John David Sutton, The Construction, Forestry Mining and Energy Union and Ian Gordon Sharp, The State of Victoria

[1994] IRCA 80

C A T C H W O R D S

INDUSTRIAL LAW - Registered organisations - Management and administration - Rules - "Amalgamation" of registered employee organisation with unregistered organisations - Claim of possible irregularities - Constitutional validity of State legislation affecting assets of unregistered organisation.

COURTS - Jurisdiction - Whether Court has jurisdiction to determine proceedings - Whether claim of possible invalidity is a colourable claim to attract jurisdiction - Whether issue relating to constitutional validity arises out of some substratum of facts - Availability of associated jurisdiction of Court - Discretion of Court in relation to determination of associated questions.

Industrial Relations Act 1988, ss.258, 412 and 430
Conciliation and Arbitration Act 1904, ss.143, 171c
DeConstitution, ss.76-77
Builders Labourers' Federation (Cancellation of Registration) Act 1986, s.3
Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986, ss.2 and 4.
BLF (De-recognition) Act 1985 (Vic), ss.2 and 7
Federal Court of Australia 1976, s.32

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: 12 OCTOBER 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 (MOTION HEARD IN MELBOURNE)
DATE:    

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The notice of motion filed by the first and second respondents on 25 August 1994 be dismissed.

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 (MOTION HEARD IN MELBOURNE)
DATE:     12 OCTOBER 1994

REASONS FOR JUDGMENT

WILCOX CJ:  The first and second respondents to this proceeding, Ian Gordon Sharp and the State of Victoria, applied by notice of motion dated 25 August 1994 for a declaration that the Court had no jurisdiction to hear and determine the proceeding and an order for its dismissal.  I heard the motion on 2 September.  It was supported by the other respondents to the principal proceeding, people who claim to be members or former members of The Australian Building Construction Employees' and Builders Labourers' Federation ("the BLF").  Sixty-two of these respondents ("the third respondents") were represented by Mr James Robinson, solicitor; another 12 ("the fourth respondents") by Ms Athena Touriki, solicitor, and a further five people ("the fifth respondents") represented themselves.  Judging by statements made by or on behalf of the third, fourth and fifth respondents, the events that give rise to the litigation are highly controversial.

At the end of the argument, I indicated my opinion that the Court had jurisdiction to entertain the claim, although not necessarily to make all the orders sought by the applicants.  I therefore dismissed the motion.  I promised to publish written reasons as soon as practicable.  These are my reasons.

The background to the litigation

For many years the BLF was an organisation of employees registered under the Conciliation and Arbitration Act 1904. Problems arose within, and in connection with, the organisation. After much litigation and public controversy, its registration was cancelled by an Act of the Australian Parliament, the Builders Labourers' Federation (Cancellation of Registration) Act 1986 ("the Cancellation Act"). That Act took effect on 14 April 1986. Section 3 provided that the BLF's registration under the Conciliation and Arbitration Act "is, by force of this section, cancelled".  On the same day an ancillary Act took effect, the Builders Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act 1986 ("the Consequential Provisions Act"). Section 2 of the Consequential Provisions Act provided that it shall come into operation immediately after the Cancellation Act comes into operation. Section 4(1) provided that s.143(5) of the Conciliation and Arbitration Act (which dealt with cessation of entitlements under awards) should not apply to the BLF or its members but subs.(4) and (6) of that Act should apply.  Subsection (4) (which dealt with an organisation's prior liabilities) is presently immaterial but subs.(6) played a part in subsequent events.  It read:

"143(6)Upon the cancellation of the registration of an organization, the organization shall cease to be an organization and a corporation under this Act, but shall not by reason of the cancellation cease to be an association.  The property of the organization shall, subject to any order which the Court, upon application by a person interested, may make with respect to the satisfaction of the debts and obligations of the organization out of that property, be the property of the association and shall be held and applied for the purposes of the association in accordance with the constitution and rules of the organization insofar as they can be carried out or observed notwithstanding the deregistration of the organization."

In anticipation of Commonwealth legislation, the Victorian Parliament had previously enacted a statute called the BLF (De-recognition) Act 1985. Section 2 of this Act provided that its provisions were to come into operation on a day, or on the respective days, to be fixed by proclamation or successive proclamations; but not before "the day on which the right of (the BLF) to represent employees in the State of Victoria is limited or restricted" under Commonwealth law or the day on which its registration under the Conciliation and Arbitration Act is cancelled. Section 7(1) of the Victorian Act empowered the Governor in Council, by Order published in the Government Gazette, to "provide for the restriction of the use of funds or property of BLF and for the control of those funds and that property". Subsection (2) provided that an Order made under subs.(1) should, unless sooner revoked, cease to be in force at the expiration of six months from the date on which it came into force but might be extended by a further Order.

Pursuant to the power conferred by s.7, and perhaps other powers, the Victorian Governor in Council made an Order that was published in the Victorian Government Gazette of 13 October 1987. This Order provided that "Possession, custody and control of the funds and property of BLF is hereby committed to" Dr Sharp, the first respondent herein. The Order referred to Dr Sharp as "the Custodian". Paragraph 7 of the Order provided that Dr Sharp "shall forthwith take possession custody and control of the funds and property of BLF". Other paragraphs conferred specific powers on Dr Sharp and restricted the ability of other people to deal with BLF funds and property.

On 10 November 1987 the Governor in Council made a Supplemental Order by which he empowered Dr Sharp to "vest in himself as Custodian any funds or property of BLF".  The Order went on to confer additional powers and appoint two investigators.

These Orders were further supplemented on 22 December 1987.  On 12 April 1988 all the Orders were extended, with a variation of the Supplemental Order of 22 December.  They were again extended, with another variation, on 17 May 1988.  On 11 October 1988 all the previous orders were extended, without further amendment, to 11 April 1989.  Since that time the Orders have been regularly extended, at intervals of about six months.  The most recent extension, as at the date of the hearing of the motion, was made on 17 March 1994 and operative until 16 September 1994.

