Dobinson v Crabb

[1988] HCATrans 237

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IN THE HIGH COURT OF AUSTRALIA

Office of. the Registry

Melbourne No M66 of 1988

B e t w e e n -

VINCE DOBINSON, RON OWENS,

JAMES BACON, STEVE BLACK,

KEVIN REYNOLDS, PETER O'DEA,

NORMAN LESLIE GALLAGHER and

NORMAN WALLACE

Applicants

and

THE HONOURABLE STEVEN M. CRABB,

IAN GORDON SHARP and HER MAJESTY'S
ATTORNEY-GENERAL FOR THE STATE

OF VICTORIA

Respondents

Application for special leave to appeal

Office of the Registry

Melbourne No M67 of 1988

B e t w e e n -

VINCE DOBINSON, RON OWENS,

JAMES BACON, STEVE BLACK,

KEVIN REYNOLDS, PETER O'DEA,

NORMAN LESLIE GALLAGHER and

NORMAN WALLACE

Applicants

and

Dobinson

THE HONOURABLE STEVEN M. CRABB,
IAN GORDON SHARP and HER MAJESTY'S
ATTORNEY~GENERAL FOR ·rnE STATE

OF VICTORIA

Respondents

MASON CJ	Application for removal
BRENNAN J GAUDRON J
TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 OCTOBER 1988, AT 9.31 AM

Copyright in the High Court of Australia

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MR.E.W. GILLARD QC: If it please the Court, I appear with

my learned friend, MR G.R. ANDERSON for the

applicants. (instructed by Slater & Gordon)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,

MR R. 'TRACEY, for the first two respondents and

I appear with my learned~friend, DR I.J. HARDINGHAM,

for th~ third respondent. (instructed by the Crown

Solicitor for Victoria)

MASON CJ:  Yes, Mr Gillard.

MR GILLARD: If it please the Court, there are two

applications before the Court. The first under

section 40(1) of the JUDICIARY ACT to remove the

pending appeal in the Full Court of Victoria into

this Court. And, of course, the other application

is a special leave application. Your Honours, the

issues can be very shortly stated. The union is

a federal body and is Australia wide and operates

Australia wide. It has various State branches.

Prior to 1986 it was registered as a union under

the CONCILIATION AND ARBITRATION ACT and, of course,

that meant that it was deemed a body corporate.

In 1986 the union. was deregistered by two Commonwealth

Acts and, of course, as a result of that we say

that at common law, the union became a voluntary

body - an unincorporated association. However, to

make the matters clear beyond doubt, in one of the

Commonwealth Acts that deregistered the union, the

Act incorporated the section 143(6) of the

CONCILIATION AND ARBITRATION ACT which thereafter

regulated, in our submission, the affairs of the

Union. May I hand Your Honours, at this stage,a copy of that section. Now, Your Honours will see

that in fact is section 143(6) of the CONCILIATION

AND ARBITRATION ACT and it was a Commonwealth Act

enacted, but that was to apply to this union_ upon

deregistration.

Your Honours will see that there are three

parts to that subsection. It deals with the legal
status of the union ..	It also gives a cause of

action to prior creditors and it also goes on, and

the important part that we rely upon is, it goes

on to provide what is to happen to the property. If

I could refer Your Honours to the last four lines

there where it says:

be the property of the association and

shall be held and applied for the

purposes of the association in accordance

with the constitution and rules of the

organization insofar as they can be carried

out or observed notwithstanding the

deregistration of the organisation.

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Now, what then happened, Your Honours is this:

that in 1977, about one year ago, the Victorian

Government passed some legislation and certain

orders were made by the Governor in Council.	And
the effect of that legislation and the orders
effectively gave the control of the union to a
Dr Sharp who was appointed a custodian.	And we

hand to Your Honours a bundle of the legislation,

unfortunately the judgment of Mr Justice Marks
does not set out, in any great detail, the
various pieces of legislation and the orders of

the Governor in Council.

Now, we submit, Your Honours, that the

legislation and orders can be divided into three

separate and distinct parts. As we have indicated

to Your Honours, a Dr Sharp was appointed the

custodian of the property and as a result of the

legislation and orders there was a total prohibition

placed on others dealing with the BLF property and

funds. The second thing was that the possession,

custody and control of the property and funds were

committed to Dr Sharp. And the third thing was

that he was given what, we submit, was an absolute

discretion to use the funds, in his opinion, for

the purposes of the union. itself.

