SrEvens v Kerocu.

SrEvens v Kerocu. - [1946] HCA 16 - HCA 1946 case summary — Zoe

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mental attitude of the maintainor is the critical fact. The main- tainor's belief in a state of facts, which if they did exist would have justified him, would be quite adequate. Harris v. Brisco (1) does not decide to the contrary, but, apparently, favours the proposition that a bona-fide belief in the poverty of the assisted person is sufficient (2). The evidence shows that Grigg was a poor man, and also that there was a common interest. Oram v. Hutt (3) is directed solely to the question of the existence or not of a common interest and is of no assistance in the matter of construing the rules now under the consideration of this Court. Nor does Greig v. National Amalgamated Union of Shop Assistants, Warehousemen and Clerks (4) bear on the question of construction. The problem is: Can the particular act, that is to say, the giving of financial aid to Grigg in his libel action, be said to be fairly conducive to the objects of the Associa- tion? To treat the libel as a mere libel on an individual member is to disregard the realities of the situation. It was not a mere libel on an individual member in his individual capacity. If a Commissioner of Police, at the behest of an influential member of the community, is willing, in disregard of his responsibility to and the responsibility of his constables, to interfere in the manner shown by the evidence and, in justification of his own administration, to make false statements concerning his constables, then matters arise which closely affect each and every member of the police force. Each member of the police force is entitled to the protection of the Commissioner. Clause (7) of rule 2 authorizes the making of financial provision for the carrying out of each of the other objects stated in that rule. The expenditure is also rendered lawful by the Industrial Arbitration Act. The words " Police Service " as used in rule 2 (a) have a meaning wider than the words " Police Association." The word "' members " in rule 2 (c) should be construed as meaning also "a member." The expenditure is within the authority conferred by clause (h) ofrule 127. The words " any appeal " as used in that clause mean " in any application in any resort to " the courts mentioned and wherein the general interest of members is involved. Section 107 of the Industrial Arbitration Act 1940 is not susceptible of the con- struction that it means any lawful object for which the rules authorize disbursement ; the section gives power to a trade union, whether it has power under its rules or not, to expend money for any lawful object which is an authorized object under its rules. Upon the assumption, contrary to the foregoing submission, that the objects should be regarded as mere objects and that rules are requisite for

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The Police Association is registered as a trade union under the Trade Union Act 1881-1936 (N.S.W.). The hearing proceeded before Roper J. on the assumption that the Association is in law a trade union as defined in s. 31 of the Act. On the appeal doubts were raised by Dizon J. as to the correctness of this assumption. The Act is founded upon the English Trade Union Acts of 1871 - and 1876. It gives protection to all trade unions, whether registered - or unregistered, and then proceeds to make provision for the regis- d tration of trade unions with resulting advantages not given to - unregistered associations. Section 14 (1) provides that an appli- cation to register a trade union and printed copies of its rules shall be sent to the Registrar ; (2) that the Registrar, upon being satisfied _ that the trade union has complied with the regulations respecting - registry in force under the Act, shall register such trade union and - its rules ; (5) that the Registrar upon registering a trade union shall issue a certificate of registry which certificate unless proved to have _ been withdrawn or cancelled shall be conclusive evidence that the regulations of the Act with respect to registration have been complied - with. Section 18 of the English Companies Act 1862 provided that a certificate of incorporation shall be conclusive evidence that all the requisitions of the Act in respect of registration have been complied : with. In In re National Debenture and Assets Corporation (1), the Court of Appeal held that a certificate under s. 18 could not be treated as conclusive of the fact that seven persons signed the - memorandum of association, and that if less than seven persons did - so the court had no jurisdiction to make a winding up order. Lindley - L.J. said (2) that "It was decided as long ago as the time of Lord - Justices Knight Bruce and Turner, that the Registrar could not by a certificate create a jurisdiction in himself so as to enable companies to be registered to which the Act had no application." In Osborne _ v. Amalgamated Society of Railway Servants (3), on appeal (4), Farwell - L.J. pointed out (5) the extent to which the English Trade Union Acts - were framed upon the lines of the Companies Act 1862. Section 14 (5) of the Trade Union Act 1881-1936 (N.S.W.) corresponds to s. 18 - of the Companies Act 1862. On the other hand s. 192 of the Com- panies Act 1862 provided that a certificate of incorporation given to any company registered in pursuance of Part VII. of the Act - shall be conclusive evidence that all the requisitions in respect of - registration have been complied with, and the company is author-_ ized to be registered under the Act as a limited company. In

