Hussey, F.J. v Plain, R.E.

[1992] FCA 517

S17 92

JUDGMENT No. ..... . . ........ .. J ,.-.,,

m DISTRIBUTION NOT REOUIRED

IN	COURT OF AUSTFWLU	)
1
VICTORIA DISTRICT REGISTRY	)	No. V1 13 of 1992
\
JNDusTRIAL DIVISION	i

B E T W E E N :

FRRNKLIN JOHN HUSSEY

Applicant

A N D :

R. E. PLAIN, LAURENCE GOOKE. IAN M. LEONARD, RODNEY A. SHORT. JIM

NEILSEN. DANNY L O W . BERNARD J. WILLINGALE. MILTON JENNER. PAUL CONNOLLY, WILLIAM G U M M I N S , ROBERT McMANUS. WARREN TURNBULL. BILL McLEOD, ROY LESLIE. KEN STAPLETON. GARRY THOMPSON. NEVILLE S C H R A D E R , L E W GRIFFITHS. TERRY McCONVILLE and REG LACEY

Respondents

JUDCF MAKING ORDER:	KEELY A.C.J.
DATE ORDER MADE:	17 JULY, 1992

Willingale out of the funds of the New South Wales (AFULE) by paying or causing to be paid to Bernard Jack

Division of M U L E $16,815.00 as payment for unused sick leave accrued by Bernard Jack Willingale whilst holding the office of divisional secretary and/or divisional manager of the New South Wales Division of the AFULE for the period 25 November 1965 to 30 March 1982.

RECEIVED

PLACE ORDER MADE:  MELBOURNE

FEDERAL m

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.    Each of the respondents perform and observe the rules of the Australian Federated Union of Locomotive Enginemen

(mL!LS: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)

BUTION NOT REOUIRED

JJ THE FED= COURT OF AUSTRALIA )

)

1     No. V1 13 of 1992

1  

JNDUSTRIAL DIVISION	1
B E T W E E N :

FRANKLIN JOHN HUSSEY

Applicant

A N D :

R. E. PLAIN. LAURENCE COOKE. IAN M. LEONARD, RODNEY A. SHORT. JIM NEILSEN. DANNY LOGAR, BERNARD J . WILLINGALE, MILTON JENNER, PAUL CONNOLLY. WILLIAM CUMMINS, ROBERT McMANUS. WARREN TURNBULL. BILL McLECD, ROY LESLIE. KEN STAPLETON. GARRY THOMPSON. NEVILLE S C H R A D E R . L E W GRIFFITHS. TERRY McCONVILLE and REG

LACEY

Respondents

17 JULY, 1992 KEELY A.C.J.

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE - REVISED FROM DRAFT TRANSCRIPT)

I had looked at this matter last night and read the agreed statement of facts, rule 23(6) and the contentions of law of the parties. I had read most of the cases and have since considered the matter carefully. I do not propose reserving the matter and do not need to hear argument from the

applicant (which may disappoint Mr. Hinkley and/or his
client) .

The alteration to rule 23(6) on 30 March 1982 added the sentence (referring to the Divisional Secretary):

"Upon termination of office, be paid for all unusued sick leave accrued whilst holding the office of Divisional Secretary."

In my opinion, in their ordinary grammatical sense, those words mean that the person who is holding the office of divisional secretary is, when his office is terminated, to be paid for all of the unused sick leave which has accrued to him while holding that office.

It is common ground in this case that the occupant of the office, Mr. Willingale, had accrued sick leave at the time when that alteration came into operation. Despite the forceful argument advanced by the respondents' counsel, Mt.

considerable ingenuity in advancing arguments today - I have a	Bell - who, as I indicated to him in argument, displayed
very clear opinion that the words mean what they say; for the respondents to succeed it would be necessary to read into the 1982 amendment qualifying words, such as "after this alteration came into operation". I have already made it clear that I am unable to uphold Mr. Bell's argument based upon the presence of the word "all" in both the first and second paragraphs of the amended rule 23(6).
That is enough to dispose of the case, but I have examined the authorities cited and I have heard argument for about an hour and three quarters this morning from Mr. Bell on those cases. Assuming, without deciding, that the presumption against retrospectivity, which is relied upon by the respondents, applies to the construction of union rules, it seems to me that one must look at the basis behind that presumption; as was stated in at least one of the cases
debated this morning (W v Victorian Railwavs Commissioners
[l9601 VR 84 at 86), that basis is the presumption by the courts that the legislature would not intend what is unjust (in the case of the presumption as to statutes). In my opinion the alteration to rule 23(6) in the present case could not be said to be in the category of resulting in any injustice if the applicant's construction be upheld.
Accordingly I reject the arguments that have been advanced by the respondents. The first order that is sought by the applicant in paragraph 1 of the rule to show cause is a
direction that each of the respondents perform and observe the rules of the Australian Federated Union of Locomotive
Enginemen (AFULE) by paying or causing to be paid to Bernard Jack Willingale out of the funds of the New South Wales Division of MULE $16,815.00 as payment for unused sick leave accrued by Bernard Jack Willingale whilst holding the office of divisional secretary and/or divisional manager of the New South Wales Division of the AFULE for the period 25 November 1965 to 30 March 1982.
The court orders that paragraph 1 of the rule to show cause be made absolute.
I hereby certify that this and the three preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely as recorded in the draft transcript and revised by his Honour on 17
Julv 1992. -
Associate:
Date:  20 July, 1992

ATTACHMENT A

Date of Hearing 17 July, 1992

Date of Judgment	:	17 July, 1992
Solicitor for the applicant	Ryan Carlisle Thomas
Appearing for the applicant	Mr. R. Hinkley
Solicitors for the respondents	Slater & Gordon
Appearing for the respondents	Mr. K. Bell