Application by Thomas, J.R. for an inquiry into an election in the South Australian Branch of the Australian Workers Union

[1992] FCA 407

Re: JOHN RAJAN THOMAS
And: SOUTH AUSTRALIAN BRANCH OF THE AUSTRALIAN WORKERS' UNION
No. S I4 of 1991
FED No. 407
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Industrial Law - election inquiry under s. 218 Industrial Relations Act - whether the returning officer erred in accepting certain nominations - meaning of "become and remain a member" - effect of lodging "multiple" nominations - meaning of rule permitting withdrawal of nominations - meaning of "occupation", "union official" and "name" - whether ballot paper must specify candidate's correct name - whether returning officer's "list of final acceptances" can constitute an "irregularity".

Industrial Relations Act 1988 s. 218

Hay v Australian Workers Union (1944) 53 CAR 108

Re AWU: Ex parte McKay (1968) 125 CAR 1289

Re Butcher: An inquiry into an election in Australian Workers' Union (unreported - delivered 11 December, 1990) Ryan J.

Cameron v Duncan (1965) 8 FLR 148

HEARING

ADELAIDE

#DATE 11:6:1992

Solicitors for applicant : Stratford and Co.

Appearing for applicant : Mr T. Stanley

Solicitors for Messrs
Reynolds and Maczkowiack : Lempriere, Abbott and McLeod

Appearing for Messrs
Reynolds and Maczkowiack : Mr F. Di Fazio

Solicitors for Messrs Birch
Baker, Elsley, Miller,
Connolly : Moloney and Partners

Appearing for Messrs Birch
Baker, Elsley, Miller,
Connolly : Mr P. Moloney

Solicitors for the AWU and
the AWU State registered
Union : Johnston Withers

Appearing for the AWU and
the AWU State registered
Union : Mr J. Rau

JUDGE1

Mr J.R. Thomas ("the applicant") claimed that irregularities had occurred in relation to an election for various offices in the South Australian Branch ("the Branch") of the Australian Workers' Union ("the Union"), an organisation of employees registered under the Industrial Relations Act 1988 ("the Act"). He applied, under Part IX of the Act, for an inquiry into those matters. At the hearing counsel appeared for (1) the applicant, (2) the returning officer, (3) the Union and the South Australian state registered union (4) Messrs Reynolds and Maczkowiack and (separately represented, but advancing in substance the same submissions) Messrs Birch, Baker, Elsley, Miller and Connolly. It is convenient to refer to those seven candidates as "the respondents".

Alleged irregularity No. 1 (eligibility to remain a member)

1. The first alleged irregularity was that the returning officer had erred in accepting the nomination of Mr L. R. Birch for the office of Branch Secretary in that Mr Birch was not eligible to be a member of the Union because he "was not employed or engaged in an appropriate industry or calling prescribed by rule 6 of the registered rules" ("the rules") of the Union. As part of that allegation it was contended that, for the period of five days preceding the opening of nominations on 21 August 1991, Mr Birch "was unemployed ... and ... did not seek employment in an appropriate occupation or industry prescribed by Rule 6 ...".

2. That rule, so far as material, provided as follows:-
   

"6 - Full Membership

(1) Every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely: .... shall be entitled to become and remain members of the Union and all persons elected or appointed as Officers of the Union shall be entitled to remain members of the Union.

...."

1. The sub-rule, considered without reference to the authorities dealing with it, and without reference to the rules as a whole, in my opinion means that a worker, once he or she has become a member, at a time when "engaged in manual or mental labour in or in connection with any of the following industries or callings" ("a relevant employment"), is entitled to remain a member, irrespective of the work being performed after admission to membership and irrespective of periods of unemployment; the membership continues until he or she resigns (see r.18(a)-(d)), is expelled from membership (see r.21), is "purged" (see r.18(e)) or is the subject of a declaration by resolution of a Branch Executive or the Executive Council (see r.8(f)). Counsel for the respondents and counsel for the returning officer have submitted that that meaning is correct ("the respondents' interpretation"). The applicant's counsel has submitted that a worker is not entitled to remain a member unless he or she continues to be "employed or engaged in an appropriate industry or calling" or, having been so employed, is still seeking such employment ("the applicant's interpretation").

