In the matter of an application by Birch, L.R. for an inquiry into an election in the South Australian Branch of the Australian Workers Union
[1992] FCA 340
•13 MAY 1992
Re: INDUSTRIAL RELATIONS ACT 1988
And: APPLICATION BY LESLIE RONALD BIRCH FOR AN INQUIRY INTO AN ELECTION IN THE
SOUTH AUSTRALIAN BRANCH OF THE AUSTRALIAN WORKERS' UNION
No. S I1 of 1990
FED No. 340
Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)
CATCHWORDS
Industrial Law - Registered organisation - new election ordered by Court after finding of irregularities - orders made under s. 223(3) - effect of reservation of "liberty to apply" - application to amend orders after entered - whether power to amend under s. 223(3)(d) of Industrial Relations Act 1988 or under Order 35 rule 7(4) of Federal Court Rules - meaning of "order ... incidental or supplementary to, or consequential on" order under s. 223(3) - whether court has power to make orders precluding any inquiry into alleged irregularities in "new election" ordered by Court.
Industrial Relations Act 1988 (Cth) s. 223(3)
Federal Court Rules O. 35 r.7
HEARING
ADELAIDE
#DATE 13:5:1992
Solicitors for the applicant: Moloney and Partners
Appearing for the applicant: Mr F. Di Fazio and Mr P. Moloney
Solicitors for Mr Dunnery: Stratford and Co
Appearing for Mr Dunnery: Mr T. Stanley
Solicitors for the Returning: Australian Government Solicitor
Officer
Appearing for the Returning Mr S. Marshall
Officer:
Solicitors for the Australian
Workers' Union and Australian
Workers' Union
(S. A. Branch): Johnston Withers
Appearing for the Australian
Australian Workers' Union
(S. A. Branch): Mr J. Rau
Appearing for Mr Alexander and
Others: Mr Bourne
JUDGE1
Mr Leslie Ronald Birch ("the applicant") sought an inquiry into an election in the South Australian Branch of the Australian Workers' Union ("the union"). On 26 April 1991 the court, constituted as it is now, after a hearing occupying some thirty sitting days, made certain findings as to irregularities and made the following orders ("the April 1991 orders"):-
"1. Each of the elections for the offices the subject of the inquiry, other than the election of four delegates to the 1990 Annual Convention and other than the election of Bill Harris, Robert Sneath and Harry Sugars to the office of Branch Organiser, be declared void.
2. Each of the persons, other than the four delegates to the 1990 National Convention and other than Bill Harris, Robert Sneath and Harry Sugars referred to in paragraph 1 hereof, purporting to have been elected to the offices the subject of the inquiry are declared not to have been so elected.
3. The Industrial Registrar be directed to make arrangements for a new election ("the new election") to be held, as soon as practicable after 31st July 1991, and that it include the calling of fresh nominations (a) for each of the offices the subject of the inquiry, other than the offices of delegates to the 1990 National Convention and (b) for five only of the eight offices of Organiser.
4. With the exception of the four persons declared by the returning officer to have been elected to the office of delegate to the 1990 National Convention, and with the further exception of each of Bill Harris, Robert Sneath and Harry Sugars, declared by the returning officer to have been elected to the office of organiser, each of the persons purporting to have been elected to the offices the subject of this inquiry occupy those offices pending the outcome of the new election ordered pursuant to paragraph 3 hereof and such persons shall continue to occupy such offices for a period of 28 days after the declaration by the returning officer of the result of the new election ordered herein.
5. Whatever persons are declared by the returning officer to have been elected to each of the offices in the new election, pursuant to paragraph 3 hereof, commence to hold the respective offices on the 29th day after the day on which the returning officer declares the results of the new election ordered herein and such persons shall continue to hold such offices until 1st February 1994.
6. Until the completion of the new election ordered herein and the declaration of the ballot, the Branch Executive shall not consider or consider further the question of the applicant's eligibility to remain a member of the Australian Workers' Union.
7. The operation of Rule 77 of the Rules of the Australian Workers' Union be modified to any extent that may be necessary to ensure that (a) the new election shall be taken on the financial membership records of the South Australian Branch of the union for the year ending 31st July 1991 and (b) the returning officer is not bound by the other dates appearing in that rule.
8. Each of the parties has liberty to apply on not less than 48 hours written notice to the other parties."
The inquiry was relisted at the request of the applicant and the court has heard the applicant and other parties on the question whether the court has power to grant the applicant's application for the April 1991 orders to be amended.
