Williams v Hursey

[1959] HCA 51

HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar, Kitto, Taylor and Menzies JJ.

WILLIAMS v. HURSEY

(1959) 103 CLR 30

16 September 1959

Conciliation and Arbitration (Cth)—Waterside Workers—Conspiracy

Conciliation and Arbitration (Cth)—Registered organization—Branch of organization—Competency as parties to action—Liability to suit in court other than Commonwealth Industrial Court—Power to impose political levy—Effect of non-payment of levy by member—Liability for conspiracy—Liability of registered organization for act of branch—Conciliation and Arbitration Act 1904-1956 (Cth), ss. 44(1) (b), 44(2), 147. Waterside Workers—Right to preference in employment—Previous Port Order conferring preference—Stevedoring Industry Act 1956 (Cth). Conspiracy—Nature of action—Liability of corporation—Measure of damages.

Decisions

September 16.
The following written judgments were delivered: -
DIXON C.J. I agree in the judgment of Fullagar J. (at p45)

FULLAGAR J. We have before us three matters in which it is sought to challenge judgments of the Supreme Court of Tasmania (Burbury C.J.) in three actions in that Court - No. 1363 of 1957, No. 78 of 1958, and No. 496 of 1958. The three actions were heard together. The matters come before this Court in different ways. In the first case the defendants seek special leave to appeal from the judgment of Burbury C.J. In the second case the defendants appeal as of right from the judgment of Burbury C.J. In the third case the plaintiffs appealed from the judgment of Burbury C.J. to the Full Court of Tasmania, and on a motion for an interlocutory injunction in that appeal it appeared to that Court that a constitutional question of "limits inter se" arose, so that the appeal was automatically removed into this Court by force of s. 40A of the Judiciary Act 1903-1955. It is not clear that such a question arises, and the plaintiffs now ask for an order for removal under s. 40 of that Act, or alternatively for special leave to appeal direct from the judgment of Burbury C.J. Both the first case and the third case are clearly cases proper to be determined by this Court, and I think the best course will be to grant special leave to appeal in the first case, and in the third case to make an order under s. 40 removing the appeal to the Full Court of Tasmania into this Court. It will then be clear that all three cases are properly before us. (at p45)

2. The litigation arose out of events which were consequential upon a refusal by the respondents Francis John Hursey and his son, Denis Victor Alexander Hursey, to pay what has been called (conveniently and not, as I understand the term, dyslogistically) a "political levy" to the organization of employees to which they belonged. Those events are described with care and in detail in the elaborate and helpful judgment of the learned Chief Justice of Tasmania. For present purposes the material facts may be summarized as follows. (at p45)

3. In 1956 the Hurseys (as it will be convenient to call them) were members of the Waterside Workers' Federation of Australia and of the Hobart branch thereof. The federation is an "organization" registered under the Commonwealth Conciliation and Arbitration Act. It is organized in branches, of which there are said to be fifty-four, but the branches are not separately registered as organizations under the Act. An applicant for membership becomes on admission "a member of the Organization and of the Branch in which he is enrolled". The Hobart branch has separate rules and separate elected officers, but is subject to the general control of the central body of which it is a part. It is not registered under the Trade Unions Act 1889 (Tas.), which reproduces the English Trade Union Acts of 1871 and 1876. Whether the Hurseys ceased at any stage to be members of the organization is a matter in dispute. They were at all material times registered as waterside workers in the port of Hobart under the provisions of the Stevedoring Industry Act 1956 (Cth). (at p46)

4. The federation is "affiliated" with the Australian Labor Party, the rules of which provide that every financial member of an affiliated trade union may, on compliance with certain formalities, become a member of the party. In August 1956 the Hurseys became members of another political party, then known as the Anti-Communist Labour Party, but later named the Democratic Labour Party, and on 28th September 1956 F. J. Hursey announced that he intended to stand as an Anti-Communist Labour Party candidate at an election for the Lower House of the Tasmanian Parliament to be held in November 1956. (at p46)

5. Just before this - on 25th September - the committee of management of the Hobart branch of the federation, constituted under r. 4 of the branch rules, resolved "that this executive recommends that a 10s. 0d. levy be struck to assist Labor Party in the election campaign". Notice was then given of a "stop-work meeting" of members of the branch for the purpose of approving or rejecting this recommendation. This notice was given by an announcement chalked on a blackboard at the "pick up centre" in the port. The learned Chief Justice says that this method of giving notice of a meeting of members was "in accordance with a practice which had been followed for many years". The meeting was originally called for 4th October, but on 1st October the date was (for reasons which do not matter) altered to 2nd October. A meeting on that date was attended by about six hundred members: the total membership of the branch is about eight hundred and fifty. The Hurseys were present. A resolution approving the levy recommended by the committee was passed without dissent. On 11th October the making of the levy was approved by the federal council under r. 26 (f) of the rules of the federation. The levy was payable on 12th November 1956. (at p47)

6. Neither of the Hurseys paid the levy on the due date, but nothing material happened until April 1957. The ordinary annual "contribution" to the funds of the union (8 pounds 0s. 0d. per member) was payable on 12th April 1957. On 11th April the Hurseys made an offer to the secretary of the branch to pay the contribution without the "political" levy. Rule 23 (b) of the branch rules, however, provides that "all fines and levies shall be paid before the annual contribution is accepted", and the secretary refused to accept the payment offered. On 26th April F. J. Hursey informed the secretary that he was pledged to others not to pay the levy. (at p47)

7. The first hostile action against the Hurseys was taken on 29th April 1957, when what has been called the "'Empire Star' incident" occurred. On that date a number of members of the branch, who had been rostered for work with the Hurseys on the ship "Empire Star", refused to work with them on the ground that they were "unfinancial". The result was that the gang became "unworkable" and ceased work. On 30th April, after an inquiry had been conducted by the local representative of the Stevedoring Industry Authority, work was resumed and continued without further incident, but at a stop-work meeting held on 1st May a resolution was passed which meant in effect that the Hurseys were expelled from the union. This resolution, however, was ineffective without the indorsement of the federal body, and the federal body on 6th May refused to indorse it on the ground that the Hurseys should have been charged and given a hearing before the resolution was passed. (at p47)

8. After this members of the branch continued to work with the Hurseys, though the two were, in the words of the Chief Justice, "ostracized to a considerable extent", and several petty and vindictive incidents occurred. On 28th May 1957 an interview took place between Roach (Assistant General Secretary of the Federation) and F. J. Hursey. Roach told Hursey that he could have the option of paying the levy to any political party he chose - even his own party, the D.L.P. Hursey said that he would not pay the levy at all, because there was a principle involved that he should not be compelled to pay a levy to any political party. On 9th July 1957 the offer made by Roach on 28th May was repeated, and was again rejected. On the following day Hursey stated that he would "split the union from top to bottom", and his Honour found that he repeated this statement on several occasions. (at p47)

9. On 28th August 1957 a general meeting of the branch approved a recommendation of the branch executive that payment by the Hurseys of contributions and death levies (i.e. levies under branch r. 85 for the benefit of dependants of deceased members) without payment of the political levy should be accepted. The branch secretary, Pelham, made this offer accordingly to the Hurseys, who replied that they would have to obtain legal advice. On 18th October 1957 F. J. Hursey told Pelham that they would pay 7 pounds 17s. 6d. each, i.e. the amount of the contribution (8 pounds 0s. 0d.) less 2s. 6d. which Hursey believed to be the amount per member payable by way of "affiliation fee" by the federation to the Australian Labor Party. When it was explained to him that the fee was not 2s. 6d. but 1s. 0d. he said that he and his son would pay 7 pounds 19s. 0d. each. Pelham refused to accept the reduced amount. (at p48)

10. On 22nd October 1957 the first action (No. 1363 of 1957) was commenced by writ of summons. The sole plaintiff was F. J. Hursey. The defendants named were Williams (branch president), Pelham (branch secretary), the federation, and the Hobart branch of the federation. The statement of claim, which was delivered on 12th November 1957, claimed (a) against the defendants Williams, Pelham, and the Hobart Branch damages 2,000 pounds in respect of the "'Empire Star' incident", it being alleged that Williams and Pelham had procured the refusal of members of the branch to work with the Hurseys on the "Empire Star", (b) an injunction restraining the exclusion of the plaintiff from membership of the branch and of the federation, and (c) a declaration that the imposition of the political levy was ultra vires the federation and the Hobart branch. (at p48)

11. On 21st January 1958 James Healy, the general secretary of the federation, came to Hobart from Sydney and interviewed F. J. Hursey. He told Hursey that, if he and his son paid the contributions and the political levy by 31st January, the payments would be accepted. Otherwise, he said, their membership would be treated as automatically terminated by virtue of branch r. 19 (a) (ii) and federation r. 7 (a) (ii), which are in practically identical terms. No payment was made by the Hurseys, and immediately after the end of January Healy declared that they had ceased to be members of the union. Active steps then began to be taken against them. It will suffice for the moment to indicate briefly and in general terms what those steps were. (at p48)

12. On 5th and 6th February 1958 there was a general refusal of members of the branch to work with the Hurseys. Six gangs on the 5th, and 136 men on the 6th, walked off the ships to which they had been allocated, refusing to work with them, and there was a more or less general hold-up of work on the wharves. So far as preventing the Hurseys from working was concerned, these tactics were effective, but from the point of view of the men generally, they had the disadvantage that many other waterside workers also lost work and wages. Moreover the Stevedoring Industry Authority regarded the Hurseys (whether still members of the branch or not) as being still waterside workers registered under the Stevedoring Industry Act and therefore entitled to be rostered for work on ships in the normal way. This meant that men who refused to work with the Hurseys were liable to have their registration cancelled or suspended under s. 36 of the Act. On 12th February 1958 accordingly new tactics were adopted, the idea of which seems to have been suggested by a demonstration against the Hurseys on 7th February by seamen from ships in port. Between 12th February and 25th March 1958, on twenty-five occasions, the Hurseys, when they reached the wharf on which they had been rostered to work, were met by a solid phalanx of men standing shoulder to shoulder across the end of the wharf, so that it was a matter of practical impossibility for them to get through to the place where they would commence work. Meanwhile gangs were formed on the wharf without the Hurseys, and work on the ship or ships in port proceeded without interruption. The forming of these "human barriers" has been referred to as "picketing", but it involved, of course, much more than is ordinarily understood by that term. No very serious acts of violence occurred, the police being present in force, but there were treats of violence and much scurrilous abuse of the Hurseys, who were prevented by the physical obstruction in their path from proceeding to their work. (at p49)

13. On 18th February 1958 the second action (No. 78 of 1958) was commenced by writ of summons. The plaintiffs were the two Hurseys. The defendants named were Williams, the federation, the Hobart branch of the federation, and certain named individual defendants, the number of whom was reduced, by discontinuance before trial, to fourteen. By the statement of claim, as amended, each of the plaintiffs claimed in substance (a) 5,000 pounds damages, (b) a declaration that the imposition of the political levy was ultra vires the federation and the Hobart branch, (c) a declaration that the plaintiffs were still members of the branch and of the federation and entitled to all the rights of members, (d) an injunction to restrain the defendants from doing any act whereby the plaintiffs might be hindered or prevented from obtaining employment or working as waterside workers in the port of Hobart. (at p49)

