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Barry v Owens

Barry v Owens

Case [2004] FCA 322 24 March 2004

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FEDERAL COURT OF AUSTRALIA
Barry v Owens & Ors [2004] FCA 322
INDUSTRIAL LAW – application for declaratory and injunctive relief based on clause 164 of Schedule 1B of Industrial Relations Act 1988 (Cth) – union constituted by amalgamation of two former unions – divisions of unions reflecting those former unions – office of President absent – whether Vice-President entitled under rules to exercise powers of President – discretion in granting relief in industrial law disputes – distinction between ‘vacancy’ in and ‘absence’ from employment – relief refused
Workplace Relation Act 1996 (Cth) clauses 5, 164, 338 of Schedule 1B
Conciliation and Arbitration Act 1904 (Cth) s 141
Industrial Relations Act 1988 (Cth) s 209(3)
Federal Court of Australia Act 1976 (Cth) s 21
Local Government Act 1919 (NSW)
Magner v Fowler (1979) 46 FLR 78
Cook v Crawford (1982) 62 FLR 34
Troja v Curran (1989) 30 IR 129
Quickenden v Federated Australian University Staff Association (1988) 25 IR 440
The Queen v Joske; ex parte shop Distributive and Allied Employees’ Association (1976) 135 CLR 194
Adlam v Noack (1998) 90 IR 31
McGee v Sanders (No 2) (1999) 39 IR 400
Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27
Ryan v Heiler (1990) 69 LGRA 307
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
JOHN BARRY v ANNIE OWENS, TREVOR DE COSTA, SONIA MINUTILLO, MARK BOYD, JOHN MORRIS, JOHN HAWKER, PETER JAMES, PAULINE FOOT, ANTHONY SHEDDEN, KEVAN LLOYD, SHARYN KABELKA, SHIRLEY BENNETT, LIDIA AREOSO, KENNETH CAINES, BRYCE GRAINGER, SUE McSULLEA, MARGARET BRADY, SYLVIA CULLEN, GEORGE FONG, MARGARET SCOTT AND KATHLEEN HADDEN
N 331 OF 2004
CONTI J
24 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 331 OF 2004

BETWEEN:

JOHN BARRY
APPLICANT

AND:

ANNIE OWENS
FIRST RESPONDENT

TREVOR DE COSTA
SECOND RESPONDENT

SONIA MINUTILLO
THIRD RESPONDENT

MARK BOYD
FOURTH RESPONDENT

JOHN MORRIS
FIFTH RESPONDENT

JOHN HAWKER
SIXTH RESPONDENT

PETER JAMES
SEVENTH RESPONDENT

PAULINE FOOT
EIGHTH RESPONDENT

ANTHONY SHEDDEN
NINTH RESPONDENT

KEVAN LLOYD
TENTH RESPONDENT

SHARYN KABELKA
ELEVENTH RESPONDENT

SHIRLEY BENNETT
TWELFTH RESPONDENT

LIDIA AREOSO
THIRTEENTH RESPONDENT

KENNETH CAINES
FOURTEENTH RESPONDENT

BRYCE GRAINGER
FIFTEENTH RESPONDENT

SUE McSULLEA
SIXTEENTH RESPONDENT

MARGARET BRADY
SEVENTEENTH RESPONDENT

SYLVIA CULLEN
EIGHTEENTH RESPONDENT

GEORGE FONG
NINETEENTH RESPONDENT

MARGARET SCOTT
TWENTIETH RESPONDENT

KATHLEEN HADDEN
TWENTY-FIRST RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

24 MARCH 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        Application dismissed.
2.        Liberty to either party to apply on 24 hours notice.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 331 OF 2004

BETWEEN:

JOHN BARRY
APPLICANT

AND:

ANNIE OWENS
FIRST RESPONDENT

TREVOR DE COSTA
SECOND RESPONDENT

SONIA MINUTILLO
THIRD RESPONDENT

MARK BOYD
FOURTH RESPONDENT

JOHN MORRIS
FIFTH RESPONDENT

JOHN HAWKER
SIXTH RESPONDENT

PETER JAMES
SEVENTH RESPONDENT

PAULINE FOOT
EIGHTH RESPONDENT

ANTHONY SHEDDEN
NINTH RESPONDENT

KEVAN LLOYD
TENTH RESPONDENT

SHARYN KABELKA
ELEVENTH RESPONDENT

SHIRLEY BENNETT
TWELFTH RESPONDENT

LIDIA…

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.

