Gibbs, J.L. v Cooney, J.A. [1986] FCA 607

Gibbs, J.L. v Cooney, J.A. [1986] FCA 607

Because the Federal Council had granted the respondent leave of absence from her duties as Federal Secretary, had authorised the Executive Committee to address appointment of a person to fulfil those duties, and Enid Jenkins had been empowered to perform the functions of Federal Secretary during that absence, the duty under rule 18(f) to serve the notice did not presently devolve on the respondent. The rule to show cause was therefore discharged. Although the substantive application failed, it was not bad beyond argument or instituted without reasonable cause, so costs were refused.

Jurisdiction
Australia
Judgment Date
12 November 1986
Procedural Posture
Application Under S. 141 of the Conciliation and Arbitration Act 1904 for Directions to Perform or Observe Rules of a Registered Organisation / Rule to Show Cause
Outcome
Rule to show cause discharged; respondent's application for costs rejected.
Legal Topics
['performance and Observance of Registered Organisation Rules' 'duties of Federal Secretary While on Leave of Absence' 'service of Notice of Meeting Under Rule 18(f)' 'costs Under S. 197 A']
['industrial Law' 'registered Organisations' 'civil Procedure'] ['performance and Observance of Registered Organisation Rules' 'duties of Federal Secretary While on Leave of Absence' 'service of Notice of Meeting Under Rule 18(f)' 'costs Under S. 197 A']

Case Brief

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Procedural Posture

Application Under S. 141 of the Conciliation and Arbitration Act 1904 for Directions to Perform or Observe Rules of a Registered Organisation / Rule to Show Cause

Legal Issues

  1. 1 ['Whether the respondent was under an obligation to perform or observe rule 18(f) by serving notice of a proposed special meeting of Federal Council.' 'Whether, if any duty under rule 18(f) remained, the Court should exercise its discretion to make the orders sought.' 'Whether the applicant instituted the proceeding without reasonable cause so as to justify an order for costs under s. 197A.']

Ratio Decidendi

Because the Federal Council had granted the respondent leave of absence from her duties as Federal Secretary, had authorised the Executive Committee to address appointment of a person to fulfil those duties, and Enid Jenkins had been empowered to perform the functions of Federal Secretary during that absence, the duty under rule 18(f) to serve the notice did not presently devolve on the respondent. The rule to show cause was therefore discharged. Although the substantive application failed, it was not bad beyond argument or instituted without reasonable cause, so costs were refused.

Court Disposition

Rule to show cause discharged; respondent's application for costs rejected.

Orders

  • ['The rule to show cause made on 3 December 1986 was discharged.' "No order was made requiring the applicant to pay the respondent's costs."]