MASON CJ:	Where do we pick that up from - the provision?
MR GILLARD:	Your Honours, if we go to the orders of

Governor in Council. If one goes through to, I

think page 83, at the bottom, I think you will see

a reference to page 83 at the bottom. That is

the one that is dated 13 October 1987. Now that

was the first order of the Governor in Council.

Your Honours will see paragraph 1 refers to:

fbssession, custody and control of the

funds and property of the BLF is hereby

committed to Ian Gordan Sharp.

2. No person shall pay or dispose of

any of the funds or property of the BLF

or of any interest therein,or create any

enctmbrance or charge in respect thereof, without the prior written consent of the

Custodian. Any such payment disposition,

enctmbrance or charge shall be void, at the
option of the Custodian.

3.         The Custodian may refuse to give

consent referred to in clause 2 hereof
if he in his absolute discretion is
not satisfied ..... .

4.         The Custodian may pay or direct any

person to pay from the funds or property

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of BLF such sum as appear to him in

his absolute discretion to be desirable

to be made for the carrying out of the

ordinary and proper affairs of BLF and

for the benefit of its members.

· Then paragraph 5 requires: any per son who is

in custody of the funds "shall forthwith inform

upon the Custodian" of the fact; "shall on

demand by the Custodian" hand over .the

property and "shall not oart with such

possession".

Clause 7 of that order:

The Custodian shall forthwith take

possession custody and control of the

funds and property of the BLF.

Then if one goes over to clause 9:

Subject to any further Order in Council,

and so long as this Order or any extension

thereof is in force the Custodian shall

remain in possession custody and control

of the property and funds of the BLF for
the purposes of carrying out the ordinary
and proper affairs of the BLF pursuant to

clauses 3 and 4.

If Your Honours go back to 3 and 4, Your Honours will

see that he has an absolute discretion. Now we

submitted that the full effect of all those clauses
was to give total control and ownership of the

property and funds to Dr Sharp, so that he, in

effect, totally controlled this union through the

power of the purse.

BRENNAN J:  Why do you say ownership, and why do you need

to saY, ownership?

MR GILLARD:  Your Honour, could I answer the second question,

perhaps I do not need to. But the fact that he has -

well, I do not, with respect, need to go as far as

saying "ownership", Your Honour, he does have

possession, custody and control of the funds of the

property and that gives him a very wide power to

control the destiny of this union.	Now the issue
then comes down to this.	We say that this is a

federal body, that it engages in intercourse within

the meaning of section 92 across State boundaries

and we say that the effect of this legislative

package is such to cut across that right of

intercourse and thereby infringe section 92.

Now, Your Honours, we submit that this does raise

a question of general importance because in the

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case of COLE V WHITFIELD, this Court did refer

to the word "intercourse" in section 92 but did not

develop how wide that word was to be construed. And

the second thing that the Court left unanswered in

COLE V WHITFIELD was what degree of regulation

or restriction is permitted with respect to

·intercourse before you infringe section 92. Now,

we submit that this case does raise those issues.

We say there is intercourse, we say it is across

State boundaries, it is a federal body, we have

a State body, seeking by a legislative package

as His Honour put it, to effectively control the

destiny of the union and to restrict it in its

activities.

Now, Your Honours, could I take you to

COLE V WHITFIELD, and I hand copies of the ALJR

to Your Honours, where the questions are raised

and, in our submission -

MASON CJ:  I think you can take it we are familiar with

COLE V WHITFIELD.

MR GILLARD:  I am sure you are, Your Honour. Well, can I

just refer Your Honours to pages 308 and 311 and
page 308 makes it quite clear, as Your Honours are

no doubt aware, that you have indicated that the

concept of intercourse is distinct from trade and

commerce. Then at page 311, Your Honours discuss

the question of regulation and restriction on

intercourse, but indicated that you did not have

to, for the purposes of that decision, go into

the question of just what is permissible

restriction or regulation with respect to intercourse.

Now, we submit, that they are important

questions and that they are raised in this case.

