party shall have a right to appeal from any such decision of the Industrial Magistrate to the Court of Industrial Arbitration.'

The appeal, which was under clause 6 (2), came on before the Full Bench on the 8th of March last, when Mr. R. T. Gore, barrister-at-law, who appeared for the appellant, applied for an adjournment on the ground that the solicitors instructing him had only just had the case put into their hands, and they desired time to communicate with their principals. An adjournment was given to a day to be fixed.

The case came on again on 28th November, 1921, when Mr. R. T. Gore appeared for the appellant, and the Honourable W. J. Dunstan, M.L.C., for the respondent. R. T. Gore The Industrial Magistrate had no jurisdiction to entertain the claim under clause 6 of the Award, as all the work in question had been finished before the conference took place. The respondent's proper remedy was to sue for money due under the Award under s. 64 of The Industrial Arbitration Act of 1916. [MACNAUGHTON J. If clause 6 (1) of the Sugar Award bears the restricted meaning for which you contend, which I do not think it does, this point may not be open to you on this appeal.]

:

The appellant appeared before the Industrial Magistrate without protest, and when the decision was given against him, appealed to this Court, thereby submitting to its jurisdiction. This appeal, by analogy to appeals under s. 14, subsecs. 2 and 3, of The Industrial Arbitration Act of 1916, is by way of rehearing. The proper way to raise the question of jurisdiction would have been by an application to the Court for prohibition or certiorari under s. 3 of the Schedule to the Industrial Arbitration Act.

[MCCAWLEY P. There are no merits in the appeal. You appeared before the Industrial Magistrate without protest, and took the chance of a decision in your favour. The main question was one of fact for the Magistrate, who saw and heard the witnesses and believed those for the respondent. Besides, there has been a long and unexplained delay in prosecuting the appeal.]

R. T. Gore: The delay was caused by the solicitors being unable to get further information from the appellant, who has been absent from the State. The respondents were not called on.

MCCAWLEY P. The appeal will be dismissed.

MACNAUGHTON J.: I concur.

KELLY. GOICOECHEA, Ex parte GOICOECHEA, 8th March and 28th November, 1921, COURT OF INDUSTRIAL ARBITRATION (MCCAWLEY P. AND MACNAUGHTON J.) Counsel R. T. Gore; Hon. W. J. Dunstan, M.L.C. Solicitors: Morris & Fletcher.

3. Pastoral lease-Rent-Surrender of lease-Surrender after expiration of first period of lease-But before the rental for the second period had been determined-Occupation by lessee from date of commencement of first pericd to date surrendered— Rent paid at rates fixed for first period-Determination of rent for second period ct higher rate-Jurisdiction of Land Court to make determination of rent for second period-The Land Act of 1910 (1 Geo. V., No. 15), ss. 42, 43, 122, 127, 128.

The appellant was the lessee of Palma Pastoral Lease, and paid rent for the first period thereof at the rate stated in the Fourth Schedule to The Land Act of 1910. The first period expired on 1st July, 1915. The lessee continued in possession of the holding until the happening of the events subsequently mentioned, paying interim annual rent at the original rate under the provisions of s. 128 of The Land Act of 1910. The rental for the second period of ten years was not fixed by the

8

THE QUEENSLAND LAW REPORTER FEBRUARY 10,1922

Land Court until 23rd March, 1921, and it was then determined at a greater sum than was payable for the first period. In the meantime, the lessee had surrendered the Palma Lease. The instrument of surrender was dated 11th August, 1919, and thereby all the estate and interest of the lessee in the Palma Holding were surrendered to the Crown, to the intent that the residue of the term of the lease might be absolutely extinguished as from 1st February, 1920.

Before the surrender had been executed, proceedings had been commenced for the determination by the Land Court of the rent for the second period of the lease. The hearing was fixed for December, 1919, but was adjourned and the rent was determined on 23rd March, 1921.

Held, that the Land Court had jurisdiction to make a determination of the rent payable for the second period of the Palma Holding lease, irrespective of what might be the effect of such determination.

Quare, whether the appellant was liable to pay rent at the increased rate fixed by the Land Court from the commencement of the second period to the date of surrender of the lease.