2. The applicant's counsel relied strongly upon the decision of Ryan J. in Re Butcher - inquiry into election in AWU WA Branch (unreported - judgment delivered 11 December 1990). Counsel for the Union and the state registered union did not "make submissions as to the correctness of the decision of Ryan J. in Re Butcher" and did not make any submissions of any substance as to alleged irregularity No. 1.

3. In my opinion the respondents' interpretation of sub-r.6(1) is to be preferred. It is not necessary to read words in to the rule in order to reach that conclusion, although the meaning would have been put beyond doubt if there had been inserted, after the words "and remain members of the Union" the words "until his or her membership is terminated in accordance with other provisions in these rules". However, in my opinion, that is the intention expressed in the sub-rule.

4. The applicant's interpretation, in my opinion, does not give effect to "what the language means in its ordinary and natural sense" (per Higgins J. in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 at 162); that interpretation would require the reading in to sub-r.6(1), after the words "and remain members of the Union", of the words "so long as he or she continues to be engaged in that industry or calling or is seeking such employment", or words to that effect. I am unable to see any warrant for reading any such words in to the sub-rule.

5. The applicant's counsel referred to the history of r.6, going back to 1912 but in my opinion the history does not support the applicant's submission.

6. In Butcher's Case, Ryan J. referred (at p 18) to a contention that a particular member:
   

"could not have been deprived of that membership without resigning in accordance with what was then Rule 14 (now Rule 18), or being expelled pursuant to the former Rule 15 (now Rule 21)."

His Honour continued (pp 18-20):

"Support for that argument was derived from Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340, where Keely J. with whom J.B. Sweeney and Deane JJ. agreed, canvassed the rules of the Australasian Meat Industry Employees' Union, Victorian Branch and said at 346:

'Accepting Mr Laurie's argument that such persons no longer fall within r.4, I am unable to accept the next step in the argument, namely, that such persons automatically cease to be members upon leaving their employment in the industry. In my view r.4 deals only with the eligibility of persons seeking to be members of the union and not with the question of whether members automatically cease to be members upon ceasing to fall within the terms of r.4' His Honour then proceeded to analyse other provisions of the rules of the Meat Employees' Union and continued at 347: 'In my view r.4 does not bring about a termination of membership upon the member ceasing to fall within the class there set out. The intention of the rules is that membership may be terminated in the manner dealt with by rr.38 and 39. Further, r.10(e) provides that membership shall automatically cease in the case of a member 'who is not employed in the trade, who is thirty-six months in arrears with contributions'. I accept Mr Lawrence's argument that, apart from r.10(e) (and r.39(3)), membership does not cease until the member takes some positive action in compliance with the requirements of rr.38 and 39 - or under s. 145 of the Act if its terms operate to permit resignation in circumstances not giving rise to such a right under rr. 38 or 39. Accordingly, it is not correct to say that membership ceased automatically whenever a member left the trade or returned to some other regular occupation.' However, as appears from the passages to which I have just referred, there was nothing in the eligibility rule of the Australasian Meat Industry Employees' Union which made continuous employment or engagement in the butchering and meat industry specified in that Rule, a condition of continuing membership. By contrast, Rule 6(1) of the rules of the AWU stipulates that:

'Every bona fide worker male or female engaged in manual or mental labour in or in connection with any of the following industries or callings ... shall be entitled to become and remain members of the Union ...' (emphasis added). ... I consider that the presence of the words to which I have added emphasis requires a person whose membership is predicated on Rule 6(1) and who plans to remain a member to continue to be engaged in or in connection with one of the industries or callings specified in that sub-rule, or if resort to s. 144(3) be necessary, as it might during a period of unemployment, to have a continuing desire to be so engaged."

