Bingham, William Martin v Gallagher, Norman Leslie Summary

IN THE FEDERAL COlJRT OF AUSTRALIA

)

VICTORIA

DISTRICT

REGISTRY

) NO. V11 of 1985

INDUSTRIAL

D I V I S I O N

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

all parties to this proceeding that the applicant

have leave

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

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

2 .

acceding to that request.

Having

examined

the

documents

filed

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,

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,

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 .

that

person has ceased to hold an office

within the said organization."

It may be that Eurchett

could be said to have

made a

finding of a

description

specified

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

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.

In the Federal Court of Australia, Industrial Division, William Martin Bingham applied for a declaration that Norman Leslie Gallagher was not eligible to continue as a candidate for the position of Branch Secretary of the Victorian branch of the Australian Building Construction Employees and Builders Labourers Federation. The application was made under the Conciliation and Arbitration Act 1904. The court was asked to determine whether the application was reasonable given the circumstances.

The primary legal issue before the court was whether the application for the declaration was reasonable and warranted certification under section 132H(2) of the Conciliation and Arbitration Act 1904. The court had to assess the actions of William Martin Bingham in the context of the Act and the relevant provisions. The court also considered whether any findings made by Burchett J. in earlier interlocutory orders could be considered as findings under section 132H(2) of the Act.

Mr. Justice Jenkinson concluded that although Burchett J. might have made findings for the purpose of determining interlocutory orders, these findings did not meet the criteria of "finding" under section 132H(2). Nevertheless, Jenkinson J. was prepared to certify the application as reasonable, allowing Bingham to discontinue the proceeding without incurring costs. The court discharged the interlocutory orders made by Burchett J. and made no order as to costs.

This decision effectively resolved the dispute, allowing the applicant to discontinue the proceeding without financial penalty and ensuring that the interlocutory orders were discharged. The certification under section 132H(2) provided a measure of protection to Bingham's actions, confirming the reasonableness of his application despite the outcome of the substantive proceeding.

Bingham, William Martin v Gallagher, Norman Leslie

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established