Application by Birch, L.R. for an Inquiry into an election in the South Australian Branch of Australian Workers Union

[1991] FCA 186

Re: IN THE MATTER OF AN APPLICATION BY LESLIE RONALD BIRCH FOR AN INQUIRY INTO
AN ELECTION IN THE SOUTH AUSTRALIAN BRANCH OF THE AUSTRALIAN WORKERS UNION
No. S I1 of 1990
FED No. 186
Industrial Law
(1991) 37 IR 420

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - inquiry into alleged irregularities in Union election - whether rule required Union to admit to membership applicants not eligible to join - whether ineligible because work performed did not fall within meaning of "all kinds of general labour" - invalidity of votes cast by members not eligible for membership at time of being admitted to membership - whether membership can be validated by orders under either s. 256 or s. 258 of Industrial Relations Act 1988 ("the Act") - effect of orders made by consent in Election Inquiry in 1982 - whether employer's failure to forward ballot papers to its employees was an "irregularity" - whether signatures on outer envelopes containing votes were forgeries - whether five candidates were not eligible for nomination because they were not at that time "continuous members" - whether court should follow a recent decision of a single judge of the court which construed the Union's rules - whether one candidate was not eligible for membership at time admitted to membership - if so whether he was not eligible for nomination - whether returning officer's direction that 489 ballot papers should not be posted to members was a direction that he considered "necessary ... to ensure that no irregularities occur in or in relation to the election" within the meaning of s. 215(1)(b)(i) of the Act - whether "irregularities" in that Branch Secretary failed to keep a correct register of the addresses of 65 members - whether rule imposed an absolute duty on the returning officer to be satisfied that an indecipherable signature on an outer envelope containing a ballot paper was the signature of the member concerned - whether mere initials on outer envelope constitute a "signature" - whether duty on returning officer to check a random sample of signatures - whether duty on returning officer to advertise the need for current addresses and the availability of duplicate ballot papers - role of court in considering returning officer's exercise of discretion - whether some voters were unfinancial - effect of absence from payroll deduction authority of notice required by rules - whether evidence established that any vote cast by a person who had not applied for membership - whether rules imposed unreasonable conditions on members wishing to be candidates or on members wishing to vote - whether result of the election may have been affected - when the new election should be held and on voters' roll for what year - whether, pending the completion of the new election, the Branch Executive should be restrained from considering further the applicant's eligibility to remain a member of the Union - whether an order restraining members from nominating in the new election for a salaried office in the Branch whilst holding another such salaried office would "modify the operation of the rules" - whether it would be "necessary to enable a new election to be held" (s. 223(3)(d)) - whether applicant, who was unsuccessful at the election, should hold office pending the completion of the new election.

Industrial Relations Act 1988 ss. 196(c), 215, 223, 256 and 258

Rennie v Australian Workers Union (1990) 34 IR 133

Re Carter; Re Federated Clerks Union (1989) 32 IR 1 at 4

Municipal Officers' Association of Australia v Lancaster and Anor (1981) 37 ALR 559 at 589, 592

R v Commonwealth Court of Conciliation and Arbitration (1950) 81 CLR 27 at 62

Re Patterson (1987) 19 IR 373 at 384-5

HEARING

MELBOURNE

#DATE 26:4:1991

Solicitors for Applicant : Maloney and Partners

Counsel for Applicant : Mr F. Di Fazio

Solicitors for Returning Officer : Australian Government Solicitor

Counsel for Returning Officer : Mr S. Cullimore

Mr S. Marshall

Solicitors for Union : Johnston Withers

Counsel for Union : Mr J. Rau

Solicitors for Mr Dunnery,
Branch Secretary : Duncan Groom Hannon

Counsel for Mr Dunnery : Mr T. Stanley

Solicitors for Alex Alexander,

Stephen Baulderstone, Geoff

Burt, Ian Cambridge, Maurice

John Dwyer, Trevor Girdham,

Bill Harris, Arthur Rich,

Tom Sherratt, Harry Sugars

and John Thomas, the

successful candidates : Stanley and Partners

Counsel for the above successful
candidates : Mr R. White

ORDER

The orders of the court are set out in full on pages 36-38 of the Reasons for Judgment.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The hearing from 26 November to 24 December 1990

The court, on 4 January 1991, delivered its findings in relation to alleged irregularities numbered 1 to 8. As the court at that time referred to the nature of the inquiry, and the early history of the proceedings, it is convenient to incorporate, at the beginning of these reasons for judgment, what was said by the court on that occasion.

Findings re alleged irregularities numbered 1-8

"The application for an inquiry into the above election having been filed on 19 June 1990, von Doussa J. on 22 June 1990 ordered that an inquiry be conducted into the elections for each of the offices in the South Australian Branch ("the Branch") of the Australian Workers' Union ("the Union"), which were declared on 21 December 1989. The inquiry was listed for directions hearings on six occasions. The parties' legal practitioners jointly asked the court to commence the hearing of the inquiry in Adelaide on Monday 26 November 1990, the estimate of the hearing time being 10 sitting days. On 30 August 1990 the court raised with the parties the possibility of the hearing taking longer and the question of whether the hearing should commence at an earlier date in order to ensure that the hearing would be finished (and, if possible, judgment given in the matter) before the end of the year; however, the parties' legal practitioners, apparently confident that the matter would be completed in 10 sitting days, maintained their request that the hearing not commence until 26 November 1990. The hearing commenced on that day.

After it became apparent that the matter would take considerably longer than 10 sitting days, it was suggested by one party that the course of the hearing would be assisted if the court were to hear the cases and submissions of all parties in respect of the alleged irregularities numbered 1 to 10 inclusive, with a view to announcing its findings in respect of those 10 alleged irregularities as soon as possible. That suggestion, which was accepted by the court, was intended to enable the parties to have sufficient time to prepare their cases in respect of (a) the remaining alleged irregularities (numbered 11 to 13 inclusive) and (b) the matters which the court is required to consider under s. 223(4) of the Industrial Relations Act 1988 ("the Act"). It was clear that the respondents would seek an adjournment, to enable them to consider the court's findings as to irregularities and to decide what evidence should be placed before the court as to the remaining alleged irregularities and the s. 223(4) question. The hearing has already occupied 20 sitting days, including 6 days during the court's vacation, and since adjourning the matter on 24 December 1990 the court has received written submissions from the parties.

The applicant's counsel, Mr Di Fazio, sought and was given leave to amend the application on a number of occasions. The application in its final amended form, filed in court on 17 December 1990, alleged, as the first irregularity, that: "Persons other than those entitled to vote, namely Brickworker members of the Organisation, were granted a vote and did vote in the election thus preventing or hindering a correct ascertainment of the results of the voting in the election." I find that at least 33 persons who voted in the election had not validly been admitted as members of the Union; the evidence establishes that they were not eligible to become members, under rule 6 of the Union's rules, at the time when they purportedly became members. Those members were Messrs. Chesser, East, Evans, Fuss, Green, Johnson, Matheson, R. L. Normington, B. R. Robinson, Roe, Rooney, Scott, M. C. Smith, Whellum, Burns, Ciantor, Elliot, Gilbert, Healey, Kerr, R. Lehmann, McKelliff, C. J. Murray, Poulton, Rander, Rigney, Shaw, Tate, Turner, Wade, Watt, Wilson and Wray. I accept Mr Stanley's submission that the eligibility of each brickworker "must be determined individually" but on the evidence I am unable to accept his submission that each of them was at the relevant date engaged in manual and/or mental labour in or in connection with one of the callings specified in rule 6, namely " ... all kinds of general labour ...". I find, on the evidence, that the applicant has not proved that 15 members had invalidly been admitted as members. Those members were Messrs. M. Normington, Peisley, Ceravolo, Collenette, A. L. Lehmann, McNeill, T. C. Murray, Pearson, Quinlish, Rawlings, Rydzynski, Simonetta, Worley, Kristensen and I. Smith.

