John David Sutton, the Construction, Forestry, Mining and Energy Union and Ian Gordon Sharp, the State of Victoria
[1994] IRCA 90
•1 Nov 1994
C A T C H W O R D S
APPEAL - Application for leave to appeal against interlocutory order refusing to summarily dismiss an application for want of jurisdiction - Whether any question of law or principle is involved - Whether appeal would enjoy a substantial prospect of success - Application dismissed.
Industrial Relations Act 1988, ss.258, 420(2) and 430.
JOHN DAVID SUTTON and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v. IAN GORDON SHARP, THE STATE OF VICTORIA, JOHN ATKINSON, ANTONIO BERTOLO, DAVID G BRYDEN, MATEVZ CELIGOJ, ALLAN FRANCIS COBB, ANTHONY COOK, PETER CONSIDINE, GENNARO CITERA, JOHN RAYMOND CROYSDALE, THEODORUS DE WIT, ROBERT DOHERTY, JAMES FITZPATRICK, JOHN F FITZPATRICK, ALLAN FOWLER, KARL GANG, JOHN GROOM, DANNY BRYAN RAYMOND GRIFFIN, TREVOR HAMMOND, BERNARD HANNAN, MARTIN HENDERSON, FRANK LAMB, TOM LEWIS, JOHN NORMAN LYNCH, PATRICK JOE McDERMOTT, JOHN STEWART McLEAN, GREGORY JAMES MILLHOUSE, KEITH MISSEN, AUGUSTUS JOHN MOORE, BRENDON MURPHY, JOHN FRANCIS NEAL, NOEL PARKER, RUSSEL PEET, ANGELO PELUSO, COMO PELUSO, RAYMOND GORDON POLLOCK, RONALD POLLOCK, ROSS IAN RICHER, ALAN JAMES RIX, STEVEN SCOTT, DAVID SCOTT SHANNON, RONALD GEORGE SMITH, DENNIS STOHR, ZYGMUNT STOHR, RONALD ALBERT TAYLOR, MARK FRANCIS TAYLOR, GEOFFREY WARBY, ANDREW WEBSTER, REIJO A WESTLIN, RAIMO OLAVI WESTLIN, REINO T WESTLIN, KEITH H WILSON, BARRY JAMES YOUNG, STEPHEN ANTHONY CANNY, KEVIN DAVIS, KENNETH JOHN GRANT, EMIDIO LUNARO, WILLIAM JOSEPH McCARTHY, EDWARD GEORGE MOULD, PETER PATTERSON, BRUNO PROSIA, PATRICK WALSH and ALFRED WILLIAMS - THIRD RESPONDENTS
JOSEPH FERGUSON, GEOFFREY VAUGHAN, RUSSELL CAMERON, STEVEN BLACK, KEVIN GLEDHILL, NORM GALLAGHER, JOHN ROBERTS, DAVID CRODEN, DOUG SIDDONS, JOHN McNAMARA, DENNIS McNAMARA and BOB MILLS - FOURTH RESPONDENTS
MICK YOUNG, KEVIN JOSEPH PETER DOWEY, R H DALTON, M GREANY and JOHN JAMES McKEOWN - FIFTH RESPONDENTS
NO. NI 117 of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 1 NOVEMBER 1994
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NO. NI 117 of 1994
BETWEEN:JOHN DAVID SUTTON
First Applicant
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Applicant
AND:IAN GORDON SHARP
First Respondent
THE STATE OF VICTORIA
Second Respondent
JOHN ATKINSON, ANTONIO BERTOLO, DAVID G BRYDEN, MATEVZ CELIGOJ, ALLAN FRANCIS COBB, ANTHONY COOK, PETER CONSIDINE, GENNARO CITERA, JOHN RAYMOND CROYSDALE, THEODORUS DE WIT, ROBERT DOHERTY, JAMES FITZPATRICK, JOHN F FITZPATRICK, ALLAN FOWLER, KARL GANG, JOHN GROOM, DANNY BRYAN RAYMOND GRIFFIN, TREVOR HAMMOND, BERNARD HANNAN, MARTIN HENDERSON, FRANK LAMB, TOM LEWIS, JOHN NORMAN LYNCH, PATRICK JOE McDERMOTT, JOHN STEWART McLEAN, GREGORY JAMES MILLHOUSE, KEITH MISSEN, AUGUSTUS JOHN MOORE, BRENDON MURPHY, JOHN FRANCIS NEAL, NOEL PARKER, RUSSEL PEET, ANGELO PELUSO, COMO PELUSO, RAYMOND GORDON POLLOCK, RONALD POLLOCK, ROSS IAN RICHER, ALAN JAMES RIX, STEVEN SCOTT, DAVID SCOTT SHANNON, RONALD GEORGE SMITH, DENNIS STOHR, ZYGMUNT STOHR, RONALD ALBERT TAYLOR, MARK FRANCIS TAYLOR, GEOFFREY WARBY, ANDREW WEBSTER, REIJO A WESTLIN, RAIMO OLAVI WESTLIN, REINO T WESTLIN, KEITH H WILSON, BARRY JAMES YOUNG, STEPHEN ANTHONY CANNY, KEVIN DAVIS, KENNETH JOHN GRANT, EMIDIO LUNARO, WILLIAM JOSEPH McCARTHY, EDWARD GEORGE MOULD, PETER PATTERSON, BRUNO PROSIA, PATRICK WALSH and ALFRED WILLIAMS
Third Respondents
JOSEPH FERGUSON, GEOFFREY VAUGHAN, RUSSELL CAMERON, STEVEN BLACK, KEVIN GLEDHILL, NORM GALLAGHER, JOHN ROBERTS, DAVID CRODEN, DOUG SIDDONS, JOHN McNAMARA, DENNIS McNAMAR and BOB MILLS
Fourth Respondents
MICK YOUNG, KEVIN JOSEPH PETER DOWEY, R H DALTON, M GREANY and JOHN JAMES McKEOWN
Fifth Respondents
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 1 NOVEMBER 1994
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application for leave to appeal filed by the first and second respondents, Ian Gordon Sharp and the State of Victoria, be refused.
