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Sharpe v Goodhew

Sharpe v Goodhew

Case [1990] FCA 272 1 June 1990

Declaration of Voidness

Validity of Registration

Invalid Name Change

Validity of Appointment

Declaratory Relief

Industrial Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharpe v Goodhew

Details

AGLC: Sharpe, C. & Ors v. Goodhew, K. & Ors [1990] FCA 272 (96 ALR 251; 33 IR 238; (1990) 36 IR 226)
Case: [1990] FCA 272
Decision Date: 01 JUNE 1990

CaseChat Overview and Summary

The applicants in this case, Sharpe and others, sought a declaration regarding the validity of their dismissal from certain positions and the appointment of others in their place. They also contested the validity of a name change of a registered union and the appointment of an administrator. The respondents, Goodhew and others, were the entities involved in the appointments and the name change. The case was heard in the Federal Court of Australia.

The legal issues addressed by the court included the validity of the dismissal of the applicants, the validity of subsequent appointments, the validity of the union's registration and name change, and the validity of the administrator's appointment. The court also considered whether it was appropriate to make findings in relation to alleged financial impropriety given the possibility of a prosecution.

The court found that the dismissals of the applicants were void, as were the appointments of the respondents. The registration of the union under the Industrial Arbitration Act was deemed valid, but the name change was declared void. The appointment of the administrator was upheld as valid. The court also found that it was not appropriate to make findings in relation to alleged financial impropriety given the possibility of a prosecution.

The court ordered that the dismissals and appointments in question were void, that the registration of the union was valid, and that the name change was ineffective. The appointment of the administrator was upheld. An account was to be taken of any sums due by one of the respondents to the union, and further relief was to be considered. The application for joinder of parties was dismissed, and questions of costs were reserved for further consideration.

Orders

Orders of the court

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.

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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Actions

Citations

Sharpe, C. & Ors v. Goodhew, K. & Ors [1990] FCA 272 (96 ALR 251; 33 IR 238; (1990) 36 IR 226)

Most Recent Citation

McJannet, V.A. & ors v White, H. & ors [1992] FCA 848 ((1992) 39 FCR 1)

Cases Citing This Decision

Sims v Commonwealth of Australia [2022] NSWCA 194
Citation 1

…tion ‘in’ unjust enrichment has no bearing on the matter because ‘a sovereign legislature is not bound to respect legal orthodoxy’( Sharpe v Goodhew (1990) 33 IR 238 at 243 per Pincus J).” 12. [2007] NSWCA 153. 13. Ibid at [15]-[16].…
Commonwealth of Australia (Royal Australian Navy) v Sims [2021] NSWDC 690
Citation 2

…ion “in” unjust enrichment has no bearing on the matter because “ a sovereign legislature is not bound to respect legal orthodoxy” (Sharpe v Goodhew (1990) 33 IR 238 at 243 per Pincus J). In a claim based on quantum meruit , time runs from when the defendant received the benefit that gave rise to the obligation to make re…
Marisha Nominees Pty Ltd v Daw [2019] SASC 77
Citation 3 (Para 24)

…causes of action "in" unjust enrichment has no bearing on the matter because "a sovereign legislature is not bound to respect legal orthodoxy" ( Sharpe v Goodhew (1990) 33 IR 238 at 243 per Pincus J). [6] [2007] NSWCA 153; see also Gott (t/a Aplro Welding Fabricators) v Commonwealth [2000] TASSC 86. [7] Coshott v Lenin […
Coshott v Lenin [2007] NSWCA 153
Citation 4

…el Lenin [2006] NSWDC 139 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 Sharpe v Goodhew (1990) 33 IR 238 Stinchcombe v Thomas [1957] VR 509 Trimis v Mina [1999] NSWCA 140 Update Constructions Pty Ltd v Rozelle Child Care Centre Pty Ltd (1990) 20 NSWLR 251 Wasada Pty Ltd v State Rail Authority of New…
Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261
Citation 5

