FEDERAL COURT OF AUSTRALIA
Fegan v Kathy Jackson [2009] FCA 338
Workplace Relations Act 1996 (Cth) Schedule 1, ss 159, 164, 338(1) of Schedule 1
Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) regs 3, 12, 126
McGee v Sanders (No 2) (1991) 32 FCR 397 referred to
Conquo v Jackson [2009] FCA 45 referred to
VID 190 of 2009
KENNY J
9 APRIL 2009
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 190 of 2009 |
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BETWEEN: |
PAULINE FEGAN Applicant
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AND: |
KATHY JACKSON Respondent
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JUDGE: |
KENNY J |
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DATE: |
9 APRIL 2009 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 On 31 March 2009, having had the benefit of the parties’ submissions, I made interim orders sought by the applicant, Pauline Fegan. I stated that I would deliver reasons at a later date. What follows are my reasons for making the orders that day.
2 Ms Fegan brings this proceeding as President of Victoria No. 1 Branch of the Health Services Union, and a member of the Union. The respondent, Ms Kathy Jackson, is the National Secretary of the Union.
3 Ms Fegan sought interim orders pursuant to s 164(4) of Schedule 1 to the Workplace Relations Act 1996 (Cth) requiring Ms Jackson to apply forthwith to the Industrial Registrar for certification of changes to the rules of the Union (in so far as they related to the internal management of Victoria No. 1 Branch). These changes were purportedly made by the Branch Committee on 24 February 2009.
4 In essence, Ms Fegan contended that, under the Union’s rules, Ms Jackson, as National Secretary, was required to apply to the Industrial Registrar for certification of the rule changes. Counsel for Ms Jackson opposed the making of interim orders sought by Ms Fegan.
5 The applicant relied on her own affidavit affirmed on 26 March 2009. The respondent filed no answering affidavits.
BACKGROUND
6 For present purposes, the facts can be taken to be as follows:
(1) The Union is and was at all material times registered under the Workplace Relations Act. The Union has rules registered under that Act.
(2) There is a dispute within the Branch, which is affecting branch management.
(3) On 24 February 2009, at the Branch Committee meeting of Victoria No 1 Branch, the Branch Committee resolved, pursuant to rule 49(d) of the Union’s rules, to amend the Union’s rules in certain specific respects “insofar as they apply to the Victoria No 1 Branch”. The Branch Committee passed the relevant resolution “with a vote of twelve members in favour and one against”.
(4) On 5 March 2009, Ms Fegan sent a letter to Ms Jackson informing her of the Branch Committee’s resolution (referred to in (3) above), and requesting that Ms Jackson comply with rule 49(e) of the Union’s rules by applying to the Industrial Registrar for certification of the changes to the rules. The letter asked Ms Jackson to “confirm by 4.00pm, Thursday 12 March 2009 that you have taken the appropriate steps”. The letter enclosed a copy of the declaration referred to in (5) below.
(5) Also on 5 March 2009, Ms Fegan sent a letter to the Industrial Registrar enclosing a declaration signed by Ms Fegan in respect of the changes to the Union’s rules. The declaration was entitled “Notice Under Regulation 126 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003” and set out the particulars of the rule alterations. The declaration concluded with the following notation:
Declaration by Authorised Officer
In accordance with reg 126 I, Pauline Fegan, President of the Victoria No 1 Branch of the Health Services Union, pursuant to rule 54(ii) of the Rules of the Health Services Union, declare:
(a) that the alteration was made in accordance with the rules of the Health Services Union;
(b) that the alteration was made by resolution of the Branch Committee of the Victoria No 1 Branch in accordance with rule 49(d) of the Rules of the Health Services Union on 24 February 2009;
(c) that the particulars set out in this notice are true and correct to the best of my knowledge.
[Signed] Pauline Fegan
Date: 3 March 2009
(6) On 10 March 2009, Ms Fegan received an email from a Research Officer at the Australian Industrial Relations Commission requesting further information regarding the rule changes. Ms Fegan purported to provide the requested information by letter dated 18 March 2009.
(7) On 12 March 2009, Ms Jackson wrote to Ms Fegan acknowledging her 5 March 2009 letter and saying, amongst other things, that Ms Jackson was writing to the Branch Secretary “seeking his advice as to the notice of the meeting in question, the minutes of any resolution, and the manner in which any rule change is said to have been made, in order that I can satisfy myself that the Branch has made rules”. Ms Fegan received this letter on 16 March 2009.