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by the rules and therefore ultra vires. The funds of the Association consist of the entrance fees, subscriptions of and levies and fines - made upon its members. These funds can only be lawfully expended in the manner provided by the rules. The position is the same whether such a body is incorporated or unincorporated. A member of a company or registered trade union or of an unincor- porated voluntary association, whether he brings the proceedings as an individual or on behalf of himself and all other members other than the members who are charged with making the unauthorized payments, is entitled to sue for a declaration that the payments are unauthorized, and for consequential relief by way of injunction if there is a threat to continue to make such payments'in the future, and for repayment in the case of past expenditure. In one of the early cases, Simpson v. Westminster Palace Hotel Co. (1), the Lord Chancellor said : - " The funds of a joint stock company established for one undertaking cannot be applied to another. If an attempt to do so is made, this act is ultra vires, and although sanctioned by all the directors and by a large majority of the shareholders, any single shareholder has a right to resist it, and a court of equity will interpose on his behalf by injunction." (2). In Yorkshire Miners' Association v. Howden (3), Lord Macnaghten pointed out that. the right of an individual member to sue in such a case did not depend upon the Miners' Association being a registered trade union, and that the action could have been brought if it had been a voluntary association. The question was whether its registration as a trade union prevented the plaintiff bringing the action. He said that this right to sue "was established in this House in the case of Simpson v. Westminster Palace Hotel Co. (1), and is, I apprehend, beyond question." (4). An unincorporated voluntary association cannot be sued (Bloom v. National Federation of Discharged and Demobilized Sailors and Soldiers (5) ), so that if the Police Association is not a registered trade union it is not a proper party. But the suit is otherwise properly constituted, and there would be no difficulty in making the necessary representative orders. A member of a voluntary association can only sue to enforce a civil right of a propri- etary nature conferred upon him by the rules (Cameron v. Hogan (6) ). Rule 144 of the rules of the Police Association provides that on a dissolution the surplus funds, after discharging debts and liabilities, shall be used only for the purpose of reorganizing the Association, so that the plaintiff is not entitled to share in these funds upon a

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or the correction of something wrong. The circumstances surround- ing the libel action were fortunately most unusual. First there was the arrest of the man and the charge of indecent exposure on 9th January 1943, followed by the direction of the Commissioner of Police that the charge should be withdrawn. Then there was a departmental inquiry into the honesty of the charge and of over 200 previous similar charges, followed by the suspension of the constables on 18th January. Then there was the publication by the Commis- sioner of Police of the article complained of in the press on 31st January, immediately followed by the prosecution of the man before the magistrate and the dismissal of the charge on the ground that the defendant was entitled to the benefit of the doubt. Finally there was the hearing before the Board constituted under the National Security (Man Power) Regulations and the reinstatement of the constables on 28th June. The whole of these events received the widest publicity. The Commissioner of Police had stated in the press that after a thorough investigation by five inspectors and nine sergeants of the current and previous charges he had decided to suspend the constables. He made it plain that he believed that they were guilty of the deliberate fabrication of a large number of false charges of a particular kind in the performance of their duties. There were inconsistent findings of the Departmental and Man Power Boards, and an indecisive finding by the magistrate. The constables had been reinstated in the force but a stigma had been put upon them. Their reinstatement in the circumstances left the question of their integrity undecided, and their future as members of the foree was in jeopardy. They still had a grievance, and it was a grievance of such a nature that an action for libel would be a normal method of obtaining redress. His Honour has found that the executive had a bona-fide belief in the justice of their cause. Rule 2 (c) is not confined, I think, to grievances affecting the police force generally, and is wide enough to cover any reasonable action calculated to secure redress for any grievance to which an individual policeman may become subject as a member of the force. For these reasons I would dismiss the appeal with costs.

At a glance

Court

Decision date

Before

Source

Judgment (185 paragraphs)

Parties