Donnelly v Cosgrove - [2009] FCA 1183

FEDERAL COURT OF AUSTRALIA
Donnelly v Cosgrove [2009] FCA 1183
INDUSTRIAL LAW – interlocutory injunctions - breach of rules of Union – whether persons who are no longer members of a Union are still subject to obligations under its rules – extent of members’ obligations under Union rules - applications under ss 164 and 164A of the Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth), ss 164, 164A
Federal Court Rules
Workplace Relations Act 1976 (Cth), Schedule 1, ss 164, 164A
Allen v Townsend (1977) 31 FLR 431, referred to
Cook v Crawford (1982) 43 ALR 83, referred to
CHARLES DONNELLY v JOHN COSGROVE, LESLIE SEAMAN, CHRISTINE FLAGE, MICHAEL CONNORS, WENDY COOKE, TALA FORBES, GEOFFREY SINGH, WENDY NEWCOMB, RUSSELL VIERITZ, NICHOLAS STORY, MICHELLE HOLWEG and GERARD O'GORMAN
VID 135 of 2009
TRACEY J
16 OCTOBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 135 of 2009

FAIR WORK DIVISION

BETWEEN:
CHARLES DONNELLY
Applicant

AND:
JOHN COSGROVE
First Respondent

LESLIE SEAMAN
Second Respondent

CHRISTINE FLAGE
Third Respondent

MICHAEL CONNORS
Fourth Respondent

WENDY COOKE
Fifth Respondent

TALA FORBES
Sixth Respondent

GEOFFREY SINGH
Seventh Respondent

WENDY NEWCOMB
Eighth Respondent

RUSSELL VIERITZ
Ninth Respondent

NICHOLAS STORY
Tenth Respondent

MICHELLE HOLWEG
Eleventh Respondent

GERARD O'GORMAN
Twelfth Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

16 OCTOBER 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Order made herein on 22 April 2009 by Gray J, and extended by consent on 14 May, 26 June, 25 August and 10 September 2009, be varied as follows:
(a)by adding after the word “Respondents” in Order 1 the words “other than the Third, Tenth and Eleventh Respondents,”; and

(b) by vacating Orders 1(c), (d) and (e).
2.The Applicant have leave to amend the Rule to show cause made herein on 27 February 2009 by adding the following paragraphs after paragraph 5:

“5A An Order that the First Respondent perform and observe the rules of the Union by:
(a)Not encouraging or procuring, whether by himself, his servants or agents, any member of the Union to authorise his or her employer to stop making payment of his or her Union membership contributions to the Union on his or her behalf;
(b)Taking no further step in relation to each and every document in his possession, custody or control on the date of this order which is signed by any person and which is in the form of, or substantially in the form of, the documents entitled “NUWQ Membership Application Form” or “NUWQ National Union of Workers Industrial Union of Employees Queensland”, copies of which are annexed hereto.

5B An Order that the Seventh Respondent perform and observe the rules of the Union by refraining from hindering, obstructing, preventing or interfering with officers and employees of the Union meeting, or arranging to meet, with members of the Union located at the Golden Circle plant at Northgate, Queensland.

5C An Order that the Eleventh Respondent take no further step in relation to each…

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.

Continue reading Donnelly v Cosgrove

Details

AGLC: Donnelly v Cosgrove [2009] FCA 1183
Case: [2009] FCA 1183
Decision Date: 16 OCTOBER 2009

CaseChat Overview and Summary

Donnelly, the applicant, brought an action in the Federal Court of Australia against Cosgrove and others, the respondents, seeking relief in relation to union activities that Donnelly alleged were in breach of the rules of the National Union of Workers. The matter was before the court on an application for an interlocutory injunction and for an extension of an existing injunction. The court was required to determine whether the injunction should be extended, and if so, whether certain provisions of the existing injunction should be varied. The court was also required to determine whether the applicant should be granted leave to amend the Rule to show cause.

The court held that the existing injunction should be extended, but certain provisions should be varied. The court found that the existing injunction was not clear enough and that some of the respondents were not properly identified. The court also found that the applicant should be granted leave to amend the Rule to show cause, as the additional paragraphs were relevant to the matters before the court. The court held that the First, Seventh and Eleventh respondents should be subject to additional obligations in relation to their conduct under the rules of the Union.

The court varied the existing injunction by adding the words “other than the Third, Tenth and Eleventh Respondents” after the word “Respondents” in Order 1 and by vacating Orders 1(c), (d) and (e). The court also granted the applicant leave to amend the Rule to show cause by adding the specified paragraphs. Finally, the court made orders that the First, Seventh and Eleventh respondents perform and observe the rules of the Union in the specified ways until the hearing and determination of the proceeding or further order.

Orders

Orders of the court

1. The Order made herein on 22 April 2009 by Gray J, and extended by consent on 14 May, 26 June, 25 August and 10 September 2009, be varied as follows:

(a) by adding after the word “Respondents” in Order 1 the words “other than the Third, Tenth and Eleventh Respondents,”; and

(b) by vacating Orders 1(c), (d) and (e).

2. The Applicant have leave to amend the Rule to show cause made herein on 27 February 2009 by adding the following paragraphs after paragraph 5:

“5A An Order that the First Respondent perform and observe the rules of the Union by:

(a) Not encouraging or procuring, whether by himself, his servants or agents, any member of the Union to authorise his or her employer to stop making payment of his or her Union membership contributions to the Union on his or her behalf;

(b) Taking no further step in relation to each and every document in his possession, custody or control on the date of this order which is signed by any person and which is in the form of, or substantially in the form of, the documents entitled “NUWQ Membership Application Form” or “NUWQ National Union of Workers Industrial Union of Employees Queensland”, copies of which are annexed hereto.

5B An Order that the Seventh Respondent perform and observe the rules of the Union by refraining from hindering, obstructing, preventing or interfering with officers and employees of the Union meeting, or arranging to meet, with members of the Union located at the Golden Circle plant at Northgate, Queensland.

5C An Order that the Eleventh Respondent take no further step in relation to each and every document in her possession, custody or control on the date of this order which is signed by any person and which is in the form of, or substantially in the form of, the documents entitled “NUWQ Membership Application Form” or “NUWQ National Union of Workers Industrial Union of Employees Queensland”, copies of which are annexed hereto.”

3. Until the hearing and determination of this proceeding or further Order, the First Respondent perform and observe the Rules of the National Union of Workers (“the Union”) by:

4. Until the hearing and determination of this proceeding or further Order, the Seventh Respondent perform and observe the Rules of the Union by refraining from hindering, obstructing, preventing or interfering with officers and employees of the Union meeting, or arranging to meet, with members of the Union located at the Golden Circle plant at Northgate, Queensland.

5. Until the hearing and determination of this proceeding or further Order, the Eleventh Respondent take no further step in relation to each and every document in her possession, custody or control on the date of this order which is signed by any person and which is in the form of, or substantially in the form of, the documents entitled “NUWQ Membership Application Form” or “NUWQ National Union of Workers Industrial Union of Employees Queensland”, copies of which are annexed hereto.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

TRACEY J

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Ratio Decidendi

Legal Principle Established

Established by: TRACEY J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 135 of 2009
FAIR WORK DIVISION

JUDGE:	TRACEY J
DATE OF ORDER:	16 OCTOBER 2009
WHERE MADE:	MELBOURNE