In the matter of an Application by Smith, F.A. The Operative Painters & Decorators Union of Australia, West Australian Branch

No judgment structure available for this case.

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JUDGMENT No. ........ ,........ . ., ........ ..

IN THE FEDERALs COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA 1
DISTRICT REGISTRY 1
INDUSTRIAL DIVISION

1 NO. WA I 6 OF 1992

IN THE MATTER of an Application
by Frederick Albert Smith
AND
IN THE MATTER OF an Inquiry into alleged irregularities in relation to an election for the office of Branch Secretary of The Operative Painters & Decorators Union of Australia, West Australian Branch

23 MARCH 1993 KEELY J .

MINUTE OF ORDERS

1. The court finds that irregularities happened in relation to the election of Branch Secretary ("the election") of the Operative Painters & Decorators Union of Australia West Australian Branch ("the Branch") in that the Returning Officer, in breach of rule 21 of the rules of the Branch ("the rules"):

been affected by irregularities, the court makes Orders:

(a) declaring all steps taken in the election subsequent

(a) permitted at least 60 members who were not fully financial as at 4 June 1992 to vote; and
(b) did not forward ballot papers to at least 24 members who were eligible to vote.
2. Being of the opinion that, having regard to the irregularities found, the result of the election may have

to the closing of nominations to be void; l

(b)

declaring David Hassan, the person purporting to have been elected, not to have been elected to the position of Branch Secretary;

l

(c)

directing the Industrial Registrar to make arrangements for all steps in relation to the election subsequent to the closing of nominations to be taken again upon the basis that the members

who were fully financial as at 4 June 1992; entitled to vote in the election are those mehers ]

(d) that the operation of rule 21.12(a) of the rules be
modified so that ballot papers shall be forwarded to .
all financial members of the Branch by the Returning

Officer at a date to be fixed by him; i

6

(e)

that the operation of rule 21.14 of the rules of the Branch be modified so that the Returning Officer shall declare the result of the ballot at the office of the Branch at a date and time to be fixed by him;

(f)

that the operation of rule 21.2 of the rules be modified so that the person elected as Branch

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Secretary s h a l l take o f f i c e immediately upon being 1

declared elected; t

t I

(g) t h a t the operation of r u l e 21.2 of the r u l e s be

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modified so t h a t t h e person e lected as Branch , I.
,

Secretary s h a l l hold off i c e u n t i l t h e conclusion of

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t h e Annual Meeting of t h e Branch i n 1996; l
I
i i
i

(h ) t h a t the applicant, Frederick Albert Smith, continue , 1 :

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t o act i n t h e o f f i c e of Branch Secretary of t h e

the I i

Branch u n t i l t h e declara t ion of t h e result: of

1.

elect ion;

(i) t h a t t h e inquiry be terminated.

NOTE : Settlement and en t ry of orders is dea l t with i n

Order 36 of t h e Federal C o u r t R u l e s .

IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY 1
INDUSTRIAL DIVISION

1 NO. WA I 6 OF 1992

IN THE MATTER of an Application
by Frederick Albert Smith
AND
IN THE MATTER OF an Inquiry into alleged irregularities in relation to an election for the office of Branch Secretary of The Operative Painters & Decorators Union of Australia, West Australian Branch

23 MARCH 1993 KEELY J.

REASONS FOR JUDGMENT

In this inquiry under s.223 of the Industrial relations Act 1988 ("the Act") the applicant, the returning officer, the organisation and Mr Hassan, the successful candidate, were represented by counsel. The applicant's counsel informed the Court that, subject to certain corrections, he agreed with the

by the organisation. As no party disputed the contents of the first 10 paragraphs of the contentions of fact and law filed
10 paragraphs, as corrected, it is convenient to quote them.
After incorporating the corrections, they read as follows:

"1. The Operative Painters' and Decorators' Union of Australia is an organisation of employees ("the organisation") registered under the Industrial Relations Act 1988 ("the Act").

2.

(a)

Pursuant to the Rules of the organisation and, in particular, the Rules of the Western Australian Branch thereof ( "the Branch"), an election is required to be conducted quadrennially in respect of, amongst other officers, the office of Branch Secretary: Branch Rule 21.2.

