Application By Harold Henry Sims For an inquiry into an election for offices of the Australian Institute of Marine & Power Engineers, Victorian Branch

CATCHWORDS

Sydney

Branch

NO.

Industrial law - Election inquiry - failure to comply with

procedural rules

re ballot papers - whether rule mandatory

or directory - eligibility for membership of candidate and

certain other persons - ballot papers forwarded to persons

members of Institute but not members

of branch - Whether

person eligible when admitted to membershlp ceasing to be

eligible remains

a member -

Conciliation and Arbitration	Act, 1904 s.165, s.144, Reg.l15(1)
(d)(viii).

APPLICATION BY HAROLD HENRY SIMS FOR INQUIRIES

INTO ELECTION

IN THE AUSTRALIAN INSTITUTE

OF MARINE AND POWER ENGINEERS

(SYDNEY BRANCH

)

C O W : J.B.	sweeney J.
Sydney

29 September 1980.

IN THE FEDERAL COURT

OF AUSTRALIA )

)

INDUSTRIAL	DIVISION	)	NO. 10 Of 1980
)

NEW SOUTH WALES DISTRICT REGISTRY

)

IN THE MATTER of the Conciliatlon and

Arbitration Act 1904

AND IN THE MATTER of an application by

HAROLD HENRY SIMS for

an inquiry into

an election for officers of the

Australian Institute of Marlne and

Power Engineers, Sydney Branch

O R D E R

JUDGE MAKING ORDER: J.B.

SWEENM J.

DATE OF ORDER:	16 October, 1980
WHERE MADE:	Sydney

THE COURT ORDERS

THAT:

1. The election conducted in 1979 for the office of Secretary of the Sydney Branch of the Australian Institute of Marine

and Power Engineers

be declared void.

2. That Mr. C. Yule a person purporting to have been elected to the said office be declared not to have been elected.

That the Industrial Registrar make arrangements for

a new

election to

be held for the said office.

That Mr. H.H. Sims being a person who held before the Secretary of the Sydney Branch of the Australian Institute of Marine and Power Engineers until the result of the new election be declared.

Order (4) is to operate from

7 November, 1980.

6. Liberty 1s reserved to either party to apply on 48 hours notlce.

IN THE FEDERAL COURT OF AUSTRALIA)

)

INDUSTRIAL	DIVISION	)	No. 10 of 1980
)

NEW SOUTH WALES DISTRICT REGISTRY)

IN THE MATTER of

the

Conclllatlon

and

Arbltratlon Act 1904 as

amended

AND IN THE MATTER of an

Appllcatlon

HAROLD

HENRY SIMS for an lnqulry

lnto

electlon

for

offlcers of the Australlan

Instltute of Marlne and

Power Englneers, Sydney

Branch.

29 September 1980.

J.B. SWEENEY J.

REASONS FOR JUDGMENT

Thls 1s a reference by the Industrlal Reglstrar

referrlng to the Court, pursuant to

s.160 of the Conclllatlon and

Arbltratlon Act,

1904 ("the Act") a matter,

an appllcatlon by Mr.

H.H. Sims for an inqulry lnto an electlon conducted

for

the

office of Secretary

the Sydney Branch

the Australlan

Institute of Marlne and Power Englneers ("the Instltute") havlng been granted.

The lnqulry was, by consent of the partles, heard at the

same tlme as an enqulry lnto an electlon held for the offlce	of
secretary of the Vlctorlan Branch.

Pursuant to dlrectlons glven at a dlrectlons hearlng,

points of clalm and of defence were flled by the partles.

At the hearlng, Mr. W. Haylen of counsel appeared

for

the appllcant ln each Inqulry. Mr. R.C. Kenzle of counsel appeared for the Instltute In each lnqulry and for Mr. Roberts,

the successful candldate

In Vlctorla ln that lnqulry and for Mr.

Yule, the successful candldate

In the Sydney electlon.

Mr.	G.T. Johnson appeared for each returnlng offlcer.

Affldavlts by each returnlng offlcer were flled and It was

lndlcated that each

of the gentlemen would be avallable for cross

examlnatlon If requlred.

Mr. P.R.A.