14. The "picketing" continued after service of the writ, but towards the end of March the plaintiffs applied to the Authority for leave of absence, and they were on leave from 25th March to 8th June 1958. On 9th and 11th June they were rostered for work, but were prevented, as before, from proceeding to their place of work. On 13th June 1958 the Chief Justice granted an interlocutory injunction in the second action restraining the defendants from doing any act whereby the plaintiffs or either of them might be hindered or prevented from obtaining employment or working as waterside workers in the port. On 18th June the Hurseys were rostered for work for the first time after the issue of the injunction. When they arrived at the wharf, they found a formidable picket line drawn up, but they were not prevented from proceeding to the ship to which they had been allocated. Nine members of their gang, however, refused to work with them, and the rest of the gang became an "unworkable unit", with the result that they (including the Hurseys) were dismissed. Similar tactics were followed by members of the branch thereafter, with the same result, whenever the Hurseys presented themselves for work. (at p50)

15. On 8th July 1958 the third action was commenced by writ of summons. The plaintiffs were Winch and four other members of the Hobart branch, who sued "on behalf of themselves and all other members of the Federation offering themselves in the port of Hobart for employment as registered waterside workers". The defendants were the Stevedoring Industry Authority and the two Hurseys. By their statement of claim the plaintiffs alleged that the Hurseys were not members of the federation, and they claimed in substance a declaration to this effect and also declarations that members of the federation were entitled to be rostered for work in preference to the Hurseys, and that the Hurseys were not entitled to be rostered for work on any job so long as members of the federation were available for work on that job. This latter claim was based on a clause in an order known as Port Order No. 38 of 1948. This was an order made by the Stevedoring Industry Commission under s. 14 of the Stevedoring Industry Act 1947, and was said to be still in force notwithstanding the repeal of that Act by the Stevedoring Industry Act 1949. It contained a provision for preference in employment to members of the federation, to which reference will be made in due course. (at p50)

16. The judgments of the learned Chief Justice of Tasmania in the three actions were pronounced on 7th November 1958, and were respectively as follows: - 1. Action No. 1363 of 1957 was dismissed as against Williams and Pelham, but a declaration was made that the resolution imposing the "political levy" of 10s. 0d. was invalid and void on the ground that it was not expressly or impliedly authorized by the rules of the branch or the rules of the federation. 2. In action No. 78 of 1958 judgment was given in favour of each of the Hurseys for 2500 pounds damages against all the defendants "as joint tortfeasors". It was declared that the Hurseys "are and were at all material times" members of the federation. It was also declared that cl. 15 of Port Order No. 38 of 1948 ceased to have any operation upon the coming into force of the Stevedoring Industry Act 1956. 3. Action No. 496 of 1958 was dismissed, his Honour holding that the Hurseys had never ceased to be members of the federation, and that Port Order No. 38 of 1948 ceased to be operative on the commencement of the Stevedoring Industry Act 1956. (at p51)

17. The most convenient course will be to deal with each of these three judgments in turn, but it seems desirable to attempt first to clear up two matters which may be said to arise on the threshold. The first may be dealt with very shortly. It has been argued for the defendants in the first two actions that the Supreme Court of Tasmania had no jurisdiction to entertain the claims for relief made in those actions. This argument is founded on s. 147 of the Conciliation and Arbitration Act 1904-1956 (Cth). Section 147 provides: - "Unless the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction." It is clear, in my opinion, that the Commonwealth Industrial Court has no jurisdiction in respect of the subject matter of either action. If s. 147 did purport to oust the jurisdiction of all other Courts in such cases, serious questions would arise as to its validity. (at p51)

18. The second matter is also common to the first and second actions, though it is much more important in relation to the second than in relation to the first. It does not arise in relation to the third action. The questions involved arise from the fact that in each case "the Waterside Workers' Federation" and "the Hobart Branch of the Waterside Workers' Federation" are named as defendants. In the first action an interlocutory application was made by summons for an order that these two names be struck out of the writ and subsequent proceedings. The ground of the application was, in substance, that neither name denoted a body corporate or other legal person or persons capable of being sued. The application was dismissed by Gibson J., and an application for special leave to appeal from the order of Gibson J. to this Court was also dismissed, but the questions raised are, of course, open on these appeals. (at p52)

19. So far as the federation is concerned, the position seems to me to be clear enough, and I agree with what has been said by the learned Chief Justice of Tasmania. The Conciliation and Arbritration Act of the Commonwealth, under which it is registered as an "organization", gives to it what I would not hesitate to call a corporate character - an independent existence as a legal person. It is given a personality, which is distinct from that of all or any of its members, and which continues to subsist unchanged notwithstanding the changes which are bound to occur from time to time in its membership: Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309 (per O'Connor J. (1908) 6 CLR, at pp 360, 361 ). What is now s. 136 of the Act provides that every registered organization shall for the purposes of the Act have perpetual succession and a common seal, and may own possess and deal with any real or personal property. This provision alone is, in my opinion, quite enough to give to a registered organization the full character of a corporation. The words "for the purposes of the Act" cannot be given any effect by way of qualification of the personification. The notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not. Probably the words are intended to do no more than explain the reason for the incorporation. Then s. 146 provides that "any organization may sue or be sued for the purpose of the Act in its registered or other name". It is difficult in this section to give any practical meaning to the words "for the purpose of the Act", and the use of the singular is curious. So is the reference to suing or being sued in an "other" name than the registered name: "organization" means "registered organization" (s. 6 (1)). But it seems clear enough that s. 146 is complementary to s. 136, and that a true corporate character is obtained by registration. It has been held that an organization can sue in its registered name for a simple contract debt arising in the course of conducting a newspaper to further its industrial interests: Australian Workers' Union v. Coles (1917) VLR 332 ; Australian Tramways Employees' Association v. Batten (1930) VLR 130 . Those two cases were, in my opinion, correctly decided. A registered organization has legal personality, and may be sued in its corporate name in the proceedings now under consideration. (at p52)

20. I have regarded the question of the status of the federation as entirely a matter of the construction of the Commonwealth Act, and as in no way depending on the well-known decision of the House of Lords in the Taff Vale Railway v. Amalgamated Society of Railway Servants (1901) AC 426 and the numerous cases in which it has been applied or acted upon in England. The federation is not registered as a trade union under the Trade Unions Act 1889 (Tas.), nor, so far as appears, under the trade union legislation of any other State, and it seems unnecessary to consider the English cases. The difficulties involved in them are formidable. In the Taff Vale Case (1901) AC 426 Farwell J., whose judgment was approved by the House of Lords, said:- "Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law". (1901) AC, at p 429 . It appears from this passage that Farwell J. was not prepared to describe the body in question as a "corporation", though he attributed to it essential characteristics of a distinct juristic person. With all respect to what is said by some of the learned Lords in Bonsor v. Musicians' Union (1956) AC 104 , one would think that a registered trade union either had or had not a personality distinct from that of its members: see Professor Derham's essay Theories of Legal Personality in Legal Personality and Political Pluralism - ed. Webb, (1958) Australian National University, pp. 16, 17. The holding of the property of a union by trustees is in no way inconsistent with the possession by that union of true corporate personality. It could not give rise to any difficulty in enforcing a judgment against the union by recourse to that property, and it surely cannot be right to say that a judgment against a union, if it is capable of being sued as such, can be enforced against the property of its individual members. But it is sufficient to say that the position under the Commonwealth Act seems to me to be clear. The language of that Act is far more explicit than that of the Trade Union Acts which were considered in the Taff Vale Case (1901) AC 426 . It is, of course, perfectly consistent with the possession of legal personality that the capacity of the "persona" should be limited: see Derham, loc. cit., pp. 14, 15. (at p53)

21. The position with regard to the "Hobart Branch" is inherently more difficult, but, in the end, I think, not less clear. It is plain that the "Hobart Branch" has no corporate character - no separate legal existence as a juristic person. Since a plaintiff cannot sue anything except a person or persons, the only way of justifying the naming of it as a defendant is to say that it is a convenient name for all the natural or individual persons enrolled in the "Hobart Branch". The plaintiffs in the first two actions justify the joining of the "Hobart Branch" as a defendant by reference to O. LIII, rr. 13 et seqq. of the Rules of the Supreme Court of Tasmania. The earlier rules of O. LIII reproduce the familiar English Rules (O. XLVIIIA), which enable a partnership to sue or be sued in the firm name. The framer of rr. 13 et seqq. seems to have attempted (perhaps without fully realizing the great difficulties involved) to extend those rules with modifications to "any unincorporated society, fellowship, club or association". The general idea seems to be to assimilate the case of any society etc. to the case of a partnership, but subject to the proviso in r. 27 that: - "No judgment in an action in which a society is named as a defendant (other than a judgment establishing the right of any person as a member of the society and restraining the exclusion of such member from the rights, benefits, and privileges of membership of the society) shall be entered against the society under this Order, unless the cause of action on which the action is founded is one in respect of which, if the society were a corporation, it would have been liable . . . . as principal". (at p54)

22. These Rules do not appear to me to solve the problem created by the most fundamental of the differences between a corporation and an unincorporated society. That fundamental difference is that a corporation has "perpetual succession" : it maintains its identity and its personality notwithstanding changes in its membership, which may occur from day to day. Its property does not belong to its members. But the property of a "society" does belong to its members from time to time, and that property may be owned by entirely different persons at the date when the cause of action arose, at the date when the action is commenced, and at the date when judgment is pronounced. (at p54)

23. The difficulties involved in this subject matter, and the attempts which have been made to overcome them, are explained and discussed in Dr. H. A. J. Ford's very recent book entitled Unincorporated Non-Profit Associations (1959). But I need not pursue the matter further, because, whatever the rules may do or fail to do, they have, in my opinion no application to the present cases for the reason that the "Hobart Branch" of the federation is not an "unincorporated society, fellowship, club or association". It has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation. The branches are permitted within limits to make rules of their own, but the rules which they make derive authority from the rules of the federation. It is contemplated that a branch may have "property and moneys", but, if r. 15 of the Hobart branch rules means that the beneficial ownership thereof is in the members of the branch, it is inconsistent with r. 10 (A) of the rules of the federation which makes the "fund and property" of the organization and its branches subject to the "care, superintendence, management and administration of the governing body of the Organization for the carrying out of the objects of the Organization". The position is precisely analogous to that which was held by this Court to subsist in Hall v. Job (1952) 86 CLR 639 and there is a passage in the judgment in that case which, if we read "Federation" or "Organization" for "Institution" and "Branch" for "Lodge", is exactly applicable to the present case. The passage is as follows: ". . . an individual cannot be a member of the Lodge except as a member of the Institution. The mutual rights and obligations of the members of the Lodge spring from the rules of the Institution, and cannot be altered except as those rules provide. The purposes which the members of the Lodge have in common are none other than the purposes for which they are members of the Institution. The Lodge does not exist as a society of persons who desire to associate exclusively with one another for agreed purposes; it exists as an integral part of a larger organization, of which all the members are associated for the pursuit of purposes common to them all in accordance with a constitution which governs them all. A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits, and for the performance of the obligations and functions, which are the incidents of their membership of the Institution." (1952) 86 CLR, at p 650 . It follows that the judgments in the first and second actions cannot stand as against the "Hobart Branch". This is of small importance in the first action, but it may prove to be of considerable importance in the second action. (at p55)

