Ryan, T.D. v Food Preservers Union of Australia

[1987] FCA 611

NOT FOR DISTRIBUTION

IN THE FEDEF'.AL COURT	) )
OF AUSTRALIA	) V No. 213
)
VICTORIA DISTRICT REGISTRY	) )
INDUSTRIAL DIVISION	)

The Applicatlon of the

Food Preservers' IJnlon of

Australla Thom s nd

._ Desmond W a n for an Order

pursuant to sectlon 17iC

of the Conclllatlon and

Arbltratlon Act 1904 In

respect: of the	Food
preservers'	Unlon Of
Australla

EX TEMPORE REASONS FOR JUDCHENT

JUDGE:	Gray J.
D B :	29th October 1987.
Thls 1 s an appllcatlon pursuant to s.171C of the

Conciliatlon and Arbltratlon Act 1904 ("the Act"). As

origlnaliy flled and as flrst amended today, the application

seeks a determlnatlon of the questlon whether an lnvalldlty

has or lnvalldltles have occurred in alterations to the rules

of the Food Preservers Unlon of Australia ("the

organization"), an organizatlon reglstered pursuant to the

Act; If such lnvalidlty is or invalldlties are found to have

occurred an order is sought to rectlfy or cause to be

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rectlfled any such invalldlty or to negatlve, modlfy, or

cause to be modlfled the consequences In law of such

invalidity or to validate any act, matter or thlnq rendered

Invalid by or as a result of such lnvalldlty.

The flrst matter ralsed by the appllcatlon lnvolves

two alteratlons to the rules of the organlzatlon, bemg

alteratlons to rules 9(a) (XI) and 5 9 . Those rules

-,hemselves concern the alteratlon of the rules 3f the

organlzatlon. The questlon whether any lnvallitlcy has

occurred ~n relaclnn to che alteratlon sf those rules denends

upon the constructlon of the former certlfl-d rule 59 and

upon the question whether the former certlfied rule 59 exlsts

in the form In whlch It 1 s certified. Thls question In turn

depends upon the extent of the powers of the Industrlal

Reglstrar pursuant to s.139(4) of the Act. Under that

sub-sectlon, the Industriai Reglstrar 1 s requlred to cerClfy that in hls oplnlon an alteratlon to the rltles of an

orqanizatlon compiles wlth and is not contrary to the

provlslons of the Act, the regulatlons or an award and 1 s not

otherwlse contrary to law and has been made In accordance

wlth the relevant procedures lald down by the rules	of	the
organlzatlon.

In the present case, the certlfled rule 59 1 s not

ln the same form as that whlch was submltted by

the organization for certiflcation. As submltted the rule

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had three paragraphs, designated respectlvely (a), (b) and

(c). The Industrial Reglstrar decllned to certlfy (b) but

was prepared to certify the other two paragraphs. The

consequence of that may well be that the constructlon	of
paragraph (c), and perhaps (a), 1s altered.

Counsel for the applicants have drawn to the

attention of the Court varlous authorities on the extent of

the Industrlal Reglstrar's power to certlfy part of an

alteratlon under s.139(4). In a declslon of the Auscrallm

Industrlal Court, Allen and Fr~rd v . Laraqv (1375) 7 X . L . R .

261 at p. 263, the Court sald that the industr-a1 Registrar could wlthhold hls certlficate from a severable part of a rule. On the other side are the judgments of Evatt J. in X?

Stapleton (1983) 50 A.L.R. 293, and Keely J. In

Apollcation by Llnsket for an Insulrv m t o an Electlon In the

Federated Clerks Union of Australla Central snd Scuthern

Oueensiand Branch, (~udqment delivered 22nd July 1 9 8 7 . not

yet reported). These two ludgments a r e authority € o r the

proposltlon that the powers of the Industrlal Reglstrar undsr

s.139(4) of the Act are llmlted to certlfylnq an alteratlon

or refusing to certlfy It and that the Industrlal Reqlstrar

has no power to certify part of an alteratlon.

