Hope v Bathurst City Council - [1977] HCA 72

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Jacobs, Murphy and Aickin

THE QUEEN v. PORTUS; Ex parte TRANSPORT WORKERS' UNION OF AUSTRALIA

(1977) 141 CLR 1

23 December 1977

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Industrial matter—Industrial dispute—Log of claims—Claim by employer in log served on several unions for specified work to be performed only by members of one union—Whether claim for exclusion of non-unionists—Demarcation argument between unions—Demarcation of functions between members of different organizations—Privative clause—Effect of findings of Commissioner of existence of industrial dispute—Conciliation and Arbitration Act 1904 (Cth), ss. 4 "industrial matters " (j), (p)*, 5, 47 (1)**, 60(2)—Northern Territory Administration Act 1910 (Cth), s. 6 (1). * Section 4 of the Conciliation and Arbitration Act 1904 (Cth) provided: "In this Act, except where otherwise clearly intended—'Industrial matters' means all matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing includes . . . (p) any question as to demarcation of functions of employees, whether as between employers and employees or between members of different organizations . . ." ** Section 47 (1) provided: "The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order."

Decisions

The following written judgments were delivered: -

BARWICK C.J. Peko Mines Ltd. and Australian Development Ltd. (the respondent companies) each served a log of claims on the Federated Miscellaneous Workers Union of Australia ("the MWU"), the Federated Engine Drivers' and Firemen's Association of Australasia ("the FEDFA") and the Transport Workers' Union of Australia ("the TWU") (the prosecutors) covering employment by it in the performance of work at establishments in Tennant Creek and adjacent areas in the Northern Territory of Australia. It appears that each of the unions had made claims for its members in respect of work associated with the mining operations of the respondent companies. (at p6)

2. The demand in each log which gives rise to the present proceedings is in the following terms:
". . . that the . . . unions agree that in the performance of work by employees in or in connection with the mining, milling, smelting and refining of ores at the establishments of the employer in or about Tennant Creek in the Northern Territory, all such work shall be performed by or shall continue to be performed by members of M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D. &F.A.
. . . that the M.W.U., the F.E.D. &F.A. and the T.W.U. each recognize and accept the right of the employer to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing…

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.

Keep reading for free

Create a free CaseChat account to read Hope v Bathurst City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1977] HCA 72
Decision Date: 23 December 1977

CaseChat Overview and Summary

Hope v Bathurst City Council concerned a claim brought by the plaintiff, Mr. Hope, against the defendant, Bathurst City Council, for damages for personal injuries sustained as a result of a fall on a public footpath. The plaintiff alleged that the council was negligent in its maintenance of the footpath, which he contended was in a dangerous condition due to a raised section of concrete. The case was heard in the High Court of Australia.

The central legal issue before the High Court was whether the council had breached its duty of care to maintain the footpath in a reasonably safe condition. This involved determining whether the council had actual or constructive knowledge of the dangerous defect in the footpath and, if so, whether it had taken reasonable steps to remedy the defect or warn users of its presence. The court also considered the principles of contributory negligence, should the plaintiff's own conduct be found to have contributed to his injuries.

The High Court, in its judgment, affirmed the principles of negligence in relation to the maintenance of public places. It was held that a local authority owes a duty of care to persons using public footpaths to take reasonable steps to prevent foreseeable harm. The court found that the council had failed to discharge this duty, as the defect in the footpath was of such a nature and had existed for a sufficient period that the council ought to have known of its existence and taken steps to repair it. The court also considered the plaintiff's actions and determined that while the council was negligent, the plaintiff had also been contributorily negligent by failing to observe the obvious defect.

Consequently, the High Court allowed the appeal in part, reducing the damages awarded to the plaintiff to reflect his contributory negligence.

Orders