Sutton v Sharp (No 3) - [2000] IRCA 1

INDUSTRIAL RELATIONS COURT OF AUSTRALIA
Sutton v Sharp (No 3) [2000] IRCA 1
SUPPLEMENTARY
REASONS FOR JUDGMENT
and
SCHEDULE
SPENDER, RYAN and NORTH JJ
MELBOURNE
12 MAY 2000

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 4819 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP
First Respondent

THE STATE OF VICTORIA and STEPHEN GEORGE ALLEY
Second Respondents / Appellants

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4820 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

and

MICK YOUNG & ORS.
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4821 OF 1995

BETWEEN:

JOHN ATKINSON & OTHERS
Appellants

AND:

JOHN DAVID SUTTON & OTHERS
Respondents

VI 4822 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

and

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent / Appellant

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondent / Appellants

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

JUDGES:

SPENDER, RYAN AND NORTH JJ

DATE OF ORDER:

12 MAY 2000

WHERE MADE:

MELBOURNE

MINUTES OF ORDER
THE COURT ORDERS THAT the Orders made on 10 March 2000 insofar as they purport to have been made in proceedings numbered VI4821 and VI4822 be set aside.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 4819 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP
First Respondent

THE STATE OF VICTORIA and STEPHEN GEORGE ALLEY
Second Respondents / Appellants

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4820 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS.
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4821 OF 1995

BETWEEN:

JOHN ATKINSON & OTHERS
Appellants

AND:

JOHN DAVID SUTTON & OTHERS
Respondents

VI 4822 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

and

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent / Appellant

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondent / Appellants

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

JUDGES:

SPENDER, RYAN AND NORTH JJ

DATE:

12 MAY 2000

PLACE:

MELBOURNE

SUPPLEMENTARY REASONS FOR JUDGMENT
THE COURT:
1. By letter dated 11 April 2000 the solicitors for Mr Sutton and the Construction, Forestry Mining and Energy Union expressed concern as to whether the orders of the Court of 10 March 2000 should have been made in any of these proceedings other than VI4820 of 1995. The legal advisers for other parties were given an opportunity to respond to that suggestion. In the light of the ensuing correspondence the Court considers that the orders of 10 March 2000 should only have been made in the proceedings numbered VI4819 and VI4820 of 1995. Insofar as the orders purport to have been made in VI4821 and VI4822 of 1995 they are set aside. The orders of 10 March 2000 reflecting the disposition by the Court of the matters remitted to it by the High Court are those set out in the Schedule to these reasons.

I certify that the preceding paragraph is a true copy of the Supplementary Reasons for Judgment herein of this Honourable Court.

Associate:
Dated: 12 May 2000

SCHEDULE

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 4819 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP
First Respondent

THE STATE OF VICTORIA and STEPHEN GEORGE ALLEY
Second Respondents / Appellants

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4820 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

and

MICK YOUNG & ORS.
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

JUDGES:

SPENDER, RYAN AND NORTH JJ

DATE OF ORDER:

10 MARCH 2000

WHERE MADE:

MELBOURNE

MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The appeals from the judgment and orders of Wilcox CJ of 23 August 1995 be allowed in part.
2.Paragraphs 3 and 4 of the declarations and orders made by Wilcox CJ on 23 August 1995 be set aside.
3.Liberty be reserved to any party to apply on not less than 72 hours notice in writing to the other parties.

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

INDUSTRIAL RELATIONS COURT OF AUSTRALIA
Sutton v Sharp (No 3) [2000] IRCA 1
INDUSTRIAL LAW - registered organisations - purported merger of deregistered organisation (BLF) with registered organisation (CFMEU) - possession and control of property of BLF committed to Custodian by Order in Council - prohibition on disposition of property of BLF without consent of Custodian - filing of defence by Custodian constituting exercise of option to avoid disposition of property of BLF - whether vitiated by mistake of law or otherwise an improper exercise of discretion.
STATUTORY INTERPRETATION – where continued operation of legislation expressed to be dependent on provisions having been proclaimed to commence – whether purported proclamation that different provisions commence on different days effective – whether necessary for continued operation that proclaimed commencement take effect – where decision-maker believed transaction void without any exercise of option to avoid – whether option validly exercised by decision-maker manifesting intention to avoid transaction
CONSTITUTIONAL LAW – where rule of registered organisation allegedly denied effect because of inconsistent state legislation – whether same rule a “law of the commonwealth” by virtue of provisions of Industrial Relations Act 1988 (Cth) prescribing procedures for alteration of rules – whether state legislation invalid for inconsistency – where state legislation enacted scheme to deal with state assets of deregistered organisation on behalf of former members – whether purpose of scheme imposed burden or restriction on interstate intercourse – whether scheme appropriate and adapted to expressed purpose
Commonwealth Constitution ss 92, 109
BLF (De-recognition) Act 1985 (Vic) s 11
BLF (De-recognition) (Amendment) Act 1987 (Vic)
Industrial Relations Act 1988 (Cth) s 205
Conciliation and Arbitration Act 1904 (Cth)
Builders Labourers’ Federation (Cancellation of Registration) Act 1986 (Cth)
Builders Labourers’ Federation (Cancellation of Registration – Consequential
Provisions) Act 1986 (Cth)
Interpretation of Legislation Act 1984 (Vic) s 10A
Sutton v Sharp [No 2] (1995) 62 IR 121
State of Victoria v Sutton (1998) 156 ALR 579
Sharp v Sutton (1996) 73 IR 185
Entwistle v Parkes [1991] 1 VR 317
Flinn v James McEwan & Co [1991] 2 VR 434.
Bailey v Krantz (1985) 13 IR 339
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529
Charles Marshall Pty Ltd v Collins (1957) 96 CLR 1
T.A. Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177
Metal Trades Industry Association v Amalgamated Metal Workers and Shipwrights’ Union (1983) 152 CLR 632
Sharp v ABLF (W.A. Branch) [1989] WAR 138
Cunliffe v Commonwealth of Australia (1994) 182 CLR 272
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
SPENDER, RYAN and NORTH JJ
MELBOURNE
10 MARCH 2000

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 4819 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP
First Respondent

THE STATE OF VICTORIA and STEPHEN GEORGE ALLEY
Second Respondents / Appellants

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4820 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

and

MICK YOUNG & ORS.
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4821 OF 1995

BETWEEN:

JOHN ATKINSON & OTHERS
Appellants

AND:

JOHN DAVID SUTTON & OTHERS
Respondents

VI 4822 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

and

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent / Appellant

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondent / Appellants

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

JUDGES:

SPENDER, RYAN AND NORTH JJ

DATE OF ORDER:

10 MARCH 2000

WHERE MADE:

MELBOURNE

MINUTES OF ORDER
THE COURT ORDERS THAT:
1.The appeals from the judgment and orders of Wilcox CJ of 23 August 1995 be allowed in part.
2.Paragraphs 3 and 4 of the declarations and orders made by Wilcox CJ on 23 August 1995 be set aside.
3.Liberty be reserved to any party to apply on not less than 72 hours notice in writing to the other parties.

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

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 4819 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP
First Respondent

THE STATE OF VICTORIA and STEPHEN GEORGE ALLEY
Second Respondents / Appellants

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4820 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondents

MICK YOUNG & ORS.
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

VI 4821 OF 1995

BETWEEN:

JOHN ATKINSON & OTHERS
Appellants

AND:

JOHN DAVID SUTTON & OTHERS
Respondents

VI 4822 OF 1995

BETWEEN:

JOHN DAVID SUTTON
First Applicant

and

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Applicant

AND:

IAN GORDON SHARP and STEPHEN GEORGE ALLEY
First Respondents / Appellants

THE STATE OF VICTORIA
Second Respondent / Appellant

JOHN ATKINSON & ORS
Third Respondents

JOSEPH FERGUSON & ORS
Fourth Respondent / Appellants

MICK YOUNG & ORS
Fifth Respondents

RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein)
Sixth Respondent

and

JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF)
Seventh Respondents

JUDGES:

SPENDER, RYAN AND NORTH JJ

DATE:

10 MARCH 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
THE COURT:

On 23 August 1996, this Court as presently constituted, dismissed an appeal from orders made by Wilcox CJ, which are to be found in Sutton v Sharp [No 2] (1995) 62 IR 121. By special leave, an appeal from the orders of this Court was heard by the High Court and allowed on 2 September 1998. By its order of that date the High Court directed that:
“2.The order of the Full Court of the Industrial Relations Court of Australia be set aside.
3.The matter be remitted to the Full Court of the Industrial Relations Court of Australia to determine any remaining issues under a notice of contention in or to the effect of that filed by the respondent in this Court [the High Court] and dated 1 April 1997.”
That notice of contention was in these terms:
“NOTICE OF CONTENTION
The First and Second Respondents wish to contend that the decision of the Court below should be affirmed but on grounds other than or in addition to those relied upon by the Court below.
GROUNDS
1.Section 11 of the BLF (De-recognition) Act 1985 required all the provisions of the Act be proclaimed to commence before the expiration of one year.
2.The BLF (De-recognition) (Amendment) Act 1987 was not effective to revive the provisions of the BLF (De-recognition) Act 1985 which ceased to have effect on 30 July 1986.
3.The BLF (De-recognition) (Amendment) Act 1987 was not effective to validate the Order in Council of 13 October 1987.
4.Clause 2 of the Supplemental Order in Council of 10 November 1987 was invalid.
5.The Victorian legislation was overridden by Section 205 of the Industrial Relations Act 1988 (Cth).
6.The Victorian legislation was invalid in that it sought to affect and/or restrict the activities and actions of persons outside the State of Victoria. In this case it is relied upon to avoid an agreement entered into by parties in New South Wales.
7.The Victorian legislation was invalid in that it contravened the provisions of Section 92 of The Constitution in that it restricted, impeded or hindered intercourse among the States.”
By order made by consent on 9 March 1999 the following words were added to paragraph 3 of the order quoted above:
“or such other issues as that Court may allow.”
The respondents Sutton and the Construction Forestry, Mining and Energy Union (“the CFMEU”) sought to invoke the exercise of the discretion thus reposed in this Court by the High Court by raising the following issue expressed as an additional paragraph 8 to the notice of contention which we have already set out:
“8.The exercise of the power of avoidance by the Custodian by the filing of his Defence on 28 October 1994 was contrary to law and/or invalid in that –
(a)It was not for a purpose prescribed by the BLF (De-recognition) Act 1985 (Vic) and the Orders in Council validly made thereunder;
(b)In the exercise of the power, the Custodian misdirected himself in law, took into account extraneous matters, failed to take into account relevant matters, and made a decision which was wrong in all the circumstances;
(c)The Custodian’s decision was so unreasonable that no reasonable decision maker, properly exercising the discretion reposed, could have come to it;
(d)The Custodian in deciding to void the transaction, failed to afford procedural fairness to the persons affected by it, including the Respondents for whom we act;
(e)The Custodian did not, as required by the Orders in Council, act to void the transaction within a reasonable time;
(f)In the alternative to the immediately preceding paragraph, the Custodian, by failing to exercise his discretion, to void the transaction within a reasonable time, had waived or was estopped by 28 October 1998 from exercising said discretion.”
Before proceeding to examine the issues raised by the amended notice of contention, we should rehearse part of the factual background to the earlier proceedings in this Court and the High Court.
A. LEGISLATIVE AND FACTUAL BACKGROUND
The Australian Building Construction Employees’ and Builders Labourers’ Federation (“the BLF”) had for many years been an organisation of employees registered under the Conciliation and Arbitration Act 1904 (Cth). By force of that legislation the BLF enjoyed the legal personality of a body corporate. Another Commonwealth Act, the Builders Labourers’ Federation (Cancellation of Registration) Act 1986 (“the Cancellation Act”) which came into operation on 14 April 1986 cancelled the registration of the BLF under the Conciliation and Arbitration Act. In conjunction with the Cancellation Act, the Builders Labourers’ Federation (Cancellation of Registration – Consequential Provisions) Act 1986 (“the Consequential Provisions Act”) provided that in consequence of the Cancellation Act the property of the BLF was to belong to an incorporated association and to be administered in accordance with its constitution and rules. That had the effect, as explained by Gaudron, Gummow and Hayne JJ in State of Victoria v Sutton (1998) 156 ALR 579 at 581, of preserving, in relation to the BLF, the operation of s 143(6) of the Conciliation and Arbitration Act.