Gray

sought

leave

appear

for

the

Munlclpal

Offlcers'

Assoclatlon

of Australla.

based

hls

lnterventlon on the fact that a materlal conslderatlon In the

inquiry would

be the proper constructlon

of the condltlons of

ellglblllty rule of the Instltute and that there were proceedlngs

before the Reglstrar at the present tlme In whlch the Instltute

was seeklng consent to a change In the condltlons of ellglblllty

whlch the Assoclatlon had opposed. In vlew

the partlcular

clrcumstances I gave hlm leave to Intervene on the partlcular

questlon of the

proper

constructlon of

the

condltlons of

ellglblllty rule

of the Instltute.

The lrregularitles alleged were that some

3 7

ballot

papers returned to the returnlng offlcer had been rejected by hlm

and that

others had been rejected whlch should

have been

counted as votes for Mr. Sims. It

was further clalmed that Mr.

Yule was not a member of the Instltute, not havlng been properly

admltted and was therefore not quallfled

to contest the electlon

and It was flnally alleged that a number

of persons had been

treated as members and forwarded ballot papers although they

were

not entltled

be admltted as members,

were no longer

ellglble for membershlp and consequently not entltled	to take
part in the ballot.

I take flrstly the allegation concerning the 37 ballot

papers

excluded

from

the

ballot.

The

Instltute

has rules

providlng In detall for the conduct

of ballots

lncludmg

the

ballot for the electlon

of Branch Secretary. The rule provldes

that the returning officer, who was In this electlon. an offlcer

of the Australlan Electoral Office, forward

to each flnanclal

member of the Branch a ballot paper together wlth two envelopes,

one an outer envelope marked "Ballot Paper" and addressed

to the

returnlng offlcer and the other an inner envelope. In thls case

the	returnlng offlcer also forwarded certaln other matter,

lncludlng extracts from the Act and the relevant regulatlons made

under the Act.

The rules then provlde that the voter shall lndlcate hls

vote by strlklng out the name of any candldate for whom he dld

not wish to vote and that

he place the ballot paper In the Inner

envelope and seal It. He shall also place the lnner

envelope,

wlthout any other matter, In the outer envelope upon whlch

shall endorse hls name and seal

It and then post It or cause It

to be dellvered to the returnlng officer.

The rules then provide any ballot paper which, In the

opinion of the returnlng offlcer, plalnly lndlcates the voter's

mtentlon, shall be valld

but, otherwlse, any vote contrary to

these rules

whlch otherwlse fails to observe the dlrectlons

contalned on the ballot

paper, shall be deemed

informal.

The

ballot paper contalned on It dlrections that the ballot paper

must be completed by the voter personally and that

must

thereafter fold It

so as to conceal the way In whlch the vote was

cast

and

place It In the envelope marked "Ballot Paper". That

envelope contalnlng the ballot paper was then to be placed

In the

outer envelope on which the voter was	to endorse hls name, seal
it and post It.

The purpose of the rule

is quite apparently one deslgned

to prevent lrregularltles and

in view of the fact that at least a

conslderable proportion of marlne englneers could be expected to

be at sea and the ballot paper was posted

to the

voter's place of

resldence, It was in my vlew

a precautlon to whlch lmportance was

properly attached. The rule uses mandatory language. On Its

proper constructlon, a ballot paper whlch

1 s dealt wlth by use

the inner and outer envelopes, as prescrlbed, but whlch may have failed to use the method of strlklng out a name but stlll clearly

lndlcate

the voter's lntentlon,

would

valld

but

If the

procedures for use

of the Inner

and outer envelopes were not

followed, the consequence of the rule was that the ballot paper

was to be deemed,

1 .e. ad judged, lnformal even though

lntentlon was mdlcated.

the

parcel

37 votes

whlch

were

re~ected, 3

contalned materlal utterly unrelated to the electlon,

19 had no

endorsement upon the back, 1 was endorsed wlth the name

of the

Instltute not the voter,

1 was endorsed only wlth the letters

"PP" and 13 had

the

outer

envelope

correctly

endorsed

but

contalned no lnner envelope, the ballot paper bemg immediately

accesslble wlthln the outer envelope. In thls last case the

effect would be that It could be ascertalned on openmg the outer

envelope and unfoldlng the ballot paper how a partlcular person

had voted. Thls would lmpair the secrecy of the ballot. In the

other

cases,

was not possible to compare

handwrltmg

slgnatures and so a check to ensure that It was the member who

had voted could not be made. In my oplnlon the returnlng officer

was correct In

hls rejectlon of these papers and rlghtly took the

view that the rule was mandatory.

