Williams v Hursey [1959] HCA 51 | Case summary

Williams v Hursey [1959] HCA 51 | Case summary | Zoe

[11]

A further question which was raised and which should be disposed of at this stage relates to the character and standing of the Hobart branch of the federation. As appears the branch was made a defendant in the first and second actions and much of the evidence was concerned with the actions of officers and the committee of management of the branch and also with the conduct of members of the branch. It is spoken of as if it were an unincorporated association with an existence independent of the federation and, for this reason, substantially, it was thought that it might properly be named as a defendant pursuant to O. LIII rr. 13 et. seq. of the Supreme Court Rules. For much the same reason an application to dismiss the branch from the proceedings was unsuccessful. But in my view the branch is not, and was not, an "unincorporated society, fellowship, club or association" within the meaning of the rules and it was wrongly named as a defendant. The rules present a number of difficulties but my reason for this conclusion may be shortly stated. It does not appear from the facts before us when the Hobart branch came into existence or whether it, or any predecessor, was originally, or at any other time organized as a trades union or any other form of association. But it would be unreasonable to suppose that the branch, as such, is, or ever was, so organized. Examination of its rules and the relationship which it bears to the federation clearly reveals that it exists as part only of the larger organization and not as an independent association organized to serve the common interests of the so-called branch members. I say "so-called" branch members because they are at one and the same time members of the federation which, though it may comprise a number of branches, is the corporate body of which all the branch members are "corporators". Likewise, the branch rules are not designed as the rules of an association with an independent existence; they are but "branch" rules which, subordinately to the federal rules of the federation which bind all members, regulate branch activities and proceedings and the relations of each branch with the federal body.

[13]

The facts concerning the making of the political levy are as follow. In October 1956 the two plaintiffs in the second matter (F. J. and D. V. A. Hursey) were members of the Hobart branch of the federation and, pursuant to the Stevedoring Industry Act, they were "registered waterside workers". But during that month the so-called "political levy" was imposed upon members of the branch. The genesis of the levy is to be found in a recommendation of the committee of management of the Hobart branch. What happened was that on the 25th September 1956 the committee resolved "That this executive recommends a 10s. 0d. levy be struck to assist Labor Party in the Election Campaign". This resolution was for the purpose of assisting the political party known as the Australian Labor Party in its campaign during the election of members of the Tasmanian House of Assembly which was to be held during the month of November 1956. After this recommendation had been agreed to the secretary notified the members of the branch that a stop-work meeting would be held on 4th October 1956 for the purpose of considering the proposal. Rule 35 of the branch rules provides that "stop work meetings" of the branch "shall constitute the highest authority of the Branch, and it shall be competent to deal with any question". But, for reasons which it is not material to mention, it became apparent on 1st October 1956 that 4th October 1956 would not be a suitable date. Thereupon notice of a stop-work meeting was then given for the next day, 2nd October 1956. This notice was given by an announcement which appeared that day on a blackboard situated at the "pick-up" centre in the building in Hobart occupied by the Australian Stevedoring Authority and notice in this form was, according to the learned Chief Justice, "in accordance with a practice that had been followed for many years". About six hundred members of the branch attended the meeting and after other business had been disposed of the matter of the executive's recommendation came up for discussion. After some discussion and the rejection of an amendment it was resolved that the recommendation be accepted. Subsequently, on 11th October 1956, the federal body, purporting to act under r. 26 (f) of the federal rules, endorsed the levy and notice that the levy was payable was then given by a further announcement on the blackboard at the "pick-up" centre.

[16]

The broad question which arises upon these facts is whether the branch could lawfully make a levy upon its members for the specified purpose, that is, "to assist Labor Party in the Election Campaign", and it may not be out of place to observe at the outset that if the problem to be solved was simply whether or not the rules were sufficiently comprehensive to authorize what was in fact done little difficulty might be experienced in solving it. The rules are framed in very general terms and one might, perhaps, conclude that the making of a political levy for the specified purpose could reasonably be regarded as one method of pursuing the branch's object of regulating and protecting "the wages and conditions of labour" and of fostering the "best interests" of its members. But unfortunately the question is not capable of such a simple solution. Considerations of this character were of the essence of the decision in Steele v. South Wales Miners Federation [1] but that case must be taken to have been overruled three years later by the decision in Amalgamated Society of Railway Servants v. Osborne [1] . The fact is that trades unionism has had a long and complex history and it is beyond doubt that in England, until the passing of the Trade Union Act 1871, a trade union with the general objects and powers of the Hobart branch, or of the federation, would have been characterized as an unlawful association (see Trade Union Law - N. A. Citrine (1950) pp. 9, 10, Hilton v. Eckersley [2] , Hornby v. Close [3] and Russell v. Amalgamated Society of Carpenters and Joiners [4] ) though its mere creation and existence would not have offended against the criminal law: R. v. Stainer [5] . But whatever significance the expression "unlawful" had in this context much of it disappeared upon the passage of the Act of 1871. By that Act, as amended by the Trade Unions Amendment Act 1876, the term "trade union" was defined to mean "any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade". Thereafter it provided that the purposes of any trade union should, not by reason merely that they were in restraint of trade, be unlawful so as to render void any agreement or trust and that they should not, by reason of the same circumstance, be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy. These provisions of the English legislation were of critical importance in Osborne's Case [1] . In that case the House of Lords was concerned with a rule of a trade union registered under the Acts in question which purported to authorize the exaction of contributions from its members for the purpose of securing Parliamentary representation and their Lordships were unanimously of the opinion that the rule was invalid.

[19]

In 1913, the effect of this decision was, to a large extent, abrogated by the Trade Union Act of that year. By this Act it became possible in England for trade unions to apply their funds for any lawful objects or purposes for the time being authorized under their respective constitutions and, within prescribed limits and subject to specified conditions, they were authorized to apply their funds in the furtherance of certain specified political objects. The political objects specified were the payment of any expenses incurred either directly or indirectly by a candidate or prospective candidate for election to Parliament or to any public office, the holding of any meeting or the distribution of any literature or documents in support of any such candidate or prospective candidate, the maintenance of any person who should be a member of Parliament or who should hold a public office, activities in connexion with the registration of electors or the selection of a candidate for Parliament or any public office, the holding of political meetings of any kind and the distribution of political literature or political documents of any kind. But the funds of a trade union were not to be so applied unless the furtherance of those objects had been approved as an object of the union by a resolution for the time being in force and unless approved rules were in force providing, firstly, that any payments in furtherance of those objects should be made out of a separate fund (the "political fund" of the union) and, secondly, for the exemption of any member of the union from any obligation to contribute to such a fund if he should give notice in accordance with the Act of his objection to contribute. Again the rules were required to provide that a member exempt from the obligation to contribute to the political fund should not be excluded from any benefits of the union, or placed in any respect either directly or indirectly under any disability or at any disadvantage as compared with other members of the union by reason of his being so exempt and, further, that contribution to the political fund should not be made a condition for admission to the union.

