as a matter of discretion, there is a sufficient case made out to warrant the grant of such relief.

9 There are, however, in my view, a number of reasons why there is considerable doubt whether power to grant relief of the kind sought exists at the present moment and, if it does, whether it should be granted as a matter of discretion. First, orders under ss 164 and 164A of Schedule 1 of the Act must not be made before any person against whom the order is sought has an opportunity of being heard (s 164(2) and s 164A(2)). In my view, therefore, there is considerable doubt whether there is any power at the present time to grant interim relief. Secondly, under s 164(3) the Court may refuse to deal with an application for an order, unless it is satisfied that the applicant has taken all reasonable steps to try to have the matter that is the subject of the application resolved within the organisation. There is, strictly speaking, no evidence at the present time of what, if any, internal steps have been taken, beyond litigation being threatened on both sides, although, as I earlier indicated, Mr Pearce has informed me that the committee of management will meet within a couple of days. Thirdly, it is very probably open to the committee of management to ratify Mr McCarney’s actions, which were stated in his letter to Mr Kelly to be due to the unsatisfactory financial position of the branch, rather than for any expressed concern about the performance of Mr Kelly’s duties.

10 It is likely that the position taken by the committee of management at its meeting on Wednesday may be influential on the question of whether interim relief should be granted. Should the committee of management ratify Mr McCarney’s actions to terminate Mr Kelly’s employment, then the proceedings may lose much, or all, of their present foundation. On the other hand, should the committee of management decline to ratify Mr McCarney’s actions, then they will stand exposed much more clearly to the challenge which has been brought against them. I am not satisfied, as a matter of discretion, that interim relief in the present case should be granted at the moment especially when Mr McCarney has not had an opportunity yet to be represented.

11 Under O 48 r 7(1) an application for a rule to show cause may be made ex parte. At the present time all that requires attention is whether the rule to show cause should be made. I am satisfied that Mr Duff has met the requirements of O 48 r 7(4) and r 7(4A), so far as he seeks a rule to show cause against Mr McCarney. I did have some initial concern about whether an adequate case had been made to grant a rule to show cause against Mr Setches. However, Mr Pearce has drawn my attention to the fact that in a letter dated 12 September 2008 Mr Setches, when replying to solicitors acting for Mr Duff and Mr Kelly, stated that Mr Kelly was not an employee of the branch. It is certainly arguable that Mr Setches, by this statement, endorsed and affirmed Mr McCarney’s conduct in terminating Mr Kelly’s employment. Although it is less clear that Mr Setches may be said to be in direct breach of any particular rule of the union it does seem apparent that he subscribes to the events which have so far taken place. He may, in addition, be in a position to take steps to rectify any breach which may be found to have occurred. In the circumstances, I’m satisfied that it is appropriate to grant the rule to show cause against him also.

12 Mr Pearce has asked that the matter come back before the Court shortly after the meetings to be held on the coming Wednesday. This matter will, in the ordinary way, be assigned to the docket of a judge of the Court. The docket judge will be Flick J. Flick J is not in a position to deal with the matter on Thursday. I will therefore list the matter before me as Duty Judge at 9.30 am on Thursday for directions and to hear a report on the meetings which are scheduled to take place on Wednesday. I will deal with any application which might then be made by any party. However, unless some case can be made out for urgent relief, my present inclination is to not intrude into the conduct of the matter by the docket judge, unless that appears unavoidable in the interests of justice.

13 I make the following orders:

(1) Stephen McCarney and Earl Setches appear before the Federal Court of Australia at 9.30 am on Thursday, 18 September 2008, in the State of New South Wales at Sydney, to show cause why orders should not be made in the rule to show cause, upon which the applicant moves, and which is supported by the affidavits of Alan Duff and David Kelly, affirmed on 15 September 2008:

(2) To the extent necessary, I abridge the time required for service of the rule to show cause and the supporting affidavits:

(3) Service may be effected in the fashion sought in paragraphs (a) and (b) on the third page of the rule to show cause:

(4) The further hearing of the matters be adjourned to 9.30 am, Thursday, 18 September 2008.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 18 September 2008

Counsel for the First Applicant:

Mr J Pearce

Date of Hearing:	15 September 2008
Date of Judgment:	15 September 2008