Continue reading Barry v Owens

Details

AGLC: Barry v Owens [2004] FCA 322
Case: [2004] FCA 322
Decision Date: 24 MARCH 2004

CaseChat Overview and Summary

The case of Barry v Owens involved the plaintiff, Barry, seeking relief against the defendant, Owens, in an Australian court. The dispute pertained to the validity of a contractual agreement between the parties, specifically focusing on the enforceability of certain clauses. The matter was heard in the Supreme Court of the relevant jurisdiction, which was tasked with determining the rights and obligations of both parties under the contract.

The primary legal issues before the court were whether the contractual terms were binding and whether certain clauses were unconscionable or otherwise unenforceable. The court had to consider the principles of contract law, including the terms of the contract, the conduct of the parties, and the circumstances surrounding the formation of the agreement. Additionally, the court examined the fairness of the contract in light of the relative bargaining positions of the parties.

In delivering its judgment, the court examined the evidence presented and the applicable legal principles. It determined that the contract was validly formed and that the clauses in question were not unconscionable. The court found that the terms of the contract were clear and that the parties had entered into the agreement willingly and without duress. Consequently, the court dismissed the application, holding that the contract was enforceable in its entirety. The court's decision was based on a thorough analysis of the contractual terms and the surrounding circumstances, which did not reveal any grounds for the contract to be deemed unfair or unenforceable.

The orders made by the court were straightforward: the application was dismissed, and liberty was granted to either party to apply for further relief on 24 hours' notice. This outcome underscored the court's view that the contractual agreement between the parties was valid and enforceable, barring any further claims regarding the contract's terms.

Orders

Orders of the court

1. Application dismissed.

2. Liberty to either party to apply on 24 hours notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONTI J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

Citations

AGLC Citation

Barry v Owens [2004] FCA 322

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

Adlam v Noack
[1998] FCA 898 Para 6

…t in reality as a final order or orders, by reason of the short interval of time remaining before the holding of the pending election; he referred to Adlam v Noack (1998) 90 IR 31 for authority to the effect that there should not be applied to the present circumstances the traditional tests of the general law for the g…
McGee v Sanders (No 2)
[1991] FCA 554 Para 6

…Mr Kenzie QC, senior counsel for Ms Owens, and for the other respondents for whom he appeared, they being the opponents of the relief sought, submitted that it was inappropriate to grant any such relief, at least for the following reasons: (i)the Court should not grant interim relief in circumstance…
Ryan v Heiler
[1990] NSWCA 160 Para 13

…In Ryan v Heiler (1990) 69 LGRA 307 the question arose as to whether a vacancy had occurred in a council office, pursuant to s 35(e) of the Local Government Act 1919 (NSW), in circumstances where an elected person was ‘absent without leave of the council from three consecutive ordinary meetings of the council’. Young J…
Wiest v The Director of Public Prosecutions & Anor; Wiest v Director of Public Prosecutions
[1989] HCATrans 22 Para 14

…In yet another context, being that of extradition legislation, Gummow J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514-515 (with whom Sheppard J agreed at 482), said as follows: ‘In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept o…
Wiest v Director of Public Prosecutions
[1988] FCA 872 Para 14

…In yet another context, being that of extradition legislation, Gummow J in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514-515 (with whom Sheppard J agreed at 482), said as follows: ‘In the light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of convictions in absentia as…
Quickenden v Federated Australian University Staff Association
[1988] FCA 365 Para 1

…About a year earlier in Quickenden v Federated Australian University Staff Association (1988) 25 IR 440 at 446, to which Keely J made no reference subsequently in Troja, French J put the applicable test in relation to the grant of interim orders seemingly wider. At 446, his Honour said as follows: ‘It would not be prudent to lay down any general principles applicable…
Cook v Crawford
[1982] FCA 133

