Mellor v Horn - [1988] FCA 323

Re: SHIRLEY MELLOR
And: NOEL HORN; DOUG ANDERSON; BRIAN ELTON; COLIN HARDIE; JIM MOORE; RUSSELL
DUMMETT; STEVE KING; SANDY BALDWIN; KATHY NEWCOMBE and TONY SHELDON
No. Q1 of 1988
Industrial Law
25 IR 157

COURT

IN THE FEDERAL COURT

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J(1).

CATCHWORDS

Industrial law - registered organization - rules - performance and observance - casual vacancies on branch committee - whether implied resignation from one office by election to another - incompatibility of offices - whether filling of vacancy can be delayed until less than twelve months of term remains - whether order should be refused on discretionary grounds - proximity of next regular elections - expense and difficulty of preparing roll of voters - form of order.

Conciliation and Arbitration Act 1904 s 133AB, s 140(1)(a), s 141, s 165(3)(d), s 170.

HEARING

MELBOURNE

#DATE 24:6:1988

Counsel for applicant: Mr. K. Watson

Solicitors for applicant: Cooper Grace & Ward

Counsel for respondent: Mr. Jerrard

Solicitors for respondent: Carberry & Co.

Solicitors for Federated Liquor and Allied Employees Union of Australia: Hawthorn Cubpaidge and Badgery

ORDER

THE COURT ORDERS THAT the respondents perform and observe the rules of the Federated Liquor and Allied Industries Employees Union of Australia by taking all reasonable steps to cause to be conducted elections to fill all vacancies currently existing in the offices of trustee and members of the committee in the Queensland branch of the Federated Liquor and Allied Industries Employees Union of Australia.

(NOTE: Settlement and entry of orders is dealt with by O.36

of the Federal Court Rules.)

JUDGE1

By rule to show cause granted on 10th May 1988, the applicant seeks an order pursuant to s.141 of the Conciliation and Arbitration Act 1904 ("the Act"). The applicant is a member of the Federated Liquor and Allied Industries Employees Union of Australia ("the Union"), an organization of employees registered pursuant to the Act. She seeks an order for the performance and observance of the rules of the union by the holding of elections to fill casual vacancies in the committee of management of the Queensland branch of the Union.

The rules of the Union contain branch rules, which appear to apply to all of its branches. Rule 3 of those branch rules provides as follows:

"3 - OFFICERS AND MANAGEMENT COMMITTEE OF THE BRANCHES OF THE UNION

The Officers of each Branch shall consist of a President, Vice-President, Secretary, Treasurer, Guardian, two Trustees and eight members of the Committee and such officers shall constitute the Committee of Management of the Branch.

The members may determine at a general meeting that the Secretary fulfil the dual position of Secretary-Treasurer.

In addition to the foregoing at a general meeting, a Branch may determine to hold an election for an Assistant Secretary and as such shall be an Officer of the Branch and be a member of the Committee of Management of the Branch."

It is common ground that the Queensland branch of the Union has determined that its Secretary…

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 Mellor v Horn

Details

AGLC: Mellor, S. v Horn, N. & Ors [1988] FCA 323 (25 IR 157)
Case: [1988] FCA 323
Decision Date: 24 JUNE 1988

CaseChat Overview and Summary

The case of Mellor v Horn involved a dispute within the Federated Liquor and Allied Industries Employees Union of Australia regarding the handling of casual vacancies on the branch committee in Queensland. The respondents, who were responsible for managing the union's affairs, had failed to address these vacancies as required by the union's rules. The applicants sought an order compelling the respondents to conduct elections to fill these positions, arguing that the respondents' inaction contravened the union's rules and was detrimental to the proper functioning of the branch.

The central legal issues in the case revolved around the interpretation and enforcement of the union's rules. Specifically, the court had to determine whether the failure to fill vacancies was a breach of the union's rules, whether the respondents had impliedly resigned from their positions by being elected to another office, and whether the union's rules permitted the delay of filling a vacancy until less than twelve months remained of the term. Additionally, the court considered whether it should exercise its discretion to refuse an order due to the proximity of the next regular elections and the associated costs and difficulties of preparing a voter roll.

The court found that the union's rules explicitly mandated that elections must be held to fill any vacancies on the committee. The court emphasised that the respondents' failure to conduct these elections was a clear breach of the union's rules. Furthermore, the court determined that the implied resignation from one office by election to another did not apply in this context. Regarding the timing of filling vacancies, the court held that the rules allowed for the filling of vacancies at any time, not just when more than twelve months remained of the term. The court also noted that while the next regular elections were imminent, the importance of adhering to the union's rules and ensuring proper governance outweighed the inconvenience and cost of preparing a voter roll. Consequently, the court exercised its discretion to order the respondents to conduct the necessary elections.

The court's final order required the respondents to perform and observe the union's rules by taking all reasonable steps to hold elections to fill the existing vacancies on the Queensland branch committee of the Federated Liquor and Allied Industries Employees Union of Australia.

Orders

Orders of the court

THE COURT ORDERS THAT the respondents perform and observe the rules of the Federated Liquor and Allied Industries Employees Union of Australia by taking all reasonable steps to cause to be conducted elections to fill all vacancies currently existing in the offices of trustee and members of the committee in the Queensland branch of the Federated Liquor and Allied Industries Employees Union of Australia.

(NOTE: Settlement and entry of orders is dealt with by O.36

of the Federal Court Rules.)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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