In the Matter of an Application by Evans, Kenneth Richard for an Inquiry into an Election In the Hospital Employees Federation of Australia

[1985] FCA 130

Industrial law - reglstered organlzatlon - inqulry lnro eiection

- whether reasonable grounds for continuance of i n q u l r y .

BRISBANE.

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positive orders were made, placing those who were successful h

the elections into office, pending the outcome of the inquiry.

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As originally f-rarned, - - the application involved

allegations that some members entitled to vote did not receive

ballot papers, that resources and funds of the branch were

improperly used to support a candidate or group of candidates,

that false statements were made about a group of candidates, that

a candidate was threatened, and that the processing of membership

applications was delayed until after the elections.

The hearing of the inquiry began on 8th October 1984.

Mr. McCarLhy d counsel, who then appeared for the Applicant and

a number of other candidates, stated that he intended to widen

the scope of the inquiry by contending that most of those to whom

ballot papers had been forwarded in the elections were not

validly admitted to membership of the Hospital Employees

Federation of Australia ( "the organization"). This new issue

required that the organization itself be given an opportunity to

be heard, and steps were taken to notify it.

The hearing of the inquiry proceeded over three and a

half days, during which the Court received a number of affldavits

and oral evidence from the Applicant and other witnesses. It was

then adjourned to give the organization a chance to consider its

position, and to take steps to validate its membership if this

was necessary. It was necessary for the Court to give directions

on subsequent occasions as to the conduct of the affairs of the

branch, in furtherance of the interim orders given on 11th

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October 1984.

The hearing resumed today. On its resumption, Mr. Ha11

of counsel, who now appears for the Applicant and the --other

Candidates for whom Mr. McCarthy appeared, indicated the desire

of the Applicant to discontinue the inquiry. Mr. Marshal1 o f

counsel, appearing for the organization, applied for the termination of the inquiry pursuant to S. 159(4)(b) of the Act,

on the basis that no reasonable ground exists for the

application. Not surprisingly, Mr. Tutt, the solicitor for a

number of successful candidates, and Mr. Swan, the solicitor

appearing for the Australian Electoral Commission, did not oppose

the application. All parties, it appears, are content to accept

the results of the elections.

The question now arises what course should the Court

take? An inquiry under Part IX of the Act is an unusual

proceeding. Once an application has been referred to the Court

under S. 159(4)(a), an inquiry is deemed to have been instituted.

Section 165(1) then imposes on the Court a positive duty to

inquire into and determine the question whether any irregularity

has occurred in or in connection with the subject election. It

seems that such inquiry and determination must be carried to its

conclusion, even if it becomes obvious that, at the end, no

orders will result because none of the alleged irregularities

would be likely to have affected the result of the election (see

S. 165(4)). The Court can only avoid the conduct of an inquiry

by terminating the inquiry under S . 159(4)(b), if it is satisfied

that no reasonable ground exists for the application.

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In the conduct of an inquiry, the Court is empowered to

direct the issue of subpoenas for the production of documents and

the attendance of witnesses; service of such subpoenas, and the

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expenses of them; are arranged by the Registrar of the Court;

see Order 48 Rule 4A of the Federal Court Rules. Section 164(4)

of the Act gives the Court a discretion as to procedure, and

dispenses with. the rules of evidence, allowing the Court to

inform itself "in such manner as it thinks just".

It is plain from the legislation that the Court

conducting an inquiry is expected to adopt some role other than

its normal one of passive listener to the vidence and

submissions of the parties, and decider of the issues presented

to it. Part IX of the Act gives an inquisitorial function to the

Court: no doubt the reason for this is that the public has an

interest in thP prnper conduct of elections within organizations

registered under the Act. Organizations perform a function which

is central to the operation of the system of conciliation and

arbitration	and	should	be	properly	representative	of	their
members.

All this having been said, however, it is plain that the

Court is not intended to conduct an inquiry in a room with stars

painted on the ceiling, by summoning all persons who may be

likely to throw light on issues formulated by the Court, and

putting them on oath. Such a procedure would be so foreign to

the traditions of the common law that the Parliament cannot be

presumed to have intended it. The Court is not afforded the

assistance of counsel to conduct the inquiry on its behalf, in

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the manner in which counsel assists a royal commission. Save for

such assistance as the Industrial Registrar may give, if

authorised under S. 162A of the Act, the Court is not provided

with its own investigative staff to procure the evidence which .-

may be necessary for the Court to perform an inquisition.

Provision is made in S. 164 for parties. In the normal courser

issues are raised, and evidence is brought forward by the

parties. Subject to the receipt of some evidence not normal.lg

admissible, an inquiry is in practice conducted in much the same

way as any other Court proceeding, the Court hearing what the

parties put forward and deciding the issues raised.

It seems to me, therefore, proper that I should h a w

regard to the wishes of the parties in deciding whether to

terminate the inquiry under S . 159(4)(b). Each of the parties

has the benefit of competent legal advice. The interests of the

parties are divergent, so that I can be satisifed that a

decision by each party not to press for the continuance of the

inquiry is the result of mature consideration of the position.

The parties include the organization itself, which is capable of

speaking for the interests of its members. Any public interest

which may remain in the continuance by the Court of an

investigation of the conduct of the elections is outweighed by

the undesirability of the Court imposing its processes on the

affairs of the organization when its intervention is not desired

by anyone, and by the avoidance of the enormous costs to the

parties and to the public of a continued hearing. If the inquiry

is terminated, the position will be the same as if it had never

been instituted; the results of the elections will endure in the

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absence of complaint by anyone about them.

It is proper that I should address myself to the issues

raised in the inquiry. The organization has addressed itself to

remedying the possibility that those who were thought to be its

members in Queensland may not be validly so. It has put in train

measures relying on S . 171E of the Act to validate the membership

of persons previously treated as members. To the extent that

these measures succeed, the membership of those persons will be

validated retrospectively. To the extend that they do not

succeed, application can always be made to validate the admission

of members under S . 171C of the Act; see Troia v. Australasian

Meat Industrv Employees Union (1978) 46 F.L.R. 340. Adjournment

of the inquiry to enable such validation would be an appropriate

step, in the circumstances of this inquiry.

As to the remaining issues, I do not propose to canvass

the evidence in detail. It is sufficient to say that some were

not pursued and the evidence relating to others presented a

different case from that set out in the application. On the

evidence which I have heard, I consider it unlikely that the

results of the elections would have been affected by any

irregularity alleged. In the liqht of the attitudes of the

parties, the likelihood of further evidence emerging to change

that conclusion is small.

I therefore find that I am not satisfied that there is

reasonable ground for the application. The Court will order that

the inquiry be terminated.

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Mr. Tutt did ask that I make a findtng that it is riot

just that his clients should be required to bear the costs

incurred by them in connection with the inquiry, for the purpose

of facilitating an application to the Attorney-General pursuant

to S. 168(3) of the Act. I decline to make a finding in those

terms; the question whether it is not just that a person bear

costs in connection with an inquiry is committed by the Act to

the Attorney-General; it would be wrong €or the Court to attempt

to pre-empt that decision. It is plain that the position of Mr.

Tutt's clients, that the results of the election should not be

overturned, has been vindicated by the Applicant's decision not

to press the inquiry.

The Court orders that:

1. Each of the interim orders made on 11th October 1984, 011-1

November 1984 and 28th November 1984 is discharged;

2. The inquiry is terminated.