The second lrregularlty concerned the

re~ectlon of 3

o the r

bal lot

papers .

3 of these cases a cross or a t l c k

appeared

aga

ins

the

name

M r .

Slms b u t

t h e

e l e c t o r a l

o f f l c e r

vlew t o strlke o u t the name of

that

e lect lon

whlch

voters

were

dlrected

took

the

the candldate for whom they d l d no t

wlsh

t o vote ,

t he

p l ac lng

c ros s

t l c k a g a l n s t

t h e

name

one

two

candidates

does not

enable

decls ion

whether

It w a s

intended

to vo te

fo r

a g a m s t that candlda te .

I n my

v lew,

t he

r e t u r n l n g o f f l c e r a c t e d c o r r e c t l y I n r e l e c t l n g t h e s e v o t e s .

l r r e g u l a r l t y o c c u r r e d I n t h e s e

cases.

The

n e x t

l r r e g u l a r l t y

a l l e g e d

t h a t

t h e

s u c c e s s f u l

candldate

was

no t du ly adml t t ed t o

and

was

not

member

the

I n s t i t u t e

and

1 s

fur ther

c la lmed

a n

l r r e g u l a r l t y

t h a t

number

o t h e r

p e r s o n s ,

a l t h o u g h

n o t

d u l y

a d m l t t e d

t o

membershlp, were forwarded

ba l lo t

papers.

t h l r d

l r r e g u l a r l t y

i s

tha t

w a s

c la lmed

that

persons

who

mlght

have

been

members

o f

t h e

I n s t i t u t e b u t were

not members

the

New

South

Wales

Branch

were

forwarded ba l lo t papers .

I n

t h e

a c t u a l

e l e c t l o n

there

were,

a s

have

sa ld .

t w o

candlda tes ,

the

successfu l

candlda te ,

M r .

Yule

recelved

235

v o t e s ,

the

unsuccessful

candldate ,

M r .

S ims ,

recelved

229

votes

and there were 5 whlch I have

already

mentloned

whlch

were

declared

Informal .

I t

w i l l be

seen

t hen

t ha t

t he

ma jo r l ty

favour

M r .

Yu le w a s s l l g h t .

In considerlng Mr. Yule's ellglblllty and the eligibility of certaln other persons,

It is necessary to conslder

the

rules speclfylng the condltions of eliglblllty

for

membershlp. Before turnlng

to the rule, I should I thlnk state

my views on the effect

such rules. The provlslon of a rule

speclfylng these conditions has long been a requlrement of reglstratlon and of organlzatlons and the purpose is clearly to

enable ldentlflcation

of the group

or class of employees a

registered

organlzation

represents.

Such a rule 1 s then

fundamental to the worklngs of the Act. In my opinion unless

person 1s wlthin a group

or class specified In the condltlons

ellglbllity he cannot be admltted

to membershlp (R. v. Hlbble

and

Others, 29 C.L.R.

291 particularly at p. 296 - 7 and at p. 3 0 3 ) .

This vlew has been repeatedly followed

in cases deallng wlth the

Act.	(R. v. Watson, 128 C.L.R. 77 at 78, 84 and 87: R. v.

Gough, 1 3 3 C. L.R.

59 at 67;

R. v. Cohen, 27 A. L.R. 263) .

In the case

any organlzation there wlll clearly

arlse cases where a person was ellglble and became a member when

was admltted, but subsequently changed hls occupation

and

ceased to be eligible.

In the case

of many organlzatlons, rules

provlde in such cases for the removal of such persons from membership but If there 1s to be a power to remove, It must be provided for in the rules. Regulatlon 115(l)(d)(vlil) provldes

that the rules shall provide the tlmes when and terms on whlch persons shall become or cease to be members, Cf. (Wllllams v . Hursey, 103 C.L.R. 30 at p.73-4).

