Sharpe v Goodhew

Re: CYRIL SHARPE; ARTHUR SMITH; JOHN BURTON and PATRICK KEANE
And: KENNETH GOODHEW; BARRY DAY; IAN BARTON; RALPH ROOTS; BARRY GLOVER; GRAHAM
SMITH; STEVE HARDWICK; LES SUMMERS; P.K. BRADY; HUGHCOMBE PTY LTD; MICHAEL
SLADE; FEDERATED ENGINE DRIVERS AND FIREMEN'S ASSOCIATION OF AUSTRALASIA, JACK
KEVIN CAMBOURN and VICTOR RAYMOND FITZGERALD
No. Q I6 of 1989
FED No. 272
Industrial Law - Constitutional Law - Administrative Law - Practice and
Procedure
96 ALR 251
33 IR 238
(1990) 36 IR 226

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.(1)

CATCHWORDS

Industrial Law - validity and effect of purported incorporation of state branch of union under state law - what bodies may be registered under state law - whether mere names may be registered - effect of registration of non-existent body - effect of "conclusive evidence" provisions - preservation of invalid registrations under state legislation - question of ownership of property by state branch considered - whether invalid name change saved by registration - validity of appointment of administrator - appropriateness to make finding in relation to alleged financial impropriety where prosecution possible.

Constitutional Law - whether incorporation of state industrial union necessarily inconsistent with federal industrial law.

Administrative Law - natural justice - dismissal from office - proper notice required of alleged offence and grounds on which rely.

Practice and Procedure - joinder of parties - consideration where fresh proceedings may be brought without great inconvenience - effect of pendency of concurrent Government inquiry.

Industrial Relations Act 1988, s.209

Industrial Arbitration Act 1916 (Q.), ss.26, 31, 37

Industrial Conciliation and Arbitration Act 1961 (Q.), ss.4(7), 55, 63, 69 and 73

HEARING

BRISBANE

#DATE 1:6:1990

Counsel for the applicants: Mr G.C. Martin

Solicitors for the applicants: Duell Ford and Harris

Counsel for the respondents: Mr J.D.M. Muir QC and Mr J.C. Bell

Solicitors for the respondents: Q.D. George, Hillhouse and Co

Counsel for the FEDFA: Mr S. Rothman, Mr W.T. McMillan and

Mr L. Boccabella

Solicitors for the FEDFA: Peter Channell and Associates

ORDER

1. Declares that the purported dismissal (on or about 17 July 1989) of the applicants from the positions referred to in paragraphs 6, 7 and 8 of the statement of claim filed in QI6 of 1989 was and is void.

2. Declares that the purported appointment (on or about 17 July 1989) of the second respondents to the positions referred to in paragraph 9 of the said statement of claim was and is void.

3. Declares that the purported appointment (at a time after 17 July 1989) of the third respondents and the sixth respondent to the positions referred to in paragraph 14 of the said statement of claim was and is void.

4. Declares that the registration on the 2 March 1917 under the Industrial Arbitration Act 1916 (Q.) of the Federated engine drivers' and firemens' Association of Australasia Queensland Branch, Union of employees (sic) as an Industrial Union of Employees is presently deemed to be valid.

5. Declares that the purported change of name of the body so registered to "Federated Engine Drivers' and Firemen's Union of Employees, Queensland" on or about 28 July 1989 was and is wholly ineffective and void and that the correct name of the said body is "Federated engine drivers' and firemens' Association of Australasia Queensland Branch, Union of employees".

6. Declares that the appointment of Mr Vic Fitzgerald as Administrator, by resolution of the Federal Council referred to in paragraph 13 of the said statement of claim, was valid.

7. Orders that an account be taken by the District Registrar, Mr Graham Ramsey, of what sum (if any) is due by the first respondent Kenneth Goodhew to the said body or to Federated Engine Drivers' and Firemen's Association of Australasia and that the said District Registrar certify accordingly.

8. Adjourns to a date to be fixed consideration of directions as to the mode of taking of such account.

9. Dismisses the application for joinder of parties and other relief made by notice of motion filed on 8 May 1990 and heard on 22 May 1990.

10. Adjourns to a date to be fixed consideration of further relief, by way of declaration or otherwise, to be granted in consequence of the Court's reasons published today.

11. Reserves all questions of costs for further consideration on a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

In 1917, the Federated Engine Drivers' and Firemen's Association of Australasia (which I shall call "FEDFA" or "the federal union"), a national union, had a number of branches including one in South Queensland and one in North Queensland; there was no Queensland branch. In that year, there was a purported registration of a Queensland branch of the federal union under a State Act, the Industrial Arbitration Act of 1916 ("the 1916 Act"). The papers which led to registration are in evidence and it is unclear from them what those who produced them desired to have registered, since they are confused and inconsistent. About the time of the registration (which, if effective, incorporated the branch) there seem to have been moves towards amalgamating the southern and northern Queensland branches of the federal union, but no amalgamation was effected until some years later; a question arises as to the effect of the purported registration of the Queensland branch, prematurely, in 1917. But after the amalgamation of the two branches (North and South Queensland) occurred in 1930 or 1931, the Queensland branch functioned in the ordinary way as a branch of a federal union until 1983; that is, in State matters it looked after its own affairs but, in federal matters, it functioned mainly as a branch of the national organisation. FEDFA says the Queensland branch has "no separate corporate identity" and that it is merely a part of FEDFA. It should be mentioned that in 1949 FEDFA was deregistered by the Commonwealth Court of Conciliation and Arbitration; in 1950 it was re-registered. Nothing appears to flow from this which is of present relevance.

The litigation before me involves, amongst others, the question whether the purported registration of the Queensland branch was legally effective or should now be treated as if it were effective.
A second group of issues in this litigation concerns a dispute about the right to control the Queensland branch affairs, which dispute came to a head in 1989. A group, of which Mr Goodhew, the first respondent, was the leading spirit, attempted to displace those then in control. Because of the urgency of the matter, I delivered a separate judgment on that point on 13 December 1989, to the effect that the attempt to change control failed. There is, however, a residual question to be decided relating to that attempt to obtain control, namely the position of one of the respondents by cross-claim, a Mr V. Fitzgerald: it is said that he has been appointed administrator of the Queensland branch by FEDFA.
The third group of issues concerns the ownership of the branch property, which is worth some millions of dollars.
The fourth group of issues concerns allegations of financial wrongdoing levelled against Mr Goodhew. The origin of this problem (at least in part) may have been an attempt by some officials of the Queensland branch to conceal assets, in order to keep them beyond the reach of legislation passed or contemplated by the Queensland Government. As was, I suppose, an inherent risk of that concealment, it appears that some succumbed to the temptation to take advantage of the opportunities afforded by the resultant irregularities in the company's administration, in order to improve their own financial positions. It is not possible for me to reach a conclusion as to the final financial outcome of any misfeasance which occurred. It is however necessary, in order completely to dispose of the issues, to determine whether any sum is due by Mr Goodhew as a result of the dealings just alluded to.
Pleadings
The questions outlined have arisen in two sets of proceedings. On 7 August 1989, the applicants, who are or aspire to be officials of the branch, brought proceedings in this Court seeking, under s.209 of the Industrial Relations Act 1988, orders for performance of rules relevant to the disputes which had arisen. They also sued, under the cross-vesting legislation, for a judgment as to the ownership of Queensland branch property. Then, on 29 August 1989, the same applicants filed a notice of motion in the Industrial Court of Queensland, also seeking orders for the observance of rules. The latter proceeding was transferred to this Court by order of the Supreme Court of Queensland on 8 September 1989 so that (in my opinion, conveniently) the inter-related State and federal aspects of the problem came before the one Court.
There were, in the end, three statements of claim requiring consideration. Two of those were filed on behalf of the applicants - one in each of the State and federal proceedings. The third statement of claim was filed on 6 December 1989 by FEDFA and Messrs J.K. Cambourn and Mr Fitzgerald (mentioned above) who are described in the title, perhaps rather confusingly, as "respondents by cross claim".
It does not appear to me necessary to analyse in this section the content of these three statements of claim, or the other pleadings, but some comment on them should be made. One reason for not setting the pleaded issues out at length is that not all of them were, in the end, argued fully. A fundamental issue, in the case as fought, was the status of the Queensland branch. Mr Goodhew and the other respondents asserted that it is an incorporated body quite independent, as matters stand, of FEDFA. The argument was to the effect that its former character as a mere branch had altered completely. If that were accepted, an appropriate declaration would be necessary; none was claimed. On the other side, FEDFA asserted that what was incorporated under the State Act in 1917 was FEDFA itself, not a mere branch, but this contention is not clearly reflected in FEDFA's pleading, nor is any appropriate claim for relief made. FEDFA's pleading says, in effect, that FEDFA itself applied for registration "through its Queensland branch" and that the branch was registered. I have mentioned these points because in my view the opposing cases were, despite the pleadings, clearly put, and I would not have declined to give effect to them (if otherwise persuaded by the submissions made) because of the state of the pleadings.
Some of the legal consequences of the arguments put were not fully explored. Counsel for the respondents (Mr Muir QC and Mr Bell) contended that there was, in 1917, no Queensland branch to be registered and that seems to me correct. It leads to the result, however, that the registration was erroneously effected and I have dealt below with what appear to me to be the implications of that, a point on which the arguments touched but lightly. I have given consideration to the possibility of having the matter relisted so that this important point - the legal consequences of acceptance of the submission that there was no Queensland branch in 1917 - could be further argued, but have determined not to do so. The litigation raised the question of the current legal status of the Queensland branch and I have thought it right to decide that matter, although the paths I have followed in doing so were not, by any means, only those along which counsel for the contending parties pointed me.
Some of the questions raised in the pleadings are no longer alive, because of concessions made, and because of the judgment referred to above, delivered on 13 December last. The concessions were contained in a document dated 3 December 1989 and were as follows:

"That the dismissals of the applicants referred to in paragraph 11 of the applicants' amended statement of claim were ineffective. That the appointments referred to in paragraphs 9 and 14 of the applicants' amended statement of claim were ineffective.

That the resolution purportedly made effecting a change of name was ineffective (but it is contended that the name change is effective by virtue of registration).

That since about 1984 moneys of the State Union from time to time have been deposited in accounts not in the name of the State Union."

The dismissals referred to in para 11 of the applicants' statement of claim and in the first sentence of these concessions were part of the attempt, led by Mr Goodhew, to displace those in control of the union at the relevant time. Paragraph 11 of the statement of claim mentioned purported dismissals of the applicants from positions in the branch on or about 17 July 1989. Paragraphs 9 and 14 referred to appointments of certain of the respondents to the committee of management of the branch and to the executive of the branch. All these must be declared to be void. In my opinion, the concessions were properly made and it is unnecessary to analyse the issues which would otherwise have arisen under those paragraphs of the statement of claim, except in one respect. This is that the so-called dismissals involved a point of some general importance, which it is convenient to deal with at this stage, before dealing with the contested questions.
Dismissal
I will explain the reason why, even had the concession not been made, I would have held the dismissals referred to in the pleading to have been invalid. There is, as will appear, room for dispute as to which set of rules covered the matter. Assuming in favour of the respondent that it was r.26 of exhibit 3, in my opinion the requirements of that rule were not complied with. It provides, in part, as follows:

"By a two-thirds majority of votes taken at a meeting of the Committee of Management the meeting may by resolution decide that a Branch Official or Officials named in such resolution has been found guilty of misappropriation of funds, a substantial breach of rules of the organisation or a gross misbehaviour or gross neglect of duty or has ceased according to the rules of the organisation to be eligible to hold the office concerned and may remove them from office if found guilty. A proposal to submit such a resolution to the meeting must be notified to any such official or officials in writing not less than 14 days before the meeting is held."

It will be noted that the rule does not say whether the proposal mentioned in the second sentence must explain what is the substantial breach of rules or other ground relied on. It appears to me necessarily implicit that it will do so. A similar question arose in Carbines v. Pittock (1908) VLR 292. There a lodge rule required that complaints or charges against members be furnished in writing to the member complained of and there was provision for suspension or expulsion. The notice of charge alleged a breach of rule without saying precisely in what respect it had been breached, and that was held not to be a statement of the charge within the meaning of the rule. Here, the requirement that the proposal to submit "such a resolution" be notified to the official or officials in writing implies that it must set out, at least in substance if not in detail, what is the ground relied on. All the officials involved were told was that they were alleged to have been guilty of "substantial breaches of the rules" and the like. What they had done wrong was not disclosed to them in the document furnished under r.26, although those who were involved in the move against them were made aware of the nature of the allegations. Even if (contrary to the view just expressed) r.26 on its proper construction did not require that those charged be given proper notice of their alleged offence, the general law requires that they be given such notice. There is a presumption that powers of suspension, expulsion and the like are to be exercised in accordance with the rules of natural justice: see John v. Rees (1970) Ch 345 at 400C. The kind of notice to be given, its length and its detail may vary from case to case, but the basic principle is that those proposed to be dealt with must be treated fairly. So far from fair treatment being accorded here, the applicants were simply ambushed. The charges were known to the accusers well before the relevant meeting, but were deliberately kept from the applicants, it appears, in the hope that they might thereby be less able to defend themselves. This course of procedure was not, in the end, sought to be defended by counsel for the respondents.
I turn now to the contested issues.
Incorporation of the Queensland Branch - Constitutional Point
Section 37(1) of the 1916 Act, whose effect is preserved by subsequent statutes, provides as follows:

"Every industrial union shall, upon and during registration, become and be, for the purposes of this Act, a body corporate by its registered name, having perpetual succession and a common seal."

It was held in Bailey v. Krantz (1985) 13 IR 339 that a State law providing for incorporation of a branch of a federal union was inconsistent with the provisions of the Conciliation and Arbitration Act 1904. The reasons given included, in substance, that the federal union might wish to abolish or change the nature of the branches, and that allowing a branch to have a right to hold and deal in property separately from the federal body would be "inconsistent with the capacities and functions of the organisation itself". FEDFA argued that, in accordance with this decision, it should be held that the Queensland branch has never been incorporated.
Mr Muir submitted that I should decline to follow Bailey v. Krantz on this point and I have, with regret, accepted that submission. It was said in that case that there is no objection to registration of a branch for the purpose of State law, but incorporation is invalid (pp 376-377). In my respectful opinion, the suggested distinction between the effect of registration and that of incorporation cannot withstand scrutiny. If State law makes provision enabling a branch of a federal union to participate in the State industrial system, then the problem of possible federal abolition of the branch arises whether or not the branch is incorporated. If a branch can be effectively abolished, the provisions of the State statute enabling it to appear as a party in State industrial proceedings and similar provisions will become ineffective.
As to property, I can see no reason in law why an incorporated State branch of a federal union should not be empowered by a State statute to hold its own property. That is not of itself necessarily in conflict with any federal law.
In Williams v. Hursey (1959-1960) 103 CLR 30, one question which was decided was whether State legislation, said to prohibit political levies by a union, could stand with a provision, in the union's federally registered rules, to the contrary:

"This being the position under the Commonwealth Act, and these being the powers which the incorporated organisation has by virtue of its own registration and the registration of its rules under that Act, it must be beyond the power of any State to alter that position or to qualify those powers. No State could a priori forbid or ex post facto annul a power which is derived in this way from a law of the Commonwealth. Any attempt to do any such thing would involve a plain inconsistency within the meaning of s.109 of the Constitution. ... The State would be invading a territory which the Commonwealth has marked out as its own and for which it has made exhaustive and exclusive provision. It has laid down what is to be the law relating to the powers and functions of its own specially created corporations" (per Fullagar J. at 68-69).

