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High Court of Australia |
WILLIAMS v. HURSEY [1959] HCA 51; (1959) 103 CLR 30
Conciliation and Arbitration (Cth) - Waterside Workers - Conspiracy
High Court of Australia
Dixon C.J.(1), Fullagar(2), Kitto(3), Taylor(4) and Menzies(5) JJ.
CATCHWORDS
Conciliation and Arbitration (Cth) - Registered organization - Branch of organization - Competency as parties to action - Liability to suit in court other than Commonwealth Industrial Court - Power to impose political levy - Effect of non-payment of levy by member - Liability for conspiracy - Liability of registered organization for act of branch - Conciliation and Arbitration Act 1904-1956 (Cth), ss. 44(1) (b), 44(2), 147.Waterside Workers - Right to preference in employment - Previous Port Order conferring preference - Stevedoring Industry Act 1956 (Cth).
Conspiracy - Nature of action - Liability of corporation - Measure of damages.
HEARING
Melbourne, 1959, February 24-27; March 2-5;DECISION
September 16.2. The litigation arose out of events which were consequential upon a refusal by the respondents Francis John Hursey and his son, Denis Victor Alexander Hursey, to pay what has been called (conveniently and not, as I understand the term, dyslogistically) a "political levy" to the organization of employees to which they belonged. Those events are described with care and in detail in the elaborate and helpful judgment of the learned Chief Justice of Tasmania. For present purposes the material facts may be summarized as follows. (at p45)
3. In 1956 the Hurseys (as it will be convenient to call them) were members of the Waterside Workers' Federation of Australia and of the Hobart branch thereof. The federation is an "organization" registered under the Commonwealth Conciliation and Arbitration Act. It is organized in branches, of which there are said to be fifty-four, but the branches are not separately registered as organizations under the Act. An applicant for membership becomes on admission "a member of the Organization and of the Branch in which he is enrolled". The Hobart branch has separate rules and separate elected officers, but is subject to the general control of the central body of which it is a part. It is not registered under the Trade Unions Act 1889 (Tas.), which reproduces the English Trade Union Acts of 1871 and 1876. Whether the Hurseys ceased at any stage to be members of the organization is a matter in dispute. They were at all material times registered as waterside workers in the port of Hobart under the provisions of the Stevedoring Industry Act 1956 (Cth). (at p46)
4. The federation is "affiliated" with the Australian Labor Party, the rules of which provide that every financial member of an affiliated trade union may, on compliance with certain formalities, become a member of the party. In August 1956 the Hurseys became members of another political party, then known as the Anti-Communist Labour Party, but later named the Democratic Labour Party, and on 28th September 1956 F. J. Hursey announced that he intended to stand as an Anti-Communist Labour Party candidate at an election for the Lower House of the Tasmanian Parliament to be held in November 1956. (at p46)
5. Just before this - on 25th September - the committee of management of the Hobart branch of the federation, constituted under r. 4 of the branch rules, resolved "that this executive recommends that a 10s. 0d. levy be struck to assist Labor Party in the election campaign". Notice was then given of a "stop-work meeting" of members of the branch for the purpose of approving or rejecting this recommendation. This notice was given by an announcement chalked on a blackboard at the "pick up centre" in the port. The learned Chief Justice says that this method of giving notice of a meeting of members was "in accordance with a practice which had been followed for many years". The meeting was originally called for 4th October, but on 1st October the date was (for reasons which do not matter) altered to 2nd October. A meeting on that date was attended by about six hundred members: the total membership of the branch is about eight hundred and fifty. The Hurseys were present. A resolution approving the levy recommended by the committee was passed without dissent. On 11th October the making of the levy was approved by the federal council under r. 26 (f) of the rules of the federation. The levy was payable on 12th November 1956. (at p47)
6. Neither of the Hurseys paid the levy on the due date, but nothing material happened until April 1957. The ordinary annual "contribution" to the funds of the union (8 pounds 0s. 0d. per member) was payable on 12th April 1957. On 11th April the Hurseys made an offer to the secretary of the branch to pay the contribution without the "political" levy. Rule 23 (b) of the branch rules, however, provides that "all fines and levies shall be paid before the annual contribution is accepted", and the secretary refused to accept the payment offered. On 26th April F. J. Hursey informed the secretary that he was pledged to others not to pay the levy. (at p47)
7. The first hostile action against the Hurseys was taken on 29th April 1957, when what has been called the "'Empire Star' incident" occurred. On that date a number of members of the branch, who had been rostered for work with the Hurseys on the ship "Empire Star", refused to work with them on the ground that they were "unfinancial". The result was that the gang became "unworkable" and ceased work. On 30th April, after an inquiry had been conducted by the local representative of the Stevedoring Industry Authority, work was resumed and continued without further incident, but at a stop-work meeting held on 1st May a resolution was passed which meant in effect that the Hurseys were expelled from the union. This resolution, however, was ineffective without the indorsement of the federal body, and the federal body on 6th May refused to indorse it on the ground that the Hurseys should have been charged and given a hearing before the resolution was passed. (at p47)
8. After this members of the branch continued to work with the Hurseys, though the two were, in the words of the Chief Justice, "ostracized to a considerable extent", and several petty and vindictive incidents occurred. On 28th May 1957 an interview took place between Roach (Assistant General Secretary of the Federation) and F. J. Hursey. Roach told Hursey that he could have the option of paying the levy to any political party he chose - even his own party, the D.L.P. Hursey said that he would not pay the levy at all, because there was a principle involved that he should not be compelled to pay a levy to any political party. On 9th July 1957 the offer made by Roach on 28th May was repeated, and was again rejected. On the following day Hursey stated that he would "split the union from top to bottom", and his Honour found that he repeated this statement on several occasions. (at p47)
9. On 28th August 1957 a general meeting of the branch approved a recommendation of the branch executive that payment by the Hurseys of contributions and death levies (i.e. levies under branch r. 85 for the benefit of dependants of deceased members) without payment of the political levy should be accepted. The branch secretary, Pelham, made this offer accordingly to the Hurseys, who replied that they would have to obtain legal advice. On 18th October 1957 F. J. Hursey told Pelham that they would pay 7 pounds 17s. 6d. each, i.e. the amount of the contribution (8 pounds 0s. 0d.) less 2s. 6d. which Hursey believed to be the amount per member payable by way of "affiliation fee" by the federation to the Australian Labor Party. When it was explained to him that the fee was not 2s. 6d. but 1s. 0d. he said that he and his son would pay 7 pounds 19s. 0d. each. Pelham refused to accept the reduced amount. (at p48)
10. On 22nd October 1957 the first action (No. 1363 of 1957) was commenced by writ of summons. The sole plaintiff was F. J. Hursey. The defendants named were Williams (branch president), Pelham (branch secretary), the federation, and the Hobart branch of the federation. The statement of claim, which was delivered on 12th November 1957, claimed (a) against the defendants Williams, Pelham, and the Hobart Branch damages 2,000 pounds in respect of the "'Empire Star' incident", it being alleged that Williams and Pelham had procured the refusal of members of the branch to work with the Hurseys on the "Empire Star", (b) an injunction restraining the exclusion of the plaintiff from membership of the branch and of the federation, and (c) a declaration that the imposition of the political levy was ultra vires the federation and the Hobart branch. (at p48)
11. On 21st January 1958 James Healy, the general secretary of the federation, came to Hobart from Sydney and interviewed F. J. Hursey. He told Hursey that, if he and his son paid the contributions and the political levy by 31st January, the payments would be accepted. Otherwise, he said, their membership would be treated as automatically terminated by virtue of branch r. 19 (a) (ii) and federation r. 7 (a) (ii), which are in practically identical terms. No payment was made by the Hurseys, and immediately after the end of January Healy declared that they had ceased to be members of the union. Active steps then began to be taken against them. It will suffice for the moment to indicate briefly and in general terms what those steps were. (at p48)
12. On 5th and 6th February 1958 there was a general refusal of members of the branch to work with the Hurseys. Six gangs on the 5th, and 136 men on the 6th, walked off the ships to which they had been allocated, refusing to work with them, and there was a more or less general hold-up of work on the wharves. So far as preventing the Hurseys from working was concerned, these tactics were effective, but from the point of view of the men generally, they had the disadvantage that many other waterside workers also lost work and wages. Moreover the Stevedoring Industry Authority regarded the Hurseys (whether still members of the branch or not) as being still waterside workers registered under the Stevedoring Industry Act and therefore entitled to be rostered for work on ships in the normal way. This meant that men who refused to work with the Hurseys were liable to have their registration cancelled or suspended under s. 36 of the Act. On 12th February 1958 accordingly new tactics were adopted, the idea of which seems to have been suggested by a demonstration against the Hurseys on 7th February by seamen from ships in port. Between 12th February and 25th March 1958, on twenty-five occasions, the Hurseys, when they reached the wharf on which they had been rostered to work, were met by a solid phalanx of men standing shoulder to shoulder across the end of the wharf, so that it was a matter of practical impossibility for them to get through to the place where they would commence work. Meanwhile gangs were formed on the wharf without the Hurseys, and work on the ship or ships in port proceeded without interruption. The forming of these "human barriers" has been referred to as "picketing", but it involved, of course, much more than is ordinarily understood by that term. No very serious acts of violence occurred, the police being present in force, but there were treats of violence and much scurrilous abuse of the Hurseys, who were prevented by the physical obstruction in their path from proceeding to their work. (at p49)
13. On 18th February 1958 the second action (No. 78 of 1958) was commenced by writ of summons. The plaintiffs were the two Hurseys. The defendants named were Williams, the federation, the Hobart branch of the federation, and certain named individual defendants, the number of whom was reduced, by discontinuance before trial, to fourteen. By the statement of claim, as amended, each of the plaintiffs claimed in substance (a) 5,000 pounds damages, (b) a declaration that the imposition of the political levy was ultra vires the federation and the Hobart branch, (c) a declaration that the plaintiffs were still members of the branch and of the federation and entitled to all the rights of members, (d) an injunction to restrain the defendants from doing any act whereby the plaintiffs might be hindered or prevented from obtaining employment or working as waterside workers in the port of Hobart. (at p49)
14. The "picketing" continued after service of the writ, but towards the end of March the plaintiffs applied to the Authority for leave of absence, and they were on leave from 25th March to 8th June 1958. On 9th and 11th June they were rostered for work, but were prevented, as before, from proceeding to their place of work. On 13th June 1958 the Chief Justice granted an interlocutory injunction in the second action restraining the defendants from doing any act whereby the plaintiffs or either of them might be hindered or prevented from obtaining employment or working as waterside workers in the port. On 18th June the Hurseys were rostered for work for the first time after the issue of the injunction. When they arrived at the wharf, they found a formidable picket line drawn up, but they were not prevented from proceeding to the ship to which they had been allocated. Nine members of their gang, however, refused to work with them, and the rest of the gang became an "unworkable unit", with the result that they (including the Hurseys) were dismissed. Similar tactics were followed by members of the branch thereafter, with the same result, whenever the Hurseys presented themselves for work. (at p50)
15. On 8th July 1958 the third action was commenced by writ of summons. The plaintiffs were Winch and four other members of the Hobart branch, who sued "on behalf of themselves and all other members of the Federation offering themselves in the port of Hobart for employment as registered waterside workers". The defendants were the Stevedoring Industry Authority and the two Hurseys. By their statement of claim the plaintiffs alleged that the Hurseys were not members of the federation, and they claimed in substance a declaration to this effect and also declarations that members of the federation were entitled to be rostered for work in preference to the Hurseys, and that the Hurseys were not entitled to be rostered for work on any job so long as members of the federation were available for work on that job. This latter claim was based on a clause in an order known as Port Order No. 38 of 1948. This was an order made by the Stevedoring Industry Commission under s. 14 of the Stevedoring Industry Act 1947, and was said to be still in force notwithstanding the repeal of that Act by the Stevedoring Industry Act 1949. It contained a provision for preference in employment to members of the federation, to which reference will be made in due course. (at p50)
16. The judgments of the learned Chief Justice of Tasmania in the three actions were pronounced on 7th November 1958, and were respectively as follows: - 1. Action No. 1363 of 1957 was dismissed as against Williams and Pelham, but a declaration was made that the resolution imposing the "political levy" of 10s. 0d. was invalid and void on the ground that it was not expressly or impliedly authorized by the rules of the branch or the rules of the federation. 2. In action No. 78 of 1958 judgment was given in favour of each of the Hurseys for 2500 pounds damages against all the defendants "as joint tortfeasors". It was declared that the Hurseys "are and were at all material times" members of the federation. It was also declared that cl. 15 of Port Order No. 38 of 1948 ceased to have any operation upon the coming into force of the Stevedoring Industry Act 1956. 3. Action No. 496 of 1958 was dismissed, his Honour holding that the Hurseys had never ceased to be members of the federation, and that Port Order No. 38 of 1948 ceased to be operative on the commencement of the Stevedoring Industry Act 1956. (at p51)
17. The most convenient course will be to deal with each of these three judgments in turn, but it seems desirable to attempt first to clear up two matters which may be said to arise on the threshold. The first may be dealt with very shortly. It has been argued for the defendants in the first two actions that the Supreme Court of Tasmania had no jurisdiction to entertain the claims for relief made in those actions. This argument is founded on s. 147 of the Conciliation and Arbitration Act 1904-1956 (Cth). Section 147 provides: - "Unless the contrary intention appears in this Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court, for any act or omission in respect of which the Court has jurisdiction." It is clear, in my opinion, that the Commonwealth Industrial Court has no jurisdiction in respect of the subject matter of either action. If s. 147 did purport to oust the jurisdiction of all other Courts in such cases, serious questions would arise as to its validity. (at p51)
18. The second matter is also common to the first and second actions, though it is much more important in relation to the second than in relation to the first. It does not arise in relation to the third action. The questions involved arise from the fact that in each case "the Waterside Workers' Federation" and "the Hobart Branch of the Waterside Workers' Federation" are named as defendants. In the first action an interlocutory application was made by summons for an order that these two names be struck out of the writ and subsequent proceedings. The ground of the application was, in substance, that neither name denoted a body corporate or other legal person or persons capable of being sued. The application was dismissed by Gibson J., and an application for special leave to appeal from the order of Gibson J. to this Court was also dismissed, but the questions raised are, of course, open on these appeals. (at p52)
19. So far as the federation is concerned, the position seems to me to be clear enough, and I agree with what has been said by the learned Chief Justice of Tasmania. The Conciliation and Arbritration Act of the Commonwealth, under which it is registered as an "organization", gives to it what I would not hesitate to call a corporate character - an independent existence as a legal person. It is given a personality, which is distinct from that of all or any of its members, and which continues to subsist unchanged notwithstanding the changes which are bound to occur from time to time in its membership: Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309 (per O'Connor J. (1908) 6 CLR, at pp 360, 361 ). What is now s. 136 of the Act provides that every registered organization shall for the purposes of the Act have perpetual succession and a common seal, and may own possess and deal with any real or personal property. This provision alone is, in my opinion, quite enough to give to a registered organization the full character of a corporation. The words "for the purposes of the Act" cannot be given any effect by way of qualification of the personification. The notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not. Probably the words are intended to do no more than explain the reason for the incorporation. Then s. 146 provides that "any organization may sue or be sued for the purpose of the Act in its registered or other name". It is difficult in this section to give any practical meaning to the words "for the purpose of the Act", and the use of the singular is curious. So is the reference to suing or being sued in an "other" name than the registered name: "organization" means "registered organization" (s. 6 (1)). But it seems clear enough that s. 146 is complementary to s. 136, and that a true corporate character is obtained by registration. It has been held that an organization can sue in its registered name for a simple contract debt arising in the course of conducting a newspaper to further its industrial interests: Australian Workers' Union v. Coles (1917) VLR 332 ; Australian Tramways Employees' Association v. Batten (1930) VLR 130 . Those two cases were, in my opinion, correctly decided. A registered organization has legal personality, and may be sued in its corporate name in the proceedings now under consideration. (at p52)
20. I have regarded the question of the status of the federation as entirely a matter of the construction of the Commonwealth Act, and as in no way depending on the well-known decision of the House of Lords in the Taff Vale Railway v. Amalgamated Society of Railway Servants [1901] UKHL 1; (1901) AC 426 and the numerous cases in which it has been applied or acted upon in England. The federation is not registered as a trade union under the Trade Unions Act 1889 (Tas.), nor, so far as appears, under the trade union legislation of any other State, and it seems unnecessary to consider the English cases. The difficulties involved in them are formidable. In the Taff Vale Case [1901] UKHL 1; (1901) AC 426 Farwell J., whose judgment was approved by the House of Lords, said:- "Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law". (1901) AC, at p 429 . It appears from this passage that Farwell J. was not prepared to describe the body in question as a "corporation", though he attributed to it essential characteristics of a distinct juristic person. With all respect to what is said by some of the learned Lords in Bonsor v. Musicians' Union (1956) AC 104 , one would think that a registered trade union either had or had not a personality distinct from that of its members: see Professor Derham's essay Theories of Legal Personality in Legal Personality and Political Pluralism - ed. Webb, (1958) Australian National University, pp. 16, 17. The holding of the property of a union by trustees is in no way inconsistent with the possession by that union of true corporate personality. It could not give rise to any difficulty in enforcing a judgment against the union by recourse to that property, and it surely cannot be right to say that a judgment against a union, if it is capable of being sued as such, can be enforced against the property of its individual members. But it is sufficient to say that the position under the Commonwealth Act seems to me to be clear. The language of that Act is far more explicit than that of the Trade Union Acts which were considered in the Taff Vale Case [1901] UKHL 1; (1901) AC 426 . It is, of course, perfectly consistent with the possession of legal personality that the capacity of the "persona" should be limited: see Derham, loc. cit., pp. 14, 15. (at p53)
21. The position with regard to the "Hobart Branch" is inherently more difficult, but, in the end, I think, not less clear. It is plain that the "Hobart Branch" has no corporate character - no separate legal existence as a juristic person. Since a plaintiff cannot sue anything except a person or persons, the only way of justifying the naming of it as a defendant is to say that it is a convenient name for all the natural or individual persons enrolled in the "Hobart Branch". The plaintiffs in the first two actions justify the joining of the "Hobart Branch" as a defendant by reference to O. LIII, rr. 13 et seqq. of the Rules of the Supreme Court of Tasmania. The earlier rules of O. LIII reproduce the familiar English Rules (O. XLVIIIA), which enable a partnership to sue or be sued in the firm name. The framer of rr. 13 et seqq. seems to have attempted (perhaps without fully realizing the great difficulties involved) to extend those rules with modifications to "any unincorporated society, fellowship, club or association". The general idea seems to be to assimilate the case of any society etc. to the case of a partnership, but subject to the proviso in r. 27 that: - "No judgment in an action in which a society is named as a defendant (other than a judgment establishing the right of any person as a member of the society and restraining the exclusion of such member from the rights, benefits, and privileges of membership of the society) shall be entered against the society under this Order, unless the cause of action on which the action is founded is one in respect of which, if the society were a corporation, it would have been liable . . . . as principal". (at p54)
22. These Rules do not appear to me to solve the problem created by the most fundamental of the differences between a corporation and an unincorporated society. That fundamental difference is that a corporation has "perpetual succession" : it maintains its identity and its personality notwithstanding changes in its membership, which may occur from day to day. Its property does not belong to its members. But the property of a "society" does belong to its members from time to time, and that property may be owned by entirely different persons at the date when the cause of action arose, at the date when the action is commenced, and at the date when judgment is pronounced. (at p54)
23. The difficulties involved in this subject matter, and the attempts which have been made to overcome them, are explained and discussed in Dr. H. A. J. Ford's very recent book entitled Unincorporated Non-Profit Associations (1959). But I need not pursue the matter further, because, whatever the rules may do or fail to do, they have, in my opinion no application to the present cases for the reason that the "Hobart Branch" of the federation is not an "unincorporated society, fellowship, club or association". It has no separate identity - no existence apart from the registered organization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organized for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation. The branches are permitted within limits to make rules of their own, but the rules which they make derive authority from the rules of the federation. It is contemplated that a branch may have "property and moneys", but, if r. 15 of the Hobart branch rules means that the beneficial ownership thereof is in the members of the branch, it is inconsistent with r. 10 (A) of the rules of the federation which makes the "fund and property" of the organization and its branches subject to the "care, superintendence, management and administration of the governing body of the Organization for the carrying out of the objects of the Organization". The position is precisely analogous to that which was held by this Court to subsist in Hall v. Job [1952] HCA 57; (1952) 86 CLR 639 and there is a passage in the judgment in that case which, if we read "Federation" or "Organization" for "Institution" and "Branch" for "Lodge", is exactly applicable to the present case. The passage is as follows: ". . . an individual cannot be a member of the Lodge except as a member of the Institution. The mutual rights and obligations of the members of the Lodge spring from the rules of the Institution, and cannot be altered except as those rules provide. The purposes which the members of the Lodge have in common are none other than the purposes for which they are members of the Institution. The Lodge does not exist as a society of persons who desire to associate exclusively with one another for agreed purposes; it exists as an integral part of a larger organization, of which all the members are associated for the pursuit of purposes common to them all in accordance with a constitution which governs them all. A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits, and for the performance of the obligations and functions, which are the incidents of their membership of the Institution." (1952) 86 CLR, at p 650 . It follows that the judgments in the first and second actions cannot stand as against the "Hobart Branch". This is of small importance in the first action, but it may prove to be of considerable importance in the second action. (at p55)
24. I turn now to consider the judgment in the first action, by which it was declared that the so-called "political levy" - the resolution that a levy of 10s. 0d. per member should be imposed for the assistance of the Labor Party in the forthcoming election - was invalid and void. The argument by which the respondents, both in the Supreme Court and in this Court, supported their contention that the resolution imposing the levy was without effect was, in substance, twofold. They said, in the first place, that the rules of the federation and of the branch did not, as a matter of construction, authorize the making of a levy for the support of a political party. They said, in the second place, that any rule which did purport to authorize the making of such a levy would be itself invalid. They said - to state in very broad terms an argument which requires analysis - that the federation is a trade union, and that it is illegal for a trade union to apply its funds to political purposes. If the second branch of the argument were sound, it would, of course, provide a reason for construing the rules, in case of doubt or ambiguity, as not conferring the power in question. (at p56)
25. The fundamental premiss on which the argument of the respondents rests must, of course, be conceded. That is to say, the power to make the levy must be found expressed or implied in the rules. The learned Chief Justice was of opinion that no such power could be found expressed or implied in the rules. He reached this conclusion as a mere matter of construction, but he said that he was fortified in his conclusion by s. 140 of the Conciliation and Arbitration Act 1904-1956. That section authorizes the Commonwealth Industrial Court to disallow any rule of an organization which is, in its opinion, "tyrannical or oppressive" or "imposes unreasonable conditions upon membership". (The section has since been amended, but the relevant provision is that which existed in 1956, and in any case the amendments are immaterial for present purposes). His Honour thought that a rule which purported to authorize the making of the levy in question would be a rule which would offend against s. 140, and he found therein a supplementary reason for declining to read the general words of the rules as including a power to make such a levy. (at p56)