It may be noted that the Engllsh courts In deallng wlth trade unlons existlng under the Trade Unlon Act

have taken the

view that unless a person 1s quallfled under Its constltutlon, he cannot validly be admltted (Martln v. Scottlsh Transport and

General Workers Unlon, 1952

1 All E.R. 691).

In deallng wlth each

of these alleged lrregularltles

1s necessary to conslder the rules

of the Instltute.

I may

mentlon in passing that It was agreed by all appearlng that the

rules were amblguous but I thlnk It

1s rather flattering them, to

leave that as their descrlptlon. They are

I think defectlve In

very many respects and where they do make provlslon It	1s	in
language to whlch It 1s dlfflcult to apply any rules	of
construction or even rules of syntax.

The Instltute began life In

1906 and was then reglstered

with a condltlons of eligiblllty rule provldlng that It should consist of englneers, honorary assoclates and honorary members, with qualifications as therelnafter deflned. The rules have been

amended a number of tlmes, both before and after, the consent of

the Reglstrar was required. It now provides:

"The Instltute shall

conslst of englneers,

marlne and power plant (hydraulic and electrlcal), statlonary and self-propelled

dredges, tug boats and pllots

vessels,

assoclate members, honorary assoclates and

honorary members whose qualiflcatlons for each

are as heremafter defined.

Membershlp

shall

dlvlded Into

three

sectlons

seagolng mechanlcal, seagolng

electrlcal, and other than seagolng.

(1)

Seagolng members (mechanlcal) shall

be engineers who have passed the examlnatlon

and are In possesslon

certlflcates

recognlsed by the Mlnlstry of Shlpplng and

Transport or who have passed Part A of the

Second Class Mlnlstry of Shlpplng and

Transport Certlflcate and/or the

Leavlng

Certlflcate

Its equlvalent In New South

Wales, or

Its equlvalent In the other States

of the Commonwealth, and	who have served an
apprentlceshlp.

Other than seagolng members shall be englneers who are worklng ashore

who

have

(11)

passed

one

more of the abovementloned

examlnatlons or an examlnatlon equlvalent thereto or who have served an apprentlceshlp and who can satlsfy a branch that they are In

possession of quallflcatlons slmllar to those

held by persons mentloned ln paragraph	(1)
hereln.

(111)

The term

apprentlceshlp

(Mechanlcal) shall be understood

to mean

having worked for

a perlod of not less than

four years at the Englneerlng Trade as deflned

by the Mlnlstry of Shlpplng and Transport

Regulations, or served such apprentlceshlp as

deflned by Minlstry of Shlpplng and Transport

Regulations, or served such apprentlceshlp as

1 s

requlred

for

quallflcatlon

In thelr

respectlve calllngs, except apprentlces,

who

the

last

year

thelr

tlme

shall

ellglble for membershlp. Provlded that the

full term of

a recognlsed apprentlceshlp In

the

Electrlcal

Dlvlslon

or authorlsed

apprentlceshlp as an Electrlcal Fltter

or an

Electrlcal Mechanic

has been served.

(1v) Engineers

possesslon

of any

Marlne Englneer's Certlflcate recognlsed by

the Commonwealth

or a State In accordance wlth

the provlslons

of the Navlgatlon Act may be

elected as Members.

(V) Candldates

for

membershlp

shall

persons ellglble for engagement as offlcers

vessels engaged In the coastlng trade In accordance wlth the Navlgatlon Act 1912 - 1967.

(vl)(a) Any

person

possesslng

such

quallficatlons

and/or

experlence

whlch wlll equate hlm to the level

of a qualified and experienced

marlne englneer may be admltted as

Associate Member.

(b)

Persons who are pursulng a course

of tralning in the

Marlne

Englneerlng lndustry or

a simllar

tralning ashore wlth the

ob-~ect of

becomlng a quallfled

Marlne

Englneer.

The rule belng admlttedly amblguous, I thlnk It

proper to have regard at least to the descrlptlon of Industry

rule In an attempt to elucldate Its real meanlng (R. v. Watson;

Ex parte Australlan Workers Union, 128 C.L.R.

77;

R. v. Gough,

133 C.

L.R. 60).

In each of these cases the HIgh Court took the

vlew that the context provlded by the descrlptlon

of lndustry

rule could be looked at In attemptlng to place

meanlng on

amblguous words in a condltlons

of eliglblllty r u l e .

