Davidson v Australian Society of Progressive Carpenters and Joiners, Melbourne Branch

[1917] HCA 20

23 C.L.R.l OF AUSTRALIA.

143

[HIGH COURT OF AUSTRALIA.]

DAVIDSON .A p p e l l a n t

;

D e f e n d a n t ,

AND

THE AUSTRALIAN SOCIETY OF PROGRES­

SIVE CARPENTERS AND JOINERS, MEL­■R e s p o n d e n t .

BOURNE B R A N C H ...................................

Co m pl a in a n t ,

ON APPEAL FROM A COURT OP PETTY SESSIONS OF VICTORIA.

Industrial Arbitration—Organization—Rules— Recovery of contributions due by H. C. o f A.

members—Rights of branches of organization—Commonwealth Conciliation and

1917.

Arbitration Act 1904-1915 (No. 13 of 1904—No. 35 of 1915), secs. 4, 68.

'——'

M e l b o u r n e ,

The only mode of recovering contributions payable to an organization

Alay 17.

registered under the Commonwealth Conciliation and Arbitration Act 1904-1915

-------

by a member thereof is that provided by see. 6 8 of the Act, namely, by pro-

Isaacs an d ’

coedings in the name of the organization, and a branch of an organization has no authority under that section to take proceedings in its own name to recover them.

Appea l from a Court of Petty Sessions of Victoria.

At the Court of Petty Sessions at Melbourne before a Police Magistrate a complaint was heard whereby the Australian Society

HIGH COURT

[1917.

H. C. OF A. of Progressive Carpenters and Joiners, Melbourne Branch, sought to

recover from William Davidson the sum of £1 8s. 6d. in respect of

D a^ on which the defendant was alleged to be indebted to the complainant

A u str a lia n contributions to the Society. The Australian Society of Pro- SociBTY OF gressive Carpenters and Joiners was an organization registered under

P r o g r essiv e ° ̂ . . .

i a t a

a

Ca r p e n t e r s the Commonwealth Conciliation and Arbitration Act, and. tne com­

AND

plainant was a branch of that organization.

The defendant was a

J o in e r s ,

Me l b o u r n e

B r a n c h .

member of the organization and of the Branch.

Among the Rules of the Society were the following :—• the use of medal, and sign the . following ;—‘ I . . . do hereby agree of my own free will and accord to become a member of the Australian Society of Progressive Carpenters and Joiners, and agree to conform to the laws and rules of the said Society, and also agree to pay Is. 6d. entrance fee and Is. for the use of a

“ 21. Any carpenter or joiner . . . , desiring to join this

medal.’ ”

'

“ 30. Each member shall pay as contribution the sum of sixpence per week (there are no levies), which shall include his subscription to the Federal Council.”

“ 55. A subscription of Is. 6d. per annum ” (which was also called a “ capitation fee ”) “ shall be paid by branches for each member . . . for the upkeep of the Federal Council.”

“ 127. For the convenience of members, branches may be opened in any town in Australia.”

“ 129. Bach branch shall have power to elect its own officers, make its own by-laws (if necessary), with the consent of the Federal Council, and generally to control its own business.”

“ 132. The branches in each State of the Commonwealth shall, except as to the capitation fee previously mentioned, have full control of their respective funds.”

149. He

(the secretary of a branch) “ shall be the registered

officer of the branch, as provided by law to sue and be sued.”

“ 227. Any member allowing his arrears of contribution, &c., to exceed six shillings shall be deemed unfinancial . . . and if he should allow his arrears to exceed fifteen shillin-^s . . . the

28 C.L.R.] OF AUSTRALIA.

145

secretary shall be instructed to take the 'necessary steps for the

H. C. OF A.

recovery of such arrears by legal process.”

1917.

The Rules contained no provision giving a branch authority to take any proceedings in the name of the Society.

D a v id so n

V.

I t appeared from

A u str a lia n S o c ie t y of

the minutes of the meetings of the Branch that W. R. Edgar, secre­P r o g r e ssiv e

tary of the Branch, was appointed “ to sue for arrears of contribu­

Ca r p e n t e r s

AND

tions on behalf of the Branch.”

J o in e r s ,

M e l b o u r n e

The Magistrate made an order for the amount claimed and costs.

B ra n c h .

From that decision the defendant now appealed to the High Court by way of order to review.

Other material facts are stated in the judgment of Barton A.C. J. hereunder.

Shelton {Eager with him), for the appellant. The contributions are under the Rules payable to the Society, and under sec. 68 of the Commonwealth Conciliation and Arbitration Act 1904-1915 pro­ ceedings to recover them must be brought by the Society and in the name of the Society {Christie v. Permewan, Wright & Co. Ltd.

( I ) ) -

[Barton A.C.J. referred to Federated Sawmill, Timheryard and

General Woodworkers' Employees' Association {Adelaide Branch) v.

Alexander (2).

[Isaacs J. referred to In re Winterhottom ; Ex parte Winterbottom mThe Society, being an organization created by the Act, could not

itself sue without the authority conferred by sec. 68. [Counsel

vais stopped.]

Hogan, for the respondent. The branch is a separate entity from the Society, and is in itself a voluntary association {Edgar and Walker v. Meade (4)). Under the.rules the branch is entitled to tlie contributions of those members who belong to the branch, and arrears of contributions are a debt due to the branch. The branch

(1) 1 C.L.R., 693.(3) 18 Q.B.D., 446.