26. It is true that neither the federal rules nor the branch rules contain any specific reference, direct or indirect, either to the making of contributions to the funds of a political party or to the making of levies on members for that purpose. But this, in my opinion, is very far from being conclusive. When we look at the federal and branch rules, we find that (as in the case of so many trading companies) the draftsman has not fully observed the distinction pointed out by Lord Wrenbury in Cotman v. Brougham (1918) AC 514 between "objects" and "powers to be exercised in effecting the objects" (1918) AC, at p 522 . What is, however, unquestionably the central and dominant "object" of the organization and of the branch is stated in terms which are at once wide and clear. Federal r. 2, which is headed "Constitution" provides that: "The purpose of the Organization is to combine in one body all persons engaged in the loading discharging and coaling of vessels in order that their interests may be protected, their status raised, and their conditions improved". Branch r. 2 is in identical terms. Federal r. 3 (a) states as an "object" of the Organization "by all lawful means . . . to foster the best interests of the members of the Organization", and Branch r. 3 (a) is in similar terms. Federal r. 3 (o) states as an "object" what is really a means - "to raise funds for the furtherance of the aforesaid objects", and r. 3 (1) of the Branch Rules states as an object of the branch "to impose levies . . . in order to carry out the objects of the Branch". Both the federal rules and the branch rules contain other general references to "levies" (e.g. branch r. 23, which has already been mentioned) but these do not carry the matter further beyond making it clear that the imposition by the governing body of a "levy" on members is the method contemplated of raising, for the general or special purposes of the federation and the branch, funds over and above what will be provided by the ordinary annual contribution or subscription. When the rules use, in stating "objects", such general expressions as "the interests of members" and the "improvement of the conditions of members", they must, of course be read as referring to the interests of members as waterside workers and to the improvement of the conditions under which they work (as to wages, hours, privileges, amenities, etc.). But, subject to that, no prima facie reason exists for limiting the meaning of such expressions in any way, and any action which can fairly and reasonably be regarded as likely to further the interests of the organization and its members is within the objects stated in the rules, and therefore within the powers of the federation acting directly or through the branch. To adapt slightly the words of Lord Selborne in Attorney-General v. Great Eastern Railway Co. (1880) 5 AC 473 ". . . whatever may fairly be regarded as incidental to, or consequential upon, what is expressly authorized ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires" (1880) 5 AC, at p 478 . And it seems to me to be undeniable (nor do I think that evidence is required to establish it) that the governing body and the members of the federation or of a branch might, without exceeding the bounds of relevance which are read into such powers, think that the result of a State election was a matter of very real and practical importance to them - that it was very definitely in their interest that the Labor Party should have a majority in Parliament and should administer the government of the State, or at least should be as strongly represented in Parliament as possible. If this is so, it is within the objects of the federation or a branch to take practical steps to assist the campaign of the Labor Party, and it may exercise any of its powers - including the power to impose a levy - to that end. (at p58)
27. In this connexion, it is, I think, necessary, if one is to arrive at a realistic view, to remember certain aspects of the history of trade unionism in Great Britain and in Australia. One need not go back beyond the middle of the 19th century or examine what happened otherwise than in bare outline. At that time and thereafter in both countries the trade union movement, as it has been called, was endeavouring to achieve its ends - the general alleviation and amelioration of working and living conditions - by "industrial" means, that is to say, by combination, by propaganda, and by direct action, such as the strike. But in both countries a time arrived when the unions became convinced that their ultimate aims could not be attained except by political, as distinct from industrial, action. This meant ultimately that the unions, and the class to which their members belonged, must have direct representation in Parliament, but it was not at first realized that this in turn meant that a new political "party" must be formed to support their interests. (at p58)
28. It is at first sight curious, though readily explainable, that the use of trade union funds with a view to the attainment of immediate political ends became common in Great Britain at an earlier stage than in Australia, although the actual conception and creation of a distinctive "Labour" party came earlier in Australia than in England. Cole (A Short History of the British Working Class Movement, (1948) p. 312) says: "Trade unions had been using their funds for political agitation at least since the early sixties, and for promoting trade union candidatures at least since 1867" - the year of the Representation of the People Act. But a nominate "Labour Party" seems to have come into actual being in Great Britain only in 1906. This was about five years after the decision of the House of Lords in the Taff Vale Case [1901] UKHL 1; (1901) AC 426 . Trevelyan, English Social History, pp. 574, 575 says: "It was no theory but the practical need to defend trade union rights . . . that brought Labour into politics to form a party of its own . . . The Taff Vale decision provoked the effective formation of a separate Labour Party in Parliament." Cole (op. cit., p. 291) says "The Taff Vale Case created the Labour Party". (at p59)
29. In Australia, on the other hand, the idea of direct representation in Parliament as an objective of the unions was definitively adopted earlier than in Great Britain and its development was more rapid. "An original development of trade unionism in Australia was its decision in the eighties of last century to play a direct part in politics". (Hancock, Australia, (1930) p. 199). See also an article by Mr. G. V. Portus in Australia - Economic and Political Studies - edited by Professor Meredith Atkinson - Macmillan (1920) p. 164. At the end of the eighties the political activities of the unions received a powerful stimulus. The decade 1880-1890 was a decade of industrial conflicts, often culminating in strikes, in all the Australian colonies. In 1890 there was a strike which was disastrous from the unions' point of view. Ast to the general situation then subsisting, see Portus, loc. cit., pp. 168-9. The point made is that these events convinced unionists generally that, while not abandoning "industrial" action as a weapon, the workers "must set about the work of reform where it seems that reform alone can be obtained, and that is in Parliament". (Dr. R. A. Gollan in Australia - A Social and Political History - edited by Professor Gordon Greenwood - Angus & Robertson (1955) p. 165). (at p59)
30. Where the objects of an association of a particular class are expressed in wide general terms, and the question arises whether particular means of attaining those objects are comprehended within those terms, it must be an important consideration that associations of that class have in fact traditionally over a long period employed those means with a view to attaining those objects. We have something analogous to what Sir William Page Wood called "the received mode of carrying on a particular business": Taunton v. Royal Insurance Co. (1864) 2 H & M 135, at p 140 (71 ER 413, at p 415) . And what emerges clearly from what has been said is that for many years before the first Commonwealth Conciliation and Arbitration Act was enacted the trade unions of Australia were openly pursuing their objective of better working and living conditions not merely by industrial action but by the most active participation in politics. They had come indeed in those years to rely not less on "political" activities than on "industrial" activities. It is seen that the Labor Party was in its structure and its essential character a product of trade unionism. It began life as the party of the trade unions. It had its origin in Australia as a committee representative of trade unions. When regard is had to these matters, it cannot, I think, be maintained that the very general statement of "objects" in the rules of the Waterside Workers' Federation does not authorize that body, as a means of attaining those objects, to support by propaganda, and by financial subvention obtained by levy, a political party whose professed ultimate aims, though at once wider in scope and more definitive in expression, are identical in essential character with its own. (at p60)
31. For these reasons I differ, with great respect, from the learned Chief Justice of Tasmania on the question of the construction of the rules of the federation and the branch. (at p60)
32. Then, is there anything in the Conciliation and Arbitration Act (Cth) which can be construed as denying to an organization of employees registered under it, and having the general object of promoting the industrial interests of its members, the power to raise and expend moneys with a view to the return at a parliamentary election of candidates favourably disposed to the promotion of those interests? Or is there anything which forbids it to provide by its rules for these matters? I can find nothing of the kind. The original Act, which was passed in 1904, not merely contained nothing by way of denial of such a power but clearly contemplated the existence of such a power. For s. 55, which provided for the registration of organizations of employers and employees, contained a proviso that an organization whose rules permitted the application of its funds to political purposes should not be "entitled to any declaration of preference by the Court". The "preference" referred to would seem to be preference to unionists in employment, so that the proviso would affect only organizations of employees and not organizations of employers. The proviso was omitted by s. 11 of Act No. 7 of 1910. The omission may have been dictated by what I would regard as a misconception of the case of Amalgamated Society of Railway Servants v. Osborne (1910) AC 87 . However this may be, the omission cannot affect the original significance of the proviso, but I do not regard that significance as having any great importance. The point is that the Act, unamended and amended, leaves the organization which is its creature at liberty to have a rule which authorizes "political" levies. (at p60)
33. The position now reached may be summed up thus. The federation is a body whose constitution authorizes it (inter alia) to raise and expend moneys for political purposes. It is registered, and by virtue of its registration incorporated, under a Commonwealth statute, which has nothing to say against the raising and expending of moneys for such purposes. In my opinion this is decisive of the question in the first action. But it is necessary to consider now what was perhaps the main argument presented by counsel for the respondents. This argument rests fundamentally not on Commonwealth law but on State laws. I think that the short and conclusive answer to it is provided by saying that it is constitutionally impossible for a State statute to prescribe what shall or shall not be the powers of a corporation which is created and empowered by a law of the Commonwealth. The argument, however, requires examination. I am not able to accept even the first of the two steps which it involves. Its ultimate basis is found in Osborne's Case (1909) 1 Ch 163; (1910) AC 87 but it is necessary, before examining that case, to look for a moment at the law as it existed in England before the passing of the Trade Union Acts 1871 and 1876. (at p61)
34. With regard to the meaning (apart from special statutory definition) of the term "trade union", reference should be made to the judgment of Kitto J. in Victorian Employers' Federation v. Federal Commissioner of Taxation [1957] HCA 37; (1957) 96 CLR 390 . It is not, of course, correct to say that before 1871 every trade union was an unlawful association at common law. Apart from the numerous Combination Acts, which were repealed in England by the Act of 1824 and not revived by the Act of 1825, there was no reason why employers or employees should not form associations for the furtherance of their respective trade interests. It was only if, and so far as, such an association offended against the sacred principle of freedom of trade, that it incurred the disfavour of the common law. Any agreement which involved the "imposition of restrictions on the conduct of a trade or business" was an agreement in unreasonable restraint of trade and void. And a trade union, or any other association, which had among its objects (as the Waterside Workers' Federation has) the imposition of such restrictions was regarded as an "unlawful association" whose rules and agreements the Courts would not enforce or recognize: Russell v. Amalgamated Society of Carpenters and Joiners (1912) AC 421 . It is now well settled that the mere making of such an agreement or the mere membership of such a trade union was not illegal in the sense of being indictable at common law or in any other relevant sense. Before 1892 there were certain dicta to the contrary. The most notable was that of Crompton J. in Hilton v. Eckersley [1855] EngR 573; (1855) 6 El & Bl 47, at p 53 [1855] EngR 573; (119 ER 781, at p 784) . But Lord Campbell C.J. (who, as the conclusion of his judgment shows, was by no means well disposed towards trade unions in general) expressed strong disagreement with Crompton J. (1855) 6 El & Bl, at pp 62, 63 (119 ER, at pp 787, 788) . See also Hornby v. Close (1867) LR 2 QB 153 and R. v. Stainer (1870) LR 1 CCR 230 . In Mogul Steamship Co. v. McGregor, Gow & Co. (1892) AC 25, at pp 39, 42, 46 51, 58 all the learned Lords expressed disagreement with the dictum of Crompton J. The true position had been clearly put by Bowen L.J. in the same case. The learned Lord Justice said: "The term 'illegal' here is a misleading one. Contracts . . . in restraint of trade are not . . . illegal in any sense except that the law will not enforce them. It does not prohibit the making of such contracts; it merely declines, after they have been made, to recognize their validity" (1889) 23 QBD, at p 619 . (at p62)
35. It was, as is explained by Jessel M.R. in Rigby v. Connol (1880) 14 Ch D 482, at pp 489, 490 for the purpose of alleviating to a certain extent the disabilities under which, by reason of their being associations in restraint of trade, many trade unions laboured, that the Trade Unions Act 1871 and the amending Act of 1876 were passed. It is necessary to refer only briefly to the provisions of these Acts. The former Act, as amended by the latter, defined a trade union as "any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the Principal Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade". It was provided that the purposes of a trade union should not, by reason merely that they were in restraint of trade, render any member liable to prosecution, or be unlawful so as to render void or voidable any agreement or trust. There were provisions for the registration of trade unions, but no requirement that a trade union should be registered. A registered trade union was authorized to purchase and sell real property. Its real and personal property were to be vested in trustees. It was evidently contemplated that a registered trade union might sue and be sued, for it was provided that nothing in the Acts should enable any court to entertain any proceeding for the enforcement of certain classes of agreement. These included "any agreement for the payment by any person of any subscription or penalty to a trade union". (at p62)
36. The Taff Vale Case [1901] UKHL 1; (1901) AC 426 decided, to all intents and purposes, that registration under the Acts conferred a corporate personality upon a trade union. It could be sued for a tort. Some nine years later came Osborne's Case (1910) AC 87 The Amalgamated Society of Railway Servants was a trade union within the meaning of the Acts of 1871 and 1876, and it was registered under those Acts. Its rules were amended in 1906, so as to provide for the establishment of a fund, by means of a subscription of 1 pound 1s. 0d. per year per member, for the maintenance of a member of the House of Commons representing railwaymen. The member, if elected, was to be paid by the union a salary of 250 pounds per year, and was to "sign and accept the conditions of the Labour Party and be subject to their whip". Osborne, a member of the society, brought an action claiming a declaration that these provisions were invalid. The action was dismissed by Neville J., following Steele v. South Wales Miners' Federation (1907) 1 KB 361 but his decision was reversed by the Court of Appeal, and the declaration sought by Osborne was made. The decision of the Court of Appeal was affirmed by the House of Lords. (at p63)
37. The English Acts of 1871 and 1876 were enacted at different times without material modification in each of the Australian colonies, and also in New Zealand. In Tasmania the relevant Act is the Trade Unions Act 1889. In England the position created by the Taff Vale Case [1901] UKHL 1; (1901) AC 426 and the Osborne Case (1910) AC 87 was altered by the Acts of 1906 and 1913, and there have been a number of more recent enactments relating to trade unions as such. There has also been further legislation in some of the Australian States and in New Zealand, but in Tasmania there has been no legislation materially affecting the Act of 1889. In New South Wales and Western Australia there have been decisions of State Courts purporting to apply Osborne's Case (1910) AC 87 to trade unions registered under the Trade Union Acts of those States: see Allen v. Gorton (1918) 18 SR (NSW) 202; 35 WN 69 and True v. Australian Coal and Shale Employees' Federation Union of Workers (W.A.) (1949) 51 WALR 73 . In each of these cases it was held that a trade union registered under the Trade Union Act of the State had no power to apply its funds to the support of a political party. There is a good deal to be said for the view that the highly controversial decision in Osborne's Case (1910) AC 87 ought not, in the light of the historical considerations mentioned, to have been held to be applicable at all in Australia: see Foenander, Better Employment Relations pp. 215, 216. But it is unnecessary to consider this question, because the reasoning in Osborne's Case (1910) AC 87 is, in my opinion, wholly inapplicable to a union which, like the Waterside Workers' Federation, is registered under the Commonwealth Conciliation and Arbitration Act. (at p64)
38. It is necessary to see exactly what Osborne's Case (1910) AC 87 did decide. The opinions of Lord James of Hereford and Lord Shaw of Dunfermline were both based, in effect, on the view that it was contrary to public policy that a member of Parliament should be paid a salary by an outside body on condition that he should vote in the House as he might be directed vote. This view rests on an element in Osborne's Case (1910) AC 87 which is absent from the present case. The other three members of the House of Lords were the Earl of Halsbury, Lord Macnaghten and Lord Atkinson. Their Lordships all decided the case on the ground that it was ultra vires a trade union registered under the Acts to apply its funds to a purpose of a political nature. They took the definition of "trade union" in s. 16 of the Act of 1876, and treated that definition as defining exhaustively the objects and powers of a trade union in the same way as the objects clause of a trading company's memorandum of association defines and limits the scope of the activities in which the company is legally capable of engaging. In other words, they regarded registration as effecting an incorporation or quasi-incorporation of the union, and the statutory definition of "trade union" as delimiting the union's corporate or quasi-corporate powers. The case was parallel, they said, to Ashbury Railway Carriage Co. v. Riche (1875) LR 7 HL 653 and Baroness Wenlock v. River Dee Co. (1885) 10 AC 354 . Since there was no reference in the definition to political activities, the union was legally incapable of applying its funds to political purposes, and the rule which purported to give it power to do so was of no effect. (at p64)
39. As I have said, neither the federation nor any of its branches is registered under the Trade Unions Act 1889 (Tas.) or, so far as appears, under the Trade Union Act or Acts of any other State. It follows that the reasoning on which the decision of the majority of the Lords in Osborne's Case (1910) AC 87 was founded can have no application to it. Its legal existence and its corporate capacity are derived not from any State Act but from a Commonwealth Act. That Commonwealth Act does not deal with trade unions as such, and, so far as the "organizations" with which it does deal are concerned, there is no provision to which can be imputed the restrictive effect attributed to s. 16 of the English Trade Unions Act 1876. It is said, however, that an organization registered under the Commonwealth Act may be, and the federation is, also an unregistered "trade union" within the meaning of the Trade Unions Act 1889 (Tas.), and it has been decided that the effect of the decision in Osborne's Case (1910) AC 87 is to impose the same disability on an unregistered trade union as on a trade union registered under that Act. The case which so decides is the case of Wilson v. Scottish Typographical Association (1912) SC 534 .. (at p65)
40. There are, in my opinion, two answers to this argument. The first is that the decision in Wilson's Case (1912) SC 534 can be supported, if at all, only on a ground which has no relevance to the present case. The second is that the powers of an organization registered under the Commonwealth Act depend wholly on that Act, and cannot be restricted or affected by any State legislation. (at p65)
41. In Wilson's Case (1912) SC 534 the defendant association, which was admitted to be a "trade union" within the statutory definition, but was not registered under the Trade Union Acts, had, after Wilson had become a member thereof, altered its rules so as to give it express power to apply its funds in furtherance of "political" objects. Wilson's suit came in the first place before the Lord Ordinary (Lord Skerrington). His Lordship, after observing that Osborne's Case (1910) AC 87 had been decided on the ground that the political objects in question were ultra vires the defendant union, said: "It is apparent that this ground of judgment has no application to a society which has no statutory constitution, and which is merely a voluntary association, such as an unregistered trade union. It follows that the pursuer is not entitled to a declarator that the rules to which he objects are ultra vires and illegal. If he has a remedy it must be on the ground that the new rules constitute a violation of his contract with the Association and prejudice his patrimonial rights as one of its members" (1912) SC, at p 541 . He proceeded then to decide the case in Wilson's favour on the ground that the association "could not, without violating its contract with the pursuer, adopt rules which placed itself and its property outside the protection of the civil law" (1912) SC, at p 541 . This ground of the decision is understandable, but it has no relevance to the present case, where no alteration of rules is in question. On appeal, the view of the Lord Ordinary was regarded as somewhat too "subtle", but his decision was upheld on the ground that the reasoning of the majority in Osborne's Case (1910) AC 87 was not less applicable to an unregistered trade union than to a registered trade union. What was ultra vires the one must be ultra vires the other. But there can surely be no question but that the view of the Lord Ordinary on this point was correct. The term "ultra vires" is meaningless with reference to a "natural" person or the members of an unincorporated society. The capacity of an artificial person depends on, and is limited by, the instrument which creates it by directly or indirectly giving legal personality to it. The objects to which an unincorporated society may devote its funds may be limited by the contract which constitutes it, and it may be possible to restrain by injunction a breach of that contract. But breach of contract is one thing, and ultra vires or incapacity is another and quite different thing. The capacity of an unincorporated society can depend on nothing but the capacity of its individual members. Their capacity, or the capacity of some of them, may be affected by such matters as infancy or lunacy, but otherwise it is unlimited. The whole basis of the reasoning of the Earl of Halsbury and Lords Macnaghten and Atkinson lies in a region completely alien to natural persons - a region inhabited only by corporations. In my opinion, Osborne's Case (1910) AC 87 has nothing to do with the present case, and Wilson's Case (1912) SC 534 so far as it purports to follow Osborne's Case (1910) AC 87 was wrongly decided and ought not to be followed. (at p66)
42. But in any case, apart altogether from Osborne's Case (1910) AC 87 and Wilson's Case (1912) SC 534 it seems to me inconceivable, as a matter of constitutional law, that any State statute should have the effect of defining or limiting or controlling the powers of a corporation created by Commonwealth law. (at p66)
43. In considering the position in this regard, it is desirable to begin by referring briefly to the provisions of the Commonwealth Act relating to organizations and their registration. The Act has been radically amended again and again over the years since 1904. We may take the Act of 1904-1956, which was the Act as it stood at the time when the resolution imposing the levy for the support of the Labor Party was passed. Section 2 declares that one of the "objects of the Act" is "to encourage the organization of representative bodies of employers and of employees and their registration under the Act". Section 132 (1) provides for the registration "on compliance with the prescribed conditions" of associations of employers and associations of employees. Section 132 (2) provides that the conditions to be complied with by associations applying for registration shall be as prescribed. The conditions are prescribed by reg. 115 of the Conciliation and Arbitration Regulations (S. R. 1956, No. 60). That regulation provides: "(1) The following conditions are prescribed conditions to be complied with by an association applying for registration, namely: (a) the association shall be a voluntary and bona fide association of a kind referred to in section 132 of the Act; (b) the association shall be an association for furthering or protecting the interests of its members; (c) the association shall not be wholly or partially formed, organized, supported, maintained or conducted, directly or indirectly, for the purpose, or with the view, of opposing, injuring or prejudicing the interests of employers or employees, as the case may be, whose interests it purports to represent, further or protect". Then follow detailed provisions as to what must be provided for by the rules of an organization. It is provided that the rules "may also provide for any other matter not contrary to law". None of the rules is to be "tyrannical or oppressive" or to "impose unreasonable conditions upon the membership of any member or upon any applicant for membership". It should be noted in passing that this provision, which follows the language of s. 140 of the Act, cannot be treated as making void any rule held by any Court to be tyrannical or oppressive, &c. Section 140 only avoids any rule which is disallowed by the Industrial Court on the ground that it is tyrannical or oppressive, &c., and no regulation could avoid any rule otherwise than upon such disallowance: cf. Morton v. Union Steamship Co. of New Zealand Ltd. [1951] HCA 42; (1951) 83 CLR 402 . Section 135 of the Act provides that the Registrar shall issue a certificate of registration, which shall be conclusive evidence of registration and that the prescribed conditions of registration have been complied with, but by ss. 140 and 143 certain powers are given to the Industrial Court to compel an organization to alter its rules. (These sections were amended in substantial respects in 1958). The rest of Pt. VIII contains elaborate provisions relating to registered organizations, among which are provisions giving to the Industrial Court wide powers of control, which were greatly extended when Pt. IX came into force. (at p67)
44. What the Commonwealth Act does, then, is to give legal personality to every organization registered under it, and to the personality so given are attached certain powers. In other words, the capacity of the new "person" is defined indirectly by the Commonwealth Act. It is defined directly by the rules of the organization, which are registered when the organization itself is registered, and which then derive their authority from the Act. If the registered rules, on their true construction, empower the organization, as I think they do in the present case, to make a levy for the assistance of a political party, then that power must be regarded as derived from the Act. The Act and the Regulations expressly permit the rules of the organization to provide for "any other matter not contrary to law". Whatever may be the scope of the words "not contrary to law", it is clear that it is not, and never was, contrary to law or forbidden by law that any person should engage in political activities. It would be absurd to suggest that such activities were illegal in themselves. There is, of course, one other limitation on the powers which a registered organization may take to itself by its rules, and that is that nothing is permissible which would tend to frustrate the policy and main purpose of the Act: cf. Australian Workers' Union v. Coles (1917) VLR 332, at pp 336, 337 (per a'Beckett J.). But again that limitation is not transgressed by a rule which gives a power to use funds for political purposes. The application of funds for the support of a political party is, as has been seen, a traditionally accepted means of "furthering or protecting the interests" of members of an association of workers or employees. (at p68)