(8) On 17 March 2009, Ms Fegan sent an email to Mr Jeff Jackson, the Branch Secretary of Victoria No 1 Branch, requesting that he advise her (amongst other things) as to whether he had: (1) advised the National Secretary of the rule changes passed by the Branch Committee on 24 February 2009; and (2) displayed the rule changes on the Branch’s website.
(9) On the same day, 17 March 2009, Mr Jackson sent a letter to Ms Fegan, by fax, stating that he attached the correspondence from and to the National Secretary regarding the rule changes.
(10) As at the time of this application for interim orders, Ms Fegan had not been informed whether Ms Jackson intended to apply to the Industrial Registrar for certification of the changes to the Union rules, and Ms Fegan was concerned that Ms Jackson had no intention of complying with what Ms Fegan understood to be the requirements of rule 49(e) or Regulation 126 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth).
LEGISLATION
7 With this background in mind, it is convenient to turn to the relevant legislative provisions.
8 Schedule 1 to the Workplace Relations Act – “Registration and Accountability of Organisations” – contains s 164, which provides as follows:
(1) A member of an organisation may apply to the Federal Court for an order under this section in relation to the organisation.
(2) Before making an order under this section, the Court must give any person against whom the order is sought an opportunity of being heard.
(3) The Court may refuse to deal with an application for an order under this section 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.
(4) At any time after the making of an application for an order under this section, the Court may make any interim orders that it considers appropriate and, in particular, orders intended to further the resolution within the organisation concerned of the matter that is the subject of the application.
(5) An order under subsection (4) continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of the proceeding concerned.
(9) In this section:
order under this section means an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.
9 Section 338(1) of Schedule 1 provides that the Court has jurisdiction “with respect to matters arising under this Schedule in relation to which … applications may be made to it under this Schedule”.
10 In R v Joske; ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194, at 212-213, Mason and Murphy JJ discussed s 141 of the Act 1904, which is a forerunner of s 164, stating:
The judgments of this Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [(1945) 70 CLR 141] make it perfectly clear that sub-s (1) of s 141 is not confined to the making of orders directing the performance or observance of a particular rule or particular rules of the organization, as the prosecutors would have it, and that it extends, as its words explicitly state, to the giving of directions for the performance or observance of any of the rules of an organization, that is, for the doing of acts which will conduce to the performance or observance of such rules.
…
The power to make interim orders … is likewise not limited to the giving of directions to perform or observe rules. The terms of the grant to the Court of authority ‘to make such orders as it thinks fit in relation to the matters to which the proceedings relate’ indicate that the Court has a wide discretion as to the form of order to be made. The exercise of this discretion cannot be restricted to the making of orders for the performance or observance of the rules, or for that matter to directions as to matters which will conduce to performance or observance of the rules. The history … suggests that in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bears a relationship ‘to the matters to which the proceedings relate’. …
The only relevant limitation on the Court’s power to pronounce an interim order is to be found in the concluding words of the sub-section. Yet they are not susceptible of the construction which the prosecutors seek to place upon them. It is impossible to read ‘the matters to which the proceedings relate’ as signifying no more than the relief claimed by the applicant in the proceedings, or, for that matter, than the issues which are raised for decision in the proceedings. The words, we think, signify the controversy between the parties to which the proceedings relate, whether or not it be crystallized as an issue in these proceedings or in the form of the relief sought.
11 For reasons appearing below, before turning from the Schedule, it is useful to note s 159, which relevantly provides that:
(1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Schedule, the Workplace Relations Act, awards and collective agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
…
(3) An alteration of rules that has been certified under subsection (1) takes effect on the day of certification.
…
TEST FOR INTERIM ORDERS
12 The parties did not dispute the nature of the test to be applied on an application, under s 164(4), for interim orders. In McGee v Sanders (No 2) (1991) 32 FCR 397, at 402-403, Gray J discussed the test to be applied, saying:
In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants’ entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make “such interim orders as it considers appropriate”. Parliament has not chosen to use the word “injunction”. The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis.
Recently, in Conquo v Jackson [2009] FCA 45, at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction.
13 Whilst bearing in mind the test for a conventional interlocutory injunction, in such a case as this, it is and was “the duty of the court to do justice as best it can”.
THE RULES
14 In order to understand the applicant’s application for interim orders, it is necessary to refer to and, in some instances, set out certain of the Union’s rules.
