Christopher Keily and Transport Workers Union of Australia (Victoria Branch)

[1995] IRCA 41

IN THE INDUSTRIAL RELATIONS COURT )          
OF AUSTRALIA              )          VI No. 1291/95
VICTORIA DISTRICT REGISTRY                              )

IN THE MATTER of an application by Christopher Keily for an Inquiry in relation to an election for Offices in the Transport Workers Union of Australia (Victoria Branch).

Reasons for Judgment

(Delivered Ex Tempore - Revised from draft transcript)

7 February 1995  KEELY J

I have decided to refuse the application by the applicant, for the court to order, under s.221(1) of The Industrial Relations Act 1988  (the Act) that no further steps should be taken in the conduct of the election until further order.

The court was told that for administrative reasons it is necessary for the returning officer to know by tomorrow whether the ballot papers in this election of the Victorian branch are to be sent out by him next Monday.  Accordingly, time does not permit the formulation of detailed reasons for my decision; in any event, the nature of the application for an interim order is such as to make it undesirable for the court to canvass a number of the matters raised by the parties.  For example, it is undesirable that I should make any comment upon the oral evidence given today, including cross-examination, or to make any comment upon the suggestion from the bar table as to the applicant's alleged delay in making his application.  Nor do I intend to comment upon the suggestion that the applicant's documents were "prepared in a slap-dash fashion".

In reaching my decision I have not taken into account an estimate, deposed to in the affidavit by the returning officer, Mr. Small, that an order staying the ballot would result in $30,000 additional costs.  I have considered all of the submissions made by counsel for the parties, and each of the affidavits filed in court yesterday and today, as well as the material already on the court file.

I agree with the following passage by Gray J in Buchanek v. Jones (1989) 34 IR 102 at 104:

"There has been a tendency to assimilate the tests of "serious question to be tried" and "balance of convenience", sometimes used in deciding whether interlocutory injunctions should be granted, into the process of deciding whether interim orders should be granted under various provisions of the Act in similar preceding legislation.  This tendency ignores the apparently deliberate choice by Parliament of the phrase 'interim orders' in provisions such as s.209(4) instead of the word 'injunction' which appears in other legislation.  I have expressed myself previously about the inappropriateness of formulations directed towards the granting or refusal of traditional equitable remedies for orders of a wholly different kind. (See Lewis v Maynes, unreported 19 August 1988 at 6-7).

That passage related to a s.209 application, but in my view is also applicable to an application under s.221(1). As Dawson J said in A and Others v. Hayden and Others (No 1) (1984) 56 ALR 73 at 79:

"A court ought not to be misled by an over-strict application of verbal formulae to depart from its primary duty to do complete justice in the cause."

His Honour was there referring to the opinion expressed by McClelland J in Appleton Papers Incorporated v Tomasetti Paper Pty Limited (1983) 50 ALR 428 at 435.

In my opinion the court, in considering any application in relation to a union election, should consider the interests of the members of the union and of any relevant branch.  I may add that I agree with the opinion expressed by Lee J in Smith v. The Operative Painters and Decorators Union (1992) 44 IR 357 at 362, that the power conferred on the court under s.221(1):

"It is not a wide discretionary power in the nature of that given by ss.208(9) and 209(4). (See The Queen v. Joske Ex parte Shop Distributive and Allied Employees Association (1976) 135 CLR 194 per Mason and Murphy JJ at 213)."

That case was cited by Mr. Misso, of Counsel, who appeared for the applicant.

The essential reason for my decision to refuse the order sought by the applicant is that, on the material placed before the court I am not satisfied that it would be just or proper to make an order that the conduct of the ballot be stayed. The decision is also supported by the matters referred to in the submission of counsel for the other parties, namely, Messrs. Bromberg, Borenstein and Haylen, and is also supported by the affidavit by Mr. Allan, the assistant federal secretary of the union, as to practical difficulties if the ballot be deferred. For these reasons the applicant's application for an order under s.221(1) of the Act is refused. The court will now hear submissions from all parties as to the directions to be given in relation to the future conduct of the inquiry.

I certify this and the two (2) preceding pages are a true copy of the reasons for judgment of the Honourable Justice Keely as recorded in the draft transcript and revised by his Honour on 7 February 1995.

Associate:

Dated:  8 February 1995

Solicitors for the applicant:  Harry Noricki & Co

Counsel for the applicant:  Mr. Misso

Solicitors for the respondent:  Ryan Carlisle Thomas

Counsel for the respondent:  Mr. Haylan QC & Mr. Thomas

Solicitor for Australian Electoral Commission:             Australian Government Solicitor

Counsel for Australian Electoral Commission:  Mr. McClure

Date of hearing:  6 & 7 February 1995

Date of judgment:  6 & 7 February 1995