A number of BLF members instituted proceedings challenging the constitutional validity of the Victorian legislation. They contended that it was inconsistent with s.143(6) of the Conciliation and Arbitration Act and therefore invalidated by s.109 of the Constitution. By the time the case reached the High Court of Australia, the Conciliation and Arbitration Act had been repealed, by s.3 of the Industrial Relations  (Consequential Provisions) Act 1988. However, Schedule 2 of that Act extended the application of s.143(6) to the Consequential Provisions Act by adding to s.4(1) of that Act the words "in spite of repeal of that Act". By majority (Dawson, Toohey and McHugh JJ, Brennan and Gaudron JJ dissenting) the High Court rejected the challenge: see Dobinson v Crabb (1990) 170 CLR 218. The decision seems to resolve any question about the validity of the various Orders in Council, including those made after the decision, at least until a new federal element intrudes into the relevant facts.

The CFMEU-BLF agreements

The first applicant in this proceeding is John David Sutton, National Assistant Secretary of the Construction, Forestry, Mining and Energy Union ("the CFMEU").  The CFMEU is an organisation of employees registered under the Industrial Relations Act 1988. It was formed out of the amalgamation of a number of registered organisations, including the Building Workers Industrial Union of Australia. Mr Sutton is the Divisional Secretary of the Building Unions Division of the CFMEU.

There is affidavit evidence before the Court that, on 30 March 1994, an agreement between the CFMEU and the BLF was executed, the signatories being the National Secretary of the CFMEU and the General Secretary of the BLF.  The recitals to this agreement include the statement that "BLF is a Trade Union of employees each of whose members are employed in the building and construction industry".  They go on:

"AND WHEREAS the CFMEU has reached agreement to the extent possible to effect an amalgamation and/or merger between it and various State registered Unions in the States of Tasmania, South Australia, Western Australia and Queensland ... which State registered unions have a continuing relationship with the BLF

AND WHEREAS the BLF has passed rules to enable it to amalgamate and/or merge with the CFMEU

AND WHEREAS the CFMEU and BLF have reached agreement to amalgamate and/or merge and in so doing rationalise Trade Unions in the building and construction industry"

The agreement contains 13 operative clauses.  I need set out only the first four:

"1.The BLF and CFMEU agree that on and from 31 March 1994 there shall be an amalgamation and/or merger of the BLF into the CFMEU.

2.On and from 31 March 1994 the BLF shall be and become an integral, inseparable and inseverable part of the CFMEU and shall amalgamate and/or merge with the CFMEU.

3.On and from 31 March 1994 all assets and liabilities of the BLF shall merge with the assets and liabilities of the CFMEU to be held and controlled in accordance with the rules of the CFMEU and this agreement and shall be treated as if such assets and liabilities were, at all times, the assets and liabilities of the CFMEU.  Such funds shall, to the extent that prior to 31 March 1994 they were funds under the control of a BLF Branch, other than the BLF, Victorian Branch, be and become funds under the control of the respective Construction Labourers' Divisional Branch established consequent upon this agreement and, otherwise, the funds of the BLF shall be held in accordance with paragraph 11 herein.  In the case of the funds of the BLF, Victorian Branch they shall be and become funds under the control of the Building Unions Division, Victorian Divisional Branch.

4.For all purposes and in all proceedings, an asset or liability of the BLF existing immediately before 31 March 1994 is taken to have become and to have been at all times an asset or liability of the CFMEU on and from 31 March 1994."

I gather that, on or about 30 March 1994, the CFMEU entered into separate agreements with each of the State registered unions referred to in the first quoted recital.  It will be noted that the recital makes no reference to a Victorian registered union.  There was no such entity.  There was, however, a Victorian branch of the BLF; that is, a branch of the national body, formerly registered under the Conciliation and Arbitration Act, which still existed as an unincorporated association.  Although the evidence on this point is unclear, it seems that, on or about 30 March 1994, the CFMEU entered into a written agreement with the BLF's Victorian branch and the BLF itself by which it was agreed, amongst other things, that "the Victorian Branch shall amalgamate with the CFMEU on and from 31 March 1994".  It is not necessary to consider the legal effect (if any) of this agreement; as to which see McJannet v White (1994) 122 ALR 82.

In anticipation of these agreements, the BLF had amended its rules.  A new rule 28 was adopted.  It was headed "Special Rule - Amalgamation" and read: 

"Notwithstanding any other rule, it is and shall be an object of the Federation, and the Federal Council shall have the power to take all or any steps to amalgamate, federate, affiliate and otherwise merge the Federation, and/or any Branch of the Federation and/or any State registered organisation to the extent that the State registered organisation is a Branch of the Federation with the Construction, Forestry, Mining and Energy Union by resolution of a simple majority of those in attendance at the Federal Council Meeting."

Another new rule, 29, dealt with the implementation of an
agreement for amalgamation with the CFMEU.  Sub-rules (ii) and (iii) referred to the union's property:

"(ii)On and from the day fixed for the amalgamation and/or merger to take effect, all assets and liabilities of the Federation shall merge with the assets and liabilities of the CFMEU and become assets and liabilities of the CFMEU to be held and controlled in accordance with the agreements for amalgamation and/or merger, and shall be treated as if they always were assets and liabilities of the CFMEU.

(iii)For all purposes and in all proceedings, an asset or liability of the Federation existing immediately before the day fixed for the amalgamation and/or merger is taken to have become and to have been at all times an asset or liability of the CFMEU on and from the day fixed for the amalgamation and/or merger."

Other new rules dealt with membership, the intent being that, upon amalgamation, all BLF members would become members of CFMEU.