[22]

The effect of Osborne's Case [1] , however, extended beyond Scotland and England. First of all it may be noticed that when the Commonwealth Conciliation and Arbitration Act was enacted in 1904 s. 55 contained a proviso that no registered organization should be entitled to any declaration of preference by the court when and so long as its rules or other binding decisions should permit the application of its funds to political purposes or require its members to do anything of a political character. This section was, of course, enacted some years before Osborne's Case [1] declared the law and the proviso was repealed by the Commonwealth Conciliation and Arbitration Act 1910 which was assented to on 29th August 1910, that is to say, approximately nine months after the decision in Osborne's Case [1] had been given. But the provisions of s. 172A of the Commonwealth Electoral Act 1911, which was inserted by amendment in December of the following year, provide grounds for thinking that the repeal of the proviso at this time ought not to be regarded as significant. Then in 1914, (in O'Sullivan v. Finch [3] ) Heydon J., sitting as a member of the Arbitration Court of New South Wales, held that a levy made by the Railway Workers' and General Labourers' Association for the purpose of assisting in the establishment of a political newspaper was invalid. In the course of his reasons the learned judge expressed the view that Osborne's Case [1] was decisive of the matter and, accordingly, he declared the levy to be invalid. Subsequently in 1918 Harvey J., in Allen v. Gorton [2] applied the principles of Osborne's Case [1] in declaring ultra vires a resolution that a payment of £100 should be made out of the funds of a registered trade union in order to aid the "anti-conscription" campaign of that year. These decisions, no doubt, led to the enactment in New South Wales of Pt. VIIA of the Industrial Arbitration (Amendment) Act 1918. By s. 52A of that Act a trade union was declared to have power to apply and use the moneys and other property of the union for and in connexion with any lawful object or purpose for the time being authorized by its rules, and without limiting the generality of this provision, it authorized the application of money and property to the furtherance of political objects so long as rules of the union were in force providing (1) that any payments in the furtherance of such objects should be made out of a separate fund; (2) that contribution to such separate fund should not be a condition of admission to or membership of the said union; and (3) that a member who should not contribute to such separate fund should not be excluded from any benefits of the union or placed under any disability or at any disadvantage as compared with other members of the union by reason of his failure to so contribute. The expression "political objects" was defined to mean the payment of any expenditure incurred either directly or indirectly by a candidate or prospective candidate for election to Parliament or to any public office, before, during, or after the election in connexion with his candidature or election; or the holding of any meeting for distribution of any literature or documents in support of any such candidate or prospective candidate; or the maintenance of any person who is a member of Parliament or who holds a public office; or the registration of electors, or the selection of a candidate for Parliament or any public office; or the holding of political meetings of any kind or the distribution of political literature or political documents of any kind or the maintenance and publication of a newspaper other than a non-political trades journal. These provisions were repealed in 1926 by the Industrial Arbitration (Amendment) Act of that year but were re-enacted again as s. 107 of the Industrial Arbitration Act 1940. In the meantime the Trade Union Act of 1915 had been passed in Queensland, and this Act defined the statutory objects of a trade union to include among other things "the establishment and maintenance of newspapers or political objects as herein defined if combined with all or any of the aforesaid objects". The "aforesaid objects" were the fundamental objects commonly to be found in the constitution of a trade union and the expression "political objects" was, by definition, limited to much the same matters as those specified in the English Act of 1913.

[27]

As appears formation of an association is a prerequisite to registration and the provision that the rules of an association "may also provide for any other matter not contrary to law" was seized upon for the purpose of founding the contention that the rules of the Hobart branch ought not to be so construed as to authorize the imposition of "political levies". So construed, it was said, the rules would make provision for a matter contrary to law. There may be some doubt, however, whether the critical expression has any relevance to the present inquiry (cf. Ohinemura Mines and Batteries Employees' Industrial Union of Workers v. Registrar of Industrial Unions [1] ; but see Australian Workers' Union v. Coles [2] and Australian Tramway Employees' Association v. Batten [3] ) but, even if it has, the answer is made that a rule conferring such authority is not contrary to law and, since the rules of the association were, in terms, wide enough to confer such authority full effect should be given to them. The problem which these contentions raise must, of course, be considered in its proper perspective. The question is not whether a rule of a trade union purporting to confer such a power is, by virtue of State law or by virtue of the laws of some States, unlawful at the present time. What we are concerned with is whether a rule authorizing the making of such a levy made provision for a "matter not contrary to law" at the time when the federation applied for registration as an organization. So understood the inquiry does not suggest, as was contended, that State law can operate to circumscribe the powers of an organization brought into existence by Commonwealth law. On the contrary, it is concerned with the question whether an association of employees with such a rule would satisfy the requirements of the Commonwealth Act with respect to registration. If not, there would be strong grounds for constraining the very general words of the rules in question. This does not, of course, deny that even if the initial problem be resolved favourably to the federation there may yet be grounds which require that the language of the rules cannot be understood in its widest and most general sense.

[29]

We have been told little, if anything, concerning the formation of the federation or concerning the form of its rules at the time when it became registered. But it may be safe to assume that this occurred before 1915: See Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association [4] . If this assumption be correct it became registered before the Queensland Act of 1915 and the New South Wales Act of 1918 were enacted so that there was not then in force any State law positively declaring it to be unlawful for a trade union to expend its funds for political purposes. The federation, no doubt, was formed on a Commonwealth-wide basis but this does not mean that, for the purposes of State laws then in existence, it failed to answer the description of a trade union in any State where a branch was established. As such, the question whether its objects were unlawful in any State involved a consideration of State law. But each State had substantially adopted the provisions of ss. 2, 3 and 4 of the Trade Union Act 1871 Imp. to which a brief reference has already been made. This legislation made it clear that the purposes of any trade union should not, by reason merely that they were in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise (s. 2). Likewise, it provided that the purposes of any trade union should not, by reason merely that they were in restraint of trade, be unlawful so as to render void or voidable any agreement or trust (s. 3). By s. 4 it was provided that nothing in the Act should enable any court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the agreements thereinafter specified. But nothing in the section was to be deemed to constitute any of the specified agreements unlawful. Reference to these provisions indicates that, at the relevant time, a rule relating to any of the several matters specified in s. 4 stood in much the same position as a rule authorizing expenditure by a trade union for political purposes as a means of advancing its objects. That section related to agreements between members of a trade union concerning the conditions on which they might be employed, agreements for the payment by any person of any subscription or penalty to a union, agreements relating to sick pay or strike pay and a number of other matters. Neither in the case of rules - or "agreements" - with respect to these matters nor in the case of a rule authorizing expenditure for political purposes could the assistance of the courts be invoked as a means of enforcement. But in neither case were such rules "unlawful" in any other sense. The question then is whether the fact that a rule authorizing the imposition of a levy to be expended on political purposes in aid of the objects of an unregistered trade union was not enforceable at law precludes the conclusion that, at the relevant time, such a rule made provision for a matter "not contrary to law" within the meaning of that expression in the Conciliation and Arbitration Act. In my view it does not for the expression "contrary to law" is by no means synonymous with "not enforceable at law". Indeed to hold otherwise would compel us also to say that unregistered trade unions having a rule, or rules, dealing with any of the matters specified in s. 4 could not have obtained registration as an organization under the Commonwealth Act. Clearly no such result was intended or produced and the attack which is made upon the levy on this ground must fail. Some confirmation for this conclusion may, perhaps, be found in the provisions of s. 34 of the Commonwealth Electoral Act 1911. This section inserted in Pt. XIV of the principal Act s. 172A and 172B. The former section imposed upon trades unions and organizations, in common with certain other bodies, which had expended any money or incurred any expense on behalf of or in the interests of any candidate or political party or for specified political purposes, the obligation to make a return of such expenditure to the Commonwealth Electoral Officer. Such a provision, it seems to me, assumed that expenditure of this character by a trade union or an organization was not unlawful.