45. The passages in the judgment of a'Beckett J., which I have cited above, are too long to set out in full, but they express strongly and clearly the whole substance and reality of the position. There is nothing unconstitutional in the position as a'Beckett J. saw it. It would be different, of course, if the Jumbunna Case (1908) 6 CLR 309 had been decided the other way. But it has been accepted ever since 1908 that the Commonwealth may create these corporations, and, if it can create them, it must be able to define their powers. They must be associations of employees or of employers formed for the purpose of protecting and advancing the interests of their members, and no reason exists for saying that they cannot be empowered to do anything "not contrary to law" which is calculated to protect or advance those interests - to engage in propaganda by means of a newspaper or to contribute to the funds of a political party favourable to those interests. (at p68)
46. This being the position under the Commonwealth Act, and these being the powers which the incorporated organization has by virtue of its own registration and the registration of its rules under that Act, it must be beyond the power of any State to alter that position or to qualify those powers. No State could a priori forbid or ex post facto annul a power which is derived in this way from a law of the Commonwealth. Any attempt to do any such thing would involve a plain inconsistency within the meaning of s. 109 of the Constitution. No State Act could restrict the powers of the Commonwealth Bank or the Australian Broadcasting Commission. It is not merely that the State would be forbidding something which the Commonwealth permitted, as in Colvin v. Bradley Bros. Pty. Ltd. [1943] HCA 41; (1943) 68 CLR 151 and O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565; (1956) 95 CLR 177 . The State would be invading a territory which the Commonwealth has marked out as its own and for which it has made exhaustive and exclusive provision. It has laid down what is to be the law relating to the powers and functions of its own specially created corporations. (at p69)
47. Organizations registered under the Commonwealth Act are simply no concern of the States. Any other view would involve absurdity. The Commonwealth corporation could be put in the position of having mutually inconsistent objects and powers in each of the six States. (at p69)
48. The argument against the view which I have expressed rests, of course, essentially on Wilson's Case (1912) SC 534 . I have given my reasons for thinking that Wilson's Case (1912) SC 534 if placed on the ground on which Lord Skerrington decided it, is irrelevant, and, if placed on the ground on which it was decided on appeal, cannot be supported. I have thought further (apart from any decision on any Trade Unions Act) that, if a corporate body is created and empowered by or under Commonwealth law for Commonwealth purposes, its capacity cannot be cribbed or confined or in any way affected by any State law. Part VIII of the Act occupies the whole of the relevant field. The argument against this last view seems to rest basically on the conception that the Commonwealth Act takes up, so to speak, bodies which already exist under State laws, and must be regarded as taking them up subject to any disabilities which affect them by virtue of any State law. I am quite unable to accept this idea. In the first place, a very general, but very strong, reason for rejecting the suggested construction lies in the fact that the Parliament of the Commonwealth is legislating for the whole of Australia. It is surely not to be supposed that it intends that the system of registered organizations, which it is setting up, is to be at the mercy of the legislation of all or any of the States - that the capacity of the new persons, which it is, for its own exclusive purposes, creating, can be limited by existing or future State legislation. If it were so, a single Commonwealth-created corporation might, as has already been pointed out, have entirely different powers in each of the six States. In the second place, the Commonwealth Act offers the benefits and burdens of registration to "associations". The term "association" is defined in s. 4 of the Act as meaning "any trade or other union, or branch of any union, or any association or body composed of or representative of employers or employees, or for furthering or protecting the interests of employers or employees". It is not to be forgotten that the disabilities which are said to be imposed by Osborne's Case (1910) AC 87 and Wilson's Case (1912) SC 534 attach only to "trade unions" as defined in the English Act of 1876 and in the various State Acts. I would think it clear that the term "trade union" in the definition in the Commonwealth Act is used in the "ordinary" sense attributed to it by Kitto J. in Victorian Employers' Federation v. Federal Commissioner of Taxation (1957) 96 CLR 390 . But what is important is that the definition of "association" in the Commonwealth Act is different from, and very much wider than, the definition of "trade union" in the English and State Acts. If, then, the suggested construction of the Commonwealth Act be adopted, an "association" which is also a "trade union" within the meaning of the English Act will be subject, after registration under the Commonwealth Act, to disabilities which do not affect an association which is not such a trade union. It seems apparent that the Commonwealth Parliament intended to enact, as it was plainly entitled to do, its own scheme for its own purposes without reference to what any State might have done in the past or might do in the future. (at p70)
49. There are three other matters which must be briefly referred to. In the first place, I do not think that anything "tyrannical" or "oppressive" is involved in construing the rules of the federation as authorizing the making of a levy for a "political" purpose. The words "tyrannical" and "oppressive" are of very vague and uncertain import, but, primarily at any rate, I think that they have reference to the internal management of an organization, and that the purport of their prohibition is to ensure that control is in the last resort in the hands of the members and not in the hands of an individual or group. Their effect may go further than this, but I cannot think that a rule is tyrannical or oppressive merely because it may require members against their will to contribute money for a purpose which is relevant to their group interests, and is reasonably and in good faith believed by a majority of the members to be for the benefit of the group. (at p70)
50. Nor, in the second place, do I think that to construe the rules as I have construed them involves "imposing unreasonable conditions upon the membership of any member or upon any applicant for membership". It is true that the contrary view appears to have been taken in Re Federated Ironworkers' Association (1948) 61 CAR 726 by a majority of the Court of Conciliation and Arbitration. But, as Mr. Eggleston pointed out, the proposed rule which was before the Court in that case did not deal with the imposition by majority vote of a levy in aid of a specified political party. In any case, I think that we should construe the relevant registered rules of the Waterside Workers' Federation for ourselves, treating them, as I think we are bound to treat them, as valid and binding unless and until any of them is disallowed or directed to be altered under s. 140 or s. 143. In connexion with the Ironworkers' Case (1948) 61 CAR 726 it is interesting to note the American case of United States v. Congress of Industrial Organizations [1948] USSC 95; (1948) 335 US 106 (92 Law Ed 1849) . A federal statute forbade any labour organization to make "any contribution or expenditure in connexion with" certain elections. A charge was laid against an organization which had published a newspaper urging its readers to support a particular candidate at an election. Five justices held that what had been done was not covered by the terms of the statute, and declined to express any opinion on the constitutionality of the enactment. The remaining four justices, holding that there had been a contravention of the statute, proceeded to consider its validity, and held that it violated the First Amendment. In the course of an opinion delivered by Rutledge J. the minority said: "The expression of bloc sentiment is and always has been an integral part of our democratic electoral and legislative processes" (1948) 335 US, at p 143 (92 Law Ed, at p 1872) . A little later they said: "But it is not made clear whether the member could refuse to pay the earmarked portion and retain membership or would have to pay it to remain in that status. If the latter is true, the section affords little real 'minority protection'; if the former, the dissentient is given all the benefit derived from the union's political publicity without having to pay any part of its cost" (1948) 335 US, at p 148 (92 Law Ed at p 1875) . (at p71)
51. The remaining matter to be mentioned is this. It was argued that the resolution imposing the levy was in any case invalid on the ground that branch rule 35 had not been complied with. That rule provides: "stop-work meetings of the Branch shall constitute the highest authority of the Branch, and it shall be competent to deal with any question or alter any of the Branch Rules by a three-fifths majority provided always the prescribed notice of one (1) week prior to the holding of the meeting has been handed to the President. Decisions made at a stop-work meeting cannot be altered except at a subsequent stop-work meeting or a plebiscite vote of the members". It may be assumed that no formal notice of the stopwork meeting was given to the president a week before it was held or at all. But r. 35, in my opinion, requires such a notice to be given only when the matter to be dealt with is a proposed alteration of the branch rules. The natural construction of the rule is to read both the requirement of a three-fifths majority and the requirement of notice to the president as qualifying only the power given to a stop-work meeting to alter the rules. The only alternative is to read the rule as requiring a three-fifths majority for "dealing with any question". Not only is it extremely unlikely that this was intended, but so to provide would be irreconcilable with r. 5 (c) of Pt. II of the federal rules, which provides: "When at any special meeting any resolution is carried by a majority representing less than ten per cent of the aggregate membership of the Branch, a ballot of the whole of the members of the Branch may be demanded by petition, in writing, addressed to the Secretary and signed by not less than ten per cent or such other percentage of financial members as the Branch may decide, subject to approval by the Council". Moreover, the construction of Branch Rule 35 which I would adopt is confirmed by the use of the word "prescribed". This seems clearly to refer to some other rule, and that rule seems clearly to be r. 28 (b), which provides for a three-fifths majority and for notice to the president in cases - but only in cases - where an alteration of the rules is in question. (at p72)
52. There does not appear to be any other formal objection to the validity of the resolution. If there had been, I would not, with respect, be able to agree with the learned Chief Justice that it was a mere matter of "internal management", with which the courts would not concern themselves. If there had been any non-compliance with the rules in the passing of the resolution, its passing could not have imposed on the Hurseys any obligation to pay the levy. (at p72)
53. It follows from what has been said that the appeal from the judgment in the first action should be allowed. That judgment should be discharged, and in lieu thereof it should be ordered that the action be dismissed. (at p72)
54. I come now to the judgment in the second action. It will be convenient to deal first with the two declarations made. The first of these was a declaration that the Hurseys "are and were at all material times" members of the federation. The making of this declaration followed as a matter of course from his Honour's view that the resolution imposing the political levy was invalid, for the refusal of the Hurseys to pay that levy was the ground on which it was contended that their membership of the federation had ceased before the commencement of the second action. It is true that, as his Honour found, the Hurseys on 18th October 1957 (four days before the commencement of the first action) had, in effect, refused to pay not merely the political levy but the full amount of the ordinary contribution of 8 pounds. They had, as has been narrated above, said that they were willing to pay 7 pounds 19s. 0d. only. But on 11th April 1957 they had been ready and willing to pay the full amount of the contribution without the levy. The relevant contribution did not become payable until 12th April 1957, and, on the construction which (as will be seen) I would put upon the relevant rule, they would not before the commencement, or before the trial, of the second action have ceased to be members for non-payment of the contribution. If they ceased to be members, it must have been because of non-payment of the levy. (at p73)
55. On the view, which I have accepted, that the political levy was validly imposed, the question depends on the rules of the federation and of the branch. They might have so ceased either by expulsion under the rules or by the automatic operation of some rule or rules. It is not suggested that the Hurseys were ever validly expelled. Federal r. 26 (a) provides: "Financial membership of the Federation shall, unless otherwise provided for in these Rules, be dependent upon the payment of the prescribed annual contribution, and such other levies as they become due". And r. 26 (m) provides: "Any member being in arrears to the extent of 1s. 0d. or more for contributions, fines, fees, levies or dues, shall be unfinancial, and shall forfeit all privileges of membership until he shall have again become financial". Branch rr. 20 (b) and (c) are in similar terms. But these rules do not, in my opinion, involve actual cessation of membership, and the immediately relevant provisions appear to be those contained in federal r. 7 (a) (ii) and branch r. 19 (a) (ii). These rules are in practically identical terms. Rule 7 (a) provides: "Any member who for twelve (12) calendar months commencing in January of each year has during that period: (i) ceased to follow the occupation of waterside worker in the port where he is a member and where during that period there has been work available and he has failed continuously to offer himself for such work; and/or (ii) failed to pay any contribution, fees, fines, levies or dues as and when they became payable in that year under the Rules of the Organization or of his Branch; shall, at the end of such twelve (12) months, cease to be a member of the Organization". (at p73)
56. Unfortunately this extremely important rule is extremely badly drawn. It seems reasonable enough to treat the words "commencing in January of each year" as meaning "commencing on 1st January in each year". But the words "for twelve months commencing on 1st January of each year" suggest that there must be a default in payment occurring in one calendar year and continuing during another calendar year commencing on the following 1st January. On the other hand, the words "in that year" in the phrase "as and when they become payable in that year" suggest an intention that a default occurring in any calendar year and continuing until 1st January of the following calendar year shall be sufficient to bring about a cessation of membership. (at p74)
57. I do not think that any construction is possible other than the two which I have indicated, and neither of these produces a satisfactory result. For, if we adopt the former, a member might be in default for nearly two years before the rule would operate to terminate his membership. And, if we adopt the latter, his membership might be terminated when he was only two or three days in default. The former result is much less unreasonable than the latter. I do not think that we can treat the rule as void for uncertainty, but it must, of course, be construed strictly. Its opening words make it plain, I think, that the extreme sanction of automatic loss of membership was not intended to apply unless there had been a default continuing for a calendar year. This view is reinforced by par. (i) of r. 7 (a). And, since a degree of latitude must be allowed in construing a very confused instrument, I think it is quite permissible to read the words "as and when they became payable" as meaning simply "which were payable". Rule 7 (a) (ii), then, should, I think, be read as meaning that membership automatically ceases if default in payment continues for a calendar year commencing on 1st January next following the date when the payment first became due. (at p74)
58. But, even on this construction, which is the most favourable construction possible from the point of view of the Hurseys, their membership must be held to have ceased on 31st December 1957. The levy, which I have held to have been validly imposed, was payable on 12th November 1956. The relevant period of twelve calendar months commenced, therefore, to run on 1st January 1957. They did not pay the levy, and their default continued up to the end of that period, which expired on 31st December 1957. The declaration that they remained members should not, therefore, have been made, and, so far as that declaration is concerned, the judgment in the second action should be set aside. (at p74)
59. The other declaration made in the second action was that cl. 15 of Port Order No. 38 of 1948 ceased to have any operation on the coming into force of the Stevedoring Industry Act 1956. This declaration does not appear to have been claimed by the statement of claim in the action, but the defendant federation relied upon the order by par. 32 of its defence. Whether it was relevant to any real issue in the action will be considered later. (at p75)
60. Port Order No. 38 of 1948 was made for the Port of Hobart under s. 14 of the Stevedoring Industry Act 1947 by the Stevedoring Industry Commission constituted under that Act. Clause 15 of this order was in the following terms: "All Union Labour To Be Picked Up: (a) All Union labour to be utilized before recourse is made to non-Union labour, except in cases of men under penalty. (b) No transfer of labour from ship to ship to be effected until all available labour has been exhausted, and non-Union labour not to be transferred while Union men are available for transfer to any job". The Stevedoring Industry Act 1947 and the amending Act of 1948 were repealed by the Stevedoring Act 1949, but s. 5 (1) (g) of that Act (so far as material) provided that all orders made or purporting to have been made under the Stevedoring Industry Act 1947 and in force or purporting to be in force immediately before the commencement of the Act of 1949 should continue in force as if made under that Act. The Act of 1949 was in turn repealed by the Stevedoring Industry Act 1956, but s. 6 (4) (a) of that Act (so far as material) provided that, where an Order continued in force, or purporting to have been continued in force, by virtue of the Stevedoring Industry Act 1949 was in force immediately before the date of commencement of the Act of 1956, the order should not cease to be in force by reason of the enactment of that Act. The Act of 1956 was proclaimed to commence on 14th August 1956. (at p75)
61. Port Order No. 38 of 1948 was revoked, as to cl. 15, by Port Order No. 21 of 1958, which was made under the authority of ss. 6 (7) and 18 of the Act of 1956, and which came into force on 17th June 1958. But the federation has relied upon the order of 1948 in relation to the events which happened in the earlier part of 1958, and the answer made by the plaintiffs is that the order of 1948 ceased to be operative on the commencement of the Act of 1956, sc. 14th August 1956. The learned Chief Justice held that the Order of 1948 ceased to operate on that date because it was inconsistent with the Act of 1956, and in particular with s. 17 (1) (f) of that Act, which provides that the functions of the Authority constituted under the Act include "to make arrangements for allotting waterside workers to stevedoring operations so as to ensure, as far as practicable, a fair distribution of work in stevedoring operations amongst registered waterside workers". With respect, I am not able to accept this view. Port Order No. 38 of 1948 is explicitly preserved in operation by s. 6 (4) (a) of the Act of 1956, and there seems to me to be no real difficulty in regarding s. 17 (1) (f) of that Act as qualified by that order. In other words, there is no difficulty in reading s. 17 (1) (f) as empowering the Authority to make the required arrangements subject to a proviso that non-unionists shall not be employed as long as unionists are available for employment. Order No. 38 of 1948 had the force of law when it was made (Stevedoring Industry Act 1947, s. 16 (1) (c)), and it was preserved by the Acts of 1949 and 1956. If cl. 15 thereof had been actually contained in the Act of 1956, no difficulty could have been felt in reconciling it with s. 17 (1) (f) - or, so far as I can see, with any other provision of that Act. (at p76)
62. For the above reasons the judgment in the second action, so far as it relates to Port Order No. 38 of 1948, should be set aside. (at p76)
63. It remains, so far as the second action is concerned, to consider the judgment for damages. His Honour awarded damages, which he assessed at 2500 pounds, to each of the two plaintiffs against all the defendants - that is to say, against the federation, the Hobart branch, and the fourteen individual defendants. There are three matters which require consideration. These are (1) the cause of action, (2) the persons liable, and (3) the quantum of damages. (at p76)
64. The main cause of action is, of course, found in what have been conveniently, though euphemistically, described as the "picketing episodes", the occasions on which "human barriers" were formed by members of the union on the wharf, with the object and effect of preventing the Hurseys from reaching the point where they had been rostered to work. We have had the great advantage of detailed findings by the learned Chief Justice as to each and every one of these episodes, but for present purposes it will suffice to quote a passage in his Honour's judgment which accurately states the general effect of the acts of which the plaintiffs complain. He says: "I find that every picket line in the series constituted a threat (by conduct) to use force against the plaintiffs to prevent them passing through the picket line if they made any attempt to do so. It was made quite plain to the plaintiffs by the conduct of the men in the early picket lines that they would be repelled by force if necessary. In almost every picket line there was some display of hostility. I find the inference inescapable that the mass picketing by the men on each occasion was a threat to use unlawful means by resort to physical force against the plaintiffs to repel any attempt by them to pass through". A little earlier he has said: "On many occasions there were many men in the picket lines who showed their hostility to the plaintiffs by shouting out scurrilous and indecent abuse. Each picket line effectively deterred the plaintiffs from passing through it. Their early attempts to do so were frustrated by combined assaults upon them". It should perhaps be added that on one occasion (to quote his Honour's words), "An angry, jeering mob of men assaulted the plaintiffs by pushing them about 50 yards towards Constitution Dock and nearly pushed them in the water. There were also assaults on the plaintiffs by individuals". (at p77)
65. I agree with the Chief Justice that the doings in question were torts, and that the plaintiffs are entitled to recover damages from those proved to have been responsible for them. I do not, however, with respect, by any means agree with all that his Honour has said on this subject. In particular, I do not think that the basis of the plaintiffs' cause of action lies in the bringing about of breaches of contract. The case seems to me to be remote from that class of case of which Lumley v. Gye (1853) 2 E1 & B1 216 [1853] EngR 15; (118 ER 749) is generally cited as the leading example. In that class of case A procures B to break a contract between B and C. If C suffers loss by reason of this breach of contract, he has (in addition to his cause of action in contract against B) a cause of action in tort against A. In such cases it does not matter whether the means by which A procured B to break his contract with C were lawful or unlawful in themselves: A may have used violence or given B a monetary consideration, or may have used mere persuasion or argument. The bringing about of the breach of contract as such is the wrongful act which, damage being proved, constitutes the cause of action. In such a case as the present (assuming that there was here any relevant contract at all) it is B, and not C, who sues A, and the wrongful act which constitutes the cause of action is not the bringing about of a breach of contract as such. B could not, for example, complain that A had offered him a bribe, which he had accepted, or had by argument persuaded him to do something which he had later regretted. B's complaint is that he was prevented by force from carrying out his contract, whereby he has lost wages, and the cause of action is the use of force by A. But in any case I could not regard it as established that any breach of contract was ever brought about in this case. I could not accept the analysis by which every registered waterside worker is treated as making a continuing offer to enter the employment of a registered employer, which offer is accepted by an allocation announcement in the press and by radio. I cannot see how it could be held that there was any contract between any individual registered employer and any individual registered waterside worker until the waterside worker had actually entered upon the work assigned to him. (at p77)
66. Nor can I agree with the view that taking part in an unlawful assembly was a tortious act as against the plaintiffs. Wrongful acts, giving rise to a cause of action for damages, may be committed in the course of an unlawful assembly, but the civil liability which arises is for those wrongful acts, and not for membership of the unlawful assembly as such. There are other views expressed or implied in this part of his Honour's judgment, to which I could not fully subscribe. But I need not particularize further, because I am clearly of opinion that his Honour's general conclusion was right. It is enough, so far as cause of action is concerned, to say that there was a combination amounting to an actionable conspiracy of the kind best recognized in law, viz., a combination to do unlawful acts necessarily involving injury. (at p78)
67. That the acts in question were wrongful at common law I feel no doubt. Those acts (apart from elements of aggravation) constituted an interference with the plaintiffs' personal liberty and freedom of movement, and an obstruction of their path to their work. In Bird v. Jones [1845] EWHC J64 (QB); [1845] EWHC J64 (QB); (1845) 7 QB 742 (115 ER 668) where the obstruction took place on a public highway, the plaintiff had (as here) been prevented from proceeding in one particular direction, but had been left free to proceed in any other direction. It was held (Lord Denman C.J. dissenting) that an action for false imprisonment could not be maintained. But the case decided no more than that the plaintiff's remedy was not by way of an action for false imprisonment. Patteson J. said: "But I cannot bring my mind to conclusion that, if one man merely obstructs the passage of another in a particular direction, whether by threat of personal violence or otherwise, leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to imprison him. He does him wrong, undoubtedly, if there was a right to pass in that direction, and would be liable to an action on the case for obstructing the passage, or of assault, if, on the party persisting in going in that direction, he touched his person, or so threatened him as to amount to an assault. But imprisonment is, as I apprehend, a total restraint of the liberty of the person" (1845) 7 QB, at pp 751, 752 (115 ER, at p 672) . In Bird v. Jones [1845] EWHC J64 (QB); [1845] EWHC J64 (QB); (1845) 7 QB 742 (115 ER 668) the obstruction, as has been said, took place on a public highway. In the present case it does not appear that the wharf was a public highway, and its precise position in law was not made clear. It has been assumed throughout, however, that any person de facto rostered for work entered as of right on the wharf, which was the only route to that work, and I think that the case should be dealt with on that footing. I agree with the Chief Justice also in thinking that the threat of violence constituted an assault at common law, as distinct from a battery. (at p79)
68. It seems clear, as the learned Chief Justice held, that the acts of "picketing" were an infringement of s. 44 (1) (b) of the Stevedoring Industry Act 1956. Section 44 (1) provides: "A person shall not, by violence to the person or property of a person, by threat, intimidation or incitement of any kind to any person, or, without reasonable cause or excuse, by boycott or threat of boycott of a person or property or discriminatory action, prevent, hinder or dissuade - . . . (b) a registered waterside worker from offering for, obtaining or accepting employment, or working, as a waterside worker in stevedoring operations". An infringement of s. 44 (1) (b) is an offence against the Act. But it does not follow that an action will lie at the suit of an individual waterside worker who has suffered loss by the commission of the offence. I do not think that such an action will lie. It is only in a limited class of case that a statutory prohibition accompanied by an express criminal sanction can be held to create a duty enforceable by civil proceedings, and no sufficient reason appears for saying that the purpose of s. 44 (1) (b), which must be read in its context, goes beyond the securing of the efficient performance of stevedoring operations in Australian ports, or that it is intended to create a civil duty enforceable by one waterside worker against another or by a waterside worker against any person whomsoever. This view is, of course, of small practical importance in the present case, since I have held that there was a clear infringement of a common law right. (at p79)
