Kelly v Noonan

The case of Kelly v Noonan involved an application by the applicant, Kelly, for interlocutory relief under the Fair Work (Registered Organisations) Act 2009 (Cth) against the respondents, including Noonan, who held himself out as the Acting Secretary of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). The dispute centred around the allocation of members between divisions of the CFMMEU, a proposed resolution by the Construction and General Division (C&G Division), and allegations of improper conduct by Noonan. The Federal Court was tasked with determining the appropriateness of directions for the observance of union rules, particularly in light of a scheduled meeting of the CFMMEU’s National Executive.

The primary legal issues revolved around whether the court had the authority to issue directions for the observance of union rules under section 164 of the Act, the validity of the scheduled National Executive meeting, and whether Noonan had falsely represented himself as the Acting Secretary. The court also needed to assess the balance of convenience in granting interim relief and whether there was a prima facie case for the alleged breaches of union rules.

The court found that while there was a prima facie case that the National Executive meeting had been improperly called due to inadequate notice, the case was weak and the balance of convenience did not favour granting interim relief to stop the meeting. Regarding the C&G Resolution, the court found a strong prima facie case that if the National Executive voted in favour of the resolution, it would establish a practice inconsistent with the union rules. Given the strength of this case and the potential for harm, the balance of convenience favoured granting interim relief to restrain the resolution. However, concerning Noonan's conduct, although there was a prima facie case that he had wrongly held himself out as the Acting Secretary, the court concluded that there was no urgent conduct warranting interim relief at that time.

The court granted the relief sought in relation to the C&G Resolution, directing the respondents to refrain from resolving the dispute at the scheduled meeting. The application for interlocutory relief was otherwise dismissed, and the matter was adjourned for a case management hearing. No order as to costs was made in light of section 329(1) of the Fair Work (Registered Organisations) Act 2009 (Cth).