Prichard, Michael Anthony v Krantz, Harry David

ON hPPEAL FROM TEE

FEDEXAL

COURT O F AUSTRALIA

BETWEEN:

MICI-IAEL AXTHOW

PRICHARD

A p p e l l a n t

( A p p l i c a n t )

and

HARRY DAVID KRXUTZ and

L E S L I E

IIICHARD

HASCLDINE

R e s p o n d e n t s

( R e s p o n d e n t s )

CORAM :	S m l t h e r s , Northrop and Keely JJ.
DATE :	21 O c t o b e r 1983
I_
PLACE :	Melbourne

ORDER

THE COURT ORDERS ALUD DIRECTS

TEAT:

1. The appeal be allowed.	I
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i

2.	The	order :]lade on 2 9 J u l y 1983 d i scha rg lng t h e r u l e n i s i	I	I
I

here in be	set asidc-	I
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3 .

The

respondents, Harry Davld Krantz

and Leslic Richard

Haseldlne perform and observe the rules

of the Federated

Clerks' Unlon of Australia, South Australian Branch, by recognizlng Mlchael Anthony Prichard as having been a member of the Federated Clerks' Union of Australia as at 29 July 1983, and by accepting any moneys tendered by

Michael Anthony Prlchard for Union

dues, flnes or levies

in respect of his membership of the Federated Clerks'

Union of Australla.

IN THE FEDERAL COURT

OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.A. No. 5 of 1983

DIVISION

INDUSTRIAL

ON APPEAL F R ~ M

THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MICHAEL ANTHONY PRICBARD

Appellant

(Applicant)

and

HARRY DAVID KRANTZ and

LESLIE RICHARD HASELDINE

Respondents

(Respondents)

CORAM :

Smithers,

Northrop

and

Keely

JJ.

DATE :

21 October

1983

Melbourne

PLACE:

THE COURT

REASONS

JUDGMENT

FOR

The litlgatlon culminating m this appeal has been

obscured by a number

of matters which are not relevant to the

issues raised by the proceedings. The existence

those

matters has led to confusion and to

the consideration of

matters which are not relevant to the issues raised by the Proceedings. In order to clarify the issues raised by the proceedlngs, both before the Court which originally heard

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them and on appeal before the Full Court, it is necessary

make precise reference tG the facts giving rlse	to	the
proceedlngs and to the nature of those proceedings.

On 2 June, 1982, a Deputy Industrial Registrar,

pursuant to s.155 Conciliation and Arbitration

Act 1904, “the

Act”, issued a certiflcate under the seal

of the Australian

Conciliation and Arbitration Adelaide Registry

in relation to

Michael Anthony Prlchard, the appellant, and the Federated

Clerks‘ Unlon of Australla, “the Union“, an organlzatlon of

employees under the Act.

That certificate is set out:

“CONCILIATION AND ARBITRATION

ACT 1904

In the matter of the Federated Clerks Lnion of Australia, an organisation of employees reglstered

under the Act.

Pursuant to section 155 of the Act, I ROy certify as follows:

1. In

response to a

request

from

Michael

Anthony Prichard for

a certiflcate under

section 155 of the Act in regard

to his

membership

of the Federated Clerks Unlon

Australla an

inspection

of the

membership records,

including

the

membershlp register, of

the

South

Australian Branch of the said organisation

was undertaken by an officer of the South

Australia District Registry on 2 June

1982.

The

said membership register shows that

Michael Anthony Prlchard	of 46 Blrman
Crescent, Flagstaff Hill,	S.A. 5159 has

been a member of the sald organisation

since 26 September

1978 to date.

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3 .

The

said membership records show that a

letter dated

26 May

1982,

signed by the

Branch Secretary, ln

regard to Mr.

Prichard's membership has been posted to

him.

copy of the said letter

1 s

contained	In Attachment 'A'	( 2 pages)
hereto.

Dated at Adelaide this 2nd day

of June 1982.

Signed and sealed

Roy Hegarty

DEPUTY JNDUSTRIAL REGISTRAR"

Under s.155

of the Act there is thus prima facie

evidence before the Court that the appellant was

on 2 June

1982 a member of the Unlon and had been	a member of the Union
since 26 September 1978.

The letter dated 26 May

1982 referred to

in the

certificate is lengthy and need

not be set out in full. It

was written to the appellant by the first respondent in his capacity as Secretary, Federated Clerks' Union of Australia,

South Australian Branch, "the

S.A. Branch", being a branch

the Union. The letter referred

a number

separate

proceedings pending in the Federal Court in which the

appellant was an applicant and in which questions had arisen

relating to whether the appellant was eligible to remain a

member of the Union. One paragraph of the letter read as

follows:

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“The Branch Executive	has decided that members
of the staff should	net be required to deal

wlth a person whose membcrshlp is subject

the scrutiny of the Federal Court in matters

which were lnstituted by that person and they

have been instructed pending the decision

the Court that they shall not accept

a?y

payments from

you which purport

to be

connection wlth your membershlp

of the Union.