It was urged In thls case that It would be proper to look at the rules generally for this purpose but In

my vlew thls

1 s not so.

The rules provldlng

for or changing the

name, the

descrlptlon of the industry and the

conditions of ellglblllty for

membershlp must be consented to by the Reglstrar before they are

reglstered and

not become effectlve untll registratlon. In

considering whether he should consent

or not, the Reglstrar wlll

no doubt have regard to any questlons

overlap wlth other

organlzations and questlons of convenlently belonglng and the

like, including the general pollcy of not havlng, where posslble,

more than one unlon covering the same groups and classes of

employees.

Thls is not so with other rules and in my

view an odd

position would be created If the meanlng

a condltlons

eligibility rule could be affected and perhaps altered by changes

In rules to which the consent

of the Registrar was not necessary.

As an example, it was submitted that I could seek assistance In

the construction of rule 3 and Its posslble appllcatlon to

engineers employed In hospitals by looking at rule

deallng

wlth fees and contributions whlch provided a scale

of fees for

hospital engineers by an amendment to the rules made In 1975.

At all relevant times the industry In connection wlth

which the organizatlon

registered has been described as

"shlpplng and power plant (mechanical and hydraullc)".

Turning to rule

3 , It appears to have begun by provldlng

that the Institute shall conslst of englneers, marine, honorary

associates and honorary members whose qualiflcations for each are

as hereinafter defined. I may mention that one dlfflculty whlch

arises 1s that certain documents from the Registrar's flle seem

no longer complete, no doubt due to the great lapse of time but

the hlstory of changes to thls part of the rule appear to be

follows

1. The flrst material change seems to be that In 1922 the words

"and power plant except englneers working ashore regularly uslng

the working tools of an englneer" were added after the word

marlne.

2. In 1925 the words "(hydraulic or electrlcal)" were added

after the words "power plant".

3 .

In 1933 rule

3 was further amended by addlng words deallng

wlth quallflcatlons of engineers and thls was agaln done by

addlng further qualiflcatlons ln 1951. At that tlme rule

4 set

out what were descrlbed

as equlvalents to the quallflcatlons

whlch were in rule 3 and a further rule

4 adding certaln further

quallflcatlons was adopted

In 1961.

4 . In 1968 the words "statlonary and self propelled dredges, tug boats and pllot vessels, assoclate members" were added after the

word "electrlcal" In rule	3 .	Further amendments were made to
rule 4 .

The hlstory illustrates If nothlng else, the extreme

confuslon.

The rule has been considered by the Commonwealth

Concillation and Arbltration Commission on a number of

occasslons, the last belng a conslderatlon by a full bench of the

Comnlsslon on 11 October 1978, Print No. D8554.

The Commlsslon's attentlon was directed partlcularly

the words "power plant, hydraullc and electrlcal" wlth partlcular

reference to eng

'lneers engaged In hospl

tals. It appears that It

was argued that those words should

be lnterpreted to extend to

englneers working

on any

plant powered hydraullcally or

electrlcally. The Connnisslon rejected that vlew, saylng:

" It 1s our vlew for the above reasons that

the correct lnterpretatlon of the expression under consideration 1s that as regards electrical equlpment It does not extend to all

plant powered by electrlclty but

1s llmlted to

power generatlng plant

(including

auxlllary

plant). Whether there are englneers employed

on such

plant by

the

various

employer

respondents 1s a matter more approprlate to be

declded by Isaac D.P."

The Importance

the questlon for thls case

1 s

that

among persons admltted to membershlp were some who at the tlme, were employed In hospltals, some on alr condltlonlng plants and other plants powered by electrlclty and posslbly some on emergency generatlng plants when they were In operatlon.

Mr.

Kenzle, counsel for the Assoclatlon

and

the

successful candldates, sald that he accepted the declslon of the

Commission and dld not seek

to have It departed from.

I do not propose to attempt any overall deflnltlon of

rule

slnce

to do may affect the rlghts of

other

oroganizatlons but

wlll reach a vlew only

far as

necessary to reach a concluslon

In thls mqulry.

