Dobinson v Crabb [1990] HCA 34

High Court of Australia Brennan, Dawson, Toohey, Gaudron and McHugh JJ. Dobinson v Crabb [1990] HCA 34

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 9 Brennan J.

Gaudron J. sets out the circumstances which gave rise to proceedings before Marks J. in the Supreme Court of Victoria from which an appeal, now removed into this Court, was brought. The question is whether there is any inconsistency under s. 109 of the Constitution between the laws of Victoria and the laws of the Commonwealth with respect to the title to and the possession, custody, control and application of property that was owned by The Australian Building Construction Employees' and Builders Labourers' Federation at the time of the cancellation of its registration as an organization under the Conciliation and Arbitration Act 1904 Cth. Its registration was cancelled on 14 April 1986 by the Builders Labourers' Federation (Cancellation of Registration) Act 1986 Cth.

In a case of supposed inconsistency, it is necessary to construe the relevant laws. Section 143(6) of the Conciliation and Arbitration Act is the relevant Commonwealth law: see Builders Labourers' Federation (Cancellation of Registration — Consequential Provisions) Act 1986 Cth, s. 4(1); Industrial Relations (Consequential Provisions) Act 1988 Cth, s. 6. Section 143(6) provides:

Upon the cancellation of the registration of an organization, the organization shall cease to be an organization and a corporation under this Act, but shall not by reason of the cancellation cease to be an association. The property of the organization shall, subject to any order which the Court, upon application by a person interested, may make with respect to the satisfaction of the debts and obligations of the organization out of that property, be the property of the association and shall be held and applied for the purposes of the association in accordance with the constitution and rules of the organization insofar as they can be carried out or observed notwithstanding the deregistration of the organization. This provision takes effect "upon", and thus by reason of, "the cancellation of the registration of an organization". It provides for three distinct but related matters: first, the cessation of the corporation and the preservation of the association of those persons who were members of the organization; second, the transfer of the property of the corporation to the association; and, third, the application of that property.