Cambourn, J.K. relating to a ballot in the Federated Engine Drivers & Firemens Association of Australasia for amalgamation. - [1990] FCA 430

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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Cambourn, J.K. relating to a ballot in the Federated Engine Drivers & Firemens Association of Australasia for amalgamation. [1990] FCA 430 (96 ALR 114)
Case: [1990] FCA 430
Decision Date: 24 JULY 1990

CaseChat Overview and Summary

The case was heard before Cambourn J and concerned a ballot held by the Federated Engine Drivers & Firemens Association of Australasia for amalgamation. The application was brought by the association seeking an inquiry into the ballot. The legal issues before the court were whether the court had the jurisdiction to inquire into the ballot and whether the jurisdiction depended on the facts stated in the application. Additionally, the court had to consider the authority of a High Court decision that allowed amalgamation by a statutory majority.

The court examined the relevant legislation and found that the court did have the jurisdiction to inquire into the ballot. The court also noted that the facts stated in the application were sufficient to confer jurisdiction. The court considered the High Court decision and found that it did not affect the court's jurisdiction to inquire into the ballot. The court held that the authority of the High Court decision related to the validity of the amalgamation itself, rather than the process by which it was approved.

The court concluded that it had jurisdiction to inquire into the ballot and that the facts stated in the application were sufficient to confer that jurisdiction. The authority of the High Court decision did not affect the court's jurisdiction in this matter. The court ordered an inquiry into the ballot and directed the parties to provide further information as required.

The final orders of the court were that an inquiry be held into the ballot and that the parties provide further information as directed by the court. The court also ordered that the costs of the application be paid by the applicant.

Orders