Kingham v Sutton (No 2)

[2001] FCA 400

FEDERAL COURT OF AUSTRALIA

Kingham v Sutton (No 2) [2001] FCA 400

INDUSTRIAL LAW – application for interlocutory relief pending hearing and determination of rule to show cause – whether interlocutory relief should be granted restraining respondents from giving effect to resolution fixing date for Divisional Conference – whether interlocutory relief should be granted restraining respondents from taking steps to have rule amendments certified by Industrial Registrar – whether interlocutory relief should be granted restraining Industrial Registrar from taking steps to certify rule amendments – whether Court has jurisdiction to grant injunctive relief against Industrial Registrar – whether serious question to be tried – whether balance of convenience in favour of grant of interlocutory relief.

Workplace Relations Act 1996 (Cth): s 195(1), s 205, ss 209(1), (4) & (9)
Judiciary Act 1903 (Cth): s 39B(1) & (2)
Conciliation and Arbitration Act 1904 (Cth): s 139, s 141

Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 applied
Municipal Offices’ Association of Australia v Lancaster (1981) 54 FLR 129 applied
Scott v Jess (1984) 3 FCR 263 referred to
Allen v Sideris (1984) 3 FCR 549 applied
Darroch v Tanner (1987) 16 FCR 368 applied
Re Food Preservers’ Union of Australia (1988) 79 ALR 138 referred to
Krantzv Maynes (1967) 10 FLR 134 considered
Bogar v Campbell (1995) 59 IR 243 considered

MARTIN KINGHAM & ORS v JOHN SUTTON & ORS (No 2)
V 214 of 2001

GOLDBERG J
12 APRIL 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:

12 APRIL 2001

WHERE MADE:

MELBOURNE

UPON the first respondents, John Sutton, Peter McClelland, Andrew Ferguson, Wally Trohear and George Wason, by their counsel, undertaking that until the hearing and determination of the proceeding or further order they will not, whether by themselves, their officers, servants or agents treat as effective or otherwise act upon, the resolution passed by the Divisional Executive of the Construction and General Division of the Construction, Forestry, Mining and Energy Union on 21 March 2001 in the following terms:

“… Divisional Executive determines that a meeting of the Divisional Conference is to be brought forward to 8 May or such earlier time as it can be practically organised and that the Divisional Secretary be authorised to take all steps necessary to facilitate such a meeting, including postal ballots of the Divisional Executive, and that the Conference in question conduct the elections for Divisional Officer positions.” 

(“the said resolution”).

THE COURT ORDERS THAT:

1.The first respondents, Vic Fitzgerald, Albert Littler, Bill Oliver, Lindsay Fraser, Alex Bukarica, Trevor Zeltner, Paul Waters, Garry Howcroft,…