[31]

A further reason was advanced for asserting that the Hurseys' refusal to pay the levy did not and could not result in forfeiture of their membership of the federation. Portion of r. 35 of the branch rules has already been quoted but it has not yet been pointed out that the rules make some, though somewhat indefinite, provision with respect to notice of stop-work meetings. Rule 34A provides: "All members of the branch must attend all special and stop-work meetings provided same have been duly advertised or notice has been posted on the notice board at the Secretary's Office". This rule does not prescribe any length of notice but rule 35 provides: "Stop-work meetings of the branch shall constitute the highest authority of the branch and it shall be competent to deal with any question or alter any of the Branch Rules by a three-fifths majority provided always the prescribed notice of one (1) week prior to the holding of the meeting has been handed to the President ". The circumstances in which the stop-work meeting was called have already been mentioned and it is clear that if the condition prescribed by the italicized proviso applies to all stop-work meetings and not only to those called to consider alterations to the rules, the meeting was informal. However, the learned Chief Justice considered that this was a mere irregularity and that it was a matter which might be cured by a vote of a majority of the branch at a properly convened meeting. Then upon the principles discussed in Cotter v. National Union of Seamen [1] and by Latham C.J. in Stevens v. Keogh [2] he expressed the view that it would not be proper to interfere on this ground alone. But where the matter complained of is not merely the non-observance of the rules of a corporation or an association in the management of its domestic affairs but, on the other hand, an alleged consequential forfeiture of membership those principles have no application (cf. Labouchere v. Earl of Wharncliffe [3] ). I agree, however, with the other members of the Court that, upon its true construction, the proviso applies only to meetings called to consider alterations to the branch rules and this sufficiently answers the objection that the prescribed notice of the stop-work meeting was not given.

[33]

A further ground upon which it is asserted that the Hurseys forfeited their membership rights was that they refused to pay their membership contributions for the year 1957 within the time specified by the rules. A determination of this issue would involve consideration of a number of questions, both of fact and law, but it is unnecessary to pursue them for the "political levy" was validly made and the consistent failure of the Hurseys to pay it was, alone, sufficient to bring them within the operation of those rules of the federation which are concerned with the forfeiture of membership for non-payment of contributions and levies. The relevant rules are rr. 19 (a) (ii) and 20 (b). The latter rule provides that "Every member of this Branch who has not paid his contribution for the current year on or before the 31st March shall be deemed to be unfinancial, and his number shall be withdrawn from the roster list". (cf. Federal rule 26 (b)). The consequences of becoming "unfinancial" are prescribed by the next succeeding sub-rule. It is in the following terms: "Any member being in arrears for contributions, fines, fees, levies or dues shall be unfinancial and shall forfeit all rights of membership and shall be liable to have proceedings taken against him under the provisions of the Commonwealth Conciliation and Arbitration Act or sued in any Court of competent jurisdiction for the recovery of same". But apparently, this sub-rule does not mean that the result of failure to pay a levy on the due date is cessation, as distinct from suspension, of membership. Sub-rule (a) (ii) of r. 19 - which deals with "Cessation of Membership" - provides that "Any member who for twelve calendar months commencing in January of each year has during that period Failed to pay any contribution, fees, fines, levies or dues as and when they became payable in that year under the rules of the Organization or of his Branch Shall at the end of such twelve calendar months cease to be a member of the Organization". This rule presents difficulties of its own but it sufficiently appears that mere failure to pay at some particular time during the specified period is not sufficient to effect a forfeiture of membership. The "failure" contemplated by the rule, it seems, is certainly not less than an initial failure to pay before the due date - with its consequent suspension of membership - followed by a continuance of that failure until the end of a complete calendar year. This means that the Hurseys ceased to be members of the federation at the end of 1957 and, accordingly, there is no point in pursuing the question whether, in the circumstances disclosed by the evidence, they failed to pay their membership contributions for that year and whether, by reason of such failure, they forfeited their rights of membership.

[36]

For the Hurseys it was contended that the relevant provisions of the order were so inconsistent with the provisions of the 1956 Act with respect to the control and regulation of waterside labour in relation to stevedoring operations that the order must be taken to have ceased to have effect when that Act was passed. The learned Chief Justice assented to this proposition and, in reaching his conclusion, he adopted the reasoning which led Ashburner J., sitting as a presidential member of the Commonwealth Conciliation and Arbitration Commission, to hold that the provisions of the Act precluded the Commission from making an order for preference to union members in the employment of waterside workers for stevedoring operations. While there may be much to be said for this view it is unnecessary and, I should think, undesirable to express any final opinion on the point for it is of no real consequence in these proceedings whether the order survived the enactment of the 1956 Act or not. If, as I have said, the Hurseys remained members of the federation during 1957 its provisions had no relevance to the determination of the first suit and if, as I think is apparent, the order did not provide any legal justification for the matters complained of in the second suit and to which I shall refer presently, they may again be disregarded. And when it is seen that the order was expressly revoked more than a month before the third suit was commenced the foundation of the claims in those proceedings disappears. Finally the claim that the order continued to subsist during 1958, or, that the defendants in the second action believed that it did, is made in face of the pronouncement of Ashburner J. to which reference has just been made. This pronouncement rested upon the view that the 1956 Act "itself provides a scheme of preference to members of the Federation and lays down the limits of that preference" and, accordingly, that any extraneous prescription of preference would be inconsistent with the provisions of the Act. These views were contained in a judgment delivered by the Commission on 19th March 1958 and it would be idle to suppose that the federation and its officers were not aware that the assertion that the order remained in force was at variance with the grounds upon which Ashburner J. had rejected the application for an award for the preferential employment of members of the federation.

[39]