COLLINS. THE KING, 9th and 12th December, 1921, FULL COURT (REAL, SHAND, AND LUKIN JJ.). Counsel: Graham; Henchman. Solicitors: Crouch & Eden; The Crown Solicitor.

4. Industrial law

Employment Non-unionist employment-Preference to unionists.

APPEAL FROM INDUSTRIAL MAGISTRATE.

Bona fide

Certain disputes arose in reference to the employment of non-unionists by certain of the farmers in the Goondi district and also at the Goondi Mill, in consequence of which Macnaughton J. directed the Industrial Magistrate at Innisfail to hold a conference under clause 6 of the Sugar Award and report the result to the Court. The conference was duly held at the Court House. Innisfail, on the 18th of October, 1921. It was attended by representatives of the Australian Workers' Union, the Federated Engine Drivers and Firemen's Association, the Australian Sugar Producers' Association, Limited, the United Cane Growers' Association, and the Colonial Sugar Refining Company, Limited.

All matters in dispute were settled subject to the opinion of the Court being obtained upon (inter alia) the following question:-" In the event of a nonunionist being employed and a unionist applying for his job, must the non-unionist be displaced provided that the unionist is capable of performing the work?" The answer of the Court to this question was :

MACNAUGHTON J. This depends on whether such non-unionist was employed --that is, bona fide engaged before the 1st of June, 1921, the date upon which the Award took effect. Previous to that date there was no provision for preference to unionists in the sugar industry, and it has always been held that a general provision for preference such as clauses 22 (1) and 35 (1) in the present Award does not apply to employees engaged prior to the enactment of preference. My learned colleague the President decided this in his judgment re the Building Trades-State-Award published in the Government Gazette of the 24th of March, 1921-interpretation (e) of clause 21 of the Building Trades'-State--Award published in the Government Gazette of the 20th of December, 1920. To the same effect are the remarks of Powers J., in the case of The Musicians' Union of Australia v. The Theatrical Propriclors and Managers of Australasia and Others (13 C.A.R. at p. 953), when he said: Preference, so far as I understand it in en Award generally, only applies to employment when the employers have vacancies for employees, and is not granted as an order to dismiss everyone who is not a member of the particular Union at the time preference is awarded.' In some awards a proviso has been inserted that the preference clause shall not apply to existing employees. This is only put in to make the meaning of the general preference clause clear, and adds nothing to its effect.

In re FIELD AND SUGAR MILL WORKERS, 19th November, 1921, MACNAUGHTON J. (IN CHAMBERS).

5.

Will Construction Charitable gift - General charitable institution-Cy-pres.

Gift of residuary funds-Funds to be paid to a German Consul when appointed at Brisbane and cuthorized by AttorneyGeneral to receive same-Rule against perpetuities—Intestacy. Treaty of Peace-German Nationals entitled as next-of-kin— Rights of German Nationals-Vesting of property in Public Trustee The Trading with the Enemy Act, 1914-1916, 8. 9, I., subsec. 1, s. 9D-The Treaty of Peace, Sections III. and IV., Articles 296 and 297-Annex to Sections III. and IV., 300, 400, and 416-Regulation of 29th January, 1920 (No. 25 of 1920).

By his will, a testator directed his trustees to stand possessed of £1500, part of his residuary trust funds, "upon trust to pay the same to the trustees for the time being of the General Cemetery at Warwick for the following purposes :— Firstly in erecting a shelter shed of brick or like material at the said cemetery such shelter shed to contain in the left hand wing thereof a marble monument with an emblem of a simple marble cross thereon, the said monument to be surrounded with iron railings and to be inscribed as follows:- This shelter shed is the gift of William Mitchner for the benefit of the Public. Born August 2nd 1841, died

Secondly, in providing within the shelter shed a suitable vault to contain my body. Thirdly, in containing a bust in plaster of myself to be placed upon or near the said vault. Fourthly, in providing the said shelter shed with appropriate steeple, bell, and belfry. And I declare that of the said sum of £1500 the sum of £150 shall be expended by the said trustees of the Warwick Cemetery in the erection of the said vault and in the purchase of the said bust. And that they shall expend not less than £100 or more than £150 in the purchase of the said bell. And that they shall retain and invest the sum of £200 and apply the income thereof in and towards the maintenance of the said shelter shed vault and bust.' Held, the sum of £200 was not bequeathed as a separate gift, but was part of the £1500, and that the gift was valid,

The sum of £1500 was insufficient for the purpose of carrying out the objects of the bequests in full, but those objects could be carried out in a modified form. Held, that as the will showed a general charitable intention to have certain structures erected and maintained and if the moneys appropriated to these purposes were insufficient to enable effect to be given to the general intention modo et forma, the general intention should be carried out, although the particular mode of carrying it out prescribed by the testator might prove impracticable.

