In the Matter of an Application by John Ryan Thomas for an inquiry into an Election in the South Australia Branch of the Australian Workers Union

[1992] FCA 516

RE: AN APPLICATION BY JOHN RAJAN THOMAS FOR AN INQUIRY INTO AN ELECTION IN THE
SOUTH AUSTRALIAN BRANCH OF THE AUSTRALIAN WORKERS' UNION
No. S I4 of 1991
FED No. 516
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

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

CATCHWORDS

Industrial Law - election inquiry - irregularities - whether a nomination lodged in contravention of the rules is void or is a "defect" capable of being "corrected" - whether duty on returning officer to notify immediately a candidate whose nomination is void - whether returning officer has power under s. 215(1)(b)(i) to fix a period after which nominations cannot be withdrawn - principles re court's discretion as to orders - whether "cogent reasons" must be shown - relevance of interests of "some" members - relevance of acquiescence by members in practice contrary to rules - relevance of returning officer permitting that practice in previous elections - whether candidates misled by practice - whether returning officer has power to delete from printed ballot papers the name of a candidate who has withdrawn his nomination - whether persons elected should commence to hold office forthwith upon declaration of result.

Industrial Relations Act 1988 (Cth) - s. 215(1)(b)(i) and s. 223(3)

Re Vehicle Builders' Employees Federation (SA Branch) 1987) 13 FCR 350

Kelly v Amalgamated Metal Workers' and Shipwrights Union (1981) 56 FLR 124

Demas v Pearson (1951) 73 CAR 3

Re Australian Journalists Association; Ex parte Nicholson (1990) 34 IR 436

HEARING

MELBOURNE

#DATE 21:7:1992

Solicitors for applicant: Stratford and Co.

Appearing for applicant: Mr T. Stanley

Solicitors for Messrs
Reynolds and Maczkowiack: Lempriere, Abbott and McLeod

Appearing for Messrs
Reynolds and Maczkowiack: Mr F. Di Fazio

Solicitors for Messrs Birch
Baker, Elsley, Miller and
Connolly: Moloney and Partners

Appearing for Messrs Birch
Baker, Elsley, Miller and
Connolly: Mr P. Moloney

Solicitor for the returning officer: Australian Government Solicitor

Appearing for the returning officer: Mr D. Staindl

Solicitors for the AWU State
registered Union: Johnston Withers

Appearing for the AWU State
registered Union: Mr J. Rau

Solicitors for the AWU
Federal Union: Turner Freeman

Appearing for the AWU
Federal Union: Mr R. B. McClelland

ORDER

THE COURT ORDERS THAT:

1. The nominations of the following named persons for the offices

specified be declared void:

Peter Craig Reynolds Branch President Leslie Ronald Birch Branch Secretary Stephen Elsley Branch Organiser Robert Maczkowiack Branch Organiser Tony Baker Branch President

2. The Industrial Registrar make arrangements for the returning

officer to proceed as soon as practicable with the printing of ballot papers and the holding of the ballot in respect of the remaining valid nominations, using the 1990/1991 roll of members.

3. Each person elected to office in the election shall commence

holding such office forthwith upon the declaration by the returning officer of the result of the ballot.

4. The inquiry be terminated.

5. Liberty to apply be reserved to all parties provided that any such

application shall state specifically each order or direction sought, and shall be supported by an affidavit which shall set out the reasons to be advanced in support of the application, together with references to all relevant transcript pages and other documents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

These reasons should be read in conjunction with the written reasons ("the earlier reasons"), delivered in Adelaide on 11 June 1992, for the court's findings in the above inquiry that certain irregularities had happened in relation to an election in the South Australian Branch ("the Branch") of the Australian Workers' Union ("the Union"), an organisation registered under the Industrial Relations Act 1988 ("the Act").

1. After the earlier reasons were given the court adjourned the matter for some hours to permit the consideration of those reasons by counsel appearing for the following parties (1) Mr J. R. Thomas ("the applicant"), (2) the returning officer, (3) the Union, (4) the South Australian State registered Union, and (5) seven candidates ("the respondents"). Later on that day oral submissions as to what orders should be made were heard at some length. The hearing was then adjourned to Friday, 19 June 1992, in Melbourne, and, in an endeavour to expedite the conclusion of the inquiry, directions were given for the parties' solicitors to lodge and serve on all other parties written outlines of the submissions that would be advanced at the resumption of the hearing.

