IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALLA DISTRICT REGISTRY S.A. No. 5 of 1983 INDUSTRIAL DIVISION - ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: MICHAEL ANTHONY PRICHARD Appellant (Applicant) ° and HARRY DAVID KRANTZ and LESLIE RICHARD HASELDINE Respondents (Respondents) CORAM: Smithers, Northrop and Keely Ju. DATE: 21 October 1983 PLACE: Melbourne ORDER THE COURT ORDERS AND DIRECTS THAT: 1. The appeal be allowed. 2. The order made on 29 July 1983 discharging the rule nisi herein be set aside- The respondents, Harry David Krantz and Leslie Richard Haseldine perform and observe the rules of the Federated Clerks' Union of Australia, South Australian Branch, by recognizing Michael Anthony Prichard as having been a member of the Federated Clerks' Union of Australia as at 29 July 1983, and by accepting any moneys tendered by Michael Anthony Prichard for Union dues, fines or levies in respect of his membership of the Federated Clerks' Union of Australia. b IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) S.A. No. 5 of 1983 ) INDUSTRIAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: MICHAEL ANTHONY PRICHARD Appellant (Applicant) and HARRY DAVID KRANTZ and LESLIE RICHARD HASELDINE Respondents (Respondents) CORAM: Smithers, Northrop and Keely JJ. DATE: 21 October 1983 PLACE: Melbourne THE COURT REASONS FOR JUDGMENT The litigatzon culminating in this appeal has been obscured by a number of matters which are not relevant to the issues raised by the proceedings. The existence of those matters has led to confusion and to the consideration of matters which are not relevant to the issues raised by the proceedings. In order to clarify the issues raised by the proceedings, both before the Court which originally heard -2- them and on appeal before the Full Court, it is necessary to make precise reference to the facts giving rise to the proceedings and to the nature of those proceedings. On 2 June, 1982, a Deputy Industrial Registrar, pursuant to s.155 Conciliation and Arbitration Act 1904, "the Act", issued a certificate under the seal of the Australian Conciliation and Arbitration Adelaide Registry in relation to Michael Anthony Prichard, the appellant, and the Federated Clerks' Union of Australia, "the Union", an organization of employees under the Act. That certificate is set out: "CONCILIATION AND ARBITRATION ACT 1904 in the matter of the Federated Clerks Union of Australia, an organisation of employees registered under the Act. Pursuant to section 155 of the Act, I Roy Edward Hegarty, Deputy Industrial Registrar certify as follows: 1. In response to a request from Michael Anthony Prichard for a certificate under section 155 of the Act in regard to his membership of the Federated Clerks Union of Australia an inspection of the membership records, including the membership register, of the South Australian Branch of the said organisation was undertaken by an officer of the South Australia District Registry on 2 June 1982. 2. The said membership register shows that Michael Anthony Prichard of 46 Birman Crescent, Flagstaff Hill, S.A. 5159 has been a member of the said organisation since 26 September 1978 to date. 3. The said membership records show that a letter dated 26 May 1982, signed by the Branch Secretary, in regard to Mr. Prichard's membership has been posted to him. A copy of the said letter is contained in Attachment '''A' (2 pages) hereto. a Dated at Adelaide this 2nd day of June 1982. Signed and sealed Roy Hegarty DEPUTY JNDUSTRIAL REGISTRAR" Under s.155 of the Act there is thus prima facie evidence before the Court that the appellant was on 2 June 1982 a member of the Union and had been a member of the Union since 26 September 1978. The letter dated 26 May 1982 referred to in the certificate is lengthy and need not be set out in full. It was written to the appellant by the first respondent in his capacity as Secretary, Federated Clerks' Union of Australia, South Australian Branch, "the S.A. Branch", being a branch of the Union. The letter referred to a number of separate proceedings pending in the Federal Court in which the appellant was an applicant and in which questions had arisen relating to whether the appellant was eligible to remain a member of the Union. One paragraph of the letter read as follows: -4- "The Branch Executive has decided that members of the staff should net be required to deal with a person whose membership is subject to the scrutiny of the Federal Court in matters which were instituted by that person and they have been instructed pending the decision of the Court that they shall not accept any payments from you which purport to be in connection with your membership of the Union." After that letter had been written, the first respondent refused to accept a cheque forwarded by the appellant to the S.A. Branch on 26 July 1982 in payment of Union subscriptions. On the application of the appellant, the