I am unable to accept Mr Stanley's submission that the Union's rules required it to admit to membership all persons who applied for membership (sub-rule 8(a)). As to his attempted reliance upon s. 256 of the Act, the evidence does not support the submission that "each was admitted to membership by a person holding or purporting to hold a position in the organisation and purporting to exercise power under the Rules". Further, in my opinion there is considerable doubt as to whether that section applies to the purported admission to membership of persons not eligible to join an organisation of employees. Section 256 expressly refers to purported "election", "appointment" and "making ... or the alteration ... of a rule ..." but does not expressly refer to the purported admission to membership of persons; as to whether it does so impliedly, it must be noted that s. 260(1), which is the section dealing with a person "treated by the organisation as a member", is expressly limited to persons "eligible" for membership. It should be added that (1) no application has been made under s. 257 of the Act and (2) the statement in Mr Stanley's outline of submissions (page 10 paragraph 8) that Mr Dunnery "applies to the Court for an order pursuant to Section 258 ..." has not yet been considered by the court. I am unable to accept Mr Stanley's submission that the "alleged 'irregularity' is the admission to membership of the brickworker". In my opinion "irregularities" occurred in that persons who were not validly admitted as members of the Union voted in the election; the "irregularity" lay in their voting - not in their admission to membership cp. Mr Stanley's Outline (page 10 paragraph 9.1). Had those persons not voted in the election the first irregularity alleged by the applicant would not have occurred - notwithstanding that their admission to membership was invalid. In my opinion the "irregularity" lay in votes being cast by persons who were not entitled to vote. Each of those votes was an "act ... by means of which: (i) the full and free recording of votes by all persons entitled to record votes and by no other persons ...(was) prevented or hindered" (s. 4(1) of the Act - emphasis added). The second alleged irregularity was expressed in the following terms:

"The omission of an employer namely Longyear Australia Pty. Ltd., in not forwarding ballot papers onto the employers' employees who were members of the Organisation had the result that those members were denied a vote in the election. The full recording of votes by all persons entitled to record votes was therefore prevented or hindered." I find that an irregularity occurred in that Longyear Australia Pty. Ltd. ("Longyear") failed to forward to at least three of its employees, who were members of the Union, ballot papers which had been forwarded by the Returning Officer to those employees, in envelopes addressed to them "c/o P.O. Box 84, Parkholme 5043" (GJC 29). As a result the recording of votes by those persons was prevented - in each case an irregularity as defined in s. 4(1) of the Act. I find that Messrs. P. R. Downes and P. J. Fisher, each of whom gave evidence, did not receive ballot papers and I make the same finding as to Mr K. Holmstrom, based upon the affidavit of Mr Maegraith as what he was told by Mr Holmstrom (whom he inaccurately referred to as Mr K. Holstrum). On the evidence presented, I reject Mr Di Fazio's submission that the court should infer that Messrs. C. D. Ludwig and N. W. McCallum did not receive ballot papers. As to Mr A. M. Harvey I find that he did receive a ballot paper. The evidence does not establish that Mr M. J. Biggins did not receive a ballot paper. No ballot paper was sent to Mr H. Whitehair by the Returning Officer, who said he did not have any address for Mr Whitehair. As to Messrs. D. A. Marston and P. A. Wait, the Returning Officer sent the ballot papers to their residential addresses (Exh GJC 29). I reject the suggestion by the applicant that electioneering material was included in the envelope from the Returning Officer containing his ballot paper. I am not prepared to accept Mr Di Fazio's submission (Outline p 14) that, in relation to persons who were no longer employed by Longyear, Mr Rosewarne "neither returned those ballots to the Returning Officer nor forwarded them on to the member for whom he had viable addresses". As to his submission that Mr Rosewarne "did not forward ballots to at least 7 employees still working for Longyear at the time", having considered Mr Rosewarne's evidence, I am not prepared to find that he personally (as distinct from Longyear) failed to forward the ballot papers to the employees. On his evidence, they were sent to the company's branch office in the relevant State but he had no personal knowledge of what happened to mail, including the ballot papers, after he had arranged for it to be sent to the Branch office (he believed it was sent by an overnight bag). The third alleged irregularity was expressed in the following terms:

"A person or persons who were not entitled to do so did cast votes in the election with the result that persons other than those entitled to record the votes in question namely the 17 members of the Organisation employed by Matthews Bros. Contractors Pty. Ltd., did record them. A correct ascertainment of the results of the voting was thereby prevented or hindered." I find that at least two irregularities occurred in that some person or persons unknown forged the signatures of Messrs. D. J. O'Brien and Gary Francis (both of whom gave evidence) on the outer envelopes containing their ballot papers. It may well be that there were other forgeries on other outer envelopes but the evidence does not satisfy me (in the sense used in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362) that there were such forgeries in respect of other members including Messrs. G. Brokate, R. Hibbett (also known as R. Wall) and P. W. Browne (also known as P. Wiggins). There is much force in the criticisms made by Mr White, of counsel (Outline p 10) as to the applicant's submissions on this aspect.

In his Outline (p 20 paragraph 6) Mr Di Fazio submitted that:- "In any event the employees at Matthew Bros. were not validly admitted to membership because (1) they did not apply to become members (2) they did not consent to applications being made on their behalf and (3) they did not pay any contributions." That submission does not appear to relate to the third alleged irregularity, namely, the claim that there were forged ballot papers. None of the respondents advanced submissions as to this matter. In the circumstances I make no finding at this stage.

The fourth alleged irregularity was expressed in the following terms:

"The full and free recording of the votes of at least two members, namely Leonard John Sharp and Ross Peter Davidson, was prevented and that in each case:

(1) some other person wrongly voted in their stead; and

(2) they were wrongly deprived of a vote." I find that two irregularities occurred in that some person or persons unknown forged the signatures of Leonard John Sharp (an employee of S.A. Co-Operative Bulk Handling) and Ross Peter Davidson (an employee of Woodville Council) on the outer envelopes containing their ballot papers, and recorded votes that that person or persons was or were not entitled to record; such conduct was an offence against s. 315(1)(d) of the Act.

Paragraph (a) of the fifth alleged irregularity was expressed in the following terms:

"(a) 5 candidates namely A. Alexander, T. Girdham, R. V. Willis, L. Noda and T. Sherratt were not eligible to be nominated in that they were not, at the time of their nominations, continuous members within the meaning of Rule 68(a)(ii) and Rule 89(e). I find that there were irregularities in that five candidates, namely Messrs A. Alexander, T. Girdham, R. V. Willis, L. Noda and T. Sherratt, were not eligible to be nominated for the offices for which they stood because at the time of their nominations they were not "continuous members", as defined in rule 89(e), within the meaning of rule 68(a)(ii). Messrs. Alexander and Girdham were successful candidates for the positions of Branch Organisers and Messrs. Willis, Noda and Sherratt were unsuccessful candidates for the positions of Branch Executive Members (GJC 27).

Mr Di Fazio, in submitting that those candidates were not "continuous members" relied upon the reasons for judgment of Pincus J. in Rennie v Australian Workers Union and Anor.

