In the matter of an application by Fahey, F.J. for an inquiry into an election in the Electrical Trades Union of Australia South Australia Branch

[1988] FCA 78

Re: IN THE MATTER of an application by FRANK JOHN FAHEY for an inquiry into an
election in the ELECTRICAL TRADES UNION OF AUSTRALIA
SOUTH AUSTRALIAN BRANCH
(R No. 304 of 1987)
And: IN THE MATTER of a reference of such application by the Industrial
Registrar to the Federal Court of Australia
No. SA 4 of 1987
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial Law - registered organization - inquiry into election - whether delegate to ALP Convention is an office "in a branch of the organization" - whether inquiry must continue where court not "satisfied that there is reasonable ground for the application"

Conciliation and Arbitration Act 1904 ss. 159(1) & 159(4)(b)

HEARING

MELBOURNE

#DATE 18:2:1988

Solicitors for Applicant: Johnston, Withers, McCusker & Co.

Counsel for Applicant: Mr. P. McCusker

Solicitors for Respondent: Olssons

Counsel for Respondent: Mr. Milazzo

Solicitor for Returning Officer: Australian Government Solicitor

Counsel for Returning Officer: Ms. H. Baldwin

JUDGE1

The application for an inquiry was referred to the court by the Industrial Registrar under Part IX of the Conciliation and Arbitration Act 1904 (the Act). It relates to an election in the South Australian branch of the Electrical Trades Union of Australia (the Union); that election was completed on 30 September 1987, as appears from the application.

1. The court was told at an earlier stage that Mr. McCusker, on behalf of the union, wished to submit that there were no reasonable grounds for the application and accordingly that the court should not proceed with the inquiry (see s. 159(4)(b)). The matter was listed for mention last Monday, 15 February, 1988. On that occasion Mr. McCusker outlined in some detail to the court the submission that he would be making in support of his application that the inquiry should not continue; he cited some authorities upon which he would be relying.

2. In addition, the court drew the applicant's attention to certain difficulties which appeared to face him and referring to authorities dealing with the meaning of the words "an office in a branch of" an organization; they appeared to be relevant to the question whether those words were apt to include the positions of delegates to the ALP Convention, and delegates to the ALP Central Council. Mr. McCusker also informed the court from the bar table last Monday that there were no branch rules registered under the Federal Act. The absence of such rules appeared on the face of it to add to the difficulties of the applicant in respect of the question whether a delegate to the ALP Convention and to the Central Council could be said to be holding an "office" in the branch, or an office in the Union.

3. After some discussion as to the date of hearing, today was fixed for the hearing of Mr. McCusker's submission under s. 159(4)(b) that the inquiry should not proceed. The applicant has had an opportunity to consider his position in the meantime, today the court has been told that, having had the benefit of legal advice, he does not wish to proceed with the application for an inquiry.

4. After examining carefully the documents filed by the applicant, and considering the matter in the light of the authorities cited, as well as those relating to the question whether each of the delegates in question holds an "office", I have come to the conclusion that, in the words of s. 159(4)(b) of the Act, "the court is not required to proceed with the inquiry" because I am not "satisfied that there is reasonable ground for the application". In so deciding I have not formed any concluded view on the other matters raised, because I have not had the benefit of full argument on them.

5. My construction of s. 159(4)(b) is perhaps a little different from that which appeared to be taken by Gray J. in the passage read to me this morning by Mr. McCusker from the judgment in Evans; Re Hospital Employees Federation of Australia (unreported - delivered 19 March 1985). In my opinion if the court is not "satisfied that there is reasonable ground for the application", then it is not required by law to proceed with the inquiry; cp. dictum by Gray J. (p 3) that "The court can only avoid the conduct of an inquiry if it is satisfied that no reasonable ground exists". In my opinion the court does not have to be positively satisfied that no ground exists. The section provides that, unless the court is satisfied that there is reasonable ground for the application, then it is not required by the Act to proceed with the inquiry; it would, of course, be open to the court to proceed with the inquiry if it considered it proper to do so. Having regard to the statements made on behalf of the parties represented at the inquiry, including counsel for the returning officer, I am satisfied that the proper course is to accede to Mr. McCusker's submissions, and to terminate the inquiry. Accordingly, the only formal order of the court will be that the inquiry is terminated.