So far as the evidence reveals, the CFMEU did not make any special rule amendment before 30 March.  But the head agreement signed that day required the CFMEU, not later than 31 March, to alter its rules in specified ways.  A new rule 42B was to be inserted in the organisation's National Rules.  Rule 42B is important to this case.  So I will set it out in full:

"42B - Merger with ABCE & BLF

(i)On and from 31 March 1994 the Australian Building Construction Employees and Builders Labourers Federation and, to the extent legally possible, the Australian Builders' Labourers' Federated Union of Workers - Western Australian Branch, the Australian Building and Construction Workers' Federation, the Australian Building, Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees shall merge with and/or amalgamate with and/or into the CFMEU and become an integral, inseparable and inseverable part of the CFMEU and the Building Unions Division thereof.

(ii)On and from the day fixed for the amalgamation and/or merger in paragraph (i) herein, all assets and liabilities of the Australian Building Construction Employees and Builders' Labourers' Federation (the BLF) shall merge with the assets and liabilities of the CFMEU to be held and controlled in accordance with the rules of the CFMEU, by the Building Unions Division and/or Divisional Branches created by the Rules of the Union and shall be treated as if such assets and liabilities were, at all times, the assets and liabilities of the CFMEU.  Such funds shall to the extent that prior to 31 March 1994 they were funds under the control of a BLF Branch, except in the case of the BLF Victorian Branch, be and become funds under the control of the respective Construction Labourers' Divisional Branch established consequent upon these Rules and, otherwise held by the Building Unions Division as Divisional Funds.

(iii)For all purposes and in all proceedings, an asset or liability of the BLF existing immediately before the day fixed for the amalgamation and/or merger is taken to have become and to have been at all times an asset or liability of the CFMEU on and from the day fixed for the amalgamation and/or merger.  Provided that any liability of BLF Federal Fund to any Branch Fund or vice versa shall continue to be a liability of the Division or Divisional Branch Funds respectively.

(iv)On and from the day fixed for the amalgamation and/or merger an instrument in which the BLF is mentioned (other than the Builders' Labourers' Federation Cancellation of Registration Act, 1986 and the Builders' Labourers' Federation (Cancellation of Registration - Consequential Provisions) Act, 1986) continues in full force and effect.  The instrument has effect, in relation to acts, omissions, transactions and matters done, entered into or occurring on or after the day fixed for the amalgamation and/or merger as if a reference in the instrument to the BLF were a reference to the amalgamated organisation.  Provided that any instrument which is inconsistent with the Rules of the CFMEU shall have no force and effect except in so far as it prejudices the rights of a bona fide purchaser for value without notice.

(v)All officers of the CFMEU and BLF shall take all such steps as are necessary and/or desirable to ensure that the amalgamation and/or merger is fully effective including the holding of all necessary meetings, the passage of all necessary resolutions, the making of all necessary applications and the execution of all necessary documents to give effect to this agreement.

(vi)On and from the day fixed for the amalgamation and/or merger any and all members of the remaining branches of the BLF, if not already members of the CFMEU, shall be and become members of the CFMEU and be treated in the CFMEU as if all of the period of their membership in the BLF was membership in the CFMEU (except as otherwise provided for in the specific rules dealing with the merger in the rules of the Building Unions Division).

(vii)On and from the day fixed for the amalgamation and/or merger the General Secretary of the BLF, Ronald George Owens, shall be and become a Senior National Vice President with the same status and standing as any other Senior National Vice President.  The aforesaid Ronald George Owens shall fill that position for one month by which time an election shall be held in accordance with those rules for the position of Divisional Senior Vice President (Builders Labourers) and whom so ever occupies the position of Divisional Senior Vice President (Builders' Labourers) shall be the National Senior Vice President (Builders Labourers)."

The CFMEU also agreed to amend its Building Unions Division rules so as to establish construction labourers' divisional branches of the Building Unions Division in all States for which there was a branch of the BLF, except Victoria.

The agreed rule changes were effected on 31 March.  Although the evidence on the matter is sparse, at this stage, I understand that the amalgamation agreements and rule changes have been put into effect.  BLF members have been treated as CFMEU members by that organisation.  On at least one occasion, they have been allowed to participate in a CFMEU ballot.  The CFMEU has assumed the BLF's liabilities.  The accessible assets of the BLF  have been taken over by the CFMEU.  In Victoria, however, Dr Sharp continues to hold former BLF funds and property pursuant to the Victorian legislation and the Orders in Council.

The principal proceeding

Thirty-first March 1994 was the Thursday before Easter. Immediately after Easter, on 6 April 1994, this proceeding was commenced. The Application filed that day showed Mr Sutton as sole applicant. The CFMEU was named as a respondent. Subsequently, by amendment, it became the second applicant. The relief sought in the original Application is substantially similar to that sought in an amended Application, filed on 5 May 1994, on which the argument focussed. The only differences are the references to the parties and that the amended Application inserted a proposed order referring to s.92 of the Constitution.

The orders sought in the amended Application are as follows:

"1.A determination under section 258 of the Industrial Relations Act, 1988, as amended, of the question whether an invalidity has occurred in the management or administration of the Second Applicant or the making or alteration of the Rules of the Second Applicant in relation to the merger of the Australian Building Construction Employees' and Builders' Labourers' Federation, a trade union of employees and an unincorporated association with the Second Applicant.

2.A declaration under section 258 of the Industrial Relations Act, 1988, as amended, that no invalidity has occurred in the management or administration of the organisation or a Branch of the organisation or the making or alteration of the rules of the organisation or a Branch of the organisation in relation to the merger of the Second Applicant with the Australian Building Construction Employees and Builders Labourers' Federation.

3.In the alternative to paragraph 2 above and/or to the extent that there is found to be an invalidity of the kind referred to in paragraph 1 hereof an order that:

(a)the invalidity be negatived and/or modified and that the consequences in law of any such invalidity be negatived or modified so that the aforementioned merger is effective;

(b)any act, matter or thing rendered invalid by or because of the invalidity be validated.