24. I turn now to consider the judgment in the first action, by which it was declared that the so-called "political levy" - the resolution that a levy of 10s. 0d. per member should be imposed for the assistance of the Labor Party in the forthcoming election - was invalid and void. The argument by which the respondents, both in the Supreme Court and in this Court, supported their contention that the resolution imposing the levy was without effect was, in substance, twofold. They said, in the first place, that the rules of the federation and of the branch did not, as a matter of construction, authorize the making of a levy for the support of a political party. They said, in the second place, that any rule which did purport to authorize the making of such a levy would be itself invalid. They said - to state in very broad terms an argument which requires analysis - that the federation is a trade union, and that it is illegal for a trade union to apply its funds to political purposes. If the second branch of the argument were sound, it would, of course, provide a reason for construing the rules, in case of doubt or ambiguity, as not conferring the power in question. (at p56)

25. The fundamental premiss on which the argument of the respondents rests must, of course, be conceded. That is to say, the power to make the levy must be found expressed or implied in the rules. The learned Chief Justice was of opinion that no such power could be found expressed or implied in the rules. He reached this conclusion as a mere matter of construction, but he said that he was fortified in his conclusion by s. 140 of the Conciliation and Arbitration Act 1904-1956. That section authorizes the Commonwealth Industrial Court to disallow any rule of an organization which is, in its opinion, "tyrannical or oppressive" or "imposes unreasonable conditions upon membership". (The section has since been amended, but the relevant provision is that which existed in 1956, and in any case the amendments are immaterial for present purposes). His Honour thought that a rule which purported to authorize the making of the levy in question would be a rule which would offend against s. 140, and he found therein a supplementary reason for declining to read the general words of the rules as including a power to make such a levy. (at p56)

26. It is true that neither the federal rules nor the branch rules contain any specific reference, direct or indirect, either to the making of contributions to the funds of a political party or to the making of levies on members for that purpose. But this, in my opinion, is very far from being conclusive. When we look at the federal and branch rules, we find that (as in the case of so many trading companies) the draftsman has not fully observed the distinction pointed out by Lord Wrenbury in Cotman v. Brougham (1918) AC 514 between "objects" and "powers to be exercised in effecting the objects" (1918) AC, at p 522 . What is, however, unquestionably the central and dominant "object" of the organization and of the branch is stated in terms which are at once wide and clear. Federal r. 2, which is headed "Constitution" provides that: "The purpose of the Organization is to combine in one body all persons engaged in the loading discharging and coaling of vessels in order that their interests may be protected, their status raised, and their conditions improved". Branch r. 2 is in identical terms. Federal r. 3 (a) states as an "object" of the Organization "by all lawful means . . . to foster the best interests of the members of the Organization", and Branch r. 3 (a) is in similar terms. Federal r. 3 (o) states as an "object" what is really a means - "to raise funds for the furtherance of the aforesaid objects", and r. 3 (1) of the Branch Rules states as an object of the branch "to impose levies . . . in order to carry out the objects of the Branch". Both the federal rules and the branch rules contain other general references to "levies" (e.g. branch r. 23, which has already been mentioned) but these do not carry the matter further beyond making it clear that the imposition by the governing body of a "levy" on members is the method contemplated of raising, for the general or special purposes of the federation and the branch, funds over and above what will be provided by the ordinary annual contribution or subscription. When the rules use, in stating "objects", such general expressions as "the interests of members" and the "improvement of the conditions of members", they must, of course be read as referring to the interests of members as waterside workers and to the improvement of the conditions under which they work (as to wages, hours, privileges, amenities, etc.). But, subject to that, no prima facie reason exists for limiting the meaning of such expressions in any way, and any action which can fairly and reasonably be regarded as likely to further the interests of the organization and its members is within the objects stated in the rules, and therefore within the powers of the federation acting directly or through the branch. To adapt slightly the words of Lord Selborne in Attorney-General v. Great Eastern Railway Co. (1880) 5 AC 473 ". . . whatever may fairly be regarded as incidental to, or consequential upon, what is expressly authorized ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires" (1880) 5 AC, at p 478 . And it seems to me to be undeniable (nor do I think that evidence is required to establish it) that the governing body and the members of the federation or of a branch might, without exceeding the bounds of relevance which are read into such powers, think that the result of a State election was a matter of very real and practical importance to them - that it was very definitely in their interest that the Labor Party should have a majority in Parliament and should administer the government of the State, or at least should be as strongly represented in Parliament as possible. If this is so, it is within the objects of the federation or a branch to take practical steps to assist the campaign of the Labor Party, and it may exercise any of its powers - including the power to impose a levy - to that end. (at p58)

27. In this connexion, it is, I think, necessary, if one is to arrive at a realistic view, to remember certain aspects of the history of trade unionism in Great Britain and in Australia. One need not go back beyond the middle of the 19th century or examine what happened otherwise than in bare outline. At that time and thereafter in both countries the trade union movement, as it has been called, was endeavouring to achieve its ends - the general alleviation and amelioration of working and living conditions - by "industrial" means, that is to say, by combination, by propaganda, and by direct action, such as the strike. But in both countries a time arrived when the unions became convinced that their ultimate aims could not be attained except by political, as distinct from industrial, action. This meant ultimately that the unions, and the class to which their members belonged, must have direct representation in Parliament, but it was not at first realized that this in turn meant that a new political "party" must be formed to support their interests. (at p58)

28. It is at first sight curious, though readily explainable, that the use of trade union funds with a view to the attainment of immediate political ends became common in Great Britain at an earlier stage than in Australia, although the actual conception and creation of a distinctive "Labour" party came earlier in Australia than in England. Cole (A Short History of the British Working Class Movement, (1948) p. 312) says: "Trade unions had been using their funds for political agitation at least since the early sixties, and for promoting trade union candidatures at least since 1867" - the year of the Representation of the People Act. But a nominate "Labour Party" seems to have come into actual being in Great Britain only in 1906. This was about five years after the decision of the House of Lords in the Taff Vale Case (1901) AC 426 . Trevelyan, English Social History, pp. 574, 575 says: "It was no theory but the practical need to defend trade union rights . . . that brought Labour into politics to form a party of its own . . . The Taff Vale decision provoked the effective formation of a separate Labour Party in Parliament." Cole (op. cit., p. 291) says "The Taff Vale Case created the Labour Party". (at p59)

29. In Australia, on the other hand, the idea of direct representation in Parliament as an objective of the unions was definitively adopted earlier than in Great Britain and its development was more rapid. "An original development of trade unionism in Australia was its decision in the eighties of last century to play a direct part in politics". (Hancock, Australia, (1930) p. 199). See also an article by Mr. G. V. Portus in Australia - Economic and Political Studies - edited by Professor Meredith Atkinson - Macmillan (1920) p. 164. At the end of the eighties the political activities of the unions received a powerful stimulus. The decade 1880-1890 was a decade of industrial conflicts, often culminating in strikes, in all the Australian colonies. In 1890 there was a strike which was disastrous from the unions' point of view. Ast to the general situation then subsisting, see Portus, loc. cit., pp. 168-9. The point made is that these events convinced unionists generally that, while not abandoning "industrial" action as a weapon, the workers "must set about the work of reform where it seems that reform alone can be obtained, and that is in Parliament". (Dr. R. A. Gollan in Australia - A Social and Political History - edited by Professor Gordon Greenwood - Angus &Robertson (1955) p. 165). (at p59)

30. Where the objects of an association of a particular class are expressed in wide general terms, and the question arises whether particular means of attaining those objects are comprehended within those terms, it must be an important consideration that associations of that class have in fact traditionally over a long period employed those means with a view to attaining those objects. We have something analogous to what Sir William Page Wood called "the received mode of carrying on a particular business": Taunton v. Royal Insurance Co. (1864) 2 H &M 135, at p 140 (71 ER 413, at p 415) . And what emerges clearly from what has been said is that for many years before the first Commonwealth Conciliation and Arbitration Act was enacted the trade unions of Australia were openly pursuing their objective of better working and living conditions not merely by industrial action but by the most active participation in politics. They had come indeed in those years to rely not less on "political" activities than on "industrial" activities. It is seen that the Labor Party was in its structure and its essential character a product of trade unionism. It began life as the party of the trade unions. It had its origin in Australia as a committee representative of trade unions. When regard is had to these matters, it cannot, I think, be maintained that the very general statement of "objects" in the rules of the Waterside Workers' Federation does not authorize that body, as a means of attaining those objects, to support by propaganda, and by financial subvention obtained by levy, a political party whose professed ultimate aims, though at once wider in scope and more definitive in expression, are identical in essential character with its own. (at p60)

31. For these reasons I differ, with great respect, from the learned Chief Justice of Tasmania on the question of the construction of the rules of the federation and the branch. (at p60)

32. Then, is there anything in the Conciliation and Arbitration Act (Cth) which can be construed as denying to an organization of employees registered under it, and having the general object of promoting the industrial interests of its members, the power to raise and expend moneys with a view to the return at a parliamentary election of candidates favourably disposed to the promotion of those interests? Or is there anything which forbids it to provide by its rules for these matters? I can find nothing of the kind. The original Act, which was passed in 1904, not merely contained nothing by way of denial of such a power but clearly contemplated the existence of such a power. For s. 55, which provided for the registration of organizations of employers and employees, contained a proviso that an organization whose rules permitted the application of its funds to political purposes should not be "entitled to any declaration of preference by the Court". The "preference" referred to would seem to be preference to unionists in employment, so that the proviso would affect only organizations of employees and not organizations of employers. The proviso was omitted by s. 11 of Act No. 7 of 1910. The omission may have been dictated by what I would regard as a misconception of the case of Amalgamated Society of Railway Servants v. Osborne (1910) AC 87 . However this may be, the omission cannot affect the original significance of the proviso, but I do not regard that significance as having any great importance. The point is that the Act, unamended and amended, leaves the organization which is its creature at liberty to have a rule which authorizes "political" levies. (at p60)

33. The position now reached may be summed up thus. The federation is a body whose constitution authorizes it (inter alia) to raise and expend moneys for political purposes. It is registered, and by virtue of its registration incorporated, under a Commonwealth statute, which has nothing to say against the raising and expending of moneys for such purposes. In my opinion this is decisive of the question in the first action. But it is necessary to consider now what was perhaps the main argument presented by counsel for the respondents. This argument rests fundamentally not on Commonwealth law but on State laws. I think that the short and conclusive answer to it is provided by saying that it is constitutionally impossible for a State statute to prescribe what shall or shall not be the powers of a corporation which is created and empowered by a law of the Commonwealth. The argument, however, requires examination. I am not able to accept even the first of the two steps which it involves. Its ultimate basis is found in Osborne's Case (1909) 1 Ch 163; (1910) AC 87 but it is necessary, before examining that case, to look for a moment at the law as it existed in England before the passing of the Trade Union Acts 1871 and 1876. (at p61)