Legislation of the State of Victoria, the BLF (De-recognition) Act 1985 (Vic) (“the De-recognition Act”) was also directed to the BLF. The De-recognition Act received the Royal Assent on 30 July 1985 and s 7 which commenced on 1 August 1986 provided:
(1)     For the purpose of protecting the rights of persons who have ceased to be members of BLF, the Governor in Council may by Order published in the Government Gazette provide for the restriction of the use of funds or property of BLF and for the control of those funds or that property.
(2)     An Order made under sub-section (1)-
(a)shall come into force upon the date of publication of the Order in the Government Gazette; and
(b)shall, unless sooner revoked, cease to be in force at the expiration of 6 months from the date on which it came into force but may, at any time while it remains in force (including a time when it remains in force by virtue of a previous extension or previous extensions under this paragraph), be extended in duration by a further Order made by the Governor in Council and published in the Government Gazette.
3.     A person shall not contravene an Order made under sub-section (1).”
Section 11 of the De-recognition Act provided:
“This Act shall cease to have effect at the expiration of one year after the day on which it receives the Royal Assent unless-
(a)all of the provisions of this Act have by then been proclaimed to come into operation; or
(b)this Act is sooner repealed.”
However, ss 2(2) and 6 of the BLF (De-recognition) Amendment Act 1987 (Vic) (“the 1987 Act”) operated to repeal s 11 of the De-recognition Act. Accordingly, as noted in the joint judgment in State of Victoria v Sutton, at 584 “the operation of the De-recognition Act was continued beyond 30 July 1986”. The 1987 Act also amended s 7(1) of the De-recognition Act with effect from 13 October 1987. As so amended, s 7(1) of the De-recognition Act provided:
“For the purpose of protecting the rights of persons who are or have ceased to be members of BLF, the Governor in Council may by Order published in the Government Gazette provide for the restriction or distribution of the use of funds or property of BLF and for the control, vesting and realisation of those funds or that property.”
An Order in Council made on 13 October 1987 committed “possession custody and control of the funds and property of the BLF in Dr Sharp as ‘Custodian’”. By cl 7 of the Order in Council, the Custodian was required “forthwith” to “take possession custody and control” of the funds and property of the BLF. Clause 5 of the Order in Council restricted the ability of other persons to deal with the same funds and property, and by cll 2 and 3, it was provided:
“2. No person shall pay or dispose of any of the funds or property of BLF or of any interest therein, or create any encumbrance or charge in respect thereof, without the prior written consent of the Custodian. Any such payment disposition encumbrance or charge shall be void, at the option of the Custodian.
3. The Custodian may refuse to give consent referred to in clause 2 hereof if he in his absolute discretion is not satisfied that the payment disposition encumbrance or charge is desirable to be made for the carrying out of the ordinary and proper affairs of BLF and for the benefit of its members.”
The 1987 Act which was deemed to commence on 13 October 1987 inserted into the De-recognition Act the following new sub-section:
“7(4) The Order in Council declared to be made pursuant to section 7 of this Act and Section 5 of the Police Regulation Act 1958 and published in the Government Gazette on 13 October 1987 is hereby declared to be and to always have been as valid as if enacted herein.”
On 10 November 1987 a Supplemental Order in Council was made which contained, amongst others, these clauses:
“Vesting Assets
2.     The Custodian may vest in himself as Custodian any funds or property of BLF.
Powers of Custodian
3.     In addition to any other powers the Custodian shall have absolute power to bring and defend any action in relation to such funds or property in his position as Custodian.
4.     The Custodian may pay out of the funds or property of BLF the costs, charges and expenses which he incurs or is put to in or about the carrying out of his powers or duties as Custodian, but not so as to include his remuneration or that of any of his assistants or employees, or any of his office costs, charges or expenses, or any costs, charges or expenses of any investigation into the affairs of the BLF.
5.     The Custodian may pay out of the funds or property of BLF any debt or liability of BLF or of its members as such which is established to this [sic] satisfaction.”
A further supplemental Order in Council made on 22 December 1987 was designed to facilitate an investigation of the affairs of the BLF by two investigators who had been named in the earlier Order of 10 November 1987. The Orders in Council were extended pursuant to s 7(2) of the De-recognition Act at intervals of more or less six months each. The most recent extension for present purposes occurred on 2 March 1995 and operated until 1 September 1995.
The steps taken by the Custodian by way of taking possession, custody and control of the funds and property of the BLF have been described as follows in the joint judgment in State of Victoria v Sutton at 586:
“21. Pursuant to the first Supplemental Order, the Custodian took steps to vest in himself the funds on deposit of the BLF in Victoria. The Custodian did not obtain the registered title of the parcels of land. However, the Custodian caused the entry on the relevant certificates of title of Queen’s caveats under s 106 of the Transfer of Land Act. These were lodged on 16 May 1988 and forbade the registration of any dealing by the registered proprietors ‘without the consent of the Custodian under the [De-recognition Act] first obtained (Order of the Governor in Council made 13 October 1987, Clause 2)’. Yet, in circumstances apparently not disclosed by the evidence, by order of the Registrar of Titles dated 26 October 1993, [presumably made under the Transfer of Land Act s 58] the lands were ‘vested’ in three persons who appear to have been officers or members of the BLF and were, it may be assumed, new trustees. The order was entered on each certificate of title on 9 May 1994.
22. Accordingly, even after the Supplemental Orders took effect, the legal title of the parcels of land was retained by the respective registered proprietors, although the Custodian had placed Queen’s caveats on the titles. It would appear that the beneficial interest in the land was retained by the members of the unincorporated association collectively.
23. However, the funds on deposit in Victoria were vested in the Custodian and insusceptible of disposition by the unincorporated association. Thus, irrespective of any subsequent avoidance of the amalgamation agreement by the Custodian, the subject matter of that agreement could not have included the funds on deposit. They could not be included in the assets of the BLF of which that instrument spoke.”
On 30 March 1994 an agreement (“the amalgamation agreement”) was concluded between the BLF and the CFMEU. The relevantly operative clauses of the amalgamation agreement were:
“3.    On and from 31 March 1994 all assets and liabilities of the BLF shall merge with the assets and liabilities of the CFMEU to be held and controlled in accordance with the rules of the CFMEU and this agreement and shall be treated as if such assets and liabilities were, at all times, the assets and liabilities of the CFMEU. Such funds shall, to the extent that prior to 31 March 1994 they were funds under the control of a BLF branch, other than the BLF, Victorian Branch, be and become funds under the control of the respective Construction Labourers’ Divisional Branch established consequent upon this agreement and, otherwise, the funds of the BLF shall be held in accordance with para 11 herein. In the case of the funds of the BLF, Victorian Branch they shall be and become funds under the control of the Building Unions Division, Victorian Divisional Branch.
4.     For all purposes and in all proceedings, an asset or liability of the BLF existing immediately before 31 March 1994 is taken to have become and to have been at all times an asset or liability of the CFMEU on and from 31 March 1994.
...
7.     On and from 31 March 1994 any and all members of the remaining branches of the BLF, if not already members of the CFMEU, shall be and become members of the CFMEU and be treated in the CFMEU as if all of the period of their membership in the BLF was membership in the CFMEU and all other persons who, prior to the day fixed for the amalgamation and/or merger, were members of the BLF, shall, on and from 31 March 1994 cease to be members of the BLF.
...
11.    In relation to the funds of the BLF not under the control of any branch those funds shall also merge with the funds of the CFMEU and be and become the funds of the Building Unions Division of the CFMEU through its Divisional Office or funds under the control of the Building Unions Division of the CFMEU through its Divisional Office.”
There were complementary agreements between the CFMEU and State-registered analogues of the former federally-registered BLF and, purportedly, the Victorian Branch of the BLF. Each of the CFMEU and the BLF also adopted changes to its rules to effectuate the amalgamation agreement. The following description of those complementary arrangements is taken from the earlier reasons of the present Court; sub nom Sharp v Sutton (1996) 73 IR 185 at 188:
“Corresponding agreements were entered into between the CFMEU and the State-registered Unions which had separate corporate existence in the States of Tasmania, South Australia, Western Australia and Queensland and were analogues of the Branches of the BLF as formerly registered under the Commonwealth legislation. There was no analogous agreement with any similar entity in Victoria because the industrial legislation of that State did not confer separate legal personality on any such entity. Nevertheless there was an agreement purportedly between the Victorian Branch of the BLF and the BLF itself on the one hand and the CFMEU on the other, whereby it was agreed, amongst other things, that ‘the Victorian Branch should amalgamate with the CFMEU on and from 31 March 1994’. By way of supporting the agreements to which we have just referred, the BLF had purported to amend its Rules by inserting the following new Rule:
‘SPECIAL RULE – AMALGAMATION
Notwithstanding any other rule, it is and shall be an object of the Federation, and the Federal Council shall have the power to take all or any steps to amalgamate, federate, affiliate and otherwise merge the Federation, and/or any Branch of the Federation and/or any State registered organisation to the extent that the State registered organisation is a Branch of the Federation with the Construction, Forestry, Mining and Energy Union by resolution of a simple majority of those in attendance at the Federal Council Meeting.’
Another new r 29 provided part of the machinery for implementing the proposed amalgamation by providing, amongst other things:
‘(ii)    On and from the day fixed for the amalgamation and/or merger to take effect, all assets and liabilities of the Federation shall merge with the assets and liabilities of the CFMEU and become assets and liabilities of the CFMEU to be held and controlled in accordance with the agreements for amalgamation and/or merger, and shall be treated as if they always were assets and liabilities of the CFMEU.
(iii)    For all purposes and in all proceedings, an asset or liability of the Federation existing immediately before the day fixed for the amalgamation and/or merger is taken to have become and to have been at all times an asset or liability of the CFMEU on and from the day fixed for the amalgamation and/or merger.’
The CFMEU also amended its national Rules to facilitate the merger by inserting a new r 42B which provided for the treatment of the former assets and liabilities of the BLF as assets and liabilities of the CFMEU and directed that the funds comprised in those assets should ‘be and become funds under the control of the respective Construction Labourers’ Division Branch established consequent upon these Rules and otherwise held by the Building Union’s Division as Divisional Funds’. Amongst other clauses of r 47B was:
‘(vi)   On and from the day fixed for the amalgamation and/or merger any and all members of the remaining branches of the BLF, if not already members of the CFMEU, shall be and become members of the CFMEU and be treated in the CFMEU as if all of the period of their membership in the BLF was membership in the CFMEU (except as otherwise provided for in the specific rules dealing with the merger in the rules of the Building Unions Division).’”
On 24 August 1995, Wilcox CJ as reported in Sutton v Sharp [No 2] (1995) 62 IR 121 at 149, made various orders including declarations that the amalgamation agreement “was and is valid and effective in law”, that “no invalidity has occurred in the management or administration of [the] CFMEU” and that the CFMEU was “beneficially entitled” to the funds or property in the possession, custody or control of the Custodian including any funds or property vested in him as Custodian under any Order in Council. His Honour also directed that within 60 days or such further time as a judge might allow, the Custodian do all things necessary to vest those funds and property in the CFMEU. The Custodian and the State of Victoria appealed to this Full Court against those orders. While the appeal was pending this Court stayed so much of the Order of Wilcox CJ as required the Custodian to transfer real estate to the CFMEU. However, there was no stay of that part of his Honour’s Order which required the Custodian to transfer to the CFMEU funds on deposit. As to those funds, this observation was made in the joint judgment in State of Victoria v Sutton in the High Court (1998) 156 ALR 579 at 588:
“32. However, as indicated earlier in these reasons, irrespective of the effectiveness of any subsequent avoidance by the Custodian under cl 2 of the Order, the subject matter of the amalgamation agreement could not and did not include in the first place the funds on deposit vested in the Custodian under cl 2 of the first Supplemental Order. That statutory title was superior to any rights which the BLF would otherwise have had under the general law to transfer to the CFMEU.”
On 23 August 1996 this Full Court dismissed the appeal from the judgment of Wilcox CJ. In the meantime, the Custodian, Dr Sharp, had died and on 20 August 1996 a further Order in Council committed possession, custody and control of the funds and property of the BLF to the Honourable Stephen George Alley. The same Order in Council stipulated that Mr Alley should have the same functions and powers as had been exercised or held by Dr Sharp immediately before his death. By order made on 1 February 1999, this Full Court directed, amongst other things, that Mr Alley, as the existing Custodian under the De-recognition Act be added as an appellant to the appeals herein.
On 14 February 1997, the High Court granted leave to appeal from this Court’s dismissal of the appeal from Wilcox CJ and on 2 September 1998 were published the reasons for judgment of the High Court to which we have already referred. In the course of those reasons it was observed, in the joint judgment, at 589 (para 35):
“... The purported disposition of the BLF’s interest in the real estate was voidable. The funds on deposit stand in a different position. They had been vested in the Custodian before the amalgamation agreement and thus, in any event, could not have been divested by the BLF, so no question of later avoidance by the Custodian arose. However, there remain for consideration certain grounds upon which, by notice of contention, the respondents seek to retain the orders in their favour made by Wilcox CJ and affirmed by the Full Court.”
The High Court also found itself called upon to construe cl 2 of the Order in Council of 13 October 1987 as to which it was observed in the joint judgment at 589 (para 38):
“... In particular, where (as here) a disposition between two parties is described as ‘void’ at the will of a third, the preferred construction is to read ‘void’ as ‘voidable’. The submission to the contrary which was at the forefront of the appellants’ submissions should not be accepted. However, in the alternative, the appellants proffered the construction which we would accept.
39     The Order uses the expression ‘at the option of the Custodian’. There is no specification of a temporal limitation upon the exercise of the ‘option’. It is sufficient for the purposes of the present litigation to construe cl 2 as authorising the Custodian to exercise his ‘option’ and communicate the fact of that exercise within a reasonable time of awareness of the facts giving rise to the right.
40     In submissions, the term ‘election’ was used as a synonym for ‘option’ as it appears in cl 2. The true nature of ‘election’ is the confrontation of the person electing with two mutually exclusive courses of action between which a choice must be made, for example, to terminate or keep a contract on foot (Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust(NSW) (1993) 182 CLR 26 at 41-2; 112 ALR 609). In its setting in cl 2 of the Order, ‘option’ is best understood as identifying a power, but not a duty, which is thereby conferred upon the Custodian.
41     Clause 2 of the Order prescribes no particular formality for the exercise of the power conferred therein. However, that power is supplemented by the power conferred by cl 2 of the first Supplemental Order. This enables the Custodian to ‘vest in himself ... any funds or property of [the] BLF’. The avoidance by the Custodian, under the Order, of a disposition of the property of the BLF does not thereby vest in the Custodian any title which before the disposition was vested, not in the Custodian, but in the disponor. However, the disponor is to be treated as if the disposition had not taken place. In that state of affairs, the Custodian may exercise the power conferred by cl 2 of the first Supplemental Order to vest the property in himself. Clause 2 includes the taking of such steps as the notification of a debtor of an assignment of a debt and the securing of registration as a shareholder or as registered proprietor of land.”
There was then imputed to the Custodian from the statement in the defence filed on his behalf in this Court on 28 October 1994 that “the purported amalgamation agreement was and is void” a sufficient exercise of the power of avoidance and communication of its exercise. This passage follows in the joint judgment at 591 (para 44):
“... It follows that on 24 August 1995 the IRC should not have granted a declaratory order that the CFMEU was ‘beneficially entitled’ to funds or property vested in the Custodian. As to beneficial entitlement to real property, any such disposition in favour of the CFMEU had been avoided. As to the funds on deposit, they had been vested in the Custodian and his statutory title to them had not been divested by the amalgamation agreement.”
In the course of separate reasons for judgment McHugh J, who was also in the majority in State of Victoria v Sutton, adverted to the capacity in which the Custodian held the property and funds of the BLF, observing, at 595 (para 66):
“...Nevertheless, although the Custodian did not hold the legal or beneficial title to the real property, he had a statutory right to control the disposition of that property and to avoid any disposition made without his written consent.
67     It is not open to doubt that the Custodian had the legal title to the funds which were invested in his name. Furthermore, in my opinion, he held those funds as trustee for the members of the BLF, notwithstanding that the BLF De-recognition Act and the Orders in Council vested the Custodian with a wide discretionary power to deal with the property of the BLF and does not mention the term ‘trust’. Section 7 of the BLF De-recognition Act [as amended on 13 October 1987 by BLF (De-recognition) (Amendment) Act 1987 (Vic)] emphasises that the restriction on use or distribution of the funds of the BLF was undertaken ‘[f]or the purpose of protecting the rights of persons who are or have ceased to be members of BLF’. Further, cl 3 of the Order of 13 October 1987 provided:
‘3.   The Custodian may refuse to give consent referred to in clause 2 hereof if he in his absolute discretion is not satisfied that the payment disposition encumbrance or charge is desirable to be made for the carrying out of the ordinary and proper affairs of BLF and for the benefit of its members.’
68     It follows from these provisions that, when the Custodian took control of the funds and invested them in his name, he became the trustee and not the beneficial owner of the funds. It is true that neither the legislation nor the orders described the Custodian as a ‘trustee’. However, the purpose of the legislation was to protect the property for the members of the BLF. That is a sufficient indication that the Custodian was to hold the property as trustee and not beneficially. In Registrar of the Accident Compensation Tribunal v FCT ((1993) 178 CLR 145; 117 ALR 27), this court found that a trust arose out of legislation which similarly did not expressly provide for a trust and allowed a wide discretion to the trustee. The court said that ((1993) 178 CLR 145 at 165-6; 117 ALR 27 at 39 per Mason CJ, Deane, Toohey and Gaudron JJ):
‘A trust may be created without use of the word ‘trust’ (See Re Kayford Ltd [1975] 1 WLR 279 at 282; [1975] 1 All ER 604 at 607 per Megarry J; Tito v Waddell (No 2) [1977] Ch 106 at 211 per Megarry V-C. See also Brisbane City Council v Attorney-General (Qld) [1979] AC 411 at 421) And, unless there is something in the circumstances of the case to indicate otherwise, a person who has ‘the custody and administration of property on behalf of others’ (Taylor v Davies [1920] AC 636 at 651) or who ‘has received, as and for the beneficial property of another, something which he is to hold, apply or account for specifically for his benefit’ (Cohen v Cohen (1929) 42 CLR 91 at 100 per Dixon J) is a trustee in the ordinary sense.’
To the extent that it is relevant, the Custodian also recognised that he held the funds as trustee and not beneficially, for he deposited the funds in his name ‘as trustee’.”
B.       ISSUES RAISED BY AMENDED NOTICE OF CONTENTION

