Federal Court of Australia|1979-07-23|Before: Kenneth J

Mcleish v Faure [1979] FCA 38; (1979) 40 FLR 462 (23 July 1979)

Conciliation and Arbitration - Registered organization - Whether court can consider validity of rules prior to certification by Registrar - Duty of Registrar - Jurisdiction of court to make order sought - Declaration - Displacement of statutory procedure by court declaration - Consequential orders - (Cth.), , , - Conciliation and Arbitration Act 1904 (Cth.), ss. 140, 141. The Electrical Trades Union of Australia ("E.T.U."), an organization under the Conciliation and Arbitration Act 1904, as amended ("the Act"), held a ballot pursuant to r. 10 of the rules of the E.T.U. Each of the proposals the subject of the ballot received a majority of votes in the affirmative, yet the national council did not take steps to implement the results of the ballot. The claimant commenced proceedings under s. 141 of the Act seeking orders that each of the respondents be directed to perform or observe the rules of the E.T.U. by giving effect to the results of the ballot.

The proposals the subject of the ballot related to an alteration to the rules of the E.T.U. which did not require the consent of the Registrar, but under s. 139 (4) of the Act the alteration did not have effect until particulars of the alteration had been filed in the office of the Registrar and "the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization".

In the present case, the alteration to the rules of the E.T.U. the subject of the ballot did not have effect since particulars of the alteration had not been file d in the office of the Registrar and the Registrar had not been able to consider whether, in his opinion, the alteration complied with the requirements of s. 139 (4) of the Act. The question arose as to whether the court should express an opinion on the validity of an alteration to a rule of an organization prior to the Registrar giving a certificate under s. 139 (4) of the Act, it having been contended that the proposed alteration to the rules contravened s. 140 (1).

Held, exercising the discretion invested by s. 21 of the Federal Court of Australia Act to make declarations, that the proposed alteration to the rules did not contravene s. 140 (1) of the Conciliation and Arbitration Act.

Sydney, 1979, April 18; May 14-15; July 23. 23:7:1979

R.P. Meagher Q.C. and L. Lamprati, for the applicant.

B.C.Hungerford, for three members of the South Australian branch of the union (intervening by leave granted by consent).

Cur. adv. vult.

Solicitors for the applicant: T.D. Kelly & Co.

Solicitors for the first eleven respondents: J.N. Zigouras & Co.

Solicitors for the respondent Dolan: R.F. Turner, Freeman & Partners.

Solicitors for the interveners: Kenneth J. Hickey & Co.

P.A. JEWELL

THE COURT delivered the following written judgment.

On 14th November, 1978, a Full Court of the Federal Court of Australia, in

the exercise of the original jurisdiction of the Federal Court, gave judgment in two matters in respect of the Electrical Trades Union of Australia (the E.T.U.), an organization under the Conciliation and Arbitration Act 1904, as amended (the Act) (see McLeish v. Kane [1978] FCA 44; (1978) 36 FLR 80 ). The first of those matters had been brought under s. 140 and s. 141 of the Act and orders were sought that r. 9(a) and (d), part of r. 10, r. 13 and r. 20 of the rules of the E.T.U. contravened s. 140 (1) of the Act and that specified members of the E.T.U. perform and observe the rules of the E.T.U. by treating as null and void a specified resolution of the national council of the E.T.U. The second of those matters had been brought under s. 171C of the Act. In giving its reasons for judgment the Federal Court expressed the opinion that the challenge to part of r. 10, r. 13 and r. 20 failed, and that those rules did not contravene s. 140 (1) of the Act but that r. 9 (d) in its operation on r. 9 (a) did contravene s. 140 (1) of the Act, but in the exercise of the powers conferred by s. 140 (6) of the Act the court adjourned the proceedings for the purposes of giving the E.T.U. an opportunity to alter its rules. In the result both matters were adjourned. (at p463)