1. I accept the submission by the applicant's counsel that where a question "of construction of the same rules has been recently decided by a judge of this Court ... it is undesirable that there should be conflicting decisions as to their construction" (Re Birch; Re AWU (1991) 37 IR 293 at 297). However, although I agree that it is "undesirable that there should be conflicting decisions", it is the court's duty to decide the case in accordance with its opinion of the law, after considering carefully the parties' submissions. The question of the meaning of sub-r.6(1) has been argued at great length during the present hearing. The court has had the benefit of a detailed analysis of the relevant cases, including Cameron's Case, which was not referred to by Ryan J. and presumably was not cited to his Honour.

2. In Cameron v Duncan (1965) 8 FLR 148 at 205-207 Smithers J., with whose "interpretation ... (of) the various rules involved" Spicer C.J. "unreservedly" agreed (at 149), said:-
   

"Third that under the rules Young was not a member. ... Only the third is arguable. It depends upon the view that Young, having theretofore been a member, ceased to be a member when early in January 1964 he resigned from the position of organizer of the union, he then having no employment in any of the classes of employment referred to in r.6. It is clear that these classes of employment comprise many seasonal workers such as shearers, fruit pickers and cane cutters. It would be most inconvenient for such persons and for the union if their membership ceased when they ceased to be employed at the end of a season. Rule 6 says that subject to the rules a bona fide worker in one of the specified classes of work shall be entitled to become and to remain a member. ... Under r.6 a person being a bona fide worker in one of the classes of employment therein specified is qualified, not only to become, but also to remain a member. Under r.6 his entitlement to remain a member is not expressly conditional upon his remaining in a specified employment and there is no ground for an implication to that effect. ... In default of such evidence the committee executive or council may by resolution declare that such person did not become or has ceased to be a member of the union, and such declaration shall be binding on such person and upon all members of the union. It is argued that this provision is merely a convenient procedural method of evidencing loss of membership where employment in one of the specified employments has ceased. On the other hand it is said that this provision is the method by which loss of membership on such a ground is brought about. I have no doubt this is the correct view. It is to be noted that the declaration may be made when the evidence fails to satisfy the committee that the person concerned has continued to be entitled to become a member. To become a member a person must be a bona fide worker in the specified employment. The paragraph is apt therefore to deal with a person who having been entitled to become a member has ceased to be so entitled by reason of change of employment. Even then however the committee may declare that the person has ceased to be a member or, inferentially, it may not. If it does not, it can hardly be supposed that the person concerned has nevertheless already suffered automatic loss of his membership. This interpretation of the rules serves this union in a most useful way. When a person joins the union he must be a bona fide worker in one of the specified employments. When such employment ceases his membership does not cease. But if the union so desires it may bring his membership to an end. It is to be noted that r.11 concerning resignation proceeds on the assumption that a person does not cease to be a member "if he accepts employment in an industry other than that represented by the union". He is thereupon entitled to resign but not required to do so."

1. The applicant's counsel very properly informed the court that (transcript pp 791-792):
   

"the rules as they appeared at the relevant time for the purposes of this inquiry were not in precisely the same terms as they appeared at the time they fell for consideration by his Honour Justice Ryan. In particular there was no equivalent of the present rule 8(f) in the rules at the time.

... However, in my submission ... that does not matter because the construction for which I contend turns on the terms of rule 6(1) and that was in precisely the same terms, as far as its relevant portion is concerned, in any event, as it appears at the relevant time for the purposes of this inquiry. Moreover, having regard to the construction of rule 8(f) for which I contend, and in particular my submission that in its terms it is declaratory of an existing state of affairs, it really doesn't matter whether it appeared in the rules at the time or not."

1. Having considered the latter submission, namely, that r.8(f) "is declaratory of an existing state of affairs", I am unable to uphold it. I agree with the passage from Smithers J. in Cameron's Case (at 206) (quoted above) "that this provision is the method by which loss of membership on such a ground is brought about ... the committee may declare that the person has ceased to be a member or, inferentially, it may not. If it does not, it can hardly be supposed that the person concerned has nevertheless already suffered automatic loss of his membership" (emphasis added).

