Cook, in the matter of an election for an office in the Communication Workers Union of Australia and Telecommunications branch, New South Wales

[1996] IRCA 442

DECISION NO: 442/96

CATCHWORDS

INDUSTRIAL LAW - Election inquiry - character of determination under s223(1) - whether question of law can be referred after a determination that no irregularity has happened.

Industrial Relations Act 1988 s223(1) "determine"

No. NI 2016 of 1996

QUENTIN COOK v IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATION WORKERS UNION OF AUSTRALIA AND TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES

Moore J
Sydney
19 September 1996

IN THE INDUSTRIAL RELATIONS          )
  )
COURT OF AUSTRALIA                   )  No. NI 2016 of 1996
  )
NEW SOUTH WALES DISTRICT REGISTRY     )

BETWEEN:  QUENTIN COOK
  Applicant

AND:        IN THE MATTER OF AN ELECTION
  FOR AN OFFICE IN THE COMMUNICATION
  WORKERS UNION OF AUSTRALIA AND
                 TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES

JUDGE:    Moore J

PLACE:    Sydney

DATE:     19 September 1996

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application that questions of law be referred to a Full Court is dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS          )
  )
COURT OF AUSTRALIA                   )  No. NI 2016 of 1996
  )
NEW SOUTH WALES DISTRICT REGISTRY     )

BETWEEN:  QUENTIN COOK
  Applicant

AND:        IN THE MATTER OF AN ELECTION
  FOR AN OFFICE IN THE COMMUNICATION
  WORKERS' UNION OF AUSTRALIA POSTAL
  AND TELECOMMUNICATIONS BRANCH,
  NEW SOUTH WALES

JUDGE:    Moore J

PLACE:    Sydney

DATE:     19 September 1996

REASONS FOR JUDGMENT

I have just published the reasons for having determined on 6 September 1996 that, in my opinion, no irregularity had happened in the election for the office of President by the rejection of the nomination of Mr Quentin Cook.  Those reasons also include my reasons for reaching a similar conclusion in relation to the rejection of the nomination of Mr Noel Battese in the election for the office of Organiser.

During the hearing on 6 September 1996, senior counsel for Battese raised an issue about the nature of the proceedings, that is, were they interlocutory proceedings that might result in an interim order under s221 or were they final in character which would result in the exercise of powers under s223.  The counsel involved had not been at the earlier hearing when the matters were listed for hearing on 6 September 1996.  I had approached the proceedings on the basis that the matters had been listed for hearing on 6 September 1996 with a view to the issues raised in the applications being dealt with under s223.  After a discussion about this question the following appears in the transcript of 6 September 1996:

"HIS HONOUR:  Yes, does anyone else (want) to say anything about that question because I think I ought to make clear to everyone concerned the character of the proceedings.  Does anyone want to say anything further about it?

Well, lest there be any uncertainty I am proceeding to deal with the matter on a final basis and will therefore be giving consideration to what orders, if any, should be made under section 223."

After hearing all the argument the following was said:

"HIS HONOUR:  Yes, thank you.  In other circumstances what I would do would be reserve my judgment and give reasons for reaching the view that I now have.  In the circumstances however, I think it is appropriate for me to indicate what my view is and publish reasons in due course.  Having regard to the submissions that have been made and the way in which the cases have been put I am not satisfied that any irregularity occurred in these elections by the rejection by the returning officer of the nominations of Messrs Cook and Battese.

Accordingly, I do not propose to make any orders under section 223 and what I propose to do unless anyone suggests some other course, is to adjourn each inquiry generally.  If at some stage Mr Mason either you take steps to initiate an inquiry or wish to have these inquiries listed for the purpose of seeking to persuade me that I can deal with the rejection of your nomination in these inquiries and then to do so, they can be re-listed.  What I will do is to endeavour to publish my reasons for the view that I have just expressed as soon as I can."

On, it would appear, Monday 9 September 1996 a notice of motion was filed on behalf of Cook seeking to have referred to a Full Court questions of law under s416(1) in the inquiry which resulted from an application made by him.  That sub-section provides:

"416.(1)At any stage of a proceeding in a matter arising under this Act, a single Judge exercising the jurisdiction of the Court:

(a)may refer a question of law for the opinion of a Full Court; and

(b)may, of the Judge's own motion or on the application of a party, refer the matter to a Full Court to be heard and determined; and

(c)on application by the Minister, is to refer the matter to a Full Court to be heard and determined."

While the questions were only in a preliminary draft form, they raised questions that had been the subject of submissions and consideration by me on 6 September 1996.

In indicating on 6 September 1996 that no irregularity had happened I was intending to make a determination of the question of whether an irregularity had happened in relation to each of the two elections: see s223(1), arising from the rejection of the nomination of Cook in the election for the office of President and the rejection of the nomination of Battese in the elections for the office of Organiser. I was doing so by reference to the submissions that had been made that day. On a fair reading of the transcript of 6 September 1996 that, in my view, would have been manifest.

The starting point, in my opinion, in determining whether a question of law should be referred, is the utility of doing so.  An order has not been made terminating the inquiry: see s223(5) and matters may arise, apart from the irregularity alleged by the applicant, that might be investigated: see Rule v Australian Workers Union (1985) 70 ALR 754 at 770, Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330 at 333, Re Election for Offices in the Federated Liquor and Allied Industries Employees Union of Australia (1970) 16 FLR 107 at 111, Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 FLR 195 at 201-202, Re Election for Offices in Australasian Meat Industry Employees Union (1963) 5 FLR 260 at 265, though it is to be noted that s223 speaks of "an" irregularity and not, as did s165 of the Conciliation and Arbitration Act 1904, of "any" irregularity. There remained for consideration in each inquiry, at the least, the question of whether certificates should issue under s343.

