12 THE QUEENSLAND LAW REPORTER MARCH 3, 1922 branch of the Union but the committee of management, I adjourned the proceedings to enable the committee of management to consider the question whether the applicant should be deemed a desirable member, giving him an opportunity to be heard. A meeting of the committee of management was duly convened on notice to the members and to the applicant, to consider the question whether the applicant should be deemed a desirable member of the Union, and it was held at the Railway Institute on the 8th of September, at which eleven members (seven by rule 91 being a quorum) were present. The minutes of that meeting, so far as they affect the applicant, are as follows :— Mr. Hanley was then invited by the president to make any explanation he desired. After having made such, a number of questions were put to hirn by the various members of the committee. The president then asked Mr. Hanley if he had any further statements to make in regard to the matter under discussion. He answered No.' He was then asked by the president if he was satisfied that he had been given a fair and impartial hearing; to this he answered 'Yes.' He then retired to enable the committee of management to discuss his case fully amongst themselves before coming to a decision. After the discussion was ended Mr. Harding moved, That after having heard Mr. Hanley and having given full consideration to his case, the committee of management of the Union now decides to support the action of their Brisbane Branch in declining to admit Mr. Hanley as a member on the ground that he was not deemed a desirable member.' Seconded by Mr. Thompson and carried unanimously. Mr. Hanley returned to the room and the president conveyed to him the decision of the committee of management." The case came on again on the 10th of November, when the same counsel appeared. In addition to the facts as to the resolution passed by the committee of management, a report of what took place there, prepared by the applicant, was admitted, as Mr. Walsh did not object to its reception. As to it, I need only say that some of its contents do not help the applicant's case. The Hon. W. J. Dunstan, M.L.C., the secretary of the Queensland District of the Australian Workers' Union, gave evidence that the appellant is still a member, although unfinancial, of the Australian Workers' Union, as he has not resigned under rule 12 of the Constitution and General Rules of the Australian Workers' Union for 1921-1922, nor has he been expelled under rule 13. Mr. Dunstan added that the Australian Workers' Union have nothing against him, are ready to accept payment of the errears, for which he is still liable, and to recognise him as a member. This claim is in effect, if not in form, one to compel the Union, on pain of having its registration cancelled by the Court, to admit the applicant to membership. I do not pause to inquire whether an application for the cancellation of the registration of a Union, under s. 36 of The Industrial Arbitration Act of 1916, can be made for the purpose of enforcing a personal right, or whether a charge of tyrannical or oppressive administration of the rules of a Union can be made out by proving one instance of harsh conduct. Trades unions, like other voluntary associations, are entitled to make rules for the admission of new members so long as these rules do not contravene the law. The jurisdiction of courts of law to interfere in the case of such bodies is based upon the right which members have to the common use of and enjoyment of the property which has been purchased or acquired by means of the funds contributed by such members-Forbes v. Eden (L.R. 1 H.L. Sc. 568), Rigby v. Connoll (14 Ch.D. 482). Where the members of such a body have rights in its property, a member whose rights have been interfered with is entitled to ask the Court to consider whether the rules have been observed, whether anything has been done which is contrary to natural justice, and whether the decision complained of has been come to bona fide-Baird v. Wells (44 Ch.D. 661). shown This line of authorities has been expressly applied to trades unions in Chamberlain's Wharf, Limited v. Smith ([1900] 2 Ch. 605) and Osborne V. Amalgamated Society of Railway Servants ([1911] 1 Ch. 540). It was not that the respondent Union possesses any property from which the applicant might derive benefit; but the applicant as an employee of the Commissioner for Railways is only entitled to the benefits conferred by the Railway Award-State-pu in the Government Gazette of the 19th October, 1921, clause 91 (24), if he is a member of one of the Unions referred to in Part VII. of The Industrial Arbitration Act of 1916. bllshed I am inclined to think that membership of such a Union, if expulsion from it