Gavin Mark Marshall v Garry Main, Graham Nicholson and Anthony Battle [1995] IRCA 332

Gavin Mark Marshall v Garry Main, Graham Nicholson and Anthony Battle [1995] IRCA 332

Because there was evidence, including unchallenged hearsay in relation to the East Camberwell incident and further evidence concerning the Exhibition Centre incident, capable of showing that union employees or officials used union funds or resources during working hours to promote the incumbent team and denigrate opponents in the election, and because section 209(3) should not be readily invoked in such circumstances, interim restraint should be continued, with limits reflecting the respondents' positions and working hours.

Jurisdiction
Australia
Judgment Date
25 July 1995
Procedural Posture
Application Under Section 209 of the Industrial Relations Act 1988 for Orders Concerning Observance of Union Rules / Return of Rule to Show Cause and Application for Continuation of Interim Orders
Outcome
Interim relief continued until 10.00 am on 28 August 1995 or further order; directions hearing adjourned; liberty to apply reserved.
Legal Topics
['use of Union Funds or Resources for Electioneering' 'interim Orders' 'observance of Union Rules' 'internal Resolution Under Section 209(3)']
['industrial Relations' 'registered Organisations' 'union Elections'] ['use of Union Funds or Resources for Electioneering' 'interim Orders' 'observance of Union Rules' 'internal Resolution Under Section 209(3)']

Case Brief

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Procedural Posture

Application Under Section 209 of the Industrial Relations Act 1988 for Orders Concerning Observance of Union Rules / Return of Rule to Show Cause and Application for Continuation of Interim Orders

Legal Issues

  1. 1 ['Whether interim orders should be continued restraining the respondents from using union funds or resources for electioneering in current union elections.' 'Whether the evidence, including hearsay evidence, was sufficient to justify interim relief that would in practical effect operate as final relief during the ballot period.' 'Whether the Court should refuse to deal with the application under section 209(3) because the applicant had not taken all reasonable steps to resolve the matter within the union.']

Ratio Decidendi

Because there was evidence, including unchallenged hearsay in relation to the East Camberwell incident and further evidence concerning the Exhibition Centre incident, capable of showing that union employees or officials used union funds or resources during working hours to promote the incumbent team and denigrate opponents in the election, and because section 209(3) should not be readily invoked in such circumstances, interim restraint should be continued, with limits reflecting the respondents' positions and working hours.

Court Disposition

Interim relief continued until 10.00 am on 28 August 1995 or further order; directions hearing adjourned; liberty to apply reserved.

Orders

  • ['Until 10.00 am on 28 August 1995, or further order, the first respondent by himself, his agents or otherwise, cease and refrain from using the funds and/or resources of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to support or promote...