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

Case [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

2 .

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

3

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

4 .

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

3.

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

Details
AGLC
Ryan, T.D. v Food Preservers Union of Australia [1987] FCA 611
Case
[1987] FCA 611
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the Food Preservers' Union of Australia, represented by Thomas Desmond Ryan, filed an application under section 171C of the Conciliation and Arbitration Act 1904. The application sought a determination on the validity of alterations to the union's rules and the potential consequences of any invalidity, including rectification or validation of the affected rules. The primary focus was on two specific rule alterations: rules 9(a)(xi) and 59. The court needed to decide whether these rule changes were validly certified by the Industrial Registrar and whether the Registrar had the authority to certify only parts of a rule alteration.

The court addressed the central issue of whether the Industrial Registrar had the authority to certify only parts of a rule alteration under section 139(4) of the Act. The court considered conflicting judicial opinions on this matter. The Registrar had certified two out of three paragraphs of rule 59, withholding certification from the second paragraph. The court recognized the significance of this issue for registered organizations and acknowledged the potential confusion if the matter were decided by a single judge.

Given the importance and potential wide-reaching implications of the decision, the court decided to refer the matter to a Full Court for determination. The applicants, however, indicated they preferred the matter to be decided by the current judge. Despite this preference, the court found that the implications of the decision warranted a Full Court hearing to ensure a consistent and authoritative resolution of the issue. The court also allowed an amendment to the application to include the validity of earlier rule alterations certified by the Industrial Registrar.

The court issued several orders to manage the proceeding. It granted leave to amend the application, referred the case to a Full Court, and allowed the applicants to file further affidavits. The applicants were directed to serve these affidavits and a copy of the court's order on relevant parties. Additionally, the court mandated the publication of an advertisement in specified newspapers and reserved the liberty to apply on short notice. The court also arranged for the transcription of the proceedings and the return of documents produced by the Industrial Registrar.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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