Kingham v Sutton (No 3) [2001] FCA 1117

FEDERAL COURT OF AUSTRALIA

Kingham v Sutton (No 3) [2001] FCA 1117 INDUSTRIAL LAW – application for orders that respondents perform and observe rules of union – whether right to require Divisional Conference to review decision of Divisional Executive to amend rules of union – whether implied restraint on power of Divisional Executive and Divisional Secretary to give effect to decision of Divisional Executive pending outcome of review by Divisional Conference – whether rules of union contravene s 196 of the Workplace Relations Act 1996 (Cth) – whether valid request for referendum under Divisional Rules – whether valid request by majority of Divisional Branch members – whether valid request by way of petition – interpretation of rules of union – whether implied limitation on exercise of powers under rules which would prevent implementation of referendum – whether question proposed in referendum requires alteration to National Rules – whether petition signed by 10 per cent of financial members of union – effect of s 48 of the Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth): s 48 Workplace Relations Act 1996 (Cth): ss 195(b), 196(a) & (c), 197(1)

Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 referred to Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129 applied Griffin Coal Mining Company Pty Ltd v Construction Forestry Mining and Energy Union [2001] FCA 281 distinguished Boland v Munro (1980) 48 FLR 66 applied National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 applied MARTIN KINGHAM & ORS v JOHN SUTTON & ORS (No 3) V 214 of 2001 GOLDBERG J 15 AUGUST 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 214 of 2001

BETWEEN: MARTIN KINGHAM, MARTIN O'MALLEY, KEVIN REYNOLDS and GREG SIMCOE