2. Under r. 9 of the rules of the E.T.U., the control of the E.T.U. is vested in the national council which is constituted by r. 9. The powers and duties of the national council are set out in r. 10 and they include the following: "10 (b) Unless otherwise provided, the national council shall have the power - (8) To give effect to any decision of a ballot of members taken in accordance with the rules and (15) To alter, amend, rescind, or enact rules of the union." The opening paragraph of r. 10 is as follows: "10. Powers and Duties of National Council. The national council shall be the supreme governing body of the union and . . . its decision on all matters, whether specifically provided for by these rules or not, shall be final and binding on all members, unless two branches shall demand a ballot of all financial members on any question as provided by r. 20. The national secretary shall forthwith hold such ballot and the decision of the members so ascertained by ballot shall be binding upon the national council and all officers and members of the union." Rule 57 is as follows: "57. New Rules and Alterations of the Rules. No new rule shall be made, nor shall any of these rules, for the time being, of the union, be amended, altered or rescinded except by and at a meeting of the National Council." (at p464)

3. Following the judgment of the Federal Court on 14th November, 1978, a ballot of all financial members of the E.T.U. which had been demanded pursuant to r. 10 by the New South Wales and South Australian branches was conducted under r. 20 in February-March 1979 on the following questions: "That the rules of the union be amended as follows: (i) That sub-r. (d) of r. 9, national council, be deleted and the following be inserted in lieu thereof - (d) At all council meetings each branch shall have the right through its delegate or delegates to exercise one vote for each 500 members of the branch. The national secretary shall have the right to exercise two votes. (ii) That r. 13, national executive, be deleted and the following be inserted in lieu thereof: The national executive shall consist of the president, vice-president, national secretary and members elected from the national conference delegates. Each branch shall be entitled to representation on the national executive by one executive member, for which purpose the president and vice-president shall be deemed to represent the branch of which they are members and the national secretary shall be deemed not to represent any branch, providing that any branch having in excess of ten per cent of the membership as calculated under sub-r. (e) of r. 9, National Council, shall be entitled to one additional executive member for each additional ten per cent of the membership of the union possessed by that branch. (iii) That r. 20, Limiting Action of National Council or National Executive, be deleted and the following be inserted in lieu thereof: 20. Control of National Executive and National Council by members. 1. If in any period of four months, (a) any two State councils, or (b) members totalling five per cent of the total financial membership of the union by petition, shall request that a referendum of members be held on a proposal that national council or the national executive take or refrain from taking any specified action or adopt or refrain from adopting any specified policy in the conduct of the union's business the national executive shall within fourteen days appoint a returning officer (not being the holder of any other office in nor an employee of the union or a branch or sub-branch of the union) who shall forthwith proceed to conduct a referendum of members in all branches on the proposal. Such referendum shall be by secret ballot of all of the members of the union who are financial for the quarter preceding the date of the commencement of the ballot, provided that if a proposal, the subject of a request under this rule, be adopted by the national council or the national executive as the case may be, no referendum shall be held under this rule. 2. The result of the referendum shall be given effect to by the national executive or the national council as the case may require. (iv) That the following new sub-rule be added to r. 14, Powers and Duties of National Executive. (g) The national executive shall have power to appoint a returning officer for the purpose of conducting such referenda as may be requested pursuant to r. 20. (v) That the words 'unless two branches shall demand a ballot of all financial members on any question as provided by r. 20. The national secretary shall forthwith hold such ballot and the decision of the members so ascertained by ballot shall be binding upon the national council and all officers and members of the union' be deleted from the first paragraph of r. 10, Power and Duties of National Council, and the words 'subject to any referendum that may be conducted pursuant to r. 20' be inserted in lieu thereof." Each of the proposals the subject of the ballot received a majority of votes in the affirmative. (at p465)

