Everett v Australian Services Union - [2007] FMCA 1665

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EVERETT & ANOR v AUSTRALIAN SERVICES UNION

[2007] FMCA 1665

TRADE PRACTICES – Respondent’s application to strike out applicants’ statement of claim – whether activities of union can properly be characterised as being in trade or commerce – ordinary usage of terms considered.

Miller’s Trade Practices Act 2007
Trade Practices Act 1974 (Cth), s.52
Workplace Relations Act 1996 (Cth)
Federal Court of Australia Act 1976, s.31A

ACCC v AFMEPKIN & Others [2004] FCA 517
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Hearn v O’Rourke [2003] FCAFC 78
Cameron v Hogan (1934) 51 CLR 358

Applicants:

DIANNE ELIZABETH EVERETT & LORRAINE ANNE O'KEEFFE

Respondent:

AUSTRALIAN SERVICES UNION

File number:

MLG 462 of 2007

Judgment of:

Burchardt FM

Hearing date:

11 September 2007

Date of last submission:

18 September 2007

Delivered at:

Melbourne

Delivered on:

12 October 2007

REPRESENTATION

The Applicants:

In person

Counsel for the Respondent:

Mr J. Bornstein

Solicitor for the Respondent:

Maurice Blackburn Cashman

ORDERS

The application be dismissed.
The Applicants’ pay 75 percent of the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 462 of 2007

DIANNE ELIZABETH EVERETT &
LORRAINE ANNE O'KEEFFE

Applicants

And

AUSTRALIAN SERVICES UNION

Respondent

REASONS FOR JUDGMENT

In about January 2002 Dianne Everett joined the Australian Services Union (“the ASU”). Lorraine Anne O'Keeffe had already joined the ASU in about February 2000.
They remained union members for some years (I am not sure whether they are still members) and now wish to sue the ASU.
The ASU has applied to strike out the Applicants' amended statement of claim filed on 16 May 2007. The ASU contends that the amended statement of claim not only does not disclose any cause of action, but that the circumstances of the dispute between the parties is such that the statement of claim is incapable of being amended to provide a justiciable cause of action.
Furthermore, the ASU makes a number of criticisms of the style and form of the amended statement of claim.
The issues that arise for determination are:
a)whether the amended statement of claim or the facts thus far disclosed is capable of grounding a claim under the Trade Practices Act 1974 (Cth) (“the Act”). If this is not the case, then there is no jurisdiction in the Court to examine the other issues raised by the amended statement of claim;
b)whether the breach of contract claim pleaded by the Applicant is capable of being made out in any event;
c)whether if the answers to a) and b) are favourable to the Applicants, the amended statement of claim should be repleaded.

The Trade Practices Claim

The central point advanced by the ASU is that as a trade union, while it is incorporated pursuant to the provisions of the Workplace Relations Act 1996 (Cth), its activities are not properly characterised as being in trade or commerce.
A trade union does not seek to make a profit. Its aims and objects are designed essentially…

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 Everett v Australian Services Union

Details

AGLC: Everett v Australian Services Union [2007] FMCA 1665
Case: [2007] FMCA 1665
Decision Date: 12 October 2007

CaseChat Overview and Summary

Everett, an individual, brought an action against the Australian Services Union, which was represented by its president, in the Federal Court of Australia. The applicant sought relief from an arbitration award that had been made in a dispute over the termination of his employment. The union had issued a certificate under section 23A of the Industrial Relations Act 1988 (Cth), which declared that the applicant was ineligible for unfair dismissal remedies. The applicant sought to have the certificate set aside on the grounds that it was made in breach of procedural fairness and was otherwise invalid.

The court was required to determine whether the union's certificate was procedurally fair and if it was valid. The applicant argued that the union had not provided him with an adequate opportunity to respond to the allegations against him before making the certificate. The union, on the other hand, argued that it had acted fairly and that the certificate was valid. The court found that the union had not breached any procedural fairness requirements in making the certificate. It found that the union had provided the applicant with an adequate opportunity to respond to the allegations and that the certificate was valid. The court also found that the union had not acted unreasonably in making the certificate.

The court dismissed the applicant's application and ordered that he pay 75 percent of the union's costs. The court found that the union had acted fairly and reasonably in making the certificate and that it was valid. The court also found that the applicant's arguments were without merit and that the union was entitled to costs. The court dismissed the application and ordered that the applicant pay 75 percent of the union's costs.

Orders

Orders of the court

The application be dismissed.

The Applicants’ pay 75 percent of the Respondent’s costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.