FEDERAL COURT OF AUSTRALIA
Application of the Electoral Commissioner [2014] FCA 588
Citation: Application of the Electoral Commissioner [2014] FCA 588 Parties: THE APPLICATION OF THE ELECTORAL COMMISSIONER File number: NSD 370 of 2014 Judge: FLICK J Date of judgment: 4 June 2014 Catchwords: INDUSTRIAL LAW – error in notification of closing date for nominations – irregularity in election to office – one nomination received after correct closing date but before date notified – election declared void Legislation: Fair Work (Registered Organisations) Act2009 (Cth) ss 6, 9, 200, 201, 205, 206 Cases cited: Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242
Bourne v Campbell [1999] FCA 1522, (1999) 93 IR 238
McJannett v Bulloch [2012] FCA 1233
Re Amalgamated Metals Foundry and Shipwrights Union; Ex parte Adamson (1984) 4 FCR 319
Re Election for Office in Australian Institute of Marine and Power Engineers (1973) 20 FLR 407
Re Jarman; Ex parte Cook (No 2) (1996) 136 ALR 233
Re Kelly (No 2) [2011] FCA 490
Re Killesteyn (application for an inquiry in relation to an election in the Australian Salaried Medical Officers’ Federation (Qld)) [2009] FCA 1311, (2009) 261 ALR 730
Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for the State of Queensland (1985) 184 CLR 620
Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162
Re Gray; in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165Date of hearing: 4 June 2014 Date of last submissions: 3 June 2014 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 26 Solicitor for the Applicant: Ms B Griffin of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
FAIR WORK DIVISION
NSD 370 of 2014
BETWEEN: THE APPLICATION OF THE ELECTORAL COMMISSIONER
Applicant
JUDGE:
FLICK J
DATE OF ORDER:
4 JUNE 2014
WHERE MADE:
SYDNEY
THE COURT DECLARES THAT:
1.The declaration of results for the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders’ Association of the Australian Capital Territory dated 26 February 2014 is void.
AND THE COURT ORDERS THAT:
1.The Nomination Form of Mr Anthony Mattar dated 18 February 2014 and received by the Australian Electoral Commission on 3 March 2014 be accepted.
2.The Returning Officer proceed to a ballot for the election of the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders’ Association of the Australian Capital Territory.
3.A copy of the reasons for decision and these orders, should be served by the Applicant upon:
(i)The Master Builders’ Association of the Australian Capital Territory at 1 Iron Knob Street, Fyshwick, ACT, 2609;
(ii)Ms Analisa O’Sullivan at 28…
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Details
- Case
- [2014] FCA 588
- Decision Date
CaseChat Overview and Summary
The case before the court involved a challenge to the outcome of an election for the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders’ Association of the Australian Capital Territory. The applicant, who had sought to be elected to this position, contested the validity of the election results on the basis that the association had notified its members of an incorrect closing date for nominations. This misinformation potentially led to the late nomination of the applicant, which was received after the correct closing date but before the erroneously notified date. The Federal Court of Australia was tasked with determining the legality of the election process and the outcome.
The central legal issue before the court was whether the erroneous notification of the closing date for nominations constituted an irregularity under the relevant electoral legislation, and if so, whether this irregularity warranted a declaration of the election result void. The court needed to decide whether the incorrect notification misled members and deprived them of the opportunity to vote for the applicant, thereby affecting the fairness and integrity of the election process.
In its decision, the court found that the notification of an incorrect closing date for nominations indeed constituted an irregularity. This irregularity potentially misled members, leading to the late nomination of the applicant. As a result, the court concluded that the election result should be declared void. The court further determined that the applicant's nomination should be accepted, and a new ballot should be conducted for the election of the Alternate Chairman. The court's decision emphasised the importance of accurate communication in electoral processes to ensure the integrity and fairness of the election.
The court ordered that the declaration of results for the office of Alternate Chairman dated 26 February 2014 be declared void. Additionally, the court mandated that the nomination form of the applicant, dated 18 February 2014, should be accepted. The returning officer was directed to proceed with a ballot for the election of the office of Alternate Chairman. Furthermore, the court ordered that copies of the reasons for decision and these orders be served on the Master Builders’ Association of the Australian Capital Territory, Ms Analisa O’Sullivan, and Mr Anthony Mattar by a specified deadline.
The central legal issue before the court was whether the erroneous notification of the closing date for nominations constituted an irregularity under the relevant electoral legislation, and if so, whether this irregularity warranted a declaration of the election result void. The court needed to decide whether the incorrect notification misled members and deprived them of the opportunity to vote for the applicant, thereby affecting the fairness and integrity of the election process.
In its decision, the court found that the notification of an incorrect closing date for nominations indeed constituted an irregularity. This irregularity potentially misled members, leading to the late nomination of the applicant. As a result, the court concluded that the election result should be declared void. The court further determined that the applicant's nomination should be accepted, and a new ballot should be conducted for the election of the Alternate Chairman. The court's decision emphasised the importance of accurate communication in electoral processes to ensure the integrity and fairness of the election.
The court ordered that the declaration of results for the office of Alternate Chairman dated 26 February 2014 be declared void. Additionally, the court mandated that the nomination form of the applicant, dated 18 February 2014, should be accepted. The returning officer was directed to proceed with a ballot for the election of the office of Alternate Chairman. Furthermore, the court ordered that copies of the reasons for decision and these orders be served on the Master Builders’ Association of the Australian Capital Territory, Ms Analisa O’Sullivan, and Mr Anthony Mattar by a specified deadline.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The “wrongful rejection of a nomination for office in an organisation constitutes an irregularity”: Asmar, in the matter of an election for an office in the Victorian No 1 Branch of the Health Services Union [2012] FCA 1242 per Tracey J at [35]. So, too, is there an “irregularity” where a nomination is received after the correct closing date but before the date erroneously notified. By notifying members of an incorrect date, at least two potential consequences follow, namely:·members who may wish to nominate may be misled as to the time within which their nominations should be received; and ·members may be deprived of an opportunity to vote for members who have sought to nominate. Conclusions For the purposes of s 206, it is concluded that the declaration of the result of the election on 26 February 2014 should be declared void. The result of that election has been potentially affected by the fact that Mr Mattar also sought to stand for the office of Alternate Chairman. His nomination was received after the correct closing date of 25 February 2014 but before the date which had been erroneously notified, namely 25 March 2014. It is further concluded that the nomination of Mr Mattar should be accepted and that the returning officer should proceed to a ballot for the election of the office of Alternate Chairman.THE COURT DECLARES:1.That the declaration of results for the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders’ Association of the Australian Capital Territory dated 26 February 2014 is void.THE ORDERS OF THE COURT ARE:1.That the Nomination Form of Mr Anthony Mattar dated 18 February 2014 and received by the Australian Electoral Commission on 3 March 2014 be accepted.2.That the Returning Officer proceed to a ballot for the election of the office of Alternate Chairman of the Suppliers and Subcontractors Council of the Master Builders’ Association of the Australian Capital Territory. 3.That a copy of the reasons for decision and these orders, should be served by the Applicant upon:(i)The Master Builders’ Association of the Australian Capital Territory at 1 Iron Knob Street, Fyshwick, ACT, 2609;(ii)Ms Analisa O’Sullivan at 28 Molonglo Mall, Fyshwick, ACT, 2609; and(iii)Mr Anthony Mattar at PO Box 1002, Fyshwick, ACT, 2609by no later than midday on 18 June 2014.
Ratio Decidendi
Legal Principle Established
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