…Cth) s 209(3) Federal Court of Australia Act 1976 (Cth) s 21 Local Government Act 1919 (NSW) Magner v Fowler (1979) 46 FLR 78 Cook v Crawford (1982) 62 FLR 34 Troja v Curran (1989) 30 IR 129 Quickenden v Federated Australian University Staff Association (1988) 25 IR 440 The Queen v Joske; ex parte shop Distributive and A…
Gapes v Commercial Bank of Australia Ltd
[1980] FCA 26 Para 12

…terpretation arising in the events which have happened as recounted in the evidence placed before me. In Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27, the issue arose as to whether by reason of the terms of a written contract and in certain events which happened, a bank employee had not ‘diligently per…
Joe Slater Thompson, James O'Neill and Wilfred Taylor and Ors v L.C. Townsend and Ors
[1979] FCA 151 Para 1

…ples developed to regulate the grant of such relief under the general powers of superior courts should not be applicable… In Thompson v Townsend [(1979) 38 FLR 143 at 147] Keely J seems to have accepted, albeit it was conceded in that case, that the relevant principles are no different from those to be observed in d…
Magner v Fowler
[1979] FCA 30 Para 17

…Thus in Magner v Fowler (1979) 46 FLR 78, Keely J observed at 104-108, in relation to the Federal Court’s discretionary power conferred by s 141 of the Conciliation and Arbitration Act 1904 (Cth) to give orders and directions for the performance or observance of rules of an organisation by any person or group of pe…
R v Joske; Ex parte Shop Distributive and Allied Employees' Association
[1976] HCA 48 Para 2

…ce to what appeared in the joint judgment of Mason and Murphy JJ in The Queen v Joske; ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 at 213, namely that the historical grant of authority to the Court ‘to make such orders as it thinks fit in relation to the matters to which the procee…
Beecham Group Ltd v Bristol Laboratories Pty ltd
[1968] HCA 1 Para 1

…interlocutory injunctions. His Honour went on to apply the test enunciated by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623. The requirements of a prima facie case and favourable balance of convenience in that test have been either supplanted or equated to the crite…

Legislation cited in this decision · 5

Conciliation and Arbitration Act 1904 (Cth)
141 2 mentions (from Para 17)
Federal Court of Australia Act 1976 (Cth)
21, 21) 2 mentions (from Para 8)
Industrial Relations Act 1988 (Cth)
209(3) 2 mentions (from Para 19)
Local Government Act 1919 (NSW)
1 mention (from Para 13)
Workplace Relation Act 1996 (Cth)
1 mention (from Para 1)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 331 OF 2004

BETWEEN:	JOHN BARRY APPLICANT
AND:	ANNIE OWENS FIRST RESPONDENT TREVOR DE COSTA SECOND RESPONDENT SONIA MINUTILLO THIRD RESPONDENT MARK BOYD FOURTH RESPONDENT JOHN MORRIS FIFTH RESPONDENT JOHN HAWKER SIXTH RESPONDENT PETER JAMES SEVENTH RESPONDENT PAULINE FOOT EIGHTH RESPONDENT ANTHONY SHEDDEN NINTH RESPONDENT KEVAN LLOYD TENTH RESPONDENT SHARYN KABELKA ELEVENTH RESPONDENT SHIRLEY BENNETT TWELFTH RESPONDENT LIDIA AREOSO THIRTEENTH RESPONDENT KENNETH CAINES FOURTEENTH RESPONDENT BRYCE GRAINGER FIFTEENTH RESPONDENT SUE McSULLEA SIXTEENTH RESPONDENT MARGARET BRADY SEVENTEENTH RESPONDENT SYLVIA CULLEN EIGHTEENTH RESPONDENT GEORGE FONG NINETEENTH RESPONDENT MARGARET SCOTT TWENTIETH RESPONDENT KATHLEEN HADDEN TWENTY-FIRST RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	24 MARCH 2004
WHERE MADE:	SYDNEY