(b)

Such a quadrennial election was, under the Rules, to take place in 1992.
3.   The quadrennial election for the office of Branch Secretary is required under the Branch Rule 21.5 to commence with the opening dates for lodging nominations being the day of the quarterly meeting held prior to the annual meeting, and the closing date for lodging nominations being three weeks thereafter. Any ballot required to be conducted is under Branch Rule 21.12(a) to open one month before the annual meeting and to close

three weeks after the opening date of the ballot.
4 .    Under Branch Sub-Rule 32.2 the annual meeting is to be held in September each year and under Branch Sub-Rule 32.1 general meetings of the Branch are to be held quarterly at such time and place as may be determined by the annual meeting.
5 .    In 1992 the quarterly meeting of the Branch held last before the September annual meeting took place on 4 June.

6.

(a)

Pursuant to Section 210 of the Act, the Australian Electoral Commission was responsible for the conduct of the election referred to in paragraph 2 thereof.

(b)

Mr. A S. McDonald and later Mr E. M. Panegyres was appointed the Returning Officer for the conduct of the election.

(c)

On or before 21 May 1992 Mr A S McDonald set the following dates and times to the various steps in the conduct of the election:-

Nominations open Thursday 4 June 1992

Nominations closed 5.00 p.m. Thursday 25 June 1992

Ballots open Thursday 6 August 1992

Ballot closes 10.00 a.m. Thursday 27 August 1992

(d) when the Returning Officer advised the Branch Secretary, the Applicant herein, on or about 21 May

hereof, he also directed the Branch Secretary that, 1992 of the dates referred to in paragraph (c)
in the event that the election should go to ballot, the Branch Secretary should supply to him membership lists and certificates within the times specified as follows :

"Listinqs Date Svecified

(a) Name and postal address Friday 10

(including post code) of July 1992
every member who was
financial as at Thursday
(sic) 23 June 1992 in
accordance with the Rules
of the organisation.

(b) Name and postal address Monday 3

(including post code )of: August 1992
* every member who became
financial,

* every person previously
listed who ceased to be
a member, and

* every member whose postal
address has changed from
that previously advised
after Friday 10 July 1992
and up to and including
Monday 3 August 1992

(c) Name and postal address Monday 24

(including post code) of: August 1992
* every member who became
financial,

* every member whose postal
address has changes from
that previously advised after
Monday 3 August 1992 and up
to and including Monday 24
August 1992."

The Certificate directed to be given by the Branch

Secretary was in the following terms:
"I hereby certify that the accompanying list
being numbered page 1 to page.. . contains the names and postal addresses of all members of the West Australian Branch of the Operative Painters' and Decoratorsr Union of Australia who are listed in the Register of Members as

at.. . ."

7. Thereafter the Applicant supplied to the Returning Officer the membership lists and certificates as directed by the Returning Officer in sub-paragraph (d) hereof.

8, The lists of financial members drawn up on the

Applicant's instructions and supplied by him to the
Returning Officer -

(a) included the names of the 177 persons [of whom 63 persons voted - see transcript 1751 now alleged by the Applicant to have been unfinancial at the relevant time as described in Branch Sub-Rule 21.21 i.e. on the quarter night preceding the annual meeting; and
(b) excluded therefrom twenty-five apprentices now alleged by the Applicant to have been financial at the relevant time.

9. (a) The Returning Officer conducted the ballot in the election with the results thereof being described in the schedule dated 27 August 1992 signed by Mc E N

Panegyres .

(b) The Applicant was the unsuccessful candidate for the office of Branch Secretary, the other candidate Mr D Hassan having received 307 votes to the Applicant's
298.

(c)

In the ballot, there was 37.45 percentage of votes recorded to the number of eligible voters, i.e. 615 to 1,642 (see transcript 176).
10. As a result of the application by the Applicant for the inquiry herein and interlocutory relief sought by him, the Court on 2 September 1992 ordered, amongst other things -

(a)

that an inquiry be instituted into the election of the Branch Secretary;

(b)

pursuant to Section 221(l)(a) of the Act, no further steps be taken in the conduct of the election or in the carrying into effect of the result of the election until further order;

(c)

pursuant to Section 221(l) (c), the Applicant should continue to act in the office of Branch Secretary until further order."

The first irregularity alleged by the applicant was that the

branch ("the branch rules"), permitted 67 members to vote returning officer, in breach of rule 21 of the rules of the

although they were not "fully financial" as at 4 June 1992 - that date being, in the applicant's submission, the material date for the determination of whether a member was financial and accordingly entitled to vote. That allegation raised a question of law, namely the construction of Branch sub-rule 21.21. The second alleged irregularity was that the returning officer did not forward ballot papers to 26 members who were

eligible to vote.