The details of the means alleged to have been agreed upon in combination and used to prevent the plaintiffs from presenting themselves for work are set out in the statement of claim with somewhat terrifying complexity but, fortunately, the mass of evidence which was given during the hearing of the suit has been subjected to careful scrutiny and analysis by the learned Chief Justice. Consideration of his reasons and of the arguments advanced before us leave no doubt that the award of damages which was obtained by the plaintiffs against the defendants in this suit could not, on any view, be justified by the matters referred to in (5) above, whilst the degree of confusion involved in the allegations mentioned in par. (4) make it virtually impossible to determine whether it is desired to make the defendants liable for a number of independent infringements of the plaintiffs' rights or whether the assertions are merely an unnecessary repetition of the acts previously alleged to have been done in pursuance of the combinations mentioned in (1), (2) and (3). However, these allegations may safely be ignored as an independent source of liability on the part of all of the defendants. I hasten to add that the claims mentioned in pars. (4) and (5) were not, in terms, the foundation for the award which the plaintiffs obtained and that being so it is unnecessary that further reference should be made to them. Nor, although he found that the defendants acted in combination to prevent the plaintiffs from presenting themselves for work and, at a later stage, to prevent them from obtaining employment, was the learned Chief Justice prepared to find "that the predominating or main purpose of the conspiracy was to injure the plaintiffs". "The predominating purpose of the conspiracy was not" he said "malevolent but to assert a claim of majority rule in union affairs". We were asked to reverse this finding of fact, but I am unable to perceive any reason why we should. On the contrary there is every reason for thinking that the view which his Honour formed on this point is not open to question. That being so, the plaintiffs were not entitled to succeed upon the cause of action mentioned in (2) above. There was, however, ample evidence to establish the existence of a common agreement to prevent the plaintiffs from presenting themselves for work on the waterfront and, at a later date when they were allowed to present themselves, to ensure that they would not be employed. The means devised and used to bring these results about were discussed in great detail by the learned Chief Justice and it is unnecessary that I should set out the substance of the evidence again. Nevertheless, it is desirable to point out that between 12th February 1958 and 23rd March 1958 twenty-three "mass picket lines", were established for the purpose of preventing the plaintiffs from going to their work. Many of these so-called "picket lines" consisted of as many as 100 to 250 men and they stood shoulder to shoulder barring the plaintiffs' progress on their way to present themselves for work. A consideration of the evidence leaves no doubt whatever in my mind that the following findings of the learned Chief Justice were not only justified but inevitable: "I find that every picket line in the series constituted a threat (by conduct) to use force against the plaintiffs to prevent them passing through the picket line if they made any attempt to do so. It was made quite plain to the plaintiffs by the conduct of the men in the early picket lines that they would be repelled by force if necessary. In almost every picket line there was some display of hostility. I find the inference inescapable that the mass picketing by the men on each occasion was a threat to use unlawful means of resort to physical force against the plaintiffs to repel any attempt by them to pass through". I do not enlarge upon the variety of incidents which occurred on these occasions but it is only proper to say that the matters upon which the learned trial judge made his findings were proved to the point of demonstration.

[42]

To my mind there is not the slightest doubt that the so-called "picket lines" and the tactics subsequently adopted to prevent the plaintiffs obtaining employment were the result of a preconceived and prearranged plan. The spasmodic attempts at negotiation which had occurred in 1957 had failed, the final offer which was made by the general secretary of the federation in January 1958 had been rejected, the final break had occurred and the time had come for stern measures. What those measures were and what their immediate purpose and effect was is only too clearly revealed by the evidence. And there was "such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert": per Isaacs J. in The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries [1] . But the fact of common agreement was not left to be established merely by inference from the character and sequence of the separate acts proved. The individual defendants, other than William Percy Brown and Noel Garnett Jackson, were office bearers in the Hobart branch and there is the clearest evidence that they actively supported and encouraged the establishment of "picket lines" as a means of preventing the Hurseys from obtaining employment and that they themselves took a leading part in them on many occasions. It is also true that these individual defendants also took part in devising, organizing and supporting the tactics subsequently employed to prevent the Hurseys from obtaining work. I have had some doubt whether the conduct of W. P. Brown and Jackson can be described in quite the same way. They were not office bearers and the evidence goes no further than to establish that they attended the "picket lines" on some occasions. W. P. Brown attended on seven or eight occasions and there may be some doubt whether he first attended on 21st February 1958 or not until 18th March 1958. Jackson seems to have attended on five occasions only, namely, on 13th, 14th and 18th February 1958 and 5th and 17th March 1958. While there can be no doubt that, on these occasions, these defendants made common cause with the others then present I think it may be carrying inference too far to say that the evidence established that they were parties to the agreement pursuant to which the "picket lines" were so consistently established. It is, of course, clear enough that on occasions they lent their assistance to the conspirators but this is not to say they were conspirators themselves. It may be that they were joined as defendants because when the statement of claim was drawn they were thought to be members of the committee of management of the Hobart branch. Indeed, it is so alleged in the statement of claim but this was denied by the defence filed on behalf of the individual defendants and, as already appears, the evidence seems to show that they were not members of the committee. There was a finding by the learned Chief Justice that neither of them held any office in the branch and, on the whole, I am of the opinion that they should not have been held liable.

[46]

The question whether excessive damages were awarded has given me some concern. Plainly enough the learned Chief Justice gave a great deal of thought to the question of damages and his assessment should not be disturbed unless we are satisfied that he proceeded upon some wrong principle, that he failed to take some material factor into account or that the amount is clearly unreasonable. But upon consideration I am of the opinion that the damages should be reduced and I shall briefly state my reason for this conclusion. I agree with all that the learned Chief Justice has said concerning the conduct of the defendants which was inexcusable and which warranted grave censure. Particularly was this so when it is remembered that the question whether the Hurseys had forfeited their membership of the federation might readily have been determined by legal process. But by February 1958 reason had departed and in the mistaken belief that some important industrial principle was at stake the officers of the federation took the law into their own hands. They took it upon themselves to decide, finally and irrevocably, that the Hurseys were no longer members of the federation and then set about giving full force and effect to their decision. The resultant lawlessness and hostility makes a picture that is far from pleasant. However, the Hurseys must also, to some extent, share the blame for bringing this state of affairs about. No doubt they believed that they were within their rights in refusing to pay the political levy but what great principle was at stake when they were told that, instead of paying it for the benefit of the Australian Labor Party, they might nominate any other political party or some charity? And, indeed, if, as they claimed, they objected to the element of compulsion which still remained, upon what grounds of reason and commonsense did they in October 1957 refuse to pay their contributions when the offer was made to accept them without the political levy? Up to this point of time they had been prepared to do this and their complaint was that the branch would not accept their contributions without the amount of the political levy. But instead of doing what they maintained they had theretofore always been prepared to do there was some delay. Then emerged the suggestion that a reduced sum should be paid. One shilling should be deducted from the amount of the subscription. By this time the relations between the parties were deteriorating and to anyone with the slightest experience of industrial affairs it must have been obvious that with the departure of reason and commonsense open hostilities would soon break out. Not unnaturally they did and the Hurseys must inevitably take some share of the blame for it. It is because this circumstance does not appear to have been taken sufficiently into account in the assessment of damages that I feel that the award should be reduced. It is, of course, true that the rights of the Hurseys were infringed by conduct which was both arrogant and inexcusable but I cannot help but think that their own conduct - uninfluenced, at times, by any matter of principle which I can recognize - contributed in no insignificant way to their own detriment. In all, I think that the damages should be reduced to the sum of £1,000 in each case and I agree that, subject to the dismissal of William Percy Brown and Noel Garnet Jackson from the second suit, the three matters should be disposed of by orders in the forms proposed.

[50]

In broad outline, what happened was that the Hurseys refused to pay the political levy and did not pay their ordinary subscriptions for the year which ended on 31st December 1957; they were there-upon treated by the federation, the Hobart branch and its members as having ceased to be members of the federation; and when the Australian Stevedoring Industry Authority called them up as registered waterside workers for stevedoring work along with members of the Federation, drastic action was taken to prevent them from working. On twenty-five occasions between 12th February 1958 and 11th June 1958, picket lines of members and supporters of the Waterside Workers Federation of Australia, up to two hundred in number, formed human barricades to prevent the Hurseys going to work upon the Hobart wharves; on some occasions, the Hurseys were assaulted, threatened and insulted by individuals in the picket lines by pushing, jostling, throwing eggs and calling out threats and abuse; at all times, the picket lines were menacing and intimidating and there was no doubt that sufficient force to prevent the Hurseys going upon the wharves would have been used by those who formed the picket lines. This picketing ceased following an interim injunction restraining it, which was granted in the second action on 13th June 1958, and subsequently other tactics were employed to prevent the Hurseys from working. On nine occasions between 17th June and 18th July 1958, waterside workers who were members of the federation and who had been picked up to work with the Hurseys, walked off the jobs and so, in each case, brought about the dismissal of the Hurseys. These tactics had been employed twice before the picketing began, that is, on 5th and 6th February 1958, but they had been abandoned in favour of picketing because it did not entail the members of the federation stopping work themselves. As a result of the action taken, the Hurseys were not able to work as waterside workers from 5th February 1958 up to 18th July 1958, or seemingly up to the date of judgment because loss of wages up to 31st October 1958 was treated as an item of damages.