((1990) 34 IR 133). Mr White (Outline paragraph 5.37 and 5.38) in a carefully prepared and strongly argued submission, said that that decision was wrongly decided and should not be followed. Having considered his Honour's reasons for judgment, and the arguments of counsel in the present case, I have decided that the proper course is to follow his Honour's decision, notwithstanding that there are real difficulties in construing the relevant rules. However, that question of construction of the same rules has been recently decided by a Judge of this Court and it is undesirable that there should be conflicting decisions as to their construction. If one applies the construction accepted by Pincus J. to the facts as revealed by the evidence before this court, each of the five candidates was ineligible for nomination. It is hardly necessary to add that, if that construction of the rules does not accord with the intention of the rule-makers, then the rules can be amended. Paragraph (b) of the fifth alleged irregularity was expressed as follows:

"(b) One candidate namely R. Healy was not eligible to be nominated in that he was ineligible to become a member, because at the time that he purported to become a member he was not employed in any industry or calling described in Rule 6."

The correct spelling of that candidate's name is Healey - see GJC 27. I find that an irregularity occurred in that Mr R. Healey, who was an unsuccessful candidate for the office of Branch Organiser, was not eligible to be nominated for that office. That finding is based upon the evidence that, at the time of his purported admission, he was employed as a hand setter. Accordingly, he had not been validly admitted as a member of the Union; for the reasons given earlier in dealing with the first irregularity, he was not eligible to become a member of the Union. The sixth alleged irregularity was abandoned. Paragraph (a) of the seventh alleged irregularity was expressed in the following terms:-

"(a) An irregularity occurred in that the Returning Officer failed to post ballot papers to 489 members of the Union who were entitled to vote. Those 489 members were thereby deprived of a vote. The full and free recording of votes by all persons entitled to record votes was therefore prevented." I find that irregularities occurred in that the Returning Officer failed to post ballot papers to 489 members of the Union who were entitled to vote; accordingly the full and free recording of votes by all persons entitled to record votes was prevented or hindered.

I accept as correct the following submissions by Mr Stanley (Outline pp 20-21):-

"Further, it is submitted that it is not open to the Court to substitute its view of whether such action should have been taken for the view of the Returning Officer and to find that an irregularity had occurred as a result of the action taken. Unless the action of a Returning Officer is wrong in law or such that no reasonable Returning Officer could have taken it, or the exercise of the power to take such action is not a bona fide exercise of that power, for the purpose for which the power is given, the Court should not interfere. Action taken by a Returning Officer in the exercise of the power given by Section 170A overrides the Rules of the organisation concerned. It follows that a failure to comply with those Rules, where such action has resulted in the non-compliance, cannot amount to an irregularity." Mr Stanley submitted (Outline pp 19) that, pursuant to his powers under s. 215 of the Act (adopting Mr White's submission as to the applicability of that section of the Act), the Returning Officer

"... took such action in relation to the election as he considered necessary in order to ensure that no irregularities occurred in or in connection with the election, including omitting to issue ballot papers to 489 financial members of the union otherwise entitled to receive ballot papers where he had reason to believe that the addresses provided to him by the Union on the main listing was not the current address of the member concerned.

24.1 The Returning Officer took this action in the belief that if ballot material was issued and sent by pre-paid post to the addresses provided by the Union the ballot material would be highly unlikely to reach the member and could be misappropriated by other persons. It is submitted such a belief was reasonable in the circumstances." Mr Carey was a truthful witness who explained in detail his actions, his practices and the problems which he faced as Returning Officer. There were, however, some inconsistencies in the way in which he expressed his answers at different times; in particular in answering the important question whether his direction - that ballot papers were not to be posted to the 489 Union members - was a direction that he considered "necessary: (i) to ensure that no irregularities occur in or in relation to the election". I have carefully considered his oral evidence and the evidence contained in his affidavits and I have re-read the transcript of his evidence. Notwithstanding the answers elicited in leading questions by Mr White and his answers to the court (e.g. transcript pp 1416-1417), I am quite satisfied that at the relevant time Mr Carey did not consider it necessary to give that direction in order to ensure that no irregularities occurred in or in relation to the election (s. 215(1)(b)(i)). The passage at pp 1416-1417 of the transcript, cited above, was preceded by the following evidence (transcript p 1416), in answer to counsel for the Australian Electoral Commission: "Mr Cullimore: Did you, as it were, balance in your mind the conflicting interests of additional costs, the committing of additional resources to taking further steps such as the ones His Honour has outlined to trace these 554 members against the perhaps conflicting interests of avoiding irregularities under section 170(a) of the 1904 Act? ---Yes, I did.

His Honour: ... You balanced the conflicting interests of additional costs such as writing to the members beforehand?---I considered the cost, yes. Against what? I am trying to get what the balance was?---Really against the product or the result of the expenditure of those costs, and I also considered my statutory obligation to prevent irregularities by not posting to members at the addresses that were not current or dead letter addresses. ....

His Honour: The balance is of the cost. It was a cost benefit. The money expended on the one hand against the likely number of members for whom you got up to date addresses?---Yes."

Paragraph (b) of the seventh alleged irregularity was expressed as follows:

"(b) Alternatively, if no irregularity occurred as alleged in paragraph 7(a) (on account of the operation of s. 170A of the Conciliation and Arbitration Act or otherwise) there was an irregularity in that the Branch Secretary failed to keep a correct Register of the postal addresses of all members of the Branch by failing to keep all addresses up to date in accordance with s. 268 of the Industrial Relations Act 1988. 489 members of the Branch were thereby wrongly deprived of a vote. The full and free recording of votes by all persons entitled to record votes was thereby prevented." In view of my finding that irregularities occurred in relation to 7(a) above, it is not necessary for me to deal with this alternative allegation.

The eighth alleged irregularity was expressed in the following terms:-

"There was an irregularity in that the Branch Secretary failed to keep an address for 65 members of the Union. This failure resulted in ballot papers not being sent to those members, who were entitled to receive them. Those 65 members were thereby wrongly deprived of a vote. The full and free recording of votes by all persons entitled to record votes was therefore prevented."

I find that irregularities occurred in that the Branch Secretary failed to keep a correct register of the names and addresses of 65 members of the Union. That failure constituted a breach of rule 48(h) of the Union's rules. The significance of the duty on the Branch Secretary under rule 48(h) is reinforced by rule 63 which confers upon members (as there defined) a right to inspect all records including the "register of the names and addresses of all the members of the Branch". The duty imposed by the rules upon the Branch Secretary to keep a correct register of the names and addresses of members must not be seen as a formality; it is an important duty having regard to the express duties imposed upon registered organisations by ss. 268(1)(a), 268(2)(a) and 268(2)(c) of the Act. Section 268(3) requires that there be lodged with the Industrial Registrar each year "a statutory declaration by the

(Federal) secretary ... certifying that the register of members has, during the immediately preceding calendar year, been kept and maintained as required by subsection (1) and

(2)". The importance of those statutory provisions is not lessened by the fact that on 27 April 1967 the Industrial Registrar granted to the Union a certificate of exemption under s. 153 of the Conciliation and Arbitration Act 1904-1966 (see document supplied by Mr Rau, on behalf of the Union, on 2 January 1991).

The failure of the Branch Secretary to keep addresses for the 65 members of the Union was both a breach of the Union's rules and also an "omission by means of which: (i) the full and free recording of votes by all persons entitled to record votes ... (was) prevented or hindered" (see definition of "irregularity" in s. 4(1) of the Act). It should be said that Mr Dunnery has only been Branch Secretary since February 1989. I accept his evidence that he had been careful to follow the practice which had been established by previous Branch Secretaries. That policy was, essentially, to leave the administration of the office, including the recording of details relating to members and their addresses, to Mr Higgs, who had worked in the Branch office for 17 years and who described himself in his affidavits as an accountant. Mr Dunnery gave evidence that he directed Mr Higgs to supply all information requested by the Returning Officer from the Branch; his explanation for so doing was that he knew that the ballot was going to be "a very hard-fought ballot", and he "did not want to be seen to be manipulating anything"."