These remarks cannot, in my respectful opinion, justify a view that it is beyond the power of a State simply to incorporate or register a State branch of a federal union, or both. The State branch may, after incorporation, be regulated in a way which conflicts with no federal law. The question whether particular State laws purporting to restrict or otherwise govern the activities of a branch of the federal union may fall because they are in conflict with federal law is another matter altogether.
There are no doubt limits to a State's powers of interference with federally registered unions. For example, if the State were to prohibit the conduct of all union activity within its boundaries, that would, if repeated Australia-wide, put an end to any possibility of a federal union's functioning. But it is not evident to me why merely allowing a branch of a federal union to incorporate for the purposes of pursuing purposes relevant to State law necessarily interferes with the functioning of that federal union. It is true that the idea of one corporation's being a branch of another, for any purpose, may be hard to reconcile with orthodox notions of the nature of a corporation, but a sovereign legislature is not bound to respect legal orthodoxy.
It is also true that a branch's having a dual character - as a group of persons who have the status of a branch under federal rules and as a State-formed corporation - necessarily produces legal complexity. Where property is, for example, vested in trustees for the branch, who is the beneficial owner? It may be the group of persons or the corporation, but can hardly be both. But the property is held subject to the rules, and if there is but one set of rules binding on the branch, it may not matter much, in practice, who the beneficial owner is (see Allen v. Sideris (1984) 3 FCR 548 at 565-566). In any event, it is not mere legal complexity, due to the concurrent operation of laws made by or under federal and state legislatures, which brings s.109 into operation. There is no basis for holding that the federal industrial legislation manifests an intention of covering the field, since it plainly recognises the existence of State industrial systems: see for example s.152 of the Industrial Relations Act 1988. The previous Act also recognized the existence of State-registered unions and contemplated that such unions might be branches of federal unions: s.136A of the Conciliation and Arbitration Act 1904. (The present provision is Sch.4 Cl.5 of the 1988 Act.) That provision also made such branches incapable of incorporation under State law, but it was not suggested that this restriction dating from 1971 bore upon the validity of the incorporation of this branch, many years before.
Looking at the point more broadly, it seems to have been assumed for some considerable time that legislation of the kind impugned in Bailey v. Krantz is valid. In my respectful opinion, a Court should be reluctant to run the risk of unsettling such assumptions, particularly where doing so may give rise to practical difficulties. I incline to give weight to the argument that the long life of the assumption and its having been made by many capable lawyers constitute some, admittedly not conclusive, support for its correctness. I respectfully express the view that a State statute is not, insofar as it merely provides for incorporation of a branch of a federal union, invalid under s.109 of the Constitution.
Incorporation of the Queensland Branch - Validity and Effect Under State Law
The documents which were produced to the State Registrar to achieve registration contain inconsistencies, but in my opinion the most, or perhaps only, substantial evidence of what was achieved is the Registrar's certificate, reading as follows:

"I, John James McGee, Industrial Registrar, hereby certify that on the second day of March one thousand nine hundred and seventeen, an Industrial Association (or Trade Union) of Employees called the Federated engine drivers' and firemens' Association of Australasia Queensland Branch, Union of employees, was, at Brisbane, in the State of Queensland, registered by that name under 'the Industrial Arbitration Act of 1916' as an Industrial Union of Employees".

The opposing contentions with respect to the effect of registration were, in outline, as follows.
Mr Muir argued for the respondents that there was no Queensland branch in 1917 and that the expression "Queensland branch" appeared "to have been a name brought into existence for the purposes of registration". He argued that there was not, in truth, any Queensland branch prior to 1930. I agree with these contentions. Nevertheless, Mr Muir argued (as I understood him) that the registration was perfectly good. I do not understand how that can be so; it is clear from s.26 of the 1916 Act (discussed below) that there must have been an association, or a trade union or at least a "bona fide branch" to enable registration to be effected.
Mr Rothman, on the other hand, who led Messrs McMillan and Boccabella for the federal union, said that what was registered was the federal union itself. He contended that the State registration was not effective to incorporate the federal body again and that any purported incorporation by the State statute was invalid.
I agree that the purported incorporation by the State statute was, when done, invalid, but I do so for a reason other than that advanced by Mr Rothman; I think the body on which the registration and incorporation under the 1916 Act purported to operate was non-existent at the relevant date, viz. 2 March 1917.
Mr Martin, for the applicants, argued that there was no body or group other than the federal union which could form the necessary intention to apply for registration and that the body registered was the federal union.
It is clear that there was in 1917 a federal union in existence which had a number of branches, including Southern (or "South") Queensland and North Queensland branches. See, for example, the 1913 correspondence from each of these two branches, contained in exhibit 17. There was as I have explained a purported registration of the federal union under the Conciliation and Arbitration Act 1904 in 1908, but that was invalid: Federated Engine-Drivers and Firemen's Association of Australasia v. The Broken Hill Proprietary Company Limited (1911) 12 CLR 398 ("the 1911 case") and see the report of a further proceeding between the same parties in (1913) 16 CLR 245 at p 256. The defect which had caused invalidity was cured by a statutory amendment in 1911: see p 258 of the latter report. By 1915 the federal union had over 10,000 members from all States and branches in all States. The branches had a degree of autonomy, it appears, with their own rules and their own property.
In 1916, the Queensland Parliament passed (after considerable difficulty between the two Houses) the Industrial Arbitration Act of 1916 referred to above, and its passage prompted the thought that it would be useful for some arm of the federal union to obtain registration under that Act. One possible way of proceeding would have been first to form a Queensland branch by combining the two existing branches and another would have been to seek two separate registrations, one of the Southern Queensland branch and one of the North Queensland branch; it is clear that the last mentioned course was not attempted.
Section 26(1) of the 1916 Act read as follows:

"The registrar may, on application made as prescribed, register as an industrial union under this Act any industrial association or trade union of employees.

On such registration the industrial association or trade union shall be an industrial union until such registration is duly cancelled."

Although the terms of this provision, read in isolation, might have suggested that it was impossible to register a mere branch of a union, sub-s.(6) clearly implied otherwise:

"No branch of a trade union shall be registered unless it is a bona fide branch of sufficient importance to be registered separately."

The expression "trade union", not defined in the 1916 Act presumably was intended to refer to a trade union registered under the Trade Union Act 1915 (Q.); it also appears to me to cover, albeit somewhat loosely, the federal union. Queensland statutes are, prima facie, to be read down so as to refer only to matters and things in Queensland, but that principle does not apply so as to require one to treat the words "trade union" in s.26 as referring only to unions having their being wholly within the State. That is, although apart from sub-s.(6) a mere branch would not have been registrable, that provision made a branch registrable, whether or not the trade union of which it was a branch was a purely Queensland trade union. In my opinion a Queensland branch of FEDFA could have been validly registered.
Because of the modern fashion of registration of shelf companies and the like, having a purely theoretical existence, some might approach s.26 of the 1916 Act with the preconception that it permits similar registration, of mere names. One thing which seems clear, however, is that it does not. The Registrar's power is, prima facie, limited to registering an "industrial association or trade union of employees", which means I think an organised existing body of persons (putting aside the question whether that body may be one which is already incorporated). Sub-s.26(6) may be described as an exception to that proposition, because it permits registration of a branch in certain circumstances. But the conditions prescribed for registration of a branch reinforce the construction I have put on sub-s.26(1), namely that there must be, in reality and not merely in theory, an existing industrial association or trade union to be registered. If the Registrar purported to register a non-existent body or branch he went beyond his legal authority and registered nothing. It is true that a branch of an organisation is not a legal entity and is merely a collection of people, but the expression "bona fide branch" connotes that the collection of people is an organised one, a unity in a practical sense.
Apart from the point just discussed, it is necessary to see what, if anything, was registered as an industrial union under the 1916 Act, for the purpose of determining the effect of that registration upon the federal union, which was in existence when registration occurred and of course still exists. According to counsel for FEDFA, the effect of the new registration was to give the existing body a new source of incorporation. If I accept the respondents' argument, the effect of what was done must have been to register a mere name which, over the course of many years, became an autonomous State union displacing whatever presence the federal union had in Queensland. I do not accept the ultimate conclusion which follows from either of these contentions, but am persuaded that what the Registrar purported to register was not any existing branch or body.
The application for registration was signed by Messrs Eli Shaw and G. Cochrane, the former being the general secretary and the latter the president of the Southern Queensland branch of the federal union. The application read as follows:

"IN pursuance of the provisions of 'The Industrial Arbitration Act of 1916,' we, the secretary and president (or chairman) of the Federated Engine Drivers and Firemens Association Organisation of Employees Industrial Association ... hereby make application for registration of the said Industrial Association ... as an Industrial Union of Employees under the said Act.