An inquiry involves the exercise of the judicial power of the Commonwealth: see e.g. Re Mellor; Re Federated Liquor and Allied Industries Employees Union of Australia (1986) 17 IR 398 at 399 and the exercise of powers by the Court, and the construction of provisions of the Act conferring them must be approached on that footing. The task of the Court under s223 is firstly to determine the question of whether an irregularity has happened: see s223(1). If such a determination is made then, subject to the operation of s223(4), orders may be made under s223(3). If no such determination is made then orders of the type contemplated by s223(3) may not be made. The Court, apart from taking the steps contemplated in s223(1) and (3), is invested with general power to make orders during an inquiry: see 223(2) including interim orders: see s221.

However the first essential function of the Court when conducting an inquiry is to make the determination under s223(1). The sub-section itself, the Act more generally, the Industrial Relations Regulations: see reg 62, or the Rules of the Industrial Relations Court of Australia: see O35 and O48, do not indicate that the determination need take any particular form. There is nothing to suggest it need be in writing: see Commonwealth v Goodfellow (1980) 31 ALR 533 at 544. As earlier stated, I intended, by what I said on 6 September 1996, to exercise the power conferred by s223(1) to make a determination in relation to the irregularity as it had been alleged.

Ordinarily a Court disposes of proceedings by a final judgment, order or decree which also provides the foundation for such rights of appeal as may be conferred by statute: see e.g. Landsale Pty Ltd v REI Building Society (1993) 41 FCR 421. They constitute the "operative judicial acts" of the Court, to adopt the language of Barwick CJ and Kitto J in Driclad Pty Ltd v Commissioner of Taxation (Cth) (1968) 121 CLR 45 at 64. While a Court generally does not have power to set aside its own judgments and orders once they are entered: see Bailey v Marinoff (1971) 125 CLR 529, this principle is not an inflexible one: see Taylor v Taylor (1979) 53 ALJR 629, and the entry of final orders does not preclude the exercise of related powers: see Caboolture Park Shopping Centre Pty Ltd (In Liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224.

However in expressing the conclusion I did on 6 September 1996 I was intending to determine finally the issue of whether the rejection of Cook's nomination was an irregularity and the words I used were indicative of me having done so.  I had, in reality, made a determination which was amalagous to an order disposing of the issue: see Town v Australian Telecommunications Commission (1983) 67 FLR 48 at 60. The observations of Winn LJ in Muir v Inland Revenue Commissioners (1966) 3 All ER 38 at 48 are apt:

"... I nevertheless desire to say that I am of the firm opinion that the word "determination" there used cannot be given the meaning, which I understood to be suggested by the submission, of "assessment".  In my opinion the context in which the word is used, and, indeed, used several times in the section, with or without the corresponding verb "determine", is far too strong to permit of its being understood as meaning anything but a decision on a point of law ..."

Thus, even if I had power to refer a question of law to the Full Court, whether their opinion is binding or advisory only: see O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 and compare s416(1)(a) with s416(1)(b) and (c), s46(3)(a) and (b) and s82(2) of the Act and s25(6) of the Federal Court of Australia Act 1976, the opinion of the Full Court would serve no purpose unless I was able to and proposed to review my earlier determination. In my opinion, it is not open to me to do the former and, even if I could, I am presently not aware of circumstances that would justify me doing so. Cook had an adequate opportunity to put submissions on the issues arising from the rejection of his nomination and they were put and rejected. Furthermore I remain satisfied that the conclusion I reached was the correct one.

I dismiss the application that questions of law be referred to the Full Court for their opinion.

I certify that this and the preceding .... (...) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:  ........ ........ ......

Dated:    19 September 1996

APPEARANCES

Counsel for the Applicant:          Mr P King

Solicitor for the Applicant:              Paul Etherington & Associates

Counsel for the the Communication
Workers Union of Australia and
Telecommunications Branch, New

South Wales:          Mr Haylen QC

Solicitor for the Communication
Workers Union of Australia and
Telecommunications Branch, New

South Wales:  R.L. Whyburn & Associates

Counsel for Australian Electoral
Commission:  Mr D Godwin

Solicitor for Australian Electoral

Commission:  Australian Government Solicitor

Dates of Hearing:  6 September 1996

IN THE INDUSTRIAL RELATIONS COURT     )
  )
OF AUSTRALIA NEW SOUTH WALES         )  No. NI 2016 of 1996
  )
DISTRICT REGISTRY GENERAL DIVISION        )

BETWEEN:  QUENTIN COOK
  Applicant

AND:        IN THE MATTER OF AN ELECTION
  FOR AN OFFICE IN THE COMMUNICATION
  WORKERS UNION OF AUSTRALIA AND
                 TELECOMMUNICATIONS BRANCH, NEW SOUTH WALES

JUDGE:    Moore J

PLACE:    Sydney

DATE:     20 September 1996

CORRIGENDUM

The following amendment is made to his Honour's judgment of 19 September 1996.

On page 7 in line 1 of the certification paragraph:
m    delete the words preceding eight (8) pages;  and
m    insert the words preceding six (6) pages.

Associate:     ........ ........ ........ .....
Date:          20 September 1996