1:1ASON CJ: But this case only raises them in a remote way,

does it not? Whatever view you take of the

restrictions that have been imposed here, they do

not operate directly on intercourse. The indirect

consequence may have effects, so far as intercourse

is concerned, but you cannot go further than that,

can you?

MR GILLARD: 

We would respectfully submit that the practical

effect of the whole legislative package is to give
the control,through the control of the funds and

property, to Dr Sharp in this State and he therefore

can by controlling the property and funds interfere

with the ability of this union to operate across

Australia.

BRENNAN J: Is not that rather like saying, ".If you lock

somebody up for a crime you are interfering with

intercourse"?

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MR GILLARD:  Yes, to some extent that is so, but that is a

question, I am sure, Your Honours, that

would not infringe section 92. And it is really

then a question, in appropriate cases, where you

say, what is permissible restriction or regulation

with respect to a particular set of facts. And

we say here, that you have a federal union across

Australia, you have a State legislature seeking,

because it happens to be that the federal body

happens to be located in Melbourne and the funds are in Melbourne, that that State can then seize control of the union, on a federal basis, by taking

control of all of its funds and property.

Now, we submit that that is a restriction

that does infringe section 92 and that is what the

issue is with respect to that point.

MASON CJ:  I think we follow the point as you make it and

I think the inconsistency point is, as it were,

clearly explained in the papers that we have

considered. So if we were to assume that you had,

as it were, arguable questions in terms of

section 92 and inconsistency, the question then

arises, and this may be the critical question in

your application, why should the Court grant

special leave or remove when the effect of that would be to deprive the Court of the benefit of

such consideration as the Full Court might give

to both of these questions? I might say, Mr Gillard,

it may be that your argument on the inconsistency

question is somewhat stronger, at first blush, then

your argument on the section 92 point.

MR GILLARD:  Yes, well, Your Honours, without being in any way

disrespectful to the Full Court of Victoria, I am not

sure that, in the light of the questions left

unanswered in COLE V WHITFIELD, Your Honours

would be greatly assisted by the views of that

Court on section 92 because the questions are left

unanswered as to how far one can have a restriction

or regulation and that is the answer I put to the

first one. With respect to the second one, well

Your Honours may be assisted by a judgment of that

court and I do not think I can say very much more
than that, though it really is a question that

is very suitable for this Court because this Court has dealt with the issues many many times and that

is how we would put it. We - - -

MASON CJ: Yes, but perhaps I should express some demurrer

to what you have said because underlying your

submission seems to be the thought which is shared,

I think,by many practitioners apart from yourself,

that if there is a constitutional question involved

in a case then the case should be determined by the

High Court as soon as possible. Now, it seems to me

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there are strong arguments against that view, that

we ought to look to constitutional questions as

part of the jurisdiction of the courts that can

deal with them and that they should be dealt with, except in appropriate cases, in the normal courts?

MR GILLARD:  Yes, well Your Honours, we agonized over which

way we should go in this - - -

MASON CJ:	Yes, I understand.
MR GILLARD:	- - - and time and expense clearly was a matter

that we were concerned about and, of course, we

do have our notice of appeal to the Full Court as

a backup. But, Your Honours, we could have, I

suppose, really started all this in the High Court

in the first place because it involved the
construction and interpretation of the CONSTITUTION.

We realise that the Court would probably have sent

it back to find facts. As things turned out, there

was not a great dispute in the facts in the end.

It turned out to be a very short trial on the facts.

And whatever way it goes, Your Honours, we would

expect that whatever happens in the Full Court,

soembody will be back here, later, applying for

special leave anyway. So they were many reasons,

Your Honours, why we thought we would attempt to

come this way rather than go via the Full Court.

But, we respectfully submit that COLE V WHITFIELD

does leave unanswered those particular points and

it is far better that this Court give guidance, in

our submission, rather than the Full Court do its

best from what it can glean from the authorities.

Now, Your.Honours, they are the reasons why we

decided to come direct rather than go via the

Full Court. Now, Your Honours, the section 109 point.

