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…
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- AGLC
- Everett v Australian Services Union [2007] FMCA 1665
- Case
- [2007] FMCA 1665
- Decision Date
CaseChat Overview and Summary
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
1.
The application be dismissed.
2.
The Applicants’ pay 75 percent of the Respondent’s costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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