Re Construction Forestry Mining Energy Union; Ex parte W.J. Deane & Sons

[1994] HCATrans 364

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S154 of 1993
In the matter of -

An application for a writ of prohibition, a writ of

mandamus and a writ of

certiorari against THE

HONOURABLE SENIOR DEPUTY

PRESIDENT JOSEPH MARTIN

RIORDAN and THE HONOURABLE

nBPUTY PRESIDENT IAN ROBERT

WATSON of the Australian

Industrial Relations

Commission and COMMISSIONER

PETER ASHBY LAWSON of the

Australian Industrial

Relations Commission and

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

CONSTRUCTION FORESTRY MINING

ENERGY UNION

Second Respondent

Ex parte -

W.J. DEANE & SONS PTY LTD,

NORTHERN BUILDERS PTY LTD,

~-RTHUR DAVIS CONSTRUCTIONS

PTY LIMITED, DENIS

Deane(2) 1 3/6/94

CONSTRUCTIONS PTY LTD, KOTARA

BUILDING CO PTY LTD. MICHILIS

CONSTRUCTIONS PTY LTD, TILSE

BUILDING. REG FLANNERY

CONSTRUCTIONS and

K. BROWNSMITH PTY LTD

Prosecutors/Applicants

MASON CJ DAWSON J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 3 JUNE 1994. AT 10.18 AM

Copyright in the High Court of Australia

MR P. MENZIES, OC:  If Your Honours please, I appear with my

learned friend, MR T.J. ANDERSON, for the

applicants. (instructed by Paul Hines)

MR s.c. ROTHMAN: If the Court pleases, I appear for the

second respondent. (instructed by Taylor & Scott)

MASON CJ: Yes. The Deputy Registrar has been informed by

the Australian Government Solicitor that the first
respondent does not wish to be represented at the

hearing and will submit to any order of the Court

save as to costs. Yes, Mr Menzies.

MR MENZIES:  Notices under section 78B of the Judiciary Act

were served on each of the Attorneys for each of
the States and they have al indicated that they did

not wish to appear to intervene.

MASON CJ:	Was the notice in intelligible form?
MR MENZIES:	Yes, Your Honour.

MASON CJ: And has any response been received to the notice? MR MENZIES: In each case verbal response has been received.

MASON CJ: That there was no desire to appear?

MR MENZIES:  Yes, Your Honour. Your Honours, these are

applications for .. orders absolute arising from

orders nisi granted by Justice McHugh on

18 October 1993, and the applications arise out of

proceedings which took place in the Industrial

Relations Commission before Commissioner Grimshaw.

Your Honours, we move on the affidavit of

Paul Hines, whose affidavit appears at page 6 and

following of the application book. We tender, if

Your Honours please, the documents marked PHl

through to - - -

MASON CJ:  I do not think there is any need to go through

the formality of tendering exhibits.

MR MENZIES: If Your Honours please.

MASON CJ:	We regard the material in the book as before us.
MR MENZIES:	Thank you, Your Honour. Your Honours, the

application book did not include the rules of the

Operative Painters & Decorators Union of Australia.

Those rules were sent separately to the Court, as I

understand it, and they should all be available

there separately.

MASON CJ: Yes, we have those.

Deane(2) 3/6/94

MR MENZIES:  Your Honours, the short point that arises for

consideration in this matter is this: that a demand

made, purportedly, on behalf of the various unions
who have now amalgamated to form the Construction

Forestry Mining & Energy Union, with the exception of the ASC&J, the Society for Carpenters and

Joiners; that the demand made was in fact

unauthorized; that demand and the non-accession to

it by the respondents was the only evidence of the

existence of an industrial dispute within the

meaning of the Act and the Constitution and that,

in the absence of authority, the demand was not a

demand of the union. Accordingly, there was no

dispute between the parties, and that a subsequent

ratification of the dispute notice, or the demand,

by the relevant controlling bodies of the union,

could not operate retrospectively to create a

dispute.

Can I take Your Honours to the outline of

argument?

MASON CJ: Yes, we have that.

MR MENZIES:  Your Honours will find attached to it a

chronology which encapsulates the relevant events.

The purported letter of demand was issued on

14 March 1991. It is found in the application book

at page 14 and Your Honours will see that it

asserts that it issued by the direction of the

national executive of the Building Workers'

Industrial Union of Australia and the other unions.

It is signed by the national secretary of the

Building Workers' Industrial Union and the
assistant general secretary of the Federated Engine

Drivers and Firemen's Association of Australia and

the secretary and federal secretary of the other

unions.

As a consequence of that letter of demand

issuing and as a result of there being no accession

was filed in the Australian Industrial Relations	to it by the respondents, a dispute notification
Commission, it is found at page 27 of the
application book.

The proceedings commenced before

Commissioner Grimshaw on 28 May 1991 and on that
day he found the existence of an industrial

dispute.

The prosecutors in these proceedings, on

25 March 1992, sought, amongst other things, the

revocation of that dispute finding. The

Commissioner's decision is found at page 37 of the

application book and he deals with, amongst other

things, at page 40 at line 15, a summons which was

Deane(2) 3/6/94

issued in the proceedings which sought the

production of documents concerning any events which

led up to the issuing of the letter of demand.

The form of the summons, or relevant parts of

it, can be found in a later decision on appeal, and that is at page 48, lines 15 through to 25. So the summons is found at page 48, the Union's responses

to it is found at page 40. The effect of the

response is that there were no documents in

existence which answered the demand in the summons.

MASON CJ:  Is it common ground that the log of claims was

served without authority, on the part of the

Unions, on whose behalf it purported to be served?

MR MENZIES:	I believe that to be so, Your Honour.
MR ROTHMAN:	No, it is not.
MR MENZIES:	It is not common ground, Your Honour.

MASON CJ: It is not conceded?

MR ROTHMAN:  No, it is not conceded, Your Honour.

MR MENZIES: Well then, Your Honour, we need then to turn to

a supplementary decision of the Industrial

Relations Commission sitting as a Full Bench, which

appears at page 60 of the application book.

MASON CJ: Can I just clarify this? I understand there is

an argument, of course, that lack of authority was

subsequently ratified, but is it common ground that

when the log of claims was initially served there
was not authority on the part of the Unions for its

service?

MR ROTHMAN:  It is not common ground that when the claim was

initially forwarded to the employers it was not

authorized. In other words, it is my learned

friend's case that it was not authorized. It is

our case that the rules are not as restrictive as my learned friend suggests that they are and that

there was authority in the secretary's and or

assistant secretary - - -

McHUGH J: Are you going to rely on ratification at all?

MR ROTHMAN:	Yes, Your Honour.
McHUGH J:	How can you ratify an act like this?

MR ROTHMAN: Well, do I take it that Your Honour does not

want to hear from my friend?

Deane(2) 3/6/94

McHUGH J: Well, no, it just strikes me as odd. Can you

ratify the institution of proceedings in a court

for the purpose of a statute of limitations? Can

you ratify a notice to quit?

MR ROTHMAN:  This is not the institution of proceedings in a

court.

MCHUGH J: Well, I know.

MR ROTHMAN:  This is the service of a demand by the Union,

it is said, unauthorizedly - if there is such a

word - and, in my respectful submission, yes, it can be ratified in circumstances where it is not

beyond the Union's capacity to serve - - -

MASON CJ: Well, perhaps you ought to resume your seat.

Justice McHugh is so obviously anxious to grips

with you but we will restrain him for the time

being.

MR ROTHMAN: That is why I asked the initial question,

Your Honour.

MASON CJ: Can I ask you this question before you do resume

your seat?

