In the matter of an application by Brailey, D. for an inquiry into an election in the Federated Liquor & Allied Industries Employees Union of Australia

[1985] FCA 650

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IN THE F"J?EIIAL COTJRT OF AUSTRALIA )

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OUEENSLAIJD DISTRICT REGISTRY 1 No. Q 10 of 1985

INDUSTRIM DIVISION )

IN THE YATTZ?. of an

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appllcatlon by DUDLEY ERAILEY

for an lnqulry into an

election m the FEDEXATFD

LIOUOR AVD A L L I D Ih27USTRIES

EMPLOYEES UKION OF AUSTPALIA

M TFX'ORE REASONS FOR JUDGMEPdT

On 29th July 1985, the Industrial RGglstrar referred to the Court an application by Dudley Bralley, dated lath J u l y 1985.

That appllcation is made under Part IX of the Conclliation and Arbltration Act 1904. It seeks an inquiry lnto elections for a number of offices in the Queensland Sranch of the Federated Liquor and Allled Industrles Employees Unlon of Australia. I shall endeavour to summarize the lrregularitles alleged in that appllcatlon.

In the first place, Mr. Brailey complains that the

rnaterlal distributed in support of certaln candldates in the electlon describes Mr. Bralley as having been gutlty of divisive

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1 and disruptive conduct and as havlng acted In opposition to the branch secretary. Mr. Srailey contends that those descrlptions

are mlsleading and llkely to cause people not to vote for hlm.

The second. comp1air.t is that certaln cacdldates lssued

electlon material descrlbing themselves as the "Offlclal Unicy Team". It is contended that such an application is misleading, in that lc lnvolves clalms of s?onsorshlp which the candldates dld not have, that sponsorship being sponsorship by or on behalf

of the organization itself.

After directions had been glven, and by a later

affidavit flled on 25th September 1985, Hr. Bralley sought to raise a further area of alleged irregularity. This was the

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contenyion that certain persons:

-I "...had access contrary to law to the iesources and

facllit-es of chs Federated Llquor and Allled Industrles

Employees Unlon, (Queensland) Branch, such as Cars,

Office Equlpment, and Phones and by reason thereof the

funds of the said Unlon as well as the utllizaticn of

staff members and candldatss of the Offlcial Unity Tean

who had the opportunity to canvass votes in the course

of their employment andlor thelr duties whereas the u5e

of resources and facillties was denied to CMr.

Brailey3. "

Several subpoenas have been issued out of the Court seeking

documents which, by their descriptions in the subpoenas, would

appear to be relevant to the last mentioned area of

irregularities.

Certaln named parties - Mr. Elton, Mr. Dummett, Mr. Livingstone, Mr. Hardie, and Mr. Hamiltor. - have flled a notlce

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of motion on 7th October 1985, seeklng a number of orders wlth respect to the proceedlnqa. In substance, what is clalmed on behalf of those persons is that the complaints made I n the origlnal appllcation are not complaints of lrregularlties wlthin

the meanlng of that term in S . 4 of the Conclliation	and
Arbitration Act 1904.

The notice of motion also raises the questlon of the valldlty of Part IX of the Conclilatlon and Arbltratlnn Act 1904,

the allegatlan Lielng that that Part purgorts to vest In thls Court jurlsdlctlon which 1s not part of the judicial F O W C ~ of the Commonwealth, nor ir.cidsnta1 or ancillary thereto.

Certain of the questions raised enter upon the field which was the subject of a decision of this Court ln Re Adamson: Application f o r an Inquirv into an Election in Ammalcr-lmalied Metals Foundrv and Snlowrizhts' Union (No. 2 ) (1984) 57 A.L.R. 280. In

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that case, the Court was compelled to l ook at the questlon

whether mlsles.ding conduct in certain respscts night amount to an irregularity for the purposes of Part IX of the Act. In a

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subsequent proceeding in that case, the Court also held that the conduct of an Inquiry into an election unszr Part IX of the Act

4 is an exercise of the judiclal power of the Commonwealth. See P.e Application by Adamson for an Inauir-7 into an Electlon in the Amalqamated Metals Foundry and Shlpwrishts Union (Federal Court of Australia, Gray J., 17th June 1985, unreported). Those two questions have now been taken up In proceedings in t'ne High Court of Australla, In which ludgment has been reserved.

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One additional factor whlch has occurred slnce the flrst of the Adamson decisions, to w h c h I have rsferred, 1 s the decision of thls Court in Re B r a w and Australasian Socletv of Enclneers (South Australlan Sranch) (1985) 60 A.L.R. 136. That case dealt wlth the question of the meanlng of Irregularity, and whether It extended to the givlnr; out of misleadlng electoral propaganda.

It 1 s my view that, havzng regard to the subsequent

decision of the Court in the Braqcr case and to the pending

judyment of the Hlgh court cf Australia :n the Adamson case, “c-ls Court ought zot presextly to proceed with the inqulry so far as it depends upon questions of misleadlng electoral propaganla. In other words, the original complalr.cs of the appllcant in his

application ought to be put over until such time as the Court has the beneflt of the judgment of the High Court in the Adamson case, If that is possible.

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-i Of course, if delay is too great, then the Court can

easily relist this matter for hearing. This case 1s not a case

In which delay appears to cause considerable damage elther to the

organization itself, or its branch, or to any person Involved. The Court has been informed that none of the offices the subject

of the Inquiry is a full-time office. Therefore, no person is

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belng paid a salary to which he or she might not be entitled, or

not being pald a salary to which he or she mlght be entitled, by

reason of any delay. It has not been shown that the organization

or its branch would suffer in Its administration by havlng the

persons who were elected conduct Its business.

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So far as the other area of lrregularity is concerned, it is also my vlew that I should ad;curn the Inquiry wlth respect to that. I reach that conclusion for two reasofis. The flrst 1 s that I am not satisfied that adequate notice 'has been given to those who have made themselves respcndents to the inqulry of the

precise nature of the allegatlons that have been made. TWO

affidavlts were apparently flled in Court last Friday, 11th

October 1985, wich respect to tinose matkers. Having l ooke6 a'. those affidavits, I find that they do somewhat less than is desirable to make plain the pature of the allegations ir.volved. It is only fair thar: those who have to answer those allegatlons should have a proper opportunity to do so.

The other reason 1 s that, if the Court were to embark

upon an inquiry into those allegations, no doubt the subpoenas

with respect to them would be called m lmmedlately. Mr.

Madgwick, who appears for the respondents, has Informed the Court

that the question of ludicial power would then be raised. Even

though that questlon map not be resolved, or be resolved

completely, by the judgment of the High Court in the Adanson

case, it 1 s in my view llkely C O be a questlan which is less

troublesome in the event of an adjournment than is the case at

the present time.

For those reasons, I propose to adjourn this inqulry,

giving liberty to any party to apply on seven days' written

notlce to each other party.

I certlfy that thls and the 4

preceding pages are a true

copy of the Reas0P.s for Judsment

hereln of hls Honour Mr. Justlce