4. The national council has taken no steps to implement the results of the ballot and the claimant David McLeish, a member of the E.T.U. and the secretary of the New South Wales branch of the E.T.U., commenced these proceedings under s. 141 of the Act. Following amendments made at the hearing of this matter, all members of the national council, other than the claimant, are respondents to the application and each respondent, being a member of the E.T.U., is under an obligation to perform or observe the rules of the E.T.U. The claimant is seeking an order that the respondents and each of them be directed to perform or observe the rules of the E.T.U. by giving effect to the results of the ballot already referred to. (at p465)

5. At this stage, it is desirable that reference should be made to s. 139 of the Act. The proposals the subject of the ballot relate to an alteration to the rules of the E.T.U. The alteration does not require the consent of the Registrar, but under s. 139 (4) the alteration does not have effect until particulars of the alteration have been filed in the office of the Registrar and "the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization". The Registrar, before giving his certificate, is required to determine in his opinion that "the alteration complies with and is not contrary to the provisions of the Act" etc. The existence of organizations and of rules of organizations are dependent entirely upon the Act and in the absence of some reason for intervention, the special procedures laid down by the Act as a condition precedent to an alteration to rules of an organization coming into effect should be allowed to take their course and should not be displaced by the Federal Court making orders concerning the respective rights of parties under the Act, cf. Forster v. Jododex Australia Pty. Ltd. per Walsh J. [1972] HCA 61; (1972) 127 CLR 421, at pp 427-428 . The duties of the Registrar are clear, he must consider and form an opinion on whether "the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law". In addition, since 21st October, 1977, the Registrar has had to consider and form an opinion on whether the alteration "has been made in accordance with the relevant procedures laid down by the rules of the organization" cf. Kayne v. Banks (1978) 22 ALR 255, at p 257 . (at p466)

6. In the present case, the alteration to the rules of the E.T.U. the subject of the ballot do not have effect since particulars of the alteration have not been filed in the office of the Registrar and the Registrar has not been able to consider whether, in his opinion, the alteration complies with the requirements of s. 139 (4) of the Act. The Registrar has not given his certificate under that subsection. (at p466)

7. When the matter came on for hearing before the court, the parties were represented by counsel. It was conceded by all that the national council, by a majority of votes, would not support any resolution under r. 57 adopting the alteration to the rules of the E.T.U. in accordance with the proposals the subject of the ballot. In support of this stand, three main contentions were stated, namely: 1. If the plebiscite provisions of the rules of the E.T.U. can be used to alter the rules, then the result of the ballot had the effect of altering the rules and no subsequent resolution under r. 57 was required: cf. British Actors' Equity Association v. Goring (1978) ICR 791 2. If the first contention were not correct, then any valid alteration to the rules could be made only by national council under r. 57 and national council is not bound to adopt the alteration determined as the result of the ballot, particularly if the alteration so determined contravened s. 140 (1) of the Act. 3. National council should not adopt the alteration determined by the result of the ballot of the financial members since the alteration contravened s. 140 (1) of the Act. (at p466)

8. At the hearing, the parties called evidence and made submissions on one issue only, namely, whether the alteration to the rules contravened s. 140 (1) of the Act. The court expressed concern whether it had jurisdiction to express an opinion on whether the alteration contravened s. 140 (1) before the alteration came into effect under s. 139 (4). Senior counsel for the claimant conceded that it would be a valid discretionary ground for refusing the relief sought by the claimant if the proposed alteration contravened s. 140 (1) of the Act. He contended that the court had power to say that if an order were made directing the respondents to give effect to the result of the ballot, but that the alteration of necessity contravened s. 140 (1) of the Act, the court, in its discretion, should refuse to make an order giving those directions. No substantive submissions were made by counsel to support this proposition. In the result, the parties agreed to that contention and urged the court to express its opinion on whether the alteration to the rules was contrary to s. 140 (1) of the Act. The parties agreed further that if the court expressed the opinion that the alteration to the rules was not contrary to s. 140(1) of the Act, the hearing of the matter should be adjourned to enable the parties to discuss whether it would be necessary for the court to make an order under s. 141 of the Act. (at p467)

