Frizziero, Carlo v Bogar, Freda

[1998] FCA 716

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG148  of   1998

BETWEEN:	CARLO FRIZZIERO Applicant
AND:	FREDA BOGAR Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	12 JUNE 1998
WHERE MADE:	SYDNEY

EXTEMPORE SUPPLEMENTARY REASONS FOR JUDGMENT

WILCOX J:  On 29 May 1998 I delivered reasons for judgment in respect of this matter.  At that time I indicated concern about the quality of the evidence concerning the ballot of members of the Division Conference.  I indicated I would not be prepared to make a validation order unless there was evidence from a person having direct knowledge of that ballot concerning its conduct and result.  I stood over the matter until today to enable the applicant to put such evidence before me, if he so wished.

Since that time an affidavit has been sworn by Noel Treharne, the person who conducted the ballot.  It is dated 9 June.  Mr Treharne's affidavit reveals that he sent ballot papers to the 10 members of the Division Conference.  I am not concerned with the question whether he had an ongoing role as acting Federal Secretary, a matter that seems to be contentious.  The important point is that he did in fact send ballot papers to all the persons entitled to vote.  His affidavit reveals that nine of the 10 people returned the ballot papers sent to them, all nine of those people voting in favour of the rule amendment.  The exception was Ms Bogar, the respondent, who did not return her ballot paper.

It follows from this that the evidence now cogently demonstrates that, with the exception of Ms Bogar, the members of the Division Conference approved the rule change.  Having regard to that evidence, it seems to me appropriate to make the validation order I previously foreshadowed. 

A question has arisen regarding stay of the orders.  The solicitors for Ms Bogar say their client will wish to appeal.  They point out that, if the rule change is certified before an appeal is heard, the certification might create problems, in the event of the appeal succeeding.

I think this is correct.  On the other hand, it is important that the rule change take effect - if it is to take effect at all - before the commencement of the period of office of the incoming Federal Secretary.  This event will occur at the beginning of September.  In my view, it is appropriate to stay the operation of the orders; but only on the basis that any appeal will be prosecuted with the utmost expedition.  For this reason, I propose to stay the orders for a period of seven days initially.  In the event of a notice of appeal being filed within that time, then until the determination of the appeal or earlier order of a Judge.  I will also direct the parties to take all steps available to them to obtain an early hearing of the appeal, preferably before 1 September 1998.  There are problems, from the Court's point of view, in providing an early hearing date.  But the matter will be a short appeal and it may be possible for this deadline to be accommodated.  The important point is that the parties do the best they can to achieve that end. 

The formal orders I make are as follows.

1. It be declared that irregularities have occurred in the alteration of rule 47.12(n) of the rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union as determined by the National Conference of the said union at a postal ballot held in December 1997 and January 1998. 

1. The said irregularities be validated, to the intent that the said alteration take effect forthwith.

1. The operation of orders 1 and 2 be stayed:

(a) for a period of seven days from today; and

(b) in the event that a notice of appeal against those orders, or either of them, is filed within that period of seven days until the determination of the appeal or earlier order of a Judge.

1. In the event of any appeal as referred to in order 3(b), the parties are to take all steps available to them to obtain an early hearing of the appeal, preferably before 1 September 1998.

I certify that this and the preceding two (2) two pages
 are a true copy of the Reasons for Judgment herein
 of the Honourable Justice Wilcox

Associate:

Dated:            12 June 1998

Counsel for the Applicant:                 N Rudland

Solicitor for the Applicant:                Taylor & Scott

Solicitor for the Respondent:             Maurice Blackburn & Co
  Written submission received

Date of Hearing:  12 June 1998