The testator also directed his trustees to invest £200, and divide the income thereof between two churches equally for the benefit of the churches for the period of fifty years, and thereafter to divide the sum between the churches equally, to be expended in permanent improvements for the churches.

Held, a charitable trust, and therefore valid, but the capital could not be paid over to the persons authorised to give discharges therefor until the expiration of the fifty years.

The testator also gave out of the residuary estate £750 for the erection at Hendon of a Church of England and the providing of a gallery, organ, seating accommodation, and a bell.

Held, a good bequest, and that if it was found that the amount of the bequest was insufficient to build a church strictly in accordance with the directions given by the testator, the court would in proper proceedings direct a scheme

cy-pres.

The trusts declared with reference to the remainder of the testator's residuary trust funds were prefaced by the following words :-

In trust to pay the same from time to time as and when the same shall be available to the German Consul for the time being at Brisbane when

such Consul shall have been appointed and my trustees shall have been duly authorised in that behalf by the Attorney-General for the State of Queensland or the

10

THE QUEENSLAND LAW REPORTER

MARCH 3, 1922

Attorney-General of the Commonwealth of Australia with written instructions to the said German Consul to remit the said trust funds to my Ferdinand

Tautz in Germany his executors or administrators the Parish Priest for the time being of the Roman Catholic Church at Lewin in Germany and the Police Magistrate for the time being at Lewin aforesaid to be expended by them the said Ferdinand Tautz his executors administrators and the said Parish Priest and Police Magistrate in the manner following

Held, the gifts were void as forbidden by the law against perpetuities.

The rights of German Nationals in testator's property undisposed of by his will are vested in the Public Trustee, and are subject to the charge created by par. 20 (i.) of the Regulations of the 28th of January, 1920, to which effect must be given through the clearing office established by par. 4 of those Regulations.

Re MITCHNER, DECEASED. UNION TRUSTEE COMPANY OF AUSTRALIA AND ANOTHER. THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA AND OTHERS, 20th, 21st and 24th November; 12th and 16th December, 1921, FULL COURT (COOPER C.J., REAL AND SHAND JJ.). Counsel: Stumm K.C. and Hart; Henchman; Salkeld; Macgregor; Wassell. Solicitors: W. A. Douglas, for E. A. Flower, Warwick; The Crown Solicitor; Chambers, McNab & McNab; R. McCowan; W. A. Douglas.

6.

Industrial law

Union-Membership

Application for

cancellation of registration Jurisdiction "Matter"Dispute-Rules of union-Committee of management-Bona fides-The Industrial Arbitration Act of 1916 (7 Geo. V., No 16), s. 38). MOTION.

The facts are stated in the judgment of

MACNAUGHTON J. This is an application for the cancellation of the registraton of the Queensand Railway Traffic Employees' Union of Employees on the ground that the administration of the rules of the Union is tyrannical and oppressive in that the Union has unlawfully refused to enrol the applicant as a member and prevented him from becoming such member, and thereby deprived him of the advantages of membership thereof, and in the alternative for an Order directing the general secretary to forward to the applicant a ticket of membership and to enter his name upon the roll of members of the Union. The material rules of the Queensland Railway Traffic Employees' Union dealing with the admission and registration of members are-

"MEMBERSHIP.

"4. This Union shall consist of such of the officers and employees of the Queensland Railways as shall have the right to vote for the selection of the Traffic employees' representative on the Appeal Board.

5. Every officer and employee of the Queensland Railway who has the right to vote for the selection of the Traffic employees' representative on the Appeal Board shall be eligible for membership of this Union : Provided that such officer or employee be deemed a desirable member.

