Australian Collieries Staff Association v The Australian Staff Association NSW Branch

[1990] FCA 607

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

INDUSTRIAL DIVISION

IN THE MATTER OF AN ELECTION IN THE AUSTRALIAN COLLIERIES STAFF ASSOCIATION AND THE AUSTRALIAN COLLIERIES STAFF ASSOCIATION NEW SOUTH WALES BRANCH

Dav~es J

27 September 1990

Sydney

REASONS FOR JUDGMENT

EX TEMPORE

T h ~ s is an app l~ca t~on for an interrm order with respect to an elect~on to be held

for the Austral~an Collieries Staff Assoclation The elect~on concerns both the federal

organisat~on and the New South Wales branch. All posltlons in the unlon wlll be sub~ec t o the

election We are concerned with the contest for the posltlon of general secretary The present secretary, Robert Peter Gaussen, has nominated for the positron, as has an employee of the

28 September, and the ballot is to close at 10.00 am on 19 October
associat~on, Wendy	Chrrstlne Clews

The election has proceeded to the point that notlce was glven by the Australian

Electoral Commlss~on on 19 July. Nominat~ons closed on 31 August and, in accordance w ~ t h the

program laid down by the Australian Electoral Comm~ssion, ball01 papers are to be sent out on

There is a prima facie case that Mrc Clews was not ellg~ble for membership.

Evidence put on behalf of the applicant has not been responded to by any ev~dence	to the
contrary. Mr Warren has foreshadowed arguments to be put and ev~dencc	to be put, but that
mater~al	1s not presently before the Court

I proceed on the footing that there is a prlma facre case Nevertheless, there IS

an issue wh~ch has to be decided and the questlon IS what to do at the present tlme This seems

to me to turn upon the balance of convenience.	It is unfortunate that, on thls aspect of the case,
no material has been adduced by any party and that the arguments w ~ t h	recpect to convenlence
have been put from the Bar.

Mr Crawshaw, counsel for the applicant, has put strongly the polnt that h15 client

ought not to the inconvenrence of contesting a ballot when hrs only opponent 1s inellg~ble for membersh~p and nom~nation. That may be so, but it IS clear that there would be some rnconvenience to other parties including the Assoclation, for the electron wlth respect to other offices, ought to take place. There would also be rnconvenrence to the Austral~an Electoral Commission i f at thrs stage it was unable to rely upon the documents wh~ch must already have

been printed and ready for sending out tomorrow mornrng

On the whole, it seems to me that the bdldnce of convenlence we~ghs against

stopping the ballot at t h ~ s	point of time and that the Electoral Comm~sslon	ought to be permitted
to proceed w ~ t h	the ballot as it proposes and wlth the documents wh~ch	it has prepared. That wrll

enable all the elections to proceed as planned

I thlnk that the matter should be brought on quickly 1 propose that any further

material upon which any party might wlsh to rely upon should he filed and served by 5.00 pm on 11 October and any material in reply should be fllcd and served by 5 00 pm on 17 October.

I would suggest that a time should be set on 18 October to conslder any further

interim application which may then be appropriate, for example, it may then be approprlatc to

order that, i f Mrs Clews is elected, nevertheless, Mr Gaussen should continue in office u n t ~ l the Court finally rules upon the matter. So I thlnk a time should be set for that and I thlnk that, i f

lt can be arranged, the matter should be heard at some stage durlng the week commencing the

22nd October

1 certify that this and the preceding 2 pages
are a true copy of the reasons for judgment

of the Honourable Mr Jus t~ce	Davies
Date	27 September 1990