would make the member liable to lose the benefits of an Award, would be equivalent to a right of property so as to enable the jurisdiction of the Court to attach. I have, however, been unable to find any case where the Court has interfered by ordering a person to be admitted as a member of any voluntary body, such as a club or trade union, to which he had not belonged before, and the only case on the point cited by counsel was Neale v. Printing Industry Employees' Union (1921, N.S.W. A.R., p. 184). That was an application to show cause why a person should not be admitted to membership of the Union, brought under the very special provisions of s. 52 of the New South Wales Industrial Arbitration Acts, 1912-1918, which enacts "(1) All persons who are by the nature of their occupation or employment of the class of which a trade union is constituted, and who are not of a general bad character, shall be entitled to be admitted to membership of the Union, and to remain members thereof, and enjoy all advantages of membership so long as they shall comply with the rules of the Union. (2) Any question of dispute as to the character of the applicant or the reasonableness of any requirements of the rules of the Union shal be determined by the Court." There is no Queensland enactment in any way resembling this, so the case has no application here. I have, therefore, very grave doubts whether the Court has any jurisdiction to entertain this application, but I shall not dismiss it on this ground. The applicant as a member of the Australian Workers' Union is entitled to all the benefits of the Railway Award, as clause 91 (24) of that Award is not limited, as the provisions of some Awards are, to financial members of the Unions. So, following the analogy of Forbes v. Eden and other cases cited, the Court has no jurisdiction to deal with his claim, as he has not been deprived of any right of property, or its equivalent, by the refusal to admit him to membership of the Queensland Railway Traffic Employees Union. This is enough to dispose of the case, but it was strongly urged by Mr. Hutcheon that under rules 8 and 9 upon the receipt of his application and subscription he became a member. To construe these rules in this way would be to disregard the proviso to rule 5 that such (applicant) shall be deemed a desirable member, which in my opinion, is a condition precedent to admission to membership, and also the words subject as in (sic) hereinafter appears in rule 8, which obviously refer to the provisions for registration, rules 16 to 19, and especially to rule 18, which provides that the general committee is the body to decide whether an applicant for membership should be deemed a desirable member. The present applicant had a full hearing before the general committee, and, as the minutes show, admitted that it was a fair and impartial hearing. On the facts, I decide that the rules of the Union were observed, that nothing was done contrary to natural justice, and that the decision of the committee of management on the 8th of September last was come to in good faith the matters which according to Baird v. Wells the Court should inquire into. I am, therefore, of opinion that the applicant's case has failed and that this claim must be dismissed. An application was made by the Union for costs, which Mr. Hutcheon opposed on the authority of the decision in In re the Australian Employees' Association, Ex parte Ryan and Others (9 C.A.R. at p. 58). In that case, which was also an application for the cancellation of registration of a trade union, Powers J. reluctantly refused to give costs against the unsuccessful applicant because the Commonwealth Parliament had not given him the power to do so; following in this Higgins J., In re Australian Workers' Union, Ex parte Killen (6 C.A.R. at p. 52). These authorities are not in point. The section dealing with costs in the Commonwealth Conciliation and Arbitration Acts is 38 (i.), which gives the Court power only to order any party to the dispute to pay to any other party such costs and expenses, including expenses of witnesses, as are specified in the Order." The word "dispute "in that subclause evidently means industrial dispute, defined in s. 4 of the Act as an industrial dispute extending beyond the Imits of any one State. An application to cancel the registration of a Union clearly is not a dispute of this kind. The power to award costs given by s. 4 of the Schedule to The Industrial Arbitration Act of 1916 is much wider than s. 38 (i.) of the Commonwealth Act. It is as follows:-"The Court shall have jurisdiction to award costs in all 14 THE QUEENSLAND LAW REPORTER APRIL 7. 