Your Honours can see from looking at that section 143(6)

that it is a fairly simple point that we make, that

clearly on deregistration that section applied,

indeed it was specifically enacted in the deregistration

legislation that that provision must apply.	Now
we would submitting that that is fairly good

evidence that the Commonwealth intended to cover the

field and that it does relate to the property of the

association and we do submit that there is a clear

conflict, not only if one approaches the test on the

basis of looking at each piece of legislation as a

clear conflict, in our submission, between the two sets of legislation, but also we would submit that

there is a very strong argument here that the

Commonwealth evinced an intention to cover the field.
It is very conveniently summarized in His Honour's

judgment at pages 29 and 30 in the application book. At the bottom of that page 29, Your Honours will see

that His Honour has set out the terms of section 143(6)

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Dobinson

and then on the next page, His Honour summarizes

the submissions that we put.	And the first one
is that:

The Commonwealth legislation provides

that the subject property is to remain that

of the BLF while the Victorian legislation
provides that it be committed to the

custodian.

Now, we submit, on a fair reading, that that is

so. His Honour deals with that on the next page,

at page 31, line 3 where he says this:

Section 143(6), as applied to the BLF, does not provide that the subject property is to remain permanently or for

any period (definite or indefinite) the

property of the BLF.

I might say with respect, that, in our submission,

that is what the section does say. It does

provide that the property is to remain that of

the association:

·'·

and shall be held and applied for the

purposes of the association in accordance

with the constitution and rules.

Then he says:

In any event, the Victorian legislation

says nothing about the beneficial ownership

of the property. Its purport is to install

a custodian without disturbing beneficial

ownership.

Now, in our submission, by being vested with the

property, the custodian does have something very

close to own.er ship of the property because of

the control that he has. I should, perhaps, point

out to Your Honours in the next government Order

in Council,and this appears in the next Order

in Council, which is page 85 at the bottom,

Your Honours. That is the order dated 10 November 1987

and clause 2 of that order says:

Vesting Assets: The Custodian may vest in

himself as Custodian any funds or property

of BLF.

Now if that is not very close to vesting

him with the actual ownership of a property, well

it goes very close towards that and, in our submission,

there is a conflict. A conflict clearly comes

about because under section 143(6) the property
of the association is to remain with the association

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and to be dealt with in accordance with the

constitutional rules, whereas the effect of the

Orders of Governor in Council mean that somebody

else controls it, a person who is not a member

of the association and who is not bound by the rules.

MASON CJ:  Mr Gillard, no question has arisen as to the

validity of section 143(6)?

MR GILLARD: Sorry, Your Honour, would Your Honour repeat that?

MASON CJ:  I take it that no question has arisen in the

proceedings as to the validity of section 143 ( 6)? In

other words, argument has proceeded on the footing

that it is valid?

MR GILLARD:  I think from memory that the other side did

in defence allege that section 143(6) was ultra

vires the CONSTITUTION. I am sorry, if it bore

the meaning we put on it, then the other side did

raise the question of whether or not section 143 -

MASON CJ: That is what I had in mind?

MR GILLARD:  Yes, that was definitely raised and, of course,

in the end His Honour did not have to decide it

because he did not accept our submissions with

respect to the inconsistency, but it was raised.

MASON CJ:	So it is there, as it were, embedded in the case?
MR GILLARD:	It certainly is, yes. Now, Your Honours, the

other points of inconsistency are noted there and

it ia_our submission that His Honour was wrong

with respect to this.question and it does raise

a matter of general importance and that accordingly

Your Honours either sh0uld order that it be

removed from the Full Court or alternatively grant

special leave from the decision of Mr Justice Marks.

MASON CJ: Yes, well I think if we are persuaded by your

arguments, the convenient course would be to make

an order on the removal application and forget

about the special leave application.

MR GILLARD:  If Your Honour pleases, they are our submissions.

MASON CJ: Thank you, Mr Gillard. Yes, Mr Solicitor?

Mr Solicitor,can I inquire whether 78B notices

have been given in this case?

MR BERKELEY: Yes, Your Honour may certainly inquire.

MASON CJ: What answer do I get?

MR BERKELEY:  My learned friend, Mr Gillard, tells me they

have been given and I have got some recollection

that they were given before the matter came on before

Mr Justice Marks.

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BRENNAN J:  In terms which cover the points which have been

raised this morning?

MR BERKELEY:  I am quite incapable of saying that,Your Honour,

but I think the Commonwealth intervened - - -

MR GILLARD:_ The Commonwealth intervened on the invalidity

point.

