Bastien, P.A. v Langton, J.A

[1985] FCA 537

5 37

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

INDUSTRlAL DIVISION

IN THE MATTER of the

Conclllatlon and Arbitration

Act 1904-1985

BETWEEN :

PAUL ANTHONY BASTIEN

Applicant

m:

J.A. IXNGTON, M.J. MALCOLM. B.

BEER, N. RICHARDSON. D.

CAMERON, D. GOODGER, A. HART,

D. NICHOLS, D. ROLLAND, J.

ROYLE, B. McLEOD, R. SULLIVAN,

J. W L I S S , R. WILLIAMS. T.

THORPE. B. GRENFELL, M.

BOURKE, J.BOYS, N. BUTCHER, L.

BRINGOLF. L. CAMPBELL, C.

FISHER. E. FLETCHER, I.

HARRINGTON. E. PETERS, R.

McCARTHY, C. MUNDIE, N.

MURRAY. H. PAINE, H. SESSIONS,

D. SMITH, G. WARDELL AND THE

AMALGAMATED METAL WORKERS'

UNION

Respondents

MINUTE OF ORDER

JUDGE MAKING ORDER: Evatt J.

DATE OF ORDER:	17 October 1985
WHERE MADE:	Melbourne

2.

THE COURT ORDERS THAT:

1. Untll further o der the of Court, the

respondents including the Organlzatlon, and

any of- them be restramed from glving effect

to the Returning Officer's letter of 16 August

1985 to the New South Wales State Council

wherein he advised of the election of Mr R.

McCarthy to the posltlon of	State Organlzer,
Divlsion 1.

2 . Liberty to any party to apply on 48 hours

notlce to the Court and to the other partles.

Note :	Settlement and entry of orders
is dealt wlth In Order 36 of the

Rules Court Federal

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY	1	No. 18 of 1985
INDUSTRIAL DIVISION

IN THE MA'ITER of the

Conclliatlon and	Arbitratlon
Act 1904-1985
BETWEEN :

PAUL ANTHONY BASTIEN

Appllcant

m:

Respondents

CORAM Evatt J. 17 October 1985

REASONS FOR JUDGMENT

By rule to show cause dated 25 September 1985 the applicant,

Paul Anthony Bastien, a member of the Amalgamated Metal Workers'

Union, ("the Organlzation") , an Organlzation of employees

2.

reglstered under the Conclllatlon and Arbitratlon Act ("the

Act") seeks orders agamst several personal respondents. The

first-named respondent is the New South Wales Returning Officer

for the sald Organlzation, whllst the remaining personal

respondents constltute the New South Wales Council. The orders

sought are:

1. That the respondents and each of them perform and

observe the Rules of the Organlzatlon by treating the

Returnlng Officer's declaratlon of Mr McCarthy as

elected to the positlon of State Organizer Division

1 as

being null and void and take no further steps in

pursuance of that declaration.

2. That the first-named Respondent perform and observe Rule

PART "E" 2(c) (sic) of the Organization by acceptlng

P. Bastlen's nommation for the abovementioned position

in accordance with the said Rule.

3 . That the first-named Respondent perform and observe the

Rules of the Organization by arranglng for the conduct

of a ballot for the abovementioned position in

accordance with Rule PART "E" 7 (sic) of the

Organlzatlon.

The so-called Rules PART "E" 2 (c) and PART "E" 7 are in fact

divisions or paragraphs of certified Rule 2 of the Organization.

The rule to show cause was listed for Directions on 2 October

3 .

1985 wh .en Mr Moor e of Counsel appe 'ared for t :he applicant; Mr

Rothman of Counsel appeared for all respondents other than the

26th named respondent, Mr McCarthy, and	Mr Wright	of Counsel
appeared for Mr R. McCarthy.

Mr Rothman also appeared for the Organization which, by consent

of all parties, was added as a respondent In view of the fact

that the applicant was challenglng the validity of certified Rule

2, PART "E", 2(c) of the Organization.

After the matter was fixed for hearlng on 7 November 1985, the

applicant's application for	interm orders under s.141(2) of the
Act was heard.

The clrcumstances leading up to the application for the rule to

show cause are briefly as follows. The incumbent of the office

of New South Wales State Organizer Division 1 was due to retire

in June 1985 in accordance with the rules of the Organization.

