Duff v McCarney [2008] FCA 1429

Duff v McCarney [2008] FCA 1429

The applicant had satisfied the requirements for the grant of a rule to show cause against Mr McCarney, and it was also appropriate to grant the rule against Mr Setches because it was arguable that his correspondence endorsed or affirmed Mr McCarney's conduct and he might be able to rectify any breach. Immediate interim relief was not granted because there was considerable doubt about the Court's power to grant it before the respondents had an opportunity to be heard and, in any event, the discretionary case for such relief was not made out at that time.

Jurisdiction
Australia
Judgment Date
15 September 2008
Procedural Posture
Ex Parte Application for a Rule to Show Cause Under O 48 R 8 of the Federal Court Rules Concerning Ss 164 and 164 a of Schedule 1 of the Workplace Relations Act 1996 (cth) / Duty Judge Application; Rule to Show Cause Granted and Further Hearing Adjourned
Outcome
Rule to show cause granted against Stephen McCarney and Earl Setches; immediate interim relief not granted; matter adjourned.
Legal Topics
['registered Organisation Rules' 'rule to Show Cause' 'interim Relief' 'ex Parte Application' 'internal Union Governance']
['industrial Law' 'civil Procedure'] ['registered Organisation Rules' 'rule to Show Cause' 'interim Relief' 'ex Parte Application' 'internal Union Governance']

Case Brief

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Procedural Posture

Ex Parte Application for a Rule to Show Cause Under O 48 R 8 of the Federal Court Rules Concerning Ss 164 and 164 a of Schedule 1 of the Workplace Relations Act 1996 (cth) / Duty Judge Application; Rule to Show Cause Granted and Further Hearing Adjourned

Legal Issues

  1. 1 ['Whether the applicant had met the requirements of O 48 r 7(4) and O 48 r 7(4A) for a rule to show cause under ss 164 and 164A of Schedule 1 of the Workplace Relations Act 1996 (Cth).' 'Whether immediate interim relief could or should be granted before the respondents had an opportunity to be heard.' 'Whether a rule to show cause should issue against Stephen McCarney and Earl Setches.']

Ratio Decidendi

The applicant had satisfied the requirements for the grant of a rule to show cause against Mr McCarney, and it was also appropriate to grant the rule against Mr Setches because it was arguable that his correspondence endorsed or affirmed Mr McCarney's conduct and he might be able to rectify any breach. Immediate interim relief was not granted because there was considerable doubt about the Court's power to grant it before the respondents had an opportunity to be heard and, in any event, the discretionary case for such relief was not made out at that time.

Court Disposition

Rule to show cause granted against Stephen McCarney and Earl Setches; immediate interim relief not granted; matter adjourned.

Orders

  • ['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...