2. The court's attempt to expedite the inquiry did not succeed; on the resumed hearing on 19 June further very lengthy oral submissions were heard. As the submissions were still unfinished, it was then directed that all remaining submissions be put in writing expeditiously. Those written submissions were received from the applicant on 24 June, the returning officer on 25 June, the State registered Union on 25 June, the Union on 26 June, the respondents on 29 June and the applicant (by leave) on 3 July 1992.

3. The reasons which follow deal with the submissions, both oral and written, that have been received from the parties since the delivery of the earlier reasons. In reaching the conclusions expressed in those reasons, the court accepted the applicant's argument that certain multiple nominations were lodged in breach of sub-rule 74(g); they were not merely "defective" nominations within the meaning of rule 76(c) capable of being "corrected" under that sub-rule (see paragraph 13.1 of the applicant's written outline of submissions, dated 17 June 1992, and paragraph 2 of the respondents' written outline of submissions, dated 15 June 1992).

4. On 11 June 1992 the court found that alleged irregularities numbered 2 and 2A had "happened in relation to the election ... namely the lodging of multiple nominations by Messrs. Birch, Baker, Elsley, Miller, Reynolds and Maczkowiack and the returning officer's acceptance of those nominations".

5. I have formed the opinion that, having regard to the two irregularities found, the result of the election may be affected by irregularities (s. 223(4)).

6. The applicant's written outline of submissions, lodged on 17 June 1992 (as amended orally on 19 June 1992 - transcript p 1213), included the following:-
   

"3. It is submitted that the nominations of the following named persons for the offices specified, accepted by the Returning Officer, should be declared void having regard to the reasons and finding of the court; Peter Craig Reynolds - Branch President Leslie Ronald Birch - Branch Secretary Stephen Elsley - Branch President Stephen Elsley - Branch Organiser Robert Maczkowiack - Branch Organiser Tony Baker - Branch President"

Having considered the matter since the oral submissions on 19 June 1992, I accept the respondents' submission, which was supported by the Union, that Mr Elsley's nomination for the office of President was valid.

1. Rule 74 of the Union's rules included the following provisions:-
   

"74 - Branch Nominations

....

(g) No member shall be eligible to nominate for or hold at any one time:

(i) more than one salaried office;

(ii) more than one office on a Branch Executive;

(iii) the office of Organiser and any office on a Branch Executive except:

(A) Branch President; or

(B) Branch Vice-President; or

(C) President of the Mining Division of the West Australian Branch; ....

(l) Candidates, with the consent of their nominators, may withdraw their nomination for any position."

Principles as to the Court's discretion

1. Referring to the discretion which the court has as to what orders, if any, should be made under s. 223(3) of the Act the applicant submitted that that discretion:
   

"should only be exercised where cogent reasons favouring that course exist, having regard to the public interest or the interests of all of the members of the Union Re Vehicle Builders Employees Federation (SA Branch) (1987) 13 FCR 350 at 355".

1. I accept that submission (see Re Brophy and Federated Clerks' Union of Australia (1987) 78 ALR 561 at 565-566) but do so on the basis that in the Vehicle Builders Employees Federation case the words "the interests of all of the members" (at 355) referred to the interests of the members as a whole and were not intended to convey that the course proposed must be demonstrated to be in the interests of each and every member.

2. The respondents submitted "that the discretion should be exercised having regard to the public interest, and the interest of all or some of the members of the organisation", citing the following passage from the decision of Sheppard J. in Kelly v Amalgamated Metal Workers' and Shipwrights' Union (1981) 56 FLR 124 at 149-150:-
   

"However, the present section confers jurisdiction on a court in proceedings which are of an inquisitorial rather than adversarial nature in a setting where the public interest is very much involved. There may be cases in which, notwithstanding a positive finding pursuant to s. 165(4), it would be in the public interest or in the interests of some or all of the members of a union not to act. For that reason I have reached the conclusion that there is a residual discretion vested in the court to refuse to act if in all the circumstances that is what the public interest or the interest of members or particular groups of members requires." (emphasis added)

It should be noted, however, that his Honour rejected the submissions put on behalf of Mr Kelly that he should refrain from making the orders sought. His Honour said:-

"The matters put to me were related in the main to the personal position of Mr Kelly and the question of whether he was really prejudiced by what had happened. Whilst those matters are relevant, they are, for reasons earlier given, by no means determinative of what I should do. The respondents' submissions based on discretion are, accordingly, rejected."

