Owens, Joseph v The Australian Building Construction Employees & Builders Labourers Federation

[1978] FCA 25

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'L.

I JUDGMENT No. .-........ ..d 25-

IW "E FeDERAL COURT)

)

OF AUSrmALIA 1 N.S.W. NO. 10 Of 1977

I 1

INDUSTRIAL D I V I S I O N )

c

I N THE MATTER of the Conclliation and

Arbitratlon Act, 1904

AND I R W E MATTER of an applizatlon

under Section 144 of the s a d Act

BETWEEN: JOSEPH OWENS

Applicant

._	AND:	THE AUSTPALIAN SUI;,DTN?
C O N S T R U C T I O X ~ P L O Y E E S - ; ~ N L ~
BUILDERS LAEOURFX FELIERATION

Respondent

JUDGES MMING ORDER:	J.B. SWEENFX, EVATT, KEELY JJ.
WHERV MADE: Sydney
ORDER OF THE COURT:

1. The Court declares that JOSEPH OWENS is entitled to be

abitted as a member of THE AUSTRALIAIT BUILDIXG

-	CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERA=
and to remain a member so long as he complies with the
rules of the organisation.

2. Liberty is reserved to each party to apply on 48 hours notice.

IN TFE FEDERAL COURT )

1

OF AUSTRALIA ) N.S.W. NO. 11 Of 1977

I

1

IlQwSTRI9L DIVISION )

IN THE MATTER of the Conciliation and

Arbitration Act, 1904

AM) IN THE MATTER of an applicatlon

under Section 144 of the said Act

BETWEEN: JOHN BERNARD MUNDEY

I Applicant

- AND: THE AUSTRALIAN BUILDING

CONSTRUCTION EMPLOYEES I.N3

BUILDERS LABOURERS FEDERATION -

Readondent

JUDGES MAKING ORDER: J.B. SWEEXEX, WATT, KEELY JJ.

- DATE OF ORDER: 20 April, 1978

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WHERE MADE: Sydney

ORDER OF THE COURT:

1. The Court declares that JOHN BERNARD MCTNDEY is entitled

tO be admitted as a member of THE AUSTRALIAN BUILDING

CONSTRUCTION EMPLOYEES m?) BUILDERS LABOURERS FEDERATION

and to remain a member so long as he complies with the

rules of the Organisation.

2.	Liberty is reserved to each party to apply on	48 h urs
notice.

IN THE FEDERAL COURT )

1

OF AUSTRALIA	1	N.S.W. NO. 18 Of 1977
1
INDUSTRIAL DIVISION	)

IN THE MATTER of the Conciliation and

Arbitration Act, 1904

ANIJ IN THE MATTER of an appllcation

under Sectlon 144 of the said Act

BETWEEN: ROBERT ARTHUR PRINGLE

Applicant

-	AND:	THE AUSTRALIAN BUILDING
CONSTRUCTION EMPLOYEES .AND
BUILDERS LABOURERS FEDEF!ION

Respondent

JUDGES MAKING ORDER: J.B. SWEENEY, EVATT, KEELY JJ.

DATE: OF ORDER: 20 April, 1978

WHERE MADE: Sydney

ORDER OF THE COURT:

1. l'he Court declares that ROBERT ARTHUR PRINGLE is e,ltitled

to be admitted as a member of THE AUSTRALIAN BUILDING

CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDE.RAT1ON

and to remain a member so long as he complies with the

rules of the Organisation.

2.	Liberty is reserved to each party to apply on	48 hours
notice.

IN THE FEDERAL CO'JRT	1
OF AVGTRALIA	1 1
INDUSTRIAL DIVISION

IN THE MATTER of the Conciliation

and Arbitration Act, 1904 as

amended

AND IN THE MATTER of applications under Section 144 of the said Act.

BETWEEN: JOSEPH OWENS

Applicant

!	-	AND:	THE AUSTRALIAN BUILDING
f
CONSTRUCTION' EMPLOYEES AND BUILDERS LABOUEKS FEDERATION

Respondent

(No. 10 of 1977)

AND BETWEEN: JOHN BERNARD MUNUEY

Applicant

- AND:

Respondent

(No. 11 of 1977)

AND EETWEEN: DOUGLAS DUGGAN

Applicant

- AND: THE AUSTRALIAN BUILDTIiG COVSTRUCTION EMPLOYEZS AND BUILDERS LABOURERS FEDERATION

Respondent

(No. 12 of 1977)

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AND BETWEEN: ABRAHAM SILAS DAVID

Applicant

-	AND:	THE AUSTRALIAN BUILDIKG CONSTRUCT'1C)N EMPLOYEES
AND BUILDERS LABOURERS
FEDERATION

Respondent

(No. 17 of 1977)

AND dETWEEN: ROBERT ARTHUR PRINGLE

Applicant

_.	AND:	THE AUSTRALIAN RIJTLDING CONSTRUCTION EMPLOYEES
AND BUILDERS LABOUKERS
FEDERATION -

Respondent

(No. 18 of 1977)

CORAM: J.B. Sweeney, Evatt and Keely JJ.

DATE: 20 April,1978

REASONS FOR JVDGMENT

J.B. SWEEXUEY, WATT and KEELY JJ: In matters N.S.W. ND. 10,

11, 12, 17 and 18 of 1977 Joseph hens, John Bernard Mundef,

Douglas Duggan, Abraham Silas David and Robert Arthur Pringle

reapectively make application pursuant to s.144 of the

Conciliation and Arbitration Act 1904 (the Act) seeking

declarations by the Court of their respective entitlement

to be admitted as members of "The Australian Building

Construction Employees' and Builders Labourers' Federation"

(the organization) an organization registered under the Act.

Mr Enderby P.C. with Mr R. Madgwick appeared

for all applicants other than Mr Mundey. M r Madgwick

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with Mr Manser and Miss Simpson appeared for Mr Mundey.

Mr Marcus Einfeld, Q.C. with Mr D. Ryan and Miss M. Beazley

appeared for the organization.

It waa agreed that all matters be heard together.

Tie relevant parts of S. 144 are :

"(l.) A person employed in connexion with an industry,

or engaged in an industrial pursuit, is, unless he

in of general bad character, entitled, subject to

payment of any amount properly payable in respect

of membership, to be admitted as a member of an

organization (being an organization of employees

in or in connexion with that industry or of

employees engaged in that industrial pursuit)

and to remain a member so long as he complies

w i t h the rules of the organization.

(2) Subsection (1) does not entitle a person to

be d t t e d a8 a member of an organization unless

he is included in a category of persons who are

eligible for membership of the organization under

the rules of the organization, or to remain a member

if he ceases to be so incluasd and the rules do

not permit him to remain a m-mber.

(2A) Subject to subsection ( 2 1 , subsection (1)

has effect notwithstanding the rules of the

orgrrnization except to the extent that it

exp-essly requires compliance with those	rules.
(3.; For the purposes of this section -

(a) a person whose usual occupation is that of

employee in an industry or engagement in an

industrial pursuit: or

(b) a person who is qualified to be an employee

in an industry or to engage in an industrial

pursuit and desires	to become such an employee
or so to engage,

shall be deemed to be employed in that industry

or to be engaged in that industrial pursuit.

(4.) e . . . . . . . . . . . . . . . .

( 5 . ) Where a question or dispJte arises as to

the entitlement under this section of a person

to be admitted as, or to remain, a member of

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an organization, that person, a person who is

or desires to become the employer of that person

or the organization may apply to the Court for

a declaration as to the entitlement of that

firstlnentioned person under this section.