We annex hereto -

(1.) List of the members of the applicant Industrial Association ... of Employees (marked "A").

(2.) A list of the officers of the Industrial Association ... of Employees, viz.: - The President (or chairman), the Secretary, the members of the committee of management (or executive committee), and all salaried officers, with their official designations (marked 'B').

(3.) Two copies of the rules of the Industrial Association ... of Employees (each marked 'C').

(4.) A copy of a resolution passed in accordance with the rules by a majority of the members present at a general meeting of the Industrial Association ... of Employees, or by other competent authority in the Industrial Association ... of Employees, in favour of registration under this Act (marked 'D').

(5.) A list of callings comprised in the membership or objects of the Industrial Association ... of Employees (marked "E").

(6.) The localities or districts in which the members of the Industrial Association ... of Employees exercise their callings (marked 'F')."

It will be noted - a matter relied on by the federal union - that Messrs Shaw and Cochrane were described in the application as secretary and president of the Federated Engine Drivers and Firemen's Association Organisation of Employees, which is capable of being read as a reference, although a slightly inaccurate one, to the federal union. In the application, after the written words "organisation of employees", there was printed "Industrial Association (or Trade Union)", the last three words being struck out. The form seems to have been designed to accommodate an application by either an industrial association or a trade union, those being the two possibilities in s.26(1), quoted above.
Any impression that it was the federal union which Messrs Shaw and Cochrane truly wished to have registered under the State Act is weakened by examination of the annexures. That marked "A", the list of members of the applicant, included only South Queensland names. Annexure "B" listed the officers of the Southern Queensland branch and annexure "F" read:

"L O C A L I T I E S. ------oOo------ The Localities in which the Members of the Federated Engine Drivers and Firemen's Association exercise their calling embraces the whole of Queensland."

On the other hand, annexure "C", the copies of the rules, included the rules of the federal union (as well as those of the Southern Queensland branch).

The affidavit accompanying the application, again signed by Messrs Shaw and Cochrane, described them (twice) at the beginning as the general secretary and president of the Southern Queensland branch and, in referring to the objects, said they were set forth in rule no. 2 of the branch rules; as I have mentioned, the branch rules of the Southern Queensland branch were annexed and it is true that r.2 sets out the objects of the branch.
The affidavit, read as a whole, gives the impression that it is the Southern Queensland branch whose registration was sought, but is not unequivocal; there are references to what one would take to be the federal union at three places in the affidavit.
One ground, not argued, on which the registration of the "Queensland branch" could perhaps have been attacked is that the applicants did not, as I read the documents, apply for any such registration; they seem to have wanted the federal union registered, so far as one can tell from the confused expressions used. The register itself not being produced, the evidence on which reliance must be placed, as to what, if anything, was intended to be registered, is the registration certificate, which unequivocally purports to evidence the registration of a "Queensland branch" and makes it impossible to hold that FEDFA itself was what was registered under the 1916 Act.
Some further history must be set out, in support of the respondents' contention that there was in 1917 no Queensland branch of the union. Documents were produced from an old High Court action (exhibit 17), which show that in late 1913 Eli Shaw (mentioned above) was General Secretary of the South Queensland branch of the federal union based in Brisbane, and one James Bragg was General Secretary of the North Queensland branch based in Charters Towers. Conveniently, a copy of the audited balance sheet of the federal union, as at 31 December 1916, certified correct as at 6 February 1917, is available and it lists moneys due by the various branches, including the "Northern Queensland branch" and the "Southern Queensland branch", but there is no mention of any Queensland branch. Then on 14 May 1917, shortly after the purported registration of the Queensland branch, the federal Industrial Registrar wrote to the general secretary of the federal union acknowledging receipt of a list of members appearing on the union's roll on 31 December 1916. The roll lists members of the Northern Queensland branch and Southern Queensland branch, but no Queensland branch is mentioned. In 1918, the president and general secretary of the federal union certified a list of members which listed names and dates of joining under the heading "Southern Queensland branch" and "Northern Queensland branch". The balance sheet as at 31 December 1917, again, shows the moneys due by the Northern and Southern Queensland branches, but does not mention any Queensland branch. Rules, supposedly those of the State-registered body, were filed in 1921 and again in 1927, referring to it as the "Southern Queensland branch".
The first mention of a Queensland branch in any of the papers (other than those connected with the supposed registration of a Queensland branch in 1917) occurs in the membership roll of the federal union, filed in the federal Principal Registry on 16 May 1927. This sets out a list of members of a Queensland branch on 31 December 1926; it is noted that the first two names on the list correspond with the first two names on the list of members of the Southern Queensland branch sent to the Registry in 1917. It is safe to infer that at about this time there was at least some move towards formation of a Queensland branch. However, on 12 October 1926, Mr Shaw wrote to the Industrial Registrar, Brisbane on the letterhead of the Southern Queensland branch enclosing amended rules. The amendments were set out in a table showing the old rules and the new rules side by side; both related solely to the Southern Queensland branch. The list of sub-branches on the letterhead includes only places in southern Queensland. It does not include the sub-branches at, for example, Charters Towers or Cairns. The State registry file contains another set of rules, apparently received in August 1927, which are of the same description except that in the heading "South Queensland branch" the word "South" is crossed out and in the new rules the same has been done. On 6 December 1927, the federal union wrote to the Deputy Industrial Registrar, Melbourne, on a letterhead which listed the branches, including a North Queensland branch and a South Queensland branch, but no Queensland branch; subsequent letterheads of the same kind can be found. (However, the writers may not have troubled to correct out-of-date printed letterheads.) In 1928, Mr Shaw wrote again about alterations to the rules on the letterhead of the "South Queensland branch" and did the same later. The federal file, despite the references to a Queensland branch in 1927, contains strong evidence that no amalgamation had been, in truth, effected in 1929; for the federal union wrote to the federal Registrar on 11 December in that year setting out the officers of the branches of the above organisation. The officers of the North Queensland and South Queensland branches were separately listed, the latter being signed by Mr Shaw as general secretary. The papers also contain a printed General Secretary's Report of the South Queensland branch for the year ended 31 December 1926 and accounts of both the South Queensland branch and the North Queensland branch even later, namely for 1929.

On 27 March 1930, the federal council was told of an intention to see that "North and South Queensland became one" and that seems to have borne fruit in 1930 or 1931. There is a letter, which it is unnecessary to quote in full, dated 24 March 1931, to the President and members of the federal council which strongly suggests that it was in that year that the Queensland branch was finally formed, providing an "equitable amalgamation of our interests in Queensland". However, the next piece of evidence suggests that the Queensland branch merged in 1930.
On 19 November 1931, a letter was written to the State Industrial Registrar on the letterhead of the "Queensland branch" by one Geoff Marriott, general secretary. He enclosed copies of the federal rules and of the "Rules (known as Bylaws) of the Queensland branch of the said Organisation". The letter included the sentence:

"The Queensland branch has been reorganised and as from October 1930, the former North Queensland branch has been completely absorbed into the Queensland branch".