MASON CJ:	Yes, I see.
MR BERKELEY:	If the Court pleases, every year in the month

of July, my Uncle Norman sends me a return first

class ticket by Ansett to the Gold Coast but last

year Uncle Norman was made bankrupt and his estate
was sequestrated and his assets were placed under

control of the official receiver. And the

question which the applicants _raise in this case is, does

the sequestration order interfere with Uncle Norman's

interstate intercourse and, as a conseauence, is the

BANKRUPTCY ACT void as being in breach of section 92

of the CONSTITUTION. Now the difficulty about that

issue is that it is a false issue, because in this

case Uncle Norman is not a person, it is the BLF

and the BLF is not the corporation - it may be right

to say that a company has interstate intercourse,

and it might even be right to say that a partnership

has interstate intercourse because every partner

is the agent of all the others.

In my submission, it cannot be right to say

that the club or society has interstate intercourse

and that is the way the case has been pleaded.

That is the way it was argued and that is the way

it was dealt with in His Honour's judgment. If

I could take leave from the bottom of page 21:

Mr Gillard Q.C. submitted that the BLF

was engaged in trade and commerce because

its members were employed in building

construction and the BLF itself facilitated

employment contracts. It must be doubted

whether these activities constitute engagement

in trade and commerce. It is even more

doubtful that any such activity has or has

had an interstate character. Mr Gillard Q.C.

did not identify any particular activity or

activities which might be thought to amount

to interstate trade or interstate commerce.

Then at the bottom of page 22:

As I have said, it may be accepted

that BLF activities which require travel and

communication across State borders constitute

interstate "intercourse". The question is

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whether the legislation interferes
with its -

that is with the BLF -

freedom in that regard.

And that is the way it was pleaded in paragraph 22

of the statement of claim. The allegation is

that the legislation interferes with the interstate

trade, commerce and intercourse of BLF. Now there may be a case that the legislation in some way

indirectly interferes with the interstate intercourse

of particular persons who are members of the

committee of BLF but that was not the case that

was investigated or the case that was argued and

as far as I can see from the papers and my

inquiries,nobody has ever turned its mind to that

point. And I make the point so that I can point

out what an unsuitable case this will turn out to be for the purpose of deciding an important

constitutional question about section 92. Even if

may not be the case that the plaintiff will be allowed to am:md ~heir pleading and the Full Court

the Court were to consider the real issue. in the
absence of some finding of facts or an agreed

statement of facts, it would be a hypothetical issue.

will either make some findings of facts or send it

back for a new trial or for that issue to be determined.

But, in our submission, it is unsatisfactory

for it to come to this Court at all and certainly

at this stage and with this, what we would submit,

is a misconception running through the whole

proceedings.

BRENNAN J:  Has anything been offered by way of particulars

of the acts of intercourse in which you- - -

MR BERKELEY: Yes, that is schedule 3 _ to_ tne statement of

claim, Your Honour, it is funds going backwards

and forwards and members of the committee holding

meetings in Sydney and Queensland and all that

sort of thing that a trade union does. But the

fact is ever since it has been registered it is

an unincorporated body of some sort or the other and the members are not agents to each other and the committee are not agents for the members.

MASON CJ:  But does one need to go beyond the agreed

statement of facts and in effect the summary of
the evidence made by His Honour at the conclusion

of the recitation of the agreed statement of facts?

They may not amount to a case which establishes

interference with freedom of intercourse but that,

in effect, is the- -

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MR·BERKELEY: 

I cannot say, Your Honour, it depends on what

was in the minds of the parties, but obviously
the issue was fought on the basis of what we are
dealing with is the effect of the legislation on

BLF as though it were a juristic person. That was the way in which everybody approached it, it was

.the way it was pleaded, and for that purpose

admissions were asked for and made.  Now what

aclrnissions would have been made if the matter had
been pleaded differently, I do not know.

MASON CJ:  No. One can understand that that is the way in

which the parties may have approached it. Of

course,that seems to have been the state of mind

of those who drafted the legislation, both

Commonwealth and State?

