Evans, Kenneth Richard v The Hospital Employees Federation of Australia

[1984] FCA 376

R

JUDGMENT No. ........ -

CATCHI<ORT)S

376

Industrial l a w - regxstered organizations - inquiry into

e lec t lon - app l i ca t lon for lnter lm orders - prima facle case -

balance of convenlence.

Concl l ia t lon <and Arbl t ra t lon Act l ? @ 4 S. 1 6 3 ( 1 ) ( c )

IN THE FEDERAL COURT OF AUSTRALIA	1
)
PUEENSLAND DISTRICT REGIS=	) No. Q 12 of 1984
)
INDUSTRIAL DIVISION	)

IN THE MATTER of an

application by KENNETH

RICHARD EVANS for an

inquiry into an electlon

In THE HOSPITAL EMPLOYEES

FEDERATION OF AUSTRALIA

JUDGE: GRAY J.

U : 21ST SEPTEMBER 1984

EX TEMPORE REASONS FOR JUDGMENT

On 11th J u l y 1984 an officer of the Australian Electoral

Commission declared the results of a number of elections in the

Hospital Employees Federation ot Australia, Queensland Branch.

The elections were for one position of Junior Vice-President, one

position of Branch Secretary, one position of Branch Assistant Secretary, two posltions of Branch Trustees, eight posltions as ordinary members of the Committee of Management, and six

positions of Branch Delegates to the National Council.

The Industrial Registrar has referred to the Court

pursuant to S . 159(4)ta) or the Conciliation and Arbltration Act

1904 an application by Kenneth Richard Evans for an inquiry nto

each of these elections. Pursuant to S. 163(l)(c) of the Act.

2.

Mr. McCarthy. who appears for the Applicant. seeks an interim order that the persons who currently occupy all of the offices

the subject of the elections continue to	do so until the inquiry
is determined.

The principles laid down by the High Court of Australia

in Beecham Group Limited v. Bristol Laboratories Ptv. Limited

(1967) 118 C.L.R. 618, at pages 622-623, have been applied by the

Full Court of his Court to cases involving statutory

injunctions; see World Series Cricket Pty. Ltd. v. Parish (1977)

16 A.L.R. 181. The same principles have also been applled to

various powers under the Conciliation and Arbitration Act to

grant interim orders; see Thompson v. Townsend (1979) 38 F.L.R.

143, Cook v. Crawford (1979) Industrial Arbitration Service,

Current Renew 492, Mahonv v. Pets (1979) 37 F.L.R. 488, and

Lancaster and Cannv v. The Municipal Officers' Association of

Australia (1981) Industrial Arbitration Service, Current Review

11. Unless persuaded to the contrary, I am disposed to apply

these same principles to an application for interim orders under

S . 163 of the Act.

The first element of these principles requires that the

applicant for interim relief should make out a prima facie case; that is to say, he or she should establish that if the evidence remains as it is, he or she has some likelihood of success at the

trial. It appears to me that, in the present circumstances, the

question of a prima facie case involves both the issue whether

irregularities have occurred and the issue whether any such

irregularities may have aftected the result of any ot the

3 .

elections.

The only hard evidence of an irregularity likely to have

affected the result is that 26 members did not recelve ballot

papers, because their addresses were changed in the records of

the branch. to show incorrect addresses.

The margins by which the successful candidates' votes

exceeded the votes of their rivals in the elections are as

follows: in the electlon for Junior Vice-Presldent, the margin

is 50; in the election for Branch Secretary, the margin 1s 38;

in the electlon for Branch Assistant Secretary, the margin 1s 57.

The remaining positions involved the electlon of more than one

candidate. For Branch Trustees, the gap between the lowest

winning candidate and the highest unsuccessful candidate was 2 2 .

In the case of the members of the Commlttee of Management. the gap between the lowest successful and the hlghest unsuccessful

candidate was seven, and in the case of Branch Delegates to the

National Council, the gap between the lowest successful and the

highest unsuccessful candidates was one.

It follows from these figures that the non-receipt of

ballot papers by 26 members entitled to vote may have affected

the result of the election tor some of the positions at issue,

those being the ones in which more than one candidate was to be

elected. In relation to those positions it should be noted that

those who received the highest vote in each case are not

affected, but those who received the lowest, or close to the

lowest votes, may be. I have not been asked by either Mr.

4 .

McCarthy or by Mr. Murdoch, who appeared for a number of

successful candidates, to distinguish between the various

candidates in'those elections.

So far as the other alleged irregularities are

concerned, it is, in my view, undesirable that I should state

anything which might be taken to be a preliminary conclusion

about those matters. Some of them involve a considerable degree

of speculation as to the facts; others involve difficult

questions of law and of legal principle. It is sufficient if I

say that I do not at present feel satisfied that a prima facie

case is made out in respect of those alleged irregularities.

Notwithstanding this, I proceed to conslder the balance of

convenience, because a prima facie case has been made out in

respect of some of the positions, and in case	I am	wrong in
relation to the other alleged irregularities.

Rule 16(b) ot the Branch Rules provides that the annual

general meeting of the Branch shall be held in the month of

September. It has been agreed by both counsel before me that the

actual date of the annual general meeting is 28th September 1984.

By virtue of Branch rule 9(a)(iii), the newly elected officers in all positions are due to take office from the completion of the annual general meeting for the year in which they are elected;

that is to say, they will take office on 28th September 1984

unless some order is made to the contrary.

Only two of the offices the subject of the elections are

full-time positions, they being the Branch Secretary and the

5.

Branch Assistant Secretary. Each of the occupants of these

positions is also a full-time officer of a state registered union

with membership substantially the same as that of the Branch.

Mr. McCarthy has submitted that it is more convenient and more efficient to allow these persons to continue to administer the Branch. On the other hand, it 1s worth noting that nelther of these persons wlll lose his job or h1s income if the rules are

allowed to operate according to their terms. In additlon, I am

informed that neither of these persons has in the past been

elected to the position which he now holds in the Branch. Each

of them was appointed to fill a casual vacancy in that posltion.

The elections for those particular posltions, Branch Secretary

and Branch Assistant Secretary, whlch have been held this year,

constitute the only expression of the will of the members as to

who should hold the respective offices.

There is no evidence that any lnconvenience or loss of

efficiency would result if those who have been elected take up

their offices in accordance with rules, even if they are

subsequently ousted upon the hearing of the inquiry. On the

contrary, it seems to me to be undeslrable that one side in a

contest such as this should have exclusive control of the assets

and the records of the branch pending the inqulry, and indeed

perhaps pending the conduct of any possible	new ballot that might
result.

Accordingly, no ground has been shown on the balance of

convenience why the rules should not operate according to their

terms, and why those who have been elected should not take

, . 6 .

office. It is my hope that questions as to the validity of their

taking office will be resolved within a short period, having

regard to the direction that	I propose to make	as to the date	of
hear lnq.

I therefore dismiss the application for interim orders.

I certify that this and the (5) five

preceding pages are a true copy of the

Reasons for Judgment herein	of his
Honour Mr. Justice Gray

Associate Dated: 12/10/84