The rule sets out In the flrst paragraph

of rule

3 that:

"The Institute shall consist of engineers,

marlne and power plant (hydrallc and

electrical), stationary and self-propelled

dredges,

tug

boats

and pilots

vessels,

assoclate members, honorary assoclates and

honorary members whose quallflcatlons for each

are as heremafter deflned."

The paragraph then provides that membershlp shall be

dlvlded Into three sectlons, seagolng mechanlcal, seagolng

electrical and other than seagolng. The balance of rule 3 then

sets out various quallflcatlons whlle rule 4 sets out what are

sald to be equivalents to the examlnatlons referred to In the

second part of rule

3 .

In my vlew neither the parts of rule

3 other than the

first paragraph nor rule

4 wlden or enlarge the condltlons of

ellgibllity for membershlp beyond those stated In the flrst

paragraph of rule 3 . To regard them as dolng so would be to

widen the conditions of eligibility far beyond anythmg posslbly

contemplated. If rule 4 1s to be glven full effect to and 1s to

be read In con~unctlon

wlth rule 3 apart from the flrst paragraph

of that rule then the effect

1s that the holder

of a school

certlflcate lssued by the

New South Wales Department of Educatlon

who had served an apprentlceship of any nature would be ellglble

for membershlp. The number of trades

to which apprentlceshlps

may be served is very great and goes far outslde the calllng

marlne engineer

the lndustry of shlpplng and power plant.

They Include halrdressing, pastrycooks, etc.

It was put by

Mr.

Gray that the parts other than the

first paragraph

of rule

must all be read as quallfylng the

words

"engineers marine"

and

that the phrase "power plant

(hydraulic and electrical)" were also to be read as quallfying

engineers marlne. The affect of adopting that view would be that

the only persons eligible for membershlp were marine englneers.

In my vlew the conditlons

eliglblllty rule goes

somewhat further than that. It makes ellglble "engineers marlne"

including those employed on "statlonary and self-propelled

dredges,

tug

boats

and

pilot

vessels".

Also

ellglble

are

englneers employed in power plant, hydraulic and mechanical and

by thls 1s meant, plant generating power for sale or supply to

consumers. It is true that there does appear in rule

3 , what Mr.

Gray termed

marine flavour", but treating the rule as

amblguous and from this

vlew, there was

dlssent, I think I

must regard the addltlon

of the words "power plant, mechanical

and hydraulic" to both the condltlons of eliglblllty rule and the

description of industry rule as Intended to

add a class

of person

to those previously eligible for membership.

I have sought from varlous sources the orlglnal form the rules. It appears from Australasian Society

of Englneers v.

The Institute,

C.L.R.

46,

that the Instltute was orlglnally

registered as an organlzatlon of employees In connectlon with the

shipplng industry and that

it was orlglnally reglstered as

16.

assoclatlon of marlne engineers .

It 1s not an entlrely

satlsfactory startlng polnt

but It i s the best avallable

to me.

In 1922 rule 3 provlded that the Institute shall

consist

of englneers marme and power plant wlth some exceptlons and

1925

rule

provided

that the Instltute shall conslst

englneers marlne and power plant (hydraullc and electrlcal) wlth

the same exceptions as

In 1922.

In my view then those eliglble

for membershlp under the

rules are:

1. Marlne engineers.

Engineers engaged on

In connectlon wlth power

plant, hydraullc

or mechanlcal.

each

case the persons concerned are

to have

quallflcatlons as prescrlbed In clause (111) or thelr equlvalents

as prescribed In clause (1~). Those wlth the partlcular

quallflcations prescrlbed in rule

3 , clause (vl)(b) who are also

qualified under the first paragraph

of rule 3 may be admltted as

associate members and may thereafter become honorary members	or
honorary assoclates.

I do not regard clause (VI)

(a) as dealing wlth a group

who, wlth the quallflcations there speclfled, whatever thelr

calllng or

employment may

be, as ellglble for admisslon. They

must be engaged In the calllngs

of englneer, as earller set

out,

otherwise a person wlth those quallflcatlons and experlence,

whether employer

employee, whether engaged as manager ln a

clerlcal capaclty,

o r

whether In some englneerlng capaclty

unrelated

marlne englneerlng or power plants such

constructlon

englneerlng, or one

the

many

flelds

englneerlng outslde marlne and power plants, would be ellglble

for membershlp thus cuttlng across the ellglblllty provlslons	of
many other reglstered organlzatlons.

