Kelly v Construction, Forestry, Mining and Energy Union - [1994] IRCA 42

C A T C H W O R D S

INDUSTRIAL LAW - proceedings for an offence - constitutional validity of provision deeming acts of officer to be acts of organisation - whether section creates one offence or a number - whether informations are duplicitous - double jeopardy

Industrial Relations Act 1988, s335
Crimes Act 1914, s4K

Actors and Announcers Equity Association of Australia and
others v Fontana Films Pty Ltd (1982) 150 CLR 169
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
R v Ludeke; Ex parte the Australian Building Construction
Employees and Builders Labourers' Federation (1985) 159 CLR 636
The Australian Building Construction Employees and Builders
Labourers' Federation v The Commonwealth (1986) 161 CLR 88
Tesco Supermarkets Ltd v Nattrass (1971) 2 WLR 116
Lin v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 176 CLR 1
GTS Freight Managers Pty Ltd v Transport Workers' Union of
Australia (1990) 25 FCR 296
Hedberg v Woodhall (1913) 15 CLR 531
Newbury v Smith (1991) 29 FCR 246
Trade Practices Commission v Farrow (1990) 95 ALR 53
Davern v Messel (1984) 155 CLR 21
Walton v Gardiner (1993) 177 CLR 378
Australian Oil Refining Pty Ltd v Cooper (1987) 11 NSWLR 277
R v Dodd & Dodd (1991) 56 A Crim R 451
De Jesus v The Queen (1986) 61 ALJR 1
Hock v The Queen (1988) 165 CLR 292
Wilde v The Queen (1988) 164 CLR 365
Castro v The Queen (1881) 6 AC 229
R v Ludlow (1971) AC 29
Gardam v Splendid Enterprises Pty Ltd 1987 ATPR 40-779

Nos. NI 112, 113 & 114 of 1994

WAYNE EDWARD KELLY v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

MOORE J

SYDNEY

30 SEPTEMBER 1994

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )         Nos. NI 112, 113
  )            & 114 of 1994
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN: WAYNE EDWARD KELLY

Prosecutor

AND: CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

Defendant

JUDGE: Moore J

PLACE: Sydney

DATE: 30 September 1994

REASONS FOR JUDGMENT

This judgment concerns legal issues that have arisen in proceedings brought by way of information and summons by Wayne Edward Kelly against the Construction, Forestry, Mining and Energy Union alleging breaches of s335 of the Industrial Relations Act 1988 ("the Act").

To understand the nature of the issues it is necessary to set out the terms of the information in each matter. In matter NI 112 of 1994 the prosecutor alleges that:

"...the Construction, Forestry, Mining and Energy Union, by its servant, officer or agent, Gary John McArthur, also known as John Gary McArthur, also known as John Gary Diahond, did

(i)Commit a breach of Section 335(1)(a) of the Industrial Relations Act, 1988 (C'th) in that it advised, encouraged or incited Fine Touch Painters & Decorators Pty Limited to take action in relation to Nick Spiroulias, an employee of Fine Touch Painters & Decorators Pty Limited, contrary to Section 334(1)(b) of the Industrial Relations…

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.

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Details

Case: [1994] IRCA 42
Decision Date: 30 Sep 1994

CaseChat Overview and Summary

This case, Kelly v Construction, Forestry, Mining and Energy Union, concerns legal issues arising from proceedings brought by Wayne Edward Kelly against the Construction, Forestry, Mining and Energy Union for alleged breaches of Section 335 of the Industrial Relations Act 1988. The proceedings are brought against the Union by reference to the conduct of Mr. Gary John McArthur, who is alleged to be an officer of the defendant. The Union contends that the Commonwealth has no power to enact a law that deems the behavior of an individual to be that of a registered organization as such a law is neither a law with respect to the prevention and settlement of industrial disputes by conciliation and arbitration nor does it concern a matter which is incidental to that subject matter.

Moore J first deals with the constitutional issue and examines the validity of deeming provisions in ss335(4)(b) and 335(5)(b) of the Act. The Court concludes that these provisions are valid laws of the Commonwealth, as they may either codify the common law principle that would impute to a registered organization the conduct of an officer, employee, or agent of a particular status or with delegated authority of a particular type for the purposes of establishing the criminal liability of that organization or require a prosecutor to establish that the conduct of the officer, employee, or agent was authorized by the organization and thus can be treated as the conduct of the organization.

The Court also addresses the defendant's contention that each charge alleges, in substance, a number of offences and thus is duplicitous. The Court decides not to express a view on this issue at this stage of the proceedings, as the determination of these allegations of duplicity will involve the construction of sections of the Act upon which the charges are founded and a consideration of the meaning of words or expressions in them in circumstances where the submissions as to their meaning have been, at best, limited. However, the Court notes that s335(1)(g) creates at least two separate offences, one involving a threat to do something and the other doing it, and the prosecutor should make clear whether it alleges one or the other or both before the hearing.

Lastly, the Court considers the issue of double jeopardy, which arises from the right of the prosecutor to allege a number of offences against the same provision in one information founded on the same facts. The Court finds no basis for requiring the prosecutor to prosecute the proceedings other than in the manner in which it is presently being done, as there is no substantial unfairness visited on the defendant by the joint prosecution of the various charges.

Orders