15 Under the rules, the Union is made up of various Branches, including Victoria No 1 Branch: see rule 48. Rule 44(a) provides that all branches “shall be completely and absolutely autonomous within the ambit of these Rules, and shall be responsible for their own Government and administration”. Rule 44(a) further provides that:
The Branch shall be the basic unit of the Union, and shall possess full and adequate powers to conduct its own affairs and to seek its objectives under the Rules. The control of the Branch resides exclusively in the members of the Branch, who shall be bound by these Rules. This Rule can never be altered except by a ballot of all financial members of the Union. Such alteration to be carried must receive a majority vote of two-thirds of the financial members of the Union.
16 Rule 49 deals with “Branch Management”. This rule relevantly provides:
(a) The Government, management and the control of the affairs of each branch shall, subject to these rules and any proper direction of the National Council or the National Executive be vested in a Branch Committee. …
(b) …
(c) Subject to clause (d) hereof each branch shall be bound by these rules.
(d) Each branch may make rules from time to time for its own internal management and may therefore add to, amend, rescind or alter any of these rules insofar as they relate to the internal management of a branch through its Branch Committee of Management or by a special general meeting of its members.
(e) Any rule or rules made by a branch pursuant to clause (d) of this rule shall be forwarded to the National Secretary who, upon receipt of any information and documentation necessary for the purpose, shall forthwith apply to the Industrial Registrar for certification of the same and upon certification such rule or rules shall form part of the rules of the Union for all purposes other than Rule 71 but shall apply only to the Branch initiating the same.
(f) …
[Emphasis added.]
17 Rule 32(f) states that the National Secretary “shall … lodge and file with and furnish to the Industrial Registrar all such documents as are required to be lodged, filed or furnished under the said Act at the prescribed times and in the prescribed manner”. Rule 54, upon which the applicant also relied, deals with the “Branch President”, saying:
The President of a branch shall be the official head of the branch and –
(i) shall preside at all meetings of the branch and the Branch Committee and preserve order thereat so that business may be conducted in due form with propriety and in conformity with standing orders;
(ii) shall sign all documents requiring his/her signature as official head of the branch and shall sign all minutes of the branch duly confirmed in the presence of the meeting confirming the same;
(iii) shall instruct the Secretary to call meetings of the Branch Committee and General or Special Meetings of members when necessary;
(iv) shall generally ensure the well-being of the Union and its members and the carrying out of the objects of the Union within the area administered by his/her branch.
[Emphasis added.]
WORKPLACE RELATIONS (REGISTRATION AND ACCOUNTABILITY OF ORGANISATIONS) REGULATIONS 2003
18 The Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 (Cth) also contain requirements regarding the alteration of Union rules that bear on the present application. Regulation 126 of these Regulations provides that:
(1) For subsection 159(1) of the RAO Schedule, if an alteration of the rules (other than the eligibility rules) of an organisation is made, the organisation, within 35 days after the alteration is made, or within any additional period a Registrar allows, must:
(a) lodge in the Industrial Registry a notice setting out the particulars of the alteration; and
(b) if the organisation has a web site – publish on its web site a notice that the notice mentioned in paragraph (a) has been lodged.
(2) The notice must contain a declaration, signed by an officer of the organisation authorised to sign the declaration, stating:
(a) that the alteration was made in accordance with the rules of the organisation; and
(b) the action taken under those rules to make the alteration; and
(c) that the particulars set out in the notice are true and correct to the best of the knowledge and belief of the signatory.
(3) A Registrar may refuse to certify, under subsection 159(1) of the RAO Schedule, an alteration of the rules unless this regulation is complied with.
19 Regulation 3 defines “authorised, in relation to a person making, signing or lodging a document in the Industrial Registry” as “a person authorised in accordance with regulation 12”. Regulation 12(1) provides that:
(1) An officer of an association, organisation, branch … is authorised to make, sign or lodge any document … under the RAO Schedule or these Regulations if the officer is authorised to do so:
(a) by the association, organisation, branch …; or
(b) by the rules of the association, organisation, branch …
20 The applicant argued that:
(1) On 24 February 2009, pursuant to rule 49(d), the Branch Committee had altered the rules of the Union as they affected the internal management of the Branch.
