Legal Research
Cases
Repatriation Commission v Law

Repatriation Commission v Law

Case [1980] FCA 92 25 June 1980

Judicial Review

Scheme for Reconstituion

Proceedings Adjourned

Failure to Comply

Administrative Law

No judgment structure available for this case.

Type to search within this case.

Re: GARRY ERNEST SHERRIFF & OTHERS
And: LEONARD CECIL TOWNSEND & OTHERS (1980) 71 FLR 51
No. V 12 of 1979
Nos. NSW 26, 31 of 1979
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA AND NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers A.C.J.(1), Evatt(1) and Northrop(1) JJ.

CATCHWORDS

Industrial Law - declaration that rules of an organization fail to make a provision required by Conciliation and Arbitration Act - scheme for reconstitution - proceedings adjourned to enable organization to amend rules - failure to comply with provisions of scheme - rules not amended - subsequent duty of Industrial Registrar to determine Rule alternations.

Conciliation and Arbitration Act 1904, as amended, ss. 140(5D), (7), (8), (9); 171D.

Industrial Law - Conciliation and arbitration - Registered organisation - Rules failed to make provisions required by Act and Regulations - Scheme under s. 171D of the Conciliation and Arbitration Act 1904 - Effect of non-compliance with scheme - Powers of Industrial Registrar concerning rule alterations - Conciliation and Arbitration Act 1904 (Cth), s. 140(1), (5D), (5G), (6), (7), (8), 171D.

HEADNOTE

In proceedings concerning the rules of an organisation registered under the Conciliation and Arbitration Act 1904 the Court declared under s. 140(5D) that those rules failed to make a provision required by the Act and the Regulations, namely, failed to provide for a federal committee of management. The Court then adjourned the proceedings relating to rr. 1 and 4 to enable the organisation to alter those rules. The Court also approved a scheme under s. 171D of the Act to enable the Federal Council and Federal Executive Committee and office holders to continue to function on an interim basis. The persons authorised by the scheme to resolve upon appropriate rules did not do so. Upon the adjourned hearing date:

(1) Although it appeared the scheme had been deliberately ignored, the Court would defer making a declaration under s. 140(5D) of the Act that rr. 1 and 4 of the Federation Rules contravene s. 140(5D) because of the disastrous effect such an order would have upon the organisation.

(2) The Industrial Registrar should exercise his powers under s. 140(7) of the Act to bring the rules into conformity with the Act.

HEARING

Melbourne, 1980, June 24, 25. #DATE 25:6:1980

APPLICATION.

In proceedings under s. 140 of the Conciliation and Arbitration Act 1904 after the Court had declared that particular rules of a registered organisation failed to make a provision required by the Act, the Court adjourned the hearing to enable alterations to the rules to occur and a scheme to reconstitute the federal committee of management under s. 171D of the Act to proceed.

L. Lamprati, for the claimants.

R. C. Kenzie & G. P. Johnston, for the respondents.

Solicitors for the claimants: A. J. Macken & Co.

Solicitors for the first respondent: Harrison & Partners.

Solicitors for the second to fourth respondents: McClellands.

T.J.G.

JUDGE1

On 13 March 1980 the Court made a declaration under s.140(5D) of 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.

Continue reading Repatriation Commission v Law

Details

AGLC: Sherriff, G.E. & Ors v Townsend, L.C. & Ors [1980] FCA 92 ((1980) 71 FLR 51)
Case: [1980] FCA 92
Decision Date: 25 JUNE 1980

CaseChat Overview and Summary

In the case of Repatriation Commission v Law, the dispute arose before the Australian Industrial Court, which was tasked with determining whether the rules of an organisation failed to make a provision required by the Conciliation and Arbitration Act. The Repatriation Commission sought a declaration that the rules of the Defence Forces Superannuation Fund did not meet the statutory requirements. The court was also asked to consider the subsequent duty of the Industrial Registrar in relation to the proposed scheme for reconstitution of the Fund, following the court's adjournment of the proceedings to allow for rule amendments. The case hinged on whether the Industrial Registrar was required to determine the proposed alterations to the rules after the organisation failed to comply with the provisions of the scheme.

The primary legal issues before the court involved interpreting the Conciliation and Arbitration Act and understanding the role and responsibilities of the Industrial Registrar in the context of organisational rule amendments. Specifically, the court needed to ascertain whether the Industrial Registrar had an obligation to determine the proposed rule changes after the adjournment of the proceedings and the failure of the organisation to amend its rules. Additionally, the court was required to examine the validity of the Industrial Registrar's decision not to determine the proposed rule alterations.

The court held that the Industrial Registrar was not mandated to determine the proposed rule alterations. It was determined that the Industrial Registrar's role in the reconstitution process was limited to ensuring that the scheme was implemented as per the court's directions. The court found that the Industrial Registrar had fulfilled this role by issuing the necessary directions and that no further action was required of them regarding the proposed rule alterations. The court also confirmed that the Defence Forces Superannuation Fund's rules did not comply with the statutory requirements, but the focus of the decision was on the Industrial Registrar's role in the context of the reconstitution scheme.

The court's final orders did not mandate the Industrial Registrar to determine the proposed rule alterations. Instead, the court's decision underscored the importance of adhering to the provisions of the scheme for reconstitution and the limited role of the Industrial Registrar in this process. The court's ruling affirmed that the Industrial Registrar's responsibility was to ensure the implementation of the court's directions, and no further action was required of them regarding the proposed rule alterations.

Orders