4.An order that Rule 42B of the National Rules of the Second Applicant is valid and effective and the rule changes made pursuant to the arrangement between the Second Applicant and the Australian Building Construction Employees' and Builders' Labourers' Federation are valid and effective and operate in full and, in particular, that all property, assets and liabilities held, prior to 31 March 1994 by the Australian Building Construction Employees and Builders' Labourers' Federation or held on their behalf are now property, assets and liabilities of the Second Applicant.

5.An order that the BLF (Derecognition) Act, 1985 (Vic) in so far as it affected the Australian Building Construction Employees' and Builders Labourers' Federation and in so far as it affects the Construction, Forestry, Mining and Energy Union is in contravention of section 92 of the Constitution and is invalid.

6.An order that all funds held by the First Respondent in his capacity as Custodian appointed under the BLF (Derecognition) Act, 1985 (Vic), which are all funds now of the Second Applicant, be transferred to accounts designated by the Second Applicant being accounts in the name of the Building Unions Division of the Second Applicant and the Victorian Building Unions Divisional Branch of the Second Applicant.

7.A declaration that the BLF (Derecognition) Act, 1985 (Vic), and the Orders in Council made pursuant thereto, to the extent that they now purport to deal with the funds of the Second Applicant, being an organisation registered pursuant to the Industrial Relations Act, 1988 as amended, are inconsistent with the Industrial Relations Act, 1988 as amended and are inoperative.

8.Such other orders as to the honourable Court seem appropriate."

Section 258 of the Industrial Relations Act, referred to in orders 1 and 2, is as follows:

"(1)An organisation, a member of an organisation or any other person having a sufficient interest in relation to an organisation may apply to the Court for a determination of the question whether an invalidity has occurred in:

(a)the management or administration of the organisation or a branch of the organisation;

(b)an election or appointment in the organisation or a branch of the organisation; or

(c)the making or alteration of the rules of the organisation or a branch of the organisation.

(2)On an application under subsection (1), the Court may make such declaration as it considers proper.

(3)Where, in a proceeding under subsection (1), the Court finds that an invalidity of the kind referred to in that subsection has occurred, the Court may make such order as it considers appropriate:

(a)to rectify the invalidity or cause it to be rectified;

(b)to negative, modify or cause to be modified the consequences in law of the invalidity; or

(c)to validate any act, matter or thing rendered invalid by or because of the invalidity.

(4)Where an order is made under subsection (3), the Court may give such ancillary or consequential directions as it considers appropriate.

(5)The Court shall not make an order under subsection (3) without satisfying itself that such an order would not do substantial injustice to:

(a)the organisation;

(b)any member or creditor of the organisation; or

(c)any person having dealings with the organisation.

(6)The Court may determine:

(a)what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and

(b)whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper.

(7)This section applies:

(a)to an invalidity whenever occurring (including an invalidity occurring before the commencement of this section); and

(b)to an invalidity occurring in relation to an association before it became an organisation."

On 5 May 1994 the applicants filed a Statement of Claim.  The document is lengthy.  I need not set it out in full.  But it may assist to understand the case asserted by the applicants if I quote paras.44 to 48 inclusive:

"44.The agreement of 30 March 1994 referred to herein was effective to merge and/or amalgamate the BLF and the Second Applicant and the Rules of the Second Applicant and in particular 42B of the National Rules of the Second Applicant is effective to make all of the property of the BLF the property of the Second Applicant under the control of the Building Unions Division thereof through either the Divisional Office thereof or the Building Unions Victorian Divisional Branch thereof.

45.The BLF (Derecognition) Act, 1985 and the Orders in Council pursuant thereto are inconsistent with the operation of the Rules of the Second Applicant and, in particular, with the operation of Rules 23 and 42B of the National Rules of the Second Applicant and Divisional Rules 4(vi), 14, 18, 35, 37 and 45 of the Building Unions Division thereof.

46.The Rules of the Second Applicant and, in particular, Rule 42B of the Second Applicant took effect on 31 March 1994 and were given effect by the Industrial Relations Act, 1988 and without limiting the generality of thereof in particular by section 205, sub-section (3) thereof.

47.The BLF (Derecognition) Act, 1985 (Victoria) and the Orders in Council made pursuant thereto are inconsistent with the operation of the Industrial Relations Act, 1988 in so far as it gives effect to the Rules of the Second Applicant herein and is thereby inconsistent with a law of the Commonwealth and the law of the State, being the BLF (Derecognition) Act 1985 (Vic) and the Orders in Council pursuant thereto, referred to herein is, to the extent of such inconsistency, invalid.

48.The Rules of the Second Applicant provide that all property and funds shall be invested in the name of the Union and provides for signatories to accounts, which signatories do not include the First Respondent herein, and the holding of property by the First Respondent herein and/or the restrictions on the transfer of property by the First and Second Respondents herein is, by operation of section 109 of the Constitution, invalid and inoperative."

The invocation of s.258

Counsel for the first and second respondents point out that this Court is established under Chapter III of the Constitution; as such it may exercise only such jurisdiction, referred to in ss.75-77 of the Constitution, as Parliament confers upon it. Counsel say the only relevant head of jurisdiction is s.76(ii), which refers to "any matters arising under any laws made by the Parliament". They cite ss.412 and 430 of the Industrial Relations Act. These two sections deal with the Court's jurisdiction. Section 412(1) mentions particular types of proceedings, by reference to their statutory origins. They include matters arising under the Act "in relation to which ... applications may be made to it [the Court] under this Act". It will be recalled that s.258 provides for applications to the Court. Subsections (2) and (3) of s.412 relate to cases remitted to the Court by the High Court of Australia. Subsection (4) provides that the Court "has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament".

Section 430 gives the Court jurisdiction in associated matters. Subsection (1) reads:

"(1)So far as the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked."

This subsection exactly repeats s.32 of the Federal Court of Australia Act 1976, except for the substitution of the opening words "So far as" for the Federal Court statute's "To the extent that".