9. It is trite law that parties, by consent, cannot confer jurisdiction upon the court. The court must be satisfied that it has jurisdiction to make an order sought. Nevertheless before deciding on whether it had jurisdiction, the court heard evidence and submissions on the third contention and reserved its decision on that issue. It is now necessary for the court to satisfy itself that it has jurisdiction to consider whether the proposed alteration to the rules contravenes s. 140(1) of the Act. (at p467)

10. Prior to 1st December, 1978, the relevant provisions of s. 141 were as follows: "141. (1) The Court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules." Upon s. 18 of the Conciliation and Arbitration Amendment (No. 3) Act 1977 coming into operation on 1st December, 1978, that subsection was deleted the relevant provisions of s. 141 of the Act became as follows: "141. (1) A member of an organization may apply to the Court for an order under this section in respect of the organization. (at p467)

11. (1G) An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules. (at p467)

12. (1H) The Court has jurisdiction to hear and determine an application under sub-section (1) or (1E) but, before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard." (at p467)

13. The former provision has been held to confer a judicial power under which the Commonwealth Industrial Court had a discretion whether or not to make an order under s. 141, Barrett v. Opitz [1945] HCA 50; (1945) 70 CLR 141 . In the new s. 141 the word "may" has been placed in a different position thereby conferring a discretion with respect to the directions to be given. Under the new s. 141, the jurisdiction of the court has not been conferred in permissive terms and doubts may arise whether the court has a discretion to refuse to make an order giving directions for the performance or observance of rules when a claimant otherwise makes out a case under s. 141. The rules, the performance or observance of which is sought in the present application, are rules which are in effect namely r. 57, or if necessary a direction that the federal secretary of the E.T.U. file in the office of the Registrar particulars of the alteration to the rules the subject of the ballot for certification under s. 139(4) of the Act. Since no substantive submissions were made to the court on the question of discretion and jurisdiction conferred by the new s. 141, we express no final opinion on this matter, but proceed to exercise jurisdiction as hereinafter explained. (at p468)

14. The main challenges to the alteration to the rules as carried by the ballot were to rr. 9(d), 13 and 20. Rules 13 and 20 as certified had been held not to contravene s. 140(1) in McLeish v. Kane [1978] FCA 44; (1978) 36 FLR 80 . (at p468)

15. Between 14th November, 1978, and 23rd March, 1979, the date of the completion of the ballot, the national council at its meeting on 11th December, 1978, had, pursuant to r. 57 adopted certain amendments to the rules including rr. 9(d) and 20. Such amendments have not been lodged for certification under s. 139 (4). The amendment to r. 9(d) made provision that the voting power of branch delegates at the council was to be determined by the formula of "two votes for the first 2,000 members or part thereof of the branch and one additional vote for each additional 2,000 members or part thereof, the national secretary having the right to exercise one vote" whilst the amendment to r. 20 was such that the rule as amended reads: "1. Decisions of the national council and/or national executive shall be implemented unless, in any period of four months, (a) any two branches at specially summoned State council meetings, or (b) members totalling five per cent of the total financial membership of the union by petition - shall request that a referendum of members be held on a proposal that national council or the national executive take or refrain from taking any specified action or adopt or refrain from adopting any specified policy in conduct of the union's business, the national secretary shall forthwith proceed to conduct a secret postal ballot of all financial members of the union, who are financial for the quarter preceding the date of the commencement of the ballot, on the proposal. Provided that if a proposal, the subject of a request under this rule, be adopted by the national council, no referendum shall be held under this rule. (2) The result of the referendum shall be given effect to by the national council and/or national executive. (3) For the purpose of this rule, specially summoned State council meeting shall mean a meeting of which State Councillors have received forty-eight hours' notice by circular, sent to their private address, setting out the proposed business of the meeting." (at p469)