The application did not seek to amend orders numbered 1, 2, 3, 7 and 8 (save to renumber Order 8 as 8A). It sought the following amendments to the Orders:-
Order 4 - (a) Insert in the 8th line, immediately after the words "this inquiry" the words "(excepting Branch Executive members)";
(b) Delete the following words from the last 4 lines of Order 4, namely,:
"and such persons shall continue to occupy such
offices for a period of 28 days after the declaration
by the returning officer of the result of the new
election ordered herein."
Order 6 - Delete from lines 1 and 2 the words "completion of the new election ordered herein and the declaration of the ballot" and substitute the words "Branch Executive elected in the new election takes office".The application, as amended, also sought the following additional orders:
"4A. Pending the outcome of the new election ordered pursuant to paragraph 3 hereof the following persons shall occupy office as Branch Executive members:
...
(here insert the names of those who have given suitable undertakings).
8. The operation of Rule 68 of the Rules of the Australian Workers' Union be modified to any extent that may be necessary in relation to persons who nominated in the voided elections (excepting those whose nominations were declared void in the decision of the court) to ensure that the eligibility of such persons falls to be determined as at 22 September 1989 so far as eligibility to be and remain a member is concerned. Provided also however that the Returning Officer shall remain bound to reject the nomination of any person who has not been continuously financial as is required by Rule 68."
Messrs. Di Fazio and Moloney, of counsel, appeared for the applicant. It is convenient to say immediately that I reject their submission that Order 4 of the April 1991 orders was made under the powers conferred by s. 221(1) of the Industrial Relations Act 1988 (Cth) ("the Act").
Submissions that the court had no power to grant the application were advanced by Mr Stanley, of counsel, who appeared for Mr Dunnery, the Secretary of the Australian Workers' Union, S.A. Branch, Mr Marshall, of counsel, who appeared for the Australian Electoral Commission and for Mr Carey, the Returning Officer, and Mr Rau, of counsel, who appeared for the Australian Workers' Union and for the Australian Workers' Union (S.A. Branch), a union registered under the Industrial Relations Act (S.A.) 1972.
Mr Stanley relied partly upon the fact that the court, in its reasons for judgment, after setting out the orders ((1991) 37 IR 420 at 434-435), said (at 436) "Subject to the rights of the parties to apply, reserved under order 8 above, the inquiry is terminated".
Mr Moloney's primary submission on the question of power was that s. 223(3)(d) of the Act conferred the power to make the orders sought. That sub-section read:
"If the Court finds that an irregularity has happened,
the Court may, subject to subsection (4), make one or
more of the following orders:
....
(d) an order (including an order modifying the operation
of the rules of the organisation to the extent necessary to enable a new election to be held, a step in relation to an election to be taken again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential on, any other order under this section."
I accept his submission that the power there conferred to make an order "incidental or supplementary to, or consequential on, any other order under this section" is not limited to orders "necessary to enable a new election to be held ...". However, in my opinion it is plain that none of the orders sought today can properly be described as being orders "incidental to" or "consequential on" other orders under the section. The applicant has a somewhat stronger argument in respect of the words "supplementary to" but, having considered the matter, I am firmly of the opinion that none of the orders sought is "supplementary to ... any other order under (the) section". The amendments sought by the applicant are not expressed as being supplementary to the April 1991 orders, in the sense of supplying any deficiency in those orders. From the submissions made by Mr Moloney it is clear that they are not intended to supplement the April 1991 orders; they are intended to make very significant changes to those orders.
In this connexion it may be added that Mr Moloney submitted that the statute conferred on the court the power to make an order "that Mr Birch be a candidate in the following elections" (transcript p 160) and that such an order would, as a matter of law, operate to take away from the members of the union, the right to challenge, under s. 218 of the Act, Mr Birch's eligibility to be nominated for office in the election. I reject that submission. In my opinion the court has no such power.
Mr Moloney contended that that power existed and, further, that it had been exercised. He referred to R v The Commonwealth Court of Conciliation and Arbitration and Ors.; Ex parte Grant (1950) 81 CLR 27 where Latham C.J. said (at 49):
"The order for a further election in this case, it may be observed, provides that the persons nominated at the voided election shall be the candidates at that further election."
Latham C.J. was referring to an order made by Dunphy J. in an election inquiry. The decision of Dunphy J. in The Boilermakers Society of Australia (Sydney Branch No. 1); Ex parte O'Shea (1950) 66 CAR 435 at 441 shows that his Honour's order was in the following terms:-
"2. That a fresh ballot be held for all offices for which
only those candidates whose nominations were accepted by the meeting of the 31st day of May, 1949 shall stand."
