Kingham v Sutton [2002] FCAFC 107; [2002] FCA 506

Kingham v Sutton [2002] FCAFC 107; [2002] FCA 506

The Divisional Conference is not obliged to review Executive decisions upon request; neither the branch resolutions nor the petition met the requirements to mandatorily trigger a referendum under rule 10(i); no general presumption of regularity or honesty requires the Executive to treat unverified signatures as valid; payment of union dues (if intended by the person) is sufficient to establish union membership without a completed form; the appeal is dismissed because appellants did not meet the evidentiary threshold to mandate a referendum.

Parties
Appellant: Martin Kingham; Appellant: Martin O'Malley; Appellant: Kevin Reynolds; Appellant: 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
26 April 2002
Procedural Posture
Appeal / Judgment of Full Court of the Federal Court of Australia on Appeal From a Single Judge
Outcome
Appeal dismissed (majority); ruling of primary judge affirmed
Legal Topics
Union Rules Interpretation, Union Elections, Referendum Requirements, Presumption of Regularity, Legal Burden of Proof, Review of Executive Decisions
Industrial Law Employment Law Union Law Union Rules Interpretation Union Elections Referendum Requirements Presumption of Regularity Legal Burden of Proof +1 more

Case Brief

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Parties

Martin Kingham

Appellant

Martin O'Malley

Appellant

Kevin Reynolds

Appellant

Greg Simcoe

Appellant

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

Appeal / Judgment of Full Court of the Federal Court of Australia on Appeal From a Single Judge

Legal Issues

  1. 1 Whether Divisional Conference is obliged to review decisions of the Divisional Executive upon request
  2. 2 Whether a valid request for a referendum was made via branch resolutions or petition
  3. 3 Whether presumption of regularity applies to verifying petition signatures

Ratio Decidendi

The Divisional Conference is not obliged to review Executive decisions upon request; neither the branch resolutions nor the petition met the requirements to mandatorily trigger a referendum under rule 10(i); no general presumption of regularity or honesty requires the Executive to treat unverified signatures as valid; payment of union dues (if intended by the person) is sufficient to establish union membership without a completed form; the appeal is dismissed because appellants did not meet the evidentiary threshold to mandate a referendum.

Court Disposition

Appeal dismissed (majority); ruling of primary judge affirmed

Orders

  • The appeal be dismissed.