MR ROTHMAN:	Yes, Your Honour.
MASON CJ:	Did you contend before the Full Bench that the log of claims was served with authority at the time
it was served?
MR ROTHMAN:	Your Honour, the way in which the matter was

argued before the Full Bench was somewhat unusual,

and I say that with the greatest respect both to

the Full Bench and counsel that appeared. The

rules were never tendered before the Full Bench.

The Full Bench went away and looked at the rules,

after the event, and held that it was probably the

case that there was not authority, not actually

having heard from the Union.

McHUGH J: That seemed to be because the Union accepted that

there was no authority.

MR ROTHMAN:  Your Honour, with respect, no. It was made

fairly clear that amongst other things we relied on

the presumption of regularity, and that the

Commission should - I remember this from the argument - accept that what was done was done

regularly and with authority. So therefore, with respect, it did not accept that what was done was

not done with authority. I think I may have too

many "nots" in that, but I apologize if I have.

Deane(2) 3/6/94

MASON CJ: This Court's time should not be wasted on an

argument that was not thought worthy of putting to

the Full Bench of the Commission.

MR ROTHMAN: With respect, Your Honour, we took the view

below, that is, counsel appearing for my clients

took the view below that this was a revocation

application, a dispute having been found some two

years earlier. The application for revocation, the

burden of proof lay fairly and squarely on the

employers, and they were entitled essentially to

sit on their hands. If there was no evidence

before the Commission below that the rules were not being complied with, the rules not being before the

Commission, my client had no duty to go to an

argument which was otherwise not open.

MASON CJ: It seems a rather risky course to pursue. Those

who live by the sword generally perish by it.

MR ROTHMAN:  I do not usually live by the sword,

Your Honour, but - - -

MASON CJ: You may nevertheless perish by it.

MR ROTHMAN:  - - - if my clients are hoisted by that petard,

to use another cliche, then so be it. But we have

not been heard on the rules because the rules were

not before the Full Bench when the matter was

argued.

MASON CJ:  We had better hear what Mr Menzies has to say.

Yes, Mr Menzies.

MR MENZIES:  Your Honours, the issue of whether or not there

was authority is effectively resolved, in our

submission, by the events that occurred when the

Industrial Relations Commission Full Bench dealt

with a supplementary decision because what it did

was this: it concluded in its decision that it did not think that there was authority. It gave the unions the opportunity to do two

things: either lead evidence to prove the

existence of authority or, alternatively, to ratify

the demand. The unions took the course - and this

appears in the statutory declarations which appear

in the application book at pages 62 through to 65 -

of holding a meeting which would have the power of

ratifying and then ratifying it.

MASON CJ: Before you get to that, if we look at page 59 of

the application book, there appears there in the

penultimate paragraph of the decision of the Full

Bench the conclusion that it reached and that was

that:

Deane(2) 6 3/6/94

having regard to the probability that the

claims were not properly authorized -

he was going -

to grant leave to appeal and to adjourn the

matter to allow each of the organisations

concerned to either produce evidence to

establish that the relevant claims were

properly authorized or, alternatively, to
produce evidence by way of affidavit that the

proper body in each case has ratified the

action said to have been taken on its behalf.

You say, do you, that following that, all that the

organizations did was to tender evidence of

ratification?

MR MENZIES: That is so, Your Honour.

DAWSON J: And the question was raised before

Commissioner Grimshaw, was it not, as to whether

there was the authority?

MR MENZIES:  It was, Your Honour, although it does not

appear from Commissioner Grimshaw's judgment.

DAWSON J:  I do not know who issues the summons but when it

was before him a summons was issued and the reply

which appears on page 440 was elicited.

MR MENZIES: That is so. Yes, Your Honour. In our

submission, the inference one draws from all of the

evidence was - - -

MASON CJ: In the circumstances, Mr Menzies, you can direct

your argument to the ratification issue. If there

is anything else we will hear what your opponent

has to say but at the moment we are confronted with

an attack on a decision that is based on

ratification.

MR MENZIES:  Thank you, Your Honour. Our short point about

ratification is that even if the Union body had the

power to clothe the secretaries with authority, and

that would seem to be, generally, certainly the

case, one cannot retrospectively create a dispute

which was not in existence when the claim was made.

The act of ratification does no more than to give

the, in this case national secretary, authority,

but that could not, in our submission, mean that a

dispute which until ratification took place did not

exist was created effectively over two years

retrospectively.

In our outline we have dealt with the

authorities on ratification - - -

Deane(2) 3/6/94

MASON CJ: This is paragraph 19 onwards, in your outline?

MR MENZIES:  It starts at paragraph 12, Your Honour.

MASON CJ: 12, that is right, yes.

MR MENZIES: Paragraph 12 is nothing more than a direct

quotation from the latest edition of Bowstead.
Bowstead then, as authority for the proposition in

12, relies upon the three cases which are set out

at the top of the page. Solomons v Dawes was a

case of trover where a claimant - I will withdraw

that - the wife of the owner of goods went to the

holder of the goods and sought their return. She
had no authority to seek their return and the later

clothing of her with authority did not have any
retrospective effect so that the necessary element

in the tort of trover was made out.

MASON CJ: But that was a property right case, was it not?

MR MENZIES: That was a property right case.

MASON CJ: The principle seems well accepted that you cannot

have retrospective ratification in relation to a

matter that affects property rights. Take a notice

to quit, for example.

MR MENZIES: That is so, Your Honour. Jardine v Leathley is

in the same line of country. Davison v Vickery's

Motors is a decision of this Court and we, in that

case particularly, rely upon the comments of

Mr Justice Isaacs at the pages which are noted in

the outline.

MASON CJ: He says ratification involves a fiction. It

deems the Act in question to have taken place when

it first took place, notwithstanding that authority

was only provided subsequently, but that that

yields to cases where it produces an unjust result?

MR MENZIES:  Yes. And we would submit in this case this is

one of them. Another way of expressing our point

is that one cannot, by a legal fiction, create

disagreement between parties.

DAWSON J: Is a non-accession to a log of claims the

creation of the dispute or is it merely evidence of

the existence of the dispute?

MR MENZIES:  Evidence of the existence of the dispute, in

our submission, Your Honour.

DAWSON J: So that a dispute could exist separately apart

from the fact that the log of claims was not

complied with?

Deane(2) 3/6/94

MR MENZIES:  Yes, Your Honour. But there is no evidence.

There was no other evidence of the existence of the

dispute.

DAWSON J: What I wondered was could the Union say, "We were

intending to dispute. We have not gone through the

formalities. In fact there was a dispute, the

evidence may be defective of it, but we can cure
that". In other words, it is not retrospectively
creating a dispute, it is just retrospectively

fixing up the evidence.

MR MENZIES:  They had the opportunity to do that and did not

do so. They had the opportunity to lead evidence

which was to the effect, well, this was just a

formality that somebody overlooked and we will now

fix it up because we were really truly in

disagreement with the employers.	None of that
evidence was forthcoming.	The only thing that was
forthcoming was the ratification.	We would seek to

draw the inference from that that such evidence, which I have suggested might be used, was simply

not there.

MASON CJ:  Is there any analogy between this situation and

the commencement of legal proceedings without

authority?

MR MENZIES:  In our submission, no, Your Honour, because the

essence of what is involved here is the existence of disagreement. So that it really does not fall

into the same class as that.

MASON CJ: What does the law say about commencement of legal

proceedings without authority, and subsequent

ratification?

MR MENZIES:  The latest word that we have been able to find

on that is a decision of the Court of Appeal of

England, and so far as we understand it it supports

the proposition that in that case, even though a

limitation period had expired, ratification of

commencement of proceedings - - -

MASON CJ: After.

MR MENZIES:  - - - after, was available.

