Krantz, Harry David v Federated Clerks Union of Australia

[1985] FCA 421

Industrial law - validlty

adjournment to allow opportunlty to alter rules - amendments made

to c u r e defects - wliet5er proper to consider validity of

amendments other than those made to cure defects.

Conciliation and Arbitration Act 1304, S. 140 . , S. 133A, S. 139.

Federal Court Rules m. 23 t-. 5.

Luckman v. Australian Postal and Telecommunications Union ( 1 9 7 8 )

2 8 A.L.R. 333.

HARRY DAVID KRANTZ v. FEDERATED CLERKS' UNION OF AUSTRALIA

GRAY J.

24TH MAY, 1385

ADELAIDE.

IN THE FEPERAL COURT i3F AUSTRALIA	4 9	P
cl

SOUTU AUSTRALIA DISTFICT REGISTRY	'L	i
IXDUSTRIAL DIVTSION

B E T W E E N :

HRRRY DAVID KR-WTZ	and
OTHERS

Applicants

AND :

FEDEXATED CLERKS' UNION OF

AUST9ALIA

Respondert

JUDGE:	GRAY J.
W:	24TH MAY, 1935

E X TEMPORE REASONS FOR JUDGMENT

On 21st December 1334 the Court delivered ludgment in

this matter. It was held that the rules of the Federate< Clerks Union of Australia failed to make the provisions requlred by S. 133A of the Conciliatlon and Arbltratlon Act 1904. Pursuant to

the power given by 5. 140(6! of that Act, the matter was

adjourned to glve to the orqanization an opportunity to alter its rules. Subsequently, the matter was further adjournec? on two

occasions and comes on before me today.

There is before me an affldavit of Terrence Wllliam

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Sulli.Jan sworn an 15th May 1985, in whlch evldence is given of

varlcui amendments made to various rules of the organlzatlon,

those amendments having been certlfled by the Industrial

Re,sistrar pursuant to S . 133(4) of the Act on 29th Aprll 1985.

Dr. Jessup, on behalf of the organization, has submitted

to ms that amongst those amendments to the rules are new

provislans, whlch have the effect of o-~ercomlng the defect whlch the Court found to exlst In the rules of the organization, In Its :ut',crment given on 21st December 1384. Mr. Heywood-SmLth on behalf of the applicants in the proceeding iloes not dlspute that

the rule amendments do overcome the defect whlch was found to

exlst. He contends, however, that the organlzation has taken

advantage of the adjournment to alter its rules In a number of

respects, and that some of the amendments which have been so made

themselves raise other dlfficulties of compliance with s . 140(1)

of the Act. In partlcular, Mr. Heywood-Smith desires t o draw

attention to a number nf features of the amendments which he says

made provlsions which are in contravention of S . 140(l)(c) of the

Act, in that they impose on members of the organlzation

condltlons, oblqations 01- restrictions whlch, having regard to

the ob2ects of the Act and the purposes of the registratlon of organlzattons under the P.ct are op~resslve, unreasonable or unlust.

I am required to rule as to whether such an attack on

the rule amendments is permissible In these proceedings, or as to whether, the amendments having become part of the rules of the organizatlon, anyone who wlshes to challenge their validlty under

_I

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S . 140 1s now obllqed to apply for ;A Rule to Show Cause under

sub-s . ( 2 ) of that section and to mount a fresh chalienqe.

There is very little In the way of authority that has been drawn to my attention on this questlon. Mr. Heywood-Smith has referred to the declsion of the late J.E. Sweeney J. in Luc!cman v . Australian Postal and Telecommunications Union (1970)

28 A.L.R. 332. At page 400 and the following pages of that

report, Sweeney J. considered amendments which had been made to

various rules of the union there under conslderation, during an

adjournment granted under 3. 140(6) of the k t . In each case his

Honour found that the challenges to the particular amendments

failed and that he was satlsfled that those amendments dld make

proper provislon. It should be pointed out that that c3se

dlffered from the present in that the effect of his Honour's

earlier reasons for judgment, which led to the ad~ournment, was

that certain provlslons of the rules of the Australian Postal and

Telecommunlcatlons Union were found, themselves, to be in

contraventlon of the Act. In the present case, as I have said, the contravention consisted of a failure adequately to make a

provlslon requlred by the Act. 411 that Sweeney J. was called

upon to do was to look at specific rules and declde whether the alterations made to them had removed their dlsconformity with the

Act. I have to look at all of the amendments made for the

purpose of seelng whether the	defect which I found to exist	has
been removed.