69. In addition to relying upon the obstructions by "picketing", the plaintiffs also maintained that they had a cause or causes of action in the refusals by other registered waterside workers to work with them on ships to which they had been allocated. These refusals meant in each case that no "workable" gang was available on the ship concerned, with the result that work on that ship ceased. These refusals, apart from two in February 1958, took place in June and July 1958, after the Chief Justice had granted an interlocutory injuction against any act which would have the effect of preventing the Hurseys from proceeding to their place of work. They are of comparatively small importance, but it would seem that they constituted infringements of s. 44 (2) of the Stevedoring Industry Act 1956 by the individual waterside workers concerned and breaches of a duty owed to the plaintiffs by virtue of that sub-section. Section 44 (2) provides: "A registered waterside worker shall not, without reasonable cause or excuse, refuse to accept employment or perform work in stevedoring operations with another person who is a registered waterside worker". But here again the enactment, in my opinion, creates no civilly enforceable right or duty. The same considerations apply to s. 44 (2) as to s. 44 (1) (b). (at p80)
70. I have held, differing from the learned Chief Justice, (1) that the Hurseys ceased to be members of the federation and of the branch on 31st December 1957, and (2) that Port Order No. 38 of 1948, which prescribed preference in employment for members of the federation, remained in force until it was revoked on 17th June 1958. The obstructions by "picketing" took place between 12th February 1958 and 25th March 1958 and on 9th and 11th June 1958. At the material times, therefore, the Hurseys were neither members of the federation nor entitled to be rostered for work in the port of Hobart, so that the union was, as I see the position, right in its two main contentions. But these facts though they may affect the quantum of damages, cannot affect the plaintiffs' causes of action or justify the obstructions by "picketing". The Hurseys were still registered waterside workers, and they were rostered for work, and the fact that the Authority was not entitled to roster them for work while members of the federation were available could not make lawful acts which were otherwise in themselves wrongful. (at p80)
71. From what has been said it follows that judgment was rightly pronounced against the fourteen individual defendants in the second action (including Jackson and W. P. Brown), who were all held by the learned Chief Justice to have been parties to the unlawful combination or conspiracy. But it is still necessary to consider whether judgment was rightly given against the federation and the "Hobart Branch". It has already been said that judgment could not be given against the branch eo nomine. It is a fluctuating body of individual members with no corporate existence or legal personality. Whether the federation can be held responsible for the torts committed is a more difficult question. There is no difficulty about its personality. It is a corporation, capable of being sued in tort. The question is whether the facts justify holding that it was a party to the torts committed. Again I agree with the conclusion reached by the learned Chief Justice, though I do not reach that conclusion by quite the same route as that followed by his Honour. (at p80)
72. It is when we come to consider the liability of the federation for the torts committed by many of its members in Hobart that the nature of the "Hobart Branch" and its relation to the federation seem to me to become matters of great practical importance. If it had been possible to regard the branch as a body having a legal existence separate from that of the federation, it would have been clear, I think, that it rendered itself liable for the wrongful acts committed by those who from time to time formed the "picket lines". There was abundant evidence to support his Honour's finding that the continued formation of those lines and the obstruction of the Hurseys' path to work was not a matter of mere spontaneous action on the part of individual members of the branch, but was organized and directed as a branch activity and a matter of branch policy by the branch itself acting through those ultimately responsible for its government. It is necessary to refer to only one or two matters. In the first place, there is the stop-work meeting held on 13th February 1958, the day after the "picketing" commenced. By branch r. 35 a stop-work meeting is "the highest authority of the Branch". At this meeting no express resolution was carried in favour of picketing, but a resolution was carried for the imposing of a levy of 1 pound per member to assist those whose earnings had fallen below 10 pounds through their being involved in the Hursey dispute, and it is plainly to be inferred from the minutes that the meeting approved of, and contemplated the continuance of, the "picketing" policy. Then, on 25th February 1958 there was a meeting of the executive committee of the branch, at which it was "recommended that job meetings should be held on all night shifts emphasizing the need for attending picket-lines". Again, importance attaches, I think, to the activities of the "campaign committee". This seems to have been a sort of informally constituted standing committee, of which leading officials of the branch were members. It was recognized by the executive committee, which received reports from it from time to time with reference to the Hursey dispute. (at p81)
73. But, if the branch had been a separate body having an independent existence distinct from that of the federation, and capable of being made liable for the "picketing" episodes, I should have doubted whether the federation also could have been held liable. It may be taken to have given sympathy and encouragement to the branch, but I should have felt doubt as to whether it could have been held to have made the acts of the branch its own acts in a sense which would have made it equally liable in damages with the branch. (at p81)
74. But in truth, as has been said, the branch has in law no existence separate from that of the federation. It is merely an aggregate of members which is an integral part or section of the whole federation, having that degree of autonomy which is permitted to it by or under the constitution of the federation. It represents the federation in the port of Hobart. In and for the port of Hobart it is, so to speak, the federation. It is forbidden by rr. 2 and 4 of Pt. II of the federal rules to strike or to take any step to "enforce any wages, hours, or conditions of labour" without prior approval of the governing body of the federation. But, subject to those limitations, and perhaps one or two others, it is set up and organized in the port of Hobart to do in that port whatever the federation may do in any Australian port. Because it has that character and those functions, it seems to me that acts of the branch within its local limits are prima facie acts of the federation itself. The branch is in all respects subject to the control of the governing body of the federation, and that body could no doubt interfere and prohibit the branch from proceeding, or from proceeding further, with any particular course of action, and the federation would not be liable for anything done in breach of such a prohibition: cf. Waterside Workers' Federation v. Burgess & Sons, Ltd. [1916] HCA 2; (1916) 21 CLR 129 . But in the present case there was no such prohibition and no such interference. Apart from the fact that Mr. Wallington, the federal organizer of the union, took an active part in the formation of the "picket line" on 12th February 1958 - conduct of which Healy expressed disapproval - I do not think that any federal officer actually participated in the picketing. But the members of the governing body of the federation were well aware from the beginning of what was going on, and the federation made it known to the branch, and took steps to make it known to the public, that the branch had their full support and sympathy in "the struggle". Speaking of the "picketing", Healy said: "We gave our support by not directing any alteration to it". That is, I think, the truth and, so far as appears, the whole truth, but I think that it is enough to make the federation liable. It makes it clear that acts which were prima facie acts of the federation were never repudiated or forbidden by it. (at p82)
75. The only remaining matter in relation to the second action is the quantum of damages. His Honour awarded 2500 pounds to each of the plaintiffs. He found that the amount of wages lost by each of them up to the date of judgment was 700 pounds, and the balance was awarded by way of exemplary damages for what his Honour described as "wilful and gross violations of the plaintiffs' rights by a series of wrongful acts from 5th February to 18th June 1958". (at p82)
76. His Honour's assessment was, of course, based on the view that Port Order No. 38 of 1958, which gave a right to preference in employment to members of the federation, was not in force at any material time. In my opinion, that order remained in force until 17th June 1958. On this view it seems clear that there must be a substantial reduction in damages, because his Honour's opinion that the wrongful acts committed were a violation of the plaintiffs' "right to earn a living at their chosen calling" must have had a general bearing on the total assessment. Again, that total assessment is very likely to have been affected by his Honour's view that the Hurseys continued throughout the material period to be members of the union - a view with which also I have found myself, with respect, unable to agree. Further, and perhaps most important of all, the ultimate source of all the trouble was the refusal of the Hurseys to pay the political levy, a refusal which was, in my opinion, not legally justified. In his Honour's view the resolution for the making of that levy was without force or effect, and the whole of the proceedings therefore assumed in his mind the character of an attempt to enforce an illegal imposition. This again must have affected - and, if his Honour's view had been correct, rightly affected - the final assessment of damages. (at p83)
77. The above considerations are alone sufficient to justify this Court in reviewing the assessment and to require the making of a substantial reduction in the amount awarded. But there are certain other considerations which, to my mind, lead to the conclusion that no sum in the vicinity of 2500 pounds can be justified. The events of February and March 1958 cannot be viewed in isolation, nor would I suggest that the learned Chief Justice so looked at them, but I think that he attached insufficient importance to surrounding circumstances as a whole. This is not a simple case of a large body of men obstructing, with violence and threats of violence and insult, the progress of two innocent persons to a place where they have a right to go. The Hurseys no doubt thought that they were defending an important principle. But the members of the union generally were not actuated by mere personal hostility to the Hurseys. They for their part thought no doubt that they were defending two important principles - majority rule and a monopoly of waterside work for members of the federation. I think that Healy thought (perhaps rightly) that the intention of the Act of 1956 was to give that monopoly. In fact the Act omitted to deal with the case of a waterside worker who was a member of the federation when he became registered but subsequently ceased to be a member, but the monopoly was, in effect, given by Port Order No. 38 of 1948. If you commit a wrongful act, it is no excuse to say that you are defending a "principle", but, when it is a matter of exemplary damages, motives may be matters of importance. In this connexion it is also not to be forgotten that the Hurseys knew, at any rate after the first two or three days, that they would be met by the "human barrier" if they attempted to reach their ship. Again it is, of course, no defence that a plaintiff "came to the nuisance", but again, when it is a matter of exemplary damages, and when insults and threats are stressed so strongly as aggravating elements, it can hardly be irrelevant that the plaintiffs voluntarily placed themselves "within range" day after day. Healy said that he expected them to "stay away" when once they realized what the attitude of the men towards them was. (at p84)
78. Again, the conduct of the plaintiffs - or of F.J. Hursey, who must be taken in these matters to have represented his son as well as himself - was, before the events actually in question happened, in some respects provocative and perhaps even calculated to cast doubts on their good faith. His Honour has found that F. J. Hursey on several occasions announced that they would "split the union from top to bottom". This was not pouring oil on troubled waters. When Pelham (who was justified in originally refusing to take the contributions without the levy) in September 1957, with the authority of the executive and of a general meeting, though actually in breach of r. 23 (b), offered to accept from the Hurseys payment of the annual contributions and of death levies without the "political" levy, they said that they would have to get legal advice. Why should they want legal advice? More than a month later they said that they would pay only an amount which, on any view, was less than they were bound to pay. Some months earlier F. J. Hursey had said that they were "pledged" not to pay the "political" levy, and they had refused an option (which again involved stepping outside the rules) to pay the amount of that levy to any political party they chose. On the other hand, it seems to me that all through 1957 - although some petty and almost childishly vindictive acts occurred - the union officially showed a good deal of forbearance towards the Hurseys. The levy was originally payable on 12th November 1956. On 1st May 1957 (immediately after the "Empire Star" incident) a branch resolution for their expulsion was passed at a stop-work meeting, but this was disapproved by the federal body on the ground that the Hurseys had not been heard in their defence. The two incidents mentioned above show that the officials of the branch were anxious for a peaceful settlement of the whole business. They seem to have discussed paying the levy themselves. But by that time the Hurseys were not even willing to pay the full amount of their contributions. Finally, as late as January 1958, when they had really ceased to be members of the union, Healy gave them a week in which to pay, and, when payment was not made, rightly (as I think) declared that they were no longer members. I do not see how he could have done otherwise without abandoning a position which he believed to be legally sound, and which, as I think, was legally sound. The inevitable consequence was, of course, that unionists would not work with the Hurseys, but, up to this point at any rate, the impression given by the whole story is that the union was seeking to avoid trouble so far as it could do so without actually conceding that its rules were not binding on its members. (at p85)
79. Having regard to all the matters which I have mentioned, I am of opinion that the damages awarded should be reduced to 1000 pounds in the case of each plaintiff. (at p85)
80. The third action may now be disposed of in a few words. Although the Hurseys ceased to be members of the federation on 31st December 1957, they continued to be registered waterside workers under the Stevedoring Industry Act 1956. The plaintiffs and the other members of the federation whom they represented were entitled to preference in employment over the Hurseys so long as Port Order No. 38 of 1948 remained in force. But they had no claim to preference otherwise than under that order. That order ceased to be in force on 17th June 1958. The third action was not commenced until 8th July 1958. It was, therefore, rightly dismissed. (at p85)
81. For the reasons which I have given I am of opinion that the appeals in the first two cases should be allowed, and that the appeal in the third case should be dismissed. With regard to costs, the only difficulty that arises is, I think, in relation to the appeal in the second action. The appellants have succeeded in obtaining the discharge of the two declarations made, and they have also succeeded in obtaining a substantial reduction in the amount of damages. On the other hand, the argument on the subject-matter of the declarations lay in a fairly narrow compass, and a large part of the total argument was devoted to the question of the liability of the defendants, and in particular of the federation, to pay damages. On this question of liability the plaintiffs have succeeded. On the whole, I think that the fairest order to make will be that the appellants have one half of their costs of the appeal, and I think that the following orders should be made. (at p85)
82. Action No. 1363 of 1957. Appeal allowed with costs. Discharge judgment of Supreme Court of Tasmania. In lieu thereof order that action be dismissed with costs. (at p85)
83. Action No. 78 of 1958. Appeal allowed. Order that respondents pay one half of appellants' costs of appeal. Discharge so much of judgment of Supreme Court of Tasmania as declares that the plaintiffs are and were at all material times members of the Waterside Workers' Federation and as declares that Port Order No. 38 of 1948 ceased to be in force on commencement of Stevedoring Industry Act 1956. Vary judgment for damages by substituting 1000 pounds for 2500 pounds. (at p86)
84. Action No. 496 of 1958. Appeal dismissed with costs. (at p86)
KITTO J. I have reached the same conclusion as my brother Fullagar on every point in this case. I agree that the orders outlined by his Honour should be made, for the reasons which he has given. (at p86)
TAYLOR J. These proceedings are concerned with the issues in three matters which were instituted in and disposed of by the Supreme Court of Tasmania. The first of them (No. 1363 of 1957) was instituted by the issue of a writ on 22nd October 1957 and by the statement of claim subsequently filed the plaintiff, Francis John Hursey, claimed a declaration that a levy of ten shillings per head which the defendant organization, the Waterside Workers' Federation of Australia, purported to impose upon its members by resolution of the Hobart branch on 2nd October 1956, was beyond the powers of the organization. The other defendants in this suit were the Hobart branch of the federation and two individual defendants, Stanley Charles Williams and the secretary of the Hobart branch, Cyril Pelham. Additionally to the declaration already mentioned the plaintiff sought an injunction restraining the defendants from excluding him from membership of the organization and he also sought to recover damages against both the individual defendants and the Hobart branch of the federation. This action was dismissed in so far as it sought relief against the individual defendants but the plaintiff succeeded in obtaining a declaration by the Chief Justice of the Supreme Court that "the resolution imposing the political levy of ten shillings was invalid upon the ground that it was not expressly or impliedly authorised by the federal or branch rules" of the organization. The defendants in the suit now seek special leave to appeal from that part of the order constituted by this declaration. (at p86)
2. The second matter which came before the learned Chief Justice was a suit instituted by the said Francis John Hursey and his son Denis Victor Alexander Hursey on 18th February 1958. The writ was addressed to the Hobart branch of the Waterside Workers' Federation, the Waterside Workers' Federation of Australia and to a number of named individuals each of whom was a member of that organization. In this suit the plaintiffs claimed a declaration that the resolution of 2nd October 1956 was ultra vires, a declaration that the exclusion of the plaintiffs from the rights of membership of the branch and organization was illegal and invalid and an injunction to restrain the defendant organization and branch from expelling or excluding the plaintiffs from membership. In addition, the plaintiffs claimed to recover damages based upon the matters alleged in par. 5 of the statement of claim. It is unnecessary at this stage to refer in detail to the particular matters alleged and it is sufficient to indicate that in the main the claim for damages rested upon allegations of an actionable conspiracy to prevent the plaintiffs from engaging in their ordinary occupation of registered waterside workers. In this suit each of the plaintiffs succeeded in obtaining an award of damages in the sum of 2500 pounds and this appeal is now brought as of right in an attempt to set aside the judgment which they obtained. (at p87)
3. The third matter was instituted by the issue of a writ on 8th July 1958. The plaintiffs in this matter were a number of individual members of the Waterside Workers' Federation of Australia and they purported to bring the suit on behalf of themselves and all other members of the federation offering themselves in the port of Hobart for employment as registered waterside workers and they claimed against the defendant, the Australian Stevedoring Industry Authority, declarations to the effect that members of the federation were entitled to engage in employment as waterside workers in the port of Hobart in preference or priority to the defendants F. J. Hursey and D. V. A. Hursey and that it was contrary to law that those individual defendants should be offered employment as registered waterside workers whilst members of the federation as registered waterside workers were available and offering "to perform the same". Consequentially upon the making of such declarations an injunction was sought to restrain the Authority from offering causing or permitting employment to be offered to the individual defendants in stevedoring operations whilst the plaintiffs or any other members of the federation were available to perform such operations. In the result the learned Chief Justice held that the individual defendants were at all material times members of the Waterside Workers' Federation and dismissed the suit. From the order dismissing the suit an appeal was brought to the Full Court of the Supreme Court of Tasmania and on 14th November 1958 the Full Court decided that the appeal raised for consideration an inter se question within the meaning of s. 74 of the Constitution and held that by virtue of s. 40A of the Judiciary Act the matter was automatically removed to the High Court. (at p87)
4. All three matters were listed together in this Court and during the hearing of the appeal in the second matter argument was heard both on the application for special leave to appeal in the first matter and upon the question whether the appeal to the Full Court of Tasmania in the third matter had been removed into this Court by force of s. 40A of the Judiciary Act. During the course of the hearing the substance of all three matters was discussed at length and many questions were raised for our consideration. Not the least of these was the question whether the Hobart branch, either as an unincorporated association or as an integral part of the federation itself, had by virtue of its rules authority to impose what the parties have referred to as the "political levy" and since this question is one which is common to all three matters it is convenient to proceed to a consideration of this important problem at an early stage. It should, however, be mentioned in passing that the answer to this question is by no means conclusive of the second and third suits for whether or not the Hurseys ceased at some time or other to be members of the federation they remained at all material times registered waterside workers for the purposes of the Stevedoring Industry Act 1956. (at p88)
5. Before considering the validity of the political levy, however, it is desirable to dispose of one or two other questions which have been raised. The first of these is concerned with s. 147 of the Conciliation and Arbitration Act. This section provides that: "Unless the contrary intention appears in the Act, no organization or member of an organization shall be liable to be sued, or to be proceeded against for a pecuniary penalty, except in the Court", (i.e. The Commonwealth Industrial Court) "for any act or omission in respect of which the Court has jurisdiction". It was argued that upon its true construction the provisions of this section deprived the Supreme Court of jurisdiction to entertain the first and second suits. But in answer to this submission it is sufficient to say that the language of the section is not appropriate to produce the result for which the federation contends. The provision merely purports to make the jurisdiction of the Commonwealth Industrial Court exclusive so far as it extends to proceedings of the specified character and it does not purport to oust the jurisdiction of other courts generally in relation to suits against "organizations" or members of organizations. The first and second actions are not such as might have been entertained by the Commonwealth Industrial Court and it is of no consequence that in disposing of them the Supreme Court was called upon to consider some questions which, in appropriate proceedings, might have been raised before the Commonwealth Industrial Court. I should add that if the section upon its true construction purported to oust the jurisdiction of other courts in all cases in which organizations or members of organizations are sued it would, quite clearly, exceed the legislative power of the Commonwealth Parliament. (at p89)
6. A further question which was raised and which should be disposed of at this stage relates to the character and standing of the Hobart branch of the federation. As appears the branch was made a defendant in the first and second actions and much of the evidence was concerned with the actions of officers and the committee of management of the branch and also with the conduct of members of the branch. It is spoken of as if it were an unincorporated association with an existence independent of the federation and, for this reason, substantially, it was thought that it might properly be named as a defendant pursuant to O. LIII rr. 13 et. seq. of the Supreme Court Rules. For much the same reason an application to dismiss the branch from the proceedings was unsuccessful. But in my view the branch is not, and was not, an "unincorporated society, fellowship, club or association" within the meaning of the rules and it was wrongly named as a defendant. The rules present a number of difficulties but my reason for this conclusion may be shortly stated. It does not appear from the facts before us when the Hobart branch came into existence or whether it, or any predecessor, was originally, or at any other time organized as a trades union or any other form of association. But it would be unreasonable to suppose that the branch, as such, is, or ever was, so organized. Examination of its rules and the relationship which it bears to the federation clearly reveals that it exists as part only of the larger organization and not as an independent association organized to serve the common interests of the so-called branch members. I say "so-called" branch members because they are at one and the same time members of the federation which, though it may comprise a number of branches, is the corporate body of which all the branch members are "corporators". Likewise, the branch rules are not designed as the rules of an association with an independent existence; they are but "branch" rules which, subordinately to the federal rules of the federation which bind all members, regulate branch activities and proceedings and the relations of each branch with the federal body. (at p89)
7. This means, of course, that the Hobart branch was wrongly joined as a party to the first and second actions. It also means that the question of the validity of the political levy must be approached on the basis that the organization which purported to impose it was the federation itself though in doing this it operated throught the medium of the Hobart branch and its rules. The question, therefore, raises for our consideration the meaning of the branch rules though in reaching our conclusion on this point it is necessary to have regard to the fact that the levy was not made by an association the activities of which were confined to Tasmania; on the contrary it must be taken to have been made by an organization with members throughout the Commonwealth though it was levied only upon those members who were also members of the Hobart branch. (at p90)
8. The facts concerning the making of the political levy are as follow. In October 1956 the two plaintiffs in the second matter (F. J. and D. V. A. Hursey) were members of the Hobart branch of the federation and, pursuant to the Stevedoring Industry Act, they were "registered waterside workers". But during that month the so-called "political levy" was imposed upon members of the branch. The genesis of the levy is to be found in a recommendation of the committee of management of the Hobart branch. What happened was that on the 25th September 1956 the committee resolved "That this executive recommends a 10s. 0d. levy be struck to assist Labor Party in the Election Campaign". This resolution was for the purpose of assisting the political party known as the Australian Labor Party in its campaign during the election of members of the Tasmanian House of Assembly which was to be held during the month of November 1956. After this recommendation had been agreed to the secretary notified the members of the branch that a stop-work meeting would be held on 4th October 1956 for the purpose of considering the proposal. Rule 35 of the branch rules provides that "stop work meetings" of the branch "shall constitute the highest authority of the Branch, and it shall be competent to deal with any question". But, for reasons which it is not material to mention, it became apparent on 1st October 1956 that 4th October 1956 would not be a suitable date. Thereupon notice of a stop-work meeting was then given for the next day, 2nd October 1956. This notice was given by an announcement which appeared that day on a blackboard situated at the "pick-up" centre in the building in Hobart occupied by the Australian Stevedoring Authority and notice in this form was, according to the learned Chief Justice, "in accordance with a practice that had been followed for many years". About six hundred members of the branch attended the meeting and after other business had been disposed of the matter of the executive's recommendation came up for discussion. After some discussion and the rejection of an amendment it was resolved that the recommendation be accepted. Subsequently, on 11th October 1956, the federal body, purporting to act under r. 26 (f) of the federal rules, endorsed the levy and notice that the levy was payable was then given by a further announcement on the blackboard at the "pick-up" centre. (at p91)
