Kingham v Sutton - [2001] FCA 328

FEDERAL COURT OF AUSTRALIA
Kingham v Sutton [2001] FCA 328
INDUSTRIAL LAW – application for rule to show cause – whether serious question to be tried – application for interlocutory relief restraining respondents from taking steps to have rule amendments certified by Industrial Registrar and restraining Industrial Registrar from taking steps to certify rule amendments – whether interlocutory relief should be granted – whether Court has jurisdiction to grant injunctive relief against Industrial Registrar
Workplace Relations Act 1996 (Cth): s 205, ss 209(1), (4) & (9)
Judiciary Act 1903 (Cth): s 39B(1) & (2)
Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641 applied
Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 referred to
Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd (Receiver and Manager Appointed) (1994) 49 FCR 334 applied
R v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 referred to
MARTIN KINGHAM & ORS v JOHN SUTTON & ORS
V 214 of 2001
GOLDBERG J
23 MARCH 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 214 of 2001

BETWEEN:

MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE

Applicants

AND:

JOHN SUTTON, VIC FITZGERALD, ALBERT LITTLER, BILL OLIVER, LINDSAY FRASER, ALEX BUKARICA, PETER McCLELLAND, TREVOR ZELTNER, PAUL WATERS, ANDREW FERGUSON, WALLY TROHEAR, GARRY HOWCROFT, TONY BENSON, BEN CARSLAKE, JOE McDONALD, GEORGE WASON and TREVOR MELKSHAM

First Respondents

MARGARET BUCHANAN, INDUSTRIAL REGISTRAR
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

23 MARCH 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT the abovenamed respondents appear before the Federal Court of Australia at the Commonwealth Law Courts Building, 305 William Street, Melbourne in the State of Victoria on 29 March 2001 at 10.15 am to show cause why the following orders should not be made on the grounds, or for the reasons, set out in the affidavit of Martin Kingham affirmed 22 March 2001 (“Kingham’s affidavit”) and the affidavit of Marcus Rogers Clayton affirmed 22 March 2001 accompanying this Rule:
1.An order pursuant to s 209 of the Workplace Relations Act 1996 (Cth) (“the Act”) that the first respondents and each of them perform and observe the Rules (“the Rules”) of the Construction, Forestry, Mining and Energy Union, Construction and General Division (“the Division”) by treating as null and void and of no effect the resolution of the Divisional Executive of the Division passed on 21 March 2001 requiring that elections for the offices of Divisional Officers of the Division referred to in rule 9.2 of the Rules be held at a Divisional Conference of the Division to be held on or before 8 May 2001.
2.An order pursuant to s 209 of the Act that the first respondents and each of them perform and observe the Rules by forthwith referring for review by a Divisional Conference of the Division the resolutions of the Divisional Executive of the Division passed on 22 March 2001…

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.

Continue reading Kingham v Sutton

Details

AGLC: Kingham v Sutton [2001] FCA 328
Case: [2001] FCA 328
Decision Date: 23 MARCH 2001

CaseChat Overview and Summary

The case of Kingham v Sutton [2001] FCA 328 is a dispute within the Construction, Forestry, Mining and Energy Union, Construction and General Division (the Division) regarding the validity and timing of certain rule amendments and elections. The applicants, members of the Divisional Executive, sought a rule to show cause why specific orders should not be made, including declaring a resolution to hold elections void, and restraining the respondents from proceeding with rule changes and elections. The legal issues revolved around the interpretation of union rules, the validity of a postal ballot, and the jurisdiction of the Court to grant interlocutory relief against an Industrial Registrar. Goldberg J concluded that the applicants raised serious questions to be tried and granted interlocutory relief pending the hearing and determination of the proceeding.

The Court found that each of the four issues presented by the applicants warranted the granting of a rule to show cause. The first issue concerned the resolution to hold elections by 8 May 2001, which the applicants argued was void as it implemented rules not yet certified. The second issue was about the resolution to refer rule amendments for review by the Divisional Conference. The third issue was the prohibition on submitting rule amendments to the Industrial Registrar for certification until the review. The final issue pertained to the urgency of holding a referendum on changing the rules to allow direct elections. Goldberg J was satisfied that these issues warranted interlocutory relief, considering the urgency and potential prejudice if the relief was not granted. The Court also addressed the jurisdictional argument regarding its power to grant injunctive relief against the Industrial Registrar, concluding that while the Judiciary Act limited jurisdiction, the Court retained the power to grant such relief if it had jurisdiction over the matter.

Orders