Against that background, as indicated earlier, we shall now proceed to consider, in order, each of the issues raised by the notice of contention as amended by the addition of Ground 8.
1. The effect of s 11 of the De-recognition Act
Section 11 of the De-recognition Act has already been set out. On behalf of the CFMEU and Mr Sutton it was argued that a proper construction of paragraph (a) of that section entailed that all of the provisions of the De-recognition Act had to be in operation by the expiration of one year from the date on which the De-recognition Act received the Royal Assent, ie. 30 July 1985. On that view, the De-recognition Act ceased to have effect on 30 July 1986.
The construction favoured by the CFMEU and Mr Sutton was rejected at first instance by Wilcox CJ in Sutton v Sharp [No 2] (1995) 62 IR 121 where his Honour observed, at 141:
“I accept the construction of s 11 suggested by counsel for the first and second respondents. The condition of par (a) is that all the provisions of the Act ‘have by then been proclaimed to come into operation’, not that they have come into operation. The effect of the two proclamations was that, by 30 July 1986, all the provisions of the Act had been proclaimed to come into operation, albeit that three sections would not commence operation until after that day. This satisfies the condition contained in s 11(a).”
The interpretation for which the CFMEU and Mr Sutton have contended equates “proclaimed to come into operation” with “have come into operation”. What the framers of the De-recognition Act understood to be the effect of a proclamation can be gleaned from s 2 of that Act which stipulated:
“2.(1)       Subject to sub-section (2), the several provisions of this Act shall come into operation on a day or on the respective days to be fixed by proclamation or successive proclamations of the Governor in Council published in the Government Gazette.
(2)       A proclamation made under this Act shall not fix a day for a provision of this Act to come into operation that is before –
(a)       the day on which the right of The Australian Building Construction Employees’ and Builders Labourers’ Federation to represent employees in the State of Victoria is limited or restricted by or under the Commonwealth Act or any other Act of the Parliament of the Commonwealth; or
(b)       the day on which the registration pursuant to the Commonwealth Act of The Australian Building Construction Employees’ and Builders Labourers’ Federation is cancelled –
whichever first occurs.”
That section makes it clear that different provisions might have come into force on different dates. In our view, it was open to fix, by the same proclamation, different dates of operation for different provisions. That is consistent with the acknowledgment in Halsbury’s Laws of England 4^th Edn. Vol 44 (1) para 1279 that:
“Different dates may be fixed for the commencement of different provisions of the same Act, or authority may be given to appoint different dates for different provisions or for different purposes.”
See also s 10A(2) of the Interpretation of Legislation Act 1984 (Vic) which provides;
“If an Act provides for the Act or a provision of the Act to come into operation on a day or days to be proclaimed, the Act confers power on the Governor in Council to fix by proclamation or proclamations published in the Government Gazette –
(a) a day for the Act or provisions to come into operation; or
(b)different days for different provisions of the Act to come into operation.”
The ways in which that subsection can operate to allow different provisions in the same legislation to come into force at different times have been explained by Marks J in Entwistle v Parkes [1991] 1 VR 317 and by Fullagar J in Flinn v James McEwan & Co [1991] 2 VR 434 at 448.
We therefore conclude that the proclamation of 28 July 1986 which proclaimed s 7 of the De-recognition Act to come into operation on 1 August 1986 and ss 4 and 5 to come into operation on 1 January 2000 had the effect that, by 28 July 1986, all the provisions of the De-Recognition Act had been proclaimed to come into operation. Accordingly, the requirement in s 11 that all requisite proclamations be made by the expiration of one year after the De-recognition Act had received the Royal Assent, ie. by 31 July 1986, was satisfied. We consider that this interpretation is borne out, first, by the element of futurity conveyed by the expression “to come into operation” which is inconsistent with reading s 11(a) as equivalent to a stipulation that the Act should cease to have effect unless, by 31 July 1986, all of its provisions “had come into operation”. Secondly, the syntax of s 11(a) makes the expression “by then” referable to “have ….. been proclaimed” rather than “to come into operation.”
It was said in support of this ground that the repeal of s 11 by the 1987 Act acknowledged that s 11 was still operating to deprive of effect those sections which had not come into operation by 30 July 1986. However, the view is equally open that the 1987 Act was framed to effect, amongst other things, the repeal of a section which had, in the events which had happened, no further work to do.
For these reasons, we are unable to uphold Ground 1 of the Notice of Contention.
2. Was the 1987 Act effective to revive the De-recognition Act?
This ground depends upon the premise sought to be erected by Ground 1. As Counsel for Mr Sutton and the CFMEU put it in their written submissions:
“The [1987] Act proceeded on the premise that the De-recognition Act was still in effect. On that basis it purported to make certain amendments to it. By reason of the submissions made in relation to Ground 1 above, that was an incorrect premise. As there was no principal Act in existence, the purported amendments were ineffectual.”
Because of our rejection of Ground 1, it is strictly unnecessary for us to consider Ground 2. However, even if we were wrong in the view we have taken of Ground 1, we consider that the 1987 Act, by repealing s 11 of the De-recognition Act with effect from 30 July 1985, obliterated whatever nullifying effect s 11 may have had, (assuming, contrary to our view, that effect to have been predicated on all the provisions of the De-recognition Act having come into operation by 31 July 1985). That revival by retrospective repeal may not have been the most elegant drafting solution, but as Wilcox CJ said in Sutton v Sharp[No 2] (supra) at 142:
“If the 1985 Act had ceased to have effect on 30 July 1986, the course taken by the Victorian Parliament would have been unusual. It could fairly have been described as messy and confusing. But a Parliament acting within its constitutional competence may structure its legislation any way it likes. It is not bound to take the usual course of enacting fresh, self-contained legislation. It may breathe new life into lapsed (or repealed) provisions, retaining their original form or amending them as desired. The critical need is for the Parliament to make its intention clear. The Victorian Parliament did that in this case.”
3. Was the 1987 Act effective to validate the Order in Council of 13 October 1987?
In their written submissions in support of this ground Counsel for Mr Sutton and the CFMEU contended:
“At the time when the Order in Council of 13 October, 1987 was made there was no statutory authority for it because the De-recognition Act upon which it purported to rely, was not in effect. It was thus a complete nullity.
The [1987] Act was ineffectual to legitimise the Order in Council because it purports to do so by way of amendment to the De-recognition Act, and that cannot be done for the reasons advanced in relation to Ground 2 above.”
Section 5 of the 1987 Act, amongst other amendments, inserted in s 7 of the De-recognition Act the following sub-section:
“(4)The Order in Council declared to be made pursuant to section 7 of this Act and section 5 of the Police Regulation Act 1958 and published in the Government Gazette on 13 October 1987 is hereby declared to be and to always have been as valid as if enacted herein.”
As we construe it, that sub-section gave to the Order in Council of 13 October 1987 the same effect and validity which it would have had if it had been enacted as part of the De-recognition Act. However, it has been submitted on behalf of Mr Sutton and the CFMEU that “the amendment of sub-section 7(4) does not give the Order in Council an operation beyond its legislative basis in section 7 at a time when the principal Act had ceased to operate.” That submission has been foreclosed by our rejection of Ground 1.
4. Validity of Clause 2 of Supplemental Order in Council of 10 November 1987.
Clause 2 of this Order in Council provided that:
“The Custodian may vest in himself as Custodian any funds or property of the BLF.”
It was made pursuant to s 7(1) of the De-recognition Act which enabled the Governor in Council “for the purpose of protecting the rights of persons who have ceased to be members of the BLF” by Order to “provide for the restriction of the use of funds or property of the BLF and for control of those funds or that property.”
It was submitted on behalf of Mr Sutton and the CFMEU that the funds, in the sense of all the assets, of the BLF became the property of the de-registered association on and from 14 April 1986. No individual member or group of members aggregated in a Branch of the BLF, it was submitted, could assert an interest in any particular part of those funds or assets. The force of those submissions may be conceded but they do not entail that cl 2 of the Order in Council of 10 November 1987 was invalid. All that the Order did was to empower the Custodian to vest in himself any funds or property of the BLF. There was, of course, an implication derived from s 7(1) of the De-recognition Act, that the power was to be exercised for the purpose of protecting the rights of former members of the BLF. However, the exercise of the power did not depend on some prior ascertainment of existing rights of that kind. It was exercisable, in our opinion, for the purpose of protecting the rights, if any, of the former members of the BLF.