The documents apparently accompanying the letter included a "certificate of adoption" by the general president and general secretary of the federal union, to the effect that the new bylaws of the Queensland branch were approved by the management committee of the federal union.
To come back now to the propositions advanced by Mr Muir, he suggested that the name "Queensland branch" was "brought into existence for the purposes of registration". He drew attention to the fact that the seal of the "South Queensland branch" is affixed to all relevant registration documents and submitted that if a Queensland branch existed, that would be an odd thing to do.
I agree with these submissions, but have been troubled by the circumstance that the papers submitted to obtain registration included what purports to be a resolution passed at the "Annual Meeting og (sic) of the Queensland branch 1917"; that must be set out.
The printed application form contemplated that there would be annexed as item 4 a copy of a resolution passed in favour of registration. There was annexed a document as follows:

"RESOLUTION PASSED AT STATE CONFERENCE Composed of A

REPRESENTATIVE FROM EVERY SUB-BRANCH. ------OoO------ HELD IN BUNDABERG FROM THE 3rd to the 9th DAY OF FEBRUARY 1917, ON THE SEVENTH DAY OF FEBRUARY IT WAS

Moved by A G Cullimore,Trustee, and seconded by D McLauchlan, Trustee, that this the Annual Meeting og (sic) the Queensland Branch of the Federated Engine Drivers and Firemen's Association of Australasia, instruct and authorise the General Secretary ELI SHAW to immediately carry out the Registration of this Association under the Queensland Arbitration Act.(Carried Unanimously)

-sgd- Eli Shaw

General Secretary"

One could hardly find, after so many years, that this resolution was passed with any intention to deceive, but despite this supposed resolution, it is impossible to find that there was a Queensland branch in 1917 other than in name.
It seems clear that Messrs Shaw and Cochrane (who signed the application for State registration) held office in the South or Southern Queensland branch, as they explained in the affidavit accompanying the application. To reiterate other points, what purports to be a list of the members of the Queensland branch, sent in with the application, included no one from North Queensland. The documents were stamped with the seal of the South Queensland branch and the list of officers, including Messrs Cochrane and Shaw, was expressly described as a list of officers of the Southern Queensland branch. Perhaps most importantly, I could not find that there were any rules of a Queensland branch in 1917 and it was no doubt because of their non-existence that those of the Southern Queensland branch were produced. Then, as I have explained, in the following documents there is nothing to suggest that the Queensland branch had any claim to existence until at the earliest 1927. On this material, I find that the "Queensland branch" was, as was submitted, "a name brought into existence for the purposes of registration".
It follows that there was no branch within the meaning of s.26(6) and no right to registration under that provision. Registration of a non-existent body is a nullity: In Re Benson (1962) AR(NSW) 576.
It should be added that Mr Rothman argued, as I understood him, that there was no "association" capable of registration, within the meaning of s.26(1) of the 1916 Act. I agree with that contention and also agree that the terms of s.26(1) indicate that the intention was to provide for registration of existing bodies, either industrial associations or trade unions. But it is my opinion that there is an alternative possible justification for the registration under s.26(6), which allowed for registration of a group of trade unionists constituting neither an industrial association nor a trade union if they formed a "bona fide branch of sufficient importance to be registered separately". As I have explained, it is my opinion that the relevant trade union did not have a Queensland branch in 1917. Insofar as the respondents' argument implied that that circumstance did not affect the validity of the registration of the name of the non-existent branch, I have rejected that contention.
I have explained that it was contended that what was originally a mere branch of the federal union changed its character and became an independent body, in the course of time. That submission (which I do not accept) appears to depend mainly on the change of name in 1989, discussed below.
Insofar as it rests on consideration of the practice adopted in managing the Queensland branch - the form of the accounts and matters of that sort - it appears to me to have no substance. There was a lack of consistency in the branch officials' manifested attitude to the branch and from time to time things were done which suggested that they treated it as a body quite independent of the federal union. But nothing was proved of such a kind as to warrant a detailed analysis of that evidence, nor to require one to go into the legal problems involved in the concept of a loss of branch status by mere usage.
Saving of Registration
It remains to be considered whether, despite this initial invalidity, the registration should now be taken to be valid. One would necessarily lean in favour of a conclusion which would repair the situation, if such a conclusion is open.
The first point to be considered is whether the "conclusive evidence" provisions of the State legislation validate the registration. The relevant provision in the 1916 Act was s.31, reading as follows:

"The registrar shall issue to each industrial union registered under this Act a certificate of registration in the prescribed form, which certificate shall, until proof of cancellation, be conclusive evidence of the registration of the union therein mentioned and that it has complied with the prescribed conditions to enable it to be registered."

Section 36(1) gave the Industrial Court of this State power to cancel registration.

Subsequent State statutes corresponding to that of 1916 have each contained such a conclusive evidence provision. The present statute, the Industrial Conciliation and Arbitration Act 1961, s.55 makes provision to similar effect; it reads as follows:

"The registrar shall issue to each industrial union registered under this Act a certificate of registration in the prescribed form, which certificate shall, until proof of the suspension or cancellation of such registration, be conclusive evidence of the registration of the union therein mentioned, and that it has complied with the prescribed conditions to entitle it to be registered".

By coincidence, the leading case on the construction of provisions of this sort is the 1911 case in which the original registration of the federal union was held to be invalid, referred to above (reported in 12 CLR 398). There, the High Court had to consider, among other things, the effect of s.57 of the Conciliation and Arbitration Act 1904, which differed in no relevant respect from s.31 of the Queensland Act of 1916, the latter provision being apparently taken from the former. In the 1911 case, the first question was whether the registration was invalid for non-compliance with s.55(1) of the then federal statute, which permitted registration of two sorts of association, the second being "any association of not less than 100 employis in or in connection with any industry". The term "industry" was defined and a majority of the High Court were of opinion that there was no entitlement to registration because of lack of compliance with the requirement that the association be one "in or connection with any industry": see pp 408, 413, 423 and 451. It was argued that, because a certificate of registration had been issued, that was conclusive of the entitlement to registration. The High Court were unanimously of opinion that if the body registered was not such an association as described in the Act, the "conclusive evidence" provision did not assist: see pp 413, 424, 440, 451 and 459. The reason was perhaps most simply put by Barton J. at p 424:

"The Statute has not given to an officer of the Court power to validate anything which is void ab initio, such as the registration of an association which was in its very essence incapable of being made an organisation by the fact of registration."

In Australian Workers' Union v. Shop Distributive and Allied Employees' Association (1978) 1 NSWLR 387, a question arose as to the validity of registration of a body known as the "Australian Workers' Union" under the Trade Union Act 1881 and the Industrial Arbitration Act 1940, both New South Wales statutes. The new union had been formed by an amalgamation and the question was whether that had been done in accordance with the rules of one of the parties to the amalgamation. It was held that it had not, and that therefore a statutory pre-condition of valid amalgamation had not been complied with. The Court was faced with a "conclusive evidence" provision, namely s.14(5) of the Trade Union Act. Its terms, although similar to those of the statute with which I am concerned, are not so much like it as to make the case direct authority, but the majority, consisting of Moffitt P. and Reynolds, Glass and Samuels JJ.A., made some remarks of general application which assist here:

"A consideration of the cases show that registration in like circumstances does not of itself make valid that which is invalid. They further show that a certificate or acknowledgment of registration does not operate to validate the invalid; that, whilst the law may make provisions for registration or a certificate as to registration to regularise all that went before ... it requires clear language to confer upon the Registrar or a like official a power by Ministerial act to validate a thing which the law does not allow to be done" (416).

Subsequently, their Honours remarked:

"... we have come to the conclusion that there is nothing in the section which indicates that a statute has inferentially given to the Registrar power to validate anything which is void ab initio, merely by causing an entry to be made in a register. The whole trend of judicial authority points in the opposite direction" (p 416).

When the case went to the High Court ((1979) 143 CLR 325), the decision of the Court of Appeal was upheld and the majority found it unnecessary to consider the "conclusive evidence" provision, because they held that no certificate existed bringing the provision into operation. However, Barwick C.J. said at p 345 that:

"A certificate of registry is not conclusive evidence of the existence of a trade union."

Murphy J. was of a contrary opinion (pp 373-375).