16. Mr. Gray, counsel for the majority of national council members, tendered affidavits sworn by the secretaries of the Victorian, Queensland, Western Australian and Tasmanian branches of the organization. Mr. Meagher Q.C. for the claimant objected to the tender on the basis that the evidence therein was immaterial. The affidavits were admitted subject to the objection. It would seem that the evidence set out in the affidavits is generally not material to the question of the validity of the amended rules except the fact that in the case of the Queensland and Western Australian branches such branches were not formed pursuant to some voluntary association in the respective States making a request to join the organization as might be expected in a true federation. In each case an officer of the organization proceeded in 1915 and 1926 to the respective States recruiting members into the organization. (at p469)

17. The claimant tendered an affidavit sworn by his solicitor Mr. T. Kelly setting out the history of the rule dealing with the voting power of branch delegates to national council since 1933. It would seem that such rule since 1933 has been amended from time to time to provide differing formulae for ascertaining such voting power, but the rule has always provided for a weighting in favour of the smaller States, the degree thereof varying under each formula. The affidavit did not show the number of members attached to the various branches over the years so it is impossible to calculate the degree of the weighting under each different formula. (at p469)

18. The claimant also tendered the rules of five other organizations. It was claimed that such rules provided for a referendum or plebiscite of financial members on matters which had been determined by the respective governing bodies of each organization and that the result of such referendum or plebiscite was determined by a simple majority of such members. We are of the opinion that this evidence although admissible carries little weight. What may be a valid rule in one organization does not of necessity mean that such rule would be valid for another. Such validity may depend on different circumstances and conditions which may vary not only from organization to organization but within the same organization at different times. (at p469)

19. Exhibit B sets out a table showing the number of members attached to each branch of the union and the proportion as a percentage of such membership to the total membership, together with the number of votes each branch has or would have under the certified r. 9 (d), under the "500 proposal" and under the "2,000 proposal" and the proportion as a percentage that such votes have or would have in relation to the total votes at national council. Exhibit B is set out: NATIONAL COUNCIL

1977 Present Rule "500" "2,000" Proposal

Proposal

No. % No. % No. %

New South Wales 22,656 43.13 10 22.73 45 43.26 13 36.11

______ __ ___ __

52,523 44 104 36

______ __ ___ __ (at p470)

20. Prior to such amendment to s. 141 on 1st December, 1978, there appears to be only one reported case where the court or its predecessors has expressed opinion as to its power to either determine or express a view as to the validity of adopted amendments to rules of an organization prior to such amendments being certified by the Registrar under s. 139 (4). In Allen v. Laragy (1975) 7 ALR 261 the Australian Industrial Court when referring to an application under the provisions of the then s. 141 of the Act seeking orders in respect of uncertified rules said: "Apart from the operation of s. 171C, the claimants are entitled to an order under s. 141 directing the respondents to treat the resolution as void and of no effect" (1975) 7 ALR, at p 266 . The question of jurisdiction under s. 141 was not discussed in that case. (at p471)

21. As that court did not make any formal order under s. 141 but made orders only under s. 171C, the cited paragraph is treated as obiter. That case was referred to by J.B. Sweeney J. in Boland v. Federated Liquor and Allied Industries Employees' Union of Australia (V21 of 1978); Boland v. Munro (V36 of 1978) (1979) LB Co's Indus Arb Serv, Current Review, p 199 . Both matters were commenced before 1st December, 1978. There the court expressed grave doubts as to its jurisdiction under the old s. 141 to make a determination as to whether or not rules which had not been certified under s. 139 (4) contravened s. 140 (1). The court, in the exercise of its discretion, there stated that "in the circumstances and particularly since I must deal with other parts of the application V36 of 1978, it seems to me preferable that I should deal with this aspect as well, although I express grave doubts as to my jurisdiction so to do. I have also had in mind the provisions of s. 22 of the Act" (1979) LB Co's Indus Arb Serv, Current Review, at p 202 . The reference to s. 22 is clearly a reference to that section in the Federal Court of Australia Act 1976. (at p471)