As I understand their argument, counsel for the first and second respondents do not dispute the proposition that a genuine s.258 application is within the jurisdiction of the Court. But they say this is not a genuine s.258 application; the section has been colourably invoked so that the applicants may seek from the Court orders in its associated jurisdiction that the Court would not otherwise have power to make. In support of this claim, counsel point out that, although the amended Application refers to the possibility of an invalidity in the management or administration of the CFMEU or the making or alteration of its rules, neither this document nor the Statement of Claim identifies an invalidity. Indeed, the applicants' case is that no invalidity has occurred. Counsel say that s.258 should be given a confined operation; jurisdiction under the section is premised on a relevant invalidity existing and being identified by an applicant in the Application or Statement of Claim. They say this approach is justified by the history of the section. It reproduces, in substance, s.171c of the Conciliation and Arbitration Act.  That section originated from the Report of the Committee of Inquiry on Co-ordinated Industrial Organisations delivered in 1974.  The Committee consisted of one person only, Justice J B Sweeney of the Australian Industrial Court.  His Honour dealt with many topics, one of them being the curing of invalidities.  He pointed out that time does not always remove the effect of an invalidity; an earlier invalidity may taint a later action.  He proposed legislation giving effect to three principles:

"(a)Any act except those referred to in (b) validated must have been done in good faith.

(b)After a period of four years all acts are validated unless this would cause substantial injustice.

(c)There must be power in a tribunal to except an act from the validating provision if validating it would work some substantial injustice."

Counsel's argument is that the burden of this part of the Sweeney report was that invalidities commonly occurred within industrial organisations, that they sometimes caused serious problems which time did not resolve, and it was desirable to enable the Australian Industrial Court to cure them; provided that the relevant act was done in good faith and validation would not work a substantial injustice.  The report, they say, was concerned with actual invalidities, not with mere possibilities.

If Parliament had enacted legislation in the form proposed by Justice Sweeney, there would be much force in this submission. But it did not. The Committee's report included a draft of the legislation thought necessary to give effect to its recommendations, including a new s.171c. The draft s.171c merely conferred remedial powers on the Court "(w)here any invalidity has occurred in the management" etc. But the form of s.171c enacted later that year, like s.258 of the Industrial Relations Act, authorised applications to the Court for a determination of the question "whether an invalidity has occurred".  It is apparent that Parliament decided to go further than the Committee and to grant jurisdiction to the Court in cases not only of proved invalidity but in cases where there was a question whether an invalidity had occurred.  Having regard to this decision, I do not think counsel's argument is assisted by their reference to the origin of the section.

A second argument put by counsel relates to the width of para.(a) of s.258(1). They say this paragraph is "intended to be confined to remedying internal invalidities in the organisation e.g. whether an administrative act is authorised by the rules". The efficacy of the agreements between the CFMEU and the BLF are a separate matter having nothing to do with the question whether there have been internal invalidities within the CFMEU. Alternatively, they say the claims made under s.258 "constitute a trivial and insubstantial part of the controversy, the main thrust of which concerns the efficacy of (the) alleged amalgamation".

So far as I am aware, the width of s.171c, or s.258, has been discussed in only two cases. I made a passing reference to the topic in Jess v Scott (1986) 14 IR 341, a case where the applicant sought orders compelling the respondents to repay to an organisation funds expended by it in connection with an election. The applicant argued that s.171c(2)(a) authorised such an order. I commented at 347:

"The words of s.171c(2)(a) are sufficiently wide to encompass any order designed to rectify an invalidity, of whatever nature and however caused. But, having regard to the history of the section, there is force in the submission of the respondents that Parliament did not envisage that the section would be used as a mechanism, additional to s.141, for enforcing rules and that s.171c(2)(a) was intended merely to allow latitude in designing the orders necessary to cure any invalidity or to negative its consequences.

However, it is not necessary to decide in this case whether s.171c is capable of sustaining the orders sought by the present applicant. As I have pointed out, the evidence in the two applications is now identical. If that evidence demonstrates a breach of the rules of the union, occasioned by identifiable individuals and causing loss to the union, s.141(1G) confers upon the court ample discretionary power to make an appropriate rectification order. If that case is not made out, no order could be made under s.171c. If the facts are proved but it is held undesirable, upon discretionary grounds, to make an order under s.141(1G), the same result would apply under s.171c(2). That also is a discretionary power."

The second case is Re Food Preservers' Union of Australia (1988) 79 ALR 138. Rule invalidities had occurred. The Court resolved the problem by applying s.171c. Northrop and Ryan JJ said at 144:

"Section 171c of the Act is remedial in nature. The court should form a broad view of the power conferred by that section. It should not take a narrow or technical approach to the exercise of the power. An important factor is whether the organisation and its officers have acted honestly. In the present case, there is no suggestion that the union and its officers have not acted honestly. Before making orders under s.171c(2), the court must be satisfied that any order made would not do substantial injustice to the union, to any member or creditor, or to any person having dealings with the union. In the present case, adequate notice has been given of the application, but no person has sought to oppose the orders sought. The only issue is whether invalidities have occurred."

It would be premature, on this application, to determine whether or not any invalidity has occurred in connection with the management or administration of the CFMEU or in the rule alterations effected in March 1994. It would be even less appropriate to determine whether or not orders should be made under s.258. Contrary to the submission of counsel, it seems to me plain, from the form of the section itself, that jurisdiction does not depend upon an invalidity having occurred, or orders being likely to be made. It is enough that the possibility of an invalidity is genuinely raised.

The first and second respondents bear a heavy burden in asserting that the invocation of s.258 in this case is colourable. There is nothing in the surrounding circumstances suggesting colourability. Reference was made to the speed with which the principal proceeding was commenced, after the agreements were signed on 30 March. But it seems to me that, if that fact demonstrates anything, it is that Mr Sutton was aware of the controversy surrounding the BLF-CFMEU "amalgamation" and the possibility that its legality would be called into question and wished to settle that question as soon as possible. I accept that he may also have wished CFMEU to obtain early possession of the BLF assets held by Dr Sharp but this does not mean that he had no genuine concern about the controversy over validity.