1922 matters brought before it, including matters dismissed for want of jurisdiction; but no costs shall be allowed of any counsel, solicitor, or agent except on an appeal to the Court or unless in the opinion of the Court it is or was in the interests of justice that counsel, solicitor, or agent should be or should have been heard." The word "matter" is "the widest term to denote controversies which might come before a court of justice," State of South Australia v. State of Victoria (12 C.L.R. at p. 675, per Griffith C.J.). Under that section this Court has the power to award costs here, as Higgins J. and Powers J. would have done had they been able to do so in the two cases mentioned, and I shall exercise that power, as, in my opinion, it was in the interests of justice that counsel should be heard, because of the rather intricate points of law involved. As, however, the applicant had no opportunity of being heard before the Brisbane Branch of the Union when his application for membership was first rejected, and as that branch was not the proper body to decide the question whether he should be deemed a proper member of the union, the costs will be limited to those of one day, which I fix at £13 13s. Ex parte HANLEY, 27th and 29th August, MACNAUGHTON J. Counsel: E. 7. Company Debenture holders-Secured by floating charge- A limited company was tenant of premises. In February, 1918, the plaintiffs advanced money to the company, and received a debenture, duly executed and registered as a floating charge on the undertaking and property of the company. Default having been made by the company. a receiver was appointed on 2nd September, 1921, by the debenture holders pursuant to the terms of the debenture, and they entered into possession of all assets on the demised premises (including certain personal property, which, under the terms of the lease, was retainable by the company upon the expiration of the lease), and on 21st September, 1921, advertised the proposed sale thereof. In September, 1921, the company was in arrear with the rent owing by it to its landlord; and on 19th September. 1921, the landlord distrained for rent. At the date of the distress certain money was also owing for wages and rates. On 21st September, 1921, the property was submitted to public auction. No bid was received, and the receiver bought the property in for £4000. On the same day an interim injunction was granted, restraining the landlord from further proceeding with his distraint. A resolution was passed in November, authorizing the voluntary winding-up of the company. On the hearing of a special case stated in an action for the determination of the priority of rights between the debenture holders and the landlord: Held, that the debenture holders were not entitled to any injunction restraining the landlord from exercising his right of distraint. PURCELL AND OTHERS V. THE PUBLIC CURATOR OF QUEENSLAND, 15th and 29th December, 1921, LUKIN J. Counsel: Stumm K.C., Walsh; E. A. Douglas, Salkeld. Solicitors: Boyce & Hunter, for Carey & Quigley, Rockhampton; R. J. Barnett, Official Solicitor to the Public Curator. 8. Illegitimate child-Unborn child-Maintenance-Confinement expenses-Paternity of child-Corroboration of evidence of the mother-The Deserted Wives and Children Act of 1840 as amended by the Act of 1858-Infant Life Protection Act of 1905 (5 Edw. VII., No. 19), s. 16. Held, on the facts, that there was corroborative evidence of the oath of the mother of an illegitimate child that the defendant was the child's father and that an order made by a Court of Petty Sessions that he pay confinement expenses and maintenance was justified. WALDUCK MESSENGER, Ex parte MESSENGER, 1st and 13th December, 1921, FULL COURT (REAL, SHAND, AND LUKIN JJ.). Counsel: R. J. Douglas; Real. Solicitors: Morris & Fletcher, for S. Newman Johnson, Cloncurry; Bouchard & Holland, for H. C. R. Faithfull, Cloncurry. 9. Criminal law-Stealing with violence-Appeal against conviction and sentence-Weakness of case for prosecution-Prisoner defended by solicitor-Desire of prisoner to give evidence on oath and to call witnesses to establish alibi-No evidence called by solicitor-Under-estimation by solicitor of evidence given for prosecution, and its effect-Possible miscarriage of justice -Conviction quashed-New trial ordered-The Criminal Code, s. 669. Where, on the trial of a prisoner, the evidence for the prosecution consisted almost entirely of the evidence of the prosecutor, and was not conclusive, and it appeared that the solicitor who appeared for the prisoner made an error in under. estimating the weight which might be given to that evidence, and in not calling evidence for the prisoner, although desired by the prisoner to do so, the Court ordered a new trial. R. SAYERS, 3rd and 16th December, 1921, COURT OF CRIMINAL APPEAL (COOPER C.J., CHUBB AND LUKIN JJ.). Counsel: Salkeld; J. S. Hutcheon. Solicitors: R. J. Barnett, Official Solicitor to Public Curator; The Crown Solicitor. 