(SA.) Subject to sub-section (7.1, the Court

has jurisdiction to hear and determine an

application under the last preceding sub-

mection and may, notwithstanding anything

contained in the rules of the organization

concerned, make such order to give effect to

its determination as it thinks fit.

(6.) The orders which the Court may make under

the last preceding subsection include an order

requiring the organization concerned to treat a person to w h m sub-section (1.) applies as being

a raember of the organization and, upon the making

of such an order becomes, by force of this Act, a

member of the organization.

(7.) Where an application	is made to the Court
under this section -

(a) ........ .....

(b) if the application is made otherwise than

by an organization - the organization concerned	&all be given an opportunity of being heard by I,
the Court.

For some years up until June 1974 a voluntary

aaeociation of employees known as The Australian Building Construction Employees' and Builders Labourers' Federation (hereinafter called the former organization) the members of

which W k e d in or in connexion with the building industry

was registered under and in accordance with the provisions

of the Act.. Upon registration the association became and

waa an organization, s.132(3), having perpetual succession

and a conanon seal (s.136) and was issued with a certificate

of registration. Such certificate was until proof of

cancellation conclusive evidence of the registration of

the organization and that it had complied with the prescribed

conditions entitling it o be registered (S.135).

1n.June 1974 on Builders' Association of New South Wales (hereinafter called the application of the Master

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the M.B.A.) an organization of employers registered under the Act in matter B. No. 73 of 1974 the Australian Industrial

Court ordered that the registration of the former organlzation

be can+led pureuant to 8.143. (Master Builders' Association

of New South Wales V. Australian Buildinq Construction

RaDlovees and Builders' Labourers' Federation 23 F.L.R. 356).

Thereafter and until 7 October 1976 the former

organization remained a voluntary association (s.143(6)).

On 7 October 1976 the Industrial Registrar registered the

association issuing a certificate of registration under

the Act 80 that eince that date the association has been

and is an organization registered under the Act with the

corporate name of "The Australian Building Construction

Ruployees' and Buildere Labourers' Federation" (hereinafter

called the organization).

Proceedings challenging carmenced againet certain of its officers in the Supreme certain expulsions were

Court of New South Wales in its Equity Division by several

co-plaintiffs including all applicants herein other than

Mr David. It would appear that those Equity proceedings were comnenced in or about October 1974 and continued

together with other Equity suits between the parties

intermittently through to a date shortly after registration

under the Act was granted to the organization in October

1976. By then all euch proceeding3 were either withdrawn

by the plaintiffs or stood over generally. Certain aspects

of 6ome of those proceedings have been reported. (1974(2)

N.S.W. Law Reports 559).

On 28 April 1977 several persons including the

, five applicants herein filed an application (N.S.W. No. 2

of 1977) under S.171 C of the Act wherein the organization and certain of it8 officers were named as respondents. In

such application claims were made by the applicants which

if proceeded with could possibly have made it necessary

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l	for the Court to determine questions as to the validity
of the purported expulsions referred to above. The matter
was listed for directions on 6 June 1977 when orders
regarding particulars and interrogatories were made
and the matter stood over for hearing o 19 September
1977.

1 On or about 25 August 1977 three of the present

applications under S.144 namely those of Joseph W n s ,

John Bernard Mundey and Douglas Duggan (No. 10, 11 and 12

of 1977 respectively) were filed and made returnable for

hearing cjn 19 September 1977.	Such applications were
served on the organization.

On 19 September 1977 matters No. 2, 10, 11 and 12 of 1977 were listed for hearing. When matter No. 2 of 1977

was calle? on Counsel for the applicants sought to have

the applications of Joseph Owens, Robert Bernard Mundey

and Douglas Duggan brought pursuant to S.144 heard prior

to the application brought under S.171 C. This was refused

and the Court then called on matters No. 10, 11 and 12 of

1977. After a short adjournment the applicants asked

that leave be granted to withdraw the S.171 C application in accordance with reg. 66 made under the Act. Mr Einfeld

for the respondents did not object to such withdrawal but

sought an order for costs against the applicants. Section 19711

provides that an order for costs shall not be made against

a party bringing such an application unless such application

was instituted vexatiously or without reasonable cause.

Subiseione in this regard were pzrt heard on 19 September

1977. All matters were then adjourned to 30 September when

matters No. 10, 11 and 12 of 1977 were again called on and

after certain orders as to procedural matters were made

the applications were adjourned to 8 November 1977 for hearing.

Further eubnissions relative to c sts were heard on 30 September and 14 October when the Court indicated that the application

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for costs would be refused and a formal order granting

leave to the applicants to withdraw the proceedings

and that the reasons for the refusal to make any order

as to coats would be given at a later date.

On 18 October 1977 the applications under s.144 of Abraham Silas David (No. 17 of 1977) and Robert Arthur

Pringle (No. 18 of 1977) were filed and made returnable

for hearing on 8 November 1977. The applications were

served on the organization.

On 8 November 1977 the five applications'under

s.144 came on for hearing. Shortly before the luncheon adjournment during the cross-examination by Mr Einfeld

of the applicant Wens in matter No. 10 of 1977 Mr Callaghan

of counsel sought leave to intervene under s.106 of the

Act on behalf of the M.B.A. to oppose all five application3.

Mr Einfeld stated that the organization did not object to

such intervention. On the other hand counsel representing

the applicants strongly opposed the application of the M.B.A..

The Court then indicated that if rhe M.B.A. wished to pursde

the application for leave to intervene evidence indicating both the particular interests with which it was concerned and facts or other matters which would make it desirable

in the terms of 8.106 for leave to	b granted should be
given by way of affidavit.

On 10 November 1977 Mr Callaghan renewed hls

application for leave to intervene relying on the affidavit

of Leslie Raymond Rocher, Executive Director of the M.B.A..

sworn 9 November 1977. After argument the Court refused

the application. Its reasons are as follows :

The M.B.A. is an organization of employers

in the building industry.

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It was first argued for the applicants that

there was no power in the Court to allow intervention in these proceedings. Mr Enderby for the applicants

argued that at common law there was no power in to allow intervention and that the Statutes under which a Court

the Court operated did	not give it	power to allow an
intervention.

The Federal Court of Australia Act, 1976, in 8.38 prescribes that, eubject to any provision made by

this or any other Act with respect o practice and

procedure, the practice and procedure of the Court shall be in accordance with rules of Court made under

this Act. Section 118A(l)(a) and (b) of the Conciliation and Arbitration Act provides for che jurisdiction and

powers of the Australian Industrial Court or a Judge

of that Court to be exercised by this Court and references

in the Conciliation and Arbitration Act to the Court are,

*in relation to and to matters arising out of the jurisdiction

and powers of that Court" to be read as references to the

Federal Caurt of Australia in its Industrial Division.

The question then is whether pursuant to the

Statute8 creating the Australian Industrial Court and

the Federal Court of Australia, power is given to the

Court to allow an intervention.

In arguing that there was no power, reliance

was placed on a judgment of the Court of Appeal of New

South Wales (Cormorate Affairs Commission v. Bradlev:

C-nwealth of Australia, (Intervener) (1974) 1

N.S.W.L.R. 391). In that case, an appeal from a single

judge sitting in the Cormon Law Division, the Commonwealth

of Australia had been given, on the original hearing,

leave to intervene and on the hearing before the Court

of Appeal, the question of the power to allow intervention

was argued. The Court held that there was no power in

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the Supreme Court of New South Wales to allow intervention,

there being no express statutory power and no inherent

power so to do. We think that the views there expressed

afford little help in this present case.