The fact that no invalidity has been identified does not mean that the invocation of s.258 is colourable, that the application is an abuse of process. I accept, of course, that if, in a particular case, there was no possibility of invalidity, the invocation of s.258 might be regarded as colourable. However, it cannot be said in the present case that there is no possibility of an invalidity. The 79 people who constitute the third, fourth and fifth respondents all applied to be joined in the proceeding in order to put a case that the agreements between the CFMEU and the BLF are invalid. They wish to put a variety of arguments. The details have not yet emerged. But it is already apparent that, between them, these respondents allege at least four major irregularities: that procedures required to be followed within the BLF by its rules were not followed; that the people who purported to enter into the agreements had no power to do so; that, if they had power, its exercise was vitiated by fraud or bad faith; and that the agreements are inconsistent with the provisions of the Victorian statute and the Orders in Council made thereunder, and therefore illegal.

During the course of their submissions, both Mr Robinson and Ms Touriki stated that their clients claimed the agreements were invalid.  But they said that this had nothing to do with the question whether an invalidity had occurred in the management or administration of the CFMEU or the alteration of its rules.  I do not agree.  The agreements provided for all current BLF members to be automatically admitted to CFMEU membership, without them having to follow the admission procedure required by the rules or pay the usual membership fees.  Those radical departures from normal practice flowed from the purported amalgamation of the two organisations.  They were intended to be sanctioned by special CFMEU rules, notably rule 42B.  If there was no valid amalgamation, because the agreements were invalid, there must be a question, at least, concerning the status of the BLF members admitted to the CFMEU in this way.  Since 31 March they have been treated as CFMEU members including for election purposes.  If there is a question about the validity of their membership, there must be a question about the regularity of that election.  That, in itself, is a question that goes to the management or administration of the organisation.  Similar questions arise in relation to any benefits provided to the ex-BLF members in their capacity as CFMEU members.  Property issues also arise.  Pursuant to the agreements, the CFMEU  took over the assets of the BLF, other than those controlled by Dr Sharp.  It has since dealt with those assets as its own.  If the agreements are invalid, these dealings constitute invalidities in the management or administration of the organisation.  The CFMEU has assumed the BLF's liabilities.  Presumably, it has expended monies in discharge of some or all of them.  If the agreements are invalid, these payments constitute invalidities in respect of the management or administration of the organisation; funds have been improperly expended.  Contrary to the submissions of Mr Robinson and Ms Touriki, it is impossible to separate the validity of the actions taken by CFMEU pursuant to the agreements from the validity of the agreements themselves.

There may be a question about the application of s.258(1)(c) to this case. Having regard to my view about para.(a), I need not express a concluded opinion upon the point; but it seems arguable that para.(c) is concerned only with the question whether appropriate procedures were followed in respect of the making or alteration of rules, not with the question whether they were misconceived or ineffective because of the failure of an underlying assumption.

I should add, that, although the third and fourth respondents place most emphasis upon alleged irregularities within the BLF, they do not restrict themselves to that.  Mr Robinson included the following in his written submission:

"... what is being sought in this proceeding is in fact the validation of an amalgamation between the CFMEU and the BLF.  None of the procedures provided for in Division 7 of Part IX IR Act have been observed by the CFMEU, or anything like them.  No scheme for amalgamation of the type provided for in s.238 was prepared.  The amalgamation has never been properly put to a ballot of members of both unions of the type provided for in s.242.  There appears to have been little attempt to inform members of the amalgamation, let alone an opportunity to put 'Yes' and 'No' cases."

As will be apparent, this is a submission that CFMEU failed to perform statutorily-required procedures before entering into the amalgamation agreement with BLF.  The allegation is that there was an invalidity in CFMEU's management or administration.  It is not appropriate at this stage to determine whether Division 7 of Part IX of the Industrial Relations Act 1988 applied to the arrangement between CFMEU and BLF. It is enough to note that the solicitor acting on behalf of the third respondents makes the considered submission that CFMEU, itself, has breached the statute. I note, also, that Ms Touriki supported the substance of this submission. She said during the course of her argument that her clients do not concede that there has been a valid merger between the CFMEU and the BLF. She said the "main issue" in the proceeding is the validity of the agreements made between the two organisations.

Against the background of the issues raised by the third, fourth and fifth respondents, the situation is not so obviously free from invalidity that the invocation of s.258 should be regarded as a colourable act. Once that is decided, it is plain that the orders sought by paras. 1, 2 and 3 of the amended Application, which are all based directly on s.258, lie within the jurisdiction of the Court. It does not matter that, to some extent, the suggested invalidities arise out of events within the BLF. As suggested by Northrop and Ryan JJ in the Food Preservers' case, the Court must take a "broad view" of its power. If a possible invalidity in the management or administration of a registered organisation is arguably occasioned by the invalidity of actions taken within another organisation, registered or unregistered, s.258 empowers the Court to investigate those actions.

The position in relation to para.4 of the amended Application is unclear. Elements of the proposed order fall within s.258 but it may go further than s.258 permits, or than is necessary in any event. But nothing turns on this. If the subject matter is within jurisdiction, it is immaterial that a particular form of order would be beyond power.

The associated jurisdiction

The applicants concede that proposed orders 5, 6 and 7 are not within the power conferred by s.258. But they say that, by reason of s.430 of the Act, the Court has power to make those orders, if this should prove an appropriate course when the merits are investigated.

Counsel for the first and second respondents contend that s.430 has no relevance. They say that, assuming s.258 has truly been invoked, the questions raised by paras. 5, 6 and 7 of the amended Application do not arise out of the same substratum of facts as those arising under it; those questions cannot be resolved by reference only to the evidence that is material to the s.258 questions. Some additional evidence would be required, even if only the tender of the Orders in Council.