In vlew of the conflict between these authorltles,

and in view of the fact that counsel for the appllcants In

the present case Indicated that they propose to Invite me, at

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least in one respect. to refuse to follow the ludgment of

Keely J. in Linsket's case, it seemed to me that it was

appropriate to consider whether the Court should order that

the proceeding be heard and determined bv a Full Court.

pursuant to s.118C of the Act.

It cannot be doubted that the question of the

extent of the powers of the Industrial Reqlstrar under

s.139(4) is of great lmportance to reqlstered orqanizatlons.

My understandlng, from experience. 1 s that che Industrial

Reqlstrar frequently purports to exerclss the pcwer to

certify part only of an alteratlon submltted to hlm under

s.139(4). If that 1s the case. then there must be many

registered organlzations the valldlty of whose rules is in

doubt, m the light of the decisions of Evatt and Keely JJ.

to which I have referred. If I were simply to decide the

matter, I would only add to the store of slngle ludge

decisions on the point. If I were to declds the matter

differently from the decisions of Evatt and Keely	JJ.	the
result would only be to confuse the law.

One of the very relevant questlons ln the

consideration of whether to refer a proceeding under s.118C

is, of course, the attltude of the applicants. Counsel for

the appllcants have indlcated that their clients do not wish

the matter to be referred to a Full Court, but rather wlsh It

to be determlned here and now. Such a positlon 1 s not to be

c

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dismissed lightly, and I do not dismlss It llghtly. It does

seem to me, however, that the posslble lmpllcatlons of any

decislon that I mlght make are such that in these

clrcumstances I ouqht to refer the matter. notwlthstandinu

the expressed wishes of the appilcants. 1 not? that under

s.liBC(l)(a), a slngle Judge of the Court nas the power to

refer the matter to a Full Court on hls own motlon.

Accordlngly, I have declded to refer the matter.

The questlon of reference hannq Deen ralsed,

counsel for the appilcants then souqht amend o the

appllcatlon further. so as to ralse auestlons of the vat ic! l ty

of varlous earller rule alteratlons whlch had Seen iertliled.

In my view. the questlon of the valldlty of those alteratlons

1s so bound up wlth the questions which arise on -he orlginal

appllcatlons that I ouqht to allow the amendment. havmg

regard to the fact hat he Industrlal 3eglstrar has

puroorted to certlr:; those of the alteratlons whlch are the

sub]ect of h13 certlflcate. It does not seem to me that the

amendment wlll add any undue dlfflculty to the proceedlng. I

therefore propose to allow the amendment.

That has In turn necessltated the glvlng of some

further directlons. They have been the sublect of dlscusslon

between the Court and counsel for the applicants and are

embodled In a handwrltten document whlch I shall lnltlal and

whlch will remain on the file. I propose to pronounce the

6.

directions	which	the	applications	have	sought	in	that
respect.

The orders that I give and the directions I make

are therefore as follows:

1.

I grant leave to the applicants to amend the application the document headed Further Amended Application, dated 29th October 1387 and flled In Court thls day.

2. The appllcatlon, as amended, be heard and determined by

a Full Court on a date to be fixed.

3 . The applicants have leave to file such further affidavit or affidavits as they may be advised. Such affidavits, together with the further amended application, and a

copy of this order to be served on:

(a) the Secretary of each branch of the Food Preservers

Unlon of Australla and,

(b) the federal Industrial Registrar

not later than seven days before the date fixed for the

further hearing of the matter.

1 .

4 . The applicant cause to be published In a daily newspaper

circulating throughout each of the following states,

namely, New South Wales. Vlctorla, South Australia and Tasmania, an advertlsement In the form of schedule A hereto not later than 4th November 1987.

5. I reserve llberty to apply on two days' notice.

6. The directions hearing 1s ad~ourned to a date to be

fixed.

7 . The whole of today's proceedlngs be transcrlbed.

8.	The documents produced by the Industrlal Registrar In
response to a subpoena be returned to the Industrlal Registrar upon the footlng that he return them to the
custody of the Court prlor to the further hearlng of
thls matter by a Full Court.

Schedule A:

Re appllcation by Food Preservers' Union of Australia and

Thomas Desmond Ryan for an order pursuant to section 171C of

the Conciliation and Arbitratlon Act 1904 In respect of the