I

The Court of Appeal in dealing with the question

i

referred to the practice of allowing intervention in the

High Court. After referring to the well known passage of

Dixon J., as he then was, in Australian Railways Unlon v.

Victorian Railway Colnmissioners (1930) 44 C.L.R.	319 at 331.
Hutley J.A. said at p.339:	i

"This constitutional practice is based upon

the concept of legislative trespass and the

right of the Attorney-General of	a State
in cases of legislative trespass	by the

Camonwealth to protect its citizens from such trespass".

We think the more important question for our purposes was that intervention was allowed, rather than

the concept on which it was based. We thixkmoreover,

that the Statute in this case does provide for interventirm.

Section 106 provides in ss.(l) for the inter-

vention by the Attorney-General 01 behalf of the Commonwaalth.

Sub-section (2) then provides as follows:

'The last preceding sub-section shall not be

construed as limiting the power of the Court

to grant leave to a person or organization

to intervene in any mattez before the Court

but that power shall not be exercised except

in a case where the Court is of the opinion

that it is desirable that a person or

organization should be heard"

A like section dealing with the Commonwealth Conciliation and Arbitration Commission was considered

by the High Court in The Queen v. Evatt; Ex Parte Master

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Builders Association of New South Wales 132 C.L.R. 150

at 152. The Court said of the subject section :

"Aithough 8.36(2) does not itself confer on

the Comnission any power to grant leave to

intervene, it recognises the existence of

such a power in the Commission, and proceeds

to place a restriction on that power, by forbidding its exercise except in a case where the Commission is of the opinion that

it is desirable that a person or organization

should be heard. It

We think in the light of s.106 there is power in us to allow intervention if the Court is of opi'nion

that it is desirable that the organization should L heard.

This has long been the practice of this Court

and its predecesaor in cases such as those where a rule

of an organization is attacked, In, for example, proceedings

under 8.141. It is an invariable practice to allow the

organization to intervene to defend its rule although it

could not be a respondent under s.141.

We are satisfied then that this Court has power

to allow an intervention.

In considering whether to allow such an inter-

vention, regard must be had to s.106(2) which provides

that the power to grant leave to intervene shall not be

exercised except in a case where the Court is of opinion

that it is desirable that a person or organizatlon should

be heard. Normally litigation in this Court will be

between parties and we are of the	view that intervention
should not be lightly allowed.

When the application for leave was first made

to us, counsel for the M.B.A. was informed by the Court:

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"If you wish to pursue the application we

think there should be material before us on

which we can form the opinion set out in

the section. We think a course should be

.

taken of filing an affidavit which would which your client is concerned and the facts

or other matters which would make it desirable

inthe tern of the section for leave to be

granted to your client. That may be done and we will hear your application as soon as it has been done."

The affidavit filed did not clearly define any particular interest but set out a number of matters

and opinions as to the merits of the applications and

the possible effects of granting them.

However neither the material in the affidavit of Raymond Leslie Roacher, swdrn the 9th November, 1977

(including paragraphs 9-15 inclusive thereof which were

the subject of an objection) nor the reaeons advanced by

blr Callaghan on behalf of the M.B.A.	persuaded us
that such a coursewas desirable.

The M.B.A. csass-examine as to the following matters wished to both call evidence and

:

1. The general character of the applicants.

' I 2. The events leading to the deregistration

of the Federation on 21 June, 1974 includ-

ing the part played in those events by

. the present applicants.

3. The alleged adverse effects upon the

I	Master Builders Association members and
upon the building industry generally of
the part played by tl-e applicants in
those events leading to the deregistration.

'4. The fears of the Master Builders Association

members as to likely events in the building

industry in the future if any or all of the

applicants be admitted to	membershlp of the
Federation.

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Counsel for the organization which was opposing

the applicatiomunder 9.144 had already begun to cross-

examine in part and was continuing to cross-examine as to

the matters in (l), ( 2 ) and ( 3 ) above. As to ( 4 ) above,

in our view the existence of such fears would be of little

(if any) assistance to the Court's task in determining

applications'under 8.144. Mr Callaghan was unable to say

I whether, if the M.B.A. were granted leave to intervene it

would be merely reinforcing matters which the respondent

organization would be presenting to the Court. He was

unable tc; say that there was any separate argument o material

that his client wished to place before the Court.	I
!

Indeed it appeared that the material proposed

to be relied on was primarily that contained in a judgment

of the Australian Industrial Court when the organizatlon

was derogistered. The organization was of course a party

to those proceedings and had access to the transcript and

the judgment.

The only additional material appeared to beMr Ror*her's

opinion based on his experiences as the Executive Directorof

the M.B.A. of the character of some of the applicants.

It may further be noted that althoqh the applications

were made in August, 1977 and came before the Court on

19 September, 1977 and 30 September, 1977 in widely

publicised preliminary hearings and then again on 8

November, 1977, it was not until tinat last day that

any mention was made by the l4-B-A- of the desire to

intervene or that the application &as made to the Court.

It was a belated application. By the time it was made

the cross-examination of one of the applicants was well

under way.. By the time the affidavit was filed, reasonable

notice given to the applicants and the application heard,

the bulk of the cross-examination was completed. No

explanation was made for the delay and since some of the

applicants were then out of work because they were not

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able to join the union we were reluctant to take a course

which may have led to a further adjournment or at least

a more lengthy hearing unless the grounds for intervention

were properly made out. In our view it would not be

desirable to allow intervention merely to strengthen a

case or to allow relevant matter to	be put twice or with
greater emphasis.

At an early stage of the proceedings and with a view to saving time which might otherwise be pent on

evidence ultimately held to be irrelevant, the Court,

with the consent of the parties considered and rulkd

. upon as a preliminary matter, the question whether ',s.144

gave the Court a general discretion to be exercised having

regard to the objects, policy and scope of the Act and by

virtue of which it might refuse an application even though

I	the specific requirements	of the section were satisfied
I

or whether it gave a discretion only as to the appropriate

I	form of order to give effect to its determination. The
Court ruled that the latter was the true meaning of the
aection and we now set out our reasons for so ruling.

The section in its present form in ss.(l) gives

to a defined pelraon a statutory entitlement to be admitted

as a member of an organization and to remain a member

while he complies with the rules. Among the persons to

whcm the right is given are those $ersons employed in

the relevant industry as defined in the section and who are not excluded by ss.(2) or (4). The right is given unless the person is of general bad character. The

right having been given, the section then provides in ss.(5)

that when a question or dispute arises as to entitlement, the

person concerned, a person who is or desires to become the

employer of that person or the organization may apply to

the Court for a declaration as to $he entitlement. Sub-section

(5A) gives the Court jurisdiction to hear and determine the

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application for a declaration. Notwithstanding anything

in the rules of the organization, the Court is then empowered

'to make such order to give effect to its determination as

it thinks fit. Subsection (6) then proceeds to illustrate the type of order which may be made as including one

requiring the organization to treat a person as being

a member of'the organization and upon the making of such

an order or as otherwise specified in the order, the

person specified becomes by force of the Act a member

of the organization. Subsection (7) gives a statutory

right to be heard to the person concerned or the organizatlon

depending upon who applies under the section.

The object of the section seems clearly to to give legal rights to a person unless excluded be

by the

section and to provide a machinery whereby such rights may be effectuated. We regard ths primary purpose of the

section to confer the right to join an organization and

to confer it upon all affected unless specifically excluded.

