In the matter of an application by Evans, Kenneth Richard for an inquiry into an election in The Hospital Employees Federation of Australia

[1984] FCA 337

Re: IN THE MATTER OF AN APPLICATION BY KENNETH RICHARD EVANS FOR AN INQUIRY
INTO AN ELECTION IN THE HOSPITAL EMPLOYEES FEDERATION OF AUSTRALIA
No. Q 12 of 1984
Industrial law
8 IR 299

COURT

THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY

INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial law - registered organizations - inquiry into election - application for interim orders - prima facie case - balance of convenience.

Conciliation and Arbitration Act 1904 s. 163(1)(c)

Beecham Group Limited v. Bristol Laboratories Pty. Limited (1967) 118 C.L.R. 618

Cook v. Crawford (1979) Industrial Arbitration Service, Current Review 492

Re Evans: Application for an inquiry into an Election in the Amalgamated Metals Foundry and Shipwrights Union

HEARING

BRISBANE

#DATE 21:9:1984

JUDGE1

On 11th July 1984 an officer of the Australian Electoral Comission declared the results of a number of elections in the Hospital Employees Federation of 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 positions of Branch Trustees, eight positions as ordinary members of the Committee of Management, and six positions of Branch Delegates to the National Council.

1. The Industrial Registrar has referred to the Court pursuant to s. 159(4)(a) of the Conciliation and Arbitration Act 1904 an application by Kenneth Richard Evans for an inquiry into each of these elections. Pursuant to s. 163(1)(c) of the Act, 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.

2. The principles laid down by the High Court of Australia in Beecham Group Limited v. Bristol Laboratories Pty. Limited (1967) 118 CLR 618, at pages 622-623, have been applied by the Full Court of this Court to cases involving statutory injunctions; see World Series Cricket Pty. Ltd. v. Parish (1977) 16 ALR 181. The same principles have also been applied to various powers under the Conciliation and Arbitration Act to grant interim orders; see Thompson v. Townsend (1979) 38 FLR 143, Cook v. Crawford (1979) Industrial Arbitration Service, Current Review 492, Mahony v. Petie (1979) 37 FLR 488, and Lancaster and Canny 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.

3. 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 affected the result of any of the elections.

4. The only hard evidence of an irregularity likely to have affected the result is that 26 members did not receive ballot papers, because their addresses were changed in the records of the branch, to show incorrect addresses.

5. The margins by which the successful candidates' votes exceeded the votes of their rivals in the elections are as follows: in the election for Junior Vice-President, the margin is 50; in the election for Branch Secretary, the margin is 38; in the election for Branch Assistant Secretary, the margin is 57. The remaining positions involved the election of more than one candidate. For Branch Trustees, the gap between the lowest winning candidate and the highest unsuccessful candidate was 22. In the case of the members of the Committee of Management, the gap between the lowest successful and the highest 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.

6. 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 for 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. McCarthy or by Mr. Murdoch, who appeared for a number of successful candidates, to distinguish between the various candidates in those elections.

7. 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 consider 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.

8. Rule 16(b) of 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.

9. Only two of the offices the subject of the elections are full-time positions, they being the Branch Secretary and the 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 is worth noting that neither of these persons will lose his job or his income if the rules are allowed to operate according to their terms. In addition, 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 position. The elections for those particular positions, Branch Secretary and Branch Assistant Secretary, which have been held this year, constitute the only expression of the will of the members as to who should hold the respective offices.

10. There is no evidence that any inconvenience 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 undesirable that one side in a contest such as this should have exclusive control of the assets and the records of the branch pending the inquiry, and indeed perhaps pending the conduct of any possible new ballot that might result.

11. 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 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 hearing.

12. I therefore dismiss the application for interim orders.