At page 402 In the report of Luckman's case, however, Sweeney J. dld draw attention to other features of the amendments

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which he was consldering. He had thlz to say:

"Durlng the course of my examlnatlen of the rules lt appeared that the effect of the amendments made was that there was no power in the members to remove members of

committees. T h ~ s was not one of the matters In

controversy argued before me, but I have drawn the

attention of the parties to thls. I am lnformed that

steps are being taken to amend the rules	to provlde for
this power.

I make no comment at all as to the validlty or

propriety of what is proposed to be done 1 7 the

amendments other than those made to the seven rules

attacked, but I felt it proper to record It, that the attention of the Registrar might be directed to this question when he 1s considerlng the certlfication of any amendments to these rules.

In additlon, the deletion of r 40 may make it necessary

to consider the power to remove branch officers and

members of the State Executive and in the light of the

new r 56 the provisions of rr 7!d), (e) and (f) wlll

require further conslderation. These, however, are not

part of the matters in controversy between the parties

at this time and they are natters proper for the

Zeclslon of the Registrar when the application for

certiflcation of the rules comes to hlm."

As appears from that passage the rule amendments ip that case had

not been certified under S. 139(4) of the Act by the time the matter came back before his Honour. In the present case the rule amendments have been so certified. This means that the Industrial Registrar must have performed his function under S. 139(4) of considerlng whether the amendments were contrary to the

provisions of the Act. The passage that I have referred to from

Luckman's case does indicate that the court there was unwilllng

to travel outside the matters in contrcversy between :he partres

In consldering rule amendments made durlrq an adjournment.

Mr. Xeywood-Smith has argued very persuaslvely that

there are matters of convenience to the Court and to the parties,

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and matter5 ,If the cost and contlnuance of litigation whlch are

very relevant to the consideration of what I should do. He polnts out that 1-F a new Rule to Show Cause is obtamed, the

Court which hears it wlll flnd it necessary to investigate

factual matters whlch have been investigated previously In the proceedings before me. He contends that the e:cper.se of leading evldence of the same matters all over again would be unjustified and that I should therefore look at the form of amendments in the

light of the evidence which I have heard. He also draws

attention to the problems of costs on both sides of the

proceedlngs, and to the actions which have been taken by the

organlzation in the past with respect to costs of proceedings, by

visiting them upon the branch which is ConcerEed.

Some argument occurred with reference to 0. 33 R. 5 of

the Federal Court Rules, as to whether the application of that

ru le may not save a considerable amount of costs In subsequent

proceedings, by allowing the evidence led in these proceedings to

be read again in those procee5ings. But whatever vlew is taken

of 0 . 33 R. 5 it would not lead to	an entlre saving of the costs
of further proceedlngs.

These matters are very welghty. On the other hand it

seems to me that I have to take account of the difflculties whlch are Inherent In trying to ~ u d g e all of the amendments made to the rules, by reference to all of the provisions In S. 140(1), in the absence of a new proceedlng. Clearly this was a matter which

Sweeney J. declined to do in Luckman's case. It 1s also a matter

whlch seems to me to be prGdUctiVe of potential difficulties.

I do foresee considerable dlfflcultles, if I were to

hold that the Court should look at all rule amendments made

during an adjournment perlod, f o r the purpo.ce of determining at

large, and without the notification of grounds whlch is inherent in the Rule to Show Cause procedure, whether they comply or fail to comply with S . 140 generally.

For these reasons I regard it as the better view, on

balance, that the Court should conflne itaelf to the question

whether the defect which was perceived in the rules at the time

of the origlnal appllcation has been overcome, and if It has, the

remainder of the Rule to Show Cause should be discharged. Any

challenge to any provisions, which are contained in the

amendments to the rules, can be brought forward by the existing

parties or, indeed, by any other	member who wishes to challenge
those rules in the ordinary way.

I order that the remalnder of the Rule to Show Cause be

dischar,ged.