(2) Under Regulation 126 of the Regulations (see [18] above) an organisation had 35 days after an alteration to the rules is made to lodge the notice required by Regulation 126(1)(a) with the Industrial Registrar. The function of the Industrial Registrar was to register the rules, as altered, but, in doing so, the Registrar was required to satisfy himself or herself that the rules had been properly passed.
(3) By virtue of rule 49(e), the National Secretary was the officer of the Union obliged to take the steps that ensured compliance with Regulation 126. The form of rule 49(e) was mandatory.
(4) Rule 49(e) made no provision for the National Secretary to be satisfied as to any matter, but required the National Secretary to forward certain documents to the Industrial Registrar. This duty arose once the National Secretary had been given the rules made by the branch pursuant to rule 49(d) and the information and documentation necessary for making application to the Industrial Registrar.
(5) In the present case, the National Secretary had this information and documentation at the latest when Mr Jackson wrote to the National Secretary, as explained in his letter to Ms Fegan of 17 March 2009.
(6) The 35th day after the making of the alteration to the rules by the Branch Committee was to expire on the day the application for interim orders was heard. The National Secretary had not taken the action she was obliged to take under rule 49(e) and she had given no explanation for her inaction.
(7) The applicant had a strong case, being very likely to succeed at trial. The prejudice was that the time in which the Union was required to lodge the notice required by Regulation 126(1)(a) was to expire that day. Although the Registrar might allow additional time, it was not known whether or not the Registrar would consider that there existed grounds to justify an extension. In any event, there was no reason to believe that the National Secretary would lodge the requisite notice in the future. The fact that the grant of the interim orders sought would be tantamount to a grant of final relief should not deter the Court from granting interim relief.
21 Counsel for Ms Jackson argued against the grant of interim orders and contended that:
(1) The National Secretary did not have the “information and documentation necessary for the purpose” referred to in rule 49(e) and hence was under no duty to act.
(2) The obligation under rule 49(e) was to “apply” whilst the requirement in s 159 of Schedule 1 and Regulation 126 was to “lodge”. According to counsel for Ms Jackson, the rule presupposed something that was not found in the legislation.
(3) There was nothing to show that the applicant or the National Secretary was authorised to sign the declaration referred to in Regulation 126(2), in accordance with Regulation 12.
(4) The rules as altered were not made by a branch within the meaning of rule 49(e) of the Union’s rules because the rules as altered by the Branch Committee went beyond rules relating to the internal management of the Branch.
(5) The Court should refuse to deal with the application because it should not be satisfied that the applicant has taken all reasonable steps to try to have the matter the subject of the application resolved.
22 Towards the end of his submissions, counsel for Ms Jackson gave an undertaking to do all things practicable to apply to the Industrial Registrar on the afternoon of the hearing to seek an extension of time until 14 April 2009. An attempt on the afternoon of the hearing to apply for an extension was later said to be to no avail.
Consideration
23 Each branch of the Union is “autonomous” under the rules: rule 44(a). Each branch may make rules regarding its internal management, and add to, amend, rescind or alter these rules “insofar as they relate to the internal management of a branch”: see rule 49(d). Under rule 49(a), the Branch Committee has the government, management and control of the affairs of the branch; and, under rule 49(d), either the Branch Committee or the members in special meeting may make or alter the rules as to internal branch management.
24 However, under s 159(1) of Schedule 1 of the Workplace Relations Act, an alteration of the rules of a Union does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified in accordance with s 159(1), including that, in the Registrar’s opinion, the alteration has been made under the Union’s rules and is not contrary to law.
25 Under Regulation 126 (set out at [18] above), an organisation has 35 days after an alteration to its rules is made to lodge the notice required by Regulation 126(1)(a) with the Industrial Registrar. A Registrar may refuse to certify an alteration of the rules under s 159(1) of Schedule 1 unless there is compliance with Regulation 126: see Regulation 126(3). The notice required by Regulation 126 must contain a declaration “signed by an officer of the organisation authorised to sign” the declaration, stating that the alteration was made in accordance with the rules, the action taken to effect the alteration, and that the particulars in the notice are “true and correct to the best of the knowledge and belief” of the person signing.
26 The Rules contemplate that the National Secretary is the officer of the Union who is required to take the steps for compliance with Regulation 126. This much appears from rule 49(e). Rule 49(e) casts a duty on the National Secretary to apply to the Industrial Registrar for certification of an alteration to the rules made under rule 49(d), when the National Secretary receives the rules as altered and any other information and documentation required to apply to the Registrar.