The State Council had appointed that incumbent to carry out the

duties of the office for a short period of time thereafter in

order that he might complete certain negotiations with various

employers with which he was familiar. At the date of such

appolntment, it was anticipated that he would have completed

those negotiatlons by 12 July 1985.

Nominations were called by the Returning Officer, Mr Langton, the

first-named respondent, for the filling of the said office some

time in June 1985, the last date for the lodging of nominations

1985. - July 5 being

4 .

At the close of nominatlons the Returning Offic er had receiv 'ed

two nominations only, that of the applicant, Mr Bastlen, and that

of Mr McCarthy. At the close of nomlnatlons Mr McCarthy

challenged Mr Bastien's nomlnatlon on the basis that Mr Bastlen's

qualiflcatlons did not comply wlth Rule	2 ,	PART "E",	2(c).
Relevant parts of that sub-rule reads:

RULE 2

ELECTIONS AND VOTING

PART 'I E I'

STATE ORGANISERS

1. The State Returning Officer shall, once each four years, conduct an electlon for each office of State Organlzer,

2.

A member of a branch in the State may be nommated as a

candidate under the Rule if:

(a) ....

(b) ....

( c ) he was, for a period of not less than twelve months

immediately before the closing date for lodging

nomlnatlons:

(i) employed in the State as an employee in a

trade or calling or branch thereof In or in

connection wlth w ich t e Union is

reglstered;

(ii) unemployed in the State on account of

illness, lncapaclty or inability to obtain

employment; or

(ill) engaged in a full-time office of the Union

after having been elected or temporarily

appointed thereto.

As a result of Mr McCarthy's ob~ectlon to Mr Bastien's nomlnation

the Returning Officer wrote to Mr Bastien on 23 July 1985 as

5.

follows :

"Bro. McCarthy and yourself are the only two candidates and

he has challenged your eligibility under Rule 2, sub-clause

2(c).

Your ellgibllity belng ralsed I have sought legal advice and

ask that you glve me a wrltten submission in answer to the

challenge. The challenge and your submissions will be put to

Counsel before I make a decision.

The matter 1s urgent and I have Informed Bro. McCarthy what I am domg so that he 1 s aware of the facts."

Mr Bastien supplled certaln information to the Returning Officer

In a letter dated 7 August 1985.

Thereafter the Returnlng Officer formally re-~ected the nomination

of the appllcant and by letter dated 16 August 19Grote to the

State Secretary purportedly pursuant to Rule 2, sub-rule 6(a), as

follows :

"Having sought legal advice relative to the electlon of New South Wales State Organiser Divlsion 1 and having considered

the advice given	by Counsel	I	have ruled Brother Bastien
lnellglble.

It is my duty therefore to declare Brother R McCarthy elected

to the posltion of New South Wales State Organlser, Division

1 . I'

Thereafter, on or about 26 August 1985, the applicant appealed to

the State Council agalnst the declsion of the State Returnlng

Officer In accordance with Rule 35, which makes provlsions for

internal complaints and appeals. The notice of appeal set out

the grounds	of appeal.
This notice	of appeal together with the letter from the Returning

6

Officer dated 16 August were mentioned before the State Councll

at Its monthly meeting of 2 8 August. As the notice of appeal had

only recently been recelved the Councll resolved that both

matters be stood over for consideration by it at its September

meeting due to be held on 27 September.

On 17 September 1985, Mr McCarthy wrote to the State Council

(copied to Mr Bastien) claiming that the purported appeal under

Rule 35 was improper as the Rule, on its proper construction, did

not permlt appeals from such decisions of the Returning Officer

to the State Council. The letter then sought an undertaking from

the State Secretary that the Councll would not proceed with any purported appeal. Failing such undertaking Mr McCarthy lndlcated

that he Intended to "commence proceedings In a proper court to

ensure that my rlghts are protected". No such undertaking was

given by the State Council and so far as the Court as presently

constituted	is aware, no proceedings by Mr McCarthy have been
commenced.

On 27 September State Council resolved that nelther the appeal

nor the Returnlng Officer's letter	of	16 August be dealt with
pendlng legal advice.

As stated above, the applicant was granted the rule to show cause

herein on 2 October 1985.

Mr McCarthy gave vlva voce evidence relatlve to the interim order application. Such evidence disclosed that he was due to enter

hospital for surgery on 9 October and that he believed he would

1 .

not be able to carry out	an Organlzer's duties for at least 14
days thereafter.

