Krantz, H.D. v Federated Clerks Union of Australia

[1985] FCA 267

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Industrial law - registered organlzatlon - leave to appeal out of time.

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Conrxllatlor, and Arbitration Act 1504, s. 140, 5. 133A. 3

1 3 3 ( 4 ) , S . 1 9 7 8

Federal C ~ U C E of Australia Act 1976, S. 2$ . (1A!

Federal Court Rules, 0. 5 2 R . 1 5

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GRAY J.

24TH MAP 1985

ADELAIi3E.

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IN THE FEDmAL COURT OF AUSTRALIA	) )
SOUTH AUSTP.ALIA DISTRICT REGISTRY	)
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INDUSTRIAL DIVISION	) S.A. No. 6 of 1985

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B E T W E E N :

HMRY DE-VID KFANTZ and

WILLIAM ALE4 S;+lITF!

AND :

:

FEDEFATED	CLEXKS' U N I O N	OF
AUSTRALIA

Respondent

JUDGE: GRAY J.

U: 24TH MAY 1985

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T h ~ s 1 s ar. appllcatlon undei 6. 5 2 R. 1 5 ( 2 ) of t k e

Federal Court Rules for leave to appeal out of time.

In matter S . A . No. 13 of 1384 t h e present appllsants an2

one other appllcant sought a number of orders pursLant to s . 140

of che Conciliation and Arbitraticn Act 1904 ("the Act"), wlth

respect to the rules of the Federated Clerks Ul~on of Australi3

("the organization"). The applicatlon was based in part cn S .

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140(l)(a) of the Act, alleglng fallure of the rules to make the

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.1	provisions required by
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, I	rules to comply with s
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i 21st On December 1984 ~udgment was delivered. The Court

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found that in one respect the rules failed to make adequate

provision for the matters requlred by 5 . 133A of the Act. The

proceedlny was adlourned pursuant- to s . 140(6! for the purpose of

glving the respondent organizatlon an opportunity to alter its

rules . Otherwlse, the rule to show cause, which was t n e

lnitlatlng dacument for the proceedlng, was dlzcharyed.

Thii order was actually made during the court vazat:nn,

and the time I o k - appeal from the order dlachar~lng parcs G€ ths

rule to show cause explred on 4th February 1985. if the

applicants had wanted to appeal from the order of 2lsr Ijecember,

so far as It Involved an adjournment under 5. 140(6), they

probably would have needed leave to do so under S . 24(1A) of the Federal C U U L L o1 Australia Act 1976, as It 1s probable that that order was of an Interlocutory character.

On 22nd February 1985, a notice was glven to the rnedet-s

of the Natlonal Councll of the organization pursuant to rule

42(3) of its rules, of the text	of proposed amendments to the
rules.

On 28th February the matter, agaln came before rke Court

and was further adlourned. Ac that stage rlotiilng was sald on

behalf of cile appllcacts about any deslre to appeal.

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On 4th Narch a postal vote of r;he members sf the

i.1	-7	Natlonal	Councll of the	organization	was	commenced,	wlth the	text
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of the proposed amendments being the zubject of that postal vofs.

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.4	By 15th March It became	known that a ma~orlty	of the members *>f
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the Natlonal Councll had voted in favour of the proposed

:, _ ' amendments, and on 13th March they were submitted to the

Industrlal Reglatrar for certificatlon pursuant to S. 139(4) of

the A c t .

On 2nd April the matcer was further mentloned before the

Court and adlourned again untll today. At that stage the

amendments had not been certlfied. On that occasion the flrst

mentlun was made of the applicants' intention to appsal, and =#=me

discussion took place as	to whether leave was needzd,	and unc?sr
what provision.

On 9ch April the present appllcatlon for leave to aFPeal

was made. Subsequently, on 23th Aprll, the rule amendments were certlfled by the Industrial Regiscrar. 4s a result of that,

today the Court, dlscharged the remalnder of the rule to show

cause and matter S.A. No. 13 of 1934 was thus entirely concluded.

Order 5 2 R. 15(1) of the Federal Court Rules lays down

the tlme limlts for appealrng. Sub-rule ( 2 ) provldea:

' * ( 2 ) Notwithstanding anything In the preceding

suh-rule, the Court or a Judge for- special reasr3ns ma:;

at any tlme give leave to file and serve a notlce of

appeal. "

The emphasis In the argument before ne has been p l a c e d

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5 :,	the application for	leave to appeal an affldavlt of Faul	Anthony
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Heywood-Smith, sworn 9th Aprll 1985, was filed. I quote from

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i paragraph 9 of that affldavlt:

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"3. The reason for the fallure to file a Notlce of

Appeal wlthin 21 days of the orlglnal declslon was

the mlstaken bellef on my part that tke

ad2curnment of the mattsr by Mr. Just.lce Gra:I meant that no Elnal order had been made and that

the clyht of appeal would contlnue until s c r h tlme

a5 Mr. Justlce Gray had made a flnal order m the

matter. ''

Mr. Heywood-Smith was and 1 s the legal advlser for the

applicants. No affldavit materlal was filed by Dr. Jessup. who appeared on behalf of the respondent organlzatlon. Such facts as he relied upon were those whlch emerged from materlal filed

before me in matter No. 13 of 1984, and inferences that	he asked
me to draw from those facts.

The researches of counsel ha-re not disclosed any dlreet

authorrty on the mean1r.g of the worcls "speclal reasons" In 0. 5 2 ,

R. 15(2). I have been referred by Dr. Jessup to Blshop b-. the

(i382) 40 A.L.R. 40, especially at Fages 4i to 42, NWgsurn v. Corporation of Canterburv ( 1 8 3 2 ) 19 V.L.R 302, especlally at

page 318, and Huqhes v. The Natlonal Trustees Executives and

Arrencv Companv of Austraiasla Llrnlted !1378) V.L.R. 2 5 7 ,

especlally at pages 163 to 264. Reference to those passages

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sdggeats that, in exercislng a power such as that under 0. 52, R.

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