MASON CJ: What is the name of that case?

MR MENZIES: That case is - - -

MASON CJ: Presentaciones Musicales.

MR MENZIES: That is the one, Your Honour. That is reported

at (1994) WLR 660, reported on 27 May 1994. That

did not deal with Mr Justice Isaacs' judgment in

Deane(2) 9 3/6/94

Davis v Vickery's Motors. The decisions in

paragraph 13 at the end of that paragraph of Bay

Marine and Australian Hydrocarbons v Green are

both -

MASON CJ: Just before we leave this Court of Appeal

decision, can you direct us to the significant

passages in the judgments?

MR MENZIES:  At page 665, Lord Justice Dillon deals with the

effect of ratification and refers to Bird v Brown

and the qualification of ratification:

"must be taken .••.. at a time, and under

circumstances, when the ratifying party might

himself have lawfully done the act which he

ratifies."

MASON CJ: This judgment seems to be just a recitation of

case after case. Will Justice Dillon get to a

proposition anywhere?

MR MENZIES:  He deals with, at page 667, the effect of the -

I am sorry, Your Honour. If Your Honours go down on 667 to the last paragraph, Bird v Brown, that

was a case where time has passed. He deals with

that. Then with Bolton v Lambert, and then at

page 668 in the first paragraph - - -

MASON CJ: Yes, first complete paragraph, I see it, yes.

MR MENZIES:  Your Honour will see Lord Justice Nolan simply

agrees with Lord Justice Dillon and

Lord Justice Roch, ultimately comes to the same

conclusion.

MASON CJ:  Yes. Now, you were going to take us to some

other decision.

MR MENZIES:  Yes, Your Honour. At paragraph 13 we submit

would have had to have been made, in our this, that if a ratification was to be good it	submission, in these circumstances, within the
seven-day period which the respondent allowed for
the employers to reply, and that period passed.
Had they, within seven days, or arguably within any
time before the dispute notification was raised,
ratified the notice then, and we would say from the date of that notice, that would be evidence of disagreement.

MASON CJ:  It would rather depend on the circumstances,

would it not? Let us assume in response to the

notice issued without authority the employer, or
the employer's organization had said, "Under no
circumstances are we in the future going to yield

to this demand" and then two days after the

Deane(2) 10 3/6/94

expiration of the seven days there was ratification

of the notice conveyed to the employers, or the
employer organizations. Would you not then have a

dispute?

MR MENZIES:  Your Honour, that depends upon whether one

accepts unqualifiedly the initial response of the

employers. In our submission the employers would
need the ratification having taken place to at

least be given the opportunity to deal with it as

authorized. In any event, in these facts of course

that did not occur. Nothing happened.

MASON CJ: In that situation, of course, you might get a

dispute, but the dispute may actually take place at

a later stage, that is when the ratification is

forthcoming and conveyed to the other side.

MR MENZIES:  Yes, Your Honour.

McHUGH J:  I am not sure that I am on the same wave length with you in this. Is not the issue in this case

whether the Commission had jurisdiction? It could

only have jurisdiction if there was a dispute.

MR MENZIES:	Yes, Your Honour.
McHUGH J:	So the Commission never had jurisdiction, by

hypothesis, when the notification was made. So the

real question is did the Commission retrospectively

acquire jurisdiction by reason of this resolution

that was passed by this organization two years

after the event.

MR MENZIES:	That is certainly the real question and, in our submission, the answer is, no, and the reason it is
no is because that is fictionally creating a dispute - creating a disagreement.

DAWSON J: And you must say, in this situation, that it was

the log of claims which created the dispute, or the

failure to accede to it. There is nothing else

which created it?

MR MENZIES: Nothing else, Your Honour.

DAWSON J: There is no underlying dispute, it is a pure

paper dispute.

MR MENZIES:  That is right, Your Honour. The Union, having

taken that course, which it is obviously entitled

to do, then has to do it properly.

McHUGH J: See, ratification operates principally in the

area of contract, although there is some doubt it

has got some operation in the field of tort, but I

must say, it strikes me as strange that where a

Deane(2) 11 3/6/94

court's jurisdiction depends upon a particular fact

existing in space time that, two years later, by a

fiction, you can say it have jurisdiction

retrospectively, when it did not have jurisdiction.

MR MENZIES: That, with respect, is the position we take,

apt to be applied in these circumstances.	and that the concept of ratification is just not
Your Honour, the other authorities that we refer in
paragraph 14 - - -

MASON CJ: Just stopping you there: is that right to say

that ratification really only exists in the sphere

of contract and tort? It seems to me inappropriate

to say that that is the position, because basically

ratification is directed to the validity of acts.

McHUGH J:	I thought I said it principally applies in contract and to some extent in tort, but it can
obviously apply in other situations.
MR MENZIES:	Your Honour, we do not submit that this Union

executive did not have the power to ratify - does

not have the power to ratify generally. What we

submit is that even using that power, it cannot by

the exercise of that power, which is the fiction,

retrospectively create a disagreement when there

was not one, when the only evidence of a

disagreement is the log of claims.

Your Honours, we deal at 14 and 15 with some, I think, uncontroversial aspects of ratification

and the authorities upon which we rely, and at

page -

McHUGH J: What was the period in Trident, I cannot remember

now?

MR MENZIES: Five years, I think, Your Honour.

McHUGH J: It was just five years, was it?
DAWSON J:	But all this does not matter on your argument.

MR MENZIES:  No, Your Honour. If our primary submission is

correct it does not matter. There is one further
matter in paragraph 16 which we mention for the

sake of completeness, but again, it may not be

determinative.

The present respondent, the Construction

Forestry Mining and Energy Union exists as a result

of what were described as amalgamation of various

unions. What legally happened was that all of the

other unions, save for the Building Worker's

Industrial Union, were absorbed using the

amalgamation proceedings in the Industrial

Deane(2) 12 3/6/94

Relations Act and then their registration was cancelled so that at the time when the purported

ratification occurred, the Federated Engine Drivers

and Firemen's Association and the Operative

Plasterers and Plaster Worker's Federation of

Australia did not exist. Therefore, in our

submission, certainly with respect to those

organizations, any purported ratification of

something which occurred when those unions did

exist was ineffective.

Those are the applicant's submissions if

Your Honours please.

MASON CJ: Yes, thank you, Mr Menzies. Yes, Mr Rothman.

MR ROTHMAN: Might I hand to the Court the outline of

submissions of the second respondent.

MASON CJ: Yes?

MR ROTHMAN:  Perhaps I ask this with some trepidation. Do I

take it from the comments that Your Honour the

Chief Justice made earlier that I should not

address upon anything other than the ratification

point?

MASON CJ: No, that is up to you to support your case by

whatever means you think you have of supporting it.

MR ROTHMAN: If Your Honour pleases. The first two

paragraphs of the outline of submissions deal

essentially with the principle of the finding of an

industrial dispute. In our respectful submission,

there is no significant difference in theory

between a paper dispute and an actual dispute.	The
terms are used sometimes, somewhat ironically

and/or derogatorily, but nevertheless the essence

is a disagreement between the parties.

The authorization simpliciter of the log of

claims and letter of demand which is sent to

employers neither creates a dispute nor is anything

other than correspondence which is a demand. It is

not the serving of the log of claims which creates

the dispute, it is the fact of disagreement between
the organization of employees, in this case, and

the employer. As long as the organization is

content to pursue the claims and accepts the claims

as its own there is a dispute.

McHUGH J:	I have no problem with that proposition but do you not have to make good the fact that the
organization, as opposed to some action of the
secretary, was pursuing the claim?

