Noonan v Kelly

• Jurisdiction: Australia Federal only
• Judgment Date: 05 March 2021
• Neutral Citation: [2021] FCA 182
• Court: Federal Court
• Date: 05 March 2021

Federal Court of Australia

Noonan v Kelly [2021] FCA 182

Appeal from:	Kelly v Noonan [2021] FCA 146
File number(s):	VID 88 of 2021
Judgment of:	MORTIMER J
Date of judgment:	5 March 2021
Catchwords:	INDUSTRIAL LAW –– application for interlocutory relief – applicants seek to hold meeting of organisation’s national executive – construction of Construction, Forestry, Maritime, Mining and Energy Union’s Rules – dispute about allocation of members between divisions of Union ; ADMINISTRATIVE LAW – application for leave to appeal from interlocutory orders pursuant to s 164(4) Fair Work (Registered Organisations Act 1998 (Cth) – application for stay – whether primary judgment affected by error – discretionary factors – application for stay refused – application for leave to appeal dismissed
Legislation:	Fair Work (Registered Organisations) Act 2009 (Cth) ss 94, 95A, 164(4) Federal Court of Australia Act 1976 (Cth)
Cases cited:	Ashby v Slipper [2016] FCAFC 63; 241 FCR 55 Clover Corporation Ltd v Tobias [2020] FCA 1244 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Corporation [2016] FCAFC 97; 242 FCR 153 Gill v Ethicon Sárl (No 8) [2020] FCA 771 Gill v Ethicon Sárl (No 9) [2020] FCA 1838 House v The King [1936] HCA 40; 55 CLR 499 Kelly v Noonan [2021] FCA 146 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 (by his litigation representative BFW20A) [2020] FCA 615 Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116 O’Connor v Setka [2020] FCAFC 195
Division:	General Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	111
Date of last submission/s:	1 March 2021
Date of hearing:	2 March 2021
Counsel for the Applicants:	Mr M Harding QC with Ms Kelly
Solicitor for the Applicants:	Maurice Blackburn Lawyers
Counsel for the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Respondents:	Mr H Borenstein QC with Mr Bakri
Solicitor for the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth and Sixteenth Respondents:	Slater and Gordon Lawyers
Counsel for the Fifth Respondent:	Did not appear

ORDERS

		VID 88 of 2021
BETWEEN:	DAVID NOONAN First Applicant ; ADRIAN EVANS Second Applicant ; ANDREW SUTHERLAND (and others named in the Schedule) Third Applicant
AND:	GRAHAME KELLY First Respondent ; ELIZABETH MACPHERSON Second Respondent ; BRAD COATES (and others named in the Schedule) Third Respondent

order made by:	MORTIMER J
DATE OF ORDER:	5 march 2021

THE COURT ORDERS THAT:

1. Pursuant to r 10.24 of the Federal Court Rules 2011 (Cth), service of:

   1. the application for leave to appeal dated 26 February 2021;

   2. the proposed notice of appeal dated 26 February 2021;

   3. the amended application for leave to appeal dated 27 February 2021;

   4. the corrected proposed notice of appeal dated 27 February 2021;

   5. the affidavit of J Faine dated 26 February 2021;

   6. the affidavit of J Faine dated 27 February 2021;

   7. the affidavit of D Murphy dated 1 March 2021

upon the fifth respondent be taken to have been effected by their being emailed a copy of those documents.

2. The respondents file the affidavit of Mr Phillip Pasfield affirmed 24 February 2021 upon which they sought to rely.

3. The application for leave to appeal be dismissed.

4. The application for a stay of order 3 of the Court’s orders made on 26 February 2021 be refused.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. This application, and the proceedings which give rise to it, concern an ongoing dispute between two Divisions of the Construction, Forestry, Maritime, Mining and Energy Union; namely the Construction and General Division and the Mining and Energy Division. It is the latest iteration of arguments between the two Divisions over the eligibility rules for the membership of each Division. Different eligibility arguments were also the subject of a recent Full Court appeal, in O’Connor v Setka [2020] FCAFC 195. It is fair to say the hostility between the Divisions has escalated, and it is now at the point where Mining and Energy was scheduled to (and did) consider at its annual conference, which commenced on 1 March 2021, whether to resolve to withdraw from the Union, and apply to the Fair Work Commission for status as a registered organisation of its own. The arguments about eligibility for membership play an apparently significant role in the broader breakdown between the Divisions.

2. By an originating application filed on 24 February 2021, the present first respondent (Mr Grahame Kelly) applied for relief pursuant to s 164 of the Fair Work (Registered Organisations) Act 2009 (Cth). In substance Mr Kelly, and the other named applicants, sought a series of orders under s 164 relating to what they alleged was Mr Noonan’s unlawful conduct in acting as if he were the National Assistant Secretary of the Union, or as if he were the Acting National Secretary of the Union, neither office being one the applicants alleged Mr Noonan occupied under the Rules of the Union. Those allegations can be put to one side as they were not the basis for any orders of this Court, and formed no part of the arguments before me.

3. However, the applicants also alleged in their originating application that Mr Noonan, and the National Executive of the Union, proposed to embark on an unlawful course of conduct in considering, and making a decision on, a dispute notified by Construction and General to the National Executive about an alleged overlap in membership eligibility for workers, as between Mining and Energy and Construction and General.

4. By way of interlocutory relief, the applicants sought orders in effect restraining:

1. the convening of a meeting of the...