1. The court then referred to the ninth and tenth alleged irregularities but, for the reasons there given, it refrained from expressing any view at that time as to either of them.
   The resumption of the hearing on 18 February 1991

2. The hearing resumed in Adelaide on 18 February 1991, on which day the applicant was granted leave, over the objection of some respondents, to add alleged irregularity number 14. The court (transcript pp 2113-2114) granted leave - with some reluctance - partly because of the nature of the proceeding, namely, an inquiry, and partly because of the importance of the interests of the members in the inquiry, as distinct from the interests of the parties. The court was conscious of the fact that it had previously heard submissions from the respondents that there "has got to be an end somewhere". However it pointed out that there would be no further evidence from the applicant on that allegation, and decided that the proper course overall in the interests of everyone was to have the issue, raised by the proposed alleged irregularity number 14, debated to whatever extent was necessary. The court then said that "Of course the respondents will have full opportunity to not only adopt anything and everything they (have) already put but to put as full an argument and indeed to call evidence on it if they wish."

3. The applicant was also granted leave to amend his application in other respects during the remainder of the hearing. It is convenient to add at this point that on 1 March 1991, because the hearing had not been completed after occupying an additional 10 sitting days (i.e. 30 sitting days in all), the court directed that any remaining submissions be put in writing, served on other parties and lodged in the court. Further submissions were received from Mr Di Fazio, counsel for the applicant, on 4 March 1991 and from Mr White on 13 March 1991.

4. As to the remainder of the alleged irregularities, the court, on 28 February 1991, announced its findings (transcript pp 2761-2) that none of those numbered 9, 10, 12 and 13 had "happened" (s. 223(1)) and that certain of the irregularities alleged as numbers 11 and 14 had happened; the reasons for those findings are now given.
   Alleged irregularity number 9

5. This irregularity (as amended) was expressed as follows:
   

"(a) An irregularity occurred in that the Returning Officer failed to check any of the signatures on ballot papers admitted to scrutiny.

(b) It is the duty of the Returning Officer to check a random sample of signatures on the outer envelopes of ballot papers in special and unusual circumstances.

(c) Special and unusual circumstances were present in the election."

1. Having regard to the words "signatures on ballot papers" appearing in paragraph (a) above, it should be said that the court, in delivering its findings on 4 January 1991, drew attention to the fact that the irregularity, as then specified by the applicant, referred to "the signatures on the ballot papers (sic) ...". It will be noted that, although the terms of the alleged irregularity were amended after 4 January 1991, they continued to refer, in paragraph (a) - but not in paragraph (b) - to "signatures on ballot papers". It is surprising that, in litigation relating to a secret ballot, legal practitioners could draft, settle and file a formal application which referred to signatures on "ballot papers" (instead of on "the outer envelopes"). Such an error in oral submission might be excused as being a slip of the tongue; however, it can only be classed as carelessness when it appears in a formal written application - made worse by its reiteration in the application which had been amended after the court had drawn attention to it on 4 January 1991. Regrettably that was not the only example of careless drafting by the applicant's lawyers in stating the "irregularities" and the "facts relied on" and also in a number of amendments to them; it may be added that the applicant's case was also notable for the quite surprisingly large number of occasions on which his counsel "resiled" from a submission, or "withdrew" it, either whilst in the process of making it or immediately after doing so.

2. The "facts relied upon" in support of this allegation as amended were as follows:
   

"9.1 The special and unusual circumstances were that the Returning Officer was concerned about the possibility of ballot papers being misappropriated by persons other than persons entitled to receive them and that such persons might tamper with the ballot paper or otherwise deal with it unlawfully. 9.2 The Returning Officer knew or believed that the South Australian Branch held signatures for about one third of the membership."

1. Rule 78 of the Union's rules is headed "Method of Balloting" and includes the following provision:
   

"The outer envelope addressed to the Returning Officer shall have printed on the back a number as allocated by the Returning Officer according to the record of membership as supplied by the Branch and the word "signature". After recording the vote members shall place the ballot paper in the envelope marked "Ballot Paper" and insert it in the stamped addressed outer envelope and post same in the stamped addressed envelope supplied for that purpose. If the member's signature is not endorsed on the outer envelope addressed to the Returning Officer, the ballot paper in the inner envelope shall not be admitted to scrutiny."

1. Rule 78 on its face may appear to require the returning officer to refuse to admit to scrutiny in a ballot a vote unless he is affirmatively satisfied that the signature on the outer envelope is "the member's signature". Mr White referred the court to a photo copy of the signatures of certain Supreme Court Judges on a document, signed by them in the exercise of their powers as Judges. In the case of at least 2 of the judges it was quite impossible for a person unfamiliar with their signatures to identify the names of those judges.

2. Having considered Mr White's submissions, I accept that (1) the signatures of some persons are indecipherable, and (2) the Union's rules do not require that all members sign an application form or lodge with the Union specimen signatures. Accordingly it was not possible for the returning officer to check the signatures on the outer envelopes against the known signatures of all members.

3. After reflecting on the matter I accepted Mr Marshall's submission that rule 78 did not impose upon the returning officer an absolute duty to be satisfied that the signature on each outer envelope was in fact the signature of the member concerned. In my opinion where the returning officer has no reason to believe that it is not "the signature of the relevant member", (as Mr Marshall put it), the rule is complied with if he checks that there is a purported signature (as distinct from mere written or printed initials) even if the signature is indecipherable.

4. I reject the applicant's submissions that the rules imposed upon the returning officer a duty "to check a random sample of signatures on the outer envelopes of ballot papers in special and unusual circumstances" (paragraph (b) of alleged irregularity number 9 - set out earlier). In my opinion the rules, including rule 78, cannot be construed as imposing any such duty.

5. In addition, the applicant has not established that any "special and unusual circumstances were present in the election"; further, the evidence does not establish that the returning officer at the time of the election "knew or believed that the ... Branch held signatures for about one third of the membership" - as alleged in the applicant's amended "facts relied upon".
   Alleged irregularity number 10

6. In my earlier findings (4 January 1991) I had referred to this alleged irregularity (in its then form) and said (pp 17-18) that Mr White -
   

"submitted that any "failing" by the Returning Officer to advertise further did not amount to an irregularity in the relevant sense. There appears to be much force in that argument advanced by Mr White. However, as I do not consider that I have had the benefit of adequate submissions on the matter overall, I do not propose expressing any view as to this alleged irregularity."

After the hearing resumed on 18 February 1991, that alleged irregularity was amended by leave and read:-

"10(a) An irregularity occurred in that the Returning Officer failed to advertise prominently and widely the fact of the election and in particular that addresses of members were unknown or uncertain in a large number of cases and that those members who did not receive ballot papers were entitled to apply for duplicate ballots.

(b) The failure of the Returning Officer to advertise was an omission by which the full and free recording of votes by all persons entitled to record votes and by no other persons was prevented or hindered."

1. On the evidence the returning officer gave notice of the election to the members of the Branch in "The Australian Worker" on 8 September 1989 (exhibit GJC 55 to Mr Carey's affidavit sworn 3 December 1990). That notice informed the members that "... voting material will be posted on November 10, 1989 to eligible members at the address shown in the Organisation's records". An advertisement in identical terms (although somewhat smaller in size) was published by the returning officer in the general news section of "The Advertiser" newspaper on 22 September 1989 (exhibit GJC 56). On the evidence I reject the applicant's contention that the returning officer failed to advertise prominently and widely the fact of the election.