Deane(2) 13 3/6/94

MR ROTHMAN: Yes, Your Honour. Can I simply add this: if

by mistake, for example - and I say this not

derogatorily - a clerical staff member of the union

sent out a log of claims that had been drafted but

had not, at that stage been authorized, as long as the union adopts it as its own, that is a claim of the union and as long as the union pursues the

claim - - -

McHUGH J:  If the organization turned up before the

Commissioner and the man has resisted at that

stage, that is evidence of a dispute, irrespective

of the bit of paper that went out before.

MR ROTHMAN: Precisely.

McHUGH J: But where is the evidence that would indicate

that it was the organization - that there was a

person - no doubt there was somebody there?

MR ROTHMAN:  It is not suggested, Your Honour, that the

appearance before Commissioner Grimshaw at first

instance, when the finding of dispute was made, nor

even at the time when the revocation application

was made before Commissioner Grimshaw - it is

perhaps necessary to go back one step.

The matter came on before

Commissioner Grimshaw and a dispute finding was

made and, to use the Commissioner's words, "All

rights were reserved to all parties to make such

applications as they may wish to make". That

dispute finding was made without any attention

being drawn or made as to the lack of authorization

at all.

MASON CJ: Whereabouts is the dispute finding, what page?

MR ROTHMAN: It is not in the appeal books but there is a

reference in the decision of Commissioner Grimshaw

which commences at page 37 of the appeal book.

McHUGH J: There is a reference to the dispute being made at

page 7 of the book, at paragraph 6 of the

supporting affidavit.

MR ROTHMAN: Yes, Your Honour, but I do not think there is

any issue that there was a dispute finding.

Whether it was valid, of course, is very much in

dispute.

McHUGH J: Yes •

MR ROTHMAN:  The point I make simply is this: at page 39

the Commissioner sets out what occurred at the

initial proceedings. There was an argument as to

Deane(2) 14 3/6/94

genuineness. One can see at the bottom of the

first paragraph on page 39, an argument -

as to genuineness and if we go down on that in

relation to section lll(l)(g)(iii).

There was reference to the arguments of the Master

Builders Association of New South Wales and the

Local Government Association of Queensland, and a

formal finding of dispute on 28 May 1991 -

parties to confer, the rights of those

desirous of mounting arguments pursuant to

section lll(l)(g) of the Act being reserved.

There was a roping-in award made and the adjourned

proceedings came on for hearing in Sydney on
25 March 1992 when my learned friend, Mr Anderson -

sought and was granted leave to appear - and ran an argument based on rule 13(2)(e), that

is, a rule of the Australian Industrial Relations

Commission, not a rule of the Union, as to the form

of the notification of an industrial dispute and

its authorization.

There is then a reference to the answer to the

notification, but the point I make at this stage is

that at this stage, the application that was before

the Commission was an application for revocation of

an industrial dispute that had earlier been found.

In that earlier matter it was unnecessary for the

Union to adduce any evidence for the purposes of

the finding of a dispute other than the question of

genuineness, having been accepted that there was a

dispute and evidence sought to be led at some later

time as to genuineness. In my respectful

submission, the issue of the subpoenas went, in

fact, to the question of genuineness, not to the

question of the authority.

MASON CJ: Tell me, first of all, when there was the initial

finding of dispute was there common ground at that

stage that there was a dispute?

MR ROTHMAN:  Your Honour, leaving aside the view of the High

Court that there is no separate doctrine of

genuineness, that there is either an industrial

dispute or there is not, the answer to that is yes.

The only issue that was raised as to the industrial

dispute was the question of genuineness of the

claim sought, that is, whether the Union genuinely

wanted the claims. One could argue, and I suppose

one could argue quite well, that the question of

authorization went to genuineness in the sense of

Deane(2) 15 3/6/94

whether or not the Union wanted the claims it had

served.

MASON CJ: It was not common ground that there was a dispute

but you say that it was in contention on one ground

only.

MR ROTHMAN:  Yes, Your Honour. There is no suggestion -

MASON CJ:	Did the dispute, or the suggestion that there was a dispute, arise from alleged non-acceptance of the
log of claims?
MR ROTHMAN:	I do not think I can answer that either yes or

no, Your Honour. I have to say that the service of

the log of claims and its non-acceptance was

certainly evidence before the Commission. Evidence

is a nice question, but there were statements from

the bar table as to - - -

DAWSON J:  If you look at 28, a notice goes out from the

Commission saying that the parties on whom it was

served -

do not satisfy the Commission within the

period of 21 days -

that they are not parties, then they may be bound

to be parties.

MR ROTHMAN:  Yes, Your Honour. That is actually sent out by

the Union. It is one of the forms that the

Commission requires to be sent out - - -

DAWSON J: But it has the seal of the Commission on it, has

it not?

MR ROTHMAN:  Yes, Your Honour.· It is stamped by the

Commission to show that it is a formal document,

but it is actually sent by the Union.

DAWSON J: Yes.
MR ROTHMAN:	I do not seek to resile from the fact that the

subject-matter of the dispute is the letter of

demand and the log of claims. I only seek to

qualify whether or not that was the only evidence

of the dispute. The point I was making earlier is

simply that once the Union seeks to pursue the

claim it is a claim of the unions and there is a

dispute because there is a disagreement between the

parties, assuming all of the other elements of an

industrial dispute. I should point out to

Your Honour that there is a typographical error at

the foot of paragraph 2 of my outline - that should

be, Illaton, and I apologize for that.	I just did
not notice it.

Deane(2) 16 3/6/94

I do not know that it is necessary to take the

Court to the matters that are there discussed.

Illaton's case probably summarizes it as much as

any of them, but Your Honour, it is as simple as

this: if my learned friend's contention is correct,

the national secretary of the Union, assuming the

rules were as they were then, the national

secretary of the Union issues a demand on employers

throughout Australia and disputation occurs in

relation to it.

DAWSON J: Putting aside the ratification, at what point of

time do you say the dispute arose?

MR ROTHMAN:  Your Honour, for reasons I go to later, in my

respectful submission, it arose at the time that

there was non-accession to the log of claims but it

was evidenced also by the pursuit of the log of

claims before the Commission. There was no

suggestion that that was an unauthorized act of the

Union, the making of the award and part settlement

of the claims and the argument of the Union in

relation to that. And again, it is not suggested

that that was an unauthorized act of the Union, and

there was disagreement as to that, and it was clear

there was disagreement as to it. There were

arguments, for example, as to whether or not an

award ought be made in those terms or at all.

MASON CJ:	Was not that disagreement a disagreement about whether a dispute had arisen?
MR ROTHMAN:	No, Your Honour, with respect, it was not.

There was a section lll(l)(g) argument.

Your Honour will recall what section lll(l)(g) is,

it is whether or not an award should be made,
whether the Commission should refrain from hearing

it. There were also matters going to whether or

not a dispute has arisen and those are the matters

that are now before the Court, but there were also

matters which are addressed by Commissioner

Grimshaw at first instance as to whether or not in

the public interest an award ought properly be made

or ought be made in those terms, and indeed, were

the subject of appeal before the Full Bench and

were addressed by the Full bench. So that it is

not the case that the litigation, to use that term,

was confined to the question of whether or not a

dispute had actually arisen with the service of the

claim.

DAWSON J: But there was an initial dispute as to the

genuineness of the dispute?

MR ROTHMAN: Yes, Your Honour, there was.

Deane(2) 17 3/6/94

DAWSON J: Which is saying that the Union is not genuinely

pressing these claims, is it not?

MR ROTHMAN: 

Which is saying that the Union is not genuinely pursuing the claims and the Commission held against

it. That is not the matter, with respect, that is

now before this Court. That is, in other words, it

is not said in circumstances of a standard log of
claims, ambit log of claims, in the industry in
question that the Union did not genuinely desire
the claims that are in the log of claims. It is

not even said, nor is there evidence adduced to the

contrary, that that log of claims was not

authorized in terms of claims against employers.