In my opinion that order did not require those persons to be candidates. The court did not order - and, in my respectful opinion, had no power to order - that those persons were entitled to stand as candidates if they were ineligible to be candidates under the rules of the union; such an order would have been contrary to the purpose of the statutory provisions for inquiries into alleged irregularities. The order did no more than to prevent persons from standing for office unless their nominations had been accepted by the meeting of 31 May 1949.
Mr Moloney sought to rely, in a similar fashion, on the orders made by Gray J. in Re Porter; Re Transport Workers' Union of Australia (1989) 34 IR 179 at 213. Gray J. there ordered the Industrial Registrar to :
"make arrangements for the completion of the elections, upon the
basis that:
(i) Gary Ross Newman is a candidate for the offices of committee man and organiser;
...."
His Honour made similar orders in respect of four other candidates and ordered that one other person not be a candidate. In my opinion his Honour's orders did not have the effect contended for by Mr Moloney and what has been said above, regarding the orders made by Dunphy J. in Grant's case, is equally applicable. It may be added that Mr Marshall, who appeared as counsel in Porter's case, informed this court that, in the hearing before Gray J., no submissions were advanced as to whether the proposed order would "have the effect of stopping the statutory rights of individuals to challenge other candidates" (transcript p 197).
Mr Moloney, in the written outline of submissions presented by him today, advanced the following submissions:
"that the jurisdiction of the Court in an election inquiry
continues until a final and valid result is declared.
.... the election referred to in the grant of jurisdiction
contained in Section 223(1) encompasses not only the
election which gave rise to the Application but also the
fresh election ordered.
The election which gave rise to the Application and the
fresh election ordered are one (and) the same election
because an election is not complete until there is a valid
declaration of the result in the election.
It follows from that that the jurisdiction of the Court has
not been exhausted."Finally, he submitted that the Federal Court did not have jurisdiction to inquire into any alleged irregularities in relation to the "new election" ordered by the Court.
In my opinion there is no substance in any of those submissions and they are not supported by the passages quoted by Mr Moloney from the reasons for judgment of McTiernan J. in Grant's case (supra, at 55), Gaudron J. in Re Collins; Ex parte Hockings (1989) 167 CLR 522 and the justices of the High Court in Hodge and Ors. v R (1907) 5 CLR 373.
I reject Mr Moloney's submission that s. 223(3)(d) authorises the making of the orders sought.
There remains Mr Moloney's alternative submission that Order 35 Rule 7 confers the requisite power. In my opinion it does not. I accept the submissions advanced by both Mr Stanley and Mr Marshall as to that matter and the grant of "liberty to apply" to all parties by Order 8 of the April 1991 orders.
In Commonwealth Scientific Industrial Research Organisation v Perry and Ors. (No. 2) (1988) 53 SASR 538 at 557 King C.J., with whom Jacobs J. and O'Loughlin J. agreed, said:-
"One point may be disposed of at the outset. The judgment
granting the injunction reserved liberty to apply. The
reservation of liberty to apply does no more, at least in a
final judgment or order, than to reserve to the parties
expressly a liberty which is generally regarded as implied,
to make application for any order which is necessary or
desirable for the working out of the order. It does not
authorise the court which has made a final order to
discharge or vary that order: Cristel v Cristel (1951) 2 KB 725."In In re Porteous dec'd (1949) VLR 383 at 385 Herring C.J., O'Bryan and Fullagar JJ. said:-
"And he submitted that the order made by Macfarlan J. in the
present case was such an order by reason of the reservation
therein of liberty to apply. ... His contention really
amounted to saying that by reason of such reservation and
for no other reason the order was one that was not final in
character.
This contention, in our opinion, is one that cannot be
sustained. ... And where in a final order there is such an
express reservation, the character of the order is not
changed. It is not rendered any the less final thereby.
The only effect of reservation is to permit persons having
an interest under the order to apply to the Court touching
such interest in a summary way. Bund v Green (1875) WN 213.