2. It should be said, in fairness to the applicant, that during the hearing the court raised the question of whether, given the returning officer's knowledge that the addresses of a substantial number of members were either unknown or uncertain, he was under a duty to advertise to the members (1) that he did not have any address for a number of the members, (2) that he was uncertain as to the addresses of a substantial number of the members, (3) that it was important that the members ensure that the returning officer had their current addresses and (4) the availability of duplicate ballot papers. It appeared to me at the time to be strongly arguable that he should have done so.

3. The question before the court is not whether it was desirable that the returning officer should have advertised those matters to the members. It is not for the court to decide whether he should have taken that course. Mr Marshall referred the court to Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No. 1) (1989) 32 IR 1 at 4 where Gray J. said:
   

"... the Court must act with care. It has no jurisdiction to sit on appeal from the returning officer, for the purpose of determining whether his or her decision was correct. If faced with the task of deciding what was an appropriate direction, the Court may have taken a different view from that taken by the returning officer. The Court is not charged with that function. Unless the direction of a returning officer is wrong in law, or such that no reasonable returning officer could have given it, or the exercise of the power to give a direction is not a bona fide exercise of that power, for the purpose for which the power is given, the Court should not interfere."

Gray J. was there dealing with a somewhat different question, namely, whether a direction of a returning officer had given rise to an irregularity; in the present case the alleged irregularity related not to a direction but to an alleged failure to take action to ensure that no irregularities occurred (i.e. a failure by him to advertise certain matters (see paragraph 10(a) above). However, in my opinion the principle enunciated by Gray J. in Re Carter as to the limited role of the court is equally applicable to an alleged irregularity consisting of a failure by the returning officer to take action.

1. Applying that principle, I found that alleged irregularity number 10 had not happened; it was a matter for the returning officer to decide whether to advertise to the members the fact "that addresses of members were unknown or uncertain in a large number of cases and that those members who did not receive ballot papers were entitled to apply for duplicate ballots (i.e. ballot papers)" - as claimed in the applicant's alleged irregularity number 10.

2. I have noted the statement in the returning officer's written submission, lodged 22 February 1991, as to the various steps that he intends to take "if a new ballot is ordered" but I should say that I do not regard that statement as a formal undertaking to the court.
   Alleged irregularity number 11

3. As to this alleged irregularity, the court on 28 February 1991 expressed its opinion and made a finding in the following terms (transcript pages 2761-2):-
   

"The application in its final amended form (i.e. amended on 26.2.91) alleged that irregularity number 11 was: An irregularity occurred in that approximately 2264 members who were not financial in accordance with the rules of the union were posted ballot papers, of which number approximately 905 voted. Having considered Mr Stanley's submission (which was adopted by Mr White) and read the transcript of it, I am unable to accept that the deductions by the employer in each member's first year of membership were appropriated, either by the member or by any person or body authorised by the union, to meet the member's liability for contributions in his second year of membership; the result of such appropriation would be to leave him in arrears for the first year's contributions, for which arrears he could be sued (rule 12(d)). The material does not support any "appropriation"; reasons for that opinion have been made clear during Mr Stanley's address.

The basis of the figures, which are alleged in the application as approximations, appears in the written summary of the applicant's submissions (lodged 25/2/91) and from Mr Di Fazio's oral submissions in respect of this irregularity. That basis was criticised in Mr White's oral submissions (transcript pages 2677 to 2680). He submitted that if, contrary to his submissions, the court were to find that alleged irregularity number 11 happened, then the applicant's figures of approximately 2264 unfinancial and approximately 905 voters should be reduced to no more than 1654 unfinancial members and 662 voters respectively. Mr White made it clear that he was not conceding that those figures should be adopted. However, having listened to his submissions and those of Mr Di Fazio and having (read) the transcript of those submissions, it may be that Mr Di Fazio's figures should be reduced by reason of some or all of the matters mentioned by Mr White.

Although it is not possible on the evidence to decide precisely what the figures were, on the material I find that an irregularity happened in that ballot papers were wrongly posted to a large number of unfinancial members and that a large proportion, possibly as high as 40 per cent, of those unfinancial members voted in the election and their votes were wrongly admitted to scrutiny in the ballot. (The admission of) each of those votes was an: act ... by means of which:

(i) the full and free recording of votes by all persons entitled to record votes and by no other persons ... (was) prevented or hindered. (Section 4(1) of the Act)".

It may be added, in relation to the submission that contributions paid in the first year "were appropriated ... (to the) second year", that in Young v Australian Workers Union (1984) 9 IR 373 at 376 Gray J. said:

"If the balance is not paid, further payments of instalments in the next financial year will be credited against the outstanding balance of the previous financial year. When sufficient is paid to discharge the whole of the annual contribution for the previous financial year, the member concerned will then be shown in the branch records as entitled to a ticket for the previous financial year, and that ticket will be issued. If, therefore, a member continues only to pay instalments of one fifty-second or one twenty-sixth of the current annual contribution each week or fortnight, such member will continue from year to year to be late in completing the payment of annual contributions. At no time will such a member receive a ticket within the financial year to which such ticket relates, or be shown in the membership records of the Branch as being entitled to such a ticket on 31 July."

Alleged irregularity number 12

1. This alleged irregularity read as follows:-
   

"There was a breach of Rule 8(c) in that the Payroll Deduction authorities used for the purpose of authorizing the making of continuous Payroll Deductions did not contain the Notice required by that Sub-Rule. That breach constitutes an irregularity in relation to the election in that an indeterminate number of members were thereby not made aware that they would not be entitled to vote unless they paid the whole of their contribution for the financial year 1988/1989 by 31 July 1989."

1. The "facts relied on" as set out in the amended application included the following:-
   

"12.6 If the notice required by Rule 8(c) had been placed on the Payroll Deduction Authority, some of that indeterminate number of members, referred to in paragraphs 4 and 5 above, would have ensured that the full amount of contribution for the 1988/1989 year were (sic) paid by 31 July 1989."

1. Rule 8(c) provided as follows:
   

"The verbiage and design of application forms referred to in

(a)(i) of this Rule and payroll deduction authorities referred to in (a)(ii) of this Rule, shall be as determined from time to time by the Executive Council and such payroll deduction authorities shall contain notice to the applicant that unless contributions required by Rule 10 or Rule 11 are paid in full on or before the 31st of July in each financial year, such applicant shall not be entitled to vote in the election of officers or plebiscites conducted within the Union."

1. I accept the submission of Mr White that:
   

"There is no evidence that even one member, let alone an indeterminate number of members, would have paid the contribution by 31st July 1989 had the Pay Roll Deduction authority contained the requisite notice. ... if the Applicant does have some knowledge or evidence of the matter, he has not placed it before the Court."

Mr White later said:

"The absence of any evidence from members on this topic is somewhat surprising given the Applicant's assertion that there are approximately 1,100 persons in this category. One would have thought that it would not have been difficult for the Applicant to identify and lead evidence from at least a few of such members if they did in fact exist. It is also significant that the Applicant did not give any evidence himself, or cross examine Dunnery, Higgs or Carey, with a view to establishing that there (were) persons in this category."

1. Given the applicant's failure to call evidence on this matter, I am not prepared to infer that any of the members concerned would have paid the necessary amounts if the rule 8(c) notice had been on the payroll authority deduction. There is no evidence that the members would have had copies of that authority to remind them of the need to do so if they wished to vote in the election.

2. I also accept Mr White's written submissions that:
   

"12.5 ... the Rule 8(c) Notice is required to be on those payroll deduction authorities used as applications for membership pursuant to Rule 8(a)(ii) and only on those authorities. There is no requirement for such a notice to be on authorities used by persons who are already members, or who join the Organisation by one of the other methods specified in Rule 8(c). The evidence in this case does not enable a finding that the defective payroll deduction authorities have been used as applications for membership by any of the members said to be affected by this Ground. ....