9. For the defendants it was asserted that the levy was within the ambit of the objects specified in the branch rules. In particular, rr. 3 (a) and 3 (1) were relied upon. The object declared by the former rule was "To raise a fund by entrance fees and contributions, fines, levies and interest on capital for the following objects: (a) To regulate and protect the wages and conditions of labour, and to improve and foster the best interests of its members". Sub-rule (1) expressly declared as an object the imposition of levies or fines upon members in order to carry out the objects of the branch or for such other purpose as the committee of the branch might decide or direct. The rules are awkwardly framed but it sufficiently appears that they purport to authorize the imposition of levies in order to raise funds for the declared objects of the branch. (at p91)
10. Rule 26 (f) of rules of the federal body provides that each branch may, subject to the consent of the council, by vote of the majority of members at a duly summoned special meeting called for the purpose, "in accordance with the Branch Rules, impose levies or increase the amount of annual contributions sufficient to recoup the funds of the Branch so as to correspond with Branch expenditure". There may be difficulty in seeing how this rule could apply to the levy which had been resolved upon by the members of the Hobart branch but whether it did or not is of little, if any, consequence in the case. (at p91)
11. The broad question which arises upon these facts is whether the branch could lawfully make a levy upon its members for the specified purpose, that is, "to assist Labour Party in the Election Campaign", and it may not be out of place to observe at the outset that if the problem to be solved was simply whether or not the rules were sufficiently comprehensive to authorize what was in fact done little difficulty might be experienced in solving it. The rules are framed in very general terms and one might, perhaps, conclude that the making of a political levy for the specified purpose could reasonably be regarded as one method of pursuing the branch's object of regulating and protecting "the wages and conditions of labour" and of fostering the "best interests" of its members. But unfortunately the question is not capable of such a simple solution. Considerations of this character were of the essence of the decision in Steele v. South Wales Miners Federation (1907) 1 KB 361 but that case must be taken to have been overruled three years later by the decision in Amalgamated Society of Railway Servants v. Osborne (1910) AC 87 . The fact is that trades unionism has had a long and complex history and it is beyond doubt that in England, until the passing of the Trade Union Act 1871, a trade union with the general objects and powers of the Hobart branch, or of the federation, would have been characterized as an unlawful association (see Trade Union Law - N. A. Citrine (1950) pp. 9, 10, Hilton v. Eckersley (1855) 6 El & Bl, at p 66 (119 ER, at p 789) , Hornby v. Close (1867) LR 2 QB 153 and Russell v. Amalgamated Society of Carpenters and Joiners (1912) AC 421 ) though its mere creation and existence would not have offended against the criminal law: R. v. Stainer (1870) LR 1 CCR 230 . But whatever significance the expression "unlawful" had in this context much of it disappeared upon the passage of the Act of 1871. By that Act, as amended by the Trade Unions Amendment Act 1876, the term "trade union" was defined to mean "any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade". Thereafter it provided that the purposes of any trade union should, not by reason merely that they were in restraint of trade, be unlawful so as to render void any agreement or trust and that they should not, by reason of the same circumstance, be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy. These provisions of the English legislation were of critical importance in Osborne's Case (1910) AC 87 . In that case the House of Lords was concerned with a rule of a trade union registered under the Acts in question which purported to authorize the exaction of contributions from its members for the purpose of securing Parliamentary representation and their Lordships were unanimously of the opinion that the rule was invalid. (at p92)
12. The case was not concerned with a trade union which had achieved registration after the formulation of the rule which purported to authorize the contributions in question. Their Lordships were not, therefore, called upon to decide whether the registration of the trade union was itself null and void but were asked merely to decide whether a registered trade union could validly formulate such a rule. In substance a majority of their Lordships answered this question by saying that the object declared by the rule in question was so completely foreign to the concept of a trade union as defined by the Acts of 1871 and 1876 that the attempt to formulate it was ultra vires. In other words, they said that the terms of the definition of "trade union" in the Acts were exhaustive and, in effect, that an organization with such an object could not answer the statutory description. They did not, however, say - though it would appear to follow from this proposition - that an organization in the form of a trade union with such an object could not register under the Act. But whether or not their Lordships meant to go so far is not of great importance for, even if the existence of a rule authorizing expenditure of some part of its funds for political purposes meant that a trade union was outside the Act and could not achieve registration and, therefore, that it must remain "unlawful" in the sense initially indicated, the only consequence which is material for present purposes is that it could not seek the aid of the Courts for the purpose of enforcing its rules. In this respect it was, as will appear, in no worse position than a registered trade union. (at p93)
13. In 1913, the effect of this decision was, to a large extent, abrogated by the Trade Union Act of that year. By this Act it became possible in England for trade unions to apply their funds for any lawful objects or purposes for the time being authorized under their respective constitutions and, within prescribed limits and subject to specified conditions, they were authorized to apply their funds in the furtherance of certain specified political objects. The political objects specified were the payment of any expenses incurred either directly or indirectly by a candidate or prospective candidate for election to Parliament or to any public office, the holding of any meeting or the distribution of any literature or documents in support of any such candidate or prospective candidate, the maintenance of any person who should be a member of Parliament or who should hold a public office, activities in connexion with the registration of electors or the selection of a candidate for Parliament or any public office, the holding of political meetings of any kind and the distribution of political literature or political documents of any kind. But the funds of a trade union were not to be so applied unless the furtherance of those objects had been approved as an object of the union by a resolution for the time being in force and unless approved rules were in force providing, firstly, that any payments in furtherance of those objects should be made out of a separate fund (the "political fund" of the union) and, secondly, for the exemption of any member of the union from any obligation to contribute to such a fund if he should give notice in accordance with the Act of his objection to contribute. Again the rules were required to provide that a member exempt from the obligation to contribute to the political fund should not be excluded from any benefits of the union, or placed in any respect either directly or indirectly under any disability or at any disadvantage as compared with other members of the union by reason of his being so exempt and, further, that contribution to the political fund should not be made a condition for admission to the union. (at p94)
14. The provisions of the 1913 Act accepted implicitly the decision in Osborne's Case (1910) AC 87 and to me it seems quite clear that according to English law from that year onwards a trade union with objects and powers similar to those of the federation could not raise money for political purposes by a general levy unconditionally exacted from its members. It is worthy of note that in the year preceding the enactment of the 1913 Act the Court of Session in Scotland held that the broad principle upon which Osborne's Case (1910) AC 87 was decided applied with equal force to both registered and unregistered trade unions (Wilson v. Scottish Typographical Association (1912) 1 SC 534 . But even if there was reason to doubt the validity of the grounds upon which that case was ultimately decided the matter was put beyond question by the provisions of the 1913 Act which applied equally to registered and unregistered trade unions. (at p94)
15. The effect of Osborne's Case (1910) AC 87 , however, extended beyond Scotland and England. First of all it may be noticed that when the Commonwealth Conciliation and Arbitration Act was enacted in 1904 s. 55 contained a proviso that no registered organization should be entitled to any declaration of preference by the court when and so long as its rules or other binding decisions should permit the application of its funds to political purposes or require its members to do anything of a political character. This section was, of course, enacted some years before Osborne's Case (1910) AC 87 declared the law and the proviso was repealed by the Commonwealth Conciliation and Arbitration Act 1910 which was assented to on 29th August 1910, that is to say, approximately nine months after the decision in Osborne's Case (1910) AC 87 had been given. But the provisions of s. 172A of the Commonwealth Electoral Act 1911, which was inserted by amendment in December of the following year, provide grounds for thinking that the repeal of the proviso at this time ought not to be regarded as significant. Then in 1914, (in O'Sullivan v. Finch (1914) 1 AR (NSW) 279 ) Heydon J., sitting as a member of the Arbitration Court of New South Wales, held that a levy made by the Railway Workers' and General Labourers' Association for the purpose of assisting in the establishment of a political newspaper was invalid. In the course of his reasons the learned judge expressed the view that Osborne's Case (1910) AC 87 was decisive of the matter and, accordingly, he declared the levy to be invalid. Subsequently in 1918 Harvey J., in Allen v. Gorton (1918) 18 SR (NSW) 202; 35 WN 69 applied the principles of Osborne's Case (1910) AC 87 in declaring ultra vires a resolution that a payment of 100 pounds should be made out of the funds of a registered trade union in order to aid the "anti-conscription" campaign of that year. These decisions, no doubt, led to the enactment in New South Wales of Pt. VIIA of the Industrial Arbitration (Amendment) Act 1918. By s. 52A of that Act a trade union was declared to have power to apply and use the moneys and other property of the union for and in connexion with any lawful object or purpose for the time being authorized by its rules, and without limiting the generality of this provision, it authorized the application of money and property to the furtherance of political objects so long as rules of the union were in force providing (1910) AC 87 that any payments in the furtherance of such objects should be made out of a separate fund; (2) that contribution to such separate fund should not be a condition of admission to or membership of the said union; and (3) that a member who should not contribute to such separate fund should not be excluded from any benefits of the union or placed under any disability or at any disadvantage as compared with other members of the union by reason of his failure to so contribute. The expression "political objects" was defined to mean the payment of any expenditure incurred either directly or indirectly by a candidate or prospective candidate for election to Parliament or to any public office, before, during, or after the election in connexion with his candidature or election; or the holding of any meeting for distribution of any literature or documents in support of any such candidate or prospective candidate; or the maintenance of any person who is a member of Parliament or who holds a public office; or the registration of electors, or the selection of a candidate for Parliament or any public office; or the holding of political meetings of any kind or the distribution of political literature or political documents of any kind . . . or the maintenance and publication of a newspaper other than a non-political trades journal. These provisions were repealed in 1926 by the Industrial Arbitration (Amendment) Act of that year but were re-enacted again as s. 107 of the Industrial Arbitration Act 1940. In the meantime the Trade Union Act of 1915 had been passed in Queensland, and this Act defined the statutory objects of a trade union to include among other things "the establishment and maintenance of newspapers or political objects as herein defined if combined with all or any of the aforesaid objects". The "aforesaid objects" were the fundamental objects commonly to be found in the constitution of a trade union and the expression "political objects" was, by definition, limited to much the same matters as those specified in the English Act of 1913. (at p96)
16. It will be observed that these provisions were intended to serve much the same purpose in Queensland and New South Wales as the provisions of the Trade Union Act 1913 were designed to serve in England, that is to say, it was desired to make what was thought to be appropriate provision with respect to the political use of trade union funds having regard to the law as declared by Osborne's Case (1910) AC 87 . No other State of the Commonwealth has, however, enacted legislation of this character but, comparatively recently, Dwyer C.J., in Western Australia denied to a trade union registered under the Trade Union Act of that State power to raise funds for political purpose by levies on its members: True v. Australian Coal and Shale Employees' Federation Union of Workers (W. A.) (1949) 51 WALR 73 . (at p96)
17. Consideration of what has been said makes it quite clear that Osborne's Case (1910) AC 87 has been acted upon both judicially and legislatively in this country during a period extending over many years. It has consistently been accepted as authority for the proposition that, except pursuant to statutory dispensation in that behalf, a registered trade union may not impose compulsory levies for so-called political purposes. Osborne's Case (1910) AC 87 declared the law on this point; that decision was explicitly followed in New South Wales in 1914 and 1918 and in Western Australia in 1949. The Queensland legislation of 1915 and that of the New South Wales Parliament in 1918 and 1940 was enacted on the basis that that decision conclusively declared the existing state of the law in those States, and the remaining four States of the Commonwealth have taken no steps to abrogate or modify its effect. It would indeed be strange if, at this stage, we were to hold that in the States of the Commonwealth other than New South Wales and Queensland trade unions are at liberty to make levies upon their members for general political purposes and to require payment thereof as a condition of membership, for the New South Wales provisions of 1918 and 1940 and the Queensland legislation of 1915 were quite obviously ameliorating provisions intended to extend the permissible powers of trades unions. Indeed, so to hold would, in effect, reverse the result which this legislation was designed to bring about. That being so, if we were required to consider the matter independently of the fact that the federation is an organization registered under the Conciliation and Arbitration Act of the Commonwealth, considerable difficulty, at the least, would be experienced in construing the very general words of the relevant rules so as to justify the making of the "political levy". (at p97)
18. It is, therefore, necessary to consider whether the fact that the federation became registered under the Commonwealth Act makes any difference. Section 132 of the Act provides, inter alia, that any association of not less than one hundred employees in or in connexion with an industry, together with other persons, whether employees in the industry or not, who are officers of the association and have been admitted as members and any association of not less than one hundred employees engaged in an industrial pursuit or pursuits, together with other persons, whether employees engaged in an industrial pursuit or pursuits or not, who are officers of the association and have been admitted as members may be registered in the manner prescribed as an organization. Under the existing legislation the general conditions to be complied with by associations applying for registration are as may be prescribed, though s. 133 provides that, in addition to other conditions which must be observed, the rules of any association seeking registration must make specified provision with respect to the election of officers. Until 1956 the forerunner of s. 132 specified that the conditions to be complied with by an association seeking registration should be as set out in schedule B to the Act. Paragraph I of schedule B contained a number of provisions with which the rules of the association were bound to conform. These rules related to the election of members, the powers and duties of the committee and of officers, the manner of summoning meetings of members and a number of other matters dealing with the general management of the affairs of the association. Thereafter, par. II contained a provision that the rules of an association, "may also provide for any other matter not contrary to law". The statutory provision and the schedule were repealed in 1956 but like conditions are now to be found in Pt. V of the Conciliation and Arbitration Regulations. (at p97)
19. As appears formation of an association is a prerequisite to registration and the provision that the rules of an association "may also provide for any other matter not contrary to law" was seized upon for the purpose of founding the contention that the rules of the Hobart branch ought not to be so construed as to authorize the imposition of "political levies". So construed, it was said, the rules would make provision for a matter contrary to law. There may be some doubt, however, whether the critical expression has any relevance to the present inquiry (cf. Ohinemura Mines and Batteries Employees' Industrial Union of Workers v. Registrar of Industrial Unions (1917) NZLR 829 ; but see Australian Workers' Union v. Coles (1917) VLR 332 and Australian Tramway Employees' Association v. Batten (1930) VLR 130 ) but, even if it has, the answer is made that a rule conferring such authority is not contrary to law and, since the rules of the association were, in terms, wide enough to confer such authority full effect should be given to them. The problem which these contentions raise must, of course, be considered in its proper perspective. The question is not whether a rule of a trade union purporting to confer such a power is, by virtue of State law or by virtue of the laws of some States, unlawful at the present time. What we are concerned with is whether a rule authorizing the making of such a levy made provision for a "matter not contrary to law" at the time when the federation applied for registration as an organization. So understood the inquiry does not suggest, as was contended, that State law can operate to circumscribe the powers of an organization brought into existence by Commonwealth law. On the contrary, it is concerned with the question whether an association of employees with such a rule would satisfy the requirements of the Commonwealth Act with respect to registration. If not, there would be strong grounds for constraining the very general words of the rules in question. This does not, of course, deny that even if the initial problem be resolved favourably to the federation there may yet be grounds which require that the language of the rules cannot be understood in its widest and most general sense. (at p98)
20. We have been told little, if anything, concerning the formation of the federation or concerning the form of its rules at the time when it became registered. But it may be safe to assume that this occurred before 1915: See Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (1914) 8 CAR 53 . If this assumption be correct it became registered before the Queensland Act of 1915 and the New South Wales Act of 1918 were enacted so that there was not then in force any State law positively declaring it to be unlawful for a trade union to expend its funds for political purposes. The federation, no doubt, was formed on a Commonwealth-wide basis but this does not mean that, for the purposes of State laws then in existence, it failed to answer the description of a trade union in any State where a branch was established. As such, the question whether its objects were unlawful in any State involved a consideration of State law. But each State had substantially adopted the provisions of ss. 2, 3 and 4 of the Trade Union Act 1871 (Imp.) to which a brief reference has already been made. This legislation made it clear that the purposes of any trade union should not, by reason merely that they were in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise (s. 2). Likewise, it provided that the purposes of any trade union should not, by reason merely that they were in restraint of trade, be unlawful so as to render void or voidable any agreement or trust (s. 3). By s. 4 it was provided that nothing in the Act should enable any court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the agreements thereinafter specified. But nothing in the section was to be deemed to constitute any of the specified agreements unlawful. Reference to these provisions indicates that, at the relevant time, a rule relating to any of the several matters specified in s. 4 stood in much the same position as a rule authorizing expenditure by a trade union for political purposes as a means of advancing its objects. That section related to agreements between members of a trade union concerning the conditions on which they might be employed, agreements for the payment by any person of any subscription or penalty to a union, agreements relating to sick pay or strike pay and a number of other matters. Neither in the case of rules - or "agreements" - with respect to these matters nor in the case of a rule authorizing expenditure for political purposes could the assistance of the courts be invoked as a means of enforcement. But in neither case were such rules "unlawful" in any other sense. The question then is whether the fact that a rule authorizing the imposition of a levy to be expended on political purposes in aid of the objects of an unregistered trade union was not enforceable at law precludes the conclusion that, at the relevant time, such a rule made provision for a matter "not contrary to law" within the meaning of that expression in the Conciliation and Arbitration Act. In my view it does not for the expression "contrary to law" is by no means synonymous with "not enforceable at law". Indeed to hold otherwise would compel us also to say that unregistered trade unions having a rule, or rules, dealing with any of the matters specified in s. 4 could not have obtained registration as an organization under the Commonwealth Act. Clearly no such result was intended or produced and the attack which is made upon the levy on this ground must fail. Some confirmation for this conclusion may, perhaps, be found in the provisions of s. 34 of the Commonwealth Electoral Act 1911. This section inserted in Pt. XIV of the principal Act s. 172A and 172B. The former section imposed upon trades unions and organizations, in common with certain other bodies, which had expended any money or incurred any expense on behalf of or in the interests of any candidate or political party or for specified political purposes, the obligation to make a return of such expenditure to the Commonwealth Electoral Officer. Such a provision, it seems to me, assumed that expenditure of this character by a trade union or an organization was not unlawful. (at p100)
21. These considerations do not, however, entirely solve the problem of the construction of the rules in question for there is considerable force in the assertion that a power to impose compulsory levies for general political purposes - with the necessary result that payment is a condition of continued membership - ought not to be taken as created by general words authorizing levies for the purposes of carrying out the general objects of a trade union. Such associations, of course, represent their members and the essence of their functions is to protect and further the industrial interests of their members. But, though the latter have a common interest in the betterment of their industrial conditions and relations, it by no means follows that they have common political interests. Indeed, it is said that the present case provides a classic illustration of the truth of this proposition. With this in mind it is then contended that if the widest effect be given to the general words of the relevant rules the result will be to convert a power to raise funds to protect and foster the industrial interests of members into a power to raise funds simply for the pursuit of political ends. This, however, is an overstatement for the use of the power for political ends alone would be to overstep the authority conferred by the rules. It must, I think, be conceded that assistance to one political party or another may reasonably be thought to be a legitimate method of serving the industrial interests of the members of a trade union and, that being so, it is impossible to deny to the rules in question the operation for which the Federation contends. I should add that I am not unmindful of the forceful reasons which led Burbury C.J. to the opposite conclusion but, in my view, the contention that the "political levy" was beyond power must fail. (at p100)
22. A further reason was advanced for asserting that the Hurseys' refusal to pay the levy did not and could not result in forfeiture of their membership of the federation. Portion of r. 35 of the branch rules has already been quoted but it has not yet been pointed out that the rules make some, though somewhat indefinite, provision with respect to notice of stop-work meetings. Rule 34A provides: "All members of the branch must attend all special and stop-work meetings provided same have been duly advertised or notice has been posted on the notice board at the Secretary's Office". This rule does not prescribe any length of notice but rule 35 provides: "Stop-work meetings of the branch shall constitute the highest authority of the branch and it shall be competent to deal with any question or alter any of the Branch Rules by a three-fifths majority provided always the prescribed notice of one (1) week prior to the holding of the meeting has been handed to the President". The circumstances in which the stop-work meeting was called have already been mentioned and it is clear that if the condition prescribed by the italicized proviso applies to all stop-work meetings and not only to those called to consider alterations to the rules, the meeting was informal. However, the learned Chief Justice considered that this was a mere irregularity and that it was a matter which might be cured by a vote of a majority of the branch at a properly convened meeting. Then upon the principles discussed in Cotter v. National Union of Seamen (1929) 2 Ch 58 and by Latham C.J. in Stevens v. Keogh [1946] HCA 16; (1946) 72 CLR 1, at p 13 he expressed the view that it would not be proper to interfere on this ground alone. But where the matter complained of is not merely the non-observance of the rules of a corporation or an association in the management of its domestic affairs but, on the other hand, an alleged consequential forfeiture of membership those principles have no application (cf. Labouchere v. Earl of Wharncliffe (1879) 13 Ch D 346 ). I agree, however, with the other members of the Court that, upon its true construction, the proviso applies only to meetings called to consider alterations to the branch rules and this sufficiently answers the objection that the prescribed notice of the stop-work meeting was not given. (at p101)