At the commencement of the hearing the organisation's counsel said that the question of construction of Branch sub-rule 21.21 was an issue which did not depend upon evidence and that the determination of that question of law might "obviate the need for leading a great deal of evidence". M r Hassanls counsel, M r Schapper, said that, depending upon the answer to that question, "much evidence becomes unnecessary". The Court heard the parties on that question of construction, considered overnight the transcript of the submissions, heard further argument the next morning and then expressed its opinion in favour of the construction of Branch sub-rule 21.21 advanced by the applicant. The reasons for that opinion may be stated quite shortly.

The applicant contended that in Branch sub-rule 21.21 the words "financial on the quarter night preceding the Annual Meeting" meant financial on the night of the Quarterly Meeting preceding the annual meeting i.e. 4 June 1992.

Rule 21 of the Branch rules included the following provisions: 21 - ELECTION OF OFFICERS

21.1 Each officer, except the Secretary and elected Organisers shall hold office for a period of two (2) years (or thereabouts) from the conclusion of the Annual Meeting at which he is declared elected until the conclusion of the Second Annual Meeting held thereafter when he shall retire but be eligible for re-election.

21.2 The Secretary shall hold office for a period of four (4) years (or thereabouts) from the conclusion of the Annual Meeting at which he is declared elected until the conclusion of the fourth Annual Meeting held thereafter when he shall retire but shall be eligible for re- election.

21.3 (a) An Elected Organiser shall hold office for a period of four (4) years (or thereabouts) from the conclusion of the Annual Meeting at which he is declared elected until the conclusion of the fourth Annual Meeting held thereafter when he shall retire but shall be eligible for re-election.

(b)

So that this rule can be fully implemented in a manner that shall allow the continuous rotation of elections for Organisers in conjunction with the elections for Executive Committee positions, the following steps shall be followed:

(iii)

Nominations shall. be called at the Quarterly Meeting prior to the Annual Meeting of 1978 for one four year term Organiser and the election shall be conducted concurrently with that of the Executive Committee in that year, with the term being completed at the conclusion of the fourth Annual Meeting thereafter;

(iv)

Nominations shall be called at the Quarterly Meeting prior to the Annual Meeting of 1980 for the alternate four year t e n Organiser and the election shall be conducted concurrently with that of the

Executive Committee in that year, with the
term being completed at the conclusion of the of the fourth Annual Meeting thereafter;

21.4 A Returning Officer and two (2) Scrutineers shall be elected by the members present at the Quarterly Meeting held prior to the Annual Meeting. Such Returning Officer shall receive all nominations as prescribed by this Rule and shall conduct and carry out the election ...

21.5 Nomination forms shall be, available at the Quarterly Meeting held prior to the Annual Meeting and for three (3) weeks thereafter at the Union Office. Any financial member desirous of nominating for office shall complete such forms in accordance with the following provisions of this Rule, and deliver same by hand or prepaid post to the Returning Officer within such three (3) weeks.

All nomination forms before being forwarded to the Returning Officer shall be signed by the Nominee and Proposer, who shall both be financial members of the Union.

21.6 If the Returning Officer conducting an election finds a nomination to be defective he shall, before rejecting the nomination, notify the person concerned of the defect and where it is practicable to do so give him the opportunity of remedying the defect within seven (7) days after his being so notified.

21.7 Where an election is necessary, it shall be by secret ballot. Ballot papers shall be printed showing the full names of the candidates for the respective offices. Such ballot papers to be numbered consecutively and to contain voting instructions.

21.12

(a)

Ballot papers shall be forwarded by pre-paid post to all financial members one month prior to the Annual Meeting and shall, on completion be delivered by hand or post by members to the Returning Officer within three (3) weeks of date of issue.

(b)

A reply paid envelope shall be supplied with the ballot papers.

21.14 He shall count the votes on the preferential system and report to the members at the Annual Meeting the result of the ballot. Such report shall show the number of votes cast for each candidate, the number of informal votes and the number of ballot papers issued but not returned up to the time of (sic) the ballot closed.
21.21 "Financial member" for the purpose of this rule shall mean a member who is fully financial on the quarter night preceding the Annual Meeting."

The applicant sought to rely upon the affidavit evidence of Messrs W S Latter and H Peden, citing Codelfa Construction v.

