Beitseen, R. v Johnson, L.P.

[1989] FCA 736

Re: ROMINA BEITSEEN; CARLO FRIZZIERO; GEORGE GRUNDY; JIM MAVRODIS;
CHARLIE MUSCAT; TONY RUSSO and JOHN STEVENS
And: LESLIE PAUL JOHNSON; ELSIE HILL; EILEEN JENKINS; BABS JUDGE; DEBRA
SHERRY; SHIRLEY SKIDMORE; TONY SPITERI and ANDREW SPEZZIGU
No. VI9 of 1989
FED No. 736
Practice and Procedure
29 IR 336

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Woodward(1), Northrop(1) and Ryan(1) JJ.

CATCHWORDS

Practice and Procedure - appeal - implied power of court not to proceed further with appeal where issues in controversy no longer have real practical significance - account taken of likelihood of costs of one or more parties being borne by public purse and of constraints of time and resources to which Court is subject.6

Federal Court of Australia Act 1976 s 23

Federal Court Rules 0 20 r 2

Hole v Insurance Commission (1962) VR 394

Parsons v Martin (1984) 58 ALR 359

Hughes v Western Australian Cricket Association(Inc.) (1986) 66 ALR 541

HEARING

MELBOURNE

#DATE 29:11:1989

Counsel for the Appellants: Mr Kenzie QC

Mr Kimber

Solicitors for the Appellants: Gill Kane & Co

Counsel for the 1st Respondent: Mr Borenstein

Solicitors for the 1st Respondent: JN Zigouras & Co

Counsel for the 2nd-8th Respondents: Mr PJ Harris

Solicitors for the Maurice Blackburn
2nd-8th Respondents: & Co

JUDGE1

By a motion on notice dated 25 September 1989, the first-named respondent has sought that this appeal be struck out. The appeal is from certain orders made by Gray J on 21 March 1989. Those orders directed the members of the Committee of Management of the Victorian Branch of the Confectionery Workers Union of Australia ("the Union") to perform and observe the rules of that organization by treating the respondent Johnson as having been appointed validly on 8 November 1988 to the office of assistant secretary of the Victorian Branch, and by treating as null and void and of no effect a purported resolution of the Committee of Management of the Victorian Branch that the secretary be instructed to request the Industrial Registrar to arrange an election for the position of assistant secretary to which Gray J held Mr Johnson had validly been appointed.

1. Mr Johnson's appointment was for the unexpired term of office of the previous incumbent as assistant secretary. It is common ground that the unexpired term will expire in December this year, and that an election is now in progress to determine who should fill the office for a full term from that time. Mr Johnson and two other persons are candidates in that election. We have been told from the Bar table that Mr Johnson has instituted proceedings for an inquiry into the pending election on the ground that one of his rival candidates was not qualified to be nominated for election.

2. Mr Borenstein of Counsel for the respondent Johnson has contended that the conclusion of the pending election will render academic the issues remaining to be argued on this appeal. Those issues as detailed by Mr Kenzie Q.C. and Mr Kimber of Counsel for the appellants in their outline of submissions are:-
   

(i) whether Mr Johnson was eligible to be appointed assistant secretary pro tem, having regard to the fact that at the time of the appointment he held the office of vice-president and had not given

notice of intention to resign that office. That issue raises the application, in the context of the rules of the Union, of the so called "doctrine of incompatible offices";

(ii) whether the Committee of Management had power to fill by appointment a casual vacancy before the vacancy had come into existence by virtue of the resignation of the previous incumbent having taken effect;

(iii) whether the appointment of Mr Johnson as assistant secretary, assuming it to have been valid, had not effectively been revoked by a second meeting of the Committee of Management on 25 November 1988.

1. Mr Kenzie argued that the issues to which we have just referred raise important questions of general application as to the proper construction of the rules of the Union and the conduct of meetings. However, those questions cannot be decided on this appeal without reference to the particular facts which have given rise to the litigation. For the Court to resolve them in the abstract would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing. This Court shares that aversion, and is confirmed in it by the realization that any conclusion which it might reach would bind only the immediate parties to the appeal, and not the Union itself.

2. It was suggested that a resolution in favour of the appellants of what we regard as academic questions might have a practical consequence if steps were taken to recover from the respondent Johnson remuneration which he had received while performing the duties of assistant secretary pursuant to the order of Gray J. However, proceedings to recover that remuneration have not so far been instituted, so the suggested practical consequence remains hypothetical. As well, it must be remembered that Mr Johnson's entitlement to remuneration would not be concluded by the validity or otherwise of his appointment as assistant secretary, but could turn on whether he entered on the appointment and performed the duties in good faith. In that context it is appropriate to point out that no application was made on behalf of the appellants for a stay of Gray J's order, or for an expedited hearing of the appeal.

3. It was similarly suggested that the resolution of this appeal could affect Mr Johnson's entitlement to remuneration from 8 December 1988, when his appointment purportedly took effect, to March 1989 when Gray J's order became operative. Mr Johnson has not been paid for that period. However, except for a letter of demand from his solicitors to the Victorian Branch of the Union, no step has been taken by him to recover any moneys in respect of that period.

4. We do not consider that the possibility of litigation as to Mr Johnson's entitlement to remuneration for any part of the period from 8 December 1988 until his appointment expires on 5 December 1989 warrants this Court in determining this appeal by giving what would still be essentially an advisory opinion of no more than persuasive authority if the litigation were ever to eventuate. In the circumstances revealed to us there is, in the words used by the Full Court of the Supreme Court of Victoria in Hole v Insurance Commissioner (1962) VR 394 at 394, "now no real contest between the parties as to the right" of Mr Johnson to occupy the office of assistant secretary. We do not suggest that the appellants do not genuinely desire to agitate the issues involved in the grounds of their notice of appeal. However such a desire does not satisfy the requirement indicated in Hole v Insurance Commissioner(supra) that "the legal right of the parties" should now be "in actual controversy". On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.

5. In our view, a power not to proceed further with an appeal, similiar to that examined in Hole v Insurance Commissioner, is conferred on this Court by implication from s. 23 of the Federal Court of Australia Act 1976 and 0.25 r. 2 of the Federal Court Rules. (See e.g. Parsons v Martin (1984) 58 ALR 359 as explained and applied by Toohey J in Hughes v Western Australian Cricket Association(Inc.) (1986) 66 ALR 541).

6. We have been persuaded to exercise that power in this case primarily because the passage of time has, in the circumstances, deprived the issues in controversy of real practical significance. However the Court has been influenced as well by an indication that the costs of at least some parties to this appeal may fall on the public purse by virtue of Part XII of the Industrial Relations Act 1988. Any course which minimizes those costs without doing violence to genuine and substantial rights of the parties is to be favoured.

7. A related consideration which has weighed with the Court in the exercise of its discretion arises from the constraints of time and resources to which the Court is presently subject. When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time on interesting questions of law which, because they have been overtaken by events, have become of academic interest only. With so many cases of real importance to litigants, and often to the public generally, waiting to be heard or for judgment to be given, others must be discouraged from commencing or pursuing litigation which can have little or no practical result - particularly if that litigation is being funded in whole or in part by the taxpayer.

8. It was for all of these reasons that the Court reached the decision, which it announced on 25 October 1989, that it should not proceed further with the hearing of the appeal.