34. With regard to the meaning (apart from special statutory definition) of the term "trade union", reference should be made to the judgment of Kitto J. in Victorian Employers' Federation v. Federal Commissioner of Taxation (1957) 96 CLR 390 . It is not, of course, correct to say that before 1871 every trade union was an unlawful association at common law. Apart from the numerous Combination Acts, which were repealed in England by the Act of 1824 and not revived by the Act of 1825, there was no reason why employers or employees should not form associations for the furtherance of their respective trade interests. It was only if, and so far as, such an association offended against the sacred principle of freedom of trade, that it incurred the disfavour of the common law. Any agreement which involved the "imposition of restrictions on the conduct of a trade or business" was an agreement in unreasonable restraint of trade and void. And a trade union, or any other association, which had among its objects (as the Waterside Workers' Federation has) the imposition of such restrictions was regarded as an "unlawful association" whose rules and agreements the Courts would not enforce or recognize: Russell v. Amalgamated Society of Carpenters and Joiners (1912) AC 421 . It is now well settled that the mere making of such an agreement or the mere membership of such a trade union was not illegal in the sense of being indictable at common law or in any other relevant sense. Before 1892 there were certain dicta to the contrary. The most notable was that of Crompton J. in Hilton v. Eckersley (1855) 6 El &Bl 47, at p 53 (119 ER 781, at p 784) . But Lord Campbell C.J. (who, as the conclusion of his judgment shows, was by no means well disposed towards trade unions in general) expressed strong disagreement with Crompton J. (1855) 6 El &Bl, at pp 62, 63 (119 ER, at pp 787, 788) . See also Hornby v. Close (1867) LR 2 QB 153 and R. v. Stainer (1870) LR 1 CCR 230 . In Mogul Steamship Co. v. McGregor, Gow &Co. (1892) AC 25, at pp 39, 42, 46 51, 58 all the learned Lords expressed disagreement with the dictum of Crompton J. The true position had been clearly put by Bowen L.J. in the same case. The learned Lord Justice said: "The term 'illegal' here is a misleading one. Contracts . . . in restraint of trade are not . . . illegal in any sense except that the law will not enforce them. It does not prohibit the making of such contracts; it merely declines, after they have been made, to recognize their validity" (1889) 23 QBD, at p 619 . (at p62)

35. It was, as is explained by Jessel M.R. in Rigby v. Connol (1880) 14 Ch D 482, at pp 489, 490 for the purpose of alleviating to a certain extent the disabilities under which, by reason of their being associations in restraint of trade, many trade unions laboured, that the Trade Unions Act 1871 and the amending Act of 1876 were passed. It is necessary to refer only briefly to the provisions of these Acts. The former Act, as amended by the latter, defined a trade union as "any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the Principal Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade". It was provided that the purposes of a trade union should not, by reason merely that they were in restraint of trade, render any member liable to prosecution, or be unlawful so as to render void or voidable any agreement or trust. There were provisions for the registration of trade unions, but no requirement that a trade union should be registered. A registered trade union was authorized to purchase and sell real property. Its real and personal property were to be vested in trustees. It was evidently contemplated that a registered trade union might sue and be sued, for it was provided that nothing in the Acts should enable any court to entertain any proceeding for the enforcement of certain classes of agreement. These included "any agreement for the payment by any person of any subscription or penalty to a trade union". (at p62)

36. The Taff Vale Case (1901) AC 426 decided, to all intents and purposes, that registration under the Acts conferred a corporate personality upon a trade union. It could be sued for a tort. Some nine years later came Osborne's Case (1910) AC 87 The Amalgamated Society of Railway Servants was a trade union within the meaning of the Acts of 1871 and 1876, and it was registered under those Acts. Its rules were amended in 1906, so as to provide for the establishment of a fund, by means of a subscription of 1 pound 1s. 0d. per year per member, for the maintenance of a member of the House of Commons representing railwaymen. The member, if elected, was to be paid by the union a salary of 250 pounds per year, and was to "sign and accept the conditions of the Labour Party and be subject to their whip". Osborne, a member of the society, brought an action claiming a declaration that these provisions were invalid. The action was dismissed by Neville J., following Steele v. South Wales Miners' Federation (1907) 1 KB 361 but his decision was reversed by the Court of Appeal, and the declaration sought by Osborne was made. The decision of the Court of Appeal was affirmed by the House of Lords. (at p63)

37. The English Acts of 1871 and 1876 were enacted at different times without material modification in each of the Australian colonies, and also in New Zealand. In Tasmania the relevant Act is the Trade Unions Act 1889. In England the position created by the Taff Vale Case (1901) AC 426 and the Osborne Case (1910) AC 87 was altered by the Acts of 1906 and 1913, and there have been a number of more recent enactments relating to trade unions as such. There has also been further legislation in some of the Australian States and in New Zealand, but in Tasmania there has been no legislation materially affecting the Act of 1889. In New South Wales and Western Australia there have been decisions of State Courts purporting to apply Osborne's Case (1910) AC 87 to trade unions registered under the Trade Union Acts of those States: see Allen v. Gorton (1918) 18 SR (NSW) 202; 35 WN 69 and True v. Australian Coal and Shale Employees' Federation Union of Workers (W.A.) (1949) 51 WALR 73 . In each of these cases it was held that a trade union registered under the Trade Union Act of the State had no power to apply its funds to the support of a political party. There is a good deal to be said for the view that the highly controversial decision in Osborne's Case (1910) AC 87 ought not, in the light of the historical considerations mentioned, to have been held to be applicable at all in Australia: see Foenander, Better Employment Relations pp. 215, 216. But it is unnecessary to consider this question, because the reasoning in Osborne's Case (1910) AC 87 is, in my opinion, wholly inapplicable to a union which, like the Waterside Workers' Federation, is registered under the Commonwealth Conciliation and Arbitration Act. (at p64)

38. It is necessary to see exactly what Osborne's Case (1910) AC 87 did decide. The opinions of Lord James of Hereford and Lord Shaw of Dunfermline were both based, in effect, on the view that it was contrary to public policy that a member of Parliament should be paid a salary by an outside body on condition that he should vote in the House as he might be directed vote. This view rests on an element in Osborne's Case (1910) AC 87 which is absent from the present case. The other three members of the House of Lords were the Earl of Halsbury, Lord Macnaghten and Lord Atkinson. Their Lordships all decided the case on the ground that it was ultra vires a trade union registered under the Acts to apply its funds to a purpose of a political nature. They took the definition of "trade union" in s. 16 of the Act of 1876, and treated that definition as defining exhaustively the objects and powers of a trade union in the same way as the objects clause of a trading company's memorandum of association defines and limits the scope of the activities in which the company is legally capable of engaging. In other words, they regarded registration as effecting an incorporation or quasi-incorporation of the union, and the statutory definition of "trade union" as delimiting the union's corporate or quasi-corporate powers. The case was parallel, they said, to Ashbury Railway Carriage Co. v. Riche (1875) LR 7 HL 653 and Baroness Wenlock v. River Dee Co. (1885) 10 AC 354 . Since there was no reference in the definition to political activities, the union was legally incapable of applying its funds to political purposes, and the rule which purported to give it power to do so was of no effect. (at p64)

39. As I have said, neither the federation nor any of its branches is registered under the Trade Unions Act 1889 (Tas.) or, so far as appears, under the Trade Union Act or Acts of any other State. It follows that the reasoning on which the decision of the majority of the Lords in Osborne's Case (1910) AC 87 was founded can have no application to it. Its legal existence and its corporate capacity are derived not from any State Act but from a Commonwealth Act. That Commonwealth Act does not deal with trade unions as such, and, so far as the "organizations" with which it does deal are concerned, there is no provision to which can be imputed the restrictive effect attributed to s. 16 of the English Trade Unions Act 1876. It is said, however, that an organization registered under the Commonwealth Act may be, and the federation is, also an unregistered "trade union" within the meaning of the Trade Unions Act 1889 (Tas.), and it has been decided that the effect of the decision in Osborne's Case (1910) AC 87 is to impose the same disability on an unregistered trade union as on a trade union registered under that Act. The case which so decides is the case of Wilson v. Scottish Typographical Association (1912) SC 534 .. (at p65)

40. There are, in my opinion, two answers to this argument. The first is that the decision in Wilson's Case (1912) SC 534 can be supported, if at all, only on a ground which has no relevance to the present case. The second is that the powers of an organization registered under the Commonwealth Act depend wholly on that Act, and cannot be restricted or affected by any State legislation. (at p65)

41. In Wilson's Case (1912) SC 534 the defendant association, which was admitted to be a "trade union" within the statutory definition, but was not registered under the Trade Union Acts, had, after Wilson had become a member thereof, altered its rules so as to give it express power to apply its funds in furtherance of "political" objects. Wilson's suit came in the first place before the Lord Ordinary (Lord Skerrington). His Lordship, after observing that Osborne's Case (1910) AC 87 had been decided on the ground that the political objects in question were ultra vires the defendant union, said: "It is apparent that this ground of judgment has no application to a society which has no statutory constitution, and which is merely a voluntary association, such as an unregistered trade union. It follows that the pursuer is not entitled to a declarator that the rules to which he objects are ultra vires and illegal. If he has a remedy it must be on the ground that the new rules constitute a violation of his contract with the Association and prejudice his patrimonial rights as one of its members" (1912) SC, at p 541 . He proceeded then to decide the case in Wilson's favour on the ground that the association "could not, without violating its contract with the pursuer, adopt rules which placed itself and its property outside the protection of the civil law" (1912) SC, at p 541 . This ground of the decision is understandable, but it has no relevance to the present case, where no alteration of rules is in question. On appeal, the view of the Lord Ordinary was regarded as somewhat too "subtle", but his decision was upheld on the ground that the reasoning of the majority in Osborne's Case (1910) AC 87 was not less applicable to an unregistered trade union than to a registered trade union. What was ultra vires the one must be ultra vires the other. But there can surely be no question but that the view of the Lord Ordinary on this point was correct. The term "ultra vires" is meaningless with reference to a "natural" person or the members of an unincorporated society. The capacity of an artificial person depends on, and is limited by, the instrument which creates it by directly or indirectly giving legal personality to it. The objects to which an unincorporated society may devote its funds may be limited by the contract which constitutes it, and it may be possible to restrain by injunction a breach of that contract. But breach of contract is one thing, and ultra vires or incapacity is another and quite different thing. The capacity of an unincorporated society can depend on nothing but the capacity of its individual members. Their capacity, or the capacity of some of them, may be affected by such matters as infancy or lunacy, but otherwise it is unlimited. The whole basis of the reasoning of the Earl of Halsbury and Lords Macnaghten and Atkinson lies in a region completely alien to natural persons - a region inhabited only by corporations. In my opinion, Osborne's Case (1910) AC 87 has nothing to do with the present case, and Wilson's Case (1912) SC 534 so far as it purports to follow Osborne's Case (1910) AC 87 was wrongly decided and ought not to be followed. (at p66)

42. But in any case, apart altogether from Osborne's Case (1910) AC 87 and Wilson's Case (1912) SC 534 it seems to me inconceivable, as a matter of constitutional law, that any State statute should have the effect of defining or limiting or controlling the powers of a corporation created by Commonwealth law. (at p66)