12.7 Rule 8(c) is concerned only with one class of payroll deduction authority, namely, that used by persons seeking membership of the Organisation and who use the signing of a payroll deduction authority as the manner of making application. It is that authority which must contain the requisite notice "to the applicant". The rule is concerned about giving notice to Applicants for membership, not to existing members. This is confirmed if one has regard to the history of the Rule. ....

12.14 ... The Applicant asserts that the indeterminate number referred to in paragraph 12.3 who would, had the Rule 8(c) Notice been included on the payroll deduction authority, have paid their annual contribution by 31st July 1989 and thereby become entitled to receive a ballot paper and to vote in the election includes approximately 2,264 members who had been members of the Union since at least some time in the 1987/88 year and who had part of their contributions for the 87/88 year applied towards the 88/89 year contribution. 12.15 The 2,264 members referred to in paragraph 12.4 are the same 2,264 members referred to in Ground 11. The gist of the Ground 11 complaint is that the 2,264 members were given votes notwithstanding that monies paid in the 87/88 year were applied to payment of the 88/89 contribution. Assuming for the sake of the argument (but not conceding) that the Applicant makes out that contention, it will not add anything to the number of votes possibly affected for the Court to determine Paragraph 12.4. The Applicant cannot duplicate the number 2264 in Ground 12. If it be the case (which is of course disputed) that ballot papers were wrongly sent to the 2,264 members then it is of academic interest only in the context of this Inquiry for the Court to enquire as to what those members might have done had the Rule 8(c) notice been present."

Having regard to what has been said already, it is unnecessary to consider the other submissions advanced by Mr White as to alleged irregularity number 12.

Alleged irregularity number 13

1. This alleged irregularity was as follows:-
   

"An irregularity occurred in that up to 650 members were wrongly admitted to membership and were therefore not entitled to receive ballot papers or to vote in the election but in fact received ballot papers and approximately 40% of such members voted in the election, whose votes were wrongly admitted to scrutiny."

The only "fact relied upon" by the applicant in support of this allegation was as follows:

"13.1 An indeterminate number of members, being up to 650, did not make application for membership or did not consent to such application being made on their behalf, in accordance with Rule 8(a) and (b) of the Rules."

1. There was evidence that the method of enrolling new members into the Union is not satisfactory in some areas. In my opinion it has at times resulted in persons being treated as having joined the Union when in fact they have never applied, expressly or impliedly to become members and had not authorised, expressly or impliedly, their employer or any other person to apply on their behalf.

2. However, having considered Mr White's written and oral submissions, I accept that the evidence put before the court by the applicant, including the evidence of Mr Parker and that of Mr Higgs, has failed to establish that a vote was cast in the subject election by any person who had not made "application for membership or did not consent to such application being made on their behalf ..." (see paragraph 13.1 of the application, set out above).
   Alleged irregularity number 14

3. This alleged irregularity was "that 24 ballot papers were wrongly admitted to scrutiny by the Returning Officer contrary to Rule 78." On 28 February 1991 the court announced (transcript p 2761) its finding:
   

"... that an irregularity happened in that the returning officer wrongly admitted to scrutiny two votes, namely, those enclosed in outer envelopes numbered 02315 and 03024. (The admission of) each of those votes was an: act ... by means of which:

(i) the full and free recording of votes by all persons entitled to record votes and by no other persons ... (was) prevented or hindered (section 4(1) of the Industrial Relations Act 1988)."

1. As to the two votes contained in outer envelopes numbered 02315 and 03024, I am satisfied that they were wrongly admitted to scrutiny. Mr Marshall, counsel for the returning officer, in his written submission filed 22 February 1991, accepted that "the mere writing of initials" on the outer envelope could not constitute the "signature" required by rule 78.

2. I reject the claim in the applicant's amended application that the remaining 22 ballot papers were "wrongly admitted to scrutiny by the Returning Officer contrary to rule 78". In fairness to the applicant it should be stated that, during the course of the inquiry, the court had expressed doubts as to the admission to scrutiny of votes contained in outer envelopes in respect of which the signatures were illegible. Those doubts led to a detailed examination of the outer envelopes and that in turn led to the questioning of Mr Carey, the returning officer, at some length as to the signatures on certain outer envelopes. However, having considered the matter, I have accepted the submissions of both Mr White and Mr Marshall that a signature that is indecipherable is nonetheless a signature within the meaning of rule 78. Those submissions have been referred to in greater detail earlier in these reasons, in dealing with alleged irregularity number 9; the terms of rule 78 appear in that part of these reasons.
   Mr Dunnery's application under s. 258

3. This application, as amended, was dismissed by the court on 22 February 1991. It is convenient to incorporate in these reasons for judgment what was said by the court on that occasion (transcript pp 2408-2410):-
   

"I have decided not to grant Mr Dunnery's amended application under section 258 of the Industrial Relations Act 1988 ("the Act"). The application was pressed at considerable length by his counsel, Mr Stanley, who marshalled a number of factors designed to persuade the court to make one or other of the alternative orders sought. His detailed submissions have required - and have received - careful consideration since the conclusion of the hearing of that application. I accept Mr Stanley's submission that the word "invalidity" in the definition in section 254 is wide enough to include a nullity ie that it is not necessary that the "invalidity or nullity" result "from" or be "caused by" any of the matters set out in that definition of "invalidity". However, having regard to the general tenor of the Act as to the importance of rules relating to conditions of eligibility, and then I interpolate a matter referred to in the submissions of Mr Marshall of counsel on behalf of the returning officer, and to the particular context of section 258 as one of the validating provisions and, in particular, section 260 of the Act, I do not consider that parliament intended that section 258 could be used to validate the act of admitting to membership of a registered organisation ... employees who were not eligible under its rules to join that organisation ie in the present case the admission to membership of the Australian Workers Union of the 33 brickworkers.

It may be that the court has power to grant the alternative order sought by Mr Stanley ie to validate the act of the returning officer in admitting to scrutiny the votes cast by those persons. Assuming, but without deciding, that the court has power to do so, and assuming, (contrary to the opinion I have expressed) that the court has power to make the first order sought ie to validate the membership of those persons, I have come to the conclusion that it would not be a proper course for the court to make either of the orders sought.

It follows that there is no order that the court "considers appropriate" within the meaning of section 258(3). I will refer to some of the submissions advanced. I accept Mr Stanley's submission that, for Mr Dunnery to succeed in this application, it is not necessary for him to show a benefit to the union. I am unable to accept Mr Stanley's submission that a refusal of the application would constitute an injustice to the 33 brickworkers.

I do not accept the submission of Mr Di Fazio, counsel for Mr Birch, that the relevant officers of the South Australian branch of the AWU were "reckless" in failing to take action in respect of the brickworkers after the consent orders made by Mr Justice Evatt on 28 May 1982. On the other hand, I am quite unable to accept Mr Stanley's submission (transcript page 2275) that "the issue did go away and the organisation's officers could have legitimately considered that the matter had been resolved."

Mr Dunnery deposed in his affidavit in support of his application under section 258 that the "question of the entitlement of the brickworkers to be and remain members has been regarded as settled within the union since 1982." It is obvious that the union could not have had legal advice to that effect from any competent lawyer; further, there is not material before the court to suggest that the union's officers had received such advice from anyone. In saying that I am referring to advice as distinct from the formation of a view by the officers without having any advice. There was no logical or rational basis upon which anyone could have formed the view that the question of the entitlement of all of the brickworkers to be members had been resolved. It may be that the officers of the union hoped that that issue would not be raised again. It may be noted that the issue raised in the proceedings before Mr Justice Evatt was whether the refusal to give ballot papers to the brickworker members would be an irregularity within the meaning of the word in the Act.

