i cane a clint SS a TOE eo es Sse a J ; ; ' sd Bite, ee Sad - + morte Lesa ES CATCHWORDS eae eee Sete Sana eae eR SE aa 7 ~ ——- "p, Industrial law - registered organization - leave to appeal out of time. Conciliation and Arbitration Act 1904, 5s. 140, s. 133A, 5. 139(4), s. 197A Federal Court of Australia Act 1976, 5. 24(1A) Federal Court Rules, 0. 52 R. 15 HARRY DAVID KRANTZ and WILLIAM ALEX SMITH v. UNTON OF AUSTRALIA GRAY J. 24TH MAY 1985 ADELATDE. FEDERATED CLERKS' een ond heh a OTe, ew Ne tee rah ot Tae ted eh CE EN eo IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGE: GRAY J. DATE: 24TH MAY 1985 et ee ee —_ et ee ee =e S.A. No. 6 of 1985 BETWEEN: HARRY DAVID KRANTZ and WILLTAM ALEX SMITH Applicants AND FEDERATED CLERKS ' UNION OF EX _TEMPORE REASONS FOR JUDGMENT This 15 an application AUSTRALIA Respondent under O. 52 R. 15(2) of the Federal Court Rules for leave to appeal out of time. In matter S.A. No. one other applicant sought a number of orders pursuant to s. of the Conciliation respect to the rules ("the organization"). 140(1)(a) of the Act, and Arbitration Act of the Federated Clerks Union The application was alleging failure of the rules to make 13 of 1984 the present applicants and1904 ("the Act"), with of Australia based in part cn s. the Sy ar ae a Oe A wow ~Sye cts sot 5 7 = ewe eee ee Loe , os OW ERE Es ie eS ss Aiken em te ne em ae Sue y - 2- provisions required by 5s. 133A, and in part on a fazlure of the faw or ee rules to comply with s. 140(1)(d). On 21st December 1984 judgment was delivered. The Court fe tne found that in one respect the rules failed to make adequate provision for the matters required by s. 133A of the Act. The proceeding was adjourned pursuant to s. 140(6) for the purpose of giving the respondent organization an opportunity to alter its 1 rules. Otherwise, the rule to show cause, which was tne initiating document for the proceeding, was discharged. This order was actually made during the court vacation, and the time for appeal from the order discharging parts of the rule to show cause expired on 4th February 1985. If the applicants had wanted to appeal from the order of 21st December, s0 far as i1t involved an adjournment under s. 140(6), they probably would have needed leave to do so under 5s. 24(1A) of the Federal Cyuurt of Australia Act 1976, as 1t 1s probable that that order was of an interlocutory character. On 22nd February 1985, a notice was given to the members of the National Council of the organization pursuant to rule 42(3) of its rules, of the text of proposed amendments to the rules, On 28th February the matter, again came before the Court _ and was further adjourned. At that stage nothing was said on behalf of the applicants about any desire to appeal. et ~ el! be me ek kay Pagr soe See : wi "ake, wap To att ahew epee tll glee dnegtee oae --s -* -4 oT ane Cee! Ra cores z ft hin ann te nee dn eS el ee et A a ad Fi -3- "a Dab tes on Talent Tht at sila edt Sake ech On 4th March a postal vote of the members of the re % t ' dha National Council of the organization was commenced, with the text ov . of the proposed amendments being the subject of that postal vote. y By 15th March it became known that a majority of the members of the National Council had voted in favour of the proposed amendments, and on 19th March they were submitted to the Industrial Registrar for certification pursuant to 5s. 139(4) of the Act. On 2nd April the matter was further mentioned before the . Court and adjourned again until today. At that stage the amendments had not been certified. On that occasion the first mention was made of the applicants' intention to appeal, and scme discussion took place as to whether leave was needed, and under what provision. On 9th April the present application for ieave to appeal was made. Subsequently, on 29th April, the rule amendments were certified by the Industrial Registrar. As a result cf that, today the Court discharged the remainder of the rule to show cause and matter 5.A. No. 13 of 1984 was thus entirely concluded. Order 52 R. 15(1) of the Federal Court Rules lays down the time limits for appealing. Sub-rule (2) provides: "(2) Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." The emphasis in the argument before me has been placed St s ' a ve ' Seam vat ne maa tea ale a" price Pi. ae st winks iT! - 4 - 5,~ on the words "special reasons" in this provision. In support of P "ay Vee the application for leave to appeal an affidavit of Faul Anthony Heywood-Smith, sworn 9th April 1985, was filed. I quote from Paragraph 9 of that affadavit: aren "9. The reason for the failure to file a Notice of Appeal within 21 days of the original decision was the mistaken belief on my part that the adicurnment of the matter by Mr. Justice Gray Meant that no final order had