LAG /OS" (e4) IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) NO. V1l of 1985 INDUSTRIAL DIVISION ) oO g atae] te) | HIS HONOUR: BETWEEN: WILLIAM MARTIN BINGHAM Applicant AND: NORMAN LESLIE GALLAGHER, THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOVERS" AND BUILDERS LABOURERS FEDERATION AND DAVID PILLAR Respondents Mr. Justice Jenkinson Melbourne 17 December, 1985 On 13 December 1985 orders were made by consent of all parties to this proceeding that the applicant have leave to discontinue the proceeding, that certain interlocutory orders made by Burchett J. on 3 September 1985 be discharged, and that there be no order as to costs, nor any liability on the applicant for costs. I was on that occasion asked by the applicant's solicitor to certify in the terms of section 132H(2) of the Conciliation and Arbitration Act 1904, and the legal representatives of the other parties expressed their client's acquiescence in my 2. acceding to that request. Having examined the documents filed in the proceeding and having read the reasons given by Burchett J. for the interlocutory orders he made on 3 September 1985, I am prepared, if the applicant does discontinue the proceeding, to certify, pursuant to section 132H(2), in these terms: "The Federal Court of Australia certifies pursuant to sub-section 132H(2) of the Conciliation and Arbitration Act 1904 that William Martin Bingham, the person who in the proceeding in the court in the Industrial Division, numbered V1ll of 1985, in the Victorian District Registry made application under sub-section 132B(5) of the said Act for a declaration that Norman Leslie Gallagher is not eligible to continue to be a candidate for election to the office of Branch Secretary of the Victorian branch of the Australian Building Construction Employees and Builders Labourers Federation, an organization registered pursuant to the said Act, was at the time when the application was made a member of the said organization and that the said William Martin Bingham acted reasonably in so applying, notwithstanding that the court did not find in the said proceeding that a person is not or was not eligible to become or to continue to be a candidate for election or to be elected or appointed to an otfice within the said organization MR. I. WALL: HIS HONOUR: or that a person has ceased to hold an office within the said organization." It may be that Burchett J. could be said to have made a finding of a description specified in section 132H(2) for the purpose of determining what, if any, interlocutory order should be made pending the determination of the application, but in my opinion a conclusion of fact reached only for that purpose does not fall within the meaning of the word "find" in the sub-section. Do you appear for Mr. Bingham? Yes, your Honour, I appear as solicitor for him. When the notice of discontinuance has been filed, if you let my associate know, then a_ certificate can be drawn up.