[53]

(1) The jurisdiction of the Supreme Court of Tasmania: At the hearing of the actions in the Court below, no objection to jurisdiction was taken but, upon this appeal, Mr. Eggleston argued for the appellants that s. 147 of the Conciliation and Arbitration Act 1904-1956 deprived the Supreme Court of Tasmania of jurisdiction to hear and determine the first and second actions. Section 147 is as follows: "Unless the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction". It is not necessary to state exhaustively what is the jurisdiction of "the Court", i.e., the Commonwealth Industrial Court, because it does not extend to the hearing of actions such as were instituted in the Supreme Court of Tasmania. It is sufficient to say that I consider that the section, so far as is material, deprives any other court of jurisdiction to hear a suit against an organization or a member of an organization if that suit is within the jurisdiction of the Industrial Court, but does not attempt to deny to another court jurisdiction to hear a suit - which the court could not itself try - on the ground that it concerned an act or omission about which the Court could decide in a suit which it could hear and determine. If an organization were to be sued for libel, the argument I reject would deny to a State court jurisdiction to hear the action, not because a federal court had exclusive or, indeed, any jurisdiction to do so, but because, for example, in the action it fell to be determined whether the plaintiff had acted in disregard of the rules of that organization (which is a question within the jurisdiction of the court in properly constituted proceedings). As I construe the section, I think it is within constitutional power (ss. 51 (xxxv), (xxxix) and 77 (ii)). If, however, it had to be construed in the way I reject, I would regard it as outside power because it would seek to deprive State courts of their jurisdiction otherwise than by defining the extent to which the jurisdiction of a federal court is exclusive of that of a State court (s. 77 (ii)).

[59]

It is convenient to consider first the laws of the States other than New South Wales and Queensland, because in these latter States there are special provisions that are obviously to be explained by the decision of the House of Lords in Amalgamated Society of Railway Servants v. Osborne [1] . The particular statutes are: Victoria - Trade Unions Act 1928; South Australia - The Trade Union Act 1876-1935; Western Australia - Trade Unions Act 1902-1924; and Tasmania - Trades Unions Act 1889-1924. In these States, these statutes are not to be distinguished from those which were in force in England when Osborne's Case [1] was decided, i.e., the Trade Union Acts of 1871 and 1876, though not the Trades Disputes Act 1906. Osborne's Case [1] did decide (independently of the view taken by Lord James of Hereford and Lord Shaw of Dunfermline) that a trade union could not use its funds for political purposes because the Trade Union Acts defined exhaustively how the funds of a trade union could be used and the use in question was outside that definition. The decision was with respect to a registered trade union but it seems to me that its ratio decidendi applied equally to an unregistered trade union; and this was so decided soon afterwards in Wilson v. Scottish Typographical Association [2] . The definition of trade union in the Act was a definition of both registered and unregistered combinations, and the fourth section applied to registered and unregistered unions alike; with the greatest respect to those who take a different view, it seems to me that the decision in Osborne's Case [1] both in the Court of Appeal and the House of Lords turned upon the definition of "trade union" and the terms of s. 4. Moreover, it is to be noticed that when in 1913 the English law was amended to allow trade unions, subject to certain restrictions, to apply their funds in furtherance of political objects, the amendment applied to unregistered as well as registered unions. Osborne's Case [1] is a decision which in my opinion is not to be applied where its application can be avoided but the Trade Union Acts of the specified States are the same as the English Acts there authoritatively interpreted and short of rejecting the decision of the House of Lords, I see no escape from the conclusion that as a trade union, an association to which the laws of one of these States applies cannot impose a levy for political purposes.

[65]

The object of Pt. VIII of the Commonwealth Act is to give capacity to associations which become registered organizations. The scheme adopted is to take associations as they exist, provide for their registration, give them perpetual succession and a common seal, the right to hold and deal with property, the capacity to sue or be sued - all "for the purpose of this Act" - control them as organizations, provide for their de-registration but not for their dissolution, and authorize them to take part in the processes of industrial conciliation and arbitration for the purposes of s. 51 (xxxv) of the Constitution. The Act does not deal with trade unions as such but authorizes those whose association is as members of a trade union to be registered. It is obviously necessary that a registered organization should, for Commonwealth purposes, have the same capacity in all States and it would inevitably frustrate those purposes if the various Trade Union Acts of the States were to affect its constitution as a registered organization, although as a trade union, I consider that State law could continue to operate upon an association notwithstanding its registration as an organization. The constitution of a registered organization is to be found in part in particular provisions of the Act, e.g., ss. 136 and 146, and in part in the rules with which it is incorporated. These rules, for which the Act provides, must contain specified provisions, e.g., s. 133, and may contain any other provisions "not contrary to law". Upon registration, the organization has all the powers that spring from its rules as well as those directly conferred by the Act itself and State law cannot add to or detract from the powers which registration under Commonwealth law confers either directly or indirectly. The special difficulty about an association which is also a trade union seems to me to arise in two ways. The first is that the State Trade Union Acts make it possible to argue that a rule of such an association which authorizes the imposition of a political levy is "contrary to law" in the sense of r. 115 (g) of the Commonwealth Conciliation and Arbitration Regulations, so that such an organization with such a rule ought not as a matter of Commonwealth law to be registered as an organization. I do not think this is so, however, both because I would regard such a rule as nugatory rather than illegal according to State law and because I am not satisfied that the phrase "contrary to law" imports all the provisions of all State legislation. If, for instance, the laws of each State were to provide that every voluntary organization must bank with the savings bank of that State, I would not think that the rules of an association which gave it power to bank with any bank would prevent it from obtaining registration as an association. Nor do I think that the introduction of such laws would afford ground for quashing under s. 140 the rule of an organization authorizing it to bank where it liked as a rule "contrary to law". This brings me to the second difficulty, namely, whether an association which is a trade union can be said to have a rule which Commonwealth law can quicken if what it has is a provision that is nugatory according to the law of any State applicable to it. I think it can, because all that State law is concerned with is the effectiveness of the rule for the purposes of that law. For example, if a trade union were registered in New South Wales and in Victoria and it had a rule relating to political levies effective in New South Wales because of the special provisions already referred to but not effective in Victoria, the rule could be enforced in New South Wales while in Victoria it would be appropriate to say that the trade union had a rule ineffective there. In the same way, an association which is a trade union and which has a rule authorizing political levies without any restriction can at the point when it applies for registration as an organization be described as having a rule, albeit an ineffective rule, so that, after the registration of the association as an organization, the rule can become effective as part of the constitution of the organization. The conclusions I have reached on this difficult part of the case are substantially the same as those reached by Walsh J. in his valuable judgment in Wheatley v. Federated Ironworkers Association [1] .

