Davidson v Australian Society of Progressive Carpenters & Joiners, Melbourne Branch [1917] HCA 20; (1917) 23 CLR 143 (17 May 1917)

HIGH COURT OF AUSTRALIA

Davidson Defendant, Appellant; and The Australian Society of Progressive Carpenters and Joiners, Melbourne Branch Complainant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of Victoria.

17 May 1917

Barton A.C.J., Isaacs and Rich JJ.

Shelton (Eager with him), for the appellant.

Hogan, for the respondent.

Barton A.C.J.

Bodies deriving authority to litigate from a Commonwealth Act which created them are of course bound to pursue, in using the authority, the method prescribed by the Act. They have no previously existing authority for litigation or method. Sec. 68 of the Commonwealth Conciliation and Arbitration Act 1904-1915 says that "all fines fees levies or dues payable to an organization by any member thereof under its rules may, in so far as they are owing for any period of membership subsequent to the registration or proclamation of the organization, be sued for and recovered in the name of the organization in any Court of summary jurisdiction constituted by a Police, Stipendiary, or Special Magistrate." There does not seem to be any other section of the Act which empowers any body of persons industrially associated and deriving its authority from the Act to take legal proceedings to recover such moneys. An organization within the meaning of the Act is, as Mr. Eager pointed out, defined by sec. 4, which provides that it is "any organization registered pursuant to this Act, and so far as applicable it also includes any proclaimed organization to which the Governor-General declares this Act to apply." The organization of which the respondent is a branch is registered pursuant to the Act. The branches are not so registered. A person becoming a member of this organization signs a form in part of which he says, "I ... do hereby agree ... to become a member of the Australian Society of Progressive Carpenters and Joiners ... and also agree to pay 1s. 6d. entrance fee." That is a promise to join the organization which is registered, and which, so far as we know, is the only litigant with which we have to deal, and by r. 30 "each member"—that must mean, of the Society—"shall pay as contribution the sum of sixpence per week (there are no levies), which shall include his subscription to the Federal Council." The contributions sued for amount to £1 8s. 6d. Sec. 68 of the Act speaks of "fines fees levies or dues payable to an organization by any member thereof under its rules." The sixpence a week is a "due" within the section. These contributions may be "sued for and recovered in the name of the organization in any Court of summary jurisdiction" &c. Pursuing the only statutory authority it has, the organization might probably have sued for and recovered these moneys. But it is the Melbourne Branch that has sued for them, and that branch has no separate authority at all derived from the Statute itself or from the regulations under the Statute. It is possible that the Society might authorize the Melbourne Branch to sue in the name of the Society, but apparently it has not done so. The question is whether the Melbourne Branch has properly instituted the proceedings—whether it had a right to appear as complainant to recover the contributions. As far as I can see, it is quite out of the question to say that the branch has an independent right. The right is vested in the organization. When sec. 68 says that the moneys may be sued for and recovered "in the name of the organization," that means primarily by the organization itself. Whether the organization may authorize a branch to sue in the name of the organization is a question on which I can pronounce no opinion at present. It is enough to say that no title is given by sec. 68, and therefore none is given by the Act, to the Melbourne Branch to sue for and recover these contributions.

The appeal should be allowed.

Isaacs J.

I agree. By the social compact constituted by the Rules the member agrees to pay the contributions to the Society as a whole. The Act requires such an obligation to be enforced in the name of the organization. That has not been done, and, therefore, the appeal must succeed.

Rich J.

I agree.

Appeal allowed. Order appealed from set aside with £4 4s. costs. Respondent to pay costs of appeal.

Solicitors for the appellant, McInerney & McInerney.

Solicitors for the respondent, E. L. Vail & Son.