It is to be noted that the section provides for several steps. In ss.(l) a legal right is conferred

upon a person in terms which are not qualified by reference

to the objects of the Act such as the preservation f goodwill

in industry. The section next provides for an application

for a declaration as to the right and a hearing and determination

of that application. All parties agreed that the Court would

not be entitled to refuse to make a declaration as asked if

the facts as to qualification and character are established.

'Ihe exercise of the power there given depends not upon the

discretion of the Court but upon the proof of the particular

facts. Finance Facilities Pty. Ltd. v. Federal Commissioner

of Taxation 127 C.L.R.	106 at 134. No permissive phrase is
used up to here.

We agree with the views of the parties.

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The next step under the section is for the

Court to make such orders to give effect to its deter-

mination of entitlement as it thinks fit.

It would seem to us an odd piece of legislation

if the Court was required by the section to proceed with

a hearing and determine whether a statutory entitlement

existed in a particular case but. after determining that

auch a right existed and making a declaration accordingly,

the Court might decline to make an order giving effect

to the entitlement and declaration having regard to the

objects of the Act and like matters. If it were intended

that these questions of general discretion were to be

taken into account then one would expect that i would

be provided that they might be taken into account at

the point of deciding whether there is an entitlement

or whether any delaration as to the existence of an

entitlement should be made rather than after the declaration.

It is clear that there will arise under the section different forms of appropriate orders. If the

Court determines that in the circumstances of a case

there is an entitlement and does o on the application

of an organization or an employer, an order in that form

may well be sufficient and it may not be appropriate to

make an crder, for example, in the terms of ss.(6) which

might have the effect of forcing a person against his

will to become a member of an organization.

There is clear scope for full effect to be

given to the words "make such order to give effect to

its determination as it thinks fit" since the Court

will choose between types of orders open to it.

In other cases it may be necessary to make an

order in the terms set out in ss.(6) or an order requiring

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certain officers or bodies within the organization to

take particular steps for admission	t or restoration
of membership.

It would be odd that if no order were made other

than a declaration referred to in ss.(5) or a dismissal

of the application the Court could not exercise a general

discretion, but that if an order giving effect to its

determination of entitlement were sought	it could
exercise such a discretion.

It is, we think, of further significanceithat

I

the section was amended in 1958 to make it clear that it

was a grant of judicial power and given to a Court.

1 Ward v. Williama 92 C.L.R. 496 at 507. After the amendment

!	to the Act consequent upon the Boilermakers Case in 1956
the question of the validity of the section was raised before the Comnonwealth Industrial Court and that Court held that the section in its then form did not confer
-I	judicial power on the Court. Australian Iron & Steel Ltd.
v. Australasian Coal and Shale Employees 1 F.L.R. 55.
Thereafter the section substantially its present form and the provisions which was amended in 1958 to
had led the Court to that view were amended to make plain
that the power was a judicial power.
It is interesting to note that prior to the amendment of s.144 in 1958 the then sub-section (5) read :

(5) The Court has jurisdiction to hear and

.determine a question or dispute arising

under this section and may, notwithstandlng

anything contained in the rules of the

organization concerned, make such order

as it thinks fit in relation to the

guestion or diSDUte.

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whereas under the present sub-section (5A) :

(5A) ..... the Court has jurisdiction to hear ' and determine an application ..... and may,

.

notwithstanding anything contained In the

rules of the organization	concerned,
such order to give effect	to its determinatlon

as it thinks fit.

This we think gives further emphasis to the view

expressed that the order which may now be made is limited

to an order to give effect to the Court's determination.

In these circumstances we hold that it is the

Court's duty to give effect to any determination it may

make and the orders which it is given power to make must

be made for this purpose. It is not appropriate to

i	decline to make an order by reason of, for example, the
objects of the Act.
1
On 21 November 1977 counsel for the applicants sought an order that the organization supply particulars
of the facts relied .on by it to establish that the
applicants are persons of general bed character. After argument during which Mr Einfeld contended that the
1
organization was not a party but was appearing to exercise
what he termed its statutory right under s.l44(7)(b)
and that it was "neither supporting nor opposing" the
applications , the Court ordered that :-

"the organization furnish to the solicitors

for the applicants particulars of the facts

and circumstances which, in the view of the

organization, are relevant to the questlon

of whether each applicant is a person of	~
general bad character."

All applications were then adjourned to 27 February 1978.

Shortly after 21 November 1977 the Court was

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asked to sit earlier than 27 February 1978 to consider

argument regarding the production of certain documents

by the organization. The Court set the matters down

I for the hearing of this argument on 13 February 1978.

G s u a n t to the order made on 21 November 1977

the organization filed and served documents dated 28 December

1977 headed "Particulars of the acts matters circumstances

and things relevant to the question of whether the applicant

is a person of general bad character" in matters No. 10, 11

and 18 of 1977. Such particulars in the application of

Mr Owens No. 10 of 1977 read :

"(a) The Applicant whilst a member of the Executive of

the New South Wales.Branch of the Federation

authorized or acquiesced in the payment for

purposes outside the objects of the Federation

of moneys amounting to $361.46 from Branch funds

to one Beverley Hogan.

(b) The Applicant whilst a member of the Executive

of the New South Wales Branch of the Federation

during 1973 authorized or acquiesced In the sale at an undervalue to one R. Prendergast

of a "Mazda" motor car registered no. GAY.326

and to one B. Kerr of a "Mazda" motor car

registered no. ACG.983, both vehicles being

the property of the said Branch.

(c) During 1973 the Applicant whilst a member of

the Executive of the New South Wales Branch of

the Federation permitted or acquiesced in the

Collection of moneys for a "Permanency Campaign

Fund" and a "Green Ban Lockout Fund" each of

which was intended to be under the control of

the Branch by a system under which no record

was kept of the issue of receipt books and no

receipt books were returned to the Branch

thereby preventing verification by the Branch

auditors of the income of the said funds. The

.administration of the said funds resulted in a

net cash shortage of $26.00.

(d) The Applicant whilst a member of the Executive

of the New South Wales Branch of the Federation

authorized or acquieseed in the making contrary

to the Rules of the Federation, out of Branch

funds of loans between the 1st April, 1973 and

the 31st March, 1974 totalling $2210.00.

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(e) Between February, 1969 and February, 1972 whilst employed as an organiser of the New South Wales Branch of the Federation, the

’ Applicant was issued with receipt books in

which to record payments of contributions made

to him by members, but failed to return such

receipt books after use to the Branch.

(f) The Applicant, whilst a member of the Executive

of the New South Wales Branch authorized or

acquiesced in the removal of funds totalllng

not less than $67.000.00 in 1973 and not less

than $113,800.00 in 1974 from a bank account

in the name of the Branch and the deposit of

such funds contrary to the rules of the

Federation in accounts in the names of persons other than the Federation with banks not designated by the rules.

(g) The Applicant, whilst a member of the Executive

I	of the New South Wales Branch authorized or
acquiesced in the removal from a bank account
in the name of the Branch of funds totalling not
lese than $93,000 in October, 1974 wlthout the removal of such funds being authorized by any
resolution of the Branch Executive or general
meeting of the Branch.

(h) On the following dates the Applicant was convicted

of the following offences :

11/1/60 - Behaving in an offensive manner.

( O n 16/7/62, 8/10/62 and 27/5/65 the Claimant

failed to anmver respectively a charge of using

indecent language, a charge of behaving in an

indecent manner and a further charge of behaving

in an indecent manner on each occasion his

recognizance was forfeited).

22/11/65 - Causing obstruction to vehicle

9/5/69 - Causing obstruction

8/4/74	- Failing to comply with direction
22/5/74	- Trespassing on premises.