MR BERKELEY: 

Yes, Your Honour. Parliaments can do that

sort of thing and they often have, for instance,
in workers compensation legislation,they give
rights of audience to unincorporated bodies and
the courts have to do the best they can with it.

But what we are dealing with here is not an Act

of Parliament but the CONSTITUTION and considering
how section 92 affects the activities of particular

persons and the CONSTITUTION; itself, does not regard

the BLF as a person,as far as I know. I mean it

may be that I am proved wrong, it would not be the

first time in this Court, but our submission is

that the CONSTITUTION does not regard the BLF as

a person.

MASON CJ: 

The CONSTITUTION does not regard the BLF at all,

I am certain.

MR BERKELEY:  Thank goodness. Your Honour, those sort of

difficulties, Your Honour, really make the

constitutional question - it is remote enough

because they are not really saying, "You cut off

my funds and therefore I can't go interstate",

they are saying, "You cut off somebody else!s funds

and therfore I can't go interstate", whoever
that somebody else is.	So what appeared from the

applicant's argument to be a remoteness which

~one or two steps removed now becomes two or

three steps removed and makes it an even more

unsatisfactory case for that particularmatter· to

be decided on the facts of this case. ..

MASON CJ:  Now granted that you may appear on the face of

it to have a fairly strong position in relation to

the 92 question, what do you say about inconsistency?

MR BERKELEY:  The first thing is this, Your Honour. I

understand that there may be a question as to the

constitutional validity of the Connnonwealth section,

but that is on a particular premise. That is, if

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there is an inconsistency, then a question arises

as to invalidity. And we would say, on the face of

it, it is fairly unlikely that there is any

inconsistency. In his judgment - - -

MASON CJ: Validity of the Commonwealth legislation arises

before inconsistency, it is a pre-condition, to

dBtermination of the question of inconsistency?

MR BERKELEY:  May I say, with respect, Your Honour, it

depends on the facts of the case. Here we have a

man who seized some property which belonged to other

people and he has been sued for conversion, whatever

it is,	for some sort of tort , and he justifies
that by returning to a State Act of Parliament.	Now
the plaintiff's reply, they say the Act of
Parliament is inoperative, not because the
Commonwealth Act is invalid, but because the
Commonwealth Act is valid.	Now if,in fact,there is

no inconsistency then the reply of the plaintiff

fails. It may fail for some other reason, Your Honour,

but you would not have to consider the Commonwealth

legislation at all, except for the purpose of that reply, it is not part of the claim or the defence,

but it is a matter of reply and for that reason,

logically, we would say, with respect, the question

of inconsistency does come first, because if you

can see on the face of it that those two pieces of

legislation are completely remote and do not

impinge on each other you do not have to consider

that reply any further.

MASON CJ:  With due respect to you, Mr Solicitor, I should

have thought that validity comes first. But, of

course, validity depends upon meaning and meaning,

of course, is vital to the question of inconsistency,

so they are interrelating?

MR BERKELEY:  Your Honour, the Commonwealth does not have

a general power about industrial relations -

or industrial organizations~· And once an organization

is deregistered it ceases to be a Commonwealth

organization. And. 10 years down the track, we would

say, the Commonwealth does not have power to

legislate with respect to that organization,

merely because 10 years ago it happened to be

registered, Unless there is still in existe~ce

some circumstances arising out of the regiscration

or the deregistration. So that once that

organization is deregistered it takes its place in the community, subject to Commonwealth law

and State la~ and we do not have to worry about

the CONCILIATION AND ARBITRATION ACT any further.

Now in his judgment, Mr Justice Marks went through the

history of this particular section and the second

reading speech and so on, and demonstrated that this

section was enacted merely to overcome what was

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conceived or thought might be cflunwanted consequence

of deregistration. That is, you have a body

corporate under the Corrnnonwealth Act with assets

and liabilities and it is deregistered and it

becomes, if it becomes anything, it is nothing, but

there are a number of persons who used to be

members of the corporation who are still members of

a~ unincorporated association. And the difficulty

that was thought might arise is, what is to become

of the property and liabilities of the body
corpotate. And all that section 143(6) does is

to say, they become the assets and liabilities of

the former members of the body corporate. Now that

is all it does and it was not intended to provide

in perpetuity that this unincorporated association

was to be irrnnune from all State legislation and

if it did intend that, the real question of

validity would arise.