[70]

Order 38 of 1948 was an order continued in force by the Stevedoring Industry Act 1949 and was, further, an order that was in force immediately before the date of the commencement of the Stevedoring Industry Act 1956. That Act, by s. 6 (4) (a), provides, therefore, that the "order shall not cease to be in force by reason of the enactment of this Act". By s. 6 (5) (a) it further provides that such an order "shall, for the purposes of this Act and the Conciliation and Arbitration Act 1904-1956, be deemed to be an award or order made by the Commission under Division 4 of Part III of that last-mentioned Act". Section 6 (7) then, so far as is material, provides that such an order "may be varied or revoked by the Authority by an order which the Authority is empowered to make under section eighteen of this Act". Section 17 of the Stevedoring Industry Act 1956 enumerates the functions of the Stevedoring Industry Authority and it is provided by sub-s. (1) (f) that one such function is "to make arrangements for allotting waterside workers to stevedoring operations so as to ensure, as far as practicable, a fair distribution of work in stevedoring operations amongst registered waterside workers". By s. 18 (1) it is provided that "for the purpose of the performance of its functions under the last preceding section, the Authority may, subject to this section, make such orders, and do all such other things, as it thinks fit". The only other part of s. 18 that I regard as material is sub-s. (5) which provides: "An order under this section shall not be expressed to apply to a particular person or to a particular stevedoring operation, but may be expressed to apply - (a) to persons included in a class of persons; (b) to a class or kind of stevedoring operations; or (c) at a particular place". Section 19 of the Act is as follows: "(1) Subject to sub-section (4) of section eighty-four of the Conciliation and Arbitration Act 1904-1956, an order of the Authority has effect notwithstanding anything inconsistent therewith contained in an award of the Commission (whether made before or after the making of the order by the Authority) and the award of the Commission is, to the extent of the inconsistency, of no effect. (2) The Authority shall not make an order which, in the opinion of the Authority, will be inconsistent with an award of the Commission unless the Authority has first consulted with the presidential member of the Commission assigned for the purpose of exercising the powers of the Commission under Division 4 of Part III of the Conciliation and Arbitration Act 1904-1956, and the presidential member has agreed to the making of the order". Section 20 (1) (c) gives orders made by the Authority the force of law.

[73]

In this field, I think it unwise to go beyond the necessities of the case and I therefore refrain from expressing any view upon the question whether the Commission could award preference to members of the federation or by an award revoke an existing order granting preference to such persons. In the circumstances of this case, I do, however, feel obliged to come to a conclusion upon the contention that the Stevedoring Industry Act 1956 of itself repealed O. 38 of 1948. In view of s. 6 (4) (a) of the Act, it would have done so only if inconsistency is to be found between the terms of the Act and the terms of the order, and I find no such inconsistency. It seems to me that the Authority might carry out its functions under s. 17 (1) (f) and ensure a fair distribution of work in stevedoring operations amongst registered waterside workers subject to the existence of a provision giving preference to members of the federation. There was, therefore, in my judgment no repeal of O. 38 of 1948 when the Stevedoring Industry Act 1956 came into operation. It follows that the members of the Waterside Workers Federation were entitled to preference as against the Hurseys, at least between 1st January 1958 and 17th June 1958. This is a matter to which I shall return in dealing with the Hurseys' claim for damages for conspiracy. Port Order 21 of 1958, however, came into force on 17th June 1958. Because the third action was commenced on 8th July 1958, the order is a complete answer to the claims made therein if the revocation of Port Order 38 of 1948 was effective. I think it was, and I have reached this conclusion because I consider that the function of the Authority to make arrangements for allotting waterside workers to stevedoring operations so as to ensure as far as practicable a fair distribution of work in stevedoring operations amongst registered waterside workers requires it to form its own judgment on what is a fair distribution of work, and if it finds that an order for preference prevents it from ensuring what it considers to be a fair distribution, it has power, pursuant to s, 6 (7) and s. 18, to revoke such an order. I merely add that if the Commission were to make an order for preference under Div. 4 of Pt. III of the Commonwealth Conciliation and Arbitration Act 1904-1956 (and in view of par. (k) of the definition of industrial matters in s. 81 I think it could make some such order) and there were inconsistency between such an order and an order of the Authority under s. 18 of the Stevedoring Industry Act, then the case would be one for the application of s. 19 of the Stevedoring Industry Act.

[75]

(5) Conspiracy: Some general observations about the law of conspiracy are, I think, necessary. If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy. Although it is probably too late in the day to divide conspiracies, for the purpose of legal classification, into two sorts depending upon whether the purpose of the combination would be lawful or unlawful if it were the purpose of an individual, there is much to be said in favour of approaching any consideration of the law of tortious conspiracy and its application in that way. It is, I think, quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement. The same it seems is true if the agreement is to do something which, if done by an individual, would be a tort or breach of contract, although authority for this depends upon dicta (see e.g. South Wales Miners' Federation v. Glamorgan Coal Co. Ltd. [1] , per Lord Lindley [2] ; Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [3] , per Viscount Simon L.C. [3] , per Lord Wright [4] , per Lord Porter [5] ) rather than upon decided cases except the old cases of conspiracy for falsely indicting one of felony and such like, where the tort of conspiracy is closely associated with malicious prosecution. See Skinner v. Gunton [6] and Bullen & Leake's Precedents of Pleadings (1868) 3rd ed., p. 290. Up to this point the term "unlawful" in relation to conspiracies means something that is itself and independently of any element of combination, a criminal or civil wrong. The law has, however, gone further and treated as unlawful the doing in combination of some things which could be done by an individual without any infringement of public law or private rights.

[77]

Since Quinn v. Leathem [7] it has, to use the words of Lord Buckmaster in Sorrell v. Smith [8] been settled "that acts done in pursuance of a conspiracy having for its real purpose the injury of a man in his trade or calling are an actionable wrong" [9] , but the findings of Burbury C.J. negative conspiracy of this sort. He said: "I hold that the Federation the Branch and the individual Defendants combined together or acted in concert for the immediate object of preventing the Plaintiffs presenting themselves for work or for the immediate object of procuring their dismissal. The immediate object in either case was unlawful. And unlawful means were used to achieve the object. The Federation, the Branch and the Defendants and officers and members of the Branch were all parties to the conspiracy As the immediate objective of the Defendants acting in concert was unlawful and unlawful means were used it is unnecessary for me to determine whether there was an unlawful "conspiracy to injure" the Plaintiffs in accordance with the principles enunciated by the House of Lords in the Veitch Case [10] and by the High Court in McKernan v. Fraser [11] . But I think it proper that I should make certain findings of fact relevant to this issue. I am not satisfied upon the whole of the evidence that the predominating or main purpose of the conspiracy was to injure the Plaintiffs I have no doubt that the actions of Healy, Bull, Shepherd and a number of others were partly inspired by hostility to the Plaintiffs on political grounds. But from the whole of the evidence I think the proper inference is that the Federation would have resorted to direct action against any member who deliberately refused to pay a political levy resolved upon by the majority of members. I think the real genesis of the dispute was the failure of the Plaintiffs to comply with a majority decision to impose the levy. This was regarded as a threat to solidarity in Union affairs I am not satisfied that Mr. Healy or any of the officers of the Hobart Branch honestly believed that the interests of the Union would directly suffer if the direct action taken against the Plaintiffs was not taken and the result of the Court's determination of the issues of the validity of the levy and the Plaintiffs' membership of the Union was awaited". The finding that the real purpose of the conspiracy was not to injure the Hurseys in their calling was criticized by counsel for the respondents as being inconsistent with the other findings in the quotation. The finding which negatived harm to the plaintiffs as the predominant purpose of the conspiracy is, however, one to which I feel bound to adhere, especially because, contrary to the view of his Honour, I am, as I have already said, of the opinion that between 1st January and 17th June 1958 the members of the Waterside Workers Federation were entitled to preference in employment as against the Hurseys and because this was wrongly denied by the Stevedoring Industry Authority, what was done by the defendants was really in defence of the rights of the federation and its members. As the respondents' real object was thus the protection of the interests of the federation and its members, this puts out of the way conspiracy to do something "unlawful" in the vague sense of harming the Hurseys by preventing them from working, and leaves the case as one where, if there was an actionable conspiracy, it was because the agreement which formed the conspiracy was an agreement to do something that was positively unlawful, whether as a means or as an end. If this was the case it cannot be justified as being in defence of the federation's rights or interests.

