Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia

[1991] FCA 270

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	)
GENERAL DIVISION	1 No. VG77 of 1991

On appeal from Jenkinson J

B E T W E E N :

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION

Appellant

MEAT & ALLIED TRADES FEDERATION OF AUSTRALIA

Respondent

Coram:  Olney J

Place : Melbourne RECEIVED

Date:  22MAY 1991

- 17 May 1991 FEDERAL COURT OF

AUSTRALIA PRINCIPAL

REASONS FOR DECISION REDISTRY

The respondent to this appeal seeks an order that the appellant provide the sum of $36,000 as security for the costs of the appeal, and ancillary to such order, a further order that until security is given the appeal be stayed.

for or in relation to the furnishing of security.

Section 56 of the Federal Court Act empowers the Court or a Judge to order an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him, and this power does not affect the operation of any provision made by or under any act or by the Rules of Court

Order 52 Rule 20 of the Federal Court Rules provides that unless the Court or a Judge otherwise orders, no security for costs of an appeal to the Court shall be required.

The application for security is based upon the asserted belief that the appellant, if unsuccessful in the appeal, will be unable to pay the respondent's costs.

Both parties to the appeal are organisations registered pursuant to the provisions of the Industrial Relations Act 1988. The appellant operates throughout Australia and has branches which have particular responsibility in defined geographical areas. There are branches in each of the states of New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania. The Queensland branch includes the Northern Territory whilst the New South Wales branch includes the ACT. There is also a branch in Newcastle, New South Wales. The central administration is conducted by a Federal Council. The membership of the appellant is in the

vicinity of 45,000 - 50,000.

It does appear from the evidence that the appellant may have been less than assiduous in complying with its statutory obligations to file financial returns in the Industrial Registry, but I am unable to draw any adverse inference from that fact in the context of the present application.

I do not propose to canvass the extensive documentary evidence produced by the partles touching upon the financial affairs of the appellant over the last two financial years. The evidence does not provide any basis upon which a finding can be made as to the overall solvency of the appellant, either at the present time or at any specific prior date. What can be said is that as at 30 June 1990 the balance sheet of the Federal Council showed a net deficit of $348,674 whilst the balance sheets of the Western Australian, Victorian and Queensland Branches at the same date disclosed a combined surplus of $1,376,770. At 31 December 1919 the New South Wales Branch balance sheet showed a surplus of $496,017. I am unable to make a finding on these facts that the appellant is currently solvent, nor can a contrary finding be made.

Upon a full consideration of what material is before me I have reached these conclusions. First, contrary to the submission of the respondent, I am satisfied that the appellant should be treated for what it is, namely a single body with corporate

entity, having assets and liabilities throughout Australia.	It is inappropriate to look simply at the position of the
Federal Council to assess the solvency of the appellant.
Second, that the Federal Council has authority to levy the membership up to $50 per week and has from time to time imposed levels for special purposes. Having regard to the amount for which security is sought, and the approximate membership of the appellant, a one-off levy of about 70 cents

per member would be adequate to satisfy any order for costs
that may follow an unsuccessful appeal.

Third, the Federal Council, although presently in a deficit position so far as its own net assets are concerned, has access to bank overdraft accommodation of the order of $185,000.

The foregoing findings support an inference that the appellant will be able to meet a costs order if unsuccessful. The respondent has failed therefore to establish that the appellant is likely to be unable to meet any adverse order for costs.

I would dismiss the application for security.

I certify that this and the

preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Olney

"socia=eJ,q - P

Dated:  17 May 1991

:  9 May 1991

Delivered	. 17 May 1991
council for res~ondent :	ELr D.G. Russell QC and
Mr R.R.S. Tracey
Solicitors for res~ondent:	Dunhill Madden Butler

counsel for ao~ellant . Mr M. Bromberg

Solicitors for a~oellant :  Ryan Carlisle Thomas

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