The only evidence goes to whether or not there was a specific authorization as to these particular

employers, in name, after 1 January 1988.

That is an evidentiary point, but it seems

somewhat trivial, but nevertheless, it is not
suggested, in my respectful submission, that any of

the claims in this log of claims are not claims

that have been authorized by the Union, validly and

appropriately and, indeed, where the subject of, for example, other logs of claims and the like -

that is, other dispute findings and the like.

What we say the nature of the case that the prosecutor presents in this matter is simply that,

by analogy, if two armies are facing each other,

and someone unauthorizedly fires a shot and the

parties go into battle, there is no war. Now, in

my respectful submission, that is not the way in

which the court ought properly treat the service of

a log of claims.

MASON CJ: But, is there not another point, and that is

this: the Commission has jurisdiction to deal with

disputes as found. Now, the dispute found here was

a dispute said to have arisen seven days after the

service of the letter of demand and the log of

claims. Now, you do have an argument that we have	heard that at the expiration of the seven days the
dispute came into existence but, for the most part, the argument you are presenting suggests that there
was clear evidence of a dispute at a later stage, ie, when the Commission heard the proceedings and
the Union was represented.

MR ROTHMAN:  Yes, Your Honour.

MASON CJ: But, let us assume there was not a dispute at the

expiration of seven days after service of the

demand.

MR ROTHMAN:  A dispute as defined in the Act, Your Honour?

Deane(2) 18 3/6/94

MASON CJ: Yes. Let us assume there was not. How does the

Commission acquire jurisdiction to deal with any

other dispute?

MR ROTHMAN:  Your Honour, there are two answers to that.

Firstly, the validity of a notification of dispute does not go to the jurisdiction of the Commission.

Once the Commission has before it a dispute,

however evidenced, it must, in my respectful

submission, deal with that matter.

MASON CJ: But that is when it has a dispute that it has

found before it.

MR ROTHMAN: Well, Your Honour, in my respectful submission,

if the Commission finds the existence of an

industrial dispute wrongly but there are other

grounds for the finding of that industrial dispute,

then the Commission still has jurisdiction to deal

with the matter that is before it and, I think,

this Court said as much, albeit probably in obiter,

in the Wooldu.mpers case - I did not bring that

case, nor did I refer to it - but said as much in

Wooldu.mpers. There was a reference to whether the

fact of the dismissal of Mr King - I think his name

was - on 4 May, some year or.other, itself gave

rise to an industrial dispute which would give to

the Commission jurisdiction to deal with the

matters in the reinstatement. The Court held that

there was no argument, essentially, that that was

the case and that there was no reliance upon any of

that before either the Court, or indeed, before the

Commission, and ultimately granted writs. But the mere fact that the Commission erroneously decides

the basis of its jurisdiction does not mean it is

making jurisdictional error.

DAWSON J: But the only dispute here was a paper dispute, an

artificial dispute. That was the only dispute

which the parties were purporting to pursue, and to

have an artificial dispute you have to have the

artifice, and some of it was lacking here.

MR ROTHMAN:  Your Honour, in my respectful submission, there

is no evidence that the only dispute before the

Commission was a paper dispute.

DAWSON J: There is no evidence the other way either.

MR ROTHMAN:  No, Your Honour, and the onus is on the

prosecutor; and the onus before the Commission was

on the applicant for revocation and the Union was

entitled to sit back, sit on its hands and say, "If

you want to prove there is no industrial dispute

you go right ahead and do so.	But we will not
assist you".

Deane(2) 19 3/6/94

DAWSON J: The only dispute alleged was a dispute about a

letter of demand and log of claims.

MR ROTHMAN:  Yes, Your Honour, but that does not mean it is

only a paper dispute. The mere fact that the

subject-matter of the dispute is contained in a log

of claims does not mean - or a letter - it is a

paper dispute.

DAWSON J:	It was the only dispute before the Commission.
MR ROTHMAN:	It was the evidence of the subject-matter of

the dispute, Your Honour. The letter of demand is

evidence of the subject-matter of a dispute.

DAWSON J: That is true, but in this situation where all you

have is a log of claims and a failure to comply,

that is, if you have a paper dispute, then that is

all you have, and the fact that parties pursue the

paper dispute does not mean that there exists any

other sort of dispute. I put that to you anyway.

MR ROTHMAN: Yes, Your Honour, I understand that.

Your Honour I, with respect, submit - - -

DAWSON J: In other words, there is not some underlying

dispute. This is all there is.

MR ROTHMAN:  Your Honour, that is the point to which I seek

to go, Your Honour. What I say to Your Honour is

it may be trite, it may be - I withdraw that. It

may be petty, but my point is an evidentiary one.

The prosecutor must prove that there is no

underlying dispute. The original dispute finding

was made in 1991. In 1992, the prosecutor comes

along and says there was not authority - let us

assume, for the purpose of argument, that even

before Commissioner Grimshaw at the revocation

application, the prosecutor sought to say there was

no proper authority.

The Union says, "There is a dispute finding.

If you say there is not an industrial dispute, you

prove it", and he is entitled so to do. finding was a paper dispute. That may be true,

Your Honour, but that dispute finding is not before
this Court. That dispute finding, in 1991, is not

a matter that this Court is dealing with. This

Court is dealing with the application for

revocation of that dispute finding, and the appeal

therefrom. We say, with respect, there is a

dispute; it has been found. If you seek to show

that there is no dispute then you do so, and you

must do so - - -

Deane(2)	20	3/6/94
McHUGH J:	I am sorry.	I must say I understood that that

was the question we were dealing with.

Notwithstanding that it took the form of an

application to revoke, that the prosecutor's case

is that now that all the material is in there was

never any dispute, full stop.

MR ROTHMAN:  Yes, Your Honour, and they must say that if one

takes the Illaton case. In the Illaton case the

Court made clear that for a revocation to succeed -

at least one of the ways in which a revocation

could succeed was to show that there never was an

industrial dispute. But what I am saying is that

when you show there never was an industrial

dispute, you are not entitled to say, "We will only

deal with such of the evidence that might have been

led for the purposes of finding a dispute in the

first place." One has to, essentially, deal with

all of the matters that may otherwise give rise to

the industrial dispute.

McHUGH J: Well, except that there may be an evidentiary

onus on you to combat the case they bring. They

say prima facie this is a paper dispute. There was

no paper dispute because it was not authorized.

That is the end of the case unless you produce evidence which raises a question about other forms

of dispute.

MR ROTHMAN:  That may be the case, Your Honour, and there is

a Jones v Dunkel influence and all sorts of things

that might have arise. His Honour the Chief Justice

said if I live by the sword, I die by it. Can I

just go back one step and that is to a question

that His Honour the Chief Justice asked earlier

relating to the existence of a dispute.

An industrial dispute is defined to include a

situation likely to give rise to an industrial

dispute, so that if in fact what comes before the

Commission is a letter of demand not properly

authorized but the Commission finds that the Union

adheres to the claim, then there is at least a

situation likely to give rise to an industrial

dispute.

MASON CJ: But that is a different basis for jurisdiction

and that is the point I am raising with you, that

is not the position this under the Act, that the

Commission has jurisdiction to determine a dispute

by conciliation or arbitration and that

jurisdiction is limited to determining the dispute

that is found by the Commission. So that, if in

fact there is no dispute at the end of the seven
day period, it is necessary for the Commission to

make another finding as to dispute before it can

proceed further.

Deane(2) 21 3/6/94

MR ROTHMAN:  Your Honour, I take it, is dealing with section

101 of the Act?