[81]

I do not find it necessary to examine all these findings and contentions in relation to the picketing that occurred because I am satisfied about one thing that is of itself amply sufficient to support the conclusion of Burbury C.J. that the picketing was unlawful and that any agreement to prevent the Hurseys from working, by picketing, was an actionable conspiracy. I consider the picketing was unlawful independently of whether the picket lines were formed where the Hurseys were entitled as of right to go and independently of any particular acts or threats of violence on the part of individuals in the picket lines, because the forming of the picket lines itself amounted to intimidating, preventing, hindering or dissuading the plaintiffs, who were registered waterside workers, from offering for, obtaining or accepting employment as waterside workers in stevedoring operations and was therefore contrary to s. 44 (1) (b) of the Stevedoring Industry Act. For two hundred people to assemble and stand together to bar a man's way to work is by itself and without assaults, threats and abuse, intimidation sufficient to deter a man of resolution and fortitude from returning to face the ordeal again. Mr. Eggleston, for the appellants, pursuing the metaphor that identifies a man with a stake in the ground, argued that the picket line was just a fence that prevented passage and that, leaving out of account the assaults, threats and abuse of some of those who were in the line, there was nothing intimidatory about a band of men in formation barring the Hurseys from the wharves. This contention I reject. The united will of two hundred men so banded together would cause in the mind of the one whose way is barred a sense of concern and timidity that a row of stakes, even if they were spiked and linked with barbed wire so as to be both insurmountable and impenetrable, would never produce. Such a fence would effectively prevent passage to work; the living barricade would not only do so just as effectively but would also tend to deter those against whom it stands from attempting to go to work. This was the view of Mr. Healy who, in his evidence, said that a man seeing two hundred of his workmates lined up against him might well say "I am not going through there" and "Well, if that is what they think of me, I won't attempt to go through".

[82]

The learned trial judge also found that the action of those members of the federation who were engaged to work with the Hurseys, in leaving the job to bring about their dismissal, was unlawful, but with respect I am not disposed to agree with this conclusion. Section 36 (1) (e) of the Stevedoring Industry Act does authorize the Stevedoring Industry Authority to cancel or suspend the registration of a waterside worker who has failed to complete an engagement for employment as a waterside worker, and the power so conferred was employed in relation to waterside workers who walked off the job to bring about the dismissal of the Hurseys. This provision does not, however, make the walking off unlawful, as Burbury C.J. appears to say. His Honour, furthermore, treated the walking off as inducing a breach of contract on the part of the employers who dismissed the Hurseys but those dismissals were not, so far as I can see, a breach of contract by the employers. Had the walking off been "without reasonable cause or excuse", it would have been a breach of s. 44 (2) of the Stevedoring Industry Act, which is as follows: "A registered waterside worker shall not, without reasonable cause or excuse, refuse to accept employment or perform work in stevedoring operations with another person who is a registered waterside worker or is employed as a waterside worker by virtue of section forty of this Act". There was, however, no finding of absence of reasonable cause or excuse and I am not prepared now to make such a finding. It may be that after 17th June 1958 when Port Order 38 of 1948 was revoked, there was nothing that could be regarded as reasonable cause or excuse except that the Hurseys were not members of the federation; but in a case where the learned trial judge has considered all aspects of the case so carefully, I would have no confidence in making a finding in favour of the Hurseys that he has refrained from making, particularly as the Chief Justice proceeded on the finding that the Hurseys remained members of the federation, whereas I have reached the conclusion that they ceased to be members. I have therefore come to the conclusion that the finding that the walking off was unlawful cannot stand and it would follow that the carrying out of an agreement to walk off, if that were all, would not be an actionable conspiracy. I am not, however, prepared to regard the walking off as something done pursuant to an agreement separate from the general agreement to prevent the Hurseys from working. My view of the findings of the Chief Justice of Tasmania is that there was a combination to prevent the Hurseys from working and to do so by means some of which were unlawful, so that the combination was, as a whole, an unlawful conspiracy. This conspiracy was, to start with, carried out by action not in itself unlawful, namely, by the men walking off the job on 5th and 6th February. Later, and until the injunction was granted, it was carried out by unlawful means, namely, picketing. After the injunction, there was a reversion to the earlier tactics. In such a case, I do not think it possible to dissect what was done pursuant to the agreement into what could have been done lawfully and what could not. The agreement to use unlawful means vitiated it entirely and made it an actionable conspiracy when it was carried out so as to cause damage to the plaintiffs; indeed, it was from the start an indictable conspiracy. In other words, the conspiracy was actionable because some of the means for carrying it out were unlawful and, therefore, all that was done was done pursuant to an unlawful conspiracy. Therefore, my conclusion as to the walking off is that, although it was not unlawful in itself, it is not to be disregarded in determining whether the Hurseys suffered damage by reason of the carrying out of an actionable conspiracy or in assessing their damages.

[84]