43. In considering the position in this regard, it is desirable to begin by referring briefly to the provisions of the Commonwealth Act relating to organizations and their registration. The Act has been radically amended again and again over the years since 1904. We may take the Act of 1904-1956, which was the Act as it stood at the time when the resolution imposing the levy for the support of the Labor Party was passed. Section 2 declares that one of the "objects of the Act" is "to encourage the organization of representative bodies of employers and of employees and their registration under the Act". Section 132 (1) provides for the registration "on compliance with the prescribed conditions" of associations of employers and associations of employees. Section 132 (2) provides that the conditions to be complied with by associations applying for registration shall be as prescribed. The conditions are prescribed by reg. 115 of the Conciliation and Arbitration Regulations (S. R. 1956, No. 60). That regulation provides: "(1) The following conditions are prescribed conditions to be complied with by an association applying for registration, namely: (a) the association shall be a voluntary and bona fide association of a kind referred to in section 132 of the Act; (b) the association shall be an association for furthering or protecting the interests of its members; (c) the association shall not be wholly or partially formed, organized, supported, maintained or conducted, directly or indirectly, for the purpose, or with the view, of opposing, injuring or prejudicing the interests of employers or employees, as the case may be, whose interests it purports to represent, further or protect". Then follow detailed provisions as to what must be provided for by the rules of an organization. It is provided that the rules "may also provide for any other matter not contrary to law". None of the rules is to be "tyrannical or oppressive" or to "impose unreasonable conditions upon the membership of any member or upon any applicant for membership". It should be noted in passing that this provision, which follows the language of s. 140 of the Act, cannot be treated as making void any rule held by any Court to be tyrannical or oppressive, &. Section 140 only avoids any rule which is disallowed by the Industrial Court on the ground that it is tyrannical or oppressive, &., and no regulation could avoid any rule otherwise than upon such disallowance: cf. Morton v. Union Steamship Co. of New Zealand Ltd. (1951) 83 CLR 402 . Section 135 of the Act provides that the Registrar shall issue a certificate of registration, which shall be conclusive evidence of registration and that the prescribed conditions of registration have been complied with, but by ss. 140 and 143 certain powers are given to the Industrial Court to compel an organization to alter its rules. (These sections were amended in substantial respects in 1958). The rest of Pt. VIII contains elaborate provisions relating to registered organizations, among which are provisions giving to the Industrial Court wide powers of control, which were greatly extended when Pt. IX came into force. (at p67)

44. What the Commonwealth Act does, then, is to give legal personality to every organization registered under it, and to the personality so given are attached certain powers. In other words, the capacity of the new "person" is defined indirectly by the Commonwealth Act. It is defined directly by the rules of the organization, which are registered when the organization itself is registered, and which then derive their authority from the Act. If the registered rules, on their true construction, empower the organization, as I think they do in the present case, to make a levy for the assistance of a political party, then that power must be regarded as derived from the Act. The Act and the Regulations expressly permit the rules of the organization to provide for "any other matter not contrary to law". Whatever may be the scope of the words "not contrary to law", it is clear that it is not, and never was, contrary to law or forbidden by law that any person should engage in political activities. It would be absurd to suggest that such activities were illegal in themselves. There is, of course, one other limitation on the powers which a registered organization may take to itself by its rules, and that is that nothing is permissible which would tend to frustrate the policy and main purpose of the Act: cf. Australian Workers' Union v. Coles (1917) VLR 332, at pp 336, 337 (per a'Beckett J.). But again that limitation is not transgressed by a rule which gives a power to use funds for political purposes. The application of funds for the support of a political party is, as has been seen, a traditionally accepted means of "furthering or protecting the interests" of members of an association of workers or employees. (at p68)

45. The passages in the judgment of a'Beckett J., which I have cited above, are too long to set out in full, but they express strongly and clearly the whole substance and reality of the position. There is nothing unconstitutional in the position as a'Beckett J. saw it. It would be different, of course, if the Jumbunna Case (1908) 6 CLR 309 had been decided the other way. But it has been accepted ever since 1908 that the Commonwealth may create these corporations, and, if it can create them, it must be able to define their powers. They must be associations of employees or of employers formed for the purpose of protecting and advancing the interests of their members, and no reason exists for saying that they cannot be empowered to do anything "not contrary to law" which is calculated to protect or advance those interests - to engage in propaganda by means of a newspaper or to contribute to the funds of a political party favourable to those interests. (at p68)

46. This being the position under the Commonwealth Act, and these being the powers which the incorporated organization has by virtue of its own registration and the registration of its rules under that Act, it must be beyond the power of any State to alter that position or to qualify those powers. No State could a priori forbid or ex post facto annul a power which is derived in this way from a law of the Commonwealth. Any attempt to do any such thing would involve a plain inconsistency within the meaning of s. 109 of the Constitution. No State Act could restrict the powers of the Commonwealth Bank or the Australian Broadcasting Commission. It is not merely that the State would be forbidding something which the Commonwealth permitted, as in Colvin v. Bradley Bros. Pty. Ltd. (1943) 68 CLR 151 and O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565; (1956) 95 CLR 177 . The State would be invading a territory which the Commonwealth has marked out as its own and for which it has made exhaustive and exclusive provision. It has laid down what is to be the law relating to the powers and functions of its own specially created corporations. (at p69)

47. Organizations registered under the Commonwealth Act are simply no concern of the States. Any other view would involve absurdity. The Commonwealth corporation could be put in the position of having mutually inconsistent objects and powers in each of the six States. (at p69)

48. The argument against the view which I have expressed rests, of course, essentially on Wilson's Case (1912) SC 534 . I have given my reasons for thinking that Wilson's Case (1912) SC 534 if placed on the ground on which Lord Skerrington decided it, is irrelevant, and, if placed on the ground on which it was decided on appeal, cannot be supported. I have thought further (apart from any decision on any Trade Unions Act) that, if a corporate body is created and empowered by or under Commonwealth law for Commonwealth purposes, its capacity cannot be cribbed or confined or in any way affected by any State law. Part VIII of the Act occupies the whole of the relevant field. The argument against this last view seems to rest basically on the conception that the Commonwealth Act takes up, so to speak, bodies which already exist under State laws, and must be regarded as taking them up subject to any disabilities which affect them by virtue of any State law. I am quite unable to accept this idea. In the first place, a very general, but very strong, reason for rejecting the suggested construction lies in the fact that the Parliament of the Commonwealth is legislating for the whole of Australia. It is surely not to be supposed that it intends that the system of registered organizations, which it is setting up, is to be at the mercy of the legislation of all or any of the States - that the capacity of the new persons, which it is, for its own exclusive purposes, creating, can be limited by existing or future State legislation. If it were so, a single Commonwealth-created corporation might, as has already been pointed out, have entirely different powers in each of the six States. In the second place, the Commonwealth Act offers the benefits and burdens of registration to "associations". The term "association" is defined in s. 4 of the Act as meaning "any trade or other union, or branch of any union, or any association or body composed of or representative of employers or employees, or for furthering or protecting the interests of employers or employees". It is not to be forgotten that the disabilities which are said to be imposed by Osborne's Case (1910) AC 87 and Wilson's Case (1912) SC 534 attach only to "trade unions" as defined in the English Act of 1876 and in the various State Acts. I would think it clear that the term "trade union" in the definition in the Commonwealth Act is used in the "ordinary" sense attributed to it by Kitto J. in Victorian Employers' Federation v. Federal Commissioner of Taxation (1957) 96 CLR 390 . But what is important is that the definition of "association" in the Commonwealth Act is different from, and very much wider than, the definition of "trade union" in the English and State Acts. If, then, the suggested construction of the Commonwealth Act be adopted, an "association" which is also a "trade union" within the meaning of the English Act will be subject, after registration under the Commonwealth Act, to disabilities which do not affect an association which is not such a trade union. It seems apparent that the Commonwealth Parliament intended to enact, as it was plainly entitled to do, its own scheme for its own purposes without reference to what any State might have done in the past or might do in the future. (at p70)

49. There are three other matters which must be briefly referred to. In the first place, I do not think that anything "tyrannical" or "oppressive" is involved in construing the rules of the federation as authorizing the making of a levy for a "political" purpose. The words "tyrannical" and "oppressive" are of very vague and uncertain import, but, primarily at any rate, I think that they have reference to the internal management of an organization, and that the purport of their prohibition is to ensure that control is in the last resort in the hands of the members and not in the hands of an individual or group. Their effect may go further than this, but I cannot think that a rule is tyrannical or oppressive merely because it may require members against their will to contribute money for a purpose which is relevant to their group interests, and is reasonably and in good faith believed by a majority of the members to be for the benefit of the group. (at p70)

50. Nor, in the second place, do I think that to construe the rules as I have construed them involves "imposing unreasonable conditions upon the membership of any member or upon any applicant for membership". It is true that the contrary view appears to have been taken in Re Federated Ironworkers' Association (1948) 61 CAR 726 by a majority of the Court of Conciliation and Arbitration. But, as Mr. Eggleston pointed out, the proposed rule which was before the Court in that case did not deal with the imposition by majority vote of a levy in aid of a specified political party. In any case, I think that we should construe the relevant registered rules of the Waterside Workers' Federation for ourselves, treating them, as I think we are bound to treat them, as valid and binding unless and until any of them is disallowed or directed to be altered under s. 140 or s. 143. In connexion with the Ironworkers' Case (1948) 61 CAR 726 it is interesting to note the American case of United States v. Congress of Industrial Organizations (1948) 335 US 106 (92 Law Ed 1849) . A federal statute forbade any labour organization to make "any contribution or expenditure in connexion with" certain elections. A charge was laid against an organization which had published a newspaper urging its readers to support a particular candidate at an election. Five justices held that what had been done was not covered by the terms of the statute, and declined to express any opinion on the constitutionality of the enactment. The remaining four justices, holding that there had been a contravention of the statute, proceeded to consider its validity, and held that it violated the First Amendment. In the course of an opinion delivered by Rutledge J. the minority said: "The expression of bloc sentiment is and always has been an integral part of our democratic electoral and legislative processes" (1948) 335 US, at p 143 (92 Law Ed, at p 1872) . A little later they said: "But it is not made clear whether the member could refuse to pay the earmarked portion and retain membership or would have to pay it to remain in that status. If the latter is true, the section affords little real 'minority protection'; if the former, the dissentient is given all the benefit derived from the union's political publicity without having to pay any part of its cost" (1948) 335 US, at p 148 (92 Law Ed at p 1875) . (at p71)