‘I

After that letter had been written, the first respondent

refused to accept a cheque forwarded by

the appellant to the

S.A. Branch

on 26 July

1982

payment

Union

subscriptlons.

On the appllcatlon of the appellant, the Court, on

26 October

1982, ordered that the respondents appear before

the Court on 11 November 1982 to show cause v7hy an order

should not

be made that:

“The Respondents observe and perform the

Branch Rules or the Rules applicable

to the

S.A. Branch by,

(a) accepting

moneys

tendered

by the

Applicant herein Mlchael Anthony Frichard in respect of unlon dues, fines or levies

within

such

time

as the

Court

may

determine.

(b) recognislng that the Applicant

is,

and

treating the Applicant as a member

of the

Organizatlon.

‘I

The proceedmgs

commenced by that rule nisi were

identified as matter

S.A.

No.

9 of

1982. The application

was made under S .l41 of the Act and in order to be able to

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make the application the appellant had

to be a member of the

Union:	see sub-section 141(1).	Under sub-section 141(1G),
an order:

".	. . may give directions for the performance
or	observance of any of the rules of an

organization by any person

who

1 s under an

obligation to perform or observe those rules."

The respondents to the appeal and to the rule nisi were and

are the Secretary and Assistant Secretary respectively of the

S.A. Branch, were and are members of the Union and thus were

and are under an obligation to perform and observe the rules

of the Union includlng the rules

of the S . A .

Branch.

The issue raised by the rule nisi was both slmple

and within short compass. Under S . A . Branch Rules 24 and 25

the respondents were under a duty

collect Union dues,

fines and levies from members of the Union and, where necessary, to initiate proceedings for the recovery thereof. It follows that until the appellant ceased to be a member of

the Union attached to the

S . A .

Branch, the respondents were

required by the rules

of the Unlon to accept monies tendered

by the appellant for payment of Union dues, fines and levies, commonly referred to as Union subscriptions. The respondents had refused to accept monies so tendered. That fact was not

disputed. The only relevant issue raised by the rule nisi,

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therefore, was whether the appellant was

a member of the

Union. There was	no evidence that	he had ceased to be	a
member

Unfortunatsly,

from

early

stage

of the

procecdinss, irrelevant matters began to confuse the simple

issue raised by the rule nisi.

The appellant was concerned

not to become unfinancial under the rules

of the S . A . Branch

thereby depriving

himself of the right

to nominate for office

within the

S . A .

Branch. Ae

w a s

an applicant in some six

separate proceedmgs pending in the Court and relatlng

to the

S . A .

Branch. Tenslons existed between the appellant

and the

respondents. On the return

of the rule nisl on 11 November

1982,

on behalf

the respondents, counsel gave an

undertaking to the Court that no point would be taken about “any hiatus in the applicant‘s financial membership“ if the

Court found in matter

S . A . No. 15 of 1981 that the appellant

was entitled to be a member of the Unlon. The effectiveness

of that undertaking is doubted, but in any event judgment

was

given in matter S . A . No. 15 of 1981 on 28 June 1983, and in that part of the pdgment consldering the eligibility of the

appellant to be a member

of the Union the Court said: “On the evidence I am satisfied that Mr. Prichard was entitled to become a member of

the organization during

his employment with

the Branch and to

have

remalned a member

thereof since his dismissal up until

least

the

time when he gave hls evidence

before the Court In November 1981.

The Court

aware that

late

1982 the

Branch

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him for subscriptlons allegedly on the ground

that he was noi then entitled to be a member

of the organizatlon. Mr. Prlchard has lssued

proceadlngs pursuant to S .l41 of the Federal

officials refused to accept moneys tendered by has been mentioned before the Court and

certain

undertakings

given

certain

officlals of the Branch in this regard

..."

On 27 May 1983, in matter S . A . No. 9 of 1982, on behalf of the respondents, counsel gave

an undertaking to the

Court that they would accept outstanding fees from the

appellant which were owing to the

S . A . Branch on or before 31

May 1983 without prejudlce to their rlghts to claim that

the

appellant was not

or had not been entitled

to be a member of

the Union durlng the period

to whlch those fees related.

Matter S . A . No. 9 of 1982 came on for hearing

before the Court

on 7 and 29 July 1983.

The

sole issue

raised by the rule nisi in those proceedings remained the

same, namely, whether the appellant was

member

the

Union.