22. Under s. 19 of the Federal Court of Australia Act 1976, as amended, the court "has such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament". The jurisdiction conferred by s. 141 of the Act is vested in the court by s. 118A of the Act and is jurisdiction in respect of a matter arising under laws made by the Parliament. The application by the claimant is with respect to a matter within the meaning of that word contained in s. 76 (II) of the Constitution and comes within the jurisdiction of the court by reason of s. 71 and s. 77 (I) of the Constitution, cf. Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 . In the exercise of that jurisdiction the court, subject to any statutory provision to the contrary, is able to exercise all the powers conferred upon the court whether of a substantive or a procedural nature. We refer to two powers which are common to courts exercising jurisdiction under the provisions of the Judicature Act system and which have been conferred upon the court. Sections 21 and 22 of the Federal Court of Australia Act are as follows:

"21. (1) The Court may, in relation to a matter in which it has

original jurisdiction, make binding declarations of right, whether

or not any consequential relief is or could be claimed.

(2) A suit is not open to objection on the ground that a

declaratory order only is sought.

22. The Court shall, in every matter before the Court, grant, either

absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." (at p472)

23. We consider first s. 22. In our opinion that section should be construed liberally in order to achieve the object of the Act in attempting to prevent the necessity of a multiplicity of legal proceedings to be entered into by a party seeking relief. Our view is supported by the opinions expressed in Roberts v. Gippsland Agricultural and Earth Moving Contracting Co. Pty. Ltd. [1956] VicLawRp 86; (1956) VLR 555 . In that case Smith J. as a member of a Full Court, considered a section in the Victorian Supreme Court Act being the equivalent of s. 22 of the Federal Court of Australia Act. For present purposes it is sufficient to quote the following extract: "In Salt v. Cooper (1880) 16 Ch D 544 , the view was expressed that this provision is not confined to the original claim made in a cause but applies to any claim relating to the matter in dispute in the cause which is in fact brought forward therein. But on the other hand the provision has sometimes been construed in a restricted sense: compare Edwards on Compromises, p. 189. The critical question would appear to be what meaning is to be given to the expression 'properly brought forward'. And I consider that, having regard to the nature and purpose of the provision, that expression should be construed liberally, so that its operation may not be unnecessarily restricted by reference to rules of mere practice and procedure which operated in the old Courts" (1956) VLR, at p 564 . (at p472)

24. The claimant has made application to this Court under s. 141 of the Act. His claim has been "properly brought forward" and as far as possible all matters in controversy between the parties should be completely and finally determined to avoid multiplicity of proceedings concerning any of those matters. There is no doubt that where in proceedings brought under s. 141 of the Act, a question arises whether a rule of an organization contravenes s. 140 of the Act, the court has power to decide that issue, see Allen v. Townsend [1977] FCA 10; (1977) 31 FLR 431 per Evatt and Northrop JJ.: "On these facts, it is necessary to consider whether the order sought under s. 141 of the Act relying upon the invalidity of federal r. 17(n) should be made. It is open to a party in proceedings under s. 141 of the Act, or for that matter in any proceedings in any court where the matter may be an issue, to claim that a rule of an organization contravenes the provisions of s. 140(1) of the Act and if upheld a party to those proceedings cannot rely upon facts dependent upon the validity of that rule. In legal proceedings of this kind, the invalidity arising from a non-compliance with the requirements of s. 140(1) of the Act results from the operation of that subsection itself and the invalidity does not depend upon an order having been made in proceedings instituted under the provisions of s. 140 of the Act. Any order made in proceedings other than in proceedings instituted under s. 140 of the Act is binding upon the parties to those proceedings only and operates on preceding facts. An order so made has no effect similar to an order made in proceedings instituted under s. 140 of the Act which order operates as from the date of its making and thereafter affects and is binding upon all persons; generally see Shearer's case [1960] HCA 46; (1960) 103 CLR 368 " (1977) 31 FLR, at p 481 . (at p473)