It would have been much more sensible and far less costly in the long run if the union's officers had obtained legal advice as to how to ensure that the issue as to the eligibility of the brickworkers to become members could not be raised again. Mr Justice Evatt had not decided that question; he had simply made orders based purely upon ... certain unspecified parties having reached what was called a "settlement in relation to outstanding issues". I should add that I express no opinion as to his Honour's power to make orders based simply upon the consent of whatever parties were present on Friday, 28 May 1982. I note that his Honour recorded in his reasons for judgment on 26 May 1982, ie two days earlier in dealing with the earlier issue that a "Mr Kelly of the Crown Solicitor's office, South Australia, appeared for the returning officer. Mr Kelly indicated that the returning officer would abide by any order of the court and produced to the court certain records from the returning officer." The reference to that is 2 Industrial Reports 69.

There is nothing to suggest that Mr Kelly continued to participate in the proceedings; nor is there anything to show that he was a party to the "settlement" of the remaining issue which took place at lunch-time on Friday, 28 May 1982. Lastly, I accept the submission of Mr Di Fazio that the making of either of the orders sought (by Mr Dunnery under s. 258) would do substantial injustice to a member of the union, namely Mr Birch, in that it would deprive him of the benefit of the court's finding on 4 January 1991 that the first alleged irregularity had been established ie that votes had been cast by at least 33 brickworkers who were not entitled to vote.

However, the main reason for my decision is that, having examined all the circumstances, including the proceedings before Mr Justice Evatt in 1982 and the history since 1982 upon which Mr Stanley places some reliance, I do not consider it would be "appropriate" within the meaning of section 258(3) to make either of the orders sought. On the contrary, I consider that it would be quite inappropriate to do so. The application under section 258 is dismissed."

Mr White's submission that rules which restricted the members' rights to be candidates contravened s. 196(c)

1. On 28 February 1991 (transcript p 2762) the court said that it was unable to uphold Mr White's submission that the Union's rules, as construed in Rennie v Australian Workers Union (1990) 34 IR 133 - which decision has been applied by me in this case - imposed on members, namely, potential candidates, conditions that were unreasonable and accordingly contravened s. 196(c) of the Act.

2. I accept Mr Di Fazio's written submission, lodged 25 February 1991, that, on the construction of the rules advanced by him:
   

"2. ... all members on pay roll deduction system would be paying in advance, having already paid the whole of the contributions due for the year in which they joined, at the time that they joined. Such members will therefore never be in arrears.

3. On this interpretation, where the member reaches the end of the financial year in which he joined, he is required to pay a lump sum equal to the difference between the sum accumulated by periodic payments (from the date that he joined until the end of the financial year in which he joined) and the cost of the ticket for the second year.

4. Thereafter the member will commence pay roll deduction payments at the beginning of the second financial year; these payments will be in advance; by the end of the second year he will have accumulated enough to pay a lump sum on the 1st of August of the third financial year. This process will continue indefinitely and the member will never be in arrears."

1. As to Mr White's contention that the rules impose, on members who are potential candidates, "conditions, obligations or restrictions that ... are oppressive, unreasonable or unjust", I also accept Mr Di Fazio's written submission "that those consequences follow not because of the effect of the rules but because the system of pay roll deduction (sic), which had formerly been implemented consistent (sic) with the applicant's construction, was allowed to deviate from the rules". On that matter the evidence of Mr Higgs was that when the pay roll deductions began, the members used to pay in a lump sum for a full year's dues; thereafter, as Mr Higgs said, "over the years that has been let slide a bit ... Some just start paying in arrears so to speak" i.e. a "slide" from the practice of paying the lump sum.

2. In deciding to reject Mr White's submission, based upon s. 196(c) of the Act, I have applied the well known statement of principle enunciated by Deane J. in Municipal Officers' Association of Australia v Lancaster and Anor. (1981) 37 ALR 559 at 589 and 592:
   

"The constraints and restrictions imposed, by positive and negative requirements of the Act and Regulations, upon the freedom of the members of an organization to select, for themselves, the rules which they consider appropriate for their particular organization, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organization is primarily a matter for the members (Watson v Australian Workers Union (1967) 10 FLR 347 at 361; Cassidy v Amalgamated Postal Workers Union (1967) 11 FLR 124 at 126-7; Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 20 ALR 545 at 561; Re Airline Hostesses' Association (1980) 37 ALR 110 at 148, per J.B. Sweeney J). This court has no authority generally to supervise the content of the rules or to require that the rules comply with what those constituting the court might see as preferable, desirable or ideal. To put the matter differently, it is for the members, or those entrusted by the members in that regard, to decide the content of the rules. The function of this court is to determine, in accordance with ordinary judicial procedure, whether some provision or provisions of the rules adopted by, or on behalf of, the members can properly be described not merely as undesirable but as oppressive, unreasonable or unjust. In this regard, it seems to me that if any of the comments of members of the Commonwealth Industrial Court in Cameron v Australian Workers Union (1959) 2 FLR 45 would support the view that the court was exercising a primary, rather than a restricted supervisory, function in determining whether the rules of an organization conflicted with the requirements of s. 140(1)(c) of the Act, those comments should not be followed by this court. Nor am I, with respect, able to agree with the comment of Dunphy J. in the last-mentioned case (supra at p 68) to the effect that it would appear that, in selecting the words "oppressive, unreasonable or unjust", the "legislature has endeavoured to cast its net as widely as possible.

....

(page 592) The matter for decision is not, however, what would, in the view of the court, constitute the most desirable provisions to be contained in the rules of the Organization. The matter for decision is whether the court is persuaded that the conditions, obligations or restrictions imposed by the actual rules of the Organization upon applicants for membership or members are "oppressive, unreasonable or unjust" within the ordinary strong meaning of those words. ...To the contrary, the relevant provisions of the rules of the Organization are, in my view, within the limits of what members can reasonably and properly, and without injustice or oppression, accept as appropriate to the requirements of their own particular organization."

Mr Stanley's submission that rules which restricted the members' rights to vote contravened s. 196(c)

1. The court, on 1 March 1991, (transcript p 2832) rejected the submissions of Mr Stanley, supported by Mr White, that the rules imposed unreasonable or oppressive conditions on members in respect of their entitlement to vote. In reaching that decision the court's reasons were substantially the same as those given in the previous paragraph, in dealing with Mr White's submission that the rules contravened s. 196(c) of the Act by reason of the fact that they imposed unreasonable restrictions on members wishing to become candidates. In considering Mr Stanley's submission, the court again applied the statement of principle in Lancaster's Case, (quoted in the previous paragraph). In deciding that the rules did not impose unreasonable or oppressive conditions on members as to their right to vote, I had regard to the provision in the rules for notice to members in the "Australian Worker" but did not overlook the respondent's reference to the evidence that many members did not receive that publication.

2. It may be desirable to add that, in the course of Mr White's argument, the court expressed the opinion (transcript p 2826) that the rules, on their true construction, did not treat as unfinancial a member who before 31st July "had had deducted from his wages the full amount of the year's contributions", part or all of which deductions were not forwarded to the Union by the employer cf. Young v Australian Workers Union (1984) 9 IR 373 at 376. Since then I have reconsidered that question, in the light of Mr White's submission, but my opinion is unchanged.
   Whether the result of the election "may have been affected ... by irregularities"

3. Section 223(4) of the Act provides as follows:-
   

"The Court shall not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities."

On the material before the court I am not prepared to find that the circumstances give "rise to a likelihood that similar irregularities may have happened ...". However, in my opinion the irregularities already found by the court to have happened are themselves such that, in respect of each of the persons declared elected, other than Messrs. Bill Harris, Robert Sneath and Harry Sugars, "the result of the election may have been affected ... by irregularities". Having so decided, the next question is as to the timing of any new election and as to what orders should be made.

