Case: Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA
Outcome: followed
The principle has also been applied in the Federal Court in a number of cases (for example Beitseen v Johnson (1989) 29 IR 336, La Roche v Cormack (1991) 33 FCR 414, Rocklea Spinning Mills v Anti-Dumping Authority (1995) 56 FCR 406 at 423, Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA, Civil Aviation Safety Authority v Administrative Appeals Tribunal [2001] FCA 1319 , Vanstone v Clark [2005] FCAFC 189). In Beitseen , to which I was also directed by Ms Brennan acting for the Board, the trial judge had made orders directing members of a union to perform and observe the rules of that organisation by treating the respondent as having been validly appointed to the position of secretary in the union, and by treating as null and void a purported resolution of the union that an election be held for that position. The respondent's appointment was for the unexpired term of the previous incumbent in that role, however it was common ground that the unexpired term would expire shortly afterwards, and that an election was in progress to determine who would fill the office for a full term from that time. The appellants sought to appeal the decision at first instance on the basis of issues including whether the respondent was eligible to be appointed to the position pro tem, whether the union could have filled the position by appointment a casual vacancy, and whether the appointment of the respondent had not been effectively revoked by a subsequent meeting. Woodward, Northrop and Ryan JJ held that: &#8226; in the circumstances there was no real contest between the parties as to the right of the respondent to occupy the position &#8226; resolving those questions would be to furnish an advisory opinion which courts traditionally, and for good reason, have been averse from doing &#8226; although the appellants genuinely desired to agitate the issues involved in the grounds of their notice of appeal, such a desire does not satisfy the requirement that the legal rights of the parties should be in actual controversy as articulated Hole v Insurance Commissioner . As explained by their Honours: 'On our understanding that requirement entails that any judgment which might be given on the appeal should confirm or modify rights which remain capable in a real and genuine sense of being enjoyed.' (at 337-338) 24 In concluding that it is not appropriate for the Court to continue with this matter, I adopt the comments of the Full Court of the Federal Court in Mayne Nickless Ltd v Transport Workers Union of Australia [1998] 984 FCA: 'The courts have an obligation to conduct their proceedings, and to deal with an ever-increasing workload, with as much expedition as the overriding demands of justice permit. No encouragement should be given, therefore, to the use of scarce judicial time to decide appeals that are essentially moot. There are other litigants with cases pending before the Court for hearing or delivery of judgment and their claims involve the determination of substantial legal rights of practical importance. This is not the situation in this appeal (see and compare Beitseen).' 25 In the circumstances I am of the view that, in the exercise of the Court's discretion, the appeal should be dismissed. Accordingly I propose to grant the notice of motion sought by the Board. ORDERS 1. The notice of motion filed 20 October 2005 by the Tax Agents' Board of Queensland be granted. 2. The appeal against Administrative Appeals Tribunal Decision Q2004/110 be dismissed. 3. Henry Anthony Aalders pay the costs of the appeal and the notice of motion of the Tax Agents' Board of Queensland, to be taxed if not agreed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 7 November 2006 Counsel for the Applicant: The Appellant appeared in person Counsel for the Respondent: M Brennan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 July 2006 Date of Judgment: 7 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1442.html