But we would say it is impossible to assume

that that is what Parliament meant and if one

looks at the history of it referred to by the

learned trial judge, it is quite clear that it is

not what Parliament meant. So that we then have

a deregistration,followed by a subsection which

saysthe unincorporated body has the property and

is subject to the liabilities of what was formerly

the corporate body,and it just sits there subject
to State law and any relevant Commonwealth law.

And the relevant State law is the (DE-RECOGNITION) ACT.

BRENNAN J: Is the proposition that section 143(6) is

exhausted at the moment of its operation?

MR BERKELEY:  Not entirely because there is some continuation

in respect of the existing debts and if they are

not paid you can go to the Federal Court and ask

for orders to be made, but that is merely an

ancillary_provision and one could see the

sense of it and it is obviously, we would say,

obviously valid. But that i-s dealing with the

consequence of deregistration. But once that is

spent then that is all there is to it and any

larger effa±would raise the question of invalidity

but we would say, it does not appear from the history,

it does not appear from the legislation and it
would be inconsistent with the powers of the

Commonwealth and it should be read so that it is

within the powers of the Commonwealth.

BRENNAN J: That is, in itself, a very important question,

is it not,..ihat is the operation of section 143(6)?

MR BERKELEY:	Yes, that is an important question, Your Honour.
I am not sure how important it is, it depends

how often unions are deregistered. We would say

it is not an important question. It is an interesting

question. It is a question of substance. But I

MlT3/14/SR	14	14/10/88
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would hesitate, in the absence of further information, to

say it is of anygeneral importance or that it

affects large numbers of people or large numbers

of organizations.

MASON CJ:  But let us assume that this matter had gone to

the Full Court and there was a division of opinion

in the Full Court on the validity of section 143(6)

and on the inconsistency question. You would not

deny then, would you, that the question was of

sufficient importance to justify the grant of

special leave to appeal?

MR BERKELEY:  On the premise that Your Honour put I would

not deny that, but if I might not just leave it

there. We would say that if one looks at the

State Act and the federal Act , the possibility of
inconsistency is so slight that there is not

likely to be a division of opinion in the

supreme court.

MASON CJ:  So, in effect, you are saying that the decision

of Mr Justice Marks was not attended with

sufficient doubt on this issue to warrant the

removal or special leave?

MR BERKELEY: It is always a difficult point because one

does not want to take up time arguing the merits

of the case. But that is what we say - -

MASON CJ: Yes, and particularly on a question that has

constitutional overtones or undertones.

MR BERKELEY:  Yes. On the question of removal, it is

perhaps of some slight significance that no Attorneys

appeared here to support the application. It does

not bind the Court but it is some indication.

MASON CJ:  Ye 9 and you have resisted it and one could take

it that you have friends who have not arrived

in Court?

MR BERKELEY:  I have absent friends, Your Honour, if the

Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Gillard, as I indicated

to you earlier, speaking for myself, it seems to

me that the second point, the inconsistency

point has perhaps more difficulty associated with

it and has other overtones that give it a

strorgar,base for removal than the first point?

MR GILLARD:	Yes.
MASON CJ:	What would your response be if I were to say

to you, and I am only exploring this hypothetically
at the moment, that the Court considered that the

second point was worthy of removal but not the first point?

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MR GILLARD:  Our reaction to that would be that we would

not be happy with that, Your Honour.

MASON CJ: No, I realise that, but beyond happiness.

MR GILLARD: And we might end up with split proceedings, maybe,

Your Honour. It depends. We would have to consider

whether we would continue in the - - -

MASON CJ: Yes, well that is what I wanted to explore?

MR GILLARD:  Yes, I do not think we would abandon our

section 92 point, Your Honour, in fact I am sure

we would not and the end result may be that we

would have split proceedings which may not be very

satisfactory. In fact, I am sure they would not

be.

MASON CJ: Yes, if it came to a choice, you might prefer

actually to proceed in the Full Court with both

3trings to your bow rather than be forced into

a situation where we said to you, "Well, we are

only prepared to remove on the footing that we

remove one point and we are not prepared to

contemplate split proceedings".