Court, on 26 October 1982, ordered that the respondents appear before the Court on 11 November 1982 to show cause why an order should not be made that: "The Respondents observe and perform the Branch Rules or the Rules applicable to the S.A. Branch by, (a) accepting moneys tendered by the Applicant herein Michael Anthony Prichard in respect of union dues, fines or levies within such time as the Court may determine. (b) recognising that the Applicant is, and treating the Applicant as a member of the Organization." The proceedings commenced by that rule nisi were identified as matter S.A. No. 9 of 1982. The application was made under s.141 of the Act and in order to be able to -~5- make the application the appellant had to be a member of the Union; see sub-section 141(1). Under sub-section 141(1G), an order: "J... may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules." The respondents to the appeal and to the rule nisi were and are the Secretary and Assistant Secretary respectively of the S.A. Branch, were and are members of the Union and thus were and are under an obligation to perform and observe the rules of the Union including the rules of the S.A. Branch. The issue raised by the rule nisi was both simple ana within short compass. Under S.A. Branch Rules 24 and 25 the respondents were under a duty to collect Union dues, fines and levies from members of the Union and, where necessary, to initiate proceedings for the recovery thereof. It follows that until the appellant ceased to be a member of the Union attached to the S.A. Branch, the respondents were required by the rules of the Union to accept monies tendered by the appellant for payment of Union dues, fines and levies, commonly referred to as Union subscriptions. The respondents had refused to accept monies so tendered. That fact was not disputed. The only relevant issue raised by the rule nisi, -6- therefore, was whether the appellant was a member of the Union. There was no evidence that he had ceased to be a member Unfortunately, from an early stage of the proceedings, irrelevant matters began to confuse the simple issue raised by the rule nisi. The appellant was concerned not to become unfinancial under the rules of the S.A. Branch thereby depriving himself of the right to nominate for office within the S.A. Branch. He was an applicant in some six separate proceedings pending in the Court and relating to the S.A. Branch. Tensions existed between the appellant and the respondents. On the return of the rule nisi on 11 November 1982, on behalf of the respondents, counsel gave an undertaking to the Court that no point would be taken about "any hiatus in the applicant's financial membership" if the Court found in matter S.A. No. 15 of 1981 that the appellant was entitled to be a member of the Union. The effectiveness of that undertaking is doubted, but in any event judgment was given in matter S.A. No. 15 of 1981 on 28 June 1983, and in that part of the judgment considering the eligibility of the appellant to be a member of the Union the Court said: "On the evidence I am satisfied that Mr. Prichard was entitled to become a member of the organization during his employment with the Branch and to have remained a member thereof since his dismissal up until at least the time when he gave his evidence before the Court in November 1981. The Court is aware that in late 1982 the Branch ~ ȴ ay officials refused to accept moneys tendered by him for subscriptions allegedly on the ground that he was not then entitled to be a member of the organization. Mr. Prichard has issued proceedings pursuant to s.141 of the Federal Act seeking orders in this regard. The matter has been mentioned before the Court and certain undertakings given by certain officials of the Branch in this regard ..." On 27 May 1983, in matter S.A. No. 9 of 1982, on behalf of the respondents, counsel gave an undertaking to the Court that they would accept outstanding fees from the appellant which were owing to the S.A. Branch on or before 31 May 1983 without prejudice to their rights to claim that the appellant was not or had not been entitled to be a member of the Union during the period to which those fees related. Matter S.A. No. 9 of 1982 came on for hearing before the Court on 7 and 29 July 1983. The sole issue raised by the rule nisi in those proceedings remained the same, namely, whether the appellant was a member of the Union. This issue was subject to a simple resolution. Under the rules of the Union, including the S.A. Branch Rules, and on the proved facts, the appellant was entitled to remain a member of the Union until he died or until he or the Union terminated his membership. The trial Judge, quite correctly, applied those principles. The appellant had not terminated his membership. Under the rules of the Union, the Union is empowered to terminate the membership of a member. Under S.A. Branch Rule 11 the Branch Executive, subject