When the new election should be conducted and whether it should be on the voters' roll for the year 1989/90 or for the year 1990/91

1. Mr Di Fazio has submitted that the new election should be held (i) "as quickly as possible" and (ii) on the roll of voters for the 1989-90 year. In deciding that those submissions should both be rejected, I have taken into account (a) the terms of Rule 77, (b) the history of changes in the rules and (c) the evidence as to the change in the practice within the Branch as to the payment of lump sums. I have decided to accept the submissions advanced by Mr Stanley, supported by Mr White, that the new election should not be held until after 31 July 1991. On the related question of whether it should be conducted on the voters' roll for the year 1990-1991, after considering the competing submissions I have accepted that put by Mr Marshall, on behalf of the returning officer, as follows:
   

"... if the 1990 roll is used, given that it was prepared on the same basis as the 1989 roll ... as a result of the findings in relation to ground 11, there will be a considerable number of people who will be unfinancial and a considerable time would be required to track those persons down. If the 1991 roll was used, the returning officer would have time to identify such persons before 31 July 1991, with the assistance of the branch administration, with a view to giving them an opportunity to vote."

What orders should be made under s. 223(3)

1. Having considered the submissions of the parties, I have decided to make orders in substantially the terms of each of the orders proposed by Mr White (lodged with his written submission on 13 March 1991), with the exception of his proposed order 8 which sought that the operation of rule 74 be modified; that order will not be made, for reasons which will be set out later in refusing to make an order to that effect sought by Mr Stanley. The orders which will be made are orders that:
   1. Each of the elections for the offices the subject of the inquiry,
   

other than the election of four delegates to the 1990 Annual Convention and other than the election of Bill Harris, Robert Sneath and Harry Sugars to the office of Branch Organiser, be declared void.

1. Each of the persons, other than the four delegates to the 1990

National Convention and other than Bill Harris, Robert Sneath and Harry Sugars referred to in paragraph 1 hereof, purporting to have been elected to the offices the subject of the inquiry are declared not to have been so elected.

1. The Industrial Registrar be directed to make arrangements for a

new election ("the new election") to be held, as soon as practicable after 31 July 1991, and that it include the calling of fresh nominations (a) for each of the offices the subject of the inquiry, other than the offices of delegates to the 1990 National Convention and (b) for five only of the eight offices of Organiser.

1. With the exception of the four persons declared by the returning

officer to have been elected to the office of delegate to the 1990 National Convention, and with the further exception of each of Bill Harris, Robert Sneath and Harry Sugars, declared by the returning officer to have been elected to the office of organiser, each of the persons purporting to have been elected to the offices the subject of this inquiry occupy those offices pending the outcome of the new election ordered pursuant to paragraph 3 hereof and such persons shall continue to occupy such offices for a period of 28 days after the declaration by the returning officer of the result of the new election ordered herein.

1. Whatever persons are declared by the returning officer to have

been elected to each of the offices in the new election, pursuant to paragraph 3 hereof, commence to hold the respective offices on the 29th day after the day on which the returning officer declares the results of the new election ordered herein and such persons shall continue to hold such offices until 1 February 1994.

1. Until the completion of the new election ordered herein and the

declaration of the ballot, the Branch Executive shall not consider or consider further the question of the applicant's eligibility to remain a member of the Australian Workers' Union.

1. The operation of Rule 77 of the Rules of the Australian Workers'

Union be modified to any extent that may be necessary to ensure that (a) the new election shall be taken on the financial membership records of the South Australian Branch of the Union for the year ending 31 July 1991 and (b) the returning officer is not bound by the other dates appearing in that rule.

1. Each of the parties has liberty to apply on not less than 48 hours

written notice to the other parties.

As to order 6, above, it may be mentioned that Mr Stanley, on behalf of Mr Dunnery, did not oppose the making of an order in those terms.

Mr Stanley's application for an order modifying the operation of Rule 74

1. Mr Stanley, on behalf of Mr Dunnery, submitted (transcript pp 2884-2887) that the court should make an additional order in the following terms:-
   

"vii An order restraining any person from nominating in the new election for a position for a salaried office in the Branch while holding any other salaried office in the Branch".

He referred the court to rule 74, the material parts of which read as follows:-

"No member shall be eligible to nominate for or hold at any one time:

(a) more than one salaried office;

(b) ...

(c) ....

(d) ...

In this rule salaried office shall mean any Branch Secretary, District Secretary, Divisional Secretary, Organiser, General Secretary and Assistant General Secretary."

Mr Stanley submitted that s. 223(3)(d) conferred power on the court to make the order sought. That submission was supported by the written submission (pp 17-19) of Mr White lodged in the court on 13 March 1991 (i.e. after the conclusion of the oral submissions).

1. Section 223(3)(d) of the Act gives the court power to make orders including:
   

"(d) an order (including an order modifying the operation of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section."

1. I accept the submission that an order in the terms sought would be "an order modifying the operation of the rules ...". However, I am unable to form the opinion that that order is "necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken". Accordingly, although Mr Stanley advanced persuasive submissions as to why the order should be made, the order sought will not be made because in my opinion the court has no power to do so.

2. In considering that question I have applied the principle enunciated by Fullagar J. in R v Commonwealth Court of Conciliation and Arbitration and Ors.; ex parte Grant (1950) 81 CLR 27 at 62. His Honour there said:
   

"Having regard to the nature of the jurisdiction given, I think that a very liberal construction indeed ought to be accorded to s. 96G(3)(e)."

The application of a "very liberal construction" to s. 223(3)(d) (cp. s. 96G(3)(e) of the Act to which Fullagar J. was referring) does not persuade me that the court has power to make the order sought.

1. It may be added that, in any event, the problem to which the proposed order was directed may not arise, having regard to the following statement by Mr White in his written submissions, lodged 13 March 1991 (pp 15, 16):
   

"Each of Bill Harris, Sneath and Sugars consent to the making of an order, the effect of which is that none of them could nominate for the position of Branch Secretary without first having resigned from their present office of organiser. ....

Each of Harris, Sneath and Sugars consider it contrary to both the spirit and the express intention of the Rules for this to occur."

Mr Di Fazio's submission that the applicant should hold office pending the result of the new election

1. Mr Di Fazio sought an order that, pending the outcome of the new election, the applicant should hold the office of Branch Secretary, submitting "that the balance of convenience test is a suitable one"; in an argument that was difficult to follow, he submitted that, on the evidence, "the incumbent officers in the Branch have not heretofore demonstrated any great commitment to administrative efficiency" and "that the applicant has at least equal experience in the participation and (sic) the affairs of this union and that (the court) should regard him as being able to manage the branch in the interim just as well as anybody else".

2. As an alternative it was submitted that the applicant should hold the position of an organiser. However the arguments advanced did not show any good reason in favour of the making of either of those proposed orders. As announced by the court at the conclusion of that argument (transcript 2877), neither of those orders sought by the applicant will be made. I agree with the following statement by Gray J. in Re Patterson; Re Association of Railway Professional Officers of Australia (1987) 19 IR 373 at 384-385:-
   

"The making of orders in a situation such as this poses acute problems for the court. There can be little doubt that a person will derive advantage in a ballot from being called upon by the court to act as caretaker in a particular office. For this reason, particular care needs to be taken to prevent the court from appearing to act in a partisan way in the election. In most cases, the preferable course is to act upon the last expression of the will of the voters, even though that expression may possibly be flawed by the irregularities which the court has found to have occurred. In the present case, I find that last expression the safest guide."

Subject to the rights of the parties to apply, reserved under order 8 above, the inquiry is terminated.