51. The remaining matter to be mentioned is this. It was argued that the resolution imposing the levy was in any case invalid on the ground that branch rule 35 had not been complied with. That rule provides: "stop-work meetings of the Branch shall constitute the highest authority of the Branch, and it shall be competent to deal with any question or alter any of the Branch Rules by a three-fifths majority provided always the prescribed notice of one (1) week prior to the holding of the meeting has been handed to the President. Decisions made at a stop-work meeting cannot be altered except at a subsequent stop-work meeting or a plebiscite vote of the members". It may be assumed that no formal notice of the stopwork meeting was given to the president a week before it was held or at all. But r. 35, in my opinion, requires such a notice to be given only when the matter to be dealt with is a proposed alteration of the branch rules. The natural construction of the rule is to read both the requirement of a three-fifths majority and the requirement of notice to the president as qualifying only the power given to a stop-work meeting to alter the rules. The only alternative is to read the rule as requiring a three-fifths majority for "dealing with any question". Not only is it extremely unlikely that this was intended, but so to provide would be irreconcilable with r. 5 (c) of Pt. II of the federal rules, which provides: "When at any special meeting any resolution is carried by a majority representing less than ten per cent of the aggregate membership of the Branch, a ballot of the whole of the members of the Branch may be demanded by petition, in writing, addressed to the Secretary and signed by not less than ten per cent or such other percentage of financial members as the Branch may decide, subject to approval by the Council". Moreover, the construction of Branch Rule 35 which I would adopt is confirmed by the use of the word "prescribed". This seems clearly to refer to some other rule, and that rule seems clearly to be r. 28 (b), which provides for a three-fifths majority and for notice to the president in cases - but only in cases - where an alteration of the rules is in question. (at p72)

52. There does not appear to be any other formal objection to the validity of the resolution. If there had been, I would not, with respect, be able to agree with the learned Chief Justice that it was a mere matter of "internal management", with which the courts would not concern themselves. If there had been any non-compliance with the rules in the passing of the resolution, its passing could not have imposed on the Hurseys any obligation to pay the levy. (at p72)

53. It follows from what has been said that the appeal from the judgment in the first action should be allowed. That judgment should be discharged, and in lieu thereof it should be ordered that the action be dismissed. (at p72)

54. I come now to the judgment in the second action. It will be convenient to deal first with the two declarations made. The first of these was a declaration that the Hurseys "are and were at all material times" members of the federation. The making of this declaration followed as a matter of course from his Honour's view that the resolution imposing the political levy was invalid, for the refusal of the Hurseys to pay that levy was the ground on which it was contended that their membership of the federation had ceased before the commencement of the second action. It is true that, as his Honour found, the Hurseys on 18th October 1957 (four days before the commencement of the first action) had, in effect, refused to pay not merely the political levy but the full amount of the ordinary contribution of 8 pounds. They had, as has been narrated above, said that they were willing to pay 7 pounds 19s. 0d. only. But on 11th April 1957 they had been ready and willing to pay the full amount of the contribution without the levy. The relevant contribution did not become payable until 12th April 1957, and, on the construction which (as will be seen) I would put upon the relevant rule, they would not before the commencement, or before the trial, of the second action have ceased to be members for non-payment of the contribution. If they ceased to be members, it must have been because of non-payment of the levy. (at p73)

55. On the view, which I have accepted, that the political levy was validly imposed, the question depends on the rules of the federation and of the branch. They might have so ceased either by expulsion under the rules or by the automatic operation of some rule or rules. It is not suggested that the Hurseys were ever validly expelled. Federal r. 26 (a) provides: "Financial membership of the Federation shall, unless otherwise provided for in these Rules, be dependent upon the payment of the prescribed annual contribution, and such other levies as they become due". And r. 26 (m) provides: "Any member being in arrears to the extent of 1s. 0d. or more for contributions, fines, fees, levies or dues, shall be unfinancial, and shall forfeit all privileges of membership until he shall have again become financial". Branch rr. 20 (b) and (c) are in similar terms. But these rules do not, in my opinion, involve actual cessation of membership, and the immediately relevant provisions appear to be those contained in federal r. 7 (a) (ii) and branch r. 19 (a) (ii). These rules are in practically identical terms. Rule 7 (a) provides: "Any member who for twelve (12) calendar months commencing in January of each year has during that period: (i) ceased to follow the occupation of waterside worker in the port where he is a member and where during that period there has been work available and he has failed continuously to offer himself for such work; and/or (ii) failed to pay any contribution, fees, fines, levies or dues as and when they became payable in that year under the Rules of the Organization or of his Branch; shall, at the end of such twelve (12) months, cease to be a member of the Organization". (at p73)

56. Unfortunately this extremely important rule is extremely badly drawn. It seems reasonable enough to treat the words "commencing in January of each year" as meaning "commencing on 1st January in each year". But the words "for twelve months commencing on 1st January of each year" suggest that there must be a default in payment occurring in one calendar year and continuing during another calendar year commencing on the following 1st January. On the other hand, the words "in that year" in the phrase "as and when they become payable in that year" suggest an intention that a default occurring in any calendar year and continuing until 1st January of the following calendar year shall be sufficient to bring about a cessation of membership. (at p74)

57. I do not think that any construction is possible other than the two which I have indicated, and neither of these produces a satisfactory result. For, if we adopt the former, a member might be in default for nearly two years before the rule would operate to terminate his membership. And, if we adopt the latter, his membership might be terminated when he was only two or three days in default. The former result is much less unreasonable than the latter. I do not think that we can treat the rule as void for uncertainty, but it must, of course, be construed strictly. Its opening words make it plain, I think, that the extreme sanction of automatic loss of membership was not intended to apply unless there had been a default continuing for a calendar year. This view is reinforced by par. (i) of r. 7 (a). And, since a degree of latitude must be allowed in construing a very confused instrument, I think it is quite permissible to read the words "as and when they became payable" as meaning simply "which were payable". Rule 7 (a) (ii), then, should, I think, be read as meaning that membership automatically ceases if default in payment continues for a calendar year commencing on 1st January next following the date when the payment first became due. (at p74)

58. But, even on this construction, which is the most favourable construction possible from the point of view of the Hurseys, their membership must be held to have ceased on 31st December 1957. The levy, which I have held to have been validly imposed, was payable on 12th November 1956. The relevant period of twelve calendar months commenced, therefore, to run on 1st January 1957. They did not pay the levy, and their default continued up to the end of that period, which expired on 31st December 1957. The declaration that they remained members should not, therefore, have been made, and, so far as that declaration is concerned, the judgment in the second action should be set aside. (at p74)

59. The other declaration made in the second action was that cl. 15 of Port Order No. 38 of 1948 ceased to have any operation on the coming into force of the Stevedoring Industry Act 1956. This declaration does not appear to have been claimed by the statement of claim in the action, but the defendant federation relied upon the order by par. 32 of its defence. Whether it was relevant to any real issue in the action will be considered later. (at p75)

21. In this field, I think it unwise to go beyond the necessities of the case and I therefore refrain from expressing any view upon the question whether the Commission could award preference to members of the federation or by an award revoke an existing order granting preference to such persons. In the circumstances of this case, I do, however, feel obliged to come to a conclusion upon the contention that the Stevedoring Industry Act 1956 of itself repealed O. 38 of 1948. In view of s. 6 (4) (a) of the Act, it would have done so only if inconsistency is to be found between the terms of the Act and the terms of the order, and I find no such inconsistency. It seems to me that the Authority might carry out its functions under s. 17 (1) (f) and ensure a fair distribution of work in stevedoring operations amongst registered waterside workers subject to the existence of a provision giving preference to members of the federation. There was, therefore, in my judgment no repeal of O. 38 of 1948 when the Stevedoring Industry Act 1956 came into operation. It follows that the members of the Waterside Workers Federation were entitled to preference as against the Hurseys, at least between 1st January 1958 and 17th June 1958. This is a matter to which I shall return in dealing with the Hurseys' claim for damages for conspiracy. Port Order 21 of 1958, however, came into force on 17th June 1958. Because the third action was commenced on 8th July 1958, the order is a complete answer to the claims made therein if the revocation of Port Order 38 of 1948 was effective. I think it was, and I have reached this conclusion because I consider that the function of the Authority to make arrangements for allotting waterside workers to stevedoring operations so as to ensure as far as practicable a fair distribution of work in stevedoring operations amongst registered waterside workers requires it to form its own judgment on what is a fair distribution of work, and if it finds that an order for preference prevents it from ensuring what it considers to be a fair distribution, it has power, pursuant to s. 6 (7) and s. 18, to revoke such an order. I merely add that if the Commission were to make an order for preference under Div. 4 of Pt. III of the Commonwealth Conciliation and Arbitration Act 1904-1956 (and in view of par. (k) of the definition of "industrial matters" in s. 81 I think it could make some such order) and there were inconsistency between such an order and an order of the Authority under s. 18 of the Stevedoring Industry Act, then the case would be one for the application of s. 19 of the Stevedoring Industry Act. (at p122)

22. To summarize my conclusions on this part of the case, I would say that the Hurseys having ceased to be members of the federation on 31st December 1957, the members thereafter and by virtue of O. 38 of 1948 became entitled to preference as against them, but ceased to be so entitled on 17th June 1958 when O. 21 of 1958 validly revoked O. 38 of 1948.
(5) Conspiracy: Some general observations about the law of conspiracy are, I think, necessary. If two or more persons agree to effect an unlawful purpose, whether as an end or a means to an end, and in the carrying out of that agreement damage is caused to another, then those who have agreed are parties to a tortious conspiracy. Although it is probably too late in the day to divide conspiracies, for the purpose of legal classification, into two sorts depending upon whether the purpose of the combination would be lawful or unlawful if it were the purpose of an individual, there is much to be said in favour of approaching any consideration of the law of tortious conspiracy and its application in that way. It is, I think, quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement. The same it seems is true if the agreement is to do something which, if done by an individual, would be a tort or breach of contract, although authority for this depends upon dicta (see e.g. South Wales Miners' Federation v. Glamorgan Coal Co. Ltd. (1905) AC 239 , per Lord Lindley (1905) AC, at pp 252-254 ; Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch (3), per Viscount Simon L.C. (1942) AC 435, at p 447 , per Lord Wright (1942) AC, at pp 465-467 , per Lord Porter (1942) AC, at p 496 ) rather than upon decided cases except the old cases of conspiracy for falsely indicting one of felony and such like, where the tort of conspiracy is closely associated with malicious prosecution. See Skinner v. Gunton (1669) 1 Wms Saund 228 (85 ER 249) and note thereto (85 ER, at p 251) and Bullen &Leake's Precedents of Pleadings (1868) 3rd ed, p 290 Up to this point the term "unlawful" in relation to conspiracies means something that is itself and independently of any element of combination, a criminal or civil wrong. The law has, however, gone further and treated as unlawful the doing in combination of some things which could be done by an individual without any infringement of public law or private rights. (at p123)