- l0 -

State Rail Authority of NSW (1982) 149 CLR 337 per Mason J. at

352 and R v. Aird ex parte AWU (1973) 129 CLR 654 per Bariwck CJ. at 659. I upheld the submission of the organisation's counsel that that evidence was not relevant to the question of construction before the Court.

Counsel for the organisation and counsel for Mr Hassan each accepted that, as a matter of custom and practice, the Branch General Meetings, including the Annual Meeting, were held at night and were held "on the first Thursday of the relevant month i.e. March, June, September and December". However, they submitted that that custom and practice was irrelevant to the question of construction. In that connection the applicant's counsel pointed out that Branch rule 32, which was headed "Meetings", dealt with General Meetings of the Branch, including the Annual Meeting, and that the next rule (rule 33) which was headed "Order of Business", expressly said "no new business after 10.00 p.m." (sub-rule 33.11). In my opinion the Branch rules plainly contemplate that the quarterly

General Meetings and the Annual Meeting will be held at night.

It was common ground (transcript 187) that the words " quarter night", which appear in Branch sub-rule 21.21, are not referred to elsewhere in the Branch rules and do not appear in the Federal rules. Mr Le Meire, counsel for the applicant, contended that those words mean the night of the quarterly meeting preceding the annual meeting. The phrase "quarter night" is not defined in the rules. Mr Le Miere and Mr Staindl, counsel for the returning officer, both accepted that the phrase is capable of more than one meaning and Miss Hickey, counsel for the organisation, conceded that "it is a difficult provision"; only Mr Schapper submitted that it would "require nothing short of judicial legislation" for the Court to uphold the applicant's construction.

In support of the applicant's contention, Mr Le Meire submitted that Branch rule 21 provided for an electoral process which (1) was to begin on the night of the quarterly meeting preceding the annual meeting and (2) was to be completed at the annual meeting in September. He pointed out that Branch sub-rule 21.12(a) required that ballot papers be posted to all financial members "one month prior to the Annual Meeting". In this connection Branch sub-rule 32.2 provided that the "Annual Meeting shall be held in September of each year". Branch sub-rule 32.1 provided for the actual date (in September) of the Annual Meeting to be "decided upon by the [previous] Annual Meeting".

The organisation, in its written contentions of fact and law, dated 26 February 1993 (paragraph 12(a)), contended that,

construed in the context of both the rules of the organisation ("the Federal rules") and the branch rules and in particular the other sub-rules in branch rule 21, those words ("the words under consideration") were "to be construed as meaning financial at the end of the quarter immediately preceding that in which the annual general meeting was held, viz. 31 August 1992." However, in the course of her submissions at the hearing Miss Hickey conceded that it was not possible to contend that it meant financial on 31 August and said (transcript 228) "So, in order to get a ballot paper to and from a member it will have to be some reasonable time before the closing date."

In paragraph 1 of his written contentions of fact and law (undated - received 2 March 1993) on behalf of Mr Hassan, M r Schapper contended:

. . . "that the relevant date for the determination of
eligibility to vote is 31 August 1992 that being the last day of the quarter preceding the annual meeting. That was the date determined by the Returning Officer. That interpretation is supported by the decision of the President of the WA Industrial Relations Commission in Hassan v.
O'Sullivan & OPDU 72 WAIG 2759...the reasoning in

which is directly applicable to this case and which is respectfully adopted."

At the hearing Mr Schapper adopted Miss Hickey's submissions as part of his argument. However, notwithstanding what she had said (transcript 228 - set out above) he then read extensively from the decision of Hassan v. O'Sullivan (supra), including the following passage (at p. 2763):

"In my opinion a person who before midnight on 31 August, which is the night ending the quarter preceding the annual meeting in September 1992 is and was eligible to vote or to nominate for election under rule 21. The register of voters therefore 'closed' on that date at that time."

However, on being asked whether he relied upon that the above

passage in Hassan v. O'Sul l i van , Mr Schapper said (after some

hesitation):

"...No, we do not. Because for practical purposes that could not be so in the federal election because the ballot closed on 27 August. And therein lies the difference between the state rules and the state decision and the federal rules." (transcript 250)

The addresses by Miss Hickey, Mr. Staindl and Mr. Schapper placed heavy reliance upon the submission that, if Branch sub- rule 21.21 intended to refer to the night of the Quarterly Meeting preceding the Annual Meeting (as contended by the applicant in this inquiry), "it would have said so" (see, for example, transcript 217, 222, 241, 242, 249). All three counsel pointed out that Branch sub-rules 21.3(b)(iii) and (iv), 21.4 and 21.5 each used the words "at the Quarterly