This issue was subject to a simple resolution. Urlder

the rules of the Union, including the S.A. Branch Rules, and on the proved facts, the appellant was entitled to remain a member of the Union until he died or until he or the Union terminated his membership. The trial Judge, quite correctly, applied those prlnciples. The appellant had not terminated

his membership. Under the rules

of the Union, the Union is

empowered to terminate the membership

a member. Under

S . A .

Branch Rule

the Branch Executive, sublect to

' - \

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compliance with

the

specified procedures, is empowered to

direct the removal from the register of members of the name "of any member ... who appears to be no longer covered by the Constitution".

When matter S.A. No. 9 of 1982 came on for hearlng on 7 July 1983, the issue before the

Court, as appearing from

the rule nlsi, was whether the appellant

was a member of the

Unlon. At

that time, prlma facie, he was a member and the

respondents were required to perform and observe

the rules of

the Unlcn by accepting the payment	of subscriptions by the
appellant.

Unfortunately, when the matter came

on for hearlng

July 1983 the parties conducted the proceedings as if

the issue

to be determined was

whether, at that time, the

appellant was eligible to be a member

the Union. Much

evidence was given relating to the nature of the work being

done by the appellant. The Court inspected the appellant's

place of work. At

the end of that day, the further hearlng

of the rule nisi was adjourned

to 29 July 1983.

Emboldened by the evidence given

to the Court on 7

July 1983, the Branch Executive

the

S.A.

Branch,

letters dated 13 July 1983, commenced procedures under S.A. Branch Rule 11 preparatory to the exercise of the power to remove the appellant' S name from the register of members of

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the Union.

The resumed hearing of matter S.A. No. 9 of 1982

commenced on 29 July 1983 and was concluded on that day. At

that time the appellant's name had not been removed from the

and thus at that time the

appellant remained a'member

of the Union. At the conclusion

of the hearing of 29 July 1983 the Court said:

"In matter number 9 of 1982, the court is of

the view that the order nisl herein should be

discharged.

So that that is understood, I am

the

view that on

the

evidence

the

matter, the applicant Michael Anthony Prichard

is not eliglble to be

member of the

Federated Clerks Union of Australia.

I will

publish my reasons at

a later date.

The appellant appeals from that order but it must be noted that the question of ellgibility for membershlp of the Union by the appellant was not an issue in those proceedings.

September 1983 the Court published its

reasons

for

discharging

the

rule

nisi.

Apart

from

the

historlcal

background to those

proceedings,

most

the

reasons contained in the judgment relate to the question of whether the appellant was eligible to be a member of the Union, a question which dld not arise in those proceedings. In the reasons for judgment the Court said:

"The Court,

in my

view, should not at this

stage construe the Branch

rule dealing with

the

purging

the roll of members. What

course the Branch takes in thls regard is

matter for the Branch itself and

If a declslon

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is made by

the

Branch

remove

the

applicant's name from the roll

of members then

the appllcant

has hls

rlghts under the Act

and/or under the rules of the organization or

the Branch.

That oplnion was very properly glven. The questlon referred to in that oplnlon and the related question of the valldity

of any purported removal

of the appellant's name from the

reglster of members of the Union was not before the Court nor

are they before this Full Court

on appeal. Accordingly,

views are expressed

on any of those matters.

The appellant

has established his claim under s.141

of the Act. On 29 July 1983 he was a member of the Union. The respondents in refusing to accept him as a member were faillng to perform and observe the rules of the Union. The

rule nisi should

have

been made absolute and the orders

sought should

have been made. There are

no relevant facts

upon which any discretion to refrain from making the orders

absolute could be exercised.

Accordingly, the appeal must be allowed and

the

order made on 29 July 1983 must be set aside. Because

unusual features arising in this case, and in view

the

procedures commenced

by the Branch Executive

of the S.A.

Branch to remove the appellant's name from the register

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. members of the

Union,

the

o r d e r

o f

the Court will vary

from

t h e

o r d e r s

s o u g h t

i n

t h e

r u l e

n is i .

T h e

Court

will

order

and

d i r e c t t h a t :

The appea l

a1;owed.

T h e

o r d e r made

J u l y

1 9 8 3

d i s c h a r g i n g

t h e

r u l e

n i s i

h e r e i n be

set

a s i d e .

3 .

The respondents,

Harry

David

Krantz

and

Leslie Richard

Hase ld ine ,

per

form and

observe

the

ru les

t he

Fede ra t ed

Clerks '

Union

Aus t r a l i a ,

Sou th

Aus t r a l i an

Branch ,

recognizing

Michael

Anthony

Pr ichard

having

been

member of the

Federa

ted

Clerks

Union

of A u s t r a l i a

a t

29 July

1983,

and

accepting

any

monies

tendered

Michael

Anthony

Prichard

for

Union

dues,

f ines

l e v i e s

i n respect of

his membership of

the Federated C l e r k s '

Union

A u s t r a l i a .

[1983] FCA 293

21 Oct 1983