23. Since Quinn v. Leathem (1901) AC 495 it has, to use the words of Lord Buckmaster in Sorrell v. Smith (1925) AC 700 been settled "that acts done in pursuance of a conspiracy having for its real purpose the injury of a man in his trade or calling are an actionable wrong" (1925) AC, at p 744 , but the findings of Burbury C.J. negative conspiracy of this sort. He said: "I hold that the Federation the Branch and the individual Defendants combined together or acted in concert for the immediate object of preventing the Plaintiffs presenting themselves for work or for the immediate object of procuring their dismissal. The immediate object in either case was unlawful. And unlawful means were used to achieve the object. The Federation, the Branch and the Defendants and officers and members of the Branch were all parties to the conspiracy . . . . As the immediate objective of the Defendants acting in concert was unlawful and unlawful means were used it is unnecessary for me to determine whether there was an unlawful 'conspiracy to injure' the Plaintiffs in accordance with the principles enunciated by the House of Lords in the Veitch Case (1942) AC 435 and by the High Court in McKernan v. Fraser (1931) 46 CLR 343 . But I think it proper that I should make certain findings of fact relevant to this issue. I am not satisfied upon the whole of the evidence that the predominating or main purpose of the conspiracy was to injure the Plaintiffs. . . . I have no doubt that the actions of Healy, Bull, Shepherd and a number of others were partly inspired by hostility to the Plaintiffs on political grounds. But from the whole of the evidence I think the proper inference is that the Federation would have resorted to direct action against any member who deliberately refused to pay a political levy resolved upon by the majority of members. I think the real genesis of the dispute was the failure of the Plaintiffs to comply with a majority decision to impose the levy. This was regarded as a threat to solidarity in Union affairs . . . I am not satisfied that Mr. Healy or any of the officers of the Hobart Branch honestly believed that the interests of the Union would directly suffer if the direct action taken against the Plaintiffs was not taken and the result of the Court's determination of the issues of the validity of the levy and the Plaintiffs' membership of the Union was awaited". The finding that the real purpose of the conspiracy was not to injure the Hurseys in their calling was criticized by counsel for the respondents as being inconsistent with the other findings in the quotation. The finding which negatived harm to the plaintiffs as the predominant purpose of the conspiracy is, however, one to which I feel bound to adhere, especially because, contrary to the view of his Honour, I am, as I have already said, of the opinion that between 1st January and 17th June 1958 the members of the Waterside Workers Federation were entitled to preference in employment as against the Hurseys and because this was wrongly denied by the Stevedoring Industry Authority, what was done by the defendants was really in defence of the rights of the federation and its members. As the respondents' real object was thus the protection of the interests of the federation and its members, this puts out of the way conspiracy to do something "unlawful" in the vague sense of harming the Hurseys by preventing them from working, and leaves the case as one where, if there was an actionable conspiracy, it was because the agreement which formed the conspiracy was an agreement to do something that was positively unlawful, whether as a means or as an end. If this was the case it cannot be justified as being in defence of the federation's rights or interests. (at p124)

24. Burbury C.J. found that the action agreed upon was unlawful upon the following grounds: (1) That it was unlawful by means of the picket lines to prevent the employers of the Hurseys from performing their statutory and contractual obligations and to prevent the Australian Stevedoring Industry Authority from performing its statutory duty, which unlawful action, so his Honour said, amounted to interference with "the exercise of the Plaintiffs' contractual and statutory rights without lawful justification". (2) It was unlawful by means of the picket lines to prevent the passage of the plaintiffs and to do so by force and threats of force amounting to assault. (3) It was unlawful to prevent the plaintiffs from going to work by intimidation and besetting in breach of s. 6 of the Conspiracy and Protection of Property Act 1899 (Tas.). (4) It was in breach of s. 44 (1) (b) of the Stevedoring Industry Act to constitute picket lines and so, by violence, threats and intimidation, prevent the plaintiffs from offering for, obtaining or accepting employment, or working, as waterside workers, in stevedoring operations. (5) It was in breach of s. 36 (1) (e) of the Stevedoring Industry Act for the members of the federation engaged to work with the plaintiffs to fail to complete their engagement for employment as waterside workers and this was a means of unlawfully procuring the dismissal of the plaintiffs from their work. On these findings, the learned Chief Justice concluded that both the picketing and the walking off were themselves unlawful and, furthermore, unlawfully brought about breaches of the plaintiffs' contracts of employment. (at p125)

25. On the hearing of the appeal, counsel for the respondents argued in support of these findings of unlawfulness made by the Chief Justice and further contended that the picket lines unlawfully prevented the plaintiffs from exercising their rights to use public highways and other places to which they were entitled to entry, as of right. As to this, there was no finding. (at p125)

26. I do not find it necessary to examine all these findings and contentions in relation to the picketing that occurred because I am satisfied about one thing that is of itself amply sufficient to support the conclusion of Burbury C.J. that the picketing was unlawful and that any agreement to prevent the Hurseys from working, by pickering, was an actionable conspiracy. I consider the picketing was unlawful independently of whether the picket lines were formed where the Hurseys were entitled as of right to go and independently of any particular acts or threats of violence on the part of individuals in the picket lines, because the forming of the picket lines itself amounted to intimidating, preventing, hindering or dissuading the plaintiffs, who were registered waterside workers, from offering for, obtaining or accepting employment as waterside workers in stevedoring operations and was therefore contrary to s. 44 (1) (b) of the Stevedoring Industry Act. For two hundred people to assemble and stand together to bar a man's way to work is by itself and without assaults, threats and abuse, intimidation sufficient to deter a man of resolution and fortitude from returning to face the ordeal again. Mr. Eggleston, for the appellants, pursuing the metaphor that identifies a man with a stake in the ground, argued that the picket line was just a fence that prevented passage and that, leaving out of account the assaults, threats and abuse of some of those who were in the line, there was nothing intimidatory about a band of men in formation barring the Hurseys from the wharves. This contention I reject. The united will of two hundred men so banded together would cause in the mind of the one whose way is barred a sense of concern and timidity that a row of stakes, even if they were spiked and linked with barbed wire so as to be both insurmountable and impenetrable, would never produce. Such a fence would effectively prevent passage to work; the living barricade would not only do so just as effectively but would also tend to deter those against whom it stands from attempting to go to work. This was the view of Mr. Healy who, in his evidence, said that a man seeing two hundred of his workmates lined up against him might well say "I am not going through there" and "Well, if that is what they think of me, I won't attempt to go through". (at p126)

27. The learned trial judge also found that the action of those members of the federation who were engaged to work with the Hurseys, in leaving the job to bring about their dismissal, was unlawful, but with respect I am not disposed to agree with this conclusion. Section 36 (1) (e) of the Stevedoring Industry Act does authorize the Stevedoring Industry Authority to cancel or suspend the registration of a waterside worker who has failed to complete an engagement for employment as a waterside worker, and the power so conferred was employed in relation to waterside workers who walked off the job to bring about the dismissal of the Hurseys. This provision does not, however, make the walking off unlawful, as Burbury C.J. appears to say. His Honour, furthermore, treated the walking off as inducing a breach of contract on the part of the employers who dismissed the Hurseys but those dismissals were not, so far as I can see, a breach of contract by the employers. Had the walking off been "without reasonable cause or excuse", it would have been a breach of s. 44 (2) of the Stevedoring Industry Act, which is as follows: "A registered waterside worker shall not, without reasonable cause or excuse, refuse to accept employment or perform work in stevedoring operations with another person who is a registered waterside worker or is employed as a waterside worker by virtue of section forty of this Act". There was, however, no finding of absence of reasonable cause or excuse and I am not prepared now to make such a finding. It may be that after 17th June 1958 when Port Order 38 of 1948 was revoked, there was nothing that could be regarded as reasonable cause or excuse except that the Hurseys were not members of the federation; but in a case where the learned trial judge has considered all aspects of the case so carefully, I would have no confidence in making a finding in favour of the Hurseys that he has refrained from making, particularly as the Chief Justice proceeded on the finding that the Hurseys remained members of the federation, whereas I have reached the conclusion that they ceased to be members. I have therefore come to the conclusion that the finding that the walking off was unlawful cannot stand and it would follow that the carrying out of an agreement to walk off, if that were all, would not be an actionable conspiracy. I am not, however, prepared to regard the walking off as something done pursuant to an agreement separate from the general agreement to prevent the Hurseys from working. My view of the findings of the Chief Justice of Tasmania is that there was a combination to prevent the Hurseys from working and to do so by means some of which were unlawful, so that the combination was, as a whole, an unlawful conspiracy. This conspiracy was, to start with, carried out by action not in itself unlawful, namely, by the men walking off the job on 5th and 6th February. Later, and until the injunction was granted, it was carried out by unlawful means, namely, picketing. After the injunction, there was a reversion to the earlier tactics. In such a case, I do not think it possible to dissect what was done pursuant to the agreement into what could have been done lawfully and what could not. The agreement to use unlawful means vitiated it entirely and made it an actionable conspiracy when it was carried out so as to cause damage to the plaintiffs; indeed, it was from the start an indictable conspiracy. In other words, the conspiracy was actionable because some of the means for carrying it out were unlawful and, therefore, all that was done was done pursuant to an unlawful conspiracy. Therefore, my conclusion as to the walking off is that, although it was not unlawful in itself, it is not to be disregarded in determining whether the Hurseys suffered damage by reason of the carrying out of an actionable conspiracy or in assessing their damages.
(6) The parties to the conspiracy and their liability to suit: That there was a combination to prevent the Hurseys from working which is to be inferred from what happened is not in doubt, but it was argued by Mr. Eggleston that Burbury C.J. was wrong in finding that all the defendants to the second action were parties to that combination, and that the federation and the Hobart branch of the federation were not, and could not be, parties to an actionable conspiracy to use unlawful means to prevent the Hurseys from working. (at p127)

28. In so far as the argument depended upon the doctrine of ultra vires and asserted the incapacity of the federation or the branch to do unlawful acts in the carrying out of the lawful and express object of securing preference of employment for members of the organization, it is entirely contrary to the decision of the House of Lords in Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901) AC 426 where a trade union was held liable for the wrongful conduct of agents in managing a strike which was a lawful object of the Society. The judgment of Farwell J., which was unreservedly approved by the House of Lords, contains the following passage which is relevant to the contention based on the doctrine of ultra vires: "The defendant Bell was the general secretary and the defendant Holmes was the local organizing secretary of the society; they, as agents for the society, and on their instructions and for their benefit, put themselves in charge of the strike, and on the evidence that was read last week illegally watched and beset men to prevent them from working for the company, and illegally ordered men to break their contracts. I have already held that the society are liable for the acts of their agents to the same extent that they would be if they were a corporation, and it is abundantly clear that a corporation under the circumstances of this case would be liable. See, for example, Ranger v. Great Western Ry. Co. (1854) 5 HLC 86 where Lord Cranworth points out that, although a corporation cannot in strictness be guilty of fraud, there can be no doubt that if its agents act fraudulently, so that if they had been acting for private employers the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agents act is a corporation. It is not a question of acting ultra vires, as in Chapleo v. Brunswick Permanent Building Society (1881) 6 QBD 696 but of improper acts in the carrying out of the lawful purposes of the society" (1901) AC, at p 433 . See too the speeches of Earl of Halsbury (1901) AC, at p 436 , Lord Macnaghten (1901) AC, at p 438 , Lord Shand (1901) AC, p 441 , Lord Brampton (1901) AC, at pp 441, 442 and Lord Lindley (1901) AC, at pp 443, 444 . It is, moreover, now established that a company can be criminally or civilly liable for conspiracy: R. v. I.C.R. Haulage Ltd. (1944) KB 551 ; Pratt v. British Medical Association (1919) 1 KB 244 and see also Winfield's Law of Torts 5th ed. (1950) p. 440; although earlier a different view had been taken: see R. v. Kellow (1912) VLR 162 . When a company merely acts through its directors, it is, however, not properly described as combining with them - O'Brien v. Dawson (1942) 66 CLR 18 - although in Egan v. Barrier Branch of the Amalgamated Miners' Association (1917) 17 SR (NSW) 243; 34 WN 129 it was decided (and I consider correctly) that a trade union can be sued civilly for conspiring with its own members to commit a tort. Cullen C.J. said: "The Taff Vale case showed, and it has never been since questioned, that the effect of the registration of trade unions under the Act is to give them at least a quasi-corporate status, which distinguishes between the entity known as a trade union and the individuals who may chance to be its members just as completely, for the present purpose, as in the case of the difference between a fully incorporated company under the Companies Act and the individuals who are its members. There would for instance be nothing illogical in suggesting that individual members of the union, whether they are office bearers or not, might enter into communication with either the governing body of the union or its general meeting - might even solicit from them authority to carry out illegal acts, and therefore in a very true sense be said to have entered into a conspiracy with them to do those illegal acts, and that this might be followed by a resolution on the part of the union's meeting or its executive that those acts be carried out by the agents. In many cases before the English Courts similar conspiracies have been alleged. I know none of them in which it was suggested that such a conspiracy could not be proved, and were there any doubt about it the decision of the High Court in Heggie's Case would be quite sufficient authority, and one binding upon this Court". (1917) 17 SR (NSW), at pp 257, 258; 34 WN, at p 135 . The incorporation of the federation as a registered organization makes even less tenable the objection of ultra vires. (at p129)

