Egan, Barry Thomas v Maher, John Bernard & Ors [1978] FCA 39

Egan, Barry Thomas v Maher, John Bernard & Ors [1978] FCA 39

Elections for National President, Vice-President, and National Executive members conducted between November 1976 and July 1977 were valid, as the electoral system in the rules fell within statutory grace periods and exclusions under the Conciliation and Arbitration Act 1904. Rules governing longer office terms were declared contravening s.140(1) and void from date of declaration. Office of National Assistant Secretary was vacated by implied resignation upon acceptance of National Secretary-Treasurer position, consistent with operation of Rule 14 and legal principle from Iron Ship Coating Co v Blunt.

Parties
Claimant: Barry Thomas Egan; Respondent: James Bernard Maher; Respondent: Walter Francis Major; Respondent: Kenneth John Bennett; Respondent: Leo Walsh; Respondent: Morris Reed; Respondent: Shop Distributive and Allied Employees Association; Respondent: Edward John Goldsworthy
Jurisdiction
Australia
Judgment Date
08 June 1978
Procedural Posture
Application Under Conciliation and Arbitration Act 1904 / Return of Order Nisi and Reasons for Judgment
Outcome
Rule nisi discharged; elections held valid. Order that officeholder cease holding out as National Assistant Secretary in another matter. Declaration that rule on 6-year term contravenes statute and is void from order date.
Legal Topics
Interpretation of Rules of Industrial Organisation, Validity of Election of Officers, Implied Resignation of Office, Doctrine of Election, Effect of Rules Contravening Statute, Voidness of Rules, Electoral System Compliance
Industrial Law Interpretation of Rules of Industrial Organisation Validity of Election of Officers Implied Resignation of Office Doctrine of Election Effect of Rules Contravening Statute Voidness of Rules Electoral System Compliance

Case Brief

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Parties

Barry Thomas Egan

Claimant

James Bernard Maher

Respondent

Walter Francis Major

Respondent

Kenneth John Bennett

Respondent

Leo Walsh

Respondent

Morris Reed

Respondent

Shop Distributive and Allied Employees Association

Respondent

Edward John Goldsworthy

Respondent

Procedural Posture

Application Under Conciliation and Arbitration Act 1904 / Return of Order Nisi and Reasons for Judgment

Legal Issues

  1. 1 Whether elections of officers conducted under rules not conforming to statutory requirements are valid
  2. 2 Whether office of National Assistant Secretary was vacated by implied resignation upon acceptance of another office
  3. 3 Whether rules contravening the Act become void

Ratio Decidendi

Elections for National President, Vice-President, and National Executive members conducted between November 1976 and July 1977 were valid, as the electoral system in the rules fell within statutory grace periods and exclusions under the Conciliation and Arbitration Act 1904. Rules governing longer office terms were declared contravening s.140(1) and void from date of declaration. Office of National Assistant Secretary was vacated by implied resignation upon acceptance of National Secretary-Treasurer position, consistent with operation of Rule 14 and legal principle from Iron Ship Coating Co v Blunt.

Court Disposition

Rule nisi discharged; elections held valid. Order that officeholder cease holding out as National Assistant Secretary in another matter. Declaration that rule on 6-year term contravenes statute and is void from order date.

Orders

  • Rule nisi herein discharged (orders sought under s.141 refused).
  • Officeholder Edward Goldsworthy to cease holding out as National Assistant Secretary, and others to cease recognising him as such, until new election held.