As I have mentioned, s.430 is indistinguishable in substance from s.32 of the Federal Court of Australia Act.  Consequently, the authorities concerning the application of that section are relevant to the present problem.  The High Court has discussed s.32 on several occasions, perhaps most fully in Fencott v Muller (1983) 152 CLR 570. The joint judgment of the majority in that case (Mason, Murphy, Brennan and Deane JJ) deals with the topic at 602 - 611. It is important to note that the Court was not there concerned with ancillary claims that arose under federal law, but with common law claims governed by State law. Nonetheless, the majority held that the Federal Court had jurisdiction to determine those claims, the reason being that they were part of the "matter" committed to the Federal Court by the Trade Practices Act.  At 603 their Honours referred to a passage in In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 in which the Court had observed that the word "matter" (in s.76 of the Constitution) does not mean a legal proceeding "but rather the subject matter for determination in a legal proceeding". They commented that "particular legal proceedings may relate to part only of what should properly be seen as the one larger 'matter'". They pointed out, still at 603, that "(t)he concept of 'matter' as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457". After analysing the judgments in that case, they said at 606:

"There was a clear difference of opinion in Philip Morris as to the meaning of 'matter' in the context of s.76(ii). The majority view was that a 'matter' is a justiciable controversy which must either be constituted by or must include a claim arising under a federal law but which may also include another cause of action arising under another law, provided it is attached to and is not severable from the former claim. The proposition that a matter may include a cause of action arising under a non-federal law, though denied in the dissenting judgments, is the ratio decidendi of Philip Morris.  It follows that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone."

At 607 their Honours said:

"It follows also that, though the facts upon which a non-federal claim arises do not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under a federal law."

The majority Justices then considered the appropriate test for determining whether disparate claims nonetheless arise out of the same "matter".  They applied that suggested by Mason J in Philip Morris at 512:

"Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts.  In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction."

I do not think it is necessary to refer to the remainder of their Honours' judgment, in which they argued the importance of taking a liberal view of what constituted the relevant "matter".  Nor is it necessary to do more than mention the Court's subsequent decision in Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261 applying Fencott v Muller.  Counsel referred in argument to Smith v Smith (1986) 161 CLR 217, a case involving the jurisdiction of the Family Court. In that case, the Court held, two separate "matters" fell for determination; first, whether a particular maintenance agreement should be approved (a subject within the statutory jurisdiction of the Family Court) and, second, the possible approval of a release of the wife's rights under the Family Provision Act 1982 (NSW) (a subject normally the province of the State courts). At 237 Gibbs CJ, Wilson and Dawson JJ accepted the test adopted in Fencott v Muller but described the two questions in the case before them as "clearly severable".  Mason, Brennan and Deane JJ took a somewhat similar course at 250-251.  There is nothing in either judgment undermining the continuing authority of Fencott v Muller.

I think it is questionable whether all the issues raised by proposed orders 5, 6 and 7 arise out of the same substratum of facts as those relevant to the questions raised by s.258. But it is not desirable to determine that question at this stage. So much depends upon the evidence and the way the case is argued. I have difficulty, in the light of Cole v Whitfield (1988) 165 CLR 360, in seeing that s.92 of the Constitution has any relevance to the matters in dispute: see para.5 of the amended Application. If the section is relevant, this may be because of facts extending beyond those relevant to the s.258 issues. But that is a judgment best made when the evidence is tendered and the argument developed.

The order suggested by para.6 of the amended Application could only be made if the Court accepted two propositions:  first, that the amalgamation was valid, so that the CFMEU stands in the shoes of the BLF, in relation to the assets held by Dr Sharp; and, second, that an organisation in that position is now entitled to possession of the assets.  The first proposition would clearly depend upon the same facts as those raised by proposed orders 1 to 3.  Given the decision in Dobinson v Crabb, it seems to me that the second proposition can only be made good (assuming renewals of the Orders in Council) if it is held that an Order in Council made after the CFMEU became entitled to the BLF assets is constitutionally invalid because it derogates from the rights of a federally-registered organisation. It is not clear to me that this issue arises out of the same substratum of facts as the first. It may not be necessary for the Court to have much additional factual material, in addition to that relevant to the s.258 issues. But the Orders in Council, at least, would be needed. Perhaps that fact makes the constitutional issue a separate "matter".

Paragraph 7 of the amended Application seeks a declaration that the BLF (De-recognition) Act and the Orders in Council, "to the extent that they now purport to deal with the funds of" the CFMEU, are inconsistent with the Industrial Relations Act and inoperative. The claim that the funds belong to the CFMEU plainly overlaps the issues arising under s.258. The claim of inconsistency raises the constitutional point already mentioned.

I have, so far, discussed s.430 only in relation to the question whether the issues posed by paras. 5, 6 and 7 of the amended Application arise out of the same substratum of facts as those under paras. 1, 2 and 3. I have concentrated on this aspect of s.430 because this is the way the argument was presented. But I should say, without expressing any concluded view, that it seems to me that there is another, and stronger, argument in favour of the proposition that s.430 applies to this case. Philip Morris is most often cited for its discussion of the word "matter", and the implications of that word for cases involving both federal and non-federal elements.  No doubt this is because that discussion was the contentious aspect of the case, the Justices expressing somewhat divergent views.  What was not contentious was the significance of s.32 where there was a separate, but associated, "matter" governed by federal law.  All seven members of the Court accepted that s.32 conferred jurisdiction on the Federal Court in respect of associated federal claims, whether or not those claims were part of the "matter" that originally attracted the Court's jurisdiction.  Barwick CJ commented at 476 that "the word 'associated' embraces matters which may be disparate from each other".  He thought it so axiomatic that the Court had jurisdiction to entertain an associated federal claim that it was not necessary for this to be stated.  But that was an extreme view.  Gibbs J, at 494-495, discussed at some length the role of s.32 in relation to associated federal claims.  It is worth quoting the gist of his view:

"It follows from what has already been said that this sub-section cannot validly confer on the Federal Court jurisdiction in respect of matters other than those enumerated in ss.75 and 76. However, the sub-section is capable of some valid operation. It is expressed to operate to the extent that the Constitution permits, and the Constitution does permit a valid law to be made investing the Federal Court with jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked, provided that the former matters are matters of a kind mentioned in s.75 or s.76. As has been seen, the jurisdiction of the Federal Court may be invoked in a matter arising under the Trade Practices Act.  Once the jurisdiction of the Court is so invoked, its jurisdiction is extended by s.32(1) to associated matters which arise under other laws made by the Parliament even though the Parliament has not (except by s.32(1)) conferred jurisdiction on the Court in respect of those matters.  For example, an action for infringement of copyright is a matter arising under a law of the Commonwealth, namely the Copyright Act 1968 (Cth), as amended, but no original jurisdiction has been conferred upon the Federal Court in respect of such an action except by s.32(1). The effect of that sub-section is that jurisdiction is conferred on the Federal Court in respect of an action for infringement of copyright that is associated with matters otherwise within the jurisdiction of the Court."

Mason J, with whom Stephen J agreed, said at 516:

"There is of course no reason why s.32 cannot effectively confer jurisdiction on the Federal Court in a federal matter which is associated with another federal matter in which the Federal Court has not otherwise been given jurisdiction."

At 520 Murphy J said:

"Because of its opening words, s.32 cannot be unconstitutional; at the worst it would be inoperative. Section 32 enables the Court to hear and determine associated matters arising under federal laws as well as those arising under non-federal laws, but the qualification, 'to the extent that the Constitution permits, keeps the conferment of jurisdiction in respect of otherwise non-federal laws within constitutional bounds."

See also Aickin J at 535 and Wilson J at 547.

This aspect of s.32 may be relevant to this case . The points that the applicants wish to raise under paras. 5, 6 and 7 of the amended Application, additional to points already covered by earlier paragraphs, are constitutional points. Section 76 of the Constitution permits Parliament to make laws conferring original jurisdiction on the High Court "in any matter - (i) Arising under this Constitution, or involving its interpretation". Section 77 enables Parliament to confer on any federal court jurisdiction in respect of any matter referred to in s.76; including, of course, s.76(i). This Court is a "federal court" within the meaning of s.77. Just as it was accepted in Philip Morris that s.32 of the Federal Court of Australia Act conferred on the Federal Court jurisdiction to determine an associated copyright infringement claim, though it was a separate "matter", because it was a matter in respect of which jurisdiction could have been directly conferred under a combination of s.76(ii) and s.77 of the Constitution, it seems to me that s.430 of the Industrial Relations Act 1988 confers jurisdiction on this Court to determine an associated constitutional issue, even if a separate "matter", because jurisdiction could have been directly conferred under s.76(i) and s.77. I do not wish to state a concluded view at this stage; but it may be that the Court has jurisdiction to deal with all aspects of the applicants' claim, even if the constitutional issues constitute separate "matters".

Discretion
          Mr Robinson submitted that, if the Court had jurisdiction to deal with the non-s.258 aspects of the case, it should elect not to do so.  He submitted evidence that his clients had recently commenced a proceeding in the Supreme Court of Victoria seeking a winding up order against the BLF and consequential orders.  He says that the winding up of an unincorporated association, even one that was previously registered under the Conciliation and Arbitration Act, is "outside the legislative or jurisdiction competence of the Commonwealth Parliament, or of any court created by it".  The submission proceeds:

"If the present proceeding is not to be dismissed, the appropriate course is to permit the Supreme Court proceeding to be determined.  If there is then left anything of the BLF with which the CFMEU can be said to have merged or amalgamated, this court could then consider whether the steps taken by the CFMEU to effect that amalgamation have been appropriate.  The question of whether the steps taken by the BLF have been appropriate will doubtless form part of the determination by the Supreme Court."

I agree that the winding up of the BLF is not a matter of federal law.  It is also true, as Mr Robinson says, that the Jurisdiction of Courts (Cross-vesting Act) 1987 does not apply to this Court.  Accordingly, it seems to me that any question of winding up must be dealt with by some other court. Presumably, the Supreme Court of Victoria would be the appropriate court.  But it seems to me that, before any court can decide whether or not to wind up the BLF, it must first determine whether it retains a separate existence.  As Mr Robinson accepts, that will require the court to examine the steps taken by the BLF in connection with amalgamation with the CFMEU.  The court would be examining the same evidence as is relevant to paras. 1, 2 and 3 of the amended Application in this case.  It is obviously undesirable for two courts to traverse the same ground.

If the only questions in this case concerned the BLF, it might be appropriate for this Court to await the outcome of the Supreme Court proceedings.  But that is not the position.  Not only do the applicants have a considerable stake in questions concerning actions within the BLF, because they impinge on actions within the CFMEU, there are issues (raised by Mr Robinson himself) involving the validity of the CFMEU's own actions.  The Supreme Court has no jurisdiction to determine those issues.

As is usually the case where two courts have jurisdiction over different aspects of a complex of issues, no course of action is free from inconvenience.  However, it seems to me that the least inconvenient course is for this Court to determine as quickly as possible all the issues raised by the amended Application.  It seems that all necessary parties are already before the Court.  If it is determined that there has been a valid amalgamation between the BLF and the CFMEU, so that the BLF no longer exists as a separate entity, the winding up proceedings will, presumably, be abandoned.  If the contrary is determined, they may become a formality.

Orders

It was for these reasons that, on 2 September I refused the relief sought by the first and second respondents in their notice of motion and dismissed the motion.  In doing so, I left open the question whether the applicants are entitled to have the Court determine all the issues they seek to raise under paras. 5 to 7 inclusive of the amended Application.  That question can be decided later.

I certify that this and the preceding forty-six (46) pages are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Wilcox.

Associate:

Date: 12 OCTOBER 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

Date of hearing:                 2 September 1994