Application by Harold Henry Sims v Re Election in Australian Institute of Marine & Power Engineers (Sydney Branch)

[1981] FCA 201

Re: IN THE MATTER of the Conciliation and Arbitration Act 1904 - Part IX
And: IN THE MATTER of an application by HAROLD HENRY SIMS for an inquiry into
an election for officers of the Australian Institute of Marine and Power
Engineers, Sydney Branch
N.S.W. No.10 of 1980
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - registered organization - election inquiry - new election ordered pursuant to s.159(4) - declaration of poll in such election - jurisdiction of Court in original inquiry thereafter - liberty to apply - ss.159(4), 159(6), 165(1), (2), (3) and (4).

HEARING

SYDNEY

#DATE 16:11:1981

ORDER

The application is dismissed.

JUDGE1

On 22 October 1979 the returning officer who conducted an election for the filling of the office of Secretary of the Sydney Branch of the Australian Institute of Marine and Power Engineers (the organization), an organization registered under the Conciliation and Arbitration Act 1904 (the Act) declared that one, Christopher Yule was the successful candidate. The said election was conducted pursuant to s.170 of the Act by Mr Lewis a member of the staff of the Australian Electoral Office.

Thereafter Harold Henry Sims a member of the organization and the person who had been the occupier of the office of Secretary of the said branch at the time of the said election applied on 12 February 1980 for an inquiry in respect of the election pursuant to Part IX of the Act. On 21 March 1980 the Industrial Registrar referred the matter to the Court pursuant to s.159(4) of the Act and which became matter N.S.W. No. 10 of 1980 in this Court.

The issues raised at such inquiry included an issue whether Mr Yule was entitled to be a member of the organization at relevant times so as to nominate or to be nominated for the office of Secretary of the Sydney Branch of the organization.

The matter came on for hearing before Sweeney J. who gave judgment therein on 29 September 1980 on which date the matter was stood over to allow submissions to be made concerning the orders the Court should make.

On 16 October 1980 the Court ordered 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 have been elected.

3. That the Industrial Registrar make arrangements for a new election to be held for the said office.

4. That Mr H.H. Sims being a person who held before the purported election the said office act in the office of Secretary of the Sydney Branch of the Australian Institute of Marine and Power Engineers until the new election be declared.

5. Order (4) is to operate from 7 November 1980.

6. Liberty is reserved to either party to apply on 48 hours notice. "

Thereafter the Industrial Registrar made arrangements for a new election to be held for the said office to be conducted by Mr Lewis. By 23 April 1981 Mr Lewis had taken various steps in the new election. On that date the solicitor for Mr Sims wrote to the Registrar of the Court requesting that the matter be relisted before Sweeney J. pursuant to liberty to apply. Accordingly the matter was listed before Sweeney J. on 29 April 1981 when his Honour was informed that the ballot papers for the new election were either then being sent out or were due to be sent out in the very near future but that it was the contention of Mr Sims that Mr Yule who was a candidate in the new election was not eligible as he was not entitled to be a member of the organization.

Counsel for Mr Sims submitted that at that stage "there are only two possible methods of dealing with the problem: either, allow the ballot to proceed and see if there is any cause for concern at the conclusion of it, or argue the point before the ballot is held". After being informed that the argument could take some time Sweeney J. informed the parties that owing to his commitments he could not hear the matter before sometime in June 1981. His Honour then said to counsel for Mr Sims: "In essence you will be content to allow the matter to rest and rely on your remedies under Part IX at the conclusion of the ballot?". Counsel for Mr Sims replied "Yes that is the position".

Counsel for the organization then indicated to the Court that he would be submitting that there was a question as to whether any member could initiate a Part IX application in relation to an election that is ordered by the Court in the circumstances that the new election herein had been so ordered. He indicated that he raised the question so that it could not be suggested on any adjourned date that Mr Sims or his counsel was somehow misled or that he had not been warned that such a submission would be made. The matter was then stood over generally to a date to be arranged with leave reserved to any party to apply on 48 hours notice.

On 7 May 1981 Sweeney J. died.

On 22 June 1981 Mr Lewis, in announcing the result of the new election to the office of Secretary of the Sydney Branch of the organization, declared Mr Yule to have been elected.

On 1 July 1981 the solicitor for Mr Sims wrote to the District Registrar of the Court referring "to the liberty to apply granted by Sweeney J. in the matter" requesting that the matter be relisted as soon as possible. Thereafter the matter came on for hearing before the Court constituted by myself. When the matter was first called on for hearing, counsel for the organization submitted that the Court had no jurisdiction as it was functus officio and further that the new election having been completed could not be challenged under Part IX of the Act either in the present proceedings or by a separate application. Counsel for the returning officer and Mr Yule supported those submissions. On the other hand it was submitted on behalf of Mr Sims that the initial inquiry under Part IX of the Act was but an inquiry and the Court was still seized of the inquiry.

I am of the opinion that in all the circumstances the Court has no jurisdiction to further hear matter No.10 of 1980. As at 1 July 1981 all things required to be done pursuant to the orders of Sweeney J. made on 16 October 1980 had in fact been done. I am also of the opinion that the Court has no jurisdiction to hear any application made under Part IX of the Act in respect of an election ordered under s.159(4) as was the case in the present matter. In this regard I respectfully adopt the reasons for judgment of Keely J. in the Amalgamated Metal Workers and Shipwrights Union -v- Carey & Ors. S.A. No.8 of 1981 - judgment delivered 7 August 1981 (not yet reported) and the reasons for judgment of Sweeney J. in an ex tempore judgment given on 23 March 1979 in Re an election for offices in the Australasian Meat Industry Employees Union, Queensland Branch (Q. No.3 of 1977) which, so far as is relevant, is set out in the reasons for judgment of Keely J. referred to.

In the present case Sweeney J. had on 16 October 1980 and on 29 April 1981 reserved liberty to apply to all parties. It is clear in my view that Mr Sims can not rely upon such orders so as to give jurisdiction to the Court as presently constituted in the circumstances of this particular matter irrespective of the death of Sweeney J. Liberty to apply can not confer jurisdiction on the Court which the Act itself provides it does not have.