2. The applicant's counsel in a detailed examination (transcript 776-782) of the reasons for judgment in Cameron's Case, submitted that Smithers J. had fallen into error in a number of ways. I have considered carefully those submissions but do not consider that I should express my opinion on each alleged error of law. Some of the applicant's submissions on this had considerable force but the submission overall has failed to persuade me that the applicant's interpretation of sub-r.6(1) is correct.

3. For the above reasons I am not prepared to accept the applicant's interpretation of sub-r.6(1). It follows that the returning officer did not err in accepting the nomination of Mr Birch and that alleged irregularity No. 1 has not "happened".
   Alleged irregularities Nos. 2 and 2A (multiple nominations)

4. Under No. 2 it was contended, in respect of the nominations of Messrs Birch, Baker, Elsley, Miller, Reynolds and Maczkowiack for various offices, that Mr Birch's nominations were "contrary to the provisions of Rule 74(g)(i), (ii) and (iii) of the said Rules" and that the nominations of the other five candidates were contrary to one or more of those sub-rules.

5. Under No. 2A it was claimed that the returning officer had erred in accepting the nominations of the six candidates in that the nominations did not comply with one or more of the provisions of r.74(g). That sub-rule included the following provisions:
   

"74 - Branch Nominations

....

(g) No member shall be eligible to nominate for or hold at any one time:

(i) more than one salaried office;

(ii) more than one office on a Branch Executive;

(iii) the office of Organiser and any office on a Branch Executive except:

(A) Branch President; or

(B) Branch Vice-President; or

(C) President of the Mining Division of the West Australian Branch; ...."

1. Rule 74 also included the following provisions:-
   

"(h) In this Rule salaried office shall mean any Branch Secretary, Assistant Branch Secretary, District Secretary, Divisional Secretary, Organiser, General Secretary and Assistant General Secretary.

(i) Nothing in this rule shall prevent the holder of an office from being appointed or elected to fill a casual vacancy pursuant to Rule 79 except that, where this Rule prevents a member holding two offices at the same time, such appointment or election pursuant to Rule 79 shall effect the resignation by the member appointed or elected from the office that the member held immediately prior to the appointment or election to the subsequent office."

1. The respondents submitted that r.74(g) "should be read as a whole and against the background of other relevant Rules" citing the following rules:
   

Rule 74(l) "Candidates, with the consent of their nominators, may withdraw their nomination for any position."

Rule 76 - Duties of Branch Returning Officer "(b) The Branch Returning officer shall receive all nominations in connection with elections being conducted by such officer and shall accept or reject any nominations that are not in accordance with these Rules.

(c) Nominations shall be addressed to the Branch Returning Officer in a closed envelope with the word "Nomination" written thereon and the Branch Returning Officer shall examine all nominations as they come in and immediately acknowledge receipt of same. Provided that if the Branch Returning officer finds a nomination to be defective, before rejecting the nomination, the Branch Returning Officer shall notify the person concerned of the defect and, where it is practicable to do so, give the person concerned not less than seven days after being so notified to correct such defect." ....

Rule 77 "Branch Elections

....

The Branch Executive shall decide upon the date when the ballot shall commence, and shall give notice of such date by advertisement in The Australian Worker. If after nominations have closed and, before the declaration of the ballot for the office of Branch Secretary, Branch President, Branch Councillor or Vice-President for the State, any candidate for either of such offices shall die, the ballot for that particular office shall not be proceeded with but the Branch Executive shall direct the Branch Returning Officer to forthwith call for fresh nominations for such office, and proceed with the ballot, and until the election of a Branch Secretary, Branch President, Branch Councillor or Vice-President for the State, shall appoint some member of the Union who qualifies for Office in accordance with Rule 68, to act as Branch Secretary, Branch President, Branch Councillor or Vice-President for the State, as the case may be, until the result of such last mentioned ballot is declared.