5. Was the Victorian legislation overridden by s 205 of the Industrial Relations Act 1988 (Cth)?
On 31^st March 1994 the CFMEU amended its rules to add rule 42B, providing for the amalgamation of the BLF (and associated State branches) and the CFMEU. Subrules 42B(ii) and (iii) purport to provide for the transfer of assets and liabilities of the BLF, which are to become assets and liabilities of the CFMEU from the date of the amalgamation. The contention on behalf of the respondents is that:
“Insofar as the De-Recognition Amendment Act and the Orders in Council made thereunder, purport to deprive the CFMEU of the benefits of that beneficial ownership of the former BLF’s assets by purporting to vest the assets in the Custodian, they are invalid as being inconsistent with section 205 of the Industrial Relations Act 1988 (Cth) and the rules made thereunder.”
Implicit in that submission is the claim that the State legislation purports to interfere with the operation of rule 42B by denying that rule its effect unless prior written consent of the Custodian is forthcoming. From that premise it is argued that there is an inconsistency between the Industrial Relations Act1988 (Cth) (“the IR Act”) and the Victorian legislation which renders the latter inoperative by s 109 of the Constitution.
Reliance is placed on the observation of Gray J in Bailey v Krantz (1985) 13 IR 339 at 377:
“The rules of a federally registered organisation derive their force and effect from the federal Act. See s 141 of the federal Act [the Conciliation and Arbitration Act 1904] and R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, at 151 per Latham CJ. If there is present in those rules any express limitation on the right of the organisation to register one of its branches under the law of a State, such right would not exist. There would, of necessity, be an inconsistency between the registration provision of the State law and the federal Act in the particular circumstances.”
The respondents also rely on the observation of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 151, referred to by Gray J in the above passage :
“In my opinion the rules as rules of the organization derive their force from the Act, and, therefore, a controversy as to the observance or performance of the rules is a matter arising under the Act. A claim that the rules should be observed and performed is a claim to a right conferred by or under the statute. It therefore arises under the statute. When a member applies for an order under s. 58E, he is seeking to enforce a right which would not exist, as it actually exists, apart from the Federal law contained in the Arbitration Act, and he is necessarily litigating a claim arising under that law.”
However, the fact that the rules of a federally registered organisation derive their force from a federal Act does not mean that they are ‘laws of the Commonwealth’ within s 109 of the Constitution.
In State ofVictoria v Sutton (1998) 156 ALR 579 Gaudron, Gummow and Hayne JJ said at 586 that “the funds on deposit in Victoria were vested in the Custodian and insusceptible of disposition by the unincorporated association”. Their Honours further said at 589:
“The purported disposition of the BLF’s interest in the real estate was voidable. The funds on deposit stand in a different position. They had been vested in the Custodian before the amalgamation agreement and thus, in any event, could not have been divested by the BLF, so no question of later avoidance by the Custodian arose.”
On that basis, rule 42B can have no application in relation to the funds. The rules of the CFMEU cannot confer on the CFMEU any better title than the transferor (the BLF) could pass under State law. If the Victorian legislation provided that the BLF could confer only a voidable title to its assets on the CFMEU, then that is the only title which the CFMEU received.
In our opinion, neither the Victorian legislation nor any Order in Council made thereunder is inconsistent with s 205 of the IR Act (now the Workplace Relations Act1996 (Cth)). Section 205 of the IR Act dealt with the alteration of the rules (other than the eligibility rules) of a registered organisation and provided, at the relevant time, that such an alteration did not take effect unless an Industrial Registrar had certified that, in his or her opinion, the alteration: complied with, and was not contrary to, the Act and awards; was not otherwise contrary to law; and, had been made under the rules of the organisation. Subsection 205(3) provided that an alteration of rules was to take effect on the day of certification.
In our opinion, the rules of an industrial organisation are not “laws of the Commonwealth” for the purposes of s 109 of the Constitution. The certification of a rule alteration under s 205 of the IR Act does not change that position. Section 205 does not provide either expressly or by necessary implication that the rules of an industrial organisation shall, upon certification, take effect notwithstanding any State law to the contrary.
The position here is to be contrasted with that in relation to federal awards. The IR Act expressly provided in s 152 that such awards should operate to the exclusion of State laws and awards dealing with the same matters. Federal awards made pursuant to the IR Act were, by the terms of the Act, brought into force as part of the law of the Commonwealth: see Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, where Dixon CJ, McTiernan, Williams ,Webb, Fullager and Kitto JJ said at 547:
“The basis of the application of s 109 to a State law affecting industrial relations regulated by an award is not that the award is a law of the Commonwealth within the meaning of s.109 but that the Conciliation and Arbitration Act constitutes the inconsistent Federal law inasmuch as it means that an award purporting to make an exhaustive regulation shall be treated as the exclusive determination of the industrial relations which it affects. ‘The award itself is, of course, not law, it is a factum merely. But once it is completely made, its provisions are by the terms of the Act itself brought into force as part of the law of the Commonwealth…’ per Isaacs CJ and Starke J, Ex parte McLean [(1909) 8 CLR 465]”. (emphasis added)
See also Charles Marshall Pty Ltd v Collins (1957) 96 CLR 1 at 3; T.A. Robinson & Sons Pty Ltd v Haylor (1957) 97 CLR 177 at 182-3; and Metal Trades Industry Association v Amalgamated Metal Workers and Shipwrights’ Union (1983) 152 CLR 632 at 641-2, 648-9. There is no provision of the IR Act which has a similar application in relation to certified rules of an organisation.
There was nothing in the IR Act to support a construction of s 205 that would lead to the far-reaching consequence that the rules of an industrial organisation might displace the general law. On the contrary, Division 2 of Part IX of that Act revealed an intention that the rules of an organisation were subject to and operated against the background of the general law, including any relevant State laws. By s 196(a) and (b)(i) the rules must not be contrary to law, and must not prevent or hinder members from observing the law. By s 208(2) and (5), the Court was empowered to make an order that there had been a failure to comply with these requirements, with the effect that the relevant rule was void from the date of the order. Also, before certifying an alteration to the rules, the Industrial Registrar was obliged, by s 205(1)(b), to form an opinion that the alteration was not contrary to law.
Section 205 of the Act specified the requirements which had to be certified before an alteration to the rules of an organisation could take effect. However, certification did not enhance the position of an alteration which would otherwise have been ineffective, because, for example, of the operation of State law. We conclude that neither the Victorian legislation nor the Orders in Council made thereunder could alter, impair or detract from the operation of s 205 of the IR Act, with the consequence that s 109 of the Constitution does not have the effect of invalidating the State legislation.
6 and 7. The Validity of the Victorian Legislation
Grounds 6 and 7 are:
“6. The Victorian legislation was invalid in that it sought to affect and/or restrict the activities and actions of persons outside the State of Victoria. In this case it is relied upon to avoid an agreement entered into by parties in New South Wales.
“7. The Victorian legislation was invalid in that it contravened the provisions of Section 92 of The Constitution in that it restricted, impeded or hindered intercourse among the States.”
The respondents’ submissions on these grounds are admirably brief. They contend that:
“The second reading speech leading to the BLF (De-recognition) Act 1985 makes clear that one of the purposes of that Act and the Orders in Council was to prevent the movement interstate of the funds and the realisation of the funds of the BLF and the movement out of the jurisdiction of Victoria...”
It was further submitted on behalf of the respondents that:
“If the BLF (De-recognition) Act 1985 had a purpose of preserving an ordered society under a system of representative government and democracy, the burden and/or restriction on the transfer of property by the BLF was disproportionate to that end.”
The short submission is that such a legislative scheme contravenes s 92 of the Constitution because it constitutes a restriction on interstate intercourse.
In Cole v Whitfield (1988) 165 CLR 360, the High Court said at 391:
“The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries.”