(i)In October, 1972 the Applicant told the chairman of the Sydney Cove Redevelopent Authority, Colonel Magee, that he (the Applicant) was not

concerned with the law and that as far as he

. was concerned, he was going to be on tk buildlng

scene for a long while and was going to make things pretty hard for the chairman and for the building industry generally.

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(j) In or about May 1974 the Applicant incited builders labourers and other persons to trespass on and interfere with private property at Wyong and authorized or acquiesced in the donation of

$1,000 and advances of other moneys from the

, funds of the New South Wales Branch of the

Federation to facilitate and encourage such trespass and interference with property.

(k)	On.the 18th day of October, 1973 the Applicant
as part of a mob of about 500 persons attempted
to prevent the performance of work at a site

in Playfair Street, Sydney and encouraged and

participated or associated with persons who

then wilfully damaged a motor vehicle in the

vicinity of the said site.

(1 ) On the 24th day of October, 1973, the Applicant

in company with other persons was unlawfully

inside a site at Playfair Street, Sydney which

had been barricaded with corrugated iron and had

to be carried bodily from the site	by Police
Officers.

(m)	On the 3rd day of January, 1974 the Applicant
addressed a crowd in Victoria Street, Kings Crcss
through a megaphone to the effect that one Theeman
was a capitalist dog or pig, that the said Theeman
hired thugs to throw tenants out of their homes
and that the said Theeman paid the police to stand over the Applicant and persons in the crowd.

(n) On the 5th day of April 1974 the Applicant attended,

uninvited a charity function at the home of the

said Theeman at 3 Rose Bay Avenue, Bellevue Hill

and there associated or participated with other

persons also uninvited who stuffed p arn hlets into

lavatory pans, let off stink bombs in the grounds

of the home and slashed the tyres of motor vehicles

I	owned by guests attendinq the said function. Police
Officers were requiredbrcibly to remove the Applican It I,
from the said premises.

The particulars in regard to Mr Mundey and Mr Pringle

covered substantially the same matters as those set out above.

. No particulars were furnished in the applications

I by Mr Duggan or Mr David.

On 13 February 1970 the Court having heard argument

concerning the production by the organization of certain

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I documents including minutes of the Federal and Victorian

Branch governing bodies, ordered that particular documents

includipg some of such minutes be produced to the Court.

Mr Einfeld then informed the Court that he had been instructed

to seek prerogative writs in the High Court. Mr Einfeld

also asked for a stay of the order made concerning the

production of the documents mentioned pending a ruling

by the High Court. All matters were adjourned to be

mentioned before Sweeney J. on Monday 20 February 1978

when His Honour was informed that an order nisi for

prerogative writs was sought by the organization before

Gibbe J. in the High Court on 17 February and that'an

order nisi had rnt been granted but the matter had'been

referred to the Full Court	of the High Court	at its sittirrgs
commencing 14 March.

The matters came on for hearing before the Court

again on 27 February 1977. Mr Einfeld sought orders staying

the order for production of documents and an adjournment of

all matters pending the outcome of the application for an

order nisi for prerogative writs before the Full Court of

the High Court. The decision of the Court in respect of

euch application was :-

"In these matters, application has been made to

the High Court of Australia for writs of mandamus,

prohibition and certiori. The applications came

before Gibbm, J. on 17 February 1978 and were then

referred by him to the fuli court of the High Court

at its sittings commencing in Sydney on 14 March

1978. On the hearing of the application, his

Bonour was asked to grant a stay of proceedings.

We have read the applications and the transcript

before H i s Honour.

We are now asked to adjourn these proceedings

and aleo to grant a stay of proceedings in respect

to the order made by us on 13 February last. So

far as the order is concerned the court has indicated

it will grant a stay and the court will not fix a

time for compliance with the order then made until

further order.

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The proceedings in which the order was

made took place at the request of both parties.

We were asked to rule whether there should be

compliance with a notice to produce. We took

the view we should treat it as being in substance

'an application for the dlscharge of a summons to

produce documents on the grounds of the width

of the requirement and that the documents were

of no possible relevance. We made an order as

to acme documents only, taking the view which

we then expressed that our order dealt with

production only and that questions of ultimate

relevance, including access to the documents,

would be dealt with as they arose.

The second part of the High Court proceedings

relate to the question whether this court has a

general discretion, if the requirements of the

section are met, to refuse to make an order

giving effect to a determination or to impOse

conditions in any such order.

The applications are by five persons who

wieh to seek employment in the building industry

ae builders labourers. There is evidence that

without union membership it is virtually impossiblz

to obtain such employment. It is then a matter

where hardship may well be caused to some or other

of the applicants by any delays in the hearing. The

view of the court is that so far as is consistent

with the High Court being seized with certain aspects

of the matter, so far as can be done without injustice

to the respondent organization, it should proceed

with the hearing. We are fortified in this course

by the fact that, to use the words of Mr Einfeld,

senior counsel for the organization, the organization

"is neither supporting or opposing" the application

but "is placing before the court as part of our

statutory right to be heard, material which the

court will coneider to be relevant to the determination.'

There are five applicants. The cross examination

of one is proceeding and has now extended over two

days. There is further cross examination of him

proposed.

There are issues in all five applications

whether the applicant is qualified and in at

least the majority of cases whether he is of

general bad character. This latter aspect

may to some degree overlap with material whlch

Mr Einfeld wished to put to us if we had held

that there was a general.discretion. However,

if during the evidence, including cross-examination

of other witnesses any issues of which the High

Court is seized arises, we would postpone

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that issue until the High Court had dealt with

it. Acting in this manner will, we think, make a material difference to the time involved in

determining these issues. This court in November

last set aside a fortnight commencing today for

the hearing of the applications. The court is

in the position that after this period it may not

be able to resume the hearing until May by reason

of its cmitments. We think we should take the

atepe in order to reduce as far as possible the

time which will be involved before a determination

is made.'

We have limited ouraelves to this short statement

to enable the respondent o raise the matter again

before the High Court without ioss of time if it so

desires. The matters debated before us here are in

the transcript of today's proceeding which we under-

atand will be available this afternoon. We propose

now to adjourn until Wednesday next and ask counsel

to advise us during tomorrow afternoon at the latest

of the course of proceedings before the High Court. "

On 28 February 1978 Gibbs J. refused an order staying the present proceedings. When the hearing of the

applications resumed on 1 March 1978 the Court was informed

by Mr Einfeld that the organization did not intend to proceed

further with the High Court proceedings and that an order

giving leave to withdraw such proceedings would be sought.

"be Court was subsequently informed by counsel that such

order had been made.

At the conclusion of the cross-examination f

Mr W e n s Mr Einfeld stated that the organization would not

be relying on any fact or circumstance to establish general

bad character of the applicants hens, Mundey or Pringle

ot)ier thaa particulars (c), (f) and (g) of the particulars

filed and dated 28 December 1977 which are set out earlier

in these reasons for judgment. It will be recalled that

no particulars in this regard had been furnished in the case

of Mr Duggan or Mr David.

h e other four applicants also gave oral evidence

and with the exception	f Mr Duggan were cross-examined	by
X r Einfeld.

It was conceded that prior to the filing of the

applications herein each applicant had applied to become

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members of the organization in accordance with its rules

and had offered to pay the amount properly payable in

reepect of membership and that none of the applications

was granted by the organization.