Provided that candidates, with the consent of their nominators, may withdraw their nomination for any position."

1. The applicant's counsel submitted that each of the nominations by each of the six candidates was contrary to the provisions of r.74(g), which expressly prohibited members from lodging what counsel for all parties conveniently called "multiple nominations" i.e. nominations for more than one of the offices, specified in r.74(g), in respect of which "multiple" nominations were forbidden. He submitted that each of the nominations was an "irregularity" because (a) it was in breach of the rules and (b) each was "an act ... by means of which the full and free recording of votes ... is attempted to be prevented or hindered".

1. Counsel for the respondents and counsel for the returning officer submitted that the six candidates had withdrawn some of their nominations to bring about compliance with r.74(g), that they were entitled to do so and that the returning officer was right in giving them the opportunity to do so.

2. I am not prepared to accept the applicant's submission that each of the nominations lodged (i.e. before any withdrawals) was necessarily contrary to r.74(g). However I accept that each of any multiple nominations was contrary to r.74(g) if those multiple nominations were either lodged by the candidate at the same time or lodged in such a way that the returning officer is unable to determine which one (if any) was lodged first; in each of those two sets of circumstances I accept that all of the nominations so lodged are contrary to r.74(g).

3. I reject completely the respondents' submission "that a candidate can lodge as many nominations as he or she likes during the nominating period provided that (sufficient) of them are withdrawn (under rule 74(l)) to comply with the substantive part of Rule 74(g) by the time that the Returning Officer considers the final nominations" i.e. after the period for nominations has closed. That submission flies in the face of the plain meaning of r.74(g), the purpose of which is to prevent multiple nominations. The returning officer's outline of submissions on alleged irregularities 2 and 2A contended that the "concept of 'finally nominating' as referred to by (the respondents' counsel) is thus a valid one". In my opinion it is not.

4. The affidavit of Mr Maczkowiack, sworn 7 February 1992, contained the following passage, which was not challenged at the hearing:
   

"I am aware, as a result of my involvement in the affairs of the Union, that it has been the practice, for many years, for candidates to nominate for more than one office and then to withdraw all but one nomination prior to the closing date for nominations. I am also aware that for many years the Returning Officer has permitted candidates to nominate for more than one salaried position and for more than one position on the Branch Executive of the South Australian Branch and also has permitted candidates to withdraw all but one such nominations."

The rule in its present form does not permit such a practice and in my view the existence of such a practice can not be used in considering the true construction of the rules.

1. In my opinion the provision, appearing in r.74(l) and in r.77 paragraph 4, "that candidates with the consent of their nominators, may withdraw their nomination for any position" is not intended to give to a candidate, who has lodged multiple nominations in breach of r.74(g), an opportunity to overcome the effect of the breach i.e. by withdrawing "one of them so as to leave the other in accordance with Rule 74(g)" - as submitted by the respondents in their written outline of argument. The Union's counsel submitted that r.74(g) prohibited multiple nominations.

2. The respondents relied strongly upon the reasons for judgment of O'Mara J. in Hay v The Australian Workers Union and Ors. (1944) 53 CAR 108 and those of Kerr J., in Re Australian Workers' Union; Ex parte McKay (1968) 125 CAR 1289, who agreed with and followed the decision of O'Mara J. (The decision of Kerr J. was also relied upon by counsel for the returning officer.) In Hay's Case O'Mara J. said (at 110):
   

"It may be that a member cannot hold the office of either Vice-President or Delegate to Convention and at the same time the office of General Secretary. It may also be that being unable to hold more than one of those offices he cannot contest an election for more than one office. Those questions do not arise as the only election which Dougherty contested was for the position of General Secretary and that election was in all respects conducted as though he had never been nominated for any other position."

It will be noted that O'Mara J. was not dealing with rules which prohibited a member from nominating for two offices. In this connexion, in McKay's Case Kerr J., in agreeing with O'Mara J. (at 1298), said, of the rules before O'Mara J., that the office "of General Secretary could not be held concurrently with one of the other two offices ..." (emphasis added) and that the "rules did not specifically say that a candidate could not nominate for two offices which had to be held concurrently".