23. A further ground upon which it is asserted that the Hurseys forfeited their membership rights was that they refused to pay their membership contributions for the year 1957 within the time specified by the rules. A determination of this issue would involve consideration of a number of questions, both of fact and law, but it is unnecessary to pursue them for the "political levy" was validly made and the consistent failure of the Hurseys to pay it was, alone, sufficient to bring them within the operation of those rules of the federation which are concerned with the forfeiture of membership for non-payment of contributions and levies. The relevant rules are rr. 19 (a) (ii) and 20 (b). The latter rule provides that "Every member of this Branch who has not paid his contribution for the current year on or before the 31st March shall be deemed to be unfinancial, and his number shall be withdrawn from the roster list". (cf. Federal rule 26 (b)). The consequences of becoming "unfinancial" are prescribed by the next succeeding sub-rule. It is in the following terms: "Any member being in arrears for contributions, fines, fees, levies or dues shall be unfinancial and shall forfeit all rights of membership and shall be liable to have proceedings taken against him under the provisions of the Commonwealth Conciliation and Arbitration Act or sued in any Court of competent jurisdiction for the recovery of same". But apparently, this sub-rule does not mean that the result of failure to pay a levy on the due date is cessation, as distinct from suspension, of membership. Sub-rule (a) (ii) of r. 19 - which deals with "Cessation of Membership" - provides that "Any member who for twelve calendar months commencing in January of each year has during that period . . . Failed to pay any contribution, fees, fines, levies or dues as and when they became payable in that year under the rules of the Organization or of his Branch . . . . Shall at the end of such twelve calendar months cease to be a member of the Organization" This rule presents difficulties of its own but it sufficiently appears that mere failure to pay at some particular time during the specified period is not sufficient to effect a forfeiture of membership. The "failure" contemplated by the rule, it seems, is certainly not less than an initial failure to pay before the due date - with its consequent suspension of membership - followed by a continuance of that failure until the end of a complete calendar year. This means that the Hurseys ceased to be members of the federation at the end of 1957 and, accordingly, there is no point in pursuing the question whether, in the circumstances disclosed by the evidence, they failed to pay their membership contributions for that year and whether, by reason of such failure, they forfeited their rights of membership. (at p102)
24. This brings me to the question of what part, if any, the provisions of Port Order No. 38 of 1948 should play in resolving the issues between the parties. The relevant provision is cl. 15 which was in the following terms: "All Union labour to be utilised before recourse is made to non-Union labour, except in cases of men under penalty" and by cl. 1 the "scheme" carried into effect by the order was to apply "to all waterside workers (members of the Waterside Workers' Federation and non-Union members) and employers registered with the Waterside Employment Committee in the Port of Hobart". The order was promulgated pursuant to the Stevedoring Industry Act 1947 and was continued in force by the Stevedoring Act 1949. Then, in 1956, s. 6 (4) (a) of the Stevedoring Industry Act of that year provided that where an order continued in force by under or by virtue of the Stevedoring Industry Act 1949 was in force before the date of the commencement of the 1956 Act, the order should not cease to be in force by reason of the enactment of that Act. (at p103)
25. The provisions of cl. 15 were relied upon for more than one purpose in the proceedings in the Supreme Court. First of all they constituted the basis upon which, in the third suit, a claim was made for a declaration that the plaintiffs and all other members of the federation offering themselves for employment as waterside workers in stevedoring operations at the port of Hobart were entitled to employment in preference to the Hurseys. Secondly, the federation and the other defendants in the second suit asserted that the continued subsistence of the order, or alternatively, their bona fide belief that the order continued to have full force and effect at all material times, constituted some legal justification for the acts complained of by the plaintiffs. Finally it was said that the Hurseys were rostered for work in breach of the provisions of cl. 15, or, alternatively, that the defendants entertained a bona fide belief to that effect, and this was said to have an important bearing on the question of damages. (at p103)
26. For the Hurseys it was contended that the relevant provisions of the order were so inconsistent with the provisions of the 1956 Act with respect to the control and regulation of waterside labour in relation to stevedoring operations that the order must be taken to have ceased to have effect when that Act was passed. The learned Chief Justice assented to this proposition and, in reaching his conclusion, he adopted the reasoning which led Ashburner J., sitting as a presidential member of the Commonwealth Conciliation and Arbitration Commission, to hold that the provisions of the Act precluded the Commission from making an order for preference to union members in the employment of waterside workers for stevedoring operations. While there may be much to be said for this view it is unnecessary and, I should think, undesirable to express any final opinion on the point for it is of no real consequence in these proceedings whether the order survived the enactment of the 1956 Act or not. If, as I have said, the Hurseys remained members of the federation during 1957 its provisions had no relevance to the determination of the first suit and if, as I think is apparent, the order did not provide any legal justification for the matters complained of in the second suit and to which I shall refer presently, they may again be disregarded. And when it is seen that the order was expressly revoked more than a month before the third suit was commenced the foundation of the claims in those proceedings disappears. Finally the claim that the order continued to subsist during 1958, or, that the defendants in the second action believed that it did, is made in face of the pronouncement of Ashburner J. to which reference has just been made. This pronouncement rested upon the view that the 1956 Act "itself provides a scheme of preference to members of the Federation and lays down the limits of that preference" and, accordingly, that any extraneous prescription of preference would be inconsistent with the provisions of the Act. These views were contained in a judgment delivered by the Commission on 19th March 1958 and it would be idle to suppose that the federation and its officers were not aware that the assertion that the order remained in force was at variance with the grounds upon which Ashburner J. had rejected the application for an award for the preferential employment of members of the federation. (at p104)
27. The matters which remain for consideration relate to the question whether the evidence in the second suit established a good cause of action, or good causes of action, against the defendants and, if so, whether the amount of damages awarded to the plaintiffs was excessive. As already appears, however, the Hobart branch was wrongly joined as a defendant and the inquiry on this aspect of the matter may be prefaced by saying that the plaintiffs were not entitled to maintain their claims for damages against the branch as if it were a separate entity. Accordingly, the judgment against the branch cannot stand. (at p104)
28. The plaintiffs' statement of claim contains a complicated variety of allegations but it may be said that, substantially, they claim relief against the defendants for damages as the result of - (1) Acts done in pursuance of a combination "to procure and induce the breach of the plaintiffs' contracts of service" as registered waterside workers; (2) Acts done in pursuance of a combination with intent wrongfully to injure the plaintiffs; (3) Acts done pursuant to a combination to prevent the plaintiffs by unlawful means from presenting themselves for employment in stevedoring operations; (4) "Violence", "threats", "intimidation", "threats of boycott" and "discriminatory" action calculated to prevent and hinder the plaintiffs from offering for obtaining or accepting employment in the stevedoring operations; and (5) Assaults. (at p104)
29. The details of the means alleged to have been agreed upon in combination and used to prevent the plaintiffs from presenting themselves for work are set out in the statement of claim with somewhat terrifying complexity but, fortunately, the mass of evidence which was given during the hearing of the suit has been subjected to careful scrutiny and analysis by the learned Chief Justice. Consideration of his reasons and of the arguments advanced before us leave no doubt that the award of damages which was obtained by the plaintiffs against the defendants in this suit could not, on any view, be justified by the matters referred to in (5) above, whilst the degree of confusion involved in the allegations mentioned in par. (4) make it virtually impossible to determine whether it is desired to make the defendants liable for a number of independent infringements of the plaintiffs' rights or whether the assertions are merely an unnecessary repetition of the acts previously alleged to have been done in pursuance of the combinations mentioned in (1), (2) and (3). However, these allegations may safely be ignored as an independent source of liability on the part of all of the defendants. I hasten to add that the claims mentioned in pars. (4) and (5) were not, in terms, the foundation for the award which the plaintiffs obtained and that being so it is unnecessary that further reference should be made to them. Nor, although he found that the defendants acted in combination to prevent the plaintiffs from presenting themselves for work and, at a later stage, to prevent them from obtaining employment, was the learned Chief Justice prepared to find "that the predominating or main purpose of the conspiracy was to injure the plaintiffs". "The predominating purpose of the conspiracy was not" he said "malevolent but to assert a claim of majority rule in union affairs". We were asked to reverse this finding of fact, but I am unable to perceive any reason why we should. On the contrary there is every reason for thinking that the view which his Honour formed on this point is not open to question. That being so, the plaintiffs were not entitled to succeed upon the cause of action mentioned in (2) above. There was, however, ample evidence to establish the existence of a common agreement to prevent the plaintiffs from presenting themselves for work on the waterfront and, at a later date when they were allowed to present themselves, to ensure that they would not be employed. The means devised and used to bring these results about were discussed in great detail by the learned Chief Justice and it is unnecessary that I should set out the substance of the evidence again. Nevertheless, it is desirable to point out that between 12th February 1958 and 23rd March 1958 twenty-three "mass picket lines", were established for the purpose of preventing the plaintiffs from going to their work. Many of these so-called "picket lines" consisted of as many as 100 to 250 men and they stood shoulder to shoulder barring the plaintiffs' progress on their way to present themselves for work. A consideration of the evidence leaves no doubt whatever in my mind that the following findings of the learned Chief Justice were not only justified but inevitable: "I find that every picket line in the series constituted a threat (by conduct) to use force against the plaintiffs to prevent them passing through the picket line if they made any attempt to do so. It was made quite plain to the plaintiffs by the conduct of the men in the early picket lines that they would be repelled by force if necessary. In almost every picket line there was some display of hostility. I find the inference inescapable that the mass picketing by the men on each occasion was a threat to use unlawful means of resort to physical force against the plaintiffs to repel any attempt by them to pass through". I do not enlarge upon the variety of incidents which occurred on these occasions but it is only proper to say that the matters upon which the learned trial judge made his findings were proved to the point of demonstration. (at p106)
30. On 24th March 1958 the plaintiffs obtained leave from the Stevedoring Industry Authority and they did not again attempt to obtain employment on the waterfront until after the expiration of their period of leave on 8th June 1958. On the following day, 9th June 1958, the same tactics were resorted to to prevent the plaintiffs from presenting themselves for employment and this occurred again two days later on 11th June 1958. Then, on 13th June, the plaintiffs obtained an interlocutory injunction restraining the defendants from continuing this form of so-called "picketing". Nevertheless, on 17th June 1958, when the plaintiffs presented themselves for work, there was a formidable barrier of men across the entrance to the shed where they were rostered for work. In spite of the fact that police officers were present the "pickets" refused to allow the plaintiffs to pass and it was not until the assistance of some thirty police officers had been obtained that it was possible for them to be escorted through the barrier. From then on other tactics were employed and on nine occasions between that date and 18th July union members who were registered waterside workers left their work when the plaintiffs were engaged. The inevitable result was, of course, that all work ceased and the plaintiffs were not employed. (at p106)
31. It will be observed that the evidence dealt with a great many incidents which occurred after 18th February 1958 which was the date upon which the writ in the second action was issued. But at a late stage of the trial the writ was amended by consent to enable the plaintiffs to base their claim upon the whole sequence of events up to 17th June 1958. It was also agreed between the parties that: "In so far as the plaintiffs may be held to be entitled to relief in respect of any events on or after 17th June 1958 by reason only of the valid revocation of O. 38 of 1948, the defendants consent to adjudication thereof (notwithstanding that such events arose after issue of the writ) upon condition that such events are considered by the Court on the same basis as if they had been the subject of a separate writ between the same parties issued on the date of the commencement of the trial and as if an order had subsequently been made for the joint hearing of all actions, and upon further condition that questions of costs be determined with express regard to the foregoing conditions". I confess that I do not fully comprehend the significance of the expression "by reason only of the valid revocation of O. 38 of 1948" but the appeal has been conducted on the basis that it is open to us to consider as relevant to the plaintiffs' claim all incidents up to the date of the commencement of the trial which was 21st July 1958. (at p107)
32. To my mind there is not the slightest doubt that the so-called "picket lines" and the tactics subsequently adopted to prevent the plaintiffs obtaining employment were the result of a preconceived and prearranged plan. The spasmodic attempts at negotiation which had occurred in 1957 had failed, the final offer which was made by the general secretary of the federation in January 1958 had been rejected, the final break had occurred and the time had come for stern measures. What those measures were and what their immediate purpose and effect was is only too clearly revealed by the evidence. And there was "such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert": per Isaacs J. in The King and The Attorney-General of the Commonwealth v. Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387, at p 400 . But the fact of common agreement was not left to be established merely by inference from the character and sequence of the separate acts proved. The individual defendants, other than William Percy Brown and Noel Garnett Jackson, were office bearers in the Hobart branch and there is the clearest evidence that they actively supported and encouraged the establishment of "picket lines" as a means of preventing the Hurseys from obtaining employment and that they themselves took a leading part in them on many occasions. It is also true that these individual defendants also took part in devising, organizing and supporting the tactics subsequently employed to prevent the Hurseys from obtaining work. I have had some doubt whether the conduct of W. P. Brown and Jackson can be described in quite the same way. They were not office bearers and the evidence goes no further than to establish that they attended the "picket lines" on some occasions. W. P. Brown attended on seven or eight occasions and there may be some doubt whether he first attended on 21st February 1958 or not until 18th March 1958. Jackson seems to have attended on five occasions only, namely, on 13th, 14th and 18th February 1958 and 5th and 17th March 1958. While there can be no doubt that, on these occasions, these defendants made common cause with the others then present I think it may be carrying inference too far to say that the evidence established that they were parties to the agreement pursuant to which the "picket lines" were so consistently established. It is, of course, clear enough that on occasions they lent their assistance to the conspirators but this is not to say they were conspirators themselves. It may be that they were joined as defendants because when the statement of claim was drawn they were thought to be members of the committee of management of the Hobart branch. Indeed, it is so alleged in the statement of claim but this was denied by the defence filed on behalf of the individual defendants and, as already appears, the evidence seems to show that they were not members of the committee. There was a finding by the learned Chief Justice that neither of them held any office in the branch and, on the whole, I am of the opinion that they should not have been held liable. (at p108)
33. As far as the federation itself is concerned I am of the opinion that the evidence is more than sufficient to establish its participation in the conspiracy. On this branch of the case I agree entirely with the observations of Fullagar J. and have nothing to add. (at p108)
34. The question whether or not the means agreed upon and used to prevent the plaintiffs from presenting themselves for or obtaining work were illegal was debated at length before us. But it is sufficient to say that the "picket lines" constituted clear breaches of s. 44 (1) of the Stevedoring Industry Act 1956 and that the course subsequently adopted necessarily involved breaches of s. 44 (2) of that Act whenever it was pursued. That being so, the plaintiffs clearly succeeded in showing that they had suffered damage as the result of the unlawful acts of the defendants (other than W. P. Brown and Jackson) performed in furtherance of a common agreement to prevent them, by those means, from obtaining employment. This was adequate proof of an actionable wrong (McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343 per Dixon J. (as he then was) (1931) 46 CLR, at pp 359-361 and per Evatt J. (1931) 46 CLR, at pp 380, 381 ; it may be noted that there is a printing error in proposition (2) on p. 380 - the word "unlawful" where first appearing should read "lawful"). Since it is unnecessary for me to decide whether the two sub-sections of s. 44 of the Stevedoring Industry Act should be regarded as capable of creating private rights and duties I prefer to reserve my opinion on that point. I should add, however, that if it were necessary to put the plaintiffs' right to relief on that ground alone I would find it difficult to attribute liability to each of the defendants in respect of every infringement. No such difficulty, however, arises when it is seen what occurred took place in furtherance of a common design that a course which involved breaches of these provisions should be pursued. (at p109)
35. The question whether excessive damages were awarded has given me some concern. Plainly enough the learned Chief Justice gave a great deal of thought to the question of damages and his assessment should not be disturbed unless we are satisfied that he proceeded upon some wrong principle, that he failed to take some material factor into account or that the amount is clearly unreasonable. But upon consideration I am of the opinion that the damages should be reduced and I shall briefly state my reason for this conclusion. I agree with all that the learned Chief Justice has said concerning the conduct of the defendants which was inexcusable and which warranted grave censure. Particularly was this so when it is remembered that the question whether the Hurseys had forfeited their membership of the federation might readily have been determined by legal process. But by February 1958 reason had departed and in the mistaken belief that some important industrial principle was at stake the officers of the federation took the law into their own hands. They took it upon themselves to decide, finally and irrevocably, that the Hurseys were no longer members of the federation and then set about giving full force and effect to their decision. The resultant lawlessness and hostility makes a picture that is far from pleasant. However, the Hurseys must also, to some extent, share the blame for bringing this state of affairs about. No doubt they believed that they were within their rights in refusing to pay the political levy but what great principle was at stake when they were told that, instead of paying it for the benefit of the Australian Labor Party, they might nominate any other political party or some charity? And, indeed, if, as they claimed, they objected to the element of compulsion which still remained, upon what grounds of reason and commonsense did they in October 1957 refuse to pay their contributions when the offer was made to accept them without the political levy? Up to this point of time they had been prepared to do this and their complaint was that the branch would not accept their contributions without the amount of the political levy. But instead of doing what they maintained they had theretofore always been prepared to do there was some delay. Then emerged the suggestion that a reduced sum should be paid. One shilling should be deducted from the amount of the subscription. By this time the relations between the parties were deteriorating and to anyone with the slightest experience of industrial affairs it must have been obvious that with the departure of reason and commonsense open hostilities would soon break out. Not unnaturally they did and the Hurseys must inevitably take some share of the blame for it. It is because this circumstance does not appear to have been taken sufficiently into account in the assessment of damages that I feel that the award should be reduced. It is, of course, true that the rights of the Hurseys were infringed by conduct which was both arrogant and inexcusable but I cannot help but think that their own conduct - uninfluenced, at times, by any matter of principle which I can recognize - contributed in no insignificant way to their own detriment. In all, I think that the damages should be reduced to the sum of 1,000 pounds in each case and I agree that, subject to the dismissal of William Percy Brown and Noel Garnet Jackson from the second suit, the three matters should be disposed of by orders in the forms proposed. (at p110)
MENZIES J. These are three matters concerned with judgments of the Chief Justice of the Supreme Court of Tasmania which disposed of three actions. The first was an action commenced on 22nd October 1957 by F. J. Hursey against V. S. C. Williams and others, including the Waterside Workers Federation of Australia and the Hobart branch of that federation, claiming declarations and injunctions and other relief on the footing that a political levy, imposed by the Hobart branch of the Waterside Workers Federation of Australia upon its members on 2nd October 1956 to assist the Australian Labor Party in the election campaign for the Tasmanian House of Assembly election in November 1956, had been invalidly imposed. By the second action, commenced on 18th February 1958, F. J. and D. V. A. Hursey sued the Hobart branch of the Waterside Workers Federation of Australia and others, including the federation itself, for declarations and injunctions of the same character as those claimed in the first action and, in addition, for damages for conspiracy. In this action, an amended statement of claim was delivered on 29th July 1958 alleging matters arising between 18th February 1958 and 18th July 1958, and the case was conducted without objection on the footing that only what occurred up to 17th June 1958 was in issue. Subsequently it was agreed, subject to a reservation that in the event was not important, that this limitation should be removed. In the result, damages were assessed to the date of judgment. In the third action, W. H. Winch and others who were members of the Hobart branch of the Waterside Workers Federation, sued the Australian Stevedoring Industry Authority and F. J. and D. V. A. Hursey, seeking declarations and injunctions on the footing that, F. J. and D. V. A. Hursey having ceased to be members of the branch, the members of the branch were entitled to preference in employment as against the Hurseys. This action was commenced on 8th July 1958. (at p111)
2. The actions, which were heard together, all arose out of events on the Hobart waterfront during the period from 2nd October 1956 until 31st October 1958. The effect of the judgments was, in short, that the political levy was not validly imposed ; that at all times material, the Hurseys were and remained members of the Waterside Workers Federation of Australia and of the Hobart branch of the federation ; that the other members of the Hobart branch of the Waterside Workers Federation were never entitled to preference in employment as against the Hurseys ; that there was an actionable conspiracy to which all the defendants to the second action were parties ; and that for the harm done to the Hurseys in the carrying out of that conspiracy, damages in the sum of 2500 pounds were awarded to each plaintiff against all the defendants. (at p111)
3. Before this Court many contentions were advanced but it is, I think, possible to deal with them all by considering seven general problems. They are : (1) Whether the Supreme Court of Tasmania had jurisdiction to hear and determine the actions. (2) Whether the political levy was validly imposed. (3) Whether the Hurseys ceased at any, and what, material time to be members of the Waterside Workers Federation of Australia and the Hobart branch of the federation. (4) If so, whether members of the federation who were waterside workers registered in Hobart thereupon became entitled to preference in employment as against the Hurseys. (5) Whether the Hurseys suffered damage by the carrying out of an actionable conspiracy against them. (6) If so, whether the Waterside Workers Federation of Australia and the Hobart branch of the Federation were parties to the conspiracy and could be sued for the damage which the Hurseys suffered by reason of its being carried out. (7) Whether the damages awarded to the Hurseys were excessive. Each of these general problems has within it a number of particular problems, but the statement of these can conveniently be deferred until they emerge. (at p111)
4. In broad outline, what happened was that the Hurseys refused to pay the political levy and did not pay their ordinary subscriptions for the year which ended on 31st December 1957 ; they were thereupon treated by the federation, the Hobart branch and its members as having ceased to be members of the federation ; and when the Australian Stevedoring Industry Authority called them up as registered waterside workers for stevedoring work along with members of the Federation, drastic action was taken to prevent them from working. On twenty-five occasions between 12th February 1958 and 11th June 1958, picket lines of members and supporters of the Waterside Workers Federation of Australia, up to two hundred in number, formed human barricades to prevent the Hurseys going to work upon the Hobart wharves ; on some occasions, the Hurseys were assaulted, threatened and insulted by individuals in the picket lines by pushing, jostling, throwing eggs and calling out threats and abuse ; at all times, the picket lines were menacing and intimidating and there was no doubt that sufficient force to prevent the Hurseys going upon the wharves would have been used by those who formed the picket lines. This picketing ceased following an interim injunction restraining it, which was granted in the second action on 13th June 1958, and subsequently other tactics were employed to prevent the Hurseys from working. On nine occasions between 17th June and 18th July 1958, waterside workers who were members of the federation and who had been picked up to work with the Hurseys, walked off the jobs and so, in each case, brought about the dismissal of the Hurseys. These tactics had been employed twice before the picketing began, that is, on 5th and 6th February 1958, but they had been abandoned in favour of picketing because it did not entail the members of the federation stopping work themselves. As a result of the action taken, the Hurseys were not able to work as waterside workers from 5th February 1958 up to 18th July 1958, or seemingly up to the date of judgment because loss of wages up to 31st October 1958 was treated as an item of damages. (at p112)
5. There is no doubt that the drastic action outlined above was intended to prevent the Hurseys from working upon the Hobart waterfront and behind it there was the policy (which no one attempted to deny and which, as will appear later, I think was in a measure justified) that members of the federation were entitled to a monopoly of stevedoring work so long as there were members available to do the work. For this and for other reasons, the Chief Justice was not prepared to find that the combination which he held existed to prevent the Hurseys from working had, as its predominant object, the causing of harm to them. (at p112)
6. With this short introduction, I proceed to consider seriatim the seven
general problems stated earlier.