25. The particular references to R. v. Judges of the Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (Shearer's case) are as follows: McTiernan J. (1960) 103 CLR, at pp 372-373 ; Fullagar J. (1960) 103 CLR, at pp 378-379 ; Kitto J., with whose reasons Dixon C.J. agreed, (1960) 103 CLR, at pp 380-381, 384-385 ; Menzies J., with whose reasons Taylor J. agreed (1960) 103 CLR, at pp 387-388 , and Windeyer J. (1960) 103 CLR, at p 389 . Since 1st December, 1978, s. 141(8A) of the Act has conferred a discretion on the court to make additional findings in proceedings brought under s. 141 which findings have an effect similar to that of an order making a declaration under s. 140(5) of the Act. (at p473)

26. In the present case the difficulties arise from the fact that the alteration to the rules the subject of the ballot has not come into effect. The alteration may never come into effect. If particulars of the alteration are filed in the office of the Registrar, he may not be of the necessary opinion to enable him to give a certificate under s. 139(4) of the Act. If he does give his certificate, a member of the E.T.U. would be able to apply to the court for an order under s. 140 of the Act. The issue, then, is should the court express an opinion on the validity of an alteration to a rule of an organization prior to the Registrar giving a certificate under s. 139(4) of the Act. (at p473)

27. We turn to consider the power contained in s. 21 of the Federal Court of Australia Act. This power is conferred in permissive terms and the court has a discretion whether to exercise the power. The fact that consequential relief in the nature of a declaration under s. 140(5) of the Act cannot be claimed is immaterial to the existence of the power conferred by s. 21 but it may affect the exercise of the power; see Dyson v. Attorney-General (1911) 1 KB 410 and Sutherland Shire Council v. Leyendekkers per Street J. (1970) 91 WN (NSW) 250, at pp 257-260 . (at p474)

28. The present case may be compared with Forster v. Jododex Australia Pty. Ltd. [1972] HCA 61; (1972) 127 CLR 421 . In that case the Supreme Court of New South Wales had made a declaration under statutory provisions having an effect similar to the provisions contained in s. 21 of the Federal Court of Australia Act in circumstances where the matter in issue was within the jurisdiction of a mining warden. In a dissenting judgment Walsh J. expressed the opinion that as a matter of discretion the declaration should not have been made: "In my opinion, when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concering the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute. In other words, I think that it will ordinarily be a wise exercise by the Supreme Court of the discretion which it has under s. 10 of the Equity Act to decline to undertake the tasks which have been committed by the Parliament to a specialized tribunal. Whilst I agree with Gibbs J. that s. 10 ought not to be construed as if it contained words excepting from its operation cases arising under the Act, I think that the procedure set out in the Act itself should be regarded as the normal procedure for dealing with such cases. I do not think that this view is weakened by the circumstance that the relevant provisions of the Act, and in particular those of s. 46(3), did not commit to the warden the power to determine finally and unexaminably the matters which the Act requires him to decide: see Wade v. Burns [1966] HCA 35; (1966) 115 CLR 537 . On the contrary, if his decisions were immune from any review by means of any of the prerogative writs, that might be a ground for concluding, in some cases, that the Supreme Court ought to intervene by means of declaration before the warden had given a decision, in order to ensure that the matter should not be finally determined in a manner which was not according to law" (1972) 127 CLR, at pp 427-428 . In the same case Gibbs J. considered the history of the legislative provisions and on the issue of discretion his Honour said: "The question whether the Court should make a declaration which would have the effect of deciding a question in issue in pending proceedings may often be of some difficulty. It is of course important that the proceedings in the present case were not pending in an ordinary court. However, there were some obvious reasons why a judge should hesitate before intervening when the matter was about to come before the warden. It was, of course, possible that the warden could give effect to the contention that Jododex held a valid exploration license and would therefore refuse to grant any authority to enter to the appellant. The warden might have declined to grant the appellant's applications for some other reason. Moreover, if it were ultimately held that Jododex's contention ought to fail, the proceedings before the warden would have been delayed and the appellant would have been put to additional cost and inconvenience. On the other hand, to determine the existence of the right which Jododex sought to establish, it was necessary to ascertain the true meaning and effect of a statutory provision and of an instrument in statutory form. These were pure questions of construction such as would appropriately be decided in the Supreme Court. They were difficult questions, and apparently rights of considerable value depended on the answers to them. When all these conflicting considerations are weighed, it seems to me that it cannot be said that it was not a proper exercise of judicial discretion to proceed to make a declaration in all the circumstances of the case" (1972) 127 CLR, at pp 438-439 . Both Stephen J. and Mason J. agreed with the view expressed by Gibbs J. (at p475)