In Cunliffe v Commonwealth of Australia (1994) 182 CLR 272, Mason CJ said at 307:
“Communication across State borders constitutes ‘intercourse among the States’ within the meaning of s. 92 of the Constitution. Cole v Whitfield left open the question: what burden, if any, can be imposed on freedom of interstate intercourse? That decision recognized that s. 92 does not require ‘that every form of intercourse must be left without any restriction or regulation’. As the Court went on to point out, ‘[m]uch will depend on the form and circumstance of the intercourse involved’. Although the guarantee of freedom of interstate intercourse, not forming part of trade and commerce among the States, is not directed to preserving interstate intercourse from discriminatory burdens of a protectionist kind, the freedom which it guarantees is nonetheless not absolute. Hence, a law which in terms applies to movement across a border and imposes a burden or restriction is invalid. But, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject matter other than interstate intercourse would not fail if the burden or restriction was reasonably necessary for the purpose of preserving an ordered society under a system of representative government and democracy and the burden or restriction was not disproportionate to that end.” (footnotes omitted)
In the second reading speech, it was said of Clause 7:
“Clause 7 provides the Governor in Council with the power to make an order, for the purpose of protecting the rights of former members of the union, to restrict the use of funds or property of the Builders Labours Federation and to control those funds or property.”
There is nothing in the second reading speech which indicates that one of the purposes of that Act and the Orders in Council made under it was to prevent the movement interstate of funds, the realisation of funds of the BLF and their movement out of the jurisdiction of Victoria. The fact that the Custodian in Sharp v ABLF (W.A. Branch) [1989] WAR 138 successfully sought orders from the Supreme Court of Western Australia in connection with the telegraphic transfer of funds in an aggregate amount of $766,234.34 from the BLF’s bank in Melbourne to an account of the State registered BLF (W.A. Branch) in Perth does not mean that the purpose of the Victorian legislation included the prevention of movement of BLF funds out of Victoria.
It is to be noted that Grounds 6 and 7 do not rely on the operation of s 92 of the Constitution in relation to interstate trade or commerce. Such an operation is distinct from the operation of s 92 in relation to interstate intercourse. In Cole v Whitfield the High Court said at 388:
“The notions of absolutely free trade and commerce and absolutely free intercourse are quite distinct and neither the history of the clause nor the ordinary meaning of its words require that the content of the guarantee of freedom of trade and commerce be seen as governing or governed by the content of the guarantee of freedom of intercourse.”
At 394, the High Court said that it had always been accepted that s 92 did not guarantee freedom, in the sense of anarchy. Their Honours continued:
“Once this is accepted, as it must be, there is no reason in logic or commonsense for insisting on a strict correspondence between the freedom guaranteed to interstate trade and commerce and that guaranteed to interstate intercourse.”
While the present challenge based on s 92 does not rely on participation by the BLF in interstate trade or commerce, the position is that the Victorian Act and the Orders in Council are laws of general application which do not discriminate against interstate trade and commerce. Nor do they have any protectionist purpose or object, and therefore they do not contravene the freedom of interstate trade and commerce guaranteed by s 92.
Notwithstanding that the notion of freedom of interstate trade and commerce is distinct from the notion of freedom of interstate intercourse, the concepts of “intercourse” and “trade and commerce” are not mutually exclusive. Brennan J noted in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 54-5:
“Although the conception of intercourse is distinct from the conception of ‘trade’ or of ‘commerce’, instances of intercourse may be, and frequently are, instances of trade and commerce.”
Dawson J observed in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, at 192:
“…the answer was given in Cole v Whitfield that, in relation to interstate trade and commerce, ‘absolutely free’ means free from discriminatory burdens of a protectionist kind.
That answer does not greatly assist in identifying the freedom which s 92 guarantees to intercourse. Nevertheless the same approach can and should be adopted. The intercourse with which the section is concerned is confined to intercourse among the States. That is to say, it is confined to movement or activity across State borders.”
Brennan J in Nationwide News said at 55:
“The characteristic of every phenomenon falling within the section, however, is geographical movement. Each of the terms ‘trade, commerce and intercourse’ in s.92 is qualified by the phrase ‘among the States’ and that qualification is essential to attract the operation of the section. There must be some border crossing involved before any phenomenon of trade, commerce or intercourse comes within the reach of a section. (footnotes omitted)
At least to the extent that the Victorian Act and the Orders in Council apply to any real property owned by the BLF, they do not restrict the interstate movement of that property, and so any restriction on the disposition of real property imposed under the Victorian Act does not impose a burden or restriction on interstate intercourse.
As the High Court made plain in Cole v Whitfield, at 393, the freedom of interstate intercourse guaranteed by s 92 is not absolute. A law will generally be contrary to s 92 if the law is aimed at, or directed against, interstate intercourse by imposing a burden or restriction on intercourse by reference to the crossing of a State border. In that consideration, the “real object” of the law said to restrict interstate movement needs to be identified. So also, a non-discriminatory law of general application to both intrastate and interstate intercourse might nevertheless offend s 92 if it has the effect of imposing a burden or restriction on interstate commerce, unless the law is appropriate and adapted to the fulfilment of some purpose or object other than the restriction of interstate intercourse, and the burden or restriction on interstate intercourse is merely incidental to the fulfilment of that purpose.
The test of proportionality requires an assessment of the burden or restriction on interstate intercourse in the context of the purpose or object for which the Parliament decided to legislate.
In the present case, the Victorian legislation and the Orders in Council impose general restrictions which do not discriminate between intrastate and interstate dispositions of funds or property. As s 7(1) of the State Act makes plain, the restrictions have been imposed for a purpose other than restricting interstate intercourse - namely the purpose of protecting the past and present members of the BLF. Even if the Victorian legislation imposes a restriction on the disposition of the funds or property of the BLF which might amount to a restriction on interstate intercourse, any such burden or restriction is appropriate and adapted to the expressed purpose.
We conclude that the Victorian Act and the Orders in Council do not contravene s 92 of the Constitution.
8. Challenge to the exercise of power constituted by the Custodian filing his defence
Paragraph 8 of the Notice of Contention challenges the act of avoidance under cl 2 of the Order in Council constituted by the Custodian filing his defence in this proceeding.
The High Court held that the funds on deposit were vested in the Custodian by operation of the Order in Council. Thus, the present challenge to the exercise of the power of the Custodian to avoid the disposition by filing his defence can only affect the purported disposition of the real estate by the BLF to the CFMEU.
The parts of the pleadings relevant to this argument commence with paragraph 5 of the amended statement of claim which reads:
“5.On 30 March 1994, the Second Applicant executed an agreement with the Australian Building Construction Employees and Builders Labourer’ [sic] Federation (hereinafter “the BLF”) which agreement had effect on and from 31 March 1994.”
In response, paragraph 5 of the defence pleaded relevantly:
“5.They deny each and every allegation made in paragraph 5 and, without prejudice to the generality of that denial, deny that any valid agreement was concluded:
…
(f)(i) The purported agreement was conditional on merger agreements being concluded between the second applicant and the State branches of the BLF;
(ii) The State branches of the BLF being integral parts of the BLF and inseverable therefrom, lacked the capacity to enter into such merger agreements or to agree to dispose of branch assets pursuant to such merger agreement;
(iii)Accordingly, the purported agreement was and is void.”
The joint judgment in the High Court described one of the submissions of the State of Victoria as follows:
“35.In this Court, the appellants made three principal challenges to the judgment of the Full Court:
…
(2) in the alternative, if the Order rendered any disposition of property of the BLF voidable, the Full Court erred in concluding that the Custodian had not elected to treat the disposition as void;…”
The majority accepted this submission. Paragraphs 38-41 of the judgment, which have been set out earlier in these reasons, and which dealt with the construction of cl 2 of the Order in Council, addressed the method by which the Custodian could exercise his power to avoid the disposition. Their Honours continued at paragraphs 43-4:
“43.The Order does not stipulate any means for the communication to the parties to a disposition of the exercise of the power of avoidance conferred by cl 2 thereof. Any means will suffice, at least if it is apt to draw to the attention of the parties to the dealing in question the exercise by the Custodian of the power conferred by cl 2. A pleading in litigation in which the relevant actors are parties may be a sufficient vehicle. The respondents submitted that this could be so in the present litigation only if the pleading had been tendered in the appellants’ case at trial. This submission should be rejected.
44.The Custodian became aware of what had been done only with the initiation by the CFMEU of the litigation in the IRC. The pleading by the Custodian in the defence on 28 October 1994 that “the purported amalgamation agreement was and is void” was sufficient exercise of the power of avoidance and communication of its exercise. It follows that on 24 August 1995 the IRC should not have granted a declaratory order that the CFMEU was “beneficially entitled” to funds or property vested in the Custodian. As to beneficial entitlement to real property, any such disposition in favour of the CFMEU had been avoided. As to the funds on deposit, they had been vested in the Custodian and his statutory title to them had not been divested by the amalgamation agreement.”
The position of the Custodian throughout the proceedings has been that he did not exercise a power to avoid the disposition. He contended that there was no occasion to do so because, on his construction of the Order in Council, the disposition was void if he did not consent to it, and he had not so consented. The High Court rejected this construction.
The respondents’ argument under paragraph 8 of the Notice of Contention underwent a degree of re-fashioning in the course of the appeal. The argument did however, focus on the fact that the Custodian at no stage intended to act under a power to avoid. As finally formulated in written submissions and addressed in oral argument, the contentions of the respondents were that the decision of the Custodian under cl 2 of the Order in Council required the exercise of a discretion. As he did not exercise the discretion, he misunderstood the nature of his power to avoid. The written submissions continued:
“That misunderstanding is a mistake of law as to the proper construction of the instrument investing him with power, and in consequence of it the custodian misconceived his duty and did not apply himself to the question which the law prescribes, namely, whether he should exercise the discretion to void. The result is a constructive failure to exercise the power with the consequence that the avoidance is a nullity.
CFMEU v AIRC (1999) 159 ALR 1, 43
Craig v South Australia (1995) 184 CLR 163, 179
Further and in the alternative, the purported exercise of the power by the custodian was based on a further error of law, namely that the disposition was void ab initio.”
The appellants contended that the decision of the High Court foreclosed the respondents’ contention that the Custodian had not effectively avoided the disposition. They relied on paragraphs 39-44 of the joint judgment which have already been set out in these reasons. In those paragraphs the majority explained that the Custodian was granted power to avoid the disposition. There is no reference to a discretion having been reposed in the Custodian. The Order in Council does not stipulate any means of communication to the parties to a disposition of the exercise of the power of avoidance. Any means will suffice, at least if the means are apt to draw the attention of the parties to the dealing in question and the exercise by the Custodian of the power. The joint judgment concluded:
“The pleading by the Custodian in the defence on 28 October 1994 that “the purported amalgamation agreement was and is void” was sufficient exercise of the power of avoidance and communication of its exercise.”
McHugh J construed cl 2 of the Order in Council as giving the Custodian a right to avoid a dealing made without his written consent (para 70). His Honour observed that, by contesting the transfer of property and pleading that the transfer was void, the Custodian had exercised his legal right to avoid the transfer (para 71). His Honour specifically found that there was nothing in the terms or purpose of cl 2 requiring him to make an election. The Custodian was only required to choose between competing alternatives at a particular time or during a particular period. His Honour said:
“In its context and having regard to the purpose of the legislation, the better view of clause 2 is that it simply confers a power on the Custodian and does not put him to an election. It simply gives the Custodian power to avoid a disposition made without his written consent.”
He then observed that the question in each case is not whether the Custodian has elected to avoid a disposition of property, but whether he has manifested an intention to avoid the disposition (para 72). His Honour found that the Custodian had manifested such an intention by filing his defence in the terms in which it was drawn.
The respondents’ present challenge to the Custodian’s act of filing the defence was argued but was not articulated in those terms before the High Court. However, the foundation of the argument is that the Custodian believed he did not have to avoid the disposition. That the Custodian had that belief was well known to the High Court. It was the basis of the primary argument put to the High Court by the State of Victoria. Paragraph 35 of the joint judgment set out that argument as the first challenge made by the appellants as follows:
“(1) the Full Court erred in treating a disposition of property of the BLF as voidable at the option of the Custodian and not void;”
It must therefore be concluded that the High Court determined that the power to avoid the disposition had been exercised by the Custodian even though he was unaware of his power to do so, or, as was put in the further written submission of the Attorney-General for the Commonwealth:
“…the majority judgments clearly proceed on the basis that the action of the Custodian in filing the defence to these proceedings amounted on its face to a legally effective exercise of the power to avoid the disposition, irrespective of whether of not the Custodian consciously adverted to the fact that he was exercising that power.”
That analysis, which we consider to be mandated by the joint judgment of the High Court, entails that it is not permissible in the circumstances to attack the Custodian's exercise of power as based on a mistake of law or a miscarriage of discretion.
CONCLUSION
It will be apparent from the foregoing reasons that we have resolved, adversely to Mr Sutton and the CFMEU, who were the respondents in the High Court, each of the issues raised by their notice of contention in that Court and the additional issue sought before this Full Court to be added to that notice. That resolution, it seems to us, requires that the appeals from the judgment of Wilcox CJ be allowed in part and that paragraphs 3 and 4 of the declarations and orders made by his Honour on 24 August 1995 be set aside. In case any party wishes to contend that some further or other orders are necessary to dispose fully and effectively of the appeals, we shall reserve liberty to apply.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:
Dated: 10 March 2000