NOTE:Settlement and entry of orders is dealt with in Order 37 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) NO. NI 117 of 1994
BETWEEN:JOHN DAVID SUTTON
First Applicant
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Applicant
AND:IAN GORDON SHARP
First Respondent
THE STATE OF VICTORIA
Second Respondent
JOHN ATKINSON, ANTONIO BERTOLO, DAVID G BRYDEN, MATEVZ CELIGOJ, ALLAN FRANCIS COBB, ANTHONY COOK, PETER CONSIDINE, GENNARO CITERA, JOHN RAYMOND CROYSDALE, THEODORUS DE WIT, ROBERT DOHERTY, JAMES FITZPATRICK, JOHN F FITZPATRICK, ALLAN FOWLER, KARL GANG, JOHN GROOM, DANNY BRYAN RAYMOND GRIFFIN, TREVOR HAMMOND, BERNARD HANNAN, MARTIN HENDERSON, FRANK LAMB, TOM LEWIS, JOHN NORMAN LYNCH, PATRICK JOE McDERMOTT, JOHN STEWART McLEAN, GREGORY JAMES MILLHOUSE, KEITH MISSEN, AUGUSTUS JOHN MOORE, BRENDON MURPHY, JOHN FRANCIS NEAL, NOEL PARKER, RUSSEL PEET, ANGELO PELUSO, COMO PELUSO, RAYMOND GORDON POLLOCK, RONALD POLLOCK, ROSS IAN RICHER, ALAN JAMES RIX, STEVEN SCOTT, DAVID SCOTT SHANNON, RONALD GEORGE SMITH, DENNIS STOHR, ZYGMUNT STOHR, RONALD ALBERT TAYLOR, MARK FRANCIS TAYLOR, GEOFFREY WARBY, ANDREW WEBSTER, REIJO A WESTLIN, RAIMO OLAVI WESTLIN, REINO T WESTLIN, KEITH H WILSON, BARRY JAMES YOUNG, STEPHEN ANTHONY CANNY, KEVIN DAVIS, KENNETH JOHN GRANT, EMIDIO LUNARO, WILLIAM JOSEPH McCARTHY, EDWARD GEORGE MOULD, PETER PATTERSON, BRUNO PROSIA, PATRICK WALSH and ALFRED WILLIAMS
Third Respondents
JOSEPH FERGUSON, GEOFFREY VAUGHAN, RUSSELL CAMERON, STEVEN BLACK, KEVIN GLEDHILL, NORM GALLAGHER, JOHN ROBERTS, DAVID CRODEN, DOUG SIDDONS, JOHN McNAMARA, DENNIS McNAMARA and BOB MILLS
Fourth Respondents
MICK YOUNG, KEVIN JOSEPH PETER DOWEY, R H DALTON, M GREANY and JOHN JAMES McKEOWN
Fifth Respondents
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 1 NOVEMBER 1994
REASONS FOR JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
WILCOX CJ: On 2 September 1994 I heard argument in respect of a Notice of Motion filed by the first and second respondents, Ian Gordon Sharp and the State of Victoria, which sought an order that the Court dismiss this case for want of jurisdiction. At the conclusion of the argument, I dismissed the motion. I indicated that I would give written reasons as soon as possible. I did so on 12 October. In the meantime, on 15 September, the first and second respondents filed an application for leave to appeal against my order of 2 September. Leave was needed as the order was interlocutory rather than a final order: see s.420(2) of the Industrial Relations Act 1988.