I am unable to uphold the respondents' submission as to the principles relating to the court's discretionary power. In my opinion it would not be proper for the court to exercise its discretion merely because the making of orders would be in the interests of some of the members or of a particular group of members. I do not understand Sheppard J. to have expressed such an opinion in the above passage, which must be read in its context and in the light of the facts in that case.

1. In the earlier reasons the court said:
   

"The affidavit of Mr Maczkowiack, sworn 7 February 1992, contained the following passage, which was not challenged at the hearing:

"I am aware, as a result of my involvement in the affairs of the Union, that it has been the practice, for many years, for candidates to nominate for more than one office and then to withdraw all but one nomination prior to the closing date for nominations. I am also aware that for many years the Returning Officer has permitted candidates to nominate for more than one salaried position and for more than one position on the Branch Executive of the South Australian Branch and also has permitted candidates to withdraw all but one such nominations."

The rule in its present form does not permit such a practice and in my view the existence of such a practice can not be used in considering the true construction of the rules. In my opinion the provision, appearing in r.74(l) and in r.77 paragraph 4, "that candidates with the consent of their nominators, may withdraw their nomination for any position" is not intended to give to a candidate, who has lodged multiple nominations in breach of r.74(g), an opportunity to overcome the effect of the breach i.e. by withdrawing 'one of them so as to leave the other in accordance with Rule 74(g)' - as submitted by the respondents ...".

(It should be pointed out that Mr Maczkowiack, in an affidavit sworn 16 June 1992 (i.e. after the delivery of the earlier reasons), stated that in paragraph 10 of his affidavit sworn 7 February 1992 in using the words "prior to the closing date for nominations" he "meant to refer to the expiry of the period allowed by the Returning Officer for the withdrawal of nominations after the closing date for the lodgment of nominations".)

1. In Demas v Pearson (1951) 73 CAR 3 Kelly C.J., with whose reasons for judgment Foster and Wright JJ. concurred, said (at 5):
   

"By virtue of section 79, sub-section(1) of the Act, 'no alteration of a rule of an organization shall be valid until registered.' It appears that certain alterations to the rules have not been registered, although in practice they have been followed and applied by the members and committees of the organization. It has been claimed on behalf of the respondents that the claimants have until now been prepared to abide by this arrangement and that they should not now be heard to require the performance and observance of the registered rules when hitherto they have not protested against governance of the organization in accordance with the rules, as altered from time to time, though some of the alterations have not been registered.

I have given consideration to the submissions of the respondents in this respect; but, in my opinion, the principle of acquiescence, relied on by them, cannot be allowed by the Court to set aside the specific provision of section 79, sub-section (1) to the effect that it is only the registered alterations of rules which can be considered valid ... In my opinion the discretion ... should not be exercised against the claimants on the ground of some supposed rule of acquiescence in past practice." (emphasis added)

1. It having been established in the present inquiry that "it has been the practice, for many years, for candidates to nominate for more than one office ..." and that the rules did not permit such a practice, the respondents' counsel (transcript p 1238) did not argue that that practice could prevail over the rules. However, they submitted that "the existence of this practice is central to the question of the exercise of the court's discretion". In my opinion the above statement in Demas v Pearson, although made in a proceeding under s. 81 of the then Act (see now s. 209 of the Act), is very relevant to whether the court should uphold the respondents' submission that, in the exercise of its discretion, "the Court should make orders which will have the effect of enabling the respondents to participate in the ballot".

2. I agree with the statement in Demas v Pearson that "the principle of acquiescence ... cannot be allowed by the Court to set aside the specific provision of (the Act) ... the discretion (under s.209 of the Act) should not be exercised ... on the ground of some supposed rule of acquiescence in past practice". In my opinion the matters relied upon by the respondents, including the fact that the returning officer has in past elections permitted the withdrawal of multiple nominations, do not constitute sufficient reason for acceding to the respondents' submission.