(1) The jurisdiction of the Supreme Court of Tasmania : At the hearing of
the actions in the Court below, no objection to jurisdiction
was taken but,
upon this appeal, Mr. Eggleston argued for the appellants that s. 147 of the
Conciliation and Arbitration Act 1904-1956
deprived the Supreme Court of
Tasmania of jurisdiction to hear and determine the first and second actions.
Section 147 is as follows
: "Unless the contrary intention appears in this
Act, no organization or member of an organization shall be liable to be sued,
or
to be proceeded against for a pecuniary penalty, except in the Court, for
any act or omission in respect of which the Court has jurisdiction".
It is not
necessary to state exhaustively what is the jurisdiction of "the Court", i.e.,
the Commonwealth Industrial Court, because
it does not extend to the hearing
of actions such as were instituted in the Supreme Court of Tasmania. It is
sufficient to say that
I consider that the section, so far as is material,
deprives any other court of jurisdiction to hear a suit against an
organization
or a member of an organization if that suit is within the
jurisdiction of the Industrial Court, but does not attempt to deny to another
court jurisdiction to hear a suit - which the court could not itself try - on
the ground that it concerned an act or omission about
which the Court could
decide in a suit which it could hear and determine. If an organization were to
be sued for libel, the argument
I reject would deny to a State court
jurisdiction to hear the action, not because a federal court had exclusive or,
indeed, any jurisdiction
to do so, but because, for example, in the action it
fell to be determined whether the plaintiff had acted in disregard of the
rules
of that organization (which is a question within the jurisdiction of the
court in properly constituted proceedings). As I construe
the section, I think
it is within constitutional power (ss. 51 (xxxv), (xxxix) and 77 (ii) ). If,
however, it had to be construed
in the way I reject, I would regard it as
outside power because it would seek to deprive State courts of their
jurisdiction otherwise
than by defining the extent to which the jurisdiction
of a federal court is exclusive of that of a State court (s. 77 (ii) ). (at
p113)
7. In my opinion, the objection to the jurisdiction of the Supreme Court of
Tasmania cannot be sustained, because here the claims
made are outside the
jurisdiction of the Industrial Court.
(2) The validity of the political levy : The first problem to be considered
here is whether a registered organization which is
also a trade union can, as
the law stands, have power to impose a levy upon its members to assist a
political party in an election
campaign ; the second problem, whether the
rules of the federation and of the Hobart branch authorized the Hobart branch
to impose
the levy it did, arises only if the federation and the branch could,
as a matter of law, have power to impose a political levy. The
Chief Justice
of Tasmania gave an affirmative answer to the first question and a negative
answer to the second. I preface what I
have to say about these questions with
the observation that the federation was at all times material and, in
particular, at the date
when it was registered as an organization, a trade
union according to the laws of each of the States of the Commonwealth and that
the Hobart branch, if and to the extent that it had an independent existence,
was always a trade union according to the law of Tasmania.
It was not shown
that either was a registered trade union. (at p114)
8. There seems to me no reason why an association registered as an organization pursuant to federal law should not have capacities which it might be beyond federal authority to confer, and I instance the common practice for an association to be registered as an organization under Commonwealth law and as a trade union under State law and for it, as a trade union, to take part in State industrial arbitration proceedings. Furthermore, it is well established that a registered organization can have powers beyond those necessary for its participation in the processes of that conciliation and arbitration for the settlement of industrial disputes which is the subject of Commonwealth power, e.g., power to provide sickness, accident and unemployment benefits for members and power to publish a newspaper. As to this latter, see Australian Workers' Union v. Coles (1917) VLR 332 and Australian Tramway Employees' Association v. Batten (1930) VLR 130 The object of supporting political policies or parties by the imposition of compulsory levies is not, I think, in itself foreign to the purposes of an association registered as an organization under federal law as part of the machinery to provide conveniently for the settlement of industrial disputes. I think federal power would extend to the registration of an association with such objects and there is nothing in federal law to deny registration to an association possessing such objects. (at p114)
9. If, therefore, an organization with a stated object authorizing the imposition of a levy for political purposes has not the power to do so, this limitation must depend upon State laws operating upon the association as it existed prior to registration as an organization, so that it was incorporated by Commonwealth law without such an object. It was the case that s. 55 of the Commonwealth Conciliation and Arbitration Act 1904 contained a proviso that no registered organization should be entitled to any declaration of preference by the court when, and so long as, its rules permitted the application of its funds to political purposes. This was enacted when it was commonly accepted that a trade union could, if so authorized by its rules, use its funds for political purposes and impose levies for such purposes, and that all the Commonwealth law did was to subject the organization possessing such powers to certain limitations. The provision was recognition that although Parliament did not regard the existence of such rules as precluding an organization from registration, it did then regard their existence as justifying some limitation upon the kind of awards that an organization could obtain. The federal law did not grant the power or deny the power ; it did no more than recognize the possible existence of organizations with such power and provide accordingly. That law disappeared soon after 1910 and the fact that it ever existed is not, I think, significant for present purposes. (at p115)
10. I turn, therefore, to the laws of the States to ascertain whether an association which is a trade union can have rules authorizing it to devote its funds to political purposes and to make a levy upon its members for such purposes. (at p115)
11. It is convenient to consider first the laws of the States other than New South Wales and Queensland, because in these latter States there are special provisions that are obviously to be explained by the decision of the House of Lords in Amalgamated Society of Railway Servants v. Osborne (1910) AC 87 . The particular statutes are : Victoria - Trade Unions Act 1928 ; South Australia - The Trade Union Act 1876-1935 ; Western Australia - Trade Unions Act 1902-1924 ; and Tasmania - Trades Unions Act 1889-1924. In these States, these statutes are not to be distinguished from those which were in force in England when Osborne's Case (1910) AC 87 was decided, i.e., the Trade Union Acts of 1871 and 1876, though not the Trades Disputes Act 1906. Osborne's Case (1910) AC 87 did decide (independently of the view taken by Lord James of Hereford and Lord Shaw of Dunfermline) that a trade union could not use its funds for political purposes because the Trade Union Acts defined exhaustively how the funds of a trade union could be used and the use in question was outside that definition. The decision was with respect to a registered trade union but it seems to me that its ratio decidendi applied equally to an unregistered trade union ; and this was so decided soon afterwards in Wilson v. Scottish Typographical Association (1912) SC 534 . The definition of "trade union" in the Act was a definition of both registered and unregistered combinations, and the fourth section applied to registered and unregistered unions alike ; with the greatest respect to those who take a different view, it seems to me that the decision in Osborne's Case (1910) AC 87 both in the Court of Appeal and the House of Lords turned upon the definition of "trade union" and the terms of s. 4. Moreover, it is to be noticed that when in 1913 the English law was amended to allow trade unions, subject to certain restrictions, to apply their funds in furtherance of political objects, the amendment applied to unregistered as well as registered unions. Osborne's Case (1910) AC 87 is a decision which in my opinion is not to be applied where its application can be avoided but the Trade Union Acts of the specified States are the same as the English Acts there authoritatively interpreted and short of rejecting the decision of the House of Lords, I see no escape from the conclusion that as a trade union, an association to which the laws of one of these States applies cannot impose a levy for political purposes. (at p116)
12. The position in New South Wales and Queensland is now even clearer. In each State, a trade union may, within limits, use its funds for political purposes (Industrial Arbitration Act 1940-1957 (N.S.W.), s. 107 re-enacting provisions first introduced in 1918 ; and The Trade Union Act of 1915 (Q.), ss. 4 and 13). A trade union to which the law of these States applies cannot, so far as those States are concerned, use its funds outside the specified limits. Before the adoption of this legislation, the position was as it now is in the other States. (at p116)
13. Not only has there been the legislative acceptance of Osborne's Case (1910) AC 87 in New South Wales and Queensland but there has been judicial recognition of its application to trade unions to which State law applies : O'Sullivan v. Finch (1914) 1 AR (NSW) 279 and Allen v. Gorton (1918) 18 SR (NSW) 202 ; 35 WN 69 and True v. Australian Coal and Shale Employees Federation Union of Workers (W.A.) (1949) 51 WALR 73 . My conclusion is, therefore, that the State Trade Union Acts do not allow a trade union to impose a political levy such as the Hobart branch of the federation imposed here, notwithstanding that its rules would authorize it to do so. Such a rule would be void for all purposes of State law. (at p116)
14. This brings me to what I regard as the critical question, i.e., whether, if an association which is a trade union has in fact a rule authorizing the imposition of a political levy, the effect of registration as an organization under the Commonwealth Conciliation and Arbitration Act is to make effective the rule that, in my judgment, was previously a dead letter. I have come to the conclusion that it does, for the following reasons. (at p117)
15. The object of Pt. VIII of the Commonwealth Act is to give capacity to associations which become registered organizations. The scheme adopted is to take associations as they exist, provide for their registration, give them perpetual succession and a common seal, the right to hold and deal with property, the capacity to sue or be sued - all "for the purpose of this Act" - control them as organizations, provide for their de-registration but not for their dissolution, and authorize them to take part in the processes of industrial conciliation and arbitration for the purposes of s. 51 (xxxv) of the Constitution. The Act does not deal with trade unions as such but authorizes those whose association is as members of a trade union to be registered. It is obviously necessary that a registered organization should, for Commonwealth purposes, have the same capacity in all States and it would inevitably frustrate those purposes if the various Trade Union Acts of the States were to affect its constitution as a registered organization, although as a trade union, I consider that State law could continue to operate upon an association notwithstanding its registration as an organization. The constitution of a registered organization is to be found in part in particular provisions of the Act, e.g., ss. 136 and 146, and in part in the rules with which it is incorporated. These rules, for which the Act provides, must contain specified provisions, e.g., s. 133, and may contain any other provisions "not contrary to law". Upon registration, the organization has all the powers that spring from its rules as well as those directly conferred by the Act itself and State law cannot add to or detract from the powers which registration under Commonwealth law confers either directly or indirectly. The special difficulty about an association which is also a trade union seems to me to arise in two ways. The first is that the State Trade Union Acts make it possible to argue that a rule of such an association which authorizes the imposition of a political levy is "contrary to law" in the sense of r. 115 (g) of the Commonwealth Conciliation and Arbitration Regulations, so that such an organization with such a rule ought not as a matter of Commonwealth law to be registered as an organization. I do not think this is so, however, both because I would regard such a rule as nugatory rather than illegal according to State law and because I am not satisfied that the phrase "contrary to law" imports all the provisions of all State legislation. If, for instance, the laws of each State were to provide that every voluntary organization must bank with the savings bank of that State, I would not think that the rules of an association which gave it power to bank with any bank would prevent it from obtaining registration as an association. Nor do I think that the introduction of such laws would afford ground for quashing under s. 140 the rule of an organization authorizing it to bank where it liked as a rule "contrary to law". This brings me to the second difficulty, namely, whether an association which is a trade union can be said to have a rule which Commonwealth law can quicken if what it has is a provision that is nugatory according to the law of any State applicable to it. I think it can, because all that State law is concerned with is the effectiveness of the rule for the purposes of that law. For example, if a trade union were registered in New South Wales and in Victoria and it had a rule relating to political levies effective in New South Wales because of the special provisions already referred to but not effective in Victoria, the rule could be enforced in New South Wales while in Victoria it would be appropriate to say that the trade union had a rule ineffective there. In the same way, an association which is a trade union and which has a rule authorizing political levies without any restriction can at the point when it applies for registration as an organization be described as having a rule, albeit an ineffective rule, so that, after the registration of the association as an organization, the rule can become effective as part of the constitution of the organization. The conclusions I have reached on this difficult part of the case are substantially the same as those reached by Walsh J. in his valuable judgment in Wheatley v. Federated Ironworkers Association (1960) SR (NSW) 161; (1959) 76 WN 727 . (at p118)
16. My conclusion that the federation as a registered organization can
lawfully have objects which authorize the imposition of a
political levy leads
to the next question, i.e., whether its rules did authorize the political levy
which the Hurseys refused to
pay. The problem is largely one of impression
and, for my own part, I think that its objects "to improve and foster the best
interests
of the members of the Organization" and "to raise funds for the
furtherance of the aforesaid objects", taken with the undoubted power
to make
levies upon members, do authorize the imposition of a levy for political
purposes thought to forward industrial ends. Having
so disposed of the
question of power, I add that I think in this instance the power was exercised
with the result that the political
levy was validly imposed.
(3) The Hurseys' membership of the federation: Because of the obscurity of
the rules of the federation and the Hobart branch, it
is not a simple matter
to decide just when non-payment of the political levy resulted in the Hurseys
ceasing to be members of the
federation, but I have come to the conclusion
that it was on 31st December 1957 and I merely add, without encumbering this
judgment
with reasons which would necessarily be lengthy, that even if I had
reached the conclusion that the political levy was invalid, I
would have
decided that the Hurseys failed to pay their annual contributions for the year
1957 and that this would in any event have
resulted in their ceasing to be
members on 31st December 1957.
(4) The right of members of the federation to preference: The conclusion
that the Hurseys did cease to be members of the Federation
on 31st December
1957 requires a decision on the problem whether members of the federation were
entitled to preference as against
non-members who were registered waterside
workers. This was the claim made by Winch and others on behalf of the members
of the Hobart
branch in the third action, but this is not the only importance
of the matter since an affirmative answer might have some relevance
to the
first and second actions; the fact that the Stevedoring Industry Authority
regarded the Hurseys as entitled to work equally
with members of the
federation was clearly enough a grievance that self help by picketing and
walking off, as previously narrated,
was, in some measure at least, intended
to redress. (at p119)
17. The contention that members of the federation were entitled to preference as against others was based upon cl. 15 of Port Order No. 38 of 1948, which was in the following terms: "All Union labour to be picked up: (a) All Union labour to be utilized before recourse is made to non-Union labour, except in cases of men under penalty. (b) No transfer of labour from ship to ship to be effected until all available labour has been exhausted, and non-Union labour not to be transferred while Union men are available for transfer to any job". From the rest of the order, it appears that the union referred to in the phrase "Union labour" in cl. 15 was the Waterside Workers Federation of Australia. (at p119)
18. Order 38 of 1948 was an order continued in force by the Stevedoring Industry Act 1949 and was, further, an order that was in force immediately before the date of the commencement of the Stevedoring Industry Act 1956. That Act, by s. 6 (4) (a), provides, therefore, that the "order shall not cease to be in force by reason of the enactment of this Act". By s. 6 (5) (a) it further provides that such an order "shall, for the purposes of this Act and the Conciliation and Arbitration Act 1904-1956, be deemed to be an award or order made by the Commission under Division 4 of Part III of that last-mentioned Act". Section 6 (7) then, so far as is material, provides that such an order "may be varied or revoked by the Authority by an order which the Authority is empowered to make under section eighteen of this Act". Section 17 of the Stevedoring Industry Act 1956 enumerates the functions of the Stevedoring Industry Authority and it is provided by sub-s. (1) (f) that one such function is "to make arrangements for allotting waterside workers to stevedoring operations so as to ensure, as far as practicable, a fair distribution of work in stevedoring operations amongst registered waterside workers". By s. 18 (1) it is provided that "for the purpose of the performance of its functions under the last preceding section, the Authority may, subject to this section, make such orders, and do all such other things, as it thinks fit". The only other part of s. 18 that I regard as material is sub-s. (5) which provides: "An order under this section shall not be expressed to apply to a particular person or to a particular stevedoring operation, but may be expressed to apply - (a) to persons included in a class of persons; (b) to a class or kind of stevedoring operations; or (c) at a particular place". Section 19 of the Act is as follows: "(1) Subject to sub-section (4) of section eighty-four of the Conciliation and Arbitration Act 1904-1956, an order of the Authority has effect notwithstanding anything inconsistent therewith contained in an award of the Commission (whether made before or after the making of the order by the Authority) and the award of the Commission is, to the extent of the inconsistency, of no effect. (2) The Authority shall not make an order which, in the opinion of the Authority, will be inconsistent with an award of the Commission unless the Authority has first consulted with the presidential member of the Commission assigned for the purpose of exercising the powers of the Commission under Division 4 of Part III of the Conciliation and Arbitration Act 1904-1956, and the presidential member has agreed to the making of the order". Section 20 (1) (c) gives orders made by the Authority the force of law. (at p120)
19. It was argued by Mr. Eggleston for the appellants that Port Order 38 of 1948 remains in force until varied or revoked by the Commission under Div. 4 of Pt. III of the Conciliation and Arbitration Act 1904-1956 and that the Stevedoring Industry Authority cannot revoke or vary it because an order doing so would not be within the power conferred upon the Authority by s. 18 of the Stevedoring Industry Act. For the other side, it was argued that Port Order 38 of 1948 was inconsistent with the Stevedoring Industry Act 1956 and was thereby revoked or, alternatively, that it was validly revoked by Port Order No. 21 of 1958 made by the Authority which in terms revoked "Clauses 1, 4 to 6 inclusive, 8 to 15 inclusive, and 17 to 21 inclusive, of Order No. 38 of 1948 made by the Stevedoring Industry Commission as varied". (at p120)
20. In support of his contention, Mr. Eggleston submitted that it was within the power of the Commission under Div. 4 of Pt. III of the Commonwealth Conciliation and Arbitration Act 1904-1956 to award preference to members of the Waterside Workers Federation in the stevedoring industry, or at any rate to revoke a provision such as cl. 15 of Port Order 38 of 1948, but this was contested by Mr. Wright and by Mr. Kerr, and in support of their contention that no such award or order could be made by the Commission, they relied upon the judgment of Ashburner J. in Commonwealth Steamship Owners Association and Others v. Waterside Workers Federation of Australia (1958) Serial No A6411 in which it was decided that the Commission had no jurisdiction to grant a claim by the federation in the following terms: "It shall be compulsory on all employers engaged in stevedoring operations to employ waterside workers, members of the Waterside Workers' Federation, in such stevedoring operations in preference to any other labour". One reason given for that decision was that "the Commission has no power to order preference to members of the Waterside Workers' Federation because such an order would be inconsistent with the legislative scheme embodied in the Stevedoring Industry Act 1956". (at p121)
21. In this field, I think it unwise to go beyond the necessities of the case and I therefore refrain from expressing any view upon the question whether the Commission could award preference to members of the federation or by an award revoke an existing order granting preference to such persons. In the circumstances of this case, I do, however, feel obliged to come to a conclusion upon the contention that the Stevedoring Industry Act 1956 of itself repealed O. 38 of 1948. In view of s. 6 (4) (a) of the Act, it would have done so only if inconsistency is to be found between the terms of the Act and the terms of the order, and I find no such inconsistency. It seems to me that the Authority might carry out its functions under s. 17 (1) (f) and ensure a fair distribution of work in stevedoring operations amongst registered waterside workers subject to the existence of a provision giving preference to members of the federation. There was, therefore, in my judgment no repeal of O. 38 of 1948 when the Stevedoring Industry Act 1956 came into operation. It follows that the members of the Waterside Workers Federation were entitled to preference as against the Hurseys, at least between 1st January 1958 and 17th June 1958. This is a matter to which I shall return in dealing with the Hurseys' claim for damages for conspiracy. Port Order 21 of 1958, however, came into force on 17th June 1958. Because the third action was commenced on 8th July 1958, the order is a complete answer to the claims made therein if the revocation of Port Order 38 of 1948 was effective. I think it was, and I have reached this conclusion because I consider that the function of the Authority to make arrangements for allotting waterside workers to stevedoring operations so as to ensure as far as practicable a fair distribution of work in stevedoring operations amongst registered waterside workers requires it to form its own judgment on what is a fair distribution of work, and if it finds that an order for preference prevents it from ensuring what it considers to be a fair distribution, it has power, pursuant to s. 6 (7) and s. 18, to revoke such an order. I merely add that if the Commission were to make an order for preference under Div. 4 of Pt. III of the Commonwealth Conciliation and Arbitration Act 1904-1956 (and in view of par. (k) of the definition of "industrial matters" in s. 81 I think it could make some such order) and there were inconsistency between such an order and an order of the Authority under s. 18 of the Stevedoring Industry Act, then the case would be one for the application of s. 19 of the Stevedoring Industry Act. (at p122)
22. To summarize my conclusions on this part of the case, I would say that
the Hurseys having ceased to be members of the federation
on 31st December
1957, the members thereafter and by virtue of O. 38 of 1948 became entitled to
preference as against them, but ceased
to be so entitled on 17th June 1958
when O. 21 of 1958 validly revoked O. 38 of 1948.
(5) Conspiracy: Some general observations about the law of conspiracy are, I
think, necessary. If two or more persons agree to
effect an unlawful purpose,
whether as an end or a means to an end, and in the carrying out of that
agreement damage is caused to
another, then those who have agreed are parties
to a tortious conspiracy. Although it is probably too late in the day to
divide conspiracies,
for the purpose of legal classification, into two sorts
depending upon whether the purpose of the combination would be lawful or
unlawful if it were the purpose of an individual, there is much to be said in
favour of approaching any consideration of the law
of tortious conspiracy and
its application in that way. It is, I think, quite clear that an agreement to
do something, either as
an end or as a means to an end, it being something
that would, if it were done by an individual, be a criminal offence, is a
tortious
conspiracy if another suffers damage by reason of action pursuant to
the agreement. The same it seems is true if the agreement is
to do something
which, if done by an individual, would be a tort or breach of contract,
although authority for this depends upon
dicta (see e.g. South Wales Miners'
Federation v. Glamorgan Coal Co. Ltd. (1905) AC 239 , per Lord Lindley (1905)
AC, at pp 252-254
; Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch (3),
per Viscount Simon L.C. [1941] UKHL 2; (1942) AC 435, at p 447 , per Lord
Wright (1942)
AC,
at pp 465-467 , per Lord Porter (1942) AC, at p 496 ) rather than upon decided
cases except the old cases of conspiracy
for falsely
indicting one of felony
and such like, where the tort of conspiracy is closely
associated with
malicious prosecution.
See Skinner
v. Gunton [1845] EngR 236; (1669) 1 Wms Saund 228 (85 ER
249) and note thereto (85 ER, at p 251) and Bullen & Leake's Precedents of
Pleadings (1868)
3rd
ed, p 290 Up to this point the term "unlawful" in
relation to conspiracies means something that is itself and
independently of
any
element of combination, a criminal or civil wrong. The law has, however,
gone further and treated as unlawful
the doing in combination
of some things
which could be done by an individual without any infringement of public law or
private rights.