27 Rule 49(e) makes it clear that any alterations to the rules made under rule 49(d) must be forwarded to the National Secretary and that, “upon receipt of any information and documentation necessary for the purpose”, the National Secretary is obliged “forthwith” to “apply” to the Industrial Registrar for their certification. Rule 49(e) thus creates a duty, which the National Secretary must perform.
28 The information and documentation necessary for the National Secretary to apply to the Industrial Registrar for certification is that which is required by Regulation 126. That is, the National Secretary cannot comply with Regulation 126 unless the Secretary has a notice setting out the particulars of the alteration as required by Regulation 126(1)(a) and containing a declaration as required by Regulation 126(2).
29 Counsel for Ms Jackson made much of the difference between the need to “lodge” in s 159 of the Schedule and Regulation 126, before the Registrar could proceed to certify the rules as altered, and the requirement to “apply” to the Registrar for certification spoken of in rule 49(e). Plainly enough, the rules of the Union should be construed in a practical way. Whilst in some contexts the differences in meaning between the words “lodge” and “apply” may be important, in the present context, it would seem that the words are used more or less interchangeably. It is clear that rule 49(e) contemplates that the National Secretary “apply” for certification, in the sense that the National Secretary takes such steps as are necessary to secure certification – which, by virtue of s 159 of Schedule 1 (see [11] above) and under Regulation 126, requires the lodgement of a notice in conformity with Regulation 126. It is possible too that rule 32(f) may be called in aid to answer Ms Jackson’s submission on this point.
30 Further, for present purposes, it is reasonably arguable that the effect of rule 54(ii) is to authorise the applicant, in her capacity as President, to sign the declaration required by Regulation 126(2). The “Notice Under Regulation 126 of the Workplace Relations (Registration and Accountability of Organisations) Regulations 2003” given by the applicant to the National Secretary on 5 March 2009 assumed as much, containing as it did a declaration in the terms required by Regulation 126 signed by the applicant. There was nothing to indicate that Ms Jackson as the National Secretary disputed this assumption prior to the hearing of the application for interim orders.
31 If, as Ms Jackson at one stage suggested, the Notice was deficient because it did not set out the steps taken under the rules to alter the rules, it is reasonably arguable that any such deficiency was corrected (as far as concerned Ms Jackson) when Mr Jackson as Branch Secretary supplied the information and documentation to Ms Jackson as National Secretary, as indicated in his letter of 17 March 2009.
32 Further, at this stage at least, I am unconvinced by Ms Jackson’s argument that the rules as altered were not rules relating to the internal management of the Branch. Be this as it may, the Industrial Registrar is obliged to form an opinion on whether or not the alterations have been lawfully made in accordance with the Union’s rules. Before the Industrial Registrar certifies changes to the rules, the Registrar must form an opinion on the matters set out in s 159(1) of Schedule 1 (see [11] above), including that the change has been made under the rules of the organisation and is not contrary to law. The making of the interim orders sought by the applicant merely ensures that the rules as altered are placed before the Industrial Registrar for consideration. It is not a step towards approving the certification of invalid rules, as contended by counsel for Ms Jackson.
33 Before turning to “balance of convenience” type considerations, I note that, in the circumstances, I was satisfied that the applicant had taken all reasonable steps, within the meaning of s 164(3), to try to have the matter the subject of the application resolved. In Conquo v Jackson [2009] FCA 45, at [41]-[42], Sundberg J stated:
In reliance on s 164(3), the respondent said there was no evidence that the applicant has taken any steps to have the validity of the 7 January resolutions resolved internally. He drew attention to Rule 21(l) which confers power on the National Council ‘to interpret these Rules’. I would not refuse to deal with the present application merely because the applicant has not sought to have the validity of the resolutions resolved by an interpretation of the Rules by the National Council. Section 164(3) speaks of “all reasonable steps”. In Anderson v Taylor (1990) 22 FCR 326 at 335 speaking of what was ‘reasonable’ in a precursor of s 164(3), Gray J said:
An applicant is not to be denied relief simply because there was open to him or her some steps under the rules which might conceivably have led to a resolution of the issue which he or she seeks to raise before the Court. An applicant is not required by s 209(3) to engage in conduct the result of which is purely speculative.
His Honour went on to say that a suggestion that the applicant there should have sought to persuade the national executive to reverse its earlier decisions was not reasonable because ‘the applicant would have had every right to regard himself as attempting to appeal from Caesar to Caesar if he had asked the national executive to reconsider’.