3. I reject the respondents' submission that rule 76 required "the Returning Officer to immediately reject nominations which are contrary to Rule 74(g) or, in the alternative, very shortly after their receipt ...". In my opinion a failure to do so is not a breach of rule 76 nor is it an "irregularity" within the meaning of the Act.

4. I accept the written submissions of the returning officer that rule 76(c) "provides for the returning officer to notify a person of defects which can be corrected: it does not require the returning officer to notify a person of the rejection of his/her nomination" i.e. "if a nomination cannot be corrected ... as the nomination is fundamentally flawed".

5. However, I do not accept the returning officer's submission that he "has power to provide for a 'cut-off' for the withdrawal of nominations pursuant to S.215(1)(b) of the Industrial Relations Act". I have considered the observations of Wilcox J. in Re Australian Journalists Association; Ex parte Nicholson (1990) 34 IR 436 at 438 and 441. In my opinion there is no "omission" from rule 76(c). It permits candidates to withdraw their nominations. Provided that such withdrawal is in accordance with the rule it is a valid withdrawal even if it occurs after the printing of the ballot papers. On that question I accept the written further submissions of the Union that the returning officer "has no power to fix a date for withdrawal of nominations". The respondents had already put that submission (transcript p 1281).

6. I accept "that the giving of a direction by the Returning Officer for a date for the withdrawal of nominations" would not fall within s. 215(1)(b)(i) of the Act. I also accept the Union's submission that the returning officer could "give a direction to delete the name of a withdrawn candidate from the ballot paper". I express no opinion as to a withdrawal after the posting of ballot papers to members.

7. I reject the respondents' submission that "the Returning Officer over many years has adopted a practice which ... necessarily involves the happening of an irregularity in the lodging of nominations ..."; the practice did not "necessarily involve the happening of an irregularity in the lodging of nominations". I also reject their submission that the "practice ... has had the effect of depriving the respondents of the opportunity of lodging valid nominations". The existence of the practice plainly did not take away from the respondents the opportunity to lodge valid nominations; they could have done so by complying with the rules and in particular by acting in accordance with rule 74(g), which clearly prohibited the lodging of the "multiple nominations" which the respondents lodged.

8. The respondents submitted that the "action of the Returning Officer in permitting the practice in elections in the AWU (of lodging multiple nominations and being permitted to withdraw some) had the effect of misleading candidates into lodging multiple nominations" or misleading them into concluding "that the practice is regular and in accordance with the Rules". I am quite unable to uphold those submissions. There is no evidence of any candidate being misled "into lodging multiple nominations" or into reaching that conclusion. Mr Birch, one of the respondents, in paragraph 6 of his affidavit, sworn 10 January 1992, said:
   

"It has at least since (1975) often been the practice for many candidates to nominate for a number of positions and to then withdraw some or all of those nominations prior to the closing date for nominations. This practice has primarily been undertaken as a tactic between teams of candidates or individuals in order to cast doubt upon the precise make-up of a team or an individuals (sic) position prior to the closing of nominations."

(It should be pointed out that Mr Birch, in an affidavit sworn 15 June 1992 (i.e. after the delivery of the earlier reasons), stated that, in paragraph 6 of his affidavit sworn 10 January 1992, in using the words "prior to the closing date for nominations", he "meant to refer to the expiry of the period allowed by the Returning Officer for the withdrawal of nominations after the closing date for the lodgment of nominations".)

1. There is no evidence that any of the respondents were misled as to the correct interpretation of rule 74(g). From Mr Birch's evidence it is inferred that the lodging of multiple nominations, which was in contravention of rule 74(g), was "undertaken as a tactic ... in order to cast doubt upon the precise make-up of a team ... prior to the closing of nominations". I am not prepared to draw the inference, advanced by the respondents as being "irresistible", that "they did not have any notion that the lodging of multiple nominations was contrary to Rule 74(g), provided that they withdrew such of their nominations ...". I reject the respondents' submissions "that it would be unfair not to allow the impugned candidates to participate in the ballot" and that the court should make orders permitting "the multiple nominees ... to lodge fresh and valid nominations ...".

