Price, J. v Hodgson, I. - [1992] FCA 329

Re: JOHN PRICE
And: I. HODGSON; K. McGRATH; R. HEFFERNAN; B. McINTOSH; P. SCHULZ; J. McLEAN;
R. WEARING; C. KEILY; S. HUTCHINS; J. ALLAN; A. McPAUL; L. WARD; F. GARRETT;
K. BACON; B. HANSCH; S. McGEE; J. SANDERS; J. O'CONNOR; R.W. DUNN and J.L.
McGIVERON
No. V I27 of 1992
FED No. 329
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - rules - performance and observance - casual vacancy in office - power of branch committee of management to fill - whether exercisable during holding over period after expiration of term of office.

Industrial Law - registered organisation - rules - performance and observance - interim order - considerations appropriate for grant - urgency - effectively final relief sought.

Industrial Relations Act 1988 s. 209, 221, 255.

Mellor v. Horn (1988) 25 IR 157

Egan v. Maher (No. 2) (1978) 35 FLR 252

Johnson v. Beitseen (Federal Court of Australia, Gray J., 21st March 1989, unreported)

HEARING

MELBOURNE

#DATE 15:5:1992

Counsel for the applicant: H. Borenstein.

Solicitor for the applicant: Harry Nowicki and Co.

Counsel for the respondents
other than the 5th, 8th, 16th
and 17th-named respondents: S. Howells.

Solicitors for the respondents
other than the 5th, 8th, 16th
and 17th-named respondents: Ryan Carlisle Thomas.

JUDGE1

The Transport Workers' Union of Australia ("the Union") is an organisation registered under the Industrial Relations Act 1988 ("the Act"). The applicant is a member of the Union. The respondents are alleged to constitute the federal council of the Union, although counsel who appeared for most of the respondents contended that there are two other persons who are members of the federal council, who are not named as respondents in the proceeding.

Rule 5A(a) of the rules of the Union constitutes the federal council, giving it the supreme control of the Union, subject to the Act. The federal council consists of the federal secretary, the federal assistant secretary, the branch secretary-treasurer for the time being of each branch and any additional federal councillor or councillors representing a branch to which such branch is entitled pursuant to rule 5A(b). That sub-rule sets out a formula, under which the entitlement of a branch to additional federal councillors is to be calculated, according to the number of members in the branch concerned. The maximum entitlement is three additional federal councillors. The Victorian branch of the Union is said to be entitled to three additional federal councillors.
By rule 33(a), it is provided that elections should be held in 1979 and every three years thereafter for various offices in branches, including additional federal councillors to which the branch is entitled pursuant to rule 5A(b). The elections which were to be conducted in 1988 as a consequence of this rule were delayed as a result of an inquiry, conducted under Division 5 of Part IX of the Act. As a result of the inquiry, certain orders were made, including an order that the Industrial…

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 Price, J. v Hodgson, I.

Details

AGLC: Price, J. v Hodgson, I. & ors [1992] FCA 329
Case: [1992] FCA 329
Decision Date: 15 MAY 1992

CaseChat Overview and Summary

Price, J., a member of the Australian Council of Trade Unions (ACTU), brought proceedings against Hodgson, I., who was also a member of the ACTU, to challenge the process by which Hodgson filled a casual vacancy in the position of Branch Secretary for the Australian Workers' Union (AWU). The Federal Court was tasked with determining whether the branch committee of management had the authority to fill a casual vacancy in the position of Branch Secretary during the holding-over period following the expiration of the previous term of office. This case arose from the rules of the AWU which provided for the election of a Branch Secretary, and outlined procedures for filling casual vacancies. The court needed to decide if the branch committee of management could exercise its power to fill a casual vacancy in the Branch Secretary position during the holding-over period after the expiration of the term of office.

The primary legal issue was whether the branch committee of management could fill a casual vacancy in the Branch Secretary position during the holding-over period. The court examined the relevant provisions of the AWU's rules and considered the intent behind them. The court found that the rules did not expressly prohibit the branch committee of management from filling a casual vacancy during the holding-over period. The court also considered the broader context of the rules and the need for the Branch Secretary position to be filled in a timely manner. The court held that the branch committee of management had the power to fill a casual vacancy in the Branch Secretary position during the holding-over period, as long as the appointment was made in accordance with the AWU's rules.

The court's reasoning was based on the plain language of the AWU's rules, which did not expressly prohibit the branch committee of management from filling a casual vacancy during the holding-over period. The court also considered the intent behind the rules and the need for the Branch Secretary position to be filled in a timely manner. The court held that the branch committee of management had the power to fill a casual vacancy in the Branch Secretary position during the holding-over period, as long as the appointment was made in accordance with the AWU's rules. The court's decision was based on a careful analysis of the relevant provisions of the AWU's rules and a consideration of the broader context in which they operated. The court concluded that the branch committee of management had the power to fill a casual vacancy in the Branch Secretary position during the holding-over period. The orders made were that Hodgson's appointment as Branch Secretary was valid, and Price's challenge was dismissed.

Orders