Cambourn, J.K. relating to a ballot in the Federated Engine Drivers & Firemens Association of Australasia for amalgamation.
[1990] FCA 430
•24 JULY 1990
Re: INDUSTRIAL RELATIONS ACT 1988
And: AN APPLICATION FOR AN INQUIRY UNDER SECTION 247 THEREOF BY JACK KEVIN
CAMBOURN
No. Q I7 of 1989
FED No. 430
Industrial Law
96 ALR 114
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.(1)
CATCHWORDS
Industrial Law - whether jurisdiction to inquire into ballot - whether jurisdiction depends on facts stated in application - authority of High Court decision by a statutory majority.
Industrial Relations Act 1988, s.247(1)
HEARING
BRISBANE
#DATE 24:7:1990
Counsel for the applicant: Mr. L. Boccabella
Solicitors for the applicant: Peter Channell and Associates
Counsel for the respondent: Mr. P.J. Mullins
Solicitors for the respondent: Mullins and Mullins
Counsel for the Australian
Electoral Commission: Mr. M.C. Swan
Solicitors for the Australian
Electoral Commission: Australian Government Solicitor
JUDGE1
Mr. J.K. Cambourn has caused an application to be filed seeking an inquiry relating to a ballot of members of an organisation registered under the federal industrial legislation, the current statute being the Industrial Relations Act 1988. The application was filed with a statutory declaration verifying the allegations in it, as contemplated by regulation 93(1) of the Industrial Relations Regulations 1988.
Mr. Mullins, solicitor for a respondent (a Mr. McDonald) has taken a point that the statutory declaration was not properly witnessed, and I have disposed of that in a separate judgment. I have held that the declaration was not defective in the respect argued.
Mr. Mullins went on to take other objections to the proceedings, which appeared to amount to the submission that in relation to at least some of the points raised the Court has no jurisdiction to inquire. The Court's jurisdiction is based on s.247(1) of the Industrial Relations Act 1988, which reads as follows:
"Not later than 30 days after the declaration of the result of the ballot under s.243, application may be made to the Court, as prescribed, for an inquiry by the Court into alleged irregularities in relation to the ballot."
Mr. Mullins contended that the material filed on behalf of the applicant was insufficient to establish any irregularity within the meaning of the section. The contention made was dependent principally upon the lack of adequate detail which, Mr. Mullins said, has to be contained in the application. The allegations made were described as being too vague. That is true in some respects; for example, paragraph 3 of the facts relied on in the application says simply: "Some members of the FEDFA entitled to receive a ballot paper received an envelope and no ballot paper."
It is questionable whether the lack of particularity goes to jurisdiction. As I understand the argument, it was that unless the application states on its face the existence of facts demonstrating that there were in fact irregularities, the Court could proceed no further. Mr. Mullins said the Court should look only at the application and declaration and on the face of those there is no jurisdiction. He referred to regulation 93, mentioned above, which reads as follows:
"(1) For the purposes of subsection 247(1) of the Act, an application to the Court under subsection 247(1) for an inquiry by the Court shall be:
(a) in accordance with Form 11; and
(b) accompanied by a statutory declaration made by the applicant verifying the facts set out in the application.
(2) For the purposes of this Division, an inquiry in relation to a ballot shall be taken to have been instituted upon the lodging of an application in accordance with subregulation (1)."
The argument advanced was, in substance, that unless there is a declaration which sets out what can accurately be described as facts, and those facts show the existence of an irregularity, then the Court cannot proceed, because an inquiry has not been instituted. There is authority for the view that in a case of this sort heard by the former Commonwealth Court of Conciliation and Arbitration, defects in the application do not go to jurisdiction: The King v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Grant (1950) 81 CLR 27. But in my view, the correctness of Mr. Mullins' suggestion that there is no jurisdiction must be determined having regard to the decision of the High Court in The Queen v. Gray; Ex parte Marsh (1985) 157 CLR 351. That case concerned a purported inquiry by this Court under s.159(1) of the Conciliation and Arbitration Act 1904, corresponding to s.218 of the current statute, viz. the Industrial Relations Act 1988. There, a jurisdictional point having been taken, namely that the conduct relied on did not consist of an "irregularity", Gray J. held that the facts alleged were capable of supporting a finding of irregularity (395).
The statutory language considered in The Queen v. Gray does not appear to me to be distinguishable, for present purposes, from that with which I am concerned. A question considered by the High Court was whether there was evidence of an "irregularity in or in connection with an election for an office in the organisation", "irregularity" being defined in a way not relevantly different from the present definition: see s.4(1) of the current Act and of the 1904 Act.
