1 JUDG NT No. ©! BD. NOT FOR DISTRIBUTION FEDERAL co AUSTRALIA PRINCI, REGISTRY LOT IN THE FEDERAL COURT OF AUSTRALIA V No. 213 of VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION The Application of the Food Preservers' Union of Australia and Thomas Desmond Ryan for an Order pursuant to section 17iC of the Conciliation and Arbitration Act 1904 in respect or the Food Preservers' Union or Australia EX TEMPORE REASONS FOR JUDGMENT JUDGE: Gray J. DATE: 29th October 1987. This 1s an application pursuant to s.171C of the Conciliation and Arbitration Act 1904 ("the Act"). As originally filed and as first amended today, the application seeks a determination of the question whether an invalidity has or invalidities have occurred in alterations to the rules of the Food Preservers Union of Australia ("the organization"), an organization registered pursuant to the Act; 1f such invalidity is or invalidities are found to have occurred an order is sought to rectify or cause to be 2. rectified any such invalidity or to negative, modify, or cause to be modified the consequences in law of such invalidity or to validate any act, matter or thing rendered invalid by or as a result of such invalidity. The first matter raised by the application involves two alterations to the rules of the organization, being alterations to rules 9(a) (x1) and 59. Those rules themselves concern the alteration of the rules of the organization. The question whether any invalidity has occurred in relation to the alteration of those rules devends upon the construction of the former certified rule 59 and upon the question whether the former certified rule 59 exists in the form in which 1t 1s certified. This question in turn depends upon the extent of the powers of the Industrial Registrar pursuant to s.139(4) of the Act. Under that sub-section, the Industriai Registrar 1s required to certify that 1n his opinion an alteration to the rules of an organization complies with and is not contrary to the provisions of the Act, the regulations or an award and 1s not otherwise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization. In the present case, the certified rule 59 1s not in the same form as that which was submitted by the organization for certification. As submitted the rule 3. had three paragraphs, designated respectively (a), (b) and (c). The Industrial Registrar declined to certify (b) but was prepared to certify the other two paragraphs. The consequence of that may well be that the construction of paragraph (c), and perhaps (a), 1s altered. Counsel for the applicants have drawn to the attention of the Court various authorities on the extent of the Industrial Registrar's power to certify part of an alteration under s.139(4). In a decision of the Australian Industrial Court, Allen and Ford v. Laragy (1375) 7 A.L.R. 261 at p. 263, the Court said that the Industrial Registrar could withhold his certificate from a severable part of a rule. On the other side are the judgments of Evatt J. in is fe Stapleton (1983) 50 A.L.R. 293, and Keely J. un Apolication by Linsket for an Inguiry into an Election in the Federated Clerks Union of Australia Central and Scuthern Queensiand Branch, (judgment delivered 22nd July 1987, not yet reported). These two judgments are authority for the proposition that the powers of the Industrial Registrar under 3.139(4) of the Act are limited to certifying an alteration or refusing to certify it and that the Industrial Registrar has no power to certify part of an alteration. In view of the conflict between these authorities, and in view of the fact that counsel for the applicants in the present case indicated that they propose to invite me, at 4. least in ome respect, to refuse to follow the judgment of Keely J. in Linsket's case, it seemed to me that it was appropriate to consider whether the Court should order that the proceeding be heard and determined by a Full Court, pursuant to g.118C of the Act. It cannot be doubted that the question of the extent of the powers of the Industrial Registrar under 3.139(4) is of great importance to reqistered organizations. My understanding, from experience. 1s that the Industrial Registrar frequently purports to exercise the power to certify part only of an alteration submitted to him under s.139(4). If that is the case. then there must be many registered organizations the validity of whose rules 1s in doubt, in the light of the decisions of Evatt and Keely JJ. to which I have referred. If I were simply to decide the matter, I would only add to the store of single judge decisions on the point. If I were to decide the matter differently from the decisions of Evatt and Keely JJ. the result would only be to confuse the law. One of the very relevant questions in the consideration of whether to refer a proceeding under' s.118C is, of course, the attitude of the applicants. Counsel for the applicants have indicated that their clients do not wish the matter to be referred to a Full Court, but rather wish it to be determined here and now. Such a position 1s not to be 5. dismissed lightly, and I do not dismiss it lightly. It does seem to me, however, that the possible implications of any decision that I might make are such that in these circumstances I ought to refer the matter. notwithstanding the expressed wishes of the applicants. I note that under s.li8C(1l)(a), a single Judge of the Court nas the power to cefer the matter to a Full Court on his own motion. Accordingly, I have decided to refer the matter. The question ot reference having peen raised, counsel for the applicants Ehen sought to amend the application further, so as to raise questions of the validity of various earlier rule alterations which had been certified. In my view, the question of the validity of those alterations 1s so bound up with the questions which arise on she original applications that I oudqht to allow the amendment. having regard to the fact that the Industrial Registrar has purported to certity those of the alterations which are the subject of his certificate. It does not seem to me that the amendment will add any undue difficulty to the proceeding. I therefore propose to allow the amendment. That has in turn necessitated the giving of some further directions. They have been the subject of discussion between the Court and counsel for the applicants and are embodied in a handwritten document which I shall initial and which will remain on the file. I propose to pronounce' the 6. directions which the applications have sought in that respect. The orders that I give and the directions I make are therefore as follows: l. I grant leave to the applicants to amend the application by the insertion of a further paragraph in the form of the document headed Further Amended Application, dated 29th October 1987 and filed in Court this day. 2. The application, as amended, be heard and determined by a Full Court on a date to be fixed. 3. The applicants have leave to file such further affidavit or affidavits as they may be advised. Such affidavits, together with the further amended application, and a copy of this order to be served on: (a) the Secretary of each branch of the Food Preservers Union of Australia and, (b) the federal Industrial Registrar not later than seven days before the date fixed for the further hearing of the matter. 7. 4. The applicant cause to be published in a daily newspaper circulating throughout each of the following states, namely, New South Wales, Victoria, South Australia and Tasmania, an advertisement in the form of schedule A hereto not later than 4th November 1987. 5. I reserve liberty to apply on two days' notice. 6. The directions hearing 1s adjourned to a date to be fixed. 7. The whole of today's proceedings be transcribed. 8. The documents produced by the Industrial Registrar in response to a subpoena be returned to the Industrial Registrar upon the footing that he return them to the custody of the Court prior to the further hearing of this matter by a Full Court. Schedule A: Re application by Food Preservers' Union of Australia and Thomas Desmond Ryan for an order pursuant to section 171C of the Conciliation and Arbitration Act 1904 in respect of the