Effect of Flndlng as to Meanlng

of Rule 3

Documents were put In evldence, In partlcular a

llst of

members to whom a challenge was made, whlch became Exhlblt

'D'.

It was admltted

to be an accurate

sununary from the records of the

Association and It clearly showed the admlsslon

of persons who

clearly were not, when admltted, ellglble wlthln rule

3 ,

have lnterpreted It. They Include persons,

for

example, whose

occupatlon, when admltted. was In one case plumber, in other

cases fltter, In other cases electrlclan, ln one case salesman,

In another case works manager,

and another lecturer.

Ultlmately concessions were made by Mr. Kenzle that

number of persons, who had been treated as members and

to whom

ballot papers had been forwarded, were not at the tlme of

~olnlng

ellglble for membershlp. These were Messrs.

Hynes,

Chappell,

Reid,

Swales,

Koncharowsky,

Prior

and

Wllson.

These

were

people

who

r ece ived

ba l lo t

pape r s

and

t h e

m a ~ o r l t y

a t

t h e

e l e c t l o n was

I n

add i t ion

Mr.

Kenzie,

while

agreelng

that

t h e

r e c o r d s c e r t a l n p e r s o n s m i g h t a p p e a r n o t t o h a v e b e e n e l l g i b l e a t

the

t ime

they

were

admitted

t o

membershlp.

submltted

that

v i r t u e

o f

S .l44

the

Act

they

were

e l igible

for

membershlp,

s ince

t hey

were

a t

the

t ime

admlss lon

des l rous

o f

becomlng

employed as

marine

engineer.

There

were

number

such

persons.

I n

respect

some

t h e r e

was

c e r t a i n l y no

evldence

any

d e s l r e ,

i n

r e s p e c t

o t h e r s

t h e r e

was

e v l d e n c e

t h a t

t h e

t lme of happened,

admlssion

there

was

d e s i r e

t h a t

i f

c e r t a l n

e v e n t s

such as

one

case , t he c losu re o f t he

works

where

t h e

person was a l ready employed a s a

manager

mlght

seek

employment

a s

marlne engineer.

r e l u c t a n t

t o

make

any

f lndlng

these

persons

although

r e g a r d

t h e i r

s t a t u s

a s

v e r y

d o u b t f u l .

However,

s.144

a f f o r d s

method

whereby

the

o rgan lza t ion

can

seek

dec la ra t lons .

t h e one

hand

nothing

appears

from

whlch

c o u l d

i n f e r

t h a t

e i ther

the

persons

concerned

t h e

I n s t i t u t e

t h o u g h t ,

t h a t

i n

the admiss ion to

membership

they were ac t lng o r pu rpor t lng t o ac t

u n d e r

s.144,

b u t

t h a t

s e c t l o n

w h l l e

providing

means

enforclng

r lgh t ,

r equ l r e s

t ha t

t he

l nd lv ldua l

conce

rned

shou ld

heard

before

any

order

1s made

and

I am

r e l u c t a n t

t o

make

f lnd ings

concernmg

lnd lv ldua ls

when

the

person

has

not

had

any

oppor tuni ty

being heard.

Some

the

d i f f l c u l t l e s which

w l l l

arise

will

whether,

s lnce t h e

s e c t l o n

g l v e s

r l g h t

and

provldes

remedy

and

s l n c e t h e deeming provision

1 s for

the purpose o f

the

s e c t l o n

only, an t he s ec t lon , o the r t han

act

lon

organization

purported

compllance

w l t h

the

remedy

s p e c l f l e d ,

v a l l d .

Moreover,

problems

w l l l a r l s e

a s

t o

when

t h e

d e s l r e

referred

I n

S . S .

3 ( b ) must

e x l s t .

A t

l e a s t

must

sane th ing

inunedlate than the deslre

s t l l l

s a l d

t o be

held by

every

boy

become

t r a i n

d r i v e r .