been made and that the cight of appeal would continue until such time as Mr. Justice Gray had made a final order in the Matter." Mr. Heywood-Smith was and 1s the legal adviser for the applicants. No affidavit material was filed by Dr. Jessup. who appeared on behalf of the respondent organization. Such facts as he relied upon were those which emerged from materilal filed before me in matter No. 13 of 1984, and inferences that he asked me to draw from those facts. The researches of counsel have not disclosed any direct authority on the meaning of the words "special reasons" in Q. 52, R. 15(2). I have been referred by Dr. Jessup to Bishop v. the Queen (1982) 40 A.L.R. 40, especially at pages 41 to 42, Whyburn v. Corporation of Canterbury (1892) 19 V.L.R 302, especially at page 318, and Hughes The National Trustees Executives and . Agency Company of Australasia ULaimited (1978) V.L.R. 257, "i especially at pages 263 to 264. Reference to those passages Suggests that, in exercising a power such as that under 0. 52, R. | Pw i i ' Pra Lae Se 15(2), the Ceurt should look failure to appeal within ths RS p. ryig a Fudice to the proposed wu sult from geanting leave t m ray © pr ba mn a v a ts a fu a) Io cag going beyond the ordinary f limit laid down by a rule co the order of 2@lst December garcts Was carable of causing case, althougn capable of segregat after the pericad of adicurnmment exrir In addation, the questisnis appeal have scme importance. 55. 135A ana 140(1)(d) of the in delivering judgment in * oe et + Fe et elem pelt eye tee ee ~ . pare it a eA he ene lE m n l Re t te oints of law which may be other factors to he ta about the ec evigence -L aoe - my znvolved in the appeal, ard any ints aczount. elay oun tne Tage bo take ante 1 06 Tare or by an Act. The fact chat between the branches anc che was not for the co believe cAac ley Leal Tt that LSsue faused me ne Ltittiea 22fficuity ttec. This aiificsulty was court tn Imlach v. Daley, Dard Taba Pe take ee as att Fa Sar mh Sut. 4 ie SN ee ent et bee teen eS SE eae te * ae ai "fe, we -~- G& - sot which, 16 might se mentioned does not assist the Applicants x oor ay , proposed appeal. That dec2sicn was two members of a a Full Court and there May be some question as te its binding effect on a subsequent Full Court. f= do not wish tG be taken as i suggesting that the decision of thoss two members of tne Full Court in Imlach ov. Daley was wrong. indeed, wad at Leen celiveced peior to the delivery of judament in matter S.A. Nu. 7 13 sf 1934. I should have Seen delighted to be able to fst 1L. : The fact that the rstent ceport of the Tammiries of : Review of Australian Industytal Relatici= Law and fysteams,. recommencs tne repeal of these sections and 5. L36A 22 the Ato does not influence me to say that the question of ine : applicability of thsse sections 135 mot important. , Dr. Tessup acgued Shat ore the ' srganization Irom celay, and From its ea of the applicants to appeal. He did noc & of_ relitance om the fatliure of the agplicants 62 appeal. de asxec the Couct to infer From the srder uf events that gush veliacst: cccurved. It may Se that sf the inte: tion ti appeal Auto onern known earlier, the organisation would have reflained From tating : steps to alter acs rules, in order to aWwaltt tas subiw qe If oatry ~ s appeal. Alneration was only :equaree fre owsrder .5 ts Caurt tc cure ane defect, Git tre matters 246 ess5je=" _-D the ; geoceseuing ara, as I have saic, relates. There 15 no reason te appeal would be launched, as cistinct Trom wasting for savict a5 co the appropriate form of rule amendments anc far ¢ awn lS beet I Ro ' in coat SL ade eee = ate fu di fTting. Tn the absence assume that they relied on Te 15 true, as Dr. dessug submitted. proceedings undes tne Conciliation and Arbitration Act ined, except ain the '"cmited -ireumstances expressed in 5s. i397A. The organization, therafore, 13 in the mormal position oF & suctessful litigant. me £3 follow from a One Further factcr should be tTertionei. Yas dis.narge taday cf the balance cof the rule to sacw cause in maciter S.A. Mo. 13 UF 1984 gives the applicants a right tc appeal without laave within 21 days of this day. If laave is met grarnt#i as "" fare parts of the cule to show cause which were discharge2 cn 2 wore a 3 paeeser ares BS lene es ayer & eV) Sethe Shes! "m ct . u Ba teres ek rman FN meine hee nner aie - 8 - axpiry of the time limit which 15 laid duwn in the rues. ~ I propose to order that the agplicants have appeal from paragraph 2 of the order made in matters 3.4. No. 7 of 1984 on 21st December 1984. The order 7 make is that the applicants save leave t5 apneal from paragraph Doof the order wt fae. Deteree: 1364 tu matter S.A. No. i3 af 1964, the wepeal tc be Tiled | Tn | ' roe 4 1 | ot ' ar er 7 > . ae 'hote ce ane