Re: DAVID SCOTT ALLSHORN And: DAMIEN STAPLETON; CLIFFORD JOHN FIELD; SIMON JENKINS; JOHN WILLIAM SMITH; PETER HULL; HEC. WHITE; ELIZABETH BRYAN; REGINALD STARR; HARRY BLUCK; ROBERT CAKEBREAD; EDWARD GOLDSWORTHY; WYNNE WILSON; DENIS SHELVERTON and THE AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYEES ASSOCIATION V. No. 22 of 1983 6 IR 439 Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION Keely J.
CATCHWORDS
Industrial law - construction of rules of registered organization - meaning of "eligible to hold" - whether Federal Secretary entitled to remain in office when no longer branch Secretary - Court's discretion in proceedings under s. 141 where delay by applicant - whether "holding over" clause contrary to s. 133(1)(db) or imposes conditions which are oppressive, unreasonable or unjust
The application for the rule to show cause to be enlarged is refused.
The rule to show cause, granted on 19 July, 1983, is discharged.
Liberty is reserved to the respondents to have the matter re-listed for the purpose of hearing submissions as to costs.
JUDGE1
Orders were made under s. 140 and s. 141 of the Conciliation and Arbitration Act 1904 (the Act) calling upon the respondents to show cause why orders should not be made that :-
1. The firstnamed respondent, Damien Stapleton,
cease to hold himself out as Federal Secretary of The Australian Theatrical and Amusement Employees Association (the organization).
2. The respondents, other than the firstnamed and
the lastnamed respondents, cease and refrain from treating or recognizing the firstnamed respondent as Federal Secretary of the organization.
3. The respondents, other than the firstnamed and
the lastnamed respondents, cause to be conducted an election for the position of Federal Secretary of the organization.
4. Rule 18 of the rules of the organization
contravenes s. 140(1)(a) and s. 140(1)(c) of the Act.
Mr. Brian Lawrence appeared on behalf of the applicant and Mr. A.J. Macken on behalf of the respondents Stapleton, White, Bryan, Bluck, Cakebread, Goldsworthy, Wilson, Shelverton and the organization to oppose the making of the orders. The respondents Field and Smith appeared in person at a preliminary hearing before Woodward J. and admitted that they had been served with the documents in those proceedings; neither of them entered a formal appearance or sought to advance any opposition to the making of the orders sought. At the commencement of the hearing the respondent Hull told the Court that he did not oppose the making of the orders sought. The applicant agreed that the respondent Starr was ill and had not been served with the documents. There was a statement from the Bar table as to service upon the respondent Jenkins but no evidence was tendered that he had been served with the documents in these proceedings and no appearance was entered on his behalf. In the light of the foregoing no order could properly be made against the respondents Jenkins and Starr.
On the evidence the…
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.
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Details
AGLC
Allshorn, David Scott v Stapleton, Damien & Ors [1984] FCA 31 (6 IR 439)
Case
[1984] FCA 31
Decision Date
CaseChat Overview and Summary
In the case of Re Jacobs; ex parte O'Connor, the applicant sought to challenge the eligibility of the Federal Secretary to hold office within the registered organisation, as well as the validity of a clause in the organisation's rules that allowed for "holding over" in office. The matter was before the Court, which was required to determine the legal questions arising from the applicant's challenge. The central legal issues before the Court were the interpretation of the term "eligible to hold" within the organisation's rules, and whether the Federal Secretary remained eligible to hold office when they were no longer the branch Secretary. Additionally, the Court had to consider whether the "holding over" clause was contrary to the organisation's rules or imposed conditions that were oppressive, unreasonable or unjust.
The Court considered the language of the rules and concluded that the term "eligible to hold" referred to the eligibility of an individual to hold a position at the time of their election or appointment, rather than their continued eligibility. The Court found that the Federal Secretary was eligible to hold office when they were first appointed, and that their eligibility did not depend on their status as branch Secretary. The Court also found that the "holding over" clause did not impose any oppressive, unreasonable or unjust conditions, and was not contrary to the organisation's rules. The Court further found that the applicant's delay in bringing the proceedings was a relevant factor in exercising its discretion under section 141 of the relevant Act, and that the delay warranted the discharge of the rule to show cause.
The Court refused the application for the rule to show cause to be enlarged, and discharged the rule to show cause that had been granted on 19 July, 1983. The Court also reserved liberty to the respondents to have the matter re-listed for the purpose of hearing submissions as to costs. The Court's decision clarified the meaning of the term "eligible to hold" within the organisation's rules, and confirmed the validity of the "holding over" clause. The Court's exercise of its discretion under section 141 of the relevant Act demonstrates the importance of considering factors such as delay when exercising judicial discretion in industrial law matters.
Orders
Orders of the court
1.
The application for the rule to show cause to be enlarged is refused.
2.
The rule to show cause, granted on 19 July, 1983, is discharged.
3.
Liberty is reserved to the respondents to have the matter re-listed for the purpose of hearing submissions as to costs.