6. Any officer or employee desirous of becoming a member of the Union shall forward, or cause to be forwarded, to either the general secretary or the secretary of the branch in the district wherein such officer or employee is stationed, an application in writing under his hand, together with the whole of the subscription fee payable by members for the quarter current at the date of such application. Such application shall be signed by the applicant and be dated. The quarters in respect of which subscriptions are payable by members end on the thirtieth day of June, the thirtieth day of September, the thirty-first day of December, and the thirty-first day of March in each year.

7. The application for membership shall be in the form in the First Schedule hereto, and may be delivered to any authorised collector, to be by him forwarded to the general secretary or branch secretary. The fact that the applicant is under the age of twenty-one years shall not be a disqualification for membership.

"8. Upon the actual receipt by the said general secretary, or the secretary of the said branch of the said application and subscription, the said applying officer or employee shall (subject as hereinafter appears) be, and be deemed to have become, a member of the Union as from the day of the date of the said actual receipt of the said application and subscription.

9. Upon, or immediately after, the actual receipt of such application and subscription, the said general secretary or branch secretary shall notify such applicant of such receipt, and forward to him a copy of the rules of the Union, together with a ticket of membership, and shall enter on the roll of members the name of such applicant, and the date of such actual receipt. If the said application shall be received by the branch secretary, the said application shall forthwith be sent by the said branch secretary to the general secretary, who shall retain the same.

"REGISTER.

"16. The general secretary of the Union shall keep a roll of the names and addresses of the members of the Union.

66

17, The name of any person who shall have ceased to be a member shall, immediately after such cessation, be struck out of the said roll by the general secretary upon being directed by a resoluton of the committee of management so to do, and notice of such resolution shall be given to the secretary of the branch whereof such person was a member.

"18. If the name of any person is not actually and in fact entered in the said roll, he shall not be, nor shall he be deemed to be, a member of the Union, nor shall he under any circumstances be, or deemed to be, entitled to any of the rights or privileges of a member of the Union, unless such person, or some other person, satisfy the committee of management, by such evidence as such committee shall require, that such person should be enrolled as a member, and upon the said committee being so satisfied the name of such person shall forthwith be entered upon the roll of members as a member of the Union.

46

19. Such roll shall at all times and under all circumstances be conclusive evidence of the fact that the persons whose names appear therein as members are members of the Union, and are subject, as hereinafter mentioned, entitled to all rights and privileges of a member of the Union."

The case came on for hearing at the Court of Industrial Arbitration, Brisbane, on the 27th and 29th of August; Mr. E. H. Hutcheon, barrister-at-law, appearing for the applicant, and Mr. J. J. Walsh, barrister-at-law, for the Union. The facts, put shortly, are-The affidavit of the applicant set out that he had been a member of the Queensland Railway Union, and as his ticket in thet Union would expire on the 30th of June, he wished to join the Queensland Railway Traffic Employees' Union (Brisbane Branch), the respondent.

He, being an employee of the Commissioner for Railways, who has a right to vote for the selection of the Traffic employees' representative on the Appeal Board, sent a proper application with the subscription fee to the secretary of the Brisbane Branch of the Queensland Railway Traffic Employees' Union on the 16th of May, and was informed on the 9th of June that his nomination as a member of the Union had not been accepted by the Brisbane Branch. He then placed the matter in the hands of his solicitor, end these proceedings were instituted. In reply, several affidavits were filed; one by J. B. Harding, general secretary of the respondent Union, that the respondent was still a member of the Queensland Railway Union; one by J. C. Jones, that the majority of the members of the Brisbane Branch, who refused to accept the applicant as a member, honestly believed that the applicant would not be a desirable member of the Union; and others by J. Roach and F. Sargeant, to the effect that he had been expelled from the Australian Workers' Union (Queensland Branch), Railway Section, on the ground of his unseemly conduct at meetings. It appeared, however, from an affidavit of W. Snelling, filed in rebuttal of this allegation, that the applicant had not been expelled by the Railway Section of the Australian Workers' Union, but that, after he had refused to read certain letters reflecting upon the superior officers of the Railway Department, and while & motion that he should be directed by the meeting to read these letters was being voted upon, he resigned his membership of the Queensland Branch of the Railway Section of the Australian Workers' Union. On the 29th of August last, after a good deal of argument, as it seemed to me under rules 5 and 18 that the body to decide whether any candidate for election should be deemed a desirable member was not the