to -8- compliance with the specified procedures, is empowered to direct the removal from the register of members of the name "of any member ... who appears to be no longer covered by the Constitution". When matter S.A. No. 9 of 1982 came on for hearing on 7 July 1983, the issue before the Court, as appearing from the rule nisi, was whether the appellant was a member of the Union. At that time, prima facie, he was a member and the respondents were required to perform and observe the rules of the Unicn by accepting the payment of subscriptions by the appellant. Unfortunately, when the matter came on for hearing on 7 July 1983 the parties conducted the proceedings as if the issue to be determined was whether, at that time, the appellant was eligible to be a member of the Union. Much evidence was given relating to the nature of the work being done by the appellant. The Court inspected the appellant's place of work. At the end of that day, the further hearing of the rule nisi was adjourned to 29 July 1983. Emboldened by the evidence given to the Court on 7 July 1983, the Branch Executive of the S.A. Branch, by letters dated 13 July 1983, commenced procedures under S.A. Branch Rule 11 preparatory to the exercise of the power to remove the appellant's name from the register of members of - 9-H the Union. The resumed hearing of matter S.A. No. 9 of 1982 commenced on 29 July 1983 and was concluded on that day. At that time the appellant's name had not been removed from the register of members of the Union and thus at that time the appellant remained a* member of the Union. At the conclusion of the hearing of 29 July 1983 the Court said: "In matter number 9 of 1982, the court is of the view that the order nisi herein should be discharged. So that that is understood, I am of the view that on the evidence jin the matter, the applicant Michael Anthony Prichard is not eligible to be a member of the Federated Clerks Union of Australia. I will publish my reasons at a later date." The appellant appeals from that order but it must be noted that the question of eligibility for membership of the Union by the appellant was not an issue in those proceedings. On 15 September 1983 the Court published its reasons for discharging the rule nisi. Apart from the historical background to those proceedings, most of the reasons contained in the judgment relate to the question of whether the appellant was eligible to be a member of the Union, a question which did not arise in those proceedings. In the reasons for judgment the Court said: "The Court, in my view, should not at this stage construe the Branch rule dealing with the purging of the roll of members. What course the Branch takes in this regard is a matter for the Branch itself and if a decision ~10- is made by the Branch to remove' the applicant's name from the roll of members then the applicant has his rights under the Act and/or under the rules of the organization or the Branch." That opinion was very properly given. The question referred to in that opinion and the related question of the validity of any purported removal of the appellant's name from the register of members of the Union was not before the Court nor are they before this Full Court on appeal. Accordingly, no views are expressed on any of those matters. The appellant has established his claim under s.141l of the Act. On 29 July 1983 he was a member of the Union. The respondents in refusing to accept him as a member were failing to perform and observe the rules of the Union. The rule nisi should have been made absolute and the orders sought should have been made. There are no relevant facts upon which any discretion to refrain from making the orders absolute could be exercised. Accordingly, the appeal must be allowed and the order made on 29 July 1983 must be set aside. Because of unusual features arising in this case, and in view of the procedures commenced by the Branch Executive of the S.A. Branch to remove the appellant's name from the register of -ll- members of the Union, the order of the Court will vary from the orders sought in the rule nisi. The Court will order and direct that: *« The appeal be allowed. The order made on 29 July 1983 discharging the rule nisi herein be set aside. The respondents, Harry David Krantz and Leslie Richard Haseldine, perform and observe the rules of the Federated Clerks' Union of Australia, South Australian Branch, by recognizing Michael Anthony Prichard as having been a member of the Federated Clerks' Union of Australia as at 29 July 1983, and by accepting any monies tendered by Michael Anthony Prichard for Union dues, fines or levies in respect of his membership of the Federated Clerks' Union of Australia. 2 Re NIT RT ONTENTS LN TO LOI t { I certify that this and the fea Ce) j | preceding pages are a true copy of the | Reasons for Judgment herem of the Cou-t Aete € Tne Associate Dated: 2 Octeba- (53 NG EEE SRN PASS ESE CTE,