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McLeish v Kane

McLeish v Kane

Case [1978] FCA 97 14 November 1978

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THE FEDERAL COURT OF AUSTRALIA )

)	No. 22 of 1978

INDUSTRIAL

DIVISION

NEW SOUTH

WALES

DISTRICT

REGISTRY

BETWEEN:

DAVID MC LEISH

C l a i m a n t

R e s p o n d e n t s

O R D E R

JUDGES MAKING ORDER:

J.B.

SWEENEY,

P H I L L I P EVATT and NORTHROP JJ.

DATE

OF ORDER:14

N o v e m b e r 1978

WHEm MADE: Sydney

THE COURT ORDERS THAT:

The matter stand adjourned t o 13 February 1979.

Liberty t o

any party t o apply on 7 days notice t o the C o u r t and t o other

parties.

IN THE FEDERAL COURT

OF AUSTRALIA )

1 No. 24 of 1978

DIVISION

INDUSTRIAL

1 1

NEW SOUTH WALES

DISTRICT

REGISTRY

)

r -

BETWEEN: N.D.

KANE, G.C.

COLTHORPE,

C.J. EMERY, C.W. FAURE,

I. AUCHTERLONIE, E.J .

TURNBULL,

K.B. GILBERT, S.D. ALLEN, T.D. RYNN, J.R. DEVEREUX, M.A. WALKER and C.O. DOLAN

Applicants

AND:

DAVID MCLEISH, J.E. O'BRIEN,	.
D.I. CHRISTIANSEN, F.D. PRICE

M.G .H. PITT, R.M. GLASTONBURY,

Respondents

O R D E R

JUDGES MAKING ORDER:

J .B.

SWEENEY, PHILLIP

WATT and NORTHROP

JJ.

DATE OF ORDER:

14 November 1978

WHERE MADE:

Sydney

THE COURT ORDERS THAT: The matter stand adjourned to 13 February 1979. Liberty

to any party to apply on

7 days notice to the Court and

to other partles.

IN THE FEDERAL COURT OF AUSTRALIA	)
INDUSTRIAL DIVISIObT
i

NEW SOUTH

WALES DISTRICT REGISTRY

IN THE MATTER

of the Conclliation

and Arbltration Act

1904

AND IN THE MATTER

of an appllcation

pursuant to Section

l40 and Sectlon

141 of the said Act.

BETWEEN:

DAVID MC LEISH

Claimant

N.D. KANE, G.C. COLTHORPE,

G.J. EMERY, C.W. FAURE,

I. AUCHTERLONIA

, E. J

- TURNBULL,

J.E. O'BRIEN, G.H. PITT,

R.M.	GLASTONBURY, D.I.

CHRISTIANSEN, F .D. PRICE, K.B. GILBERT. S.D. ALLEN,

T.D. RYNN, J.R. DEVEREUX,

M.A. WALKER and C.O. DOLLN

Respondents

(No. 22 of 1978)

AND IN THE MATTER

of an applicatlon

pursuant to Sectlon	171 C of the
said Act.
BETWEEN :

N.D. KANE, G.C. COLTHORPE,

C.J. EMERY, C.W. FAURE,

I. AUCHTERLONIE, E.J. TURWBULL,

K.B. GILBERT, S.D. ALLEN,

T.D. RYNX, J.R. DEVEREUX,

M.A. WALKER and	C.O. DOLAN
Applicants

DAVID MCLEISH. J.E. O'BRIEN,

M.G .€I. PITT, R.M. GLASTONBURY,	I
l

D.I.

CHRISTIfANSEN, F.D. PRICE

Respondents

(No.24 o f 1978)

- 2 -

corn:

J.B.

SWEENEY, PHILLIP EVATT, and NORTHROP

JJ.

DATE :

14 November, 1978

REASONS FOR JUDGMENT

SWEENEY, EVATT and NORTHROP

JJ.:

The Court has before

it two applications. The first appllcation is by

Nr David

I	McLeish, a member of the Electrical Trades Union of Australla,

' an organization registered under the Act (the

E.T.U.) and

the New South Wales Branch Secretary and Delegate to National

Council of the

E.T.U. and is brought under

s.140 and s.141

of the Commonwealth Conciliation and Arbitratlon Act

1904

(the Act). The first application seeks orders first that Rules 9(a)…

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 McLeish v Kane

Details

AGLC: McLeish v Kane [1978] FCA 97
Case: [1978] FCA 97
Decision Date: 14 Nov 1978

CaseChat Overview and Summary

The Federal Court of Australia was presented with two applications under the Commonwealth Conciliation and Arbitration Act 1904. The first application, brought by David McLeish, sought orders to declare that certain rules of the Electrical Trades Union of Australia (ETU) contravened section 140(1) of the Act and to declare that certain actions taken by individual respondents under those rules contravened section 141 of the Act. The second application, brought by several ETU members, sought a determination on whether invalidities had occurred in the management or administration of the ETU and, if so, sought validating orders.

The court examined several ETU rules, specifically rules 9(a), (d), 10, 13, and 20, which were challenged on various grounds. The court found that rules 9(a), (d), 10, and 20 were not successfully challenged, but rule 13 was found to be unreasonable as it loaded voting rights disproportionately in favor of smaller branches. The court reasoned that while the Act encourages democratic control, it also requires the organization to remain viable, and a strict one-person-one-vote system could hinder the formation of viable national bodies.

The court determined that rule 9(d), which established the voting scale for branches in the National Council, was unreasonable as it disproportionately favored smaller branches. The court noted that a balance between encouraging democratic control and ensuring organizational viability is necessary, and the current voting scale did not achieve this balance effectively. The court opted to adjourn the proceedings to allow the ETU to alter its rules, providing the union with an opportunity to devise a more balanced voting scale.

The final orders of the court were to adjourn both applications to allow the ETU time to amend its rules and to grant liberty to any party to apply for further orders after seven days' notice to the court and other parties.

Orders