In so far as the argument depended upon the doctrine of ultra vires and asserted the incapacity of the federation or the branch to do unlawful acts in the carrying out of the lawful and express object of securing preference of employment for members of the organization, it is entirely contrary to the decision of the House of Lords in Taff Vale Railway Company v. Amalgamated Society of Railway Servants [1] where a trade union was held liable for the wrongful conduct of agents in managing a strike which was a lawful object of the Society. The judgment of Farwell J., which was unreservedly approved by the House of Lords, contains the following passage which is relevant to the contention based on the doctrine of ultra vires: "The defendant Bell was the general secretary and the defendant Holmes was the local organizing secretary of the society; they, as agents for the society, and on their instructions and for their benefit, put themselves in charge of the strike, and on the evidence that was read last week illegally watched and beset men to prevent them from working for the company, and illegally ordered men to break their contracts. I have already held that the society are liable for the acts of their agents to the same extent that they would be if they were a corporation, and it is abundantly clear that a corporation under the circumstances of this case would be liable. See, for example, Ranger v. Great Western Ry. Co. [2] where Lord Cranworth points out that, although a corporation cannot in strictness be guilty of fraud, there can be no doubt that if its agents act fraudulently, so that if they had been acting for private employers the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agents act is a corporation. It is not a question of acting ultra vires, as in Chapleo v. Brunswick Permanent Building Society [3] but of improper acts in the carrying out of the lawful purposes of the society" [4] . See too the speeches of Earl of Halsbury [5] , Lord Macnaghten [6] , Lord Shand [7] , Lord Brampton [8] and Lord Lindley [9] . It is, moreover, now established that a company can be criminally or civilly liable for conspiracy: R. v. I.C.R. Haulage Ltd. [10] ; Pratt v. British Medical Association [11] and see also Winfield's Law of Torts 5th ed. (1950) p. 440; although earlier a different view had been taken: see R. v. Kellow [12] . When a company merely acts through its directors, it is, however, not properly described as combining with them - O'Brien v. Dawson [1] - although in Egan v. Barrier Branch of the Amalgamated Miners' Association [2] it was decided (and I consider correctly) that a trade union can be sued civilly for conspiring with its own members to commit a tort. Cullen C.J. said: "The Taff Vale case showed, and it has never been since questioned, that the effect of the registration of trade unions under the Act is to give them at least a quasi-corporate status, which distinguishes between the entity known as a trade union and the individuals who may chance to be its members just as completely, for the present purpose, as in the case of the difference between a fully incorporated company under the Companies Act and the individuals who are its members. There would for instance be nothing illogical in suggesting that individual members of the union, whether they are office bearers or not, might enter into communication with either the governing body of the union or its general meeting - might even solicit from them authority to carry out illegal acts, and therefore in a very true sense be said to have entered into a conspiracy with them to do those illegal acts, and that this might be followed by a resolution on the part of the union's meeting or its executive that those acts be carried out by the agents. In many cases before the English Courts similar conspiracies have been alleged. I know none of them in which it was suggested that such a conspiracy could not be proved, and were there any doubt about it the decision of the High Court in Heggie's Case would be quite sufficient authority, and one binding upon this Court". [3] . The incorporation of the federation as a registered organization makes even less tenable the objection of ultra vires.

[87]

The federation, which consists of some fifty-four branches, has a constitution and rules divided into two parts, the second part of which consists of rules relating to branches and which, inter alia, authorizes branches to make rules subject to a resolution of the federal council of the federation. Part I of the constitution and rules of the federation proceeds on the footing that there are branches of the federation and that the way in which a person becomes a member of the federation is to seek membership through a branch. A person becomes a member of the federation and of the branch in which he is enrolled when the branch secretary transmits to the general secretary of the organization the applicant's name, a duplicate of his application for membership and a registration fee of two pounds. There is, as I see it, no membership of the branch as distinct from membership of the federation. The federation is a registered organization but the Hobart branch is not. It does not appear whether the federation or the branch is registered as a trade union. This short survey leads me to the conclusion that the Hobart branch is but part of the federation, and it has no separate existence as a trade union or other voluntary organization. What is said in Hall v. Job [1] with regard to a subordinate lodge of the Loyal Orange Institution of New South Wales appears to me to apply mutatis mutandis to the Hobart Branch as part of the Federation: "The purposes which the members of the Lodge have in common are none other than the purposes for which they are members of the Institution. The Lodge does not exist as a society of persons who desire to associate exclusively with one another for agreed purposes; it exists as an integral part of a larger organization, of which all the members are associated for the pursuit of purposes common to them all in accordance with a constitution which governs them all. A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits, and for the performance of the obligations and functions, which are the incidents of their membership of the Institution" [2] .

[90]

The evidence of Healy in these actions established by itself quite clearly that he was aware of, and approved of, the picketing that took place and not only approved of, but suggested the walking off tactics - "Pinkenba" tactics, as they were called after the place where they were first successfully used in a demarcation dispute between the federation and the Australian Workers Union. Healy also sent Wallington to Hobart "to ensure that our views were properly understood" and, although when Wallington himself took an active part as a member of the picket lines he was told by Healy not to do so again, that was not because of any lack of approval of the picketing that was occurring. Of greater significance, however, than anything that was done by Wallington himself, is the fact that although the tactical task of preventing the Hurseys from working was left to the Hobart branch, it was left to the Hobart branch as part of the federation, and the federation stood behind the branch in what it did in handling the matter, and, in Hobart by direct action and elsewhere by representations and propaganda, controlled the strategy of the campaign that was carried on. As Healy said, when the Hurseys ceased to be members of the Federation, they ceased in "our" view to have any right to work on the waterfront as waterside workers, and it then became an important matter for the federation to "resist the attempt to enforce employment of non-unionists and to encourage non-payment of union dues", to use the language of a pamphlet "Truth About The Hurseys" which the federation itself prepared and circulated. In resisting this "attempt", it was, in Healy's view, a matter for the branch to decide how they would handle the matter; his evidence was "We would leave it to them to handle", but it is clear that it was the job of the branch to handle the matter as part of the federation and on behalf of the federation as a whole. As Healy said: "I believe that we have the right to picket and prevent men going to work as waterside workers if they are not entitled to work"; "I am speaking from the Federation point of view, the national point of view". His evidence was that he regarded what was done as industrial "action within the association" which was preferable to the Federation's resorting to the courts to obtain payment of amounts owing by members. In my judgment, all these things taken together afford a solid foundation for the finding of the Chief Justice that the federation was a party to the conspiracy. However, I am not prepared to go so far as Burbury C.J. did and find that the federation, as distinct from the branch, expressly authorized the picketing "if not by prior authorization at least by subsequent ratification".

[95]

Conclusion: In order to deal with the substance of the matters before the Court, I have for the sake of simplicity proceeded as though there are three appeals to this Court from judgments of the Supreme Court of Tasmania. The actual position is, however, somewhat more complicated. In the first action, there is before the Court an application for special leave to appeal from an order declaring the political levy invalid "upon the ground that it was not expressly or impliedly authorized by the federal or branch rules" of the organization. As my own opinion is that the political levy was valid, I consider that the application for special leave should be granted and the appeal allowed. In the second action, the appeal is an appeal as of right and I would allow the objection of the Hobart branch of the Waterside Workers Federation. Furthermore, I would discharge so much of the judgment as declares that the Hurseys "are and were at all material times" members of the federation and that cl. 15 of Port Order 38 of 1948 ceased to have any operation upon the coming into force of the Stevedoring Industry Act 1956, and substitute declarations to the effect that the Hurseys remained members of the Federation until 31st December 1957 but not thereafter and that Port Order 38 of 1948 remained in force until 17th June 1958 when it was revoked by O. 21 of 1958. I would also reduce the damages awarded from £2,500 to £1,000. In the third action, an appeal was taken from the judgment of Burbury C.J. to the Full Court of the Supreme Court of Tasmania and, upon the hearing of that appeal, the Full Court decided that it raised for consideration inter se questions within the meaning of s. 74 of the Constitution and also that, by virtue of s. 40A of the Judiciary Act, the action was automatically removed to this Court. Whether or not this was so was not argued before us and as I am not satisfied that any question did arise as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or, indeed, that there was any case arising under the Constitution or involving its interpretation that would justify an order for removal under s. 40 of the Judiciary Act, I am inclined to think that the best course to follow would be to treat the matter as an application for special leave to appeal from the judgment of the Chief Justice of Tasmania in the third action and then dismiss the application on the ground that Port Order 38 of 1948 was validly revoked before the action was brought. However, as the other members of the Court consider the matter should be dealt with by an order under s. 40, I am prepared to agree to this course and to the order proposed.

Williams v Hursey

At a glance

Court

Decision date

Before

Source

Judgment (95 paragraphs)

Parties

Cases Cited (1)

Cited By (16)