Kelly v Noonan

[2021] FCA 146

FEDERAL COURT OF AUSTRALIA

Kelly v Noonan [2021] FCA 146   

File number(s):

VID 84 of 2021

Judgment of:

SNADEN J

Date of judgment:

26 February 2021

Catchwords:

INDUSTRIAL LAW – application for interlocutory relief – appropriateness of directions for the observance of union rules – applicant seeks relief under s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth) and for urgent interlocutory relief against members of his organisation’s National Executive – dispute about allocation of members between divisions of an organisation – whether first respondent has falsely held himself out as the secretary of his organisation – whether a meeting of an organisation’s National Executive is poised to endorse a measure inconsistent with the organisation’s rules – consideration of the Court’s power to make an order giving directions for the performance or observance of union rules – application granted in part

Legislation:

Fair Work (Registered Organisations) Act 2009 (Cth) – div 2 – pt 3 – ss 95A, 145, 164, 319 and 329

Federal Court Rules 2011 (Cth) – rr 1.39 and 10.24

Cases cited:

Adlam v Noack (1998) 90 IR 31

Briant v Martin & Ors [2020] FCA 1009

Bullock v FFTSA (1985) 5 FCR 464

O’Connor v Setka [2020] FCAFC 195

Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238

Division:

Fair Work Division

Registry:

Victoria

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

70

Date of hearing:

25 February 2021

Counsel for the Applicant:

Mr H Borenstein QC with Mr Y Bakri

Solicitor for the Applicant:

Slater and Gordon Lawyers

Counsel for the First, Second, Third, Fourth, Seventh, Eighth, Tenth, Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty Third, Twenty Fourth, Twenty Fifth, Twenty Sixth, Twenty Seventh, Twenty Eighth, Thirty First, Thirty Third, Thirty Fourth, Thirty Seventh and Thirty Eighth Respondents:

Mr M Harding SC with Ms S Kelly

Solicitor for the First, Second, Third, Fourth, Seventh, Eighth, Tenth, Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty Third, Twenty Fourth, Twenty Fifth, Twenty Sixth, Twenty Seventh, Twenty Eighth, Thirty First, Thirty Third, Thirty Fourth, Thirty Seventh and Thirty Eighth Respondents:

Maurice Blackburn Lawyers

Counsel for the Fifth, Sixth, Ninth, Eleventh, Twelfth, Fourteenth, Fifteenth, Nineteenth, Twenty First, Twenty Second, Twenty Ninth, Thirtieth, Thirty Second, Thirty Fifth and Thirty Sixth Respondents:

Did not appear

ORDERS

VID 84 of 2021

BETWEEN:

GRAHAME KELLY

Applicant

AND:

DAVID NOONAN

First Respondent

ADRIAN EVANS

Second Respondent

ANDREW SUTHERLAND (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	SNADEN J
DATE OF ORDER:	26 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to rule 10.24 of the Federal Court Rules 2011 (hereafter, the “FCRs”), service of:

(a)the Originating Application; and

(b)the Pasfield Affidavit,

upon the fifth, sixth, ninth, eleventh, twelfth, fourteenth, fifteenth, nineteenth, twenty-first, twenty-second, twenty-ninth, thirtieth, thirty-second, thirty-fifth and thirty-sixth respondents be taken to have been effected by their being emailed a copy of those documents.

2.Pursuant to rule 1.39 of the FCRs, the time for service upon the respondents of the Originating Application and the Pasfield Affidavit…