MASON CJ: Yes, that is what I have in mind.

MR ROTHMAN:  Yes, Your Honour, can I take Your Honour

firstly section 89 of the Act.

MASON CJ: Yes.

MR ROTHMAN:  The functions of the Commission are to prevent

and settle industrial disputes.

MASON CJ: Yes.

MR ROTHMAN:  Section 101 is the procedure whereby the

Commission makes a finding as to industrial

disputes.

MASON CJ: And is that not, under the Act, an essential

preliminary to the determination of any dispute.

The Commission first makes a finding and then

proceeds to determine the matter in accordance with

the dispute so found. Look at 101(2).

MR ROTHMAN:  Would Your Honour bear with me one moment?

MASON CJ: Yes.

MR ROTHMAN:  I am minded of a decision of the Court in R v

Turbet ex parte Australian Building Construction

Employees and Builders Labourer's Federation and I

was just trying to find it.	I do not think it is a
reference I have given.	I hesitate to give

Your Honours the recollection that I have of it.

McHUGH J:  I know you have relied on it in the past.

MR ROTHMAN:  And been chastised for it, Your Honour. was a case in which what was alleged to be a series That

of intrastate disputes was found by the Court to be one interstate dispute being a demarcation dispute	between two organizations - two then existing
organizations. I thought I actually had it with
me.

MCHUGH J: It is in 144 CLR.

MASON CJ: At 335.

MR ROTHMAN:  Your Honour, I cannot assist the Court in any

other way than to say, with some major trepidation,

that my recollection in that case was that the

Court held - - -

Deane(2) 22 3/6/94

McHUGH J: It holds, does it not, if my recollection is

right, that the Commissioner can, of his own motion

vary the dispute if there is evidence before him?

MR ROTHMAN:  Yes, Your Honour, it does, but it also holds

that -

McHUGH J:	Does it go any further?
MR ROTHMAN:	I thought it did, Your Honour, and that is the point on which it is normally cited and the point
to which it goes. But I thought it also went to
the proposition that, notwithstanding the argument
that was put before the Commission and
notwithstanding the finding of the Commission, if,
as a matter of fact, there was an industrial
dispute, the Commission had jurisdiction to deal
with it.
McHUGH J:	I think the passage you probably have in mind is

this passage in the judgment of Justice Mason who
said:

It is,open to the respondent Commissioner, at the instance of one of the parties or, in my opinion, of his own motion, after hearing

argument and, if need be, additional evidence,

to vary his finding of the dispute so as to

base it on either or both of the grounds which

I have expressed.

Is that the one?

MR ROTHMAN:	Yes, Your Honour. At page 340 of that report, in the judgment of His Honour Justice Stephen,
His Honour says this:

The wider interstate dispute which is now

said to have existed in fact and to still

persist, although not expressly acknowledge

either by the parties when before the

Commissioner or by the Commissioner himself,

is described as relating to the very issue already referred to, the allocation of the

work of handling structural steel. It is said

to have been a long standing dispute between

these two unions extending throughout eastern

Australia.

I might add "and beyond", one would have thought.

Its existence was not only well known to the

two unions but also the Commissioner -

et cetera. And at page 341, at about point 3 or 4

on the page, His Honour says this:

Deane(2) 23 3/6/94

In the light of this evidence I conclude

that there did exist between the parties an

interstate industrial dispute .•... The essence

of an industrial dispute is "disagreement

between people or groups" -

et cetera.

McHUGH J:  I recollect now. The passage you always rely on

is the passage at 342, is it not, about

prohibition?

MR ROTHMAN: Yes, Your Honour. MR ROTHMAN: Yes, Your Honour.

McHUGH J:	should prohibition go, having regard to the erroneous description given by the
Commissioner to the dispute which was before him?
MR ROTHMAN:	Yes, Your Honour. And that was a case in which

essentially the court held as a matter of

jurisdictional fact - that is a term the court

uses - a question of jurisdictional fact, there was

a dispute before the Commissioner even though it

was not the dispute identified by the parties, was

not the dispute identified by the Commissioner, but

was first identified in the Court - that is this

Court, with respect - and that, therefore, prohibition did not lie because there was no jurisdictional error, because there was in fact an
industrial dispute and the Commission therefore had

power to determine it.

MASON CJ: You have managed to conceal what your argument is

very subtly up to this point, but I now gather that

the argument is that prohibition should be refused

because it is open to the Commission to find

another dispute.

MR ROTHMAN:  Yes, Your Honour. And, indeed, we say that in

terms of the revocation application, what it is

necessary to do in the application for revocation

of a dispute is to show that there is no dispute,

not only that the evidence upon which the dispute

was first found may not necessarily be valid or

invalid, but rather that there is evidence that no

dispute in fact exists, and no dispute ever

existed. That is the point to which I go in

relation to Illaton. It is the pursuit of the

claim which gives rise to an industrial dispute,

not the service of the log of claims.

McHUGH J:  But that raises the issue as to whether or not

the Union was pursuing that claim. The evidentiary

Deane(2) 24 3/6/94

situation is very different here from Turbet's

case.

DAWSON J:  You see the employers say, "We were never asked

for these things by the Union".

MR ROTHMAN:  Your Honour, I readily concede that, for

example, if a union member, even an official on a

job, or on a site, or on a workplace, goes to the

employer and says, "We want paid maternity leave" -

being an issue current - and the employer says,

"Look, that is not a claim of the union and I am

not even going to deal with it. Go away". That

does not give rise to an industrial dispute,

because the non-accession of the log of claims is

founded upon the basis and the belief that it is

not a claim of the union in any event and we are
not going to deal with it. But there is no
evidence of that here.

How does the lack of authority of the original service of the log of claims affect an employer who

receives the letter? The employer that receives
the letter says, "I do not agree with these log of

claims". And, with respect, what prejudice arises

from, for example, the later ratification? I am

dealing with another point but the point I make is

this - - -

MASON CJ: This is an ad misericordia point?

MR ROTHMAN:	Perhaps an in terrorem argument, Your Honour. But the point I make is simply this - I cann9t put
it any higher than I have put it - it is the
pursuit of the log of claims that gives rise to it.
I have outlined in paragraph 4, at least on the
material that is before the Court now, how the
Union has pursued the claim. There is no
suggestion that any one of those steps was not authorized and invalid steps of the Union. In my
respectful submission, notwithstanding we have no
evidentiary burden, either before the Commission in
a revocation application or before this Court, in
any event, that would be sufficient to show that
the Union has pursued the claim validly and appropriately.

Your Honours, paragraph 6 goes to the

interpretation of the rules point. This is the

point that I essentially said to Your Honour the

Chief Justice some time earlier, that was never

really addressed before the Full Bench, because it

arose in a somewhat different way.

MASON CJ: That is, in effect, your client's fault, because

the Full Bench offered your client the opportunity

Deane(2) 25 3/6/94

of presenting an argument and material to support

it, but the opportunity was brushed aside.

MR ROTHMAN: Well, Your Honour, my client said that the

rules of the Union were not before the Commission,

and they were not.

MASON CJ:  But it could have put the rules of the Union

before the Commission. That is precisely the

opportunity that the Commission offered.