The matter came before me at a directions hearing on 16 September. Reference was made to the application for leave to appeal. There was discussion about the procedure to be adopted. I said it might be better if the application was determined by someone other than myself; at the same time, it was desirable to avoid unnecessary expense. So I offered to refer the application for leave to a Full Court consisting of the three most senior Judges then available (Spender J was overseas at the time), the matter to be dealt with on the basis of written submissions. However, counsel for the applicants for leave said their clients did not wish me to take that course. They wanted me to deal with the application myself, on the basis that I had a greater knowledge of the nature of the case.
I acceded to this wish and gave directions for the filing of written submissions in relation to leave, the timetable to run from the date of delivery of my reasons. On 19 October 1994 I received written submissions from the applicants for leave. Despite leave having been given to the other respondents in the principal proceeding to lodge submissions if they wished, none of them did so.
Having read the submissions of the applicants for leave, I reached a firm conclusion that leave should be refused. Accordingly, I instructed my associate to inform counsel for the applicants in the principal proceeding that he need not trouble to respond to the applicants' submission.
I do not think it is useful for me to discuss all the matters put in the submissions of the applicants for leave. In particular, I do not wish to recanvass the matters argued by counsel on 2 September, and dealt with in my reasons of 12 October, that are repeated in the written submissions. It is, I think, sufficient to deal with two points. As counsel say in their submissions the key to jurisdiction in this case is s.258 of the Industrial Relations Act. They insist on a distinction between a question about "an invalidity in the management and administration of an organisation" and one concerning "the validity of a dealing or transaction between the organisation and a third party or third parties". But, as I attempted to demonstrate in my earlier reasons, there is no true dichotomy between the two. An invalidity in a third party transaction may lead to an invalidity in the management and administration of an organisation. If there is a serious suggestion that there is an invalidity in the management or administration of an organisation, the jurisdiction under s.258 is enlivened. If it is suggested that this invalidity flows from an invalidity in a third party dealing, that matter requires investigation. This is the situation alleged in this case; not so much by the applicants in the principal proceeding, who raise a doubt about invalidites, but say there were none, but by the other respondents in the proceeding. Of course, their allegations may be unfounded. When the facts are investigated, it may turn out that (whether or not there is an invalidity in a third party dealing) there is no internal invalidity; not even a serious question about invalidity. In that situation, I suppose, the Court would not make an order under s.258. But that is not a matter that goes to jurisdiction; merely to the appropriate ultimate order.
I do not think the submissions of counsel for the applicants for leave raise any point of general principle concerning s.258, upon which it might be useful to have the opinion of a Full Court before trial. Rather, I think the contest between the parties concerns the application of that section to an unusual set of facts. That is a matter better determined when the facts are found, rather than on the basis of allegations and speculation.
If the Court has jurisdiction to determine the s.258 claims, it does not matter whether or not there is jurisdiction in respect of the relief sought in paras. 5, 6 and 7 of the amended Application. Even if there was no such jurisdiction, it would be wrong to dismiss the case for want of jurisdiction. But I make the observation, in response to para.7 of the submission, that counsel have evidently misunderstood what I said at page 44 of my judgment. My point was that the effect of s.430 is to confer jurisdiction on the Court to determine any associated matter that might have been the subject of a specific conferral under s.77 of the Constitution; that is, any of the heads of jurisdiction listed in s.75 or s.76. One function of s.430 is to effect an umbrella conferral of all of the jurisdictions that could, individually, be conferred on the Court under s.77, provided only that the conferred matter is associated with another matter that falls within the Court's ordinary jurisdiction. One of the heads of jurisdiction that could have been specifically conferred on the Court is jurisdiction in a matter arising under the Constitution (s.76(i)). Far from this view conflicting with what Dawson J said in the passage in Fencott v Muller quoted by counsel, I think this is exactly what his Honour was saying; except that he was talking about s.76(ii) of the Constitution, not 76(i), and in the context of s.32 of the Federal Court of Australia Act, not s.430 of the Industrial Relations Act. But the principle is the same.
There are two reasons why the application for leave should be dismissed. First, an appeal would raise no general question of law or principle. Second, having regard, particularly, to the submissions made by the third, fourth and fifth respondents, I do not think that it can be said, at least at this stage, that there is no question as to the validity of aspects of the internal management or administration of the organisation. Consequently, I do not think an appeal against my refusal to dismiss the proceeding would enjoy any substantial prospect of success. It would simply cause unnecessary cost and delay.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgement herein of his Honour Chief Justice Wilcox.
Associate:
Date: 1 November 1994
APPEARANCES
Counsel for the Applicant: S Rothman
Solicitor for the Applicant: Geoffrey Edwards & Co
Counsel for the First and
Second Respondents: I G Sutherland QC and
Dr I J Hardingham
Solicitor for the First and
Second Respondents: Victorian Government Solicitor
Solicitor for the Third
Respondents: J Robinson of Best Hooper
Solicitor for the Fourth
Respondents: A Touriki
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