Scarlett, Neville v Cahill, J & Ors [1998] FCA 449

Scarlett, Neville v Cahill, J & Ors [1998] FCA 449

Because the affidavit evidence on both sides was conflicting and could not be tested by cross-examination, the Court made no concluded findings of fact; however, after the careful scrutiny required where interim relief may be tantamount to final relief, similar considerations to those in Buchanek v Jones justified continuing the interim restraint in modified form against the second respondent only. The Court was not prepared to assume that other respondents would instigate or connive at a breach, so no interim order was made against them.

Jurisdiction
Australia
Judgment Date
16 April 1998
Procedural Posture
Rule Nisi Seeking Orders to Perform and Observe Union Rules in Relation to a Union Election / Return of Rule Nisi and Application for Continuation of Interim Orders
Outcome
Interim order continued in modified form against the second respondent until 19 May 1998 or further order; no interim order made against any other respondent; directions hearing adjourned to a date to be fixed with liberty to apply.
Legal Topics
['union Rules' 'union Elections' 'interim Orders' 'electioneering During Working Hours' 'cross Examination on Affidavits' 'contempt Risk']
['industrial Law' 'trade Union Law' 'civil Procedure'] ['union Rules' 'union Elections' 'interim Orders' 'electioneering During Working Hours' 'cross Examination on Affidavits' 'contempt Risk']

Case Brief

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Procedural Posture

Rule Nisi Seeking Orders to Perform and Observe Union Rules in Relation to a Union Election / Return of Rule Nisi and Application for Continuation of Interim Orders

Legal Issues

  1. 1 ['Whether an interim order should be continued restraining the second respondent, while on delegation for the Union during working hours, from urging or persuading members to support, promote or vote for or against any candidate in the election.' 'Whether interim orders should be made against respondents other than the second respondent.' 'How the Court should approach interim relief where the relief may be tantamount to final relief and the affidavit evidence has not been tested by cross-examination.']

Ratio Decidendi

Because the affidavit evidence on both sides was conflicting and could not be tested by cross-examination, the Court made no concluded findings of fact; however, after the careful scrutiny required where interim relief may be tantamount to final relief, similar considerations to those in Buchanek v Jones justified continuing the interim restraint in modified form against the second respondent only. The Court was not prepared to assume that other respondents would instigate or connive at a breach, so no interim order was made against them.

Court Disposition

Interim order continued in modified form against the second respondent until 19 May 1998 or further order; no interim order made against any other respondent; directions hearing adjourned to a date to be fixed with liberty to apply.

Orders

  • ['That until 19 May 1998 or further order the second respondent perform and observe the Rules of the Union by refraining during working hours while on delegation for the Union from urging or persuading members of the Union to support, promote or vote for or against any candidate in the election.' 'No interim order...