1. In my opinion the decisions in Hay's Case and in McKay's Case are distinguishable because the rules being considered in those cases did not contain a rule substantially the same as r.74(g) in the present case. In addition, in Re Australian Journalists Association; Ex parte Nicholson (1990) 34 IR 436 at 441, Wilcox J., referring to the withdrawal of nominations in Hay's Case, said that there "is reason to suspect that (the withdrawal of nominations) might have occurred before closure (of nominations) since the Returning Officer was prepared thereafter to accept the nomination for General Secretary, something which ought to be decided one way or the other immediately after the close of nominations".

2. If, contrary to the opinion expressed above, Hay's Case and McKay's Case are not distinguishable, then in my respectful opinion they should not be followed.

3. It follows from the above that the court finds that the alleged irregularities numbered 2 and 2A "happened in relation to the election" (s. 223(1)), namely, the lodging of multiple nominations by Messrs Birch, Baker, Elsley, Miller, Reynolds and Maczkowiack and the returning officer's acceptance of those nominations.
   Alleged Irregularities Nos. 3, 3A and 7 (the meaning of "occupation" in r.74(e))

4. Under No. 3 it was contended that the returning officer had erred in accepting the nomination of Mr Birch for the office of Branch Secretary in that his nomination did not comply with r.74(e) of the rules, because it did not correctly state Mr Birch's occupation and under 3A it was claimed that Mr Birch's "nomination did not correctly state his occupation". Rule 74(e) provided as follows:
   

"Each candidate must consent to the nomination in writing and must also state their occupation, name, date of birth, address and the Branch in which they are members. The nomination paper must contain either the candidate's ticket or a certificate from the Branch or District Secretary in order to show the candidate has been a continuously financial member for a period of not less than 12 months immediately preceding the opening date for nominations up to and including that date."

1. The applicant's counsel contended under No. 3 and No. 3A that it was incorrect for Mr Birch to state his occupation as "union official (GJC 6) because at the material times he was not employed as a union official, did not hold office as a union official and was in fact unemployed. I accept the submission advanced by the respondents that the word "occupation" in r.74(e) means usual occupation. In my opinion a person, who has been a union official for years but who, at the material time, has not been engaged in that occupation for a period of time that is relatively short, when compared with his period of service as a union official, can properly state in his nomination his occupation (i.e. his usual occupation) as "union official" if at that time he is seeking employment as a union official or is seeking election as a union official.

2. The evidence established that Mr Birch was a full-time paid official of the Union for approximately 10 years until he resigned in April 1990. He was employed as an industrial officer by the Australian Railways Union from 30 April 1990 until 2 August 1991 on a full time basis and on a part time basis from 3 August until 16 August 1991. From that latter date until the material time he was "campaigning on behalf of myself and my team of candidates for election as officials of the S.A. Branch of the Australian Workers Union". While working as a full time industrial officer his duties were:
   

"Acting as an advocate for the Australian Railways Union in the Federal Industrial Relations Commission, organising work amongst members including attending meetings of members as a representative of the Australian Railways Union, negotiating with the employers in the industry in South Australia (i.e. the Australian National Railways Commission and the State Transport Authority) particularly in regard to Award restructuring matters, safety and numerous other issues, assisting the Secretary of the South Australian Branch of the Australian Railways Union in answering correspondence which he received and generally assisting members of the South Australian Branch of the Australian Railways Union who sought advice or assistance from the Branch Office."

1. I accept the respondents' submission that Mr Birch's employment by the Australian Railways Union as an industrial officer could properly be described as employment as a union official. In my opinion Mr Birch's nomination was not in breach of r.74(e) and the returning officer's acceptance of it was not in breach of any rule e.g. r.76(b).

