Gallagher v Owens - [1992] HCATrans 125

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M21 of 1992
B e t w e e n -
NORMAN LESLIE GALLAGHER

Plaintiff

and
RONALD GEORGE OWENS on his own
behalf as well as on behalf of
and as representing all the
members for the time being of
the Federal Council of The
Australian Building
Construction Employees' and
Builders Labourers' Federation
EXCEPT THE PLAINTIFF and JOHN
CUMMINS

Defendant

Application for injunction

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 APRIL 1992, AT 9.02 AM

Gallagher

28/4/92

MR J.D. HAMMOND: If Your Honour pleases, I appear on behalf

of the plaintiff. (instructed by Marshalls & Dent)

MR K.H. BELL: If Your Honour pleases, I appear on behalf of

Mr Owens. (instructed by Geoffrey Edwards & Co)

MR H. BORENSTEIN: If Your Honour pleases, I appear for

Mr Cummins and I have an application to make in
relation to his role in the proceedings.
(instructed by Harry Nowicki & Co)

HIS HONOUR:

I must say one of the questions I was going to

ask you was what you were doing here,
Mr Borenstein. According to the title of the
action, you are excluded.

MR BORENSTEIN: Yes, Your Honour, we are very downcast at

the prospect that we are the only ones who are not
invited to the party and we are somewhat curious as
to the reasons. But, in any event, Your Honour, we
have an application to make that Mr Cummins be
admitted as a defendant to the action.

HIS HONOUR:

On what basis , Mr Borenstein?

MR BORENSTEIN: Well, Your Honour, the power of the Court to

do that - - -

HIS HONOUR:	I am not questioning the power of the Court.
MR BORENSTEIN:	The basis is, Your Honour, that he is a

federal councillor, he is the only federal
councillor for reasons unknown to us that is not

included. He is an officer of the organization in
the sense of holding the position of federal
treasurer and the matters in dispute here concern
union funds, or allegations of misappropriation of

union funds. He is the only federal councillor
from the State of Victoria on this federal council.
These are all matters that appear from Mr Hammond's
materials, Your Honour, and it is our understanding

and, I think, Mr Bell will tell Your Honour in due
course that it is not clear that all of the other federal councillors will be taking any particular position in relation to this matter and as the
charges which are the substance of this matter
emanate from Victoria and Mr Cummins is the
Victorian Branch Secretary at the moment, he has a
particular interest to ensure that this matter is
dealt with in the interests of those that he
represents.

HIS HONOUR:

Yes, thank you, Mr Borenstein.

Mr Hammond, is

there any reason why Mr Cummins was omitted and,
having been omitted, why he should…

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 Gallagher v Owens

Details

AGLC: Gallagher v Owens [1992] HCATrans 125
Case: [1992] HCATrans 125
Decision Date

CaseChat Overview and Summary

Norman Leslie Gallagher, the plaintiff, sought an injunction against Ronald George Owens, representing members of the Federal Council of The Construction Employees' and Builders Labourers' Federation, excluding Mr. Cummins. Mr. Cummins, represented by his own counsel, applied to be admitted as a defendant to the action. The proceedings took place in the High Court of Australia.

The primary legal issue before the Court was whether Mr. Cummins, who was explicitly excluded from the class of defendants represented by Mr. Owens, should be admitted as a defendant. This involved considering his position as a federal councillor and federal treasurer, his role in initiating charges against the plaintiff, and his interest in the subject matter of the dispute, which concerned allegations of misappropriation of union funds.

The Court was required to determine the basis for Mr. Cummins' exclusion and whether his application to be joined as a defendant should be granted. Mr. Cummins' counsel argued that he was a federal councillor and officer of the organisation, with a particular interest in the matter as the Victorian Branch Secretary and the origin of the charges. Conversely, the plaintiff's counsel submitted that Mr. Cummins should not be admitted as a defendant, arguing that his involvement in initiating the charges created an "irresistible case of invincible bias" if he were to sit on the federal council to adjudicate the matter.

Orders