29. So far as the federation is concerned, the only other question is whether there is sufficient evidence that it was, as the Chief Justice found, party to the conspiracy. I think there is, and, as a preliminary to giving my reasons for this conclusion, I think it desirable to state what I consider to be the relationship of the Hobart branch to the federation. (at p129)

30. The federation, which consists of some fifty-four branches, has a constitution and rules divided into two parts, the second part of which consists of rules relating to branches and which, inter alia, authorizes branches to make rules subject to a resolution of the federal council of the federation. Part I of the constitution and rules of the federation proceeds on the footing that there are branches of the federation and that the way in which a person becomes a member of the federation is to seek membership through a branch. A person becomes a member of the federation and of the branch in which he is enrolled when the branch secretary transmits to the general secretary of the organization the applicant's name, a duplicate of his application for membership and a registration fee of two pounds. There is, as I see it, no membership of the branch as distinct from membership of the federation. The federation is a registered organization but the Hobart branch is not. It does not appear whether the federation or the branch is registered as a trade union. This short survey leads me to the conclusion that the Hobart branch is but part of the federation, and it has no separate existence as a trade union or other voluntary organization. What is said in Hall v. Job (1952) 86 CLR 639 with regard to a subordinate lodge of the Loyal Orange Institution of New South Wales appears to me to apply mutatis mutandis to the Hobart Branch as part of the Federation: "The purposes which the members of the Lodge have in common are none other than the purposes for which they are members of the Institution. The Lodge does not exist as a society of persons who desire to associate exclusively with one another for agreed purposes; it exists as an integral part of a larger organization, of which all the members are associated for the pursuit of purposes common to them all in accordance with a constitution which governs them all. A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits, and for the performance of the obligations and functions, which are the incidents of their membership of the Institution" (1952) 86 CLR, at p 650 . (at p130)

31. I now turn to the government of the federation itself and find that it is vested in the federal council which has full power to carry out the objects of the federation. The key officer of the federation is the general secretary/treasurer, and when the council is not sitting (and it seems that it ordinarily sits once a year for about a fortnight) he has a duty to conduct the business of the federation; the general president is subject to his supervision and direction. It should perhaps be added that the rules require that the general secretary/treasurer should "on all important business that may reasonably require the attention of councillors, correspond with councillors with the view to obtaining their considered opinions on the subject matter". There is also an organizer who, like the general president, is subject to the supervision and direction of the general secretary/treasurer. At the relevant times, Mr. James Healy was the general secretary/treasurer and Mr. M. Wallington the organizer. (at p131)

32. The evidence of Healy in these actions established by itself quite clearly that he was aware of, and approved of, the picketing that took place and not only approved of, but suggested the walking off tactics - "Pinkenba" tactics, as they were called after the place where they were first successfully used in a demarcation dispute between the federation and the Australian Workers Union. Healy also sent Wallington to Hobart "to ensure that our views were properly understood" and, although when Wallington himself took an active part as a member of the picket lines he was told by Healy not to do so again, that was not because of any lack of approval of the picketing that was occurring. Of greater significance, however, than anything that was done by Wallington himself, is the fact that although the tactical task of preventing the Hurseys from working was left to the Hobart branch, it was left to the Hobart branch as part of the federation, and the federation stood behind the branch in what it did in handling the matter, and, in Hobart by direct action and elsewhere by representations and propaganda, controlled the strategy of the campaign that was carried on. As Healy said, when the Hurseys ceased to be members of the Federation, they ceased in "our" view to have any right to work on the waterfront as waterside workers, and it then became an important matter for the federation to "resist the attempt to enforce employment of non-unionists and to encourage non-payment of union dues", to use the language of a pamphlet "Truth About The Hurseys" which the federation itself prepared and circulated. In resisting this "attempt", it was, in Healy's view, a matter for the branch to decide how they would handle the matter; his evidence was "We would leave it to them to handle", but it is clear that it was the job of the branch to handle the matter as part of the federation and on behalf of the federation as a whole. As Healy said: "I believe that we have the right to picket and prevent men going to work as waterside workers if they are not entitled to work"; "I am speaking from the Federation point of view, the national point of view". His evidence was that he regarded what was done as industrial "action within the association" which was preferable to the Federation's resorting to the courts to obtain payment of amounts owing by members. In my judgment, all these things taken together afford a solid foundation for the finding of the Chief Justice that the federation was a party to the conspiracy. However, I am not prepared to go so far as Burbury C.J. did and find that the federation, as distinct from the branch, expressly authorized the picketing "if not by prior authorization at least by subsequent ratification". (at p132)

33. I turn now to the question whether the Hobart branch was also a party to the conspiracy, and the very reasons that have contributed to my conclusion that the federation was such a party lead me to the conclusion that the branch should not be considered a party distinct from the federation, for what was done by the branch was done as part of the federation. It is perhaps only to put it another way to say that the part cannot as a part conspire with the whole. (at p132)

34. The conclusion that the branch should not be treated as a party to the conspiracy separately from the federation makes it unneccessary for me to decide whether, if it were, it could be sued, as it was, under O. LIII of the Rules of the Supreme Court of Tasmania, but I may perhaps be permitted the observation that during the argument on this point I found some difficulty in regarding the Hobart branch as a society and the action for conspiracy to which it was a defendant as one in which the plaintiff's claim was against persons as members or officers of the branch in respect of a tort committed in the conduct or management of the affairs of the society within the meaning of r. 15 of O. LIII, and further consideration of the matter has not resolved these difficulties. (at p132)

35. On this branch of the case, my conclusion is, therefore, that the judgment should stand against the federation but not against the Hobart branch.
(7) Damages: This brings me to the contention that the damages awarded by the trial judge should be reduced. I think they should because of my conclusion that the Hurseys did cease to be members of the federation; because their wrong assertion that they were entitled to work as members of the federation was something which contributed to the situation that the defendants resorted to unlawful measures to resolve; and because their refusal of the conciliatory offer of the federation and the Hobart branch to accept from them annual contributions for the year 1957 without the political levy was one of the things that closed the door to a settlement by legal proceedings of the differences that had arisen, a course which would have avoided the industrial strife that occurred. Upon these matters - membership of the federation, right to employment as such and refusal to pay annual contributions - I have come to a conclusion different from that reached by the Chief Justice of Tasmania and in the result I consider that the damages awarded to each plaintiff should be reduced to 1,000 pounds. (at p132)

36. Conclusion: In order to deal with the substance of the matters before the Court, I have for the sake of simplicity proceeded as though there are three appeals to this Court from judgments of the Supreme Court of Tasmania. The actual position is, however, somewhat more complicated. In the first action, there is before the Court an application for special leave to appeal from an order declaring the political levy invalid "upon the ground that it was not expressly or impliedly authorized by the federal or branch rules" of the organization. As my own opinion is that the political levy was valid, I consider that the application for special leave should be granted and the appeal allowed. In the second action, the appeal is an appeal as of right and I would allow the objection of the Hobart branch of the Waterside Workers Federation. Furthermore, I would discharge so much of the judgment as declares that the Hurseys "are and were at all material times" members of the federation and that cl. 15 of Port Order 38 of 1948 ceased to have any operation upon the coming into force of the Stevedoring Industry Act 1956, and substitute declarations to the effect that the Hurseys remained members of the Federation until 31st December 1957 but not thereafter and that Port Order 38 of 1948 remained in force until 17th June 1958 when it was revoked by O. 21 of 1958. I would also reduce the damages awarded from 2,500 pounds to 1,000 pounds. In the third action, an appeal was taken from the judgment of Burbury C.J. to the Full Court of the Supreme Court of Tasmania and, upon the hearing of that appeal, the Full Court decided that it raised for consideration inter se questions within the meaning of s. 74 of the Constitution and also that, by virtue of s. 40A of the Judiciary Act, the action was automatically removed to this Court. Whether or not this was so was not argued before us and as I am not satisfied that any question did arise as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or, indeed, that there was any case arising under the Constitution or involving its interpretation that would justify an order for removal under s. 40 of the Judiciary Act, I am inclined to think that the best course to follow would be to treat the matter as an application for special leave to appeal from the judgment of the Chief Justice of Tasmania in the third action and then dismiss the application on the ground that Port Order 38 of 1948 was validly revoked before the action was brought. However, as the other members of the Court consider the matter should be dealt with by an order under s. 40, I am prepared to agree to this course and to the order proposed. (at p133)

Orders

WILLIAMS AND OTHERS v. HURSEY.

Special leave to appeal from judgment of Supreme Court of Tasmania. Strike out of proceedings in Supreme Court of Tasmania and in this Court name of "The Hobart Branch of the Waterside Workers' Federation of Australia". Appeal allowed with costs. Discharge judgment of Supreme Court of Tasmania. In lieu thereof order that action be dismissed with costs.

THE HOBART BRANCH OF THE WATERSIDE WORKERS' FEDERATION OF AUSTRALIA AND OTHERS v. HURSEY AND ANOTHER.

Strike out of proceedings in Supreme Court of Tasmania and in this Court name of "The Hobart Branch of the Waterside Workers' Federation of Australia". Appeal allowed. Order that respondents pay one half of appellants' costs of appeal. Discharge so much of judgment of Supreme Court of Tasmania as declares that plaintiffs are and were at all material times members of the Waterside Workers' Federation of Australia and so much of said judgment as declares that Port Order No. 38 of 1948 ceased to be in force on commencement of Stevedoring Industry Act 1956. Vary judgment for damages by substituting 1000 pounds for 2500 pounds.

WINCH AND OTHERS v. THE AUSTRALIAN STEVEDORING INDUSTRY AUTHORITY AND OTHERS.

Order under s. 40 of Judiciary Act that appeal to Full Court of Supreme Court of Tasmania be removed into this Court. Appeal dismissed with costs.