MR ROTHMAN: With respect, Your Honour, the Commission had

come to a view and had already seen outside of the

proceedings - - -

MASON CJ:	The view was expressed in terms of probability.
MR ROTHMAN:	Yes, Your Honour. My point simply is that the option that was given to the Union was, by decision
of the Commission, "You can rectify this" - I use
that word, hopefully, neutrally - "in one of two
ways.  You can provide as evidence of
authorization, or you can ratify." In the
circumstances they simply ratified. They were not
asked and did not present argument as to the proper
interpretation of the rules. They dealt with the
decision that had been given and an option that had
been given to them, and dealt with it in the simplest way - what was hoped to be the simplest
way.
MASON CJ:	It seems to me to have been a cavalier decision.
MR ROTHMAN:	Your Honour, I make no comment, one way or the

other. The references to the appeal book, in

relation to this matter, goes to the heart of the

submission of my learned friend, that is, that

there was not authorization. My learned friend, as

I understand it, although I have not actually heard

him address on the rule in question but, I think, relies on the rule at page 94 of the appeal book,

which is a rule relating to submission of
industrial disputes to the court.	I would have to

concede that "the court" there is a reference to

the old court, that is, the Court of Conciliation

and Arbitration, as it was.

McHUGH J:  Do secretaries of unions these days not have

standing resolutions to initiate proceedings? Is

it done on an ad hoc basis these days?

MR ROTHMAN:  My understanding is the same as Your Honours,

but I do not say - and I say quite clearly, there

is no evidence that there is a standing resolution

in this matter. There is clearly no evidence of

that but it is a point I go to essentially in

paragraph 9 of my outline, that is, that the terms

Deane(2) 26 3/6/94

of the summons to produce, and the answer thereto,
only go to the specific authorization for a

specific log of claims; do not seek material

relating to a general authorization, nor do they

seek an authorization prior to 1 January 1988.

Your Honour has taken me off the point but

Your Honour will see at appeal book 48, to which my

learned friend has taken the Court, the actual

summons to produce. Line 15, is in terms:

created on or after 1 January 1988 relating to

the matter of coverage and/or proposed

coverage by an industrial award of officers - I do not really understand that, but:

and/or employees of those persons who are

respondents in matter C No 20615 of 1991. The answer, which is at page 40 is:

"Upon searching our records, we must advise

the Commission that this organization does not

have in its possession any documentation of

the kind referred to in your summons which

specifically relates to C No 20615 of 1991 and

which specifically relates to employers

represented by Master Builders Association

Newcastle. "

McHUGH J: Nevertheless, having regard to the offer that was

made by the Commission at page 59, there was a

general authority in existence and it was open to

you to come along and produce it.

MR ROTHMAN: That is certainly true.

MCHUGH J: Yes.

MR ROTHMAN:  I cannot resile from that fact. There is no

doubt that the national executive of each of the

unions or whatever body it happens to be - they are

different bodies in different unions, but the

committee of management, to give a generic title -

is the body that is authorized to conduct

management control of the Union. It is the central

management control. Rule 30 - I am referring to

the rules of the BWIU at page 94 of the appeal book

- refers to an industrial dispute, and I am now

dealing with paragraph 6 of my outline, having

dealt with paragraph 9. Rule 30 requires that:

An industrial dispute may be submitted to

Conciliation or Arbitration -

Deane(2) 27 3/6/94

This Court can see from the heading to it, it is a

rule that has some long-standing. In fact, it has

a reference to the history of the legislation. If
one looked, for example at the Tramways case and

Linaker's case in the Commonwealth Law Reports, one

finds that from 1904 through to about 1925 there

was a requirement before the exercise of the

jurisdiction of the then Commonwealth Court of

Conciliation and Arbitration for the registrar to certify that the matter had in fact been notified,

as distinct from a letter of demand - that the

matter had in fact been notified in accordance with

the rules of the Union.

The corollary was that in schedule B of the then Conciliation and Arbitration Act there was a

requirement in the rules of a union to have a rule

as to the manner in which notification or

submission of an industrial dispute would occur.

That is still found in the Act. It is in

section 195(l)(b)(vi), and deals with the manner of

notifying the Commissioner of industrial disputes.

MASON CJ:  No doubt these things are required to be in the

rules, but what are the rules that you rely on?

MR ROTHMAN:  Your Honour, we rely on - if I can take the

Court to page 91, there is there set out the duties

of the national secretary, inter alia:

The National Secretary shall be responsible

for the general correspondence of the Union -

We say a letter of demand fits within that

description, and we say the rules of a union ought

not be strictly construed. The letter of demand is

simply correspondence between the union and an

employer, and the national secretary has the

authority so to do.

We also rely at page 94 on the fact that the

national secretary and the national president are

the persons who can sign an industrial agreement in

rule 29. We also rely on rule 32 which is on the

same page which provides that the national

secretary is the -

person to sue or be sued on behalf of the

Union -

and that in all senses the national secretary is

the chief executive officer of the Union and is

authorized to carry on the affairs of the Union

subject to - - -

McHUGH J: That is a strange rule, 32. That must have been

in there - - -

Deane(2) 28 3/6/94

MR ROTHMAN:	Almost as long as rule 30, Your Honour.
McHUGH J:	You do not sue the national secretary.
MR ROTHMAN:	Your Honour, there are times when unions are

deregistered you may have to.

McHUGH J: Yes.

MR ROTHMAN:	But nevertheless, the national secretary is entitled to sue on behalf of the union, and
Your Honour will recall, for example, in certain of
the New South Wales legislation, leaving aside for the time being Moore v Doyle, the secretary of the
union was the person who sued, not the union itself
before the chief industrial magistrate and places
like that.

McHUGH J: Yes, section 92 cases, it used to be.

MR ROTHMAN:  They have all been repealed, but yes,

Your Honour. So we say notwithstanding the

provisions of rule 30 and notwithstanding that the

national executive is clearly the committee of

management in the central management control of a

union, the national secretary has, in any event,

the power to serve a log of claims, and rule 30

deals with an existing industrial dispute and how

it is submitted, not with the creation of an

industrial dispute, and the history of that rule I

have very briefly gone to and its relationship to

the Act.

So the premise upon which the request of the

Commission, and indeed upon which my learned

friend's argument goes, fails at the outset, that

is, there is authority in the national secretary to

serve a log of claims of this kind. I should add,

Your Honour, that the other pages - - -

McHUGH J: So on your argument, if the secretary is out of

favour with the national executive and they want to

prevent industrial disputes arising, they have to

pass some resolution preventing him from initiating

any log?

MR ROTHMAN: Yes, Your Honour. But they would have to

direct him not to serve any logs of claims until

they deal with the log of claims and the industrial

dispute.

Paragraph 7 flows from paragraph 6. In a

sense I have already dealt with that matter, that

is the irregularity in the notification of the

dispute is not a jurisdictional error. If rule 30

is the rule upon which my learned friends rely,

then the fact that the submission may not have been

Deane(2) 29 3/6/94

does not deprive the Commission of finding that

there is an industrial dispute.

We say, in any event, rule 30 is additional to

the powers otherwise confined and one should not

take a strict rule or a strict view of the rules of

a union - - -

MASON CJ: Yes, you have mentioned that before and it is

dealt with in paragraph 8.

MR ROTHMAN:  Yes, Your Honour. I have dealt with

paragraph 9 in answer to a question of Your Honour

Justice McHugh. Can I deal with paragraph 10?

McHUGH J:  I think you should deal with that very quickly.

I do not think Foss v Harbottle has got much to do

with this case.

MR ROTHMAN:  Your Honour, can I take Your Honours to

Cotter v National Union of Seamen, (1949) 2 Ch 58.

I should add, of course, that the Full Bench deals with Foss v Harbottle at length.

McHUGH J:	I know they do.
MR ROTHMAN:	I remarked at the time that it would take three

non-lawyers to deal with Foss v Harbottle at

length, Your Honour.

MASON CJ: Lawyers cannot make much sense of it either.