10. Criminal law-Stealing with violence in company Insufficiency of evidence-Appeal-Conviction quashed--Acquittal ordered--The Criminal Code, ss. 411, 668E. APPEAL TO COURT OF CRIMINAL APPEAL. The prisoner, Robert Liddell, was indicted with another person named Hack at the Rockhampton Sittings of the District Court before O'Sullivan D.C.J., held on 23rd January, 1922, on a charge of stealing with violence in company. Both prisoners pleaded not guilty, and both were convicted and sentenced to imprisonment. The material evidence against the prisoners is extracted from the Judge's notes as follows: Alfred Lewis Vaughan, station cook : On 16th December, came to Rockhampton. On 17th December had talk with Davis. Prisoner came up, and said, "What's the trouble?" I said, "My mate having argument." I offered to shout. We went to Central Hotel. Four of us had a drink. Then went to Normanby; played billiards with Liddell, He won. Hart, a friend, was in billiard room, 16 THE QUEENSLAND LAW REPORTER. APRIL 7, 1922 Know him about three years. We had drinks. I said, "I am going out to back." Cross-examined by Hack: I asked you to have drinks. You did not force yourselves on me. A few drinks affect my head. I said in Court below I lost between £2 and £3. I said it consisted one £1 note, three 10s. notes, and silver. When I went to urinal I did not notice you or Liddell. Three closets there. Urinal at end of enclosure. Two doors shut and one open. Entrance to urinal by double gate. When I received blow, saw nobody near. I have no idea who hit Three of Edward Nathan Hart: cooper, residing near Arthur Street. On 17th December, about 3 p.m., at Normanby Hotel. Saw two men, Hack and Liddell, the prisoners, and Vaughan come in. Liddell and Vaughen played game billiards. them stood in door in company with the marker. Vaughan said, "Come here, Harty, I want you." I walked over. Hack says, We're going to have a drink, and the marker is entitled to one." I said, "I don't drink." I went in with them, and had a drink after Hack had invited the men in. Vaughan paid. We went into bar, leaving marker at the door of billiard room. Vaughan paid for drinks. He then said, "I want to have a leak. I am going out to back." Hack said, "So am I. I am going with you." Hack and Vaughan left bar together, Liddell and myself remaining at bar. Liddell and I walked into passage between billiard room and bar. I stood at door. Liddell talked to marker. Noticed Hack rushing through passage from direction of urinal, passing where Liddell was standing. He poked Liddell in back with his hand, and said, "Right." went out with Hack quickly. Saw them that evening again. Rushed out to the urinal. Luke Lake followed. Saw Vaughan lying on his back unconscious. Bleeding from back of head, bleeding from chin. His left-hand trouser pocket inside out, and right bulged up with handkerchief or something. I went back for assistance. Ambulance and police came. Vaughan removed. Nobody could have followed complainant, except Hack. Two or three minutes elapsed between Hack going to the urinal and rushing back. Liddell Cross-examined by Hack: It is about five months, might be more. since I worked as cooper. Never convicted. You invited us to have drink. Vaughan paid. I noticed blood when Vaughan was lying there. I called out for assistance. I was suspicious about the way you touched Liddell, and said “Right." Cross-examined by Liddell: When you walked out of bar I stood at door. Marker talking to you in passage. You could not see the urinial from where you were. men. Sam Rutter: On 17th December complaint made, giving description of two Searched for the two men, arrested them. They were both receiving Government relief. I told them they answered description. I put them in separate rooms. Searched Hack. Found 11s. 5d. I said, Where did you get this?' He said, From Bluey." I said, Bluey who?" He said, "I don't know his Where He said, proper name." After that searched Liddell. Found 5s, on him. I said, did you get this 5s. ?" He said, Snowy." I said, Snowy who?” A cobber of mine from Mackay." I produce 11s. 5d. found on Hack (Ex. 2). Keep your mouth shut." Hack called out, Cross-examined by Hack: It must have been Liddell you were addressing. Arrested you 100 yards from hotel in a doorway. You did not say, "Bluey, your brother." Cross-examined: I never told you it would be alright, and to tell where money was. the Jas. Murtha: Sergeant, police. On 17th December I reached site of robbery. The urinals are enclosed under main building roof, and walled off. Three water One kept locked. The other two left open. There was a wicket gate in the gateway leading into the square, and then to urinal. The wicket gate closets. closed outside, if locked. |