29. In the present case we are of the opinion that the court should exercise the discretion conferred by s. 21 of the Federal Court of Australia Act. We are prepared to treat the request of the parties as a request that the court make a declaration under s. 21 on whether the alteration to the rules the subject of the ballot contravenes s. 140 of the Act. The reasons expressed by Gibbs J. set out above with necessary adaptions apply with equal force to the facts in the present case. In addition there is the unusual fact that the national council, the body which under r. 57 of the rules of the E.T.U. is given express power to alter the rules, has not yet made the alteration. A majority of the members of the national council believe that the alteration, if made validly, would be contrary to s. 140 of the Act. A declaration made under s. 21 of the Federal Court of Australia Act would be binding upon each member of the national council. We are conscious of what was said by Barwick C.J. in Neeta (Epping) Pty. Ltd. v. Phillips [1974] HCA 18; (1974) 131 CLR 286, at p 307 in relation to the undesirability of a court making a declaration without any orders for consequential relief, but having regard to the facts of the present case and to what has been said by counsel, we are prepared to make the necessary declaration to enable all parties to consider their positions and if need be to apply to the court for any consequential orders under s. 141 of the Act. (at p476)

30. The court in its reasons for judgment in McLeish v. Kane [1978] FCA 44; (1978) 36 FLR 80 dealt in some detail with the vexed questions concerning the spectrum over which rules dealing with the weighting of the voting power at meetings of branch delegates to or members of federal bodies of organizations might validly range; the conditions under which a plebiscite of members might be sought on any matter together with rules generally providing for checks and balances. It is unnecessary to repeat those observations. It is clear in our opinion that the proposed amendments to rr. 9(d) and 13 carried by the plebiscite fall within that "spectrum". (at p476)

31. The challenge to the proposed amendments to rr. 10 and 14 was not persisted with. The amendment to r. 20 as carried by the plebiscite is not at variance to the amendment to that rule as adopted by national council on 11th December, 1978, in any particular which is in issue between the parties. (at p476)

32. There was some evidence that the State council of the Victorian branch of the organization resolved in April 1979 calling upon the national council to re-amend r. 20 as adopted by the council on 11th December, 1978, by deleting the words "two branches" and substituting therefor the words "three branches". Such an amendment has not, so far as is known, been considered by the national council and the effect of such an amendment if adopted has not been considered. (at p476)

33. It is stressed that by expressing the above views the court is not to be seen as usurping the discretionary power granted to the Registrar under s. 139(4). Whether the Registrar refuses to grant a certificate in respect of any amendments to the rules which are lodged for certification is a matter solely for his determination. (at p476)

34. Accordingly the court pursuant to s. 21 of the Federal Court of Australia Act 1976 declares that the alteration to the rules of the Electrical Trades Union of Australia approved by a majority of financial members of the union at a ballot which was completed on 23rd March, 1979, is not contrary to s. 140(1) of the Act. (at p476)

Court of Australia Act 1976

Conciliation and Arbitration Act 1904

Court of Australia Act 1976

Conciliation and Arbitration Act 1904

Court of Australia Act 1976

Conciliation and Arbitration Act 1904

Court of Australia Act 1976

Conciliation and Arbitration Act 1904

Mcleish v Faure [1979] FCA 38;

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Mcleish v Faure [1979] FCA 38; (1979) 40 FLR 462 (23 July 1979)

Parties

Legislation Cited (12)

Cases Cited (11)