It should be added that there is authority in the High Court, both earlier and later than the 1911 case, bearing upon the correctness of the view there adopted: see Carroll v. Shillinglaw (1906) 3 CLR 1099 at 1109 and 1114, Stevens v. Keogh (1946) 72 CLR 1 at 26, 32-3 and R. v. Clarkson; Ex parte Victorian Employers' Federation (1973) 131 CLR 100 at 111-2, 115; see also in the Federal Court, Shrubb v. Air Pilots' Guild of Australia (1979) 40 FLR 374 at 377-8.
As Murphy J. implies in the passage referred to above, the company law cases tend to give a stronger effect to saving provisions of the type under consideration: see Baronness Wenlock v. Riverdee Company (1888) 38 ChD 534 at 545, White v. Johnson (1927) VLR 310 at 319, and most importantly Ariff v. Ariff (1912) LR Ind App 237. But it seems to me that the proper course is to follow the decision in the 1911 case, with the result that the conclusive evidence provision here in question cannot have a validating effect.
It remains to be considered whether, apart from the point just discussed, any other statutory provision can prevent the result that the registration in 1917 is held, after so long a period of assumed validity, to be presently invalid. The 1916 Act to which I have referred was repealed in 1929. The 1929 Act was repealed by a 1932 Act and that in turn was repealed by the present (1961) Act. Each of the statutes contained a saving provision, to similar effect, with respect to existing registrations. The present provision is s.4(7), which states that the repeal -

"... shall not affect the continuity of the identity of any industrial union registered as such thereunder ..."

the last word referring to, inter alia, the Industrial Conciliation and Arbitration Acts 1932-1959.

It is uncertain whether these saving provisions can operate to validate the 1917 registration. Each depends upon the union in question having been already registered under the repealed Act. In particular the 1929 saving provision, s.4, saves registrations "in force at the commencement of this Act" and deems them to have been made under the 1929 Act. If there was no registration in 1917 and only a purported registration, then perhaps there was nothing to be saved.
However, the current statute contains, in my view, a strong indication that basic invalidating circumstances in purported registrations are not, when discovered, necessarily fatal. Section 73(1) of the current Act (that of 1961) provides for suspension or cancellation of registration by a Full Industrial Court, sub-para (b)(1) allowing those courses to be followed where it appears to a Full Industrial Court that:

"... an industrial union has been registered erroneously or by mistake."

The question arises whether a union registered under the 1916 Act is an "industrial union" within the meaning of this provision; that is discussed below.

The effect of s.73(1) of the 1961 Act in its then form was discussed by the Full Court of the Supreme Court of Queensland in the Federated Miscellaneous Workers' Union of Employees of Australia, Queensland Branch v. Shelberg (1984) 1 QdR 273. The appellant union had been formed under the 1961 Act by the amalgamation of two previously existing bodies, a condition of a valid amalgamation being that the two unions consist of employees engaged in the same calling or in related callings. An application was made to the Full Industrial Court based on s.73(1) of the 1961 Act, and that Court cancelled the appellant's registration for the reason that the amalgamation was invalid; the two sets of members were held to be engaged in neither the same calling nor in related callings, and that view was upheld by the Full Court of the Supreme Court. However, the latter Court set aside the order of the Full Industrial Court on the ground that s.73(1) in its then form gave the Full Industrial Court a discretion whether or not to cancel an erroneous or mistaken registration, and that in the circumstances that discretion should have been exercised in favour of refusing an order for cancellation.
Although s.73(1) has been amended since Shelberg's case, the amendments do not affect the present point.
Thomas J. in Shelberg's case points out that the federal statutory predecessor of s.73(1) used the word "shall" instead of "may" and the Queensland version did so until 1946 when an amendment replaced it by "may" (284). The significance of that change is that it appears to have been intended to enable registrations which must (apart from the change) have been treated as invalid to be preserved, in the exercise of discretion.
I respectfully agree with the view of Thomas J.:

"The fact that s 73 provides the machinery for cancellation of such an amalgamation is a recognition that it remains valid unless and until cancelled" (284-285).

The same applies to other registrations effected in breach of the Act. But the difficulty is that s.73 applies only to "an industrial union". Under the interpretation section (s.5), that expression prima facie includes only industrial unions registered under the 1961 Act. If the expression "industrial union" in s.73 is given its defined meaning, then the effect of passage of the 1961 Act must have been to take away the Full Industrial Court's right to cancel the registration of industrial unions wrongly registered under the previous successive provisions for registration. It seems unlikely that this was truly intended.

Examples can be found in which scant respect has been paid to statutory definitions, as in Coltman v. Bibby Tankers Ltd (1987) 2 WLR 1098 at 1101 (but that decision was reversed by the House of Lords: (1988) AC 276). The Court must respect the legislative intention as set out in the definition unless there is some solid reason to think that the Parliament cannot have intended it to be applied in a particular context. Here, if s.73 of the current Act is regarded as applicable only to registrations since 1961, then the legislature must have intended the Industrial Court, immediately on passage of the 1961 Act, to have no discretion to cancel registrations effected in, say, 1960.
That consequence of applying the definition in s.73 (namely to take away the power to cancel previous registration and, in particular, the discretion conferred in 1946 with respect to pre-1961 registrations) is so unlikely to have been intended that, in my opinion, one should read the words "registration of an industrial union" in s.73 as including registration of such a union under any of the series of union registration Acts going back to 1916. Obviously "industrial union" must be read down so as to apply only to State registered unions, but otherwise the expression should be given its ordinary full meaning.
Following Shelberg's case, then, and reading "industrial union" in the way I have indicated, I hold that s.73 has a curative effect; the registration, not having been cancelled, is taken to be valid. Although when it was done the registration was unauthorised by the then Act, the only means of correcting the register is by an application under s.73, which gives a discretion. Were such an application made in the present case, it would surely fail because the deficiency - that there was no Queensland branch of the federal union in 1917 - was remedied, in a practical sense, many years ago, in 1930 or 1931. But no application for cancellation has been made.
I therefore hold that the 1917 registration is presently deemed to be valid.
Property
The application filed in this Court on 7 August 1989 asked for an order with respect to property, to the effect that Mr Goodhew be directed to transfer all the Queensland branch property to "the name of the Federated Engine Drivers' and Firemen's Association of Australasia, Queensland Branch". As was pointed out during the course of the hearing, one cannot transfer property to a name but only to a legal entity, but the intention is clear enough. The same document asked for an order requiring that property vested in the fifth respondent, Hughcombe Pty Limited, be vested in the Queensland branch.

As will appear, I do not propose in these reasons the grant of any specific relief with respect to property, except ordering the taking of an account against Mr Goodhew. All other questions concerning relief as to property will be adjourned for further consideration. The following discussion is included to indicate my views as to the property questions which have arisen; counsel may make submissions later as to their consequences.
There is, in general, no difficulty in the way of a branch of a federal body owning its own property. An example is the Australian Labor Party in which, at least at the time of the decision in Burton v. Murphy (1983) 2 QdR 321, the branches of the federal body had substantial property. See also, as to the Conservative Party in the United Kingdom: Conservative and Unionist Central Office v. Burrell (1982) 1 WLR 522, and the British Labour Party: Lewis v. Heffer (1978) 1 WLR 1061. A branch may be an association in itself, as well as being part of a larger association. There is no principle of law which could invalidate rules providing for each of a central body and its branches to have their own property. There appears to have been some suggestion that Williams v. Hursey (supra) establishes the contrary, but the majority judgment in Imlach v. Daley (1985) 7 FCR 457 says:

"... an organisation, provided it complies with the requirements of the Act, the regulations and its rules, is able to mould its internal structures as it thinks fit. It is not for the Court to mould that structures to a form which the Court considers desirable" (462-463).