It enables the Court to deal with matters that arise in the
course of working out the order, but does not enable it to
make what is substantially a different order. Poisson and
Woods v Robertson and Turvey (1902) 50 WR 260 (C.A.), Dowdle
v Hillier (1949) 66 WN (NSW) 155. And it is just this, a
substantially different order that the widow now seeks."In Phillips v Walsh (1990) 20 NSWLR 206 at 209-210 McLelland J. said:-
"The question whether any particular application can
properly be made in existing proceedings is a matter to be
determined according to general law principles as modified
by any relevant statutory provision. One such principle of
the general law is that when proceedings have been disposed
of by a final order which has been entered, the proceedings
are at an end and cannot be revived: see generally Bailey v
Marinoff (1971) 125 CLR 529; Gamser v Nominal Defendant
(1977) 136 CLR 145; and FAI General Insurance Co. Ltd. v
Southern Cross Exploration NL (1988) 165 CLR 268. There are
a number of exceptions and qualifications to this principle
but none that has any relevance to the present application,
unless it be that subsequent to a final order application
may be made for the purpose of dealing with a matter
involved in, or arising in the course of, working out that
order; for example, by making more specific provision for
its implementation or by modifying its operation to take
account of some subsequent change of circumstance or by
enforcing it. This exception or qualification does not,
however, extend to an application made for the purpose of
giving substantive relief not sought in the statement of
claim or which is substantially different to that given by
the final order: see generally Haviland v McLeary (1984) 15
LR (NSW) (Eq) 22; 10 WN (NSW) 146; Poisson and Woods v
Robertson and Turvey (1902) 86 LT 302; 50 WR 260; 46 Sol Jo
196; Dowdle v Hillier (1949) 66 WN (NSW) 155; Re Porteous
(1949) VLR 383; (1950) ALR 89; Cristel v Cristel (1951) 2 KB
725 and Re Scott (1964) 82 WN (Pt 1) (NSW) 313; (1964-5) NSWR 1636."In my opinion the orders sought in the present hearing are seeking "relief ... which is substantially different to that given by the final order".
Order 35 rule 7(4) of the Federal Court Rules provides as follows:-
"(1) The Court may vary or set aside a judgment or order before it has been entered.
(2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where -
(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;
(b) the order was obtained by fraud;
(c) the order is interlocutory;
(d) the order is an injunction or for the appointment of a receiver;
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order was made consents.
(3) A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court.
(4) Sub-rule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order."
I accept Mr Marshall's submission that sub-rule (4) must be construed in its context, including the express power, conferred by sub-rule (1), to vary an order "before it has been entered (emphasis added)". In the present case it was common ground that the order had been entered. It may be added that sub-rule 7(4) does not in terms expressly confer a power. It merely provides that sub-rule 7(2) "shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order"; the power must be found elsewhere.
In Narish Holdings Pty. Ltd. v The Commonwealth of Australia and Ors. (unreported - judgment delivered 30 June 1989) Davies J. set out the full terms of Order 35 r. 7 and said:-
"This Rule is based on well understood principles. See
Preston Banking Company v William Allsup and Sons (1895) 1 CH
141, Daniell's Chancery Practice 8th Ed., p 709, The White
Book 1985 20/11, Ritchie's Supreme Court Practice 20.10.
The general principle was stated in Daniell's Chancery
Practice as follows:-
"We have seen that, so long as a judgment or order
remains in the shape of minutes, that is, until it has
been passed by the Registrar and entered, it may be
rectified upon application to the Court, or having it
put in the cause paper to be spoken to (See ante,
Sect. III., and Chap XIV. 2; Re Lyric Syndicate, 17
TLR 162; The Turret Court, 84 LT 331). After the
judgment has been entered the Court will not entertain
any application to vary it, except in so far as may be
necessary to make the entry correctly represent what
the Court intended to decide (Re St. Nazaire, 12 CD
88; Re Manchester Economic Building Soc., 24 CD 488;
Preston Banking Co. v Allsup, (1895) 1 Ch 141; Re
Swire, 30 CD 239; Lawrie v Lees, 7 AC 19; Re Crown
Bank, 44 CD 634, 648; Wilson v Carter, (1893) AC
640; Re Leonard, 107 LTJ 408; Hatton v Harris,
(1892) AC 547; Stewart v Rhodes, (1900) 1 Ch 398;
Re Suffield and Watts, 20 QBD 693; Hipkiss v
Fellows 101 LT 701; see post, p 710. Possibly the
Ct has jurisdiction to re-hear a case if the parties
consent: Re Caithness, 36 Sol J 216.)"
It may be added that I agree, with respect, with the following observations of Davies J. (p 6 of those reasons for judgment):-
"However, a reservation of leave must be construed having
regard to the context in which it is made and the purpose of
the reservation. ... Where there is a reservation of leave,
the question is always what did the reservation mean having
regard to the judgment and the reasons delivered therefor."
In the present case (as in the case before Davies J.) the judgment given on 26 April 1991 was not an interim judgment. It dealt finally with the issues before the Court, subject to the reservation of leave.
In my opinion the court has no power to grant the application and accordingly it is dismissed.
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