Kingham v Sutton [2002] FCAFC 107; [2002] FCA 506

Kingham v Sutton [2002] FCAFC 107 Kingham v Sutton [2002] FCA 506

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Kingham v Sutton [2002] FCA 506

INDUSTRIAL LAW – proposal to amend divisional rules of union – where Divisional Executive decided against amendment – request to review decision - whether governing body of union obliged to review decision of Divisional Executive when request made – whether implied restraint on operation of decision pending consideration of request to review decision INDUSTRIAL LAW – request for referendum – methods of requesting – divisional branches passed resolutions requesting referendum – whether valid request by majority of members of division - petition of union members requesting referendum – whether petition signed by requisite percentage of divisional members – whether all signatures on petition genuine – whether necessary to verify genuineness of all signatures on petition for it to be valid – whether presumption of regularity could be applied to verify that signatures genuine – whether presumption in favour of honesty and against fraud could be applied to verify that signatures genuine – whether members required to prove petition - whether Divisional Executive to investigate genuineness of signatures on petition - whether Divisional Executive to check financial status of signatories INDUSTRIAL LAW – proof of membership of union – whether payment of union dues evidence of intention to become a union member – whether payment of union dues sufficient to attain membership of union – whether payment of union dues must be personally made - whether necessary for person to sign membership application form to become a union member INDUSTRIAL LAW – interpretation of terms in union rules – meaning to be given to terms "members", "financial members" and "membership" when used in same rule – purpose of rule – whether application of defined meanings creates inconsistency Workplace Relations Act 1996 (Cth) ss 187A, 195(1)(b) and 209. Kingham v Ferguson [2001] FCA 537, (2001) 107 IR 403 referred to Morris v Kanssen [1946] AC 459 referred to Joseph Constantine Steamship Line Limited v Imperial Smelting Corporation Limited [1942] AC 154 referred to McLean Bros and Rigg Ltd v Grice (1906) 4 CLR 835 referred to Jones v Dunkel (1959) 101 CLR 298 referred to Forward v Merchant Service Guild of Australia (1987) 16 FCR 302 followed Re Porter; Re Transport Workers Union of Australia (1989) 32 IR 87 followed Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 referred to Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 cited Edgar and Walker v Meade (1916) 23 CLR 29 referred to