In The Queen v. Gray, Brennan J. held as follows:
"The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the Court has jurisdiction to inquire; if he does not, the Court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Part IX a defect in jurisdiction appears. A defect in jurisdiction appearing on the face of the application does not require evidence to establish it nor can evidence cure it. The defect in jurisdiction being apparent, prohibition may be granted to restrain an intended exercise of jurisdiction." (381-382)
This passage may give some support to Mr. Mullins' contention on behalf of Mr. McDonald. For if jurisdiction depends upon the content of the application, it must be admitted that document is, in some ways, rather exiguous. But the question of jurisdiction here does not seem to me to depend merely on the point as to particularity just referred to. There is room for argument as to whether what is relied upon would, if made out, be enough in substance to found jurisdiction. An example is ground 7 which alleges that some members were wrongly declared unfinancial because of a levy imposed contrary to the rules. The chain of argument is apparently as follows:
(1) There was a breach of the rules within the meaning of the definition of "irregularity" referred to above.
(2) That breach created purported obligations in some members to pay a levy.
(3) Members who did not pay the levy were treated as unfinancial.
Were it not for the necessity, which is urged, of dealing with the jurisdictional point now, I would prefer to have this question argued in the inquiry itself, after the evidence is in. In this case, that is a convenient course; at least it is not, as a practical matter, preferable to decide some aspects of this case separately as if on a demurrer. It seems to me necessary, in order to resolve the point, to determine which of the views taken in The Queen v. Gray should be followed.
It was there held by three of the judges that the allegations could not, even if made out, amount to irregularities within the meaning of the act. Gibbs C.J., Wilson and Brennan JJ. thought a writ of prohibition should issue against Gray J. and (apparently on the assumption that his Honour's decision to proceed with the inquiry was not "called in question by appeal or otherwise" within the meaning of s.23(2)(a) of the Judiciary Act 1903) the opinion of the Chief Justice prevailed; the other three judges thought no writ of prohibition should issue.
Gibbs C.J. was of the view that where "the only matters complained of are alleged irregularities which are not capable of answering that description" (371), the Federal Court has no jurisdiction to proceed. Brennan J. expressed the matter rather differently, but reached the same ultimate conclusion. The third member of what was treated as a statutory majority, Wilson J., held that the Court's jurisdiction did not "depend upon the actual occurrence of an irregularity" (378). However, his Honour, held, in effect, that a "claim based upon facts which even if accepted as true would not establish an irregularity within the meaning of the Act is insufficient ... to support an application which attracts the jurisdiction of the court to conduct an inquiry ..." (379).
Of the other members of the Court, Mason J. (as his Honour then was) denied that jurisdiction depended upon, "the applicants specifying any irregularity which falls within the statutory concept" (376). Deane J. held, in effect, that Gray J. had the right to determine whether there was any irregularity and that if he decided that wrongly, the error did not go to jurisdiction. Dawson J. said, "Whether or not a finding of irregularity was a condition precedent to the court's ultimate exercise of jurisdiction, the finding which the court did make did not take it outside the limits set by the legislation for its inquiry or embark it upon an exercise which was outside the area envisaged by the legislation" (395).
In Federal Commissioner of Taxation v. St Helens Farm (ACT) Proprietary Limited (1981) 146 CLR 336, the majority of the High Court were of the view that a decision of an equally divided Full Court of that court is not a binding authority: see especially Stephen J. at page 364. It appears to me there are two opposed views and the question is which one the Court should follow.
As the result demonstrates, the question which the High Court had to consider was one on the border line of the law concerning jurisdiction and it is an invidious task for a single judge to choose between the two sharply different approaches. I do, however, express a preference for the view of the present Chief Justice, Deane and Dawson JJ. If a Court mentioned in or contemplated by Chapter 3 of the Constitution, for example the High Court of Australia, has original jurisdiction conferred upon it, there must be some inconvenience attendant on the notion that the Court on which jurisdiction is conferred lacks power to decide, either rightly or wrongly, that jurisdictional facts exist. Suppose, for example, that a statute is passed conferring on this Court jurisdiction to award damages in any claim of nuisance brought against the Commonwealth, one would expect that the intention would be that this Court could lawfully decide for itself, subject to appeal, whether the facts alleged truly constitute a nuisance; further, one would expect that the Court could, in the ordinary course of procedure, either determine that as a preliminary issue or leave it to trial. It would hardly be convenient to be obliged to decide that sort of point at the insistence of, for example, a person subpoenaed.
I therefore hold, in accordance with the submissions of Mr. Boccabella, that there is jurisdiction to entertain the inquiry. This is not to say that I hold that all the various complaints made in the application would if established demonstrate irregularity within the statutory definition. Nor do I hold that Mr. Mullins' complaints about lack of particularity in the application have no substance. It seems to me that the application should have contained more particulars.
However, it is likely that any deficiency in that respect is cured or will be cured by the affidavits which have been or are to be filed. My view then, in summary, is that I find it unnecessary to embark upon what I regard as the inconvenient task of deciding the case in sections. It seems to be a case that should be decided all at once, in the ordinary way, and I reject the suggestion that because of vagueness in the application or any other circumstance there is a lack of jurisdiction to proceed. I hold that the court has jurisdiction to proceed with the inquiry.
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