(at p123)
23. Since Quinn v. Leathem [1901] UKHL 2; (1901) AC 495 it has, to use the words of Lord Buckmaster in Sorrell v. Smith (1925) AC 700 been settled "that acts done in pursuance of a conspiracy having for its real purpose the injury of a man in his trade or calling are an actionable wrong" (1925) AC, at p 744 , but the findings of Burbury C.J. negative conspiracy of this sort. He said: "I hold that the Federation the Branch and the individual Defendants combined together or acted in concert for the immediate object of preventing the Plaintiffs presenting themselves for work or for the immediate object of procuring their dismissal. The immediate object in either case was unlawful. And unlawful means were used to achieve the object. The Federation, the Branch and the Defendants and officers and members of the Branch were all parties to the conspiracy . . . . As the immediate objective of the Defendants acting in concert was unlawful and unlawful means were used it is unnecessary for me to determine whether there was an unlawful 'conspiracy to injure' the Plaintiffs in accordance with the principles enunciated by the House of Lords in the Veitch Case [1941] UKHL 2; (1942) AC 435 and by the High Court in McKernan v. Fraser (1931) 46 CLR 343 . But I think it proper that I should make certain findings of fact relevant to this issue. I am not satisfied upon the whole of the evidence that the predominating or main purpose of the conspiracy was to injure the Plaintiffs. . . . I have no doubt that the actions of Healy, Bull, Shepherd and a number of others were partly inspired by hostility to the Plaintiffs on political grounds. But from the whole of the evidence I think the proper inference is that the Federation would have resorted to direct action against any member who deliberately refused to pay a political levy resolved upon by the majority of members. I think the real genesis of the dispute was the failure of the Plaintiffs to comply with a majority decision to impose the levy. This was regarded as a threat to solidarity in Union affairs . . . I am not satisfied that Mr. Healy or any of the officers of the Hobart Branch honestly believed that the interests of the Union would directly suffer if the direct action taken against the Plaintiffs was not taken and the result of the Court's determination of the issues of the validity of the levy and the Plaintiffs' membership of the Union was awaited". The finding that the real purpose of the conspiracy was not to injure the Hurseys in their calling was criticized by counsel for the respondents as being inconsistent with the other findings in the quotation. The finding which negatived harm to the plaintiffs as the predominant purpose of the conspiracy is, however, one to which I feel bound to adhere, especially because, contrary to the view of his Honour, I am, as I have already said, of the opinion that between 1st January and 17th June 1958 the members of the Waterside Workers Federation were entitled to preference in employment as against the Hurseys and because this was wrongly denied by the Stevedoring Industry Authority, what was done by the defendants was really in defence of the rights of the federation and its members. As the respondents' real object was thus the protection of the interests of the federation and its members, this puts out of the way conspiracy to do something "unlawful" in the vague sense of harming the Hurseys by preventing them from working, and leaves the case as one where, if there was an actionable conspiracy, it was because the agreement which formed the conspiracy was an agreement to do something that was positively unlawful, whether as a means or as an end. If this was the case it cannot be justified as being in defence of the federation's rights or interests. (at p124)
24. Burbury C.J. found that the action agreed upon was unlawful upon the following grounds: (1) That it was unlawful by means of the picket lines to prevent the employers of the Hurseys from performing their statutory and contractual obligations and to prevent the Australian Stevedoring Industry Authority from performing its statutory duty, which unlawful action, so his Honour said, amounted to interference with "the exercise of the Plaintiffs' contractual and statutory rights without lawful justification". (2) It was unlawful by means of the picket lines to prevent the passage of the plaintiffs and to do so by force and threats of force amounting to assault. (3) It was unlawful to prevent the plaintiffs from going to work by intimidation and besetting in breach of s. 6 of the Conspiracy and Protection of Property Act 1899 (Tas.). (4) It was in breach of s. 44 (1) (b) of the Stevedoring Industry Act to constitute picket lines and so, by violence, threats and intimidation, prevent the plaintiffs from offering for, obtaining or accepting employment, or working, as waterside workers, in stevedoring operations. (5) It was in breach of s. 36 (1) (e) of the Stevedoring Industry Act for the members of the federation engaged to work with the plaintiffs to fail to complete their engagement for employment as waterside workers and this was a means of unlawfully procuring the dismissal of the plaintiffs from their work. On these findings, the learned Chief Justice concluded that both the picketing and the walking off were themselves unlawful and, furthermore, unlawfully brought about breaches of the plaintiffs' contracts of employment. (at p125)
25. On the hearing of the appeal, counsel for the respondents argued in support of these findings of unlawfulness made by the Chief Justice and further contended that the picket lines unlawfully prevented the plaintiffs from exercising their rights to use public highways and other places to which they were entitled to entry, as of right. As to this, there was no finding. (at p125)
26. I do not find it necessary to examine all these findings and contentions in relation to the picketing that occurred because I am satisfied about one thing that is of itself amply sufficient to support the conclusion of Burbury C.J. that the picketing was unlawful and that any agreement to prevent the Hurseys from working, by pickering, was an actionable conspiracy. I consider the picketing was unlawful independently of whether the picket lines were formed where the Hurseys were entitled as of right to go and independently of any particular acts or threats of violence on the part of individuals in the picket lines, because the forming of the picket lines itself amounted to intimidating, preventing, hindering or dissuading the plaintiffs, who were registered waterside workers, from offering for, obtaining or accepting employment as waterside workers in stevedoring operations and was therefore contrary to s. 44 (1) (b) of the Stevedoring Industry Act. For two hundred people to assemble and stand together to bar a man's way to work is by itself and without assaults, threats and abuse, intimidation sufficient to deter a man of resolution and fortitude from returning to face the ordeal again. Mr. Eggleston, for the appellants, pursuing the metaphor that identifies a man with a stake in the ground, argued that the picket line was just a fence that prevented passage and that, leaving out of account the assaults, threats and abuse of some of those who were in the line, there was nothing intimidatory about a band of men in formation barring the Hurseys from the wharves. This contention I reject. The united will of two hundred men so banded together would cause in the mind of the one whose way is barred a sense of concern and timidity that a row of stakes, even if they were spiked and linked with barbed wire so as to be both insurmountable and impenetrable, would never produce. Such a fence would effectively prevent passage to work; the living barricade would not only do so just as effectively but would also tend to deter those against whom it stands from attempting to go to work. This was the view of Mr. Healy who, in his evidence, said that a man seeing two hundred of his workmates lined up against him might well say "I am not going through there" and "Well, if that is what they think of me, I won't attempt to go through". (at p126)
27. The learned trial judge also found that the action of those members of
the federation who were engaged to work with the Hurseys,
in leaving the job
to bring about their dismissal, was unlawful, but with respect I am not
disposed to agree with this conclusion.
Section 36 (1) (e) of the Stevedoring
Industry Act does authorize the Stevedoring Industry Authority to cancel or
suspend the registration
of a waterside worker who has failed to complete an
engagement for employment as a waterside worker, and the power so conferred
was
employed in relation to waterside workers who walked off the job to bring
about the dismissal of the Hurseys. This provision does
not, however, make the
walking off unlawful, as Burbury C.J. appears to say. His Honour, furthermore,
treated the walking off as
inducing a breach of contract on the part of the
employers who dismissed the Hurseys but those dismissals were not, so far as I
can
see, a breach of contract by the employers. Had the walking off been
"without reasonable cause or excuse", it would have been a breach
of s. 44 (2)
of the Stevedoring Industry Act, which is as follows: "A registered waterside
worker shall not, without reasonable cause
or excuse, refuse to accept
employment or perform work in stevedoring operations with another person who
is a registered waterside
worker or is employed as a waterside worker by
virtue of section forty of this Act". There was, however, no finding of
absence of
reasonable cause or excuse and I am not prepared now to make such a
finding. It may be that after 17th June 1958 when Port Order
38 of 1948 was
revoked, there was nothing that could be regarded as reasonable cause or
excuse except that the Hurseys were not members
of the federation; but in a
case where the learned trial judge has considered all aspects of the case so
carefully, I would have
no confidence in making a finding in favour of the
Hurseys that he has refrained from making, particularly as the Chief Justice
proceeded
on the finding that the Hurseys remained members of the federation,
whereas I have reached the conclusion that they ceased to be
members. I have
therefore come to the conclusion that the finding that the walking off was
unlawful cannot stand and it would follow
that the carrying out of an
agreement to walk off, if that were all, would not be an actionable
conspiracy. I am not, however, prepared
to regard the walking off as something
done pursuant to an agreement separate from the general agreement to prevent
the Hurseys from
working. My view of the findings of the Chief Justice of
Tasmania is that there was a combination to prevent the Hurseys from working
and to do so by means some of which were unlawful, so that the combination
was, as a whole, an unlawful conspiracy. This conspiracy
was, to start with,
carried out by action not in itself unlawful, namely, by the men walking off
the job on 5th and 6th February.
Later, and until the injunction was granted,
it was carried out by unlawful means, namely, picketing. After the injunction,
there
was a reversion to the earlier tactics. In such a case, I do not think
it possible to dissect what was done pursuant to the agreement
into what could
have been done lawfully and what could not. The agreement to use unlawful
means vitiated it entirely and made it
an actionable conspiracy when it was
carried out so as to cause damage to the plaintiffs; indeed, it was from the
start an indictable
conspiracy. In other words, the conspiracy was actionable
because some of the means for carrying it out were unlawful and, therefore,
all that was done was done pursuant to an unlawful conspiracy. Therefore, my
conclusion as to the walking off is that, although it
was not unlawful in
itself, it is not to be disregarded in determining whether the Hurseys
suffered damage by reason of the carrying
out of an actionable conspiracy or
in assessing their damages.
(6) The parties to the conspiracy and their liability to suit: That there
was a combination to prevent the Hurseys from working
which is to be inferred
from what happened is not in doubt, but it was argued by Mr. Eggleston that
Burbury C.J. was wrong in finding
that all the defendants to the second action
were parties to that combination, and that the federation and the Hobart
branch of the
federation were not, and could not be, parties to an actionable
conspiracy to use unlawful means to prevent the Hurseys from working.
(at
p127)
28. In so far as the argument depended upon the doctrine of ultra vires and asserted the incapacity of the federation or the branch to do unlawful acts in the carrying out of the lawful and express object of securing preference of employment for members of the organization, it is entirely contrary to the decision of the House of Lords in Taff Vale Railway Company v. Amalgamated Society of Railway Servants [1901] UKHL 1; (1901) AC 426 where a trade union was held liable for the wrongful conduct of agents in managing a strike which was a lawful object of the Society. The judgment of Farwell J., which was unreservedly approved by the House of Lords, contains the following passage which is relevant to the contention based on the doctrine of ultra vires: "The defendant Bell was the general secretary and the defendant Holmes was the local organizing secretary of the society; they, as agents for the society, and on their instructions and for their benefit, put themselves in charge of the strike, and on the evidence that was read last week illegally watched and beset men to prevent them from working for the company, and illegally ordered men to break their contracts. I have already held that the society are liable for the acts of their agents to the same extent that they would be if they were a corporation, and it is abundantly clear that a corporation under the circumstances of this case would be liable. See, for example, Ranger v. Great Western Ry. Co. (1854) 5 HLC 86 where Lord Cranworth points out that, although a corporation cannot in strictness be guilty of fraud, there can be no doubt that if its agents act fraudulently, so that if they had been acting for private employers the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agents act is a corporation. It is not a question of acting ultra vires, as in Chapleo v. Brunswick Permanent Building Society (1881) 6 QBD 696 but of improper acts in the carrying out of the lawful purposes of the society" (1901) AC, at p 433 . See too the speeches of Earl of Halsbury (1901) AC, at p 436 , Lord Macnaghten (1901) AC, at p 438 , Lord Shand (1901) AC, p 441 , Lord Brampton (1901) AC, at pp 441, 442 and Lord Lindley (1901) AC, at pp 443, 444 . It is, moreover, now established that a company can be criminally or civilly liable for conspiracy: R. v. I.C.R. Haulage Ltd. (1944) KB 551 ; Pratt v. British Medical Association (1919) 1 KB 244 and see also Winfield's Law of Torts 5th ed. (1950) p. 440; although earlier a different view had been taken: see R. v. Kellow (1912) VLR 162 . When a company merely acts through its directors, it is, however, not properly described as combining with them - O'Brien v. Dawson [1942] HCA 8; (1942) 66 CLR 18 - although in Egan v. Barrier Branch of the Amalgamated Miners' Association (1917) 17 SR (NSW) 243; 34 WN 129 it was decided (and I consider correctly) that a trade union can be sued civilly for conspiring with its own members to commit a tort. Cullen C.J. said: "The Taff Vale case showed, and it has never been since questioned, that the effect of the registration of trade unions under the Act is to give them at least a quasi-corporate status, which distinguishes between the entity known as a trade union and the individuals who may chance to be its members just as completely, for the present purpose, as in the case of the difference between a fully incorporated company under the Companies Act and the individuals who are its members. There would for instance be nothing illogical in suggesting that individual members of the union, whether they are office bearers or not, might enter into communication with either the governing body of the union or its general meeting - might even solicit from them authority to carry out illegal acts, and therefore in a very true sense be said to have entered into a conspiracy with them to do those illegal acts, and that this might be followed by a resolution on the part of the union's meeting or its executive that those acts be carried out by the agents. In many cases before the English Courts similar conspiracies have been alleged. I know none of them in which it was suggested that such a conspiracy could not be proved, and were there any doubt about it the decision of the High Court in Heggie's Case would be quite sufficient authority, and one binding upon this Court". (1917) 17 SR (NSW), at pp 257, 258; 34 WN, at p 135 . The incorporation of the federation as a registered organization makes even less tenable the objection of ultra vires. (at p129)
29. So far as the federation is concerned, the only other question is whether there is sufficient evidence that it was, as the Chief Justice found, party to the conspiracy. I think there is, and, as a preliminary to giving my reasons for this conclusion, I think it desirable to state what I consider to be the relationship of the Hobart branch to the federation. (at p129)
30. The federation, which consists of some fifty-four branches, has a constitution and rules divided into two parts, the second part of which consists of rules relating to branches and which, inter alia, authorizes branches to make rules subject to a resolution of the federal council of the federation. Part I of the constitution and rules of the federation proceeds on the footing that there are branches of the federation and that the way in which a person becomes a member of the federation is to seek membership through a branch. A person becomes a member of the federation and of the branch in which he is enrolled when the branch secretary transmits to the general secretary of the organization the applicant's name, a duplicate of his application for membership and a registration fee of two pounds. There is, as I see it, no membership of the branch as distinct from membership of the federation. The federation is a registered organization but the Hobart branch is not. It does not appear whether the federation or the branch is registered as a trade union. This short survey leads me to the conclusion that the Hobart branch is but part of the federation, and it has no separate existence as a trade union or other voluntary organization. What is said in Hall v. Job (1952) 86 CLR 639 with regard to a subordinate lodge of the Loyal Orange Institution of New South Wales appears to me to apply mutatis mutandis to the Hobart Branch as part of the Federation: "The purposes which the members of the Lodge have in common are none other than the purposes for which they are members of the Institution. The Lodge does not exist as a society of persons who desire to associate exclusively with one another for agreed purposes; it exists as an integral part of a larger organization, of which all the members are associated for the pursuit of purposes common to them all in accordance with a constitution which governs them all. A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership, which provides, for those who belong to it or may be admitted to its meetings, machinery for the enjoyment of the rights and benefits, and for the performance of the obligations and functions, which are the incidents of their membership of the Institution" (1952) 86 CLR, at p 650 . (at p130)
31. I now turn to the government of the federation itself and find that it is vested in the federal council which has full power to carry out the objects of the federation. The key officer of the federation is the general secretary/treasurer, and when the council is not sitting (and it seems that it ordinarily sits once a year for about a fortnight) he has a duty to conduct the business of the federation; the general president is subject to his supervision and direction. It should perhaps be added that the rules require that the general secretary/treasurer should "on all important business that may reasonably require the attention of councillors, correspond with councillors with the view to obtaining their considered opinions on the subject matter". There is also an organizer who, like the general president, is subject to the supervision and direction of the general secretary/treasurer. At the relevant times, Mr. James Healy was the general secretary/treasurer and Mr. M. Wallington the organizer. (at p131)
32. The evidence of Healy in these actions established by itself quite clearly that he was aware of, and approved of, the picketing that took place and not only approved of, but suggested the walking off tactics - "Pinkenba" tactics, as they were called after the place where they were first successfully used in a demarcation dispute between the federation and the Australian Workers Union. Healy also sent Wallington to Hobart "to ensure that our views were properly understood" and, although when Wallington himself took an active part as a member of the picket lines he was told by Healy not to do so again, that was not because of any lack of approval of the picketing that was occurring. Of greater significance, however, than anything that was done by Wallington himself, is the fact that although the tactical task of preventing the Hurseys from working was left to the Hobart branch, it was left to the Hobart branch as part of the federation, and the federation stood behind the branch in what it did in handling the matter, and, in Hobart by direct action and elsewhere by representations and propaganda, controlled the strategy of the campaign that was carried on. As Healy said, when the Hurseys ceased to be members of the Federation, they ceased in "our" view to have any right to work on the waterfront as waterside workers, and it then became an important matter for the federation to "resist the attempt to enforce employment of non-unionists and to encourage non-payment of union dues", to use the language of a pamphlet "Truth About The Hurseys" which the federation itself prepared and circulated. In resisting this "attempt", it was, in Healy's view, a matter for the branch to decide how they would handle the matter; his evidence was "We would leave it to them to handle", but it is clear that it was the job of the branch to handle the matter as part of the federation and on behalf of the federation as a whole. As Healy said: "I believe that we have the right to picket and prevent men going to work as waterside workers if they are not entitled to work"; "I am speaking from the Federation point of view, the national point of view". His evidence was that he regarded what was done as industrial "action within the association" which was preferable to the Federation's resorting to the courts to obtain payment of amounts owing by members. In my judgment, all these things taken together afford a solid foundation for the finding of the Chief Justice that the federation was a party to the conspiracy. However, I am not prepared to go so far as Burbury C.J. did and find that the federation, as distinct from the branch, expressly authorized the picketing "if not by prior authorization at least by subsequent ratification". (at p132)
33. I turn now to the question whether the Hobart branch was also a party to the conspiracy, and the very reasons that have contributed to my conclusion that the federation was such a party lead me to the conclusion that the branch should not be considered a party distinct from the federation, for what was done by the branch was done as part of the federation. It is perhaps only to put it another way to say that the part cannot as a part conspire with the whole. (at p132)
34. The conclusion that the branch should not be treated as a party to the conspiracy separately from the federation makes it unneccessary for me to decide whether, if it were, it could be sued, as it was, under O. LIII of the Rules of the Supreme Court of Tasmania, but I may perhaps be permitted the observation that during the argument on this point I found some difficulty in regarding the Hobart branch as a society and the action for conspiracy to which it was a defendant as one in which the plaintiff's claim was against persons as members or officers of the branch in respect of a tort committed in the conduct or management of the affairs of the society within the meaning of r. 15 of O. LIII, and further consideration of the matter has not resolved these difficulties. (at p132)
35. On this branch of the case, my conclusion is, therefore, that the
judgment should stand against the federation but not against
the Hobart
branch.
(7) Damages: This brings me to the contention that the damages awarded by
the trial judge should be reduced. I think they should
because of my
conclusion that the Hurseys did cease to be members of the federation; because
their wrong assertion that they were
entitled to work as members of the
federation was something which contributed to the situation that the
defendants resorted to unlawful
measures to resolve; and because their refusal
of the conciliatory offer of the federation and the Hobart branch to accept
from them
annual contributions for the year 1957 without the political levy
was one of the things that closed the door to a settlement by legal
proceedings of the differences that had arisen, a course which would have
avoided the industrial strife that occurred. Upon these
matters - membership
of the federation, right to employment as such and refusal to pay annual
contributions - I have come to a conclusion
different from that reached by the
Chief Justice of Tasmania and in the result I consider that the damages
awarded to each plaintiff
should be reduced to 1,000 pounds. (at p132)
36. Conclusion: In order to deal with the substance of the matters before the Court, I have for the sake of simplicity proceeded as though there are three appeals to this Court from judgments of the Supreme Court of Tasmania. The actual position is, however, somewhat more complicated. In the first action, there is before the Court an application for special leave to appeal from an order declaring the political levy invalid "upon the ground that it was not expressly or impliedly authorized by the federal or branch rules" of the organization. As my own opinion is that the political levy was valid, I consider that the application for special leave should be granted and the appeal allowed. In the second action, the appeal is an appeal as of right and I would allow the objection of the Hobart branch of the Waterside Workers Federation. Furthermore, I would discharge so much of the judgment as declares that the Hurseys "are and were at all material times" members of the federation and that cl. 15 of Port Order 38 of 1948 ceased to have any operation upon the coming into force of the Stevedoring Industry Act 1956, and substitute declarations to the effect that the Hurseys remained members of the Federation until 31st December 1957 but not thereafter and that Port Order 38 of 1948 remained in force until 17th June 1958 when it was revoked by O. 21 of 1958. I would also reduce the damages awarded from 2,500 pounds to 1,000 pounds. In the third action, an appeal was taken from the judgment of Burbury C.J. to the Full Court of the Supreme Court of Tasmania and, upon the hearing of that appeal, the Full Court decided that it raised for consideration inter se questions within the meaning of s. 74 of the Constitution and also that, by virtue of s. 40A of the Judiciary Act, the action was automatically removed to this Court. Whether or not this was so was not argued before us and as I am not satisfied that any question did arise as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or, indeed, that there was any case arising under the Constitution or involving its interpretation that would justify an order for removal under s. 40 of the Judiciary Act, I am inclined to think that the best course to follow would be to treat the matter as an application for special leave to appeal from the judgment of the Chief Justice of Tasmania in the third action and then dismiss the application on the ground that Port Order 38 of 1948 was validly revoked before the action was brought. However, as the other members of the Court consider the matter should be dealt with by an order under s. 40, I am prepared to agree to this course and to the order proposed. (at p133)
ORDER
WILLIAMS AND OTHERS v. HURSEY.
Special leave to appeal from judgment of Supreme Court of Tasmania. Strike
out of proceedings in Supreme Court of Tasmania and
in this Court name of "The
Hobart Branch of the Waterside Workers' Federation of Australia". Appeal
allowed with costs. Discharge
judgment of Supreme Court of Tasmania. In lieu
thereof order that action be dismissed with costs.
THE HOBART BRANCH OF THE WATERSIDE WORKERS' FEDERATION OF AUSTRALIA AND
OTHERS v. HURSEY AND ANOTHER.
Strike out of proceedings in Supreme Court of Tasmania and in this Court
name of "The Hobart Branch of the Waterside Workers' Federation
of Australia".
Appeal allowed. Order that respondents pay one half of appellants' costs of
appeal. Discharge so much of judgment
of Supreme Court of Tasmania as declares
that plaintiffs are and were at all material times members of the Waterside
Workers' Federation
of Australia and so much of said judgment as declares that
Port Order No. 38 of 1948 ceased to be in force on commencement of Stevedoring
Industry Act 1956. Vary judgment for damages by substituting 1000 pounds for
2500 pounds.
WINCH AND OTHERS v. THE AUSTRALIAN STEVEDORING INDUSTRY AUTHORITY AND OTHERS.
Order under s. 40 of Judiciary Act that appeal to Full Court of Supreme Court of Tasmania be removed into this Court. Appeal dismissed with costs.
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