On the hearlng of the applicatlon for interim orders Mr Rothman

indlcated that the Organization and all respondents other than Mr

McCarthy supported	Mr Bastien's appllcatlon for such Interim
orders.

Mr Wright, for Mr McCarthy, conceded that for the purposes of the

applicatlon for interim orders "there is a serious question to be

tried" (see Bullock v Federated Furnishinq Trades Society of

Australia (1985) 10 IR 18 at p. 2 2 ) , but contended that applying

the princrples relating to the balance of convenience as set out

in that case such interim orders should be refused.

In support of this contention Mr Wright submltted:

that the Court should not disturb the status quo. Here, he

argued, the Returning Officer, having declared Mr McCarthy

elected unopposed on 16 August, the status quo as at the

date of the lssue of the rule to show cause herein, namely 2

October 1985, was that Mr McCarthy was the occupant of the particular office;

that pursuant to sub-rule 7(v) of Rule 2 it was incumbent

upon Mr McCarthy to "take up his office within 2 months of

the declaration of the result of the election", and that

that 2 month perlod will expire on 16 October 1985. If

interim orders were made it would mean that his client would

8.

be in breach of thls sub-rule wlth the consequence that

should It be subsequently determlned that Mr Bastlen's

nomlnation had been correctly re~ected then Mr McCarthy

could posslbly be sald to have lost his office as Organizer;

that if interim orders were made the office would remain

vacant untll further order of the court, wlth the

consequence that members may not be adequately serviced;

that his cllent was able to secure leave without pay from

hls present employment and there would be no risk of losing

his employment If he took up the office pending final

determlnatlon by the court; and

that the Court should be reluctant to grant interim orders

as a result of the fallure of the applicant to disclose to

the Court In his affidavit in support of the rule to show

cause that he had lodged the "internal" appeal referred to

above.

Points (d) and (e) above have been noted by the Court but little, if any, weight has been given thereto.

Mr Moore for the appllcant contended:

(a) that as the re~ection of the applicant's nomination by the

Returning Officer is the matter in contention, the status quo is that as at the time of the closlng of nominations for the

sald election and not the posltion as at the date of the

9.

issue of the rule to show cause;

(b)

alternatively, as Mr McCarthy, even though elected, has not quo 1s that the office is unoccupied;

(c) that on a proper construction of the rules of the

Organlzation an election held pursuant to Rule 2 PART "E" is

not completed until State Council has formally accepted the

letter from the Returning Officer setting out the result of

the election and that this in fact had not yet occurred. The

proper construction of the relevant rules is a matter for

consideration by the Court during the substantive hearing of

the matter. Accordingly, he submltted sub-rule 7(v) is not

relevant as to the question of the balance of convenience as

the Court in its final Orders can give directions overriding

the effect of the sub-rule;

(d)

that the effective result of Mr McCarthy's surglcal operation McCarthy would not be carrying out the duties of Organizer for only a very short period of some 3 weeks prior to the

substantive hearing of the matter on 7 November next;

(e1 that the Organization and the remaining members of State

Council had indicated that if the subject office remained vacant during this period, no inconvenience would be caused

to members of the New South Wales Branch of the Organization

as other Organizers could service members normally serviced

,.

10.

by the State Organizer, Division 1.

(f) on the other hand, If the court refused the interm orders

and if Mr McCarthy took office and it was subsequently

determined that the applicant's nomination should have been accepted It would mean that Mr McCarthy could gain a unfair advantage over the applicant by belng In close contact with

members of the Organization forming part of the electorate in

any future ballot.

It is clear that serlous questions, Including the question

whether there has yet been a formal declaration in the election,

are to be tried.

The Court re~ects Mr Wright's submission as to the "status quo",

acceptlng generally the submisslons of Mr Moore in this regard.

It is also clear that any effect sub-rule 7(v) may have I s

subject to any overriding effect of the Court's final orders

herein.

Having glven due conslderation to all the submlssions and

arguments put for and agalnst the granting of interim orders and

applylng the prlnclples set out in Bullock's case (supra), I am

of the view that the balance of convenience	1s such that the
interlm orders sought should be granted.

Accordingly, the Court orders that until further order of the Court the respondents, includlng the Organlzation, and any of them be restrained from givlng effect to the Returning Officer's

letter of 16 August 1985 to the New South Wales State Councll

whereln he advised ot the election of Mr R. McCarthy to the

posltlon o f State Organizer, Division 1.