MR ROTHMAN:  That is why they do not deal with it at all,

Your Honour. In Cotter v National Union of Seamen it commences at page 58. There is a decision of - can I take Your Honours firstly to the decision of Justice Romer at page 68 to 69. His Honour, at the

foot of page 67 refers to Foss v Harbottle. So it

is not only non-lawyers that deal with it, and then

with the explanation of Foss v Harbottle and

MacDougall v Gardiner and then quotes at length

from the decision in MacDougall v Gardiner. I do

not read that passage, but invite Your Honours so

to do.

Can I then take Your Honours to page 69. The

quote ends after a further reference to

Mozley v Alston and Foss v Harbottle and then, at about point 3 or 4 on the page, His Honour

Justice Romer says this:

But they seek to restrain the union from doing

certain acts which the union can lawfully do,

on the ground that the meeting at which it

was resolved to do those acts was not a

meeting capable of so resolving. Now, the

union is a defendant and appears by counsel at

Deane(2) 30 3/6/94

the Bar and states that, whether the meeting
in question was or was not capable of passing
the resolutions, it desires nevertheless to do

the acts in question.

Now, in my respectful submission, that accords

totally with the appearance of the Union by counsel

before Commissioner Grimshaw at the revocation

application:

Those acts are intra vires the union and are

therefore acts which can properly be resolved

upon by the majority of the union at a general

meeting regularly summoned in accordance with

the rules. That being so, it would seem to

follow that if the defendant union were an
incorporated company the present action could

not be maintained.

Can I refer, without reading, to a passage at

page 71 at the beginning of the only paragraph that

starts on that page. That decision was upheld, and

can I refer the Court firstly to page 100 in the

judgment of the Master of the Rolls at about

Foss v

point 3 on the page, and again he deals with them in the case of unions.

At page 102 point 5, he deals with whether or

not Foss v Harbottle, or the principle it is

supposed to represent, can be applied to a trade

union, and they hold it is on the basis of

Taff Vale and legal entity, in this case a fortiori

because they are created as corporations, and that is also dealt with at the foot of page 102 and the

foot of page 103 and the top of page 104 and I ask

Your Honours to deal with that in the fullness of

time.

We say essentially that the rules of an

organization are a contract or compact between the

members inter se, it is the members and only the

members who are prejudiced by a breach of the rules

of the Union, that is by someone other than a body

that might otherwise have been authorized, dealing

with the matter. And I refer the Court to the
Conservative and Unionist Central Office v

Burrell - I am sorry about the typographical error,

that should be All England Reports - and Roots v

Mutton which is a decision of the Full Court merely

going to the fact that the rules of the

organization are a contract inter se, the Full

Court of the Federal Court of Australia consisting

of the late Justice J.B. Sweeney, Justice Evatt and

Justice Deane.	I do not take the Court to those
cases.

Deane(2) 31 3/6/94

I take the Court on the question of

ratification to Bamford v Bamford, (1970) 1 Ch 212.

At pages 237 to 238 in the judgment of

Lord Justice Harman at about point Hon the page:

It is trite law, I had thought, that if

directors do acts, as they do every day,

especially in private companies, which,

perhaps because there is no quorum, or because

their appointment was defective, or because

sometimes there are no directors properly

appointed at all, or because they are actuated

by improper motives, they go on doing for

years, carrying on the business of the company

in the way in which, if properly constituted,

they should carry it on, and then they find

that everything has been so to speak wrongly

done because it was not done by a proper

board -

et cetera. I do not read the remainder but the

remainder of that paragraph is that which I rely

on. I also rely on the passage from which

His Lordship cites in the judgment of

Sir Richard Baggallay in North-West Transportation

Co v Beatty, a reference to which is given at

page 239. The other members of the Court, I should
add, agreed with His Lordship but there is a
passage at page 242 in the judgment of

Lord Justice Russell in which he refers to the

internal management rule and refers to Foss v

Harbottle and the like.

My learned friend relied on the fact that the

organization had changed to show that the
ratification could not be effective. Can I take

the Court to section 253U of the Act. Before doing

so, I should point out, as my learned friend has

pointed out, that in the case of the BWIU it was

the same organization, it continued on; that is the

Builders Workers' Industrial Union of Australia by

name change is now the Construction Forestry Mining

and Energy Union, the second respondent. Section

253U, the Act provides that:

On and after the amalgamation day, an

instrument to which this Division applies
continues, subject to subsection (2), in full

force and effect.

Subsection (2):

The instrument has effect, in relation to

acts, omissions, transactions and matters

done, entered into or occurring on or after

that day as if a reference in the instrument

Deane(2) 32 3/6/94

to a de-registered organisation were a

reference to the amalgamated organisation.

There is a definition in section 234 - I think

Your Honours are working off the red CCH copy and I

am working off the service. In section 234 Your

Honours will see a reference to the definition of the term "instrument" and indeed "instrument to

which this Division applies" and includes any

instrument of any kind. That does not take us very

much further I suppose. It includes:

any contract, deed, undertaking or agreement;
and

any mandate, instruction •....

any lease -

et cetera and, in my respectful submission, any

document, including a letter of demand, would fit

within the description of instrument and,

therefore, any reference to the deregistered

organizations becomes a reference to the

amalgamated organization and the amalgamated

organization is capable of ratifying.

That it is a merger and not simply a

deregistration and the organizations do not go out

of existence was decided by His Honour Justice Ryan

in McJannet v White, 39 FCR 1, at page 25. I do

not take the Court to it. I should add, perhaps,

that McJannet v White, of course, was the subject

of appeal and I understand is a matter now before

this Court. But it was not an appeal on that point

and, in my respectful submission, the reasoning of

His Honour is apposite.

Paragraph 13 deals with the question of the

rehearing. This Court has held on a number of occasions - I give reference to Reg v Coldham,

170 CLR, at page 272 point 5, without taking the

Court to it. The Court will also recall the

decision by majority in the Public Service

Association of South Australia v Federated Clerks'

Union, South Australian Branch, but on this point

the Court was unanimous as to the rehearing nature. Section 45 is indistinguishable from

section 88F which was considered by the Court in

Reg v Coldham and it is a rehearing. The Full

Bench of the Commission is entitled to take account

of new evidence as at the date of the appeal. The

ratification is such new evidence and was at least

evidence of a situation likely to give rise to an

industrial dispute.

I then go to O'Toole v Charles David, but put nothing further than what is in paragraph 14. If

Deane(2) 33 3/6/94

the Court please, I apologize for taking as long as

I did.

MASON CJ: Thank you, Mr Rothman. Yes, Mr Menzies. We need

not trouble you on the question whether there was

authority for the service of the log of claims and

the letter of demand at the time it was served.

MR MENZIES: If Your Honour pleases. Your Honours, as to

the reference at section 2530, the instrument, of

course, has to be an instrument of the Union.

MASON CJ: You get back to the same question.

MR MENZIES:	So that you get back to the same question. as one might, one cannot find within the rules	Try
power in the secretaries and I will not trouble

Your Honours with the detail of it; if the power is

found within the national conference or national

executive, there is no power within the secretary

my learned friend would rely upon.

Your Honours, the issue of lack of authority,

which was a question raised by, I think,

Your Honour the Chief Justice to my learned friend,

was raised in the proceedings before

Mr Justice Grimshaw, although it does not appear

very clearly or, really, at all from his -

MASON CJ: That is in the revocation proceedings or in the

initial proceedings?

MR MENZIES:  In the revocation proceedings. One gets to

that from the reference to that issue at page 50 of

the application book, part of the judgment of the

appellate court. Those are my further submission,

thank you, Your Honours.

MASON CJ: Thank you, Mr Menzies. The Court will consider

its decision in this matter.

AT 11.55 AM THE MATTER WAS ADJOURNED SINE DIE

Deane(2) 34 3/6/94