Jess, Michael Patrick v Scott, R.J

[1984] FCA 36

Re: MICHAEL PATRICK JESS
And: R.J. SCOTT; J.G. KIDD; L. CARMICHAEL; G. CAMPBELL; R.A. BRUGGY; W.
MARTIN; E. LIPSCOMBE; F. MAURICE; D.A. BEER; W.R. ARSCOTT; F. McGOWAN; R.B.
HAWKES; G. HARRISON; R.M. ADAMSON; H. MALCOLM; P. JOHNSON; J.F. HALFPENNY; J.
O'NEILL; R. POINTER; M. TUMBERS; H. PEDEN; A.J. MARKS; B.R. BURNS; J.A.
VAUGHAN and M.K. HILL
No. 1 of 1984
52 ALR 393 / 8 IR 263 / 1 FCR 401
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Beaumont J.(1)

CATCHWORDS

Industrial law - Jurisdiction of the Court under s.141 of the Conciliation and Arbitration Act, 1904 - Implications in rules.

Industrial Law - Registered organisation - Rules - Observance and performance thereof - Application for summary dismissal of application - Use of organisation resources in support of candidate - Implicit limitation upon exercise of powers conferred by rules - Conciliation and Arbitration Act 1904 (Cth), s. 141.

HEADNOTE

The applicant, a member of a registered organisation, sought orders under s. 141 of the Conciliation and Arbitration Act 1904 (Cth) for the performance and observance of the rules of the organisation by refraining from using or permitting any other persons to use the organisation's resources to support a candidate or groups of candidates in ballots for certain offices in the organisation, including using the resources to publish or distribute news-sheets to support a candidate or a group of candidates including further publishing or distributing news-sheets already published and an order for the repayment of resources used to publish news-sheets already published. There was no rule in the organisation's rules which proscribed the activities challenged. The respondents, being officers of the organisation, sought dismissal of the proceedings on the ground that no reasonable cause of action was disclosed, alternatively that a preliminary question of the court's jurisdiction to grant the relief sought be first determined.

Held: (1) In an application under s. 141 of the Conciliation and Arbitration Act (Cth) terms could be implied into union rules in proper circumstances and such implied terms could be the subject of directions pursuant to s. 141.

Kanan v. Hawkins unreported (Federal Court of Australia, Sweeney J., 14 September 1979); Gordon v. Carroll (1975) 27 FLR 129 at 144-146, 152-156, 159- 160; Valentine v. Butcher (1981) 51 FLR 127 at 136-137; Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330 at 336, applied; Dugmore v. Porter (1982) 3 IR 418 at 421, distinguished.

(2) The powers of management of the organisation's resources, which were alleged to have been abused by the respondents in their respective capacities, were powers which were conferred by the rules in respective terms.

(3) The relevant rules of the respondent organisation should be construed to mean that there was at least implicit in them the usual obligations that all such powers should be exercised bona fide for the benefit and in the interests of union members as a whole.

Ngurli Ltd v. McCann (1953) 90 CLR 425