Bingham, William Martin v Gallagher, Norman Leslie

[1985] FCA 694

IN THE FEDERAL COlJRT OF AUSTRALIA )

VICTORIA DISTRICT REGISTRY ) NO. V11 of 1985

INDUSTRIAL D I V I S I O N 1

B E T V E E N : WILLIAM M A R T I N BINGHAM

Applicant

m: NORMAN LESLIE GALLAGHER,

THE AUSTRALIAN BUILDING

CONSTRUCTION EMPLOYEES'

AND BUILDEEiS LABOURERS

FEDERAT I ON AND DAVID

PILLAR -

Respondents

CORAM:	Mr. Justice	Jenkinson
PLACE :	Melbourne

DATE : 17 December, 1985

HIS HONOUR: On 13 December 1985 orders were made by consent of

all parties to this proceeding that the applicant

have leave to discontinue the proceeding, that

certain interlocutory orders made by Burchett J. on

3 September 1985 be discharged, and that there be

no order as to costs, nor any liability on the

applicant for costs.

I was on that occasion asked by the applicant's

solicitor to certify in the terms of section

13'2H(2) of the Conciliation and Arbitration A c t

1904, and the legal representatives of the other

parties expressed their client's acquiescence in my

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acceding to that request.

Having examined the documents filed in the

proceeding and having read the reasons given by

Burchett J. for the interlocutory orders he made on

3 September 1985, I am prepared, if the applicant

does discontinue the proceeding, to certify,

pursuant to section 132H(2), in these terms: "The

Federal Court of Australia certifies pursuant to

-

sub-section 132H(2) of the Conciliation and

Arbitration Act l904 that William Martin Bingham,

the person who in the proceeding in the court in

the Industrial Division, numbered V11 of 1985, in

the Victorian District Registry made application

under sub-section 132B(Sj of the said Act f o r a

declaration that Norman Leslie Callagher is not

eligible to continue to be a candidate for election

to the office of Branch Secretary of the Victorian

branch of the Australian Building Construction

Employees and Builders Labourers Federation, an

organization registered pursuant to the said Act,

was at the time when the application was made a member of the said organization and that the said William Martin Bingham acted reasonably in so

applying, notwithstanding that the court did not

find in the said proceeding that a person is not or was not eligible to become or to continue to be a candidate for election or to be elected or appointed to an otfice within the said Organization

3 .

or that a person has ceased to hold an office

within the said organization."

It may be that Eurchett J. could be said to have

made a finding of a description specified in

section 132H(2) for the purpose of determining

what, if any, interlocutory order should be made

pending the determination of the application, but

in my opinion a conclusion of .. fact reached only for

that purpose does not fall within the meaning of

the word "find" in the sub-section.

Do you appear f o r Mr. Bingham?

if you let my associate	know, then a certificate
can be drawn up.