Cgnsequently the issues requiring determination

in each of the present applications are (i) is the applicant

employed in connexion with an industry or engaged in an

industrial pursuit covered by the rules of the organization

and (ii) if so, is the applicant a person of general bad

character within the meaning of s.144(1).

i;

The following history of each of the appiicants

is accepted by the Court.

At the time of the cancellation of the registration

of the former organization in June 1974 the applicant Joseph

Owens was the Secretary of its New South Wales Branch. He

had held that office since November 1973. In addition he

was a New South Wales delegate to Federal Council and a

member of the Federal Management Committee of the former

organization. He held such offices until his purported

suspension as a member of the association in November 1974.

Prior to assuming the office of tine Secretary of the said

Branch he had been a full-time State Organiser for some

2 years. Before assuming any office or position in the

Branch he had worked in the building industry as a

builders labourer for some 10 years. He is and has been

€or many years the holder of certificates of competency

as a rigger and scaffolder under the Scaffolding and Lifts Act ' (N.S.W.) . Since his purported expulsion from

the association in March/April 1975 he has been unable

to secure employment as a builders labourer.

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John Bernard Mundev

The applicant John Bernard Mundey in June 1974 was

employed as a builders labourer. He had been for some 6 years up until November 1973 the Secretary of its New South Wales

Branch. Prior to assuming that office he had been a full-

time State Organiser for some y ars. Prior thereto he had

worked as a builders labourer in Sydney for many years.

Between November Secretary of the New South Wales Branch 1973 when he stood down as

of the former

organization and February 1974 he was on long service leave.

In February 1974 he conmenced employment with Civil: and

Civic Pty. Limited as a builders labourer on the St. Vincmt's

Aospital site. He remained in this employment until his

purported suspension from membership of the association in

October 1974. During this period of employment with Civil

and Civic he worked as a builders labourer for periods

approximating half the full period. During the periods making up the other half he was granted leave without pay by his employer whilst he travelled through Australia

. giving or attending discussions on ecology, the environment

and what he described as the Trade Unions' role in society

generally. He aleo during this period campaigned

suspeneion from membership in October 1974 he commenced

working as a temporary Organiser of the New South Wales

as a

Senate candidate in the 1974 Federal Elections. After his expulsion in March/April 1975. Since such expulsion he

has been unable to secure employment as	a builders labourer.
He is presently aged 45 years.
Douglas Duqaan

The applicant Douglas Duggan in June 1974 held

the position of Branch Guardian which position he held until

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his purported suspension as a member of the association

in or about November 1974. He has worked as a builders

labourer for some twenty years and is presently employed

as such'by the New South Wales Department of Works even

though he is not the holder of a membership ticket within

the organization. He is presently aged 46 years.

Abraham Silae David

The applicant Abraham Silas David commenced working as a builders labourer in about 1973. At no time

prior to June 1974 was he the holder of any office or

position in the Branch of the former organization. He was

appointed a temporary Organiser in the New South Wales

Branch of the association in or about September 1974

and held that position at the time of his purported

expulsion from membership of the lssociation in or about

March/April 1975. Since his expulsion he has been unable

to secure employment as a builders labourer except for

one day at Garden Island.	He is presently aged	24 years.
Robert A-thur Pringle

The applicant Robert Arthur Pringle was in June 1974

the President of the New South Wales Branch. He was elected

to that office in 1968. The office of President of the Branch

became a full-time office in 1970 and remained so until

the time of Mr Pringle's purported expulsion from the

association in March/April 1975. Prior to the office of

President of the Branch becoming a full-time office in 1973

Mr Pringle worked as a builders labourer on numerous sltes

in and around Sydney since 1961. He is and has been since

1962 the Bolder of a certificate of competency as scaffolder

under the Scaffolding and Lifts Act (N.S.W.). He is

presently aged 36 years and is employed as a labourer by

the New South Wales Public Transport Commission. The

evidence is that if he was a member of the organization

. ./27..

and secured employment as a rigger-scaffolder he would

be able to earn at least	$35 per week more than his
present earnings.

We are of opinion that a person is "qualified"

to be an employee in a particular industry or to engage

in an induetrial pursuit within the meaning of s.144(3)

if he has the necessary skills or qualifications

required to work in that industry or section of an

industry. In the building industry builders labourers carry out various duties ranging from unskilled labour

requiring physical capacity only to semi-skilled labour

generally acquired by experience. Physical capacity in

many casea would be the only consideration in determining

whether a person is qualified ,to engage in this industry

as a builders labourer. None of the applicants suffer

from any physical handicap.

The organization further argued that the Court should not be satisfied that the applicant Mundey deslred to become an employee as a builders labourer. He was

cross-examined at length in this regard.

We are satisfied that on the evidence all applicants

are qualified to be employed as builders labourers and

desire to become such employees. In the case of Mr Duggan

he in fact i s and has been for some time working	as a
builders labourer.

This then leaves for consideration the issue of

general bad character.

W Einfeld submitted that the onus lies upon

each applicant to establish that he is not a person of

general bad character but did not support that submission

by the citation of any authority. Mr Enderby submitted

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that the onus of establishing that each applicant is

a person of general bad character lies upon the organization.

He cited a number of cases in support of his argument and

referred the Court to the following passage from the Full

High Court in Vines	v. Djordjevitch (1955)	91 C.L.R. 512
at pp.519-520 :-

"In the end, of course, it is a matter of the

intention that ought, in the case of a particular

enactment, to be ascribed to the legislature and

therefore the manner in which the legislature

hae expressed its will must remain of importance.

But whether the form is that of a pr viso or of

an exception, the intrinsic character of the

provision that the proviso makes and its real

effect cannot be put out of consideratlon in

determining where the burden of proof lies. .....

In the same way where conditions of general

application giving rise to a right are laid

down, additional facts of a special nature

may be made a ground for defeatlng or excluding

the right. For such a purpose the use of a

proviso is natural. But in whatever form the

enactment is cast, if it expresses an exculpatlon,

justification, excuse, ground of defeasance or

exclusion which assumes the existence of the

general or primary grounds from which the

liability or right arises but denies the right

or liability in a particular case by reason of

additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on

the party seeking to rely upon the additional

or special matter : see Morgan v. Babcock	&
Wilcox Ltd. (1929) 43 C.L.R. 163: Pye v.

Netropolitan Coal Co. Ltd. (1934) 50 C.L.R. 614:

(1936) 55 C.L.R.	138: Darling Island Stevedoring
& Lighterage Co.	Ltd. v. Jacobsen (1945) 70 C.L.R.

635: Barritt v. Baker (1948) V.L.R. 491 at p.495:

Dowling v. Bowie (1952) 86 C.L.R. 136."

Applying the principle tl-ere stated to s.144(1)

of the Act, in our opinion the intention of he legislature

was to prescribe conditions of general application giving

rise to a right to an organization but to deny the right in a person to be admitted as a member of

a part cular case

by reason of an additional or special fact, namely,

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where the person "is of general bad character". In our

view the legislature intended that the burden of proving

the additional or special fact should lie upon the

organization or other person submitting to the Court

that the application ought not o be granted because

the person concerned is of general bad character.

The view which our construction of the section. However our decision we have expressed is based upon

ie supported by two other cases to which Mr Enderby also

referred us. In Australian Iron a d Steel Ltd. v. Australasian

Coal and Shale hplovees Federation (1957) 1 F.L.R. 54, the

then Cormnonwealth Industrial Court (Spicer C.J.,	Dunphy and
Morgan JJ.) said (at p.60) :-

"It should be mentioned that under s.144 an

organization is not required to admit to

membership a person who 'is of general bad

character' or who falls within one of the

classes mentioned in par. (4) of s.144.