(2) 1.5 C.L.R., 308.

(4) Ante, 29.

VOL. X X III.

10

146 HIGH COURT

[1917.

H C. OF A.is therefore entitled to take proceedings to recover those arrears.

1917.Whether the branch should sue in the name of the branch or in

D av idso nthe individual names of its members is only a question of form and

V.

Au stra lia n

not of substance, and, if necessary, an amendment should be

So c ie ty of allowed.

Sec. 68 is wide enough to enable a branch which is

P ro g r essiv e

Ca r p e n t e r s

entitled to the control of fees, &c., to sue for them.

AND

[Eager.

The word “ organization ” in th5,t section is defined by

J o in e r s , Me lb o u r n e

sec. 4 as an “ organization registered pursuant to this Act,” so that

B r a n c h .

it would not include a branch of an organization.]

If it is necessary that proceedings should be taken in the name of the Society, then under r. 227 authority might be given by the branch to the secretary of the branch to take proceedings in that way, and the authority which was in fact given to him was sufficient. [He also referred to Waterside Worhers’ Federation of Australia v. Burgess Brothers Ltd. (I) ; Prentice v. Amalgamated Mining Employees’ Association of Victoria and Tasmania (2).]

B a rto n A.C.J. Bodies deriving authority to litigate from a Commonwealth Act which created them are of course bound to pursue, in using the authority, the method prescribed by the Act. They have no previously existing authority for litigation or method. Sec. 68 of the Commomvealih Conciliation and Arbitration Act 1904­ 1915 says that “ all fines fees levies or dues payable to an organiza­ tion by any member thereof under its rules may, in so far as they are owing for any period of membership subsequent to the registration or proclamation of the organization, be sued for and recovered in the name of the organization in any Court of summary jurisdiction constituted by a Police, Stipendiary, or Special Magistrate. ” There does not seem to be any other section of the Act which empowers any body of persons industrially associated and deriving its authority from the Act to take legal proceedings to recover such moneys. An organization within the meaning of the Act is, as Mr. Eager pointed out, defined by sec. 4, wliich provides that it is “ any organ­ ization registered pursuant to this Act, and so far as applicable it also includes any proclaimed organization to which the Governor- General declares this Act to apply.” The organization of which

(1) 21 C.L.B., 129.

(2) 15 C.L.R., 235.

23 C.L.R.]

OF AUSTRALIA.

the respondent is a branch is registered pursuant to the Act. The

H. C. or A.

1917 .

branches are not so registered.

A person becoming a mem­

ber of this organization signs a form in part of which he says,

D a v idso n

V.

“ I . . . do hereby agree . . . to become a member of the

Au stra lia n So c ie ty of

Australian Society of Progressive Carpenters and Joiners . . .

P ro g r essiv e

and also agree to pay Is. 6d. entrance fee.” That is a promise

Ca r pe n t e r s

.AND

to join the organization which is registered, and which, so far J

o in e r s ,

Me l b o u r n e

as we know, is the only litigant with which we have to deal, B ra nch .

and by r. 30 “ each member ”—that must mean, of the Society

Barton A.C.J.

—“ shall pay as contribution the sum of sixpence per week (there are no levies), which shall include his subscription to the Federal Council.” The contributions sued for amount to £1 8s. 6d. Sec. 68 of the Act speaks of “ fines fees levies or dues payable to an organization by any member thereof under its rules.” The sixpence a week is a “ due ” within the section. These contributions may be “ sued for and recovered in the name of the organization in any Court of summary jurisdiction ” &c. Pursuing the only statutory authority it has, the organization might probably have sued for and recovered these moneys. But it is the Melbourne Branch that has sued for them, and that branch has no separate authority at all derived from the Stakrte itself or from the regulations under the Statute. Tt is possible that the Society might authorize the Mel­ bourne Branch to sue in the name of the Society, but apparently it has not done so. The question is whether the Melbourne Branch has properly instituted tire proceedings—whether it had a right to appear as complainant to recover the contributions. As far as I can see, it is quite out of the question to say that the branch has an independent right. The right is vested in the organization. When sec. 68 says that the moneys may be sued for and recovered “ in the name of the organization,” that means primarily by the organization itself. Whether the organization may authorize a branch to sue in the name of the organization is a question on which I can pronounce no opinion at present. It is enough to say that no title is given by sec. 68, and therefore none is given by the Act, to the Melbourne Branch to sue for and recover these contributions.

'Pile appeal should be allowed.

148 HIGH COURT

[1917.

H. C. oi- A.

I SAACS J. I agree.

By the social compact constituted by the Rules

1917.

the member agrees to pay the contributions to the Society as a

D a v id so nwhole. The Act requires such an obligation to be enforced in the

V.

name of the organization.

That has not been done, and, therefore,

A u stra lia n

So c ie ty or

P ro g r essiv e the appeal must succeed.

Ca r pe n t e r s

AND

J o in e r s ,

R ich J.

I agree.

Me l b o u r n e

B r a n c h .

Appeal alloived. Order appealed from set aside with £4 4s. costs. Respondent to pay costs of appeal.

Solicitors for the appellant, Mclnerney & Mclnerney.

Solicitors for the respondent, E. L. Vail & Son.

B. L.