…6 NSWLR 681 Reid v Reid (1886) 31 Ch D 402 Rust v Barnes [1980] 2 NSWLR 726 Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 Sharpe v Goodhew (1990) 33 IR 238 Smith v Budandan Enterprises (2002) 55 NSWLR 367 Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v Robertson (2000) 1 VR 465 Victorian Stevedor…
Public Service Assoc of SA Inc v Industrial Relations Court of SA & Anor No. Scciv-02-1765 [2003] SASC 407
Citation 6 (Para 9)

…y Limited (1911) 12 CLR 398, Egan v Shop Distributive and Allied Employees’ Federation of Australia, New South Wales & Ors (1979) 143 CLR 325 and Sharpe & Ors v Goodhew & Ors (1990) 96 ALR 251 where statutory provisions in aid of proof were considered. In each of those cases the provision was what may be described as a “conclusive ev…
Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) [1995] HCA 31
Citation 7

…19 See Bailey v Krantz (1985) 13 IR 339; Frizziero v Rice (1992) 36 FCR 449; 110 ALR 549; cf Sharpe v Goodhew (1990) 96 ALR 251.…
Kelly v Construction, Forestry, Mining and Energy Union (No.3) [1995] IRCA 182
Citation 8

…tigation that has taken a variety of forms: see Allen v Sideris (1984) 3 FCR 548, Geneff v Peterson (1986) 19 IR 40, Bailey v Kranz (1985) 13 IR 339, Sharpe v Goodhew (1990) 33 IR 238, Frizziero v Rice (1992) 36 FCR 449 and the earlier cases referred to by Gray J at 458. The separate identity of a state registered union h…
McJannet v White [1992] FCA 848
Citation 9

…Sharpe v Goodhew (1990) 33 IR 238…

See all citing cases →

Cases Cited

Bailey v Krantz [1985] FCA 370
Citation 1

…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 ch…
Imlach v Daley [1985] FCA 168
Citation 2

…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 …
Shrubb, David George v Air Pilots Guild of Australia [1979] FCA 77
Citation 3

…n; 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.…
Egan v Shop Distributive and Allied Employees' Federation of Australia (NSW) [1979] HCA 31
Citation 4

…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…
R v Clarkson; Ex parte [1973] HCA 57
Citation 5

…linglaw (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.…
Williams v Hursey [1959] HCA 51
Citation 6

…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:…
Stevens v Keogh [1946] HCA 16
Citation 7

…he 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. A…
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Limited [1913] HCA 71
Citation 8

…he 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 unio…
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31
Citation 9

…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 inva…
Carroll v Shillinglaw [1906] HCA 39
Citation 10

…rity 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…
Burton v Murphy [1981] QSC 274
Citation 11

…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 …
Ariff v Ariff 39 Ind App 237
Citation 12

…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. …
(1978) 1 WLR 1061 (1978) 1 WLR 1061
Citation 13

…tive 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 p…
Conservative and Unionist Central Office v Burrell (1982) 1 WLR 522
Citation 14

…eral 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 associa…
Baronness Wenlock v Riverdee Company (1888) 38 ChD 534
Citation 15

…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…
Coltman v Bibby Tankers Ltd (1987) 2 WLR 1098
Citation 16

…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 s…
(1988) AC 276 (1988) AC 276
Citation 17

…en 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…

Legislation Cited

Industrial Conciliation and Arbitration Act 1961 (Qld) 4(7), 55, 63, 69, 73
5 mentions
Industrial Arbitration Act 1916 (Qld) 26, 31, 37
4 mentions
Industrial Relations Act 1988 (Cth) 209
2 mentions
Conciliation and Arbitration Act 1904 (Cth)
1 mention
Industrial Arbitration Act 1940 (NSW)
1 mention
Trade Union Act 1881 (NSW)
1 mention
Trusts Act 1973 (Qld)
1 mention