These are however exceptions to the general

right given by the section to a person seeking

union membership. To prc-ve them or any of

them we think that the onus rests upon the

federation, and no attempt was made by it

to discharge that onus."

In Cahill v. The Sheet Metal Workinq etc. Union

(1956) 84 C.A.R. 22, the Commonwealth Court of Conciliation

and Arbitration (Foster J.) said (at p.29) :-

"Under s.83A the burden of proving the general

bad character of the applicant for membership

is on the union relying upon that fact for

rejecting the application ..... 'l

X t is true that in Thornton v. The Federated Iron

Workers Association of Australia, N.S.W. Division (1955) 54

A.R. (N.S.W.) 1122 the Industrial Commission decided that the onus lay on the applicant to prove that he is a person

not of general bad character but we accept Mr Enderby's

suhnissjon that @at decision is distinguishable by

reaaon of the different wording of the section in the

Uew South Wales Act.

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In view of the opinion which we have expressed,

.it is unnecessary for us to express any view as to the

other arguments advanced by Mr Enderby referring to the

Companiee Act, the law of defamation and his contention

that there is a presumption that a person is not of general

bad character. Nor is it necessary for us to express any

view on his suhniseion that the onus carried by the

organization is greater than the 3nus of establishing

the facte on the balance of probabilities. This is

because, in our view, assuming without deciding that

the onus on the organization is merely to establish on the balance of probabilities that each applicant is of general

bad character, we are not satisfied that it has discharged

that onus as to any of the applicants. It necessarily

follows that it	has not discharged any higher standard
of proof.

Although the organization had apparently

originally claimed that all applicants were persons of

general bad character no particulars of the facts and

circumstances in support of such allegation were furnished pursuant to the Court's order of 21 November 1977 in respect

of Mr Duggan and Mr David. No question in cross-examination

1 of any witness was put by counsel representing the organization directed to this issue in regard to these two applicants.

We turn then to the issue whether the appllcants

or any of them is a person of general bad character.

Nothing was put either by way of particulars 01 in cross-examination suggesting that either Mr Duggan or

Mr David were of general bad character and in the light

of what we have held as to onus of proof, this would be

sufficient to dispose of the issue. Orders were made in

:l favour of Messrs Duggan and David and the Court was

I subsequently informed that each had been admitted to

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the organization.

We turn then to the question of the remaining three applicants. The allegations concerning their

character fall under three groups.

First an allegation that each was in some way concerned with the keeping of funds controlled by

committees consisting of builders labourers but not

the organization itself. They were a green ban lock out

fund and a permanency campaign fund. In each of these

cases fun& were collected, paid into the Branch bank

account and ultimately distributed. It was alleged

that a failure to ensure that a register of receipt books

was kept showed that each of the three applicants being

an officer of the Branch was o f general bad character.

We heard argument as to the phrase "general bad

character" and the conflicting views that "character" as

there used refers to reputation or to disposition. We

do not find it necessary to decids this but incline to

the view that the word may in this context refer to both

disposition and reputation. Whether this is so or not it

ia quite impossible to hold that a failure to ensure that

a register of receipt books was kept either in itself or

with the other matter before	us can show a man to be of
general bad character.

The next allegation relates to transfers of the

funds of the branch. In October and December, 1973 cash

eaDunts totalling $67,000 were transferred from the branch

accounts to accounts opened in the names of various individuals.

Subsequently the moneys were transferred back to the branch

accounts. The branch suffered no loss whatever.

At the time of the first transfer of $47,000

proceedings for the deregistration of the organization had been

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canuenced. Mr Owens' evidence i s tha t he then had a conversation with Mr N. Gallagher, General Secretary

. of the Organisation, and other federal officers and

tha t Gallagher told him among other things to remove

the funds of the branch from the accounts i n which they

were. Owene did not suggest that thls step was taken

because Gallagher directed it or indeed that the funds

would not have been removed i n any event.

A second amount of $20,000 was also so transferred

in December, 1973 for the same reasons.

It is qui te c lear that the t ransfers were i n

breach o€ the ru l e s but on the other hand it is abundantly

clear tha t it was not done with any intention of s teal ing

. or depriving the Organization'of the moneys.

The second amount of $18.800 was transferred

.	from the bank accounts of the organization	i n February, 1974
and placed back eane time l a t e r .

A fur ther amount of $95,000 was withdrawn on

9, 10 and 11 October 1974 and again repaid later. As t o

these amounts, the evidence is that the branch a t t he times feared that it would be taken over by the federal committsa of management and off icers . A special meeting of m e m b e r s

of the Branch attended bysome1,500 members had been held

on 30 S e p t b r , 1974 and t h i s meeting carr ied a resolution

that the off icers take s teps to protect the property and

fun& of the Branch. This resolution was re l ied on i n

the resloval i n October 1974. What was done was i n accordance

with the spirit of this resolution. I t was c lear ly a breach

of the rules but wae not done clandestinely and was not done

with any intention of thef t or dishonest motive. The moneys

were repaid to the organization without the organization

muffering any lose. The following extracts from what was

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said by counsel for the organization make this abundantly

clear. In cross-examination of h e n s he said:

"Allow me to say immediately that I am making

no allegation in respect of that $93,000 that

the money did not finish up back in the

organisation's bank account at a l ter time ---"

"They came back into the bank account of the

branch in all, I think, except a small amount,

by November, the following month"

Later in cross-examination the following questions

and answers appear:

"Is this what you tell their Honours, that so far as all moneys taken out by way of

cash payments or cash cheques were concerned,

they were all paid back in due course? --- Yes,

probably with the exception of whatever expenses

were incurred in the moving.

Yes, and if I may say so, they are either explicable on the grounds of being related t9 possible or actual deregistration on the one

hand or in relation to possible or actual

federal intervention on the other?---Yes."

Owene himself said in an answer which appears

to have beenamepted in cross-examination: "Every bit

of money which was withdrawn for the various purposes

I was always paid back on every occasion".

In his final address co7msel €or the organizaticn

said:

"What ve would suhnit is that although t is

money was paid back, and if I may say so,

the payment back as it is demonstrative of

the error in payment out i.n the first place

because actually nothing was achieved in

fact, it all had to go back anyway."

We are dealing here with a question of character affecting a man's right to belong to a union. It is not as

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l	conduct can be said to be such that a person is of such
a question of the conduct of an officer but whether this
general bad character that he should not be admitted to
a union. We think it impossible so to hold.
l

The remaining matter which was put to us arose

in this manner.

Shortly after this Court had refused to adjourn

the. proceedings pending the High Court proceedings and GibSs

J. had refused to make an order staying the proceedings

before this Court counsel for the organization on ihe

matter re-ccnanencing before this Court read to the court

a resolution of the organization in which it was stated :hst

counsel should be instructed "to place before the Court

all matters which in their opinion assist in establishing

that the applicants ought not to be admitted to membership

including matter which evidences that they are of general

bad character". He then read a further statement setting

' out that the organization's attitude was that the applicants

were primarily responsible for the deregistration of the

Organization and its near disinteqration: that the conduct

had cost the organization an enormous sum of money in

unauthorised and unwarranted payment out of union funds

and in imnense legal costs; they had denied to the

organisation and its members the benefits of federal

awards and that they had alienated governments, employers,

X the public and largenumbers of union members.