In the present case the National Council is supporting the respondent. Mr Langmead, who appeared for the national body, intervened with leave in support of the respondent. It would not in my view be reasonable for the applicant to expect the National Council to interpret the rules in a way that would defeat the side with which it is aligned. In any event, whatever the Council’s ruling on the meaning of the rules, the matter would return to the Court. An interpretation of the rules made by the Council cannot exclude the jurisdiction of the Court. To require the applicant to approach the Council would, in my view, simply consume time to no avail.
34 I adopt his Honour’s analysis of the nature of the “reasonable steps” requirement in s 164(3). In the circumstances, to require the applicant to have communicated with Ms Jackson again before making this application would have been a somewhat pointless exercise.
35 I appreciate that the grant of the interim orders sought was tantamount to the grant of final relief. In Conquo v Jackson [2009] FCA 45, Sundberg J considered whether or not it was necessary to establish a stronger than usual case in such circumstances and held that it was not. His Honour said, at [30]-[33]:
On the balance of convenience the respondent contended that because what is sought by the applicant is in effect final relief, the applicant had to establish a stronger than usual case. In Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 the Court of Appeal rejected a submission that because part of an interlocutory injunction required positive action, it was mandatory and not prohibitory, so that it should not have been granted unless there was a high degree of assurance that at trial it would appear that the injunction was rightly granted. Maxwell P and Charles JA said at [33]:
In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman J in Films Rover, the grant of a mandatory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite ‘high degree of assurance’.
The correct approach, according to their Honours, whether the relief sought is prohibitory or mandatory, is to take whatever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial: at [35].
The Court of Appeal also rejected a contention that where an interlocutory injunction is tantamount to awarding final relief, it should be granted only if the court feels a high degree of assurance that at trial it will appear that the interlocutory injunction was rightly granted. The Court said at [39]:
Once again, we see no necessity for the recognition of a special ‘rule’ for this – different – subcategory of interlocutory injunctions. On the contrary, we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff’s prospects of success will almost certainly be a factor in the evaluation of the balance of convenience.
In view of the observations of Gray J in McGee v Sanders (No 2), recorded at [15], the two ‘special’ rules rejected by the Court of Appeal in Bradto are even less appropriate in relation to interim orders under s 164 than they are in the conventional interlocutory injunction context. It is to be remembered that an order under s 164 is defined so as to include ‘directions for the performance’ of any rules of an organisation by a person who is under an obligation to perform them. This will often be a mandatory order that results in the giving of final relief. An interim order under s 164(4) can plainly be an order of the same type as that granted at trial under subs (1).
Accordingly I adopt the approach in Bradto in the passages quoted at [30] and [31] of considering the likelihood of the applicant succeeding at trial rather than concentrating on the fact that the second order sought is of a mandatory character and may itself amount to final relief.
36 I would adopt and apply his Honour’s reasoning in this case.
37 The applicant made a strong showing that there was a serious question to be tried as to whether, in failing to apply to the Industrial Registrar for certification of the alteration of the rules as passed by the Branch Committee on 24 February 2009, the National Secretary was failing to perform the duty laid on the National Secretary by rule 49(e). The National Secretary did not point to any prejudice to her or anyone else if the National Secretary was required to lodge the notice with the Industrial Registrar as required by Regulation 126. There was prejudice to the applicant and the Branch Committee if the National Secretary was not required to take this step. It will ultimately be for the Registrar to form the opinion as required by s 159(1) of Schedule 1.
38 Accordingly, for these reasons, on 31 March 2009, I ordered that:
The respondent lodge in the Australian Industrial Registry the documents forming part of exhibit “PF-2” to the affidavit of Pauline Fegan affirmed on 26 March 2009 between pages 88 – 90 (inclusive) and the documents forming part of exhibit “PF-6” between pages 107-115 (inclusive) before the Registry closes for business on 31 March 2009.
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I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 9 April 2009
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Counsel for the Applicant: |
Mr H Borenstein SC with Mr W Friend |
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Solicitor for the Applicant: |
Macpherson & Kelley |
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Counsel for the Respondent: |
Mr R Reitano |
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Solicitor for the Respondent: |
Slater & Gordon |
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Date of Hearing: |
31 March 2009 |
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Date of Interim Orders: |
31 March 2009 |
