Kingham v Sutton (No 2) [2001] FCA 400

Kingham v Sutton (No 2) [2001] FCA 400

There is a serious question to be tried as to the existence of an implied limitation preventing the Divisional Executive from implementing decisions subject to review by Divisional Conference; until determination, interlocutory relief should be granted to maintain the status quo and prevent certification of rule amendments and action on the impugned resolution. Balance of convenience favours such relief.

Parties
Applicant: Martin Kingham; Applicant: Martin O'Malley; Applicant: Kevin Reynolds; Applicant: Greg Simcoe; First Respondent: John Sutton; First Respondent: Vic Fitzgerald; First Respondent: Albert Littler; First Respondent: Bill Oliver; First Respondent: Lindsay Fraser; First Respondent: Alex Bukarica; First Respondent: Peter McClelland; First Respondent: Trevor Zeltner; First Respondent: Paul Waters; First Respondent: Andrew Ferguson; First Respondent: Wally Trohear; First Respondent: Garry Howcroft; First Respondent: Tony Benson; First Respondent: Ben Carslake; First Respondent: Joe McDonald; First Respondent: George Wason; First Respondent: Trevor Melksham; Second Respondent: Margaret Buchanan, Industrial Registrar
Jurisdiction
Australia
Judgment Date
12 April 2001
Procedural Posture
Application for Interlocutory Relief / Interlocutory (pending Hearing and Determination of Rule to Show Cause)
Outcome
Interlocutory injunctions granted
Legal Topics
Interlocutory Relief, Injunctions, Union Rules, Certification of Rule Amendments, Jurisdiction of Federal Court Under S 209 Workplace Relations Act 1996 (cth)
Industrial Law Interlocutory Relief Injunctions Union Rules Certification of Rule Amendments Jurisdiction of Federal Court Under S 209 Workplace Relations Act 1996 (cth)

Case Brief

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Parties

Martin Kingham

Applicant

Martin O'Malley

Applicant

Kevin Reynolds

Applicant

Greg Simcoe

Applicant

John Sutton

First Respondent

Vic Fitzgerald

First Respondent

Albert Littler

First Respondent

Bill Oliver

First Respondent

Lindsay Fraser

First Respondent

Alex Bukarica

First Respondent

Peter McClelland

First Respondent

Trevor Zeltner

First Respondent

Paul Waters

First Respondent

Andrew Ferguson

First Respondent

Wally Trohear

First Respondent

Garry Howcroft

First Respondent

Tony Benson

First Respondent

Ben Carslake

First Respondent

Joe McDonald

First Respondent

George Wason

First Respondent

Trevor Melksham

First Respondent

Margaret Buchanan, Industrial Registrar

Second Respondent

Procedural Posture

Application for Interlocutory Relief / Interlocutory (pending Hearing and Determination of Rule to Show Cause)

Legal Issues

  1. 1 Whether interlocutory relief should be granted restraining respondents from giving effect to resolution fixing date for Divisional Conference
  2. 2 Whether interlocutory relief should be granted restraining respondents from taking steps to have rule amendments certified by Industrial Registrar
  3. 3 Whether interlocutory relief should be granted restraining the Industrial Registrar from taking steps to certify rule amendments

Ratio Decidendi

There is a serious question to be tried as to the existence of an implied limitation preventing the Divisional Executive from implementing decisions subject to review by Divisional Conference; until determination, interlocutory relief should be granted to maintain the status quo and prevent certification of rule amendments and action on the impugned resolution. Balance of convenience favours such relief.

Court Disposition

Interlocutory injunctions granted

Orders

  • First respondents (excluding Sutton, McClelland, Ferguson, Trohear and Wason, who gave undertakings) restrained from treating as effective or acting upon the 21 March 2001 resolution until hearing and determination or further order.
  • All first respondents restrained from taking steps to have the rule amendments certified by the Industrial Registrar, or otherwise giving effect to the rule amendments, until hearing and determination or further order.