1. I uphold each of the following submissions advanced by the applicant's counsel:
   

"6. ... cogent reasons do not exist to refrain from making the orders sought by the applicant ... On the contrary, there are cogent reasons for making the orders sought by the applicant.

....

10. ... A member of an organisation must decide for himself or herself whether to nominate for an office or not. Equally, the member must decide how to nominate having regard to the Rules of the organisation. The member must look to the Rules of the organisation. If the member considers he or she is eligible to nominate, and desires to nominate, the member should nominate irrespective of any expressions of opinion of a Returning Officer or any other person. The Returning Officer thereafter is under a duty to accept or reject the nomination in accordance with the Rules of the organisation ...

11. An election within an organisation must be conducted in accordance with the rules of the organisation Huxtable page 120.9. ... the Court's orders should interfere as little as possible with the operation of the Rules themselves. Having found that an irregularity happened the appropriate order is that the relevant nominations be declared void and that the election continue pursuant to the rules."

1. It may be added that the respondents agreed with the following submissions by the applicant:
   

"7. ... The members of the branch of the organisation are entitled, as a matter both of law and justice, to assume that the elections of office holders will be conducted in accordance with the rules prescribing the manner in which such representatives are to be elected. Those standing for office in the Branch are, as a matter of law and justice, entitled to have the success or failure of their candidature determined in accordance with the rules. Maxwell v Gall (1978) AILR 303 at 304; Re FLAIEU; ex parte Huxtable and Ors. (1979) 30 ALR 115 at 120.9.

8. The candidates who have nominated in accordance with the Rules have become entitled to the conduct of a ballot as between themselves and the other candidates who have nominated in accordance with the Rules Maxwell v Gall supra Re Mellor; Re FLAIEU (1986) 17 IR 402 at 404."

1. The respondents submitted, in the alternative, that "all nominations for each of the offices in which multiple nominees were candidates should be re-opened" (par 10). In my opinion no ground has been advanced in support of that alternative submission and it is rejected. I accept the submissions of the applicant's counsel that the respondents' submissions are not supported by the reasons for judgment of Gray J. in Re Carter; Re FC.U. (Victorian Branch) (No. 2) (1989) 32 IR 30 or by the authorities there cited.

2. It may be added that in the same outline of submissions (par 9) the respondents listed the following matters as factors against the re-opening of "all nominations for ... the offices in which multiple nominees were candidates ...":
   

"(a) all members who desire to nominate have already had the opportunity so to do and accordingly no member will be deprived of the right to nominate.

(b) to re-open nominations would delay the election by a month to six weeks. (See Rules 74(a) and 76(c)). It is in the interests of the membership that the election be held as soon as possible.

(c) to re-open nomination provides a further opportunity for any member to further delay the holding of the ballot in the event that a member's nomination is allegedly wrongly accepted or rejected by the Returning Officer.

(d) the interests of the membership in having a final result must, having regard to the delays which have occurred, outweigh the desire of any member who previously chose not to exercise his right to nominate, to now nominate."

The submissions of the respondents in paragraphs 9(a), (b) and (d) above were adopted by the applicant. There is much force in them; however, it is unnecessary to consider those matters further because, as stated above in rejecting the respondents' alternative submission, no ground has been advanced in support of it.

1. Having rejected the respondents' submissions as to fresh nominations, the election should now proceed as expeditiously as possible, using the 1990/1991 roll of members.

2. The applicant has submitted that the court's order should provide that the persons holding office immediately before the returning officer's declaration of the result of the ballot, which will follow the conduct of the ballot, "should continue to occupy such offices for a period of 28 days after the declaration of the result of the election". I have considered the submissions on this matter, including those made orally on 19 June 1992. The applicant's submissions have much force - in particular the emphasis placed upon the terms of rule 74. However, I do not accept the suggestion in the applicant's submission that an order for the holding of office forthwith would "depose the existing officers"; nor the suggestion that they would be "punished or penalised" by such an order. In all the circumstances, including the delay that has already occurred in the completion of the election, in my opinion the persons elected in the new election should commence to hold those offices forthwith upon the returning officer declaring the results.