Davidson, D.R. v Musicians Union of Australia (Newcastle Branch)

[1990] FCA 218

NOT FOR GENERAL DISTRIBUTION

JUDGMENT NO. ..:!.X../ ..so-

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )	No. I 9 of 1990

)

GENERAL DIVISION 1

BETWEEN: DANNIE RICHARD DAVIDSON

Appl i.cant

AND: MUSICIANS UNION OF AUSTRALIA

(NEWCASTLE BRANCH)

Respondent

C O W :  WILCOX J

PLACE: SYDNEY

DATE :  17 MAY 1990

MINUTES OF ORDER

THE COURT MAKES ORDERS:

REGISTRY

In accordance with paras. 1 and 2 of the application, adding to the words in para.2 as set out in the application, the following additional words: "where those persons were eligible to become members of the organisation at the time of their application, and have not since resigned or died."

RECEIVED

PRINCIPAL

Note:	Settlement and entry of orders i s d e a l t with i n Order
36 o f the Federal Court Rules.  [See a l s o Order 37
ru le  2 ( 3 ) 1 .

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IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	NO. I 9 of 1989

)

GENERAL DIVISION )

BETWEEN: DANNIE RICHARD DAVIDSON

Applicant

AND: MUSICIANS UNION OF AUSTRALIA

(NEWCASTLE BRANCH)

Respondent

CORAM:	WILCOX J
PLACE	: SYDNEY
DATE :	17 MAY 1990

SUPPLEMENTARY REASONS FOR JUDGMENT

When I delivered judgment in respect of the

application by Mr Dannie Davidson for an inquiry into an
election to the office of Secretary in the Newcastle Branch of

the Musicians Union of Australia, I dealt with a number of

categories of people whom I thought had been incorrectly
permitted to vote. Having regard to the form which the rules
then took. This took place on 27 April. Thereafter, with
remarkable dispatch, and if I may say so, very carefully and
sensibly, the union has moved to deal with the rule problems
which emerged during the course of the inqulry.

So far as I can see, these amendments ought to resolve for the future most, if not all, of the problems which were previously

found. In the course of my reasons, I pointed out that one

particular irregularity, namely, the fact that persons who had applied to join the organisation, at least since 1984, had not had their applications formally dealt with by the Branch

Committee of Hanagement, had serious consequences for other

persons. It seems that anybody who had sought to join the

Branch since 1984, and who had thought that he or she, in fact, had been admitted as a member, would not be a member upon a strict construction of the rules. I suggested that it may be appropriate for an application to be brought under 5.258 of the Industrial Relations Act 1988 to cure this problem, so far as those persons were concerned. This would not have altered the position in regard to the electlon about which I was inquiring; but it would ensure that these people had all the benefits of membership, including the rlght to nominate for positions in the union and to vote in future

elections.

Mr Davidson took the hint that I gave in my reasons and, also with commendable dispatch, prepared an application under s.258, which he filed on 10 May 1990. He supported this application with an affidavit in which he set out his experience of what had happened in the Newcastle branch both

prior to and after the 1984 elections. From his affidavit, it
appears that, until some time in 1984, applications for
membership were dealt with by resolution; so it seems that the

problem is probably limited to the period since 1984.

Notwithstanding that, there were obviously quite a lot of
people involved, and Mr Davidson quite properly took the view
that some steps ought to be taken to ensure that these people
were not prejudiced by the ruling which had been made in the
inquiry. As it happened, Mr Davidson8s application coincided,
almost exactly, in time with the registration of the
amendments to the rules. Mr Macken, on behalf of the union,
has taken the view that it is not necessary to make the orders
sought by Mr Davidson; because the problem is covered by the

amendments to the rules, which the union has already made.

This may well be correct. The only qualifications about my

agreement are that the amendment to r.5/2 refers to cases of

"accidental or inadvertent omission" to accept an application

for membership; and there is also a provision that the

application must have been "bona fide" entered on the register

of members. Mr Haylen, on behalf of Mr Davldson, points out
that this leaves open, at least theoretically, some scope for
argument about whether one or more of the relevant people was
omitted because of "accident or inadvertance", or whether
there was some lack of "bona fides" by some person in enterlng
names on the register. Mr Haylen puts the submission that
these matters should be put beyond doubt by an order along the
lines sought by his client. Mr Macken points out that the
order, as originally framed in the application brought by Mr
Davidson, is not limited to persons who were, in fact,
eligible for membership. Plainly, this has to be inserted.
It is probably also desirable to insert a limitation to deal
with people who have since resigned or'died.

I think that both parties have acted with responsibility,
commonsense and speed to resolve the problems revealed in the
inquiry. The fact that I propose to make the application
sought by Mr Davidson in no way reflects upon the work
undertaken by the union in revising its rules. As I have said,
I think that this was done extremely competently, as well as
quickly. However, it may be desirable, given the fact that
there is obviously continuing controversy in the branch and
that an election is coming up which might result in a close
result, for all I know, that I should put out of any possible
contention the matters that have been referred to by Mr

Haylen.

One way of doing this is to accede to the application with

modifications, and notwithstanding my view that the changes to
the rules have probably cured the problem. At the risk,
therefore, of being overcautious, I propose to make orders in
accordance with paras. 1 and 2 of the application, adding to
the words in para.2 as set out in the application, the

following additional words: "where those persons were
eligible to become members of the organisation at the tlme of

their application, and have not since resigned or died."

I certify this and the four
preceding pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Associate:

Date:	17 May 1990
Counsel for the Applicant:	Mr W R Haylen
Solicitors for the Applicant:	Geoffrey Edwards & CO
Solicitors appearing for
the Respondent:	A J Macken h CO
Solicitor appearing for the

Australian Electoral Commission: Mr D Hrobat

Solicitors for the Australian

Electoral Commission:  Australian Government

Solicitor

Date(s) of hearing:  17 May 1990