As to the current form of the federal union's rules, I am content to rely upon the evidence of Mr James Coogan, called by the respondents. The federal rules as at 28 July 1989 contain provision for funds of two sorts, namely a federal fund and branch funds, in accordance with s.133A of the Conciliation and Arbitration Act 1904; see also Sch.4 cl.2 of the Industrial Relations Act 1988. It is unnecessary to set out the definitions of the two sorts of funds contained in s.133A on which r.10A is based. There is no suggestion in r.10A or any other rule that the federal fund or the property of the federal union has any sort of primacy. I contrast the set of rules, having quite a different effect, referred to by the Full Court in Bacon v. O'Dea (1989) 88 ALR 486.
The rules of the Queensland branch, also federally registered, similarly contemplate that the branch shall have property. Rule 9 says:

"The Committee of Management shall be responsible for the control of the funds and property of the Branch. Such control shall include the payment of all accounts, the purchase or sale of property and the investment of Branch Funds."

The same rule appears in that version of the rules of the Queensland branch which comes from the files of the federal Commission and is set out towards the end of exhibit 15.

It is therefore clear enough that the Queensland branch has, as its federally registered rules say, funds and property which are to be managed in accordance with the branch rules, but subject to the rules of the federal union; the latter do not purport to expropriate the branch's property. Insofar as FEDFA has alleged that it owns all the branch funds, that cannot be accepted. Mr Muir put forward other reasons in support of the view that I have expressed, but it is unnecessary to deal with them. The only basis on which it could possibly be held that the branch has no property is the content of the rules; they do not support FEDFA's contention.
The question arises whether any declaration should be made in consequence of the expressions of opinion just set out. I am inclined to think that none is necessary, but am prepared to hear counsel on the point. The only specific items of property (other than cash) dealt with in the evidence are the following.

(i) There are documents relating to the purchase and sale of property at 366 Upper Roma Street, Brisbane. They include a transfer of the property to two parties, one of which is the "Trustees of the Federated Engine Drivers' and Firemen's Association of Australasia Queensland Branch Union of Employees". Use of that name is sanctioned by s.67(1) of the 1961 Act, which allows a "trade union" to purchase and sell land in the "official name" of "the Trustees of the (naming the union)". It does not appear to me that any question arises with respect to this land.

(ii) There is, however, a problem as to the ownership of property in the name of the fifth respondent (Hughcombe Pty Limited) referred to in para.8 of the application made in this Court. It is or includes a piece of property at 424 Upper Roma Street. It seems clear that the land was purchased with the funds of the Queensland branch and it is therefore held in trust for the branch: see Jacobs on Trusts, 4th ed., para.1210. According to the evidence of Mr M.G. Loane, the land is held by the fifth respondent as trustee for the "Upper Roma Street Trust".

He exhibits what he says is a "true copy of the trust deed for the Upper Roma Street Trust". Under that document, one Q.D. George, a solicitor, settled $20 on Hughcombe Pty Ltd on certain trusts. Under cl.14 there is provision for vesting further money or security or property in the trustee. Because Loane says the land is held subject to this trust, it may be that I am intended to infer that by some means the land at 424 Upper Roma Street has become subject to it. If it has, then the trustee has a wide power under cl.6 to dispose of the income and under cl.8 to dispose of the capital. For example, the trustee could transfer all the capital to one of the beneficiaries, being either those named in cl.2 or new beneficiaries appointed under para (g) of the provision. Alternatively, under cl.25 the trustee (the fifth respondent) could vary the trust as I read it, so as to cut out all the beneficiaries and substitute new ones.
Loane also says:

"The shares in Hughcombe are held by the president and secretary for the time being of the State Union in trust for the members and the articles of association restrict the position of directors and secretary of Hughcombe to the president and secretary of the State Union for the time being."

However, the articles of association are not produced and it would be inappropriate for me to proceed on the assumption that Loane has accurately stated their effect. Loane also exhibits declarations of trust by Barry Gannon (formerly a president of the branch) and the first respondent, Goodhew, each of which acknowledges that the declarer holds any shares in the fifth respondent as trustee for the trustees "for the time being as provided in the branch rules" of the Queensland branch. It is not clear who the trustees presently are, or indeed whether the power of appointment of trustees has been exercised.

I have mentioned that the application made to this Court seeks an order that all property in the fifth respondent's name is held in trust for the Queensland branch. That appears plainly to be so, but I do not regard the relief sought as appropriate. It seems desirable to vest the legal title properly - i.e. in trustees.
The Industrial Conciliation and Arbitration Act 1961 contemplates, as I have mentioned, that the property of such bodies as the Queensland branch shall be vested in trustees in the "official name of 'The Trustees of the (naming the union)'" - see s.67(1). Under s.80 of the Trusts Act 1973-1979 there is a broadly expressed power to appoint trustees and it may be that is the way this problem should be handled, if no other solution is available.
I have determined, however, since these machinery matters have not been debated by counsel, to invite further submissions on them.
Change of Name
On 23 June 1989, a resolution was supposedly passed purporting to change the name of the Queensland branch to that which it currently uses, namely the Federated Engine Drivers' and Firemen's Union of Employees, Queensland. The purported change of name was recorded under s.63 of the 1961 Act which reads as follows:

"An industrial union may, in the prescribed manner, and on compliance with the prescribed conditions, change its name and the registrar shall thereupon record the change of the name in the register and upon the certificate of registration."

The validity of the change was challenged in the pleadings and the point is in short compass. It is admitted that the purported resolution to change the name had no validity and the admission was, in my opinion, rightly made. The only question is whether or not the change of name is saved by its having been recorded by the Registrar as contemplated by s.63. Does s.55, referred to above, have the effect that the certificate is conclusive evidence?
I have dealt above with one aspect of the construction of this provision, but the cases there mentioned do not appear to me to throw any light upon the present problem, nor was I referred to any other relevant authority. On the face of it, s.55 does not seem to make legally effective an unauthorised change of name, but a contention that it does so may be based on the words "evidence of the registration of the union therein mentioned". In my view, however, it is unlikely that this was intended to force a Court to treat as good a completely unauthorised change of name, which the Registrar has been caused to believe to have been duly effected. Reading s.55 quite literally, it is the registration of the union in question which is evidenced, not any subsequent events in its history.
It was argued that s.69(1) of the 1961 Act, providing that an industrial union shall, upon and during registration, become and be for the purposes of this Act a body corporate by its registered name, has some relevance. The contention was that if a purported change of name is registered, the union not having in truth changed its name, then the registration cures the invalidity. It is my opinion that s.69(1) appears to be less susceptible of such an interpretation than s.55. In any event, I cannot read s.69(1) as evincing an intention to give legal effect to a change of name which is registered without the union's having in fact changed its name, or asked for any change to be registered.
It is necessary to observe also that s.73, referred to above, does not appear to give the Full Industrial Court any power to correct the registered name of an industrial union. All it can do is either cancel the registration wholly or cancel it as to one or more callings, areas or establishments.
To revert to s.63, it should be noticed that the Registrar's power to record the change of name is dependent upon there having been a change of name by the union; it is the union which must change the name, and the Registrar "thereupon" is to record it. Here the union did not change its name, but an assertion was made to the Registrar that it had done so. It seems to me that the error should, if possible, be corrected. It may be that the Registrar has an implicit power to correct erroneous entries. To take an example, if by a clerical slip an application to record the change of name of union A was recorded on the certificate of union B, it would be surprising if nothing could be done about that. However, I am not satisfied that the Court has jurisdiction to do any more than simply embody in a declaration the conclusion that the union has not changed its name. It will therefore be declared that the purported change of name to "Federated Engine Drivers' and Firemen's Union of Employees, Queensland" purporting to have been made on or about 28 July 1989 was and is wholly ineffective and void and that the correct legal name of the relevant industrial union is "Federated engine drivers' and firemen's Association of Australasia Queensland Branch, - Union of employees".
Amendments of Rules
FEDFA's statement of claim makes a number of assertions about the rules, to the effect that only federally registered rules are legally binding, that there has been no valid rule change in the branch since 1979 and that Queensland registered rules are inoperative where inconsistent with federal rules. It was contended by Mr Muir for the respondents that one could not, on the evidence, determine what was the sequence of rule changes, nor what rules existed at relevant times. He pointed out that it can be seen that some years ago, and in particular in 1982, there was discussion over conflicts which had appeared between the federal rules applicable to the branch and the rules registered under the State legislation applicable to the branch. Mr Muir suggested that documents which were tendered containing material relevant to the state of the rules were merely a random selection. He suggested that, insofar as FEDFA's statement of claim asserted (by para 7A) that no valid rule change had taken place since 1979, it must be rejected for lack of proper proof.
I concur in the suggestion that proof of the sequence of registration of relevant amendments cannot be seen to be complete. Further, although the respondent made some detailed submissions relevant to this subject, it was not comprehensively treated in FEDFA's submissions.
There is no reason to doubt that the federally registered and State registered branch rules have become divergent. It was contended for FEDFA that only the federally registered branch rules can take effect, from which one would deduce that the content of the State registered branch rules does not matter. But this point was not elaborated in argument and I have come to the conclusion that it simply cannot be decided, not having been in any true sense litigated. It may be that a degree of incompleteness in preparation of the case was due to the circumstance that (as mentioned above), there was a serious question as to the current control of the union; that appeared to make it necessary to bring the matter on for hearing in a rather hurried way.
It would be possible to set out certain conclusions which I have reached concerning the validity of purported changes to the rules and in particular those in 1983. I have, however, determined to delete this material from my reasons and to give no judgment with respect to the content of or validity of alterations of the rules; that is because of my lack of confidence in the completeness of the material. It should also be mentioned that because of circumstances which have occurred since the hearing, it appears that those in control of the branch are now co-operating with the federal union; it may be that the discrepancies referred to above between the federally registered and state registered rules will be attended to and, at least for the time being, remove any necessity for their consideration by the Court.
Mr Fitzgerald
It is not clear to me that the issue now to be dealt with is still alive. Paragraph 13 of the applicants' statement of claim in the proceedings in this Court (QI6 of 1989) alleges that Mr Vic Fitzgerald was appointed administrator of the Queensland branch on 4 August 1989 by resolution of the federal council. There is a question whether that appointment was validly made.
The evidence shows that Fitzgerald wrote as Assistant General Secretary of FEDFA on 25 July 1989, giving details of charges proposed to be brought against Mr Goodhew. On 4 August the federal council found Mr Goodhew guilty of six of the charges and suspended him forthwith from his position of branch secretary. At that stage, the branch had no president (the former president Mr Gannon having resigned earlier) and the federal council decided to appoint Mr Fitzgerald in view of Mr Goodhew's suspension or until both positions were filled. He was to "carry out the functions and exercise the powers ... for either or both the Branch President and Branch Secretary".
I was not referred to any authority, nor have I found one, which gives direct assistance as to the validity of Mr Fitzgerald's purported appointment. It is true that the federal rules contemplate that the branches shall have their own officers and it is arguable that vacancies should be filled in accordance with the branch rules, not by decision of the federal council. However, it appears to me that r.6(f) of the federal rules is wide enough to justify what was done:

"The powers of the Federal Council shall be legislative and administrative in character and shall include the jurisdiction over all Branches, the power to form, suspend, cancel, or otherwise deal with Branches, and to define the areas within which the Branches may operate."

This rule is so framed as to enable federal council interference in the management of branches, no doubt subject to an implied limitation that such interference be reasonably necessary. It is clear that at the time of Mr Fitzgerald's appointment there was a crisis in the management of the branch, and I have come to the conclusion that his appointment was valid. It will be so declared.
Mr Goodhew
A barrister appointed by the State government, shortly after these proceedings began, to investigate amongst others matters overlapping those with which I am concerned has recently, I am informed, made his report. It seems evident that the investigations of fact underlying the report were much more comprehensive, as to certain financial questions, than those the results of which were presented to me. It appears that the report recommends certain prosecutions. In these circumstances, there is a risk that material which might be published in these reasons concerning Mr Goodhew could be relevant in any prosecution which might be brought against him. There is plainly evidence suggesting the necessity of a careful scrutiny of financial dealings involving the branch and Mr Goodhew, but it seems undesirable, in the circumstances, to publish at this stage my views concerning the evidence against Mr Goodhew relating to financial matters.
It was admitted that accounting matters need to be investigated, and the only question raised is as to how that should be done. Counsel for FEDFA, who appeared before me in an interlocutory hearing in these proceedings recently, suggested that it would not be appropriate to appoint the Registrar to take an account, since questions of credit and the like arise.
Despite that submission, I propose that the District Registrar shall be appointed to take an account, as O.39 r.9 contemplates may be done. It is my view that such appointments need not be, under the rule, and are not in practice, confined to instances where there is no dispute of fact.
I should add that counsel for Mr Goodhew suggested at the hearing that the best procedure would be to have an accountant investigate this aspect, but it seems clear to me that no such course should be followed.
What I propose to do, subject to any further submissions, is to appoint the District Registrar, Mr Graham Ramsey, to take an account, but to adjourn to a date to be fixed any consideration of directions as to the mode of taking that account; when the applicants or Mr Goodhew wish to have the matter pursued further, it can be relisted for consideration of such directions. There is no absolute rule that would require the taking of the account to await the institution (if any occurs) of criminal proceedings and their conclusion; that is a matter of discretion, but I say nothing, the matter not having been argued, as to the way that discretion should be exercised here.
Since the principal hearing, I have made an order of an interlocutory kind against Mr Goodhew concerning the possession of a motor vehicle said to belong to the fifth respondent, Hughcombe Pty Ltd.
In addition, a notice of motion was brought before me on 22 May, seeking an order for the joinder of additional parties. The order sought is explained in more detail below, but its general purpose may be said to be to pursue, in various ways, funds said to have been improperly abstracted from the Queensland branch.

The argument which Mr Boccabella advanced in favour of the notice of motion relied upon the degree of familiarity I have acquired with the rather tangled affairs of the branch. On the other hand, there are countervailing considerations. One is that the persons proposed to be joined have not, of course, had the opportunity of contesting the matters so far dealt with. It was suggested by counsel for one of the proposed new respondents that that would constitute a significant practical obstacle, but on reflection, I am inclined to think it will not. A more potent consideration is that the claims sought to be made may, if not allowed to be brought here, presumably be pursued in another Court, such as the Supreme Court of Queensland. I do not propose to recapitulate the unfortunate history of the relationship between this litigation and the State Government inquiry still being conducted by Mr Cooke QC. It has been held that the conduct of the inquiry was not, at least at the date of the Full Court's decision, likely to involve any contempt of this Court, and of course I accept that. Mr Cooke has, however, chosen to include in his recently published report some irresponsible and mischievous criticism of this Court (including, as I read his language, the Acting Chief Justice and Full Court), which illustrates the dangers inherent in the present situation. Sheppard J., in giving his reasons in the Full Court, made some suggestions as to the proper way for Mr Cooke to proceed; see the report in 91 ALR 447 at 458. Those suggestions were apparently ignored. Since it appears that conduct of that kind may well be repeated, it seems to me desirable that this Court, no other defence of its position being available, should have as little as practicable to do with the further conduct of the matter.
The notice of motion to which I refer seeks the joinder of William Barry Gannon, Annette Gayle Goodhew, Stanley Morgan Goodhew, Avro Ethel Goodhew and Davis Weinglass and Co. The statement of claim proposed to be delivered against these people alleges, in effect, that moneys were wrongly abstracted in one way or another by some of them, and that Davis Weinglass and Co., as accountants and auditors negligently failed to draw attention to the defalcations.
As was pointed out during the hearing of the notice of motion, these are matters which may be made the subject of fresh proceedings without any great inconvenience accruing. The only awkward aspect of taking this course is that it will leave for decision in this Court the taking of the account against Mr Goodhew. However, if any party believes it to be inconvenient to have that matter left in isolation, as it were, an application for transfer under the cross-vesting legislation could be made.
The notice of motion heard on 22 May 1990 will be dismissed and the orders mentioned earlier in these reasons will, of course, be made.

[1990] FCA 272

01 JUNE 1990