2. It was claimed under alleged irregularity No. 7, as amended during the final address by the applicant's counsel, that the returning officer had erred in that, on or about 10 October 1991, he had "wrongly prepared the ballot paper for the election for the (office) of Branch Organiser, in that it incorrectly identified the occupation of the candidate Mr David Connolly as 'council worker' contrary to rule 78".

3. During the hearing the court stated that it accepted, on the evidence before it, that Mr David Connolly was seeking work as a council worker at the material time. In his reply the applicant's counsel conceded, correctly in my opinion, that, on that finding of fact, the alleged irregularity No. 7 was not established.

4. For these reasons, in my opinion the actions claimed to constitute irregularities numbered 3, 3A and 7 were not actions in breach of the rules and were not irregularities.
   Alleged irregularity No. 4 (the meaning of "name" in r.78)

5. It was claimed by the applicant that the returning officer had erred in that, having accepted the nomination (exhibit GJC 7) of Mr Robert Maczkowiack for the position of Branch Organiser, he "printed a list of final acceptances (exhibit GJC 25) indicating his name would appear on the ballot papers as 'Bob Mack' contrary to the provisions of Rule 78 ...".

6. Rule 78 included the following provision:-
   

"78 - Method of Balloting

Ballot papers shall have printed thereon the closing date of the ballot and names of candidates placed in alphabetical order showing the occupations and residential addresses of candidates and the positions and offices requiring to be filled or particulars of the question submitted for determination.

....

Upon receiving a ballot paper members shall record thereon their vote for the candidate or candidates for whom they wish to vote by marking with a cross in the square or squares provided alongside the candidate's name."

1. Mr Maczkowiack's affidavit evidence established that:
   

(a) On 2 March 1979 he altered his name by deed poll to "Robert Bob-Mack" (exhibit RM 5);

(b) He was nominated for office in the Branch in 1980 under that name and also stood for office in 1982 under that name; he was unsuccessful in both elections;

(c) In 1987 he "decided to revert formally to the name Robert Maczkowiack" (para 21) and that name change was registered on 23 April 1987 (exhibit RM 7). He took that "action because at that time (he) did not think that (he) would stand for election in the foreseeable future and (he) wished to revert to (his) original name".

1. It is clear that "Bob Mack" was not at the material time the correct name. In my opinion r.78 on its true construction requires the returning officer to print on the ballot papers the correct name of each candidate i.e. correct to the best of the returning officer's knowledge but he is not required to take steps to investigate each candidate in order to be certain that the name given by the candidate is correct. He is not permitted to have printed on the ballot papers a name different from that given by the candidate in consenting to the nomination. However, in my opinion the returning officer has the power to have printed on the ballot papers, in brackets, immediately after the candidate's name, another name by which the candidate is known by a substantial proportion of the electorate. In the case of Mr Maczkowiack the returning officer would be entitled to have printed on the ballot paper the words (Bob Mack) immediately after his name. In this connexion Mr Carey, the returning officer, gave evidence that in the 1989 election he had inserted on the ballot paper, in brackets, after the names of certain candidates, the words "Macka", "Doc" and "Baldy".

2. Although (1) the returning officer "issued to all candidates a list of final acceptances" (see paragraph 17 of his affidavit, sworn 17 December 1991 and exhibit GJC 25) (2) the ballot papers would, but for the interim orders made by the court, have been printed with the name "Bob Mack" on them (3) the issue of ballot papers with that name would have been an "irregularity" within the meaning of that word as defined in the Act, in my opinion the returning officer's action in "issuing" to all candidates a "list of final acceptances" did not itself constitute an "irregularity".

3. Accordingly I formally find that alleged irregularity No. 4 did not happen; doubtless the returning officer, in arranging for the ballot papers to be printed in due course, will have regard to the opinions expressed by the court in dealing with alleged irregularity No. 4.
   Alleged irregularities Nos. 1(a), 5(a) and (b), 6 and 7A

4. The applicant's counsel informed the court that each of these claims was not being pursued. There being no material before the court to support any of those allegations, the inquiry as to each of them will be terminated.