MR GILLARD:  Yes, Your Honours, we would not wish to abandon

the section 92 point and obviously we would have

to go back to the Full Court.	Can I just, perhaps,
make one point.	My friend made some argument

that this case was treated as if the plaintiff

was a body corporate. That is not the way it has

been pleaded at all and we fully recognize that

it is an unincorporated association. That appears

at page 40 in the application book, paragraph 1

and paragraph 2:

Each .of the plaintiffs -

sued -

is a member ..... and on behalf of all

members.

Paragraph 11 provides the:

number of persons ..... throughout

Australia employed as builders'

labourers.

And paragraph 20:

The members of the Federation:-

(a) move from State to State .....

(b) pay funds -

across borders -

MlT3/16/SR 16 14/10/88

(c) receive the benefit ..... of funds

and payment for services.

We then go on to say that the orders affect their
rights and,Your Honours,that is all I wish to

say in reply.

BRENNAN J: .Mr Gillard, can I just take you to the items that are

in schedule 3 and these are said to be the

respects in which intercourse is restricted, is

that so?

MR GILLARD:	Yes.
BRENNAN J:	Take the first one, the general secretary is

prevented from travelling around the various

State branches. That is a somewhat eliptical

method of describing something which, I imagine,

means that there is no funds available for it?

MR GILLARD:  Yes, it all comes back to the power of the

first, Your Honour,and how it can control the

various activities of the federation of the federal

body, that is what it comes back to.

BRENNAN J:  So that schedule 3 is to be understood as

meaning that but for the provisions of the State

Act funds would be available to do the things that are

set out there?

MR GILLARD:  Yes, the things that they wish to do and to

control their own destiny, whereas we now have
another man who controls their destiny and controls

the funds.

BRENNAN J: And whose intercourse is it which is said to be

interfered with?

MR GILLARD:  The members of the federation and their -

not only those who do perform the task on behalf

of the federation as being the executive members,

but also the members, themselves, and their right to have services provided for them and the like are interfered with. And it is a provision of those

services and the working of the body as a federal

body that is being interfered with.

MASON CJ:  Now, Mr Gillard, in the argument on section 92

you would be confined, would you not, to the

agreed statement of facts and, perhaps, to the

paragraph that follows the recitation of the

agreed statement of facts.	You could not go beyond
that.

MR GILLARD: No, we accept that, Your Honour, yes. If

Your Honour pleases.

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MR BERKELEY:  I was wondering, Your Honour, if I might say one thing that I overlooked.

MASON CJ: Yes.

MR BERKELEY:  The appeal is also on the basis that the

judge's findings were against the evidence and

I do not know if that will be persisted with

if the appeals are moved into this Court. I

should have mentioned it earlier, I apologize

for that.

MASON CJ:  Yes. What do you say about that, Mr Gillard?

MR GILLARD:	Your Honour, His Honour makes findings with respect to the interference and it is based upon
that ground that we say that that was a finding that was contrary to the facts was found and we
say no more than that.  We do not intend to
go through it.

MASON CJ: That is the one finding with which you are

concerned?

MR GILLARD:	Yes.
BRENNAN J:	You mean the legal complexion that he put upon

the facts?

MR GILLARD:  Yes, that is so,and we do not intend to go

through the facts and suggest that he should have

made different findings but the end result where

he says, there is no interference and no

restriction, we say that that is contrary to the

primary facts as found, in other words, the

inference.

MASON CJ:  So you accept the primary facts as found, and

it is merely that inference which really involves,

I suppose, a mixed question of fact and law, you

call in question?

MR GILLARD:  Yes.

MASON CJ: The Court has come to the conclusion that an

order for removal should be made on the notice of

motion seeking an order for removal and that the

application for special leave to appeal should be

refused. And I might indicate on behalf of the

Court that at some time in the convenient future

there will be appearing before a single Justice,
with a view to establishing precisely what arguments
are going to be raised by the parties, and with a

view to ensuring that the 78B notice that has already

been given covers the appropriate points to be

raised, and if it does not, that a fresh 78B notice

should be given.

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MR GILLARD:  Might I reserve the costs?

MASON CJ: Yes, do you agree to that?

MR BERKELEY:	Yes.
MASON CJ:	Yes, costs are reserved.

AT 10.22 PM THE MATTER WAS ADJOURNED SINE DIE

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