Objection was taken to these allegations as being unrelated to the particulars and, upon being asked if It was

proposed to call evidence in respect of the allegations,

counsel said that it was porposed to establish these matters

by reference to the decision of the Australian Industrlal

Court on the deregistration proceedings. When a question

waa asked as to the admissibility of the flndlngs in that

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decision for this purpose he said that certaln of these

matters had already been referred to in cross-examination

and he proposed to rely on the judgment of the Australian

Industrial Court in addition.

It was argued by Mr Einfeld for the Organization

that the judgment of the Australian Industrial Court in

Master Builders' Association of New South Wales v. Australian

Building Construction Elnplovees and Builders' Labourers'

Federation (1974) 23 F.L.R. 356 "was a judgment in rem ....

concerning the status of this organization (i.e. the Federation)

under the Act and, therefore, the judgment and the basls upon

which the judgment was reached, the reasons that were given

there. are as binding on us and everyone else	now as they
were then".

Mr Einfeld sought to rely upon a large number of passages (covering in all more than 30 pages of the

printed report) from the three separate sets of reasons for

judgment delivered by Joske, Smithers and Franki JJ.

respectively. He relied upon those passages as findings

of fact by the Court even where the evidence on a partlcuI3r

matter was only referred to by one member of the Court -

unless other Judges had dissented from that view.

He suhnitted that in dealing with under 8.144 this Court is "bound to accept what the the applicaticns

(Australian Industrial) Court found as matters of fact ...

bound to accept those facts did exist? and that "not only seeking to ... go behind those findings".

are the parties (to the proceedinqs in the Australlan

Mr Einfeld cited no cases in support of thls

argument but relied upon the following text book references:

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Balebury's Laws of England (4th edition) volume 16,

paragraphs 1537 and 1538, Cross on Evidence (Australian

Edition) 1970, pp.340-342, and Phipson on Evidence (12th edition),

chapter.25, para. 1319. We think that it is sufficient to

say that in our opinion the passages relied upon do n t

support the argument at all.

I

The passages upon which Mr Einfeld sought to

rely included lengthy quotations from the evidence given

to the Auatralian Industrial Court in proceedings in

which the present applicants were not parties and in

which the organization was unrepresented for the greater

part of the hearing.	I
i

In the circumstances of this case this proposition

was an extraordinary one. The facts are that the organization

withdrew from the deregistration proceedings at an early stage.

Owens' uncontradicted evidence was that he was not shown the

affidavits or other material on which the findings were based.

Because the organization withdrew from the case he had no

opportunity of being heard. The organization created this position and it is, we feel, alarming that it should now

seek to take advantage of it and argue that the matters

found againat the applicants in the reasons for judgment

are not only proved but proved and incapable of refutation.

The evidence quoted by Mr Einfeld related to many

acts of alleged conduct by various officers of the organization

including Messrs. Wens, Mundey and Pringle. The reasons

for judgment referred to evidence of violent conduct, damage

to property, threats of violence both to persons and

property, offensiveconduct and the use of grossly offensive

language tg various representatives of employers.

Evidence supporting such allegations would have

been relevant to the question of whether any of the applicants

are persons of general bad character. On 28th December 1977

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the organization, at the direction of the Court, supplied

~ G I the applicants particulars of matters alleged to b

relevant to the question of general bad character, including

a number of allegations which were either the same as or

similar to the alleged conduct referred to in the reasons

for judgment.of the members of the Australian Industrial

Court. However no evidence was called by the organization

in support of the allegations in its Wrticulars. Further, each of those particulars which alleged violent conduct, wilful damage to property or threacs of violence was

withdrawn by Mr Einfeld who stated that he would not rely

on any of the matters	so withdrawn as constituting general
bad character.

The upshot of all this is that no material has

been placed before us on which it could possibly e held

that one of the applicants is of general bad character.

We feel w e should make clear that the attitude

of the organization has fluctuated markedly In this case.

When the matters first came on it appeared that they would

be strongly resisted and leave to administer lnterrogatorles and an order for particulars were sought and obtained. The

hearing proper commenced on 8 November, 1977 and there was

a spirited and carefully prepared cross-examination of the

first of the applicants. During the course of this, argument

took place as to the existence of a general discretion In

which the organization strongly maintained that there was

such a discretion and that on material it would adduce, the

discretion should be exercised against the applicants.

On 21 November, 1977 during the hearing, counsel

for the applicants sought particulars and in the course	of
argument on this the following took place:

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"KEELY J. IB it (the organization) in support

of the application that they should be

granted membership, or is it against

the application, or is it something

else?

ME EIIWELD: It is neither supporting nor opposing.

KEELY J: You are not opposing applications by

b Wens and others under section 144?

MR EINFELD: I do not think the matter arises

as to whether we are opposing or not. I do

not think that it is a reasonable thing for

US to answer the question, with respect, as

to whether we are opposlng it, because we

are not in the position of opposing it.

SYYEEP-EY J: I thought you said to his Honour that

you were not in	a position of supporting or
opposing.

MR EINFELD: I said that we are not supporting

the application and 'we are placing before

the court as part of our statutory right to

be heard, material which the court will

consider to be relevant to the determination

it has to make.

W A T T J: In other words, you want to adduce

evidence?

MR EINFELD: Yes

EVA" J: And not merely to cross-examine?

I

MR EINFELD: No. "

d I As has been set out earlier, High Court proceedl?gs

were carmenced by the organization in February, 1978 and on

27 February, 1978 while seeking a stay of proceedings untii

the High Court matter had been disposed of, counsel for

the organization was asked the attitude of his cllent at

that time. He said that the Organization was nelther

supporting nor opposing the application and he said

further in answer to a question that it was clear that

unless the Court made an order the applicants would not

. be admitted to the organisation.

!

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On 28 February, 1978 when seeking a stay of

proceedings before Gibbs J. in the High Court, counsel

2 for the organization appears to have anticipated a hearing

of some' weeks.

Proceedings thereafter came to a very speedy end.

There was virtually no cross-examination on these aspects

t of the applicants Mundey and Pringle except to ask if they

had heard the evidence of Wens on the transfer of funds and

<whether they agreed with it. Most of the particulars which

had been given had been abandoned and three only remained particulars (c), (f) and (g) which are as follows -

"(c) During 1973 the Applicant whilst a member of

the Executive of the New South Wales Branch Q €

the Federation permitted or acquiesced in the

collection of moneys for a "Permanency Campaign

Fund" and a "Green Ban Lockout Fund" each of

which was intended to be under the control of

the Branch by a system under which no record

was kept of the issue of receipt books and no

receipt books were returned to the Branch

thereby preventing verification by the Branch

auditors of the income of the said funds. The

aainistration of the said funds resulted In a

net cash shortage of $26.00.

(f) The Applicant, whilst a member of the Executive

of the New South Wales Branch authorized or

acquiesced in the remval of funds totalling

not less than $67,-in 1973 and not less

than $113,000.00 in 1974 from a bank account

in the name of the Branch and the deposit of

such funds contrary to the rules of the other than the Federation with banks not designated by the rules.

(g) The Applicant, whilst a member of the Executive

of the New South Wales Branch authorized or

acquiesced in the removal from a bank account

. in the name of the Branch of funds totalling not

leas than $93,000 in October, 1974 without the

removal of such funds being authorized by any

resolution of the Branch Executive or general

meeting of the Branch.

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Thia was indeed something of a retreat and a

completely unexplained one.

Hatters were alleged in the particulars going,

for example, to allegations of a campaign for the destruction

of property and the use of violence during industrial disputes.

Had these matters been established the Court would have had

a very different case to consider but the	organization has
chosen not to even attempt their proof.

In these circumstances the conduct of the case

leaves us w i t h no alternative but	to make the declaratlons
sought.