Conquo v Jackson - [2009] FCA 634

FEDERAL COURT OF AUSTRALIA
Conquo v Jackson [2009] FCA 634
PRACTICE AND PROCEDURE – Commencement of proceedings in court – Whether required to be by rule to show cause – Whether such a requirement to be implied in absence of express terms – Whether consequences of alternative construction supported implication.
Conciliation and Arbitration Act 1904 (Cth) ss 109, 132H, 140, 141, 141A, 141B, 143, 150, 158U & 168
Conciliation and Arbitration Regulations 1904 (Cth) regs 70 & 138
Industrial Relations Act 1988 (Cth) ss 208, 209 & 342
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Workplace Relations Act 1996 (Cth) Sched 1 – ss 142, 163, 164, 164A, 322 & 324

Federal Court Rules (Cth) (1979-1995) O 4 rr 15 & 16
Federal Court Rules (Cth) (1997-present) O 1 r 4, O 48 rr 3, 5, 6, 8 & 9
Industrial Relations Court Rules (Cth) O 4 rr 15 & 16
Australian Electoral Commission v Hickson (1997) 76 IR 399
Hansch v Transport Workers Union of Australia [2000] FCA 473
DONNA MARGUERITE CONQUO v JEFF JACKSON and HEALTH SERVICES UNION
VID 267 of 2009
JESSUP J
12 JUNE 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 267 of 2009

BETWEEN:
DONNA MARGUERITE CONQUO
Applicant

AND:
JEFF JACKSON
First Respondent

HEALTH SERVICES UNION
Second Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

12 JUNE 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The respondents’ objection to the competency of the proceeding be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 267 of 2009

BETWEEN:
DONNA MARGUERITE CONQUO
Applicant

AND:
JEFF JACKSON
First Respondent

HEALTH SERVICES UNION
Second Respondent

JUDGE:

JESSUP J

DATE:

12 JUNE 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, Donna Marguerite Conquo, is a member of the second respondent, Health Services Union, an organisation registered under Schedule 1 (“the Schedule”) to the Workplace Relations Act 1996 (Cth) (“the WR Act”). In this proceeding, she invokes the court’s jurisdiction under ss 163, 164, 164A and 322 of the Schedule and s 39B(1A)(c) of the Judiciary Act 1903 (Cth).
The applicant has commenced the proceeding by filing an application in the general form prescribed by O 4 r 1 of the Federal Court Rules. The first respondent, Jeff Jackson, however, claims that the proceeding is incompetent – at least to the extent that it relies on ss 163, 164 and 164A of the Schedule – because it should have been commenced by rule to show cause under Division 3 of O 48 of the Rules. In taking this position, he has the support of the second respondent.
Section 163 of the Schedule permits a member of an organisation to apply to the court for an order declaring the whole or any part of a rule of the organisation to be in contravention of…

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: [2009] FCA 634
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of Conquo v Jackson involved a dispute between two parties, Conquo and Jackson, before a court in Australia. The nature of the dispute centred around a challenge to the competency of a proceeding initiated by Conquo against Jackson. The respondents, Jackson and others, objected to the competency of the proceeding, arguing that it should not proceed due to certain deficiencies or issues in the way the case was brought before the court. The matter was brought before the court for resolution of these competency issues.

The primary legal issue that the court had to decide was whether the proceeding initiated by Conquo was competent and should therefore be allowed to proceed. The court needed to examine the basis of the respondents' objection and determine whether there were valid grounds to dismiss the proceeding or if Conquo's case should be allowed to continue. This involved an analysis of the procedural rules governing the competency of proceedings and whether any procedural errors or deficiencies existed that would warrant dismissal.

In reaching its decision, the court carefully considered the arguments presented by both parties. The respondents argued that there were significant procedural flaws that rendered the proceeding incompetent. However, the court found that the objections did not meet the threshold required to dismiss the proceeding. The court concluded that the proceeding was properly initiated and that there were no substantial procedural errors that would justify dismissing the case. As a result, the court dismissed the respondents' objection to the competency of the proceeding, thereby allowing Conquo's case against Jackson to proceed.

Orders

Orders of the court

1. The respondents’ objection to the competency of the proceeding be dismissed.

Note:

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

JESSUP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: JESSUP J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 267 of 2009

JUDGE:	JESSUP J
DATE OF ORDER:	12 JUNE 2009
WHERE MADE:	MELBOURNE

JUDGE:	JESSUP J
DATE:	12 JUNE 2009
PLACE:	MELBOURNE