Bailey, James Leslie v Krantz, Harry David - [1984] FCA 219

Re: JAMES LESLIE BAILEY
And: HARRY DAVID KRANTZ & ORS.
SA No. 1 of 1983
Industrial law
55 ALR 345
13 IR 326

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial law - s. 141 Conciliation and Arbitration Act 1904 - jurisdiction of the Court - whether an arguable case exists - question of ownership of property and funds as between Organization and State Union - power to direct officer of Organization also an officer of State Union - joinder of parties - accrued jurisdiction - discretion not to exercise - appropriate forum - order invalidating elections - limitation period.

S. 141 Conciliation and Arbitration Act 1904 (Cth)

S. 133 Conciliation and Arbitration Act 1904 (Cth)

Regulation 115(1)(d) Conciliation and Arbitration Regulations

S. 51 Federal Court of Australia Act 1976

Moore v Doyle (1969) 15 F.L.R. 59

Philip Morris Incorporated v Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 C.L.R. 457

Fencott v Muller (1983) 46 A.L.R. 41

R. v Dovey; ex parte Ross (1979) 141 C.L.R. 526

Ascot Investments Pty. Ltd. v Harper (1981) 148 C.L.R. 337

Kennedy v Australasian Coal and Shale Employees Federation (1983) 50 A.L.R. 735

Meat and Allied Trades Federation of Australia v The Australian

Meat Industry Employees Union (unreported Neaves J; 13th June 1984)

Federated Clerks Union of Australia v. Hills (1981) 1 NSWLR 631

HEARING

ADELAIDE

#DATE 23:7:1984

ORDER

A. The questions for decision separately from any other question in the proceeding be as follows:

On the assumption that in this matter the applicant is only entitled to orders if he can establish:

(i) that the rules of the Organisation or Branch require the Respondents or some or all of them to hold property in the name of the Organisation or to deal with property in a specific way; and

(ii) that there is property of the Branch not so held or dealt with;

and on the further assumption that there is a doubt concerning whether title to any property is vested in the Organisation or in any association registered pursuant to the Industrial Conciliation and Arbitration Act, 1972 (S.A.), is it not necessary for it to be established whether the Organisation or the State Association has title to any property in respect of which orders pursuant to s.141 of the Conciliation and Arbitration Act, 1904 (the Act) might be made?

If the answer to 1 is yes, do the within proceedings purport to ask this Honourable Court to determine such questions of title?

If the answer to 2 is yes, does this Honourable Court have jurisdiction to determine such questions of title and if this Honourable Court does have such jurisdiction is that jurisdiction properly invoked by the Order to Show Cause made by His Honour Mr. Justice Fisher on 23rd March, 1983?

If the answers to the two questions in 3 are yes, does this Honourable Court have a discretion to refuse to exercise such jurisdiction and if this Honourable Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1984] FCA 219
Decision Date: 23 JULY 1984

CaseChat Overview and Summary

In the matter of Bailey, James Leslie v Krantz, Harry David, the parties were engaged in a legal dispute involving questions of property ownership, procedural compliance, and the jurisdiction of the court. The applicant, James Leslie Bailey, sought orders concerning the property and funds held by the Federated Clerks Union of Australia and its South Australian Branch. The legal issues the court needed to resolve included whether the court had jurisdiction to determine questions of property title, whether such jurisdiction had been properly invoked, and if the court could exercise its discretion to decline jurisdiction. Additionally, the court had to consider whether certain procedural rules were complied with and if certain orders should be discharged or struck out.

The court found that the questions concerning property title were indeed being raised in the proceedings. It held that the court did have jurisdiction to determine such questions, and this jurisdiction was properly invoked. The court determined that while it had a discretion to refuse to exercise its jurisdiction, it should not do so in this case. The court also found that the rules of the Federated Clerks Union arguably required the Secretary or Assistant-Secretary to inform the Branch Council of certain matters, and it was not necessary to determine whether the applicant had complied with the relevant procedural rule. The court concluded that certain paragraphs of the rule to show cause should not be discharged or struck out.

The final orders of the court were that specific questions regarding the property and funds were to be answered affirmatively, with the court retaining its jurisdiction and declining to exercise its discretion to refuse jurisdiction. Certain procedural issues were addressed, and it was decided that certain paragraphs of the rule to show cause should be discharged. Additionally, the Federated Clerks Union of Australia and the Federated Clerks Union of Australia, South Australian Branch, were to be added as respondents to the proceeding.

Orders

Orders of the court

A. The questions for decision separately from any other question in the proceeding be as follows:

On the assumption that in this matter the applicant is only entitled to orders if he can establish:

(i) that the rules of the Organisation or Branch require the Respondents or some or all of them to hold property in the name of the Organisation or to deal with property in a specific way; and

(ii) that there is property of the Branch not so held or dealt with;

and on the further assumption that there is a doubt concerning whether title to any property is vested in the Organisation or in any association registered pursuant to the Industrial Conciliation and Arbitration Act, 1972 (S.A.), is it not necessary for it to be established whether the Organisation or the State Association has title to any property in respect of which orders pursuant to s.141 of the Conciliation and Arbitration Act, 1904 (the Act) might be made?

If the answer to 1 is yes, do the within proceedings purport to ask this Honourable Court to determine such questions of title?

If the answer to 2 is yes, does this Honourable Court have jurisdiction to determine such questions of title and if this Honourable Court does have such jurisdiction is that jurisdiction properly invoked by the Order to Show Cause made by His Honour Mr. Justice Fisher on 23rd March, 1983?

If the answers to the two questions in 3 are yes, does this Honourable Court have a discretion to refuse to exercise such jurisdiction and if this Honourable Court does have such a discretion, should it exercise that discretion against the Applicant?

As to Orders to Show Cause (a) and (c), each of the questions raised in 1 to 4 above, in respect of the "land" referred to therein.

As to Orders to Show Cause (b) and (e), does any rule of the Organisation or Branch require the Secretary or Assistant-Secretary to inform the State Branch Council of any matter? Has the applicant complied with Order 4, r.15(5) of the Federal Court Rules? If not, should that Order to Show Cause be discharged or struck out pursuant to Order 11 r.16?

As to Orders to Show Cause (d) and (f), each of the questions raised in 1 to 4 above, in respect of the "monies deposited with a body known as the Satisfac Credit Union" referred to therein.

B. That the questions be answered as follows:

Yes.

If the Court does have a discretion to refuse to exercise its jurisdiction, which it is unnecessary to determine, the Court should not refuse to exercise its jurisdiction in the present case.

The answers to questions 1, 2, 3 and 4 are repeated.

The rules of Federated Clerks Union of Australia and its South Australian Branch arguably require the Secretary or Assistant-Secretary of that Branch to inform the Branch Council of that Branch of certain matters. It is unnecessary to determine whether the Applicant has complied with order 4 rule 15(5) of the Federal Court Rules. Paragraphs (b) and (e) of the rule to show cause should not be discharged or struck out.

The answers to questions 1, 2, 3 and 4 are repeated.

C. Paragraphs (h) and (i) of the Rule to Show Cause be discharged.

D. Federated Clerks Union of Australia be added as a Respondent to the proceeding.

E. Federated Clerks Union of Australia, South Australian Branch, an association registered pursuant to the Industrial Conciliation and Arbitration Act of South Australia, be added as a Respondent to the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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