I n

some

o f

t he

ca ses

t o

whlch

r e fe rence was made

i n

t h l s

I n q u i r y

the

d e s l r e

a p p e a r s

t o

have been any way, nor does

far from

lmmedlate

and not

have been demonstrated

anythlng

appear

such

records

were

produced to show whether

the

branch

admltt lng

the person was

a c t l n g

unde r

S . l44

was

ac t lng

under

mlstaken

vlew

the

conditions

o f

e l i g i b l l l t y

r u l e .

make

f i n a l

d e c i s i o n

I n

t h e s e m a t t e r s

for

the

reason

have

advanced

above.

I n t h l s

particular

e l e c t i o n It

common

ground tha t

106

persons,

who

a t the

t l m e of

the

e l e c t l o n ,

r e s l d e d

o u t s l d e

the

S t a t e of

New South

Wales,

were

forwarded

ba l lo t

papers .

A s

has

been

po ln ted

ou t

under

ru le

33 ,

on ly

f lnanc la l

members

the

Sydney

Branch

were

e n t l t l e d

t o

r e c e l v e

b a l l o t

p a p e r s

and

has

been submitted on the one hand that to be

a member of a branch a

person must reside wlthln the area of the branch.

The rules on thls matter are as obscure as they are on

many. It

1s quite clear that the Institute conslsts of a head

office and branches. In rule

7 the branches appear to be

SIX In

number

Queensland, South Australla. Western Australla,

Vlctorla, Sydney

and Newcastle. The branches as

descrlbed

cannot each be confined to a State. Sydney and Newcastle are

clearly not and there appears to be no Tasmanian

branch. There

1s no rule stating the area covered by a branch. Moreover there

1s no rule at all lndicatlng to which branch a member 1 s to be

attached.

As agalnst the submlsslon that members

of the Institute

became members

the branch by which they were admltted

membershlp, the records produced to me show that thls has not

been the Invariable practice.

In the case

of a Mr. Grlfflths,

he was admitted by the

Newcastle Branch but had a vote

in the Sydney Branch electlons,

whlle

Mr.

Roberts was admltted by the Newcastle Branch but

subsequently became a member

of and ultimately, Secretary

of the

Victorian Branch. I should add that the rules make no provlslon

for the transfer of a member from one branch

to another, either

at the lnstance of the Institute

or a branch, or

at the lnstance

of	a member. Again Mr. Yule, the successful candidate for the

posltlon of Secretary was, about 1967 admltted to the Newcastle termmated In 1967, he was admitted to the Sydney Branch.

On conslderatlon of the rules it appears to

that

there

no provlsion whlch could properly be lmplled In the

rules. Applying prlnciples in

Heimann

Commonwealth of

Australla, 38 S.R.

( N . S . W . ) 691 at 695, It 1s quite impossible to

imply a term. It 1s quite clear, however, that the rules clearly

contemplated there being branches. That belng

so,

there mlght

have been actlon taken under rule

8(111) whlch gives power to the

Federal Councll to decide questlons on which the rules are silent

but although a challenge was made in the polnts

of clalm, there

was nothlng put before me to lndicate that any actlon had been

taken under rule 8(lii) even assumlng its valldlty.

I flnd myself then unable

to determlne that there has

been any breach of the rules but havlng regard

to the rules and

the few Instances which have appeared quite accldentally In

documents produced, I think there are circumstances glvlng rlse

to a llkelihood that persons not entltled

to vote In the electlon

In	these circumstances, received a ballot paper and may have

voted and that as

a consequence the result of the electlon may

have been affected.

I am satlsfled that irregularltles occurred by reason of

the 7 persons, whose names I have set

out,

recelvlng ballot

2 2

papers. I am further satisfled that havlng regard to the llst names on Exhlblt 'D' and the occupatlons there shown

as those of

persons at the time of admisslon

llkely that further

lrregularltles of a slmllar nature occurred and that they were breaches of the rules. I further find, as I have lndlcated that

a conslderable number

of persons who not havlng been entltled

vote because they were not members of the branch dld recelve

votes and I f m d that by reason of these matters the full and

free recordlng of votes by persons entltled to record votes and

by no other persons may have been prevented and hindered.

mdlcated

at the concluslon of the hearlng,

publlsh my reasons and the findlngs I have reached and, as the

partles then requested, the further hearlng wlll be adjourned to

allow submissions	to	be made concernlng the orders the Court
should make.

[1980] FCA 132

29 Sep 1980