Counsel for the Appellants the State of Victoria and Stephen George Alley:

Mr A G Uren QC

with Mr I G Sutherland QC and with

Mr L Kaufman

Solicitor for the Appellants the State of Victoria and Stephen George Alley:

Ronald C Beazley,

Victorian Government Solicitor

Counsel for the Respondents John David Sutton and the CFMEU:

Mr S Rothman SC

with Mr H Borenstein

Solicitor for the Respondents John David Sutton and the CFMEU:

R L Whyburn & Associates

Counsel for the Respondents Mr Ronald George Owens as representing the Members of the BLF as at 31 March 1994 and for the Respondents John Cummins, John Setka and Robert George Wilson as Trustees of the BLF:

Mr S Rothman SC

with Mr H Borenstein

Solicitor for the Respondents Mr Ronald George Owens as representing the Members of the BLF as at 31 March 1994 and for the Respondents John Cummins, John Setka and Robert George Wilson as Trustees of the BLF:

R L Whyburn & Associates

Counsel for Mr J Atkinson and ten other persons as Appellants in VI 4821 of 1995 and as Respondents in the remaining appeals:

Mr J W Robinson

Solicitor for Mr J Atkinson and ten other persons as Appellants in VI 4821 of 1995 and as Respondents in the remaining appeals:

Best Hooper

Counsel for the Respondent John James McKeown (as Respondent in VI 4821 of 1995):

Mr J Zigouras

Solicitor for the Respondent John James McKeown (as Respondent in VI 4821 of 1995):

J N Zigouras & Co

Robert Dalton and Martin Greany,

Respondents in VI 4821 of 1995:

Appeared in person.

Joseph Ferguson and others, Fourth Respondents in VI 4819, VI4820 and VI 4821 of 1995 and Appellants in VI 4822 of 1995:

Did not appear and were not represented at the hearings on 9 10 and 11 March 1999.

Solicitor for Joseph Ferguson and others, Fourth Respondents in VI 4819, VI4820 and VI 4821 of 1995 and Appellants in VI 4822 of 1995:

Athena Touriki

Counsel for the Attorney-General for the Commonwealth (intervening)

Mr A Robertson SC with Mr C Horan

Solicitor for the Attorney-General for the Commonwealth (intervening):

Australian Government Solicitor

Dates of Hearing:

9, 10 and 11 March 1999

Written Submissions Filed:

11 March, 16 and 30 April 1999

Date of Judgment:

10 March 2000

BETWEEN:	JOHN ATKINSON & OTHERS Appellants
AND:	JOHN DAVID SUTTON & OTHERS Respondents

JUDGES:	SPENDER, RYAN AND NORTH JJ
DATE OF ORDER:	12 MAY 2000
WHERE MADE:	MELBOURNE

BETWEEN:	JOHN DAVID SUTTON First Applicant and CONSTRUCTION, FORESTRY, MINING & ENERGY UNION Second Applicant
AND:	IAN GORDON SHARP and STEPHEN GEORGE ALLEY First Respondents / Appellants THE STATE OF VICTORIA Second Respondent / Appellant JOHN ATKINSON & ORS Third Respondents JOSEPH FERGUSON & ORS Fourth Respondent / Appellants MICK YOUNG & ORS Fifth Respondents RONALD GEORGE OWENS (as representing the members of the BLF at 31 March 1994 other than those otherwise represented herein) Sixth Respondent and JOHN CUMMINS, JOHN SETKA and ROBERT GREGORY WILSON (as Trustees of the BLF) Seventh Respondents
JUDGES:		SPENDER, RYAN AND NORTH JJ
DATE:		12 MAY 2000
PLACE:		MELBOURNE

Counsel for the Appellants the State of Victoria and Stephen George Alley:	Mr A G Uren QC with Mr I G Sutherland QC and with Mr L Kaufman
Solicitor for the Appellants the State of Victoria and Stephen George Alley:	Ronald C Beazley, Victorian Government Solicitor
Counsel for the Respondents John David Sutton and the CFMEU:	Mr S Rothman SC with Mr H Borenstein
Solicitor for the Respondents John David Sutton and the CFMEU:	R L Whyburn & Associates
Counsel for the Respondents Mr Ronald George Owens as representing the Members of the BLF as at 31 March 1994 and for the Respondents John Cummins, John Setka and Robert George Wilson as Trustees of the BLF:	Mr S Rothman SC with Mr H Borenstein
Solicitor for the Respondents Mr Ronald George Owens as representing the Members of the BLF as at 31 March 1994 and for the Respondents John Cummins, John Setka and Robert George Wilson as Trustees of the BLF:	R L Whyburn & Associates
Counsel for Mr J Atkinson and ten other persons as Appellants in VI 4821 of 1995 and as Respondents in the remaining appeals:	Mr J W Robinson
Solicitor for Mr J Atkinson and ten other persons as Appellants in VI 4821 of 1995 and as Respondents in the remaining appeals:	Best Hooper
Counsel for the Respondent John James McKeown (as Respondent in VI 4821 of 1995):	Mr J Zigouras
Solicitor for the Respondent John James McKeown (as Respondent in VI 4821 of 1995):	J N Zigouras & Co
Robert Dalton and Martin Greany, Respondents in VI 4821 of 1995:	Appeared in person.
Joseph Ferguson and others, Fourth Respondents in VI 4819, VI4820 and VI 4821 of 1995 and Appellants in VI 4822 of 1995:	Did not appear and were not represented at the hearings on 9 10 and 11 March 1999.
Solicitor for Joseph Ferguson and others, Fourth Respondents in VI 4819, VI4820 and VI 4821 of 1995 and Appellants in VI 4822 of 1995:	Athena Touriki
Counsel for the Attorney-General for the Commonwealth (intervening)	Mr A Robertson SC with Mr C Horan
Solicitor for the Attorney-General for the Commonwealth (intervening):	Australian Government Solicitor
Dates of Hearing:	9, 10 and 11 March 1999
Written Submissions Filed:	11 March, 16 and 30 April 1999
Date of Judgment:	10 March 2000