Meeting prior to the Annual Meeting". There is force in that argument but it is to be noted that each of those sub-rules

was referring to some action to be taken at that Quarterly Meeting; on the other hand sub-rule 21.21 (if the applicant's construction is correct) was not referring to action to be taken at the meeting but to the existence of a state of being "fully financial" by the night of that Quarterly Meeting. Given that different purpose, the failure to use the words at the Quarterly Meeting is less significant. A criticism made of the applicant's construction was that it "involves reading words into" the sub-rule. However, as the argument proceeded, it became apparent that the alternative construction also involved reading words into sub-rule 21.21; Miss Hickey suggested that the words "who is fully financial at the quarter night preceding the Annual Meeting" in the sub-rule mean "who at the time of the taking of any relevant step - be it nomination or voting - has paid his subscription, any fine or levies, in respect of the period ending on 31 August" .
I accept that the sub-rule could have been more clearly

expressed but in my opinion the construction advanced by M r Le Meire, on behalf of the applicant, is the correct construction. The word "quarter" preceding the word "night" was used, in my opinion, as a shortened version of the words "Quarterly Meeting", which meeting the rules contemplate will be held at night. In my view the use of the word "on" be£ ore the words "the quarter night" lends some support to the applicant's construction. In that connection I am not able to

uphold Miss Hickey's submission (see, for example, transcript 222-223) that sub-rule "21.21 is not about a particular point:

in time at which a member has to be financial.. .It is dealing [with] the period in respect of which financiality is

required" .

As to the second irregularity, the organisation accepted that certain apprentices were wrongly treated in the organisation's office as being unfinancial, that they were deprived of a vote and that that constituted an irregularity. By the conclusion of the hearing it was common ground that, by reason of that error, the returning officer did not forward ballot papers to at least 20 apprentices who were entitled to vote.

The application alleged other irregularities in relation to the election but, after the court announced its ruling as to the construction of Branch sub-rule 21.21, the applicant's counsel stated (transcript 322) that "the applicant would not wish to pursue the inquiry any further" if the court was satisfied that "the result of the election may have been affected... by irregularities" (S. 223(4) of the Act). After the applicant's counsel placed evidence before the Court, which was uncontradicted, and was not the subject of any challenge of any significance, no party disputed that, having regard to the two irregularities found, the result of the election may have been affected.
On the material before the Court, I find that irregularities

the Operative Painters & Decorators Union of Australia West happened in relation to the election of Branch Secretary of

Australian Branch in that the Returning Officer, in breach of rule 21 of the rules of the Branch:

(a)

permitted at least 60 members who were not fully financial as at 4 June 1992 to vote; and

(b)

did not forward ballot papers to at least 24 members who were eligible to vote.

I am of the opinion that, having regard to the irregularities

found, the result of the election may have been affected by

irregularities, I will make the following orders:

(a)

declaring all steps taken in the election subsequent to the closing of nominations to be void;

(b)

declaring David Hassan, the person purporting to have been elected, not to have been elected to the position of Branch Secretary

(c)

directing the Industrial Registrar to make arrangements for all steps in relation to the election subsequent to the closing of nominations to be taken again upon the basis that the members entitled to vote in the election are those members who were fully financial as at 4 June 1992;

(d)

that the operation of rule 21.12(a) of the rules be modified so that ballot papers shall be forwarded to all financial members of the Branch by the Returning Officer at a date to be fixed by him;

(e)

that the operation of rule 21.14 of the rules of the Branch be modified so that the Returning Officer shall declare the result of the ballot at the office of the Branch at a date and time to be fixed by him;

(f)

that the operation of rule 21.2 of the rules be modified so that the person elected as Branch Secretary shall take office immediately upon being declared elected;

(g)

that the operation of rule 21.2 of the rules be modified so that the person elected as Branch Secretary shall hold office until the conclusion of the Annual Meeting of the Branch in 1996;

(h)

that the applicant, Frederick Albert Smith, continue to act in the office of Branch Secretary of the Branch until the declaration of the result of the election;
(i) that the inquiry be terminated.

to terminate the inquiry, without inquiring into the other In those circumstances, in my opinion, the proper course is
alleged irregularities, after making orders based upon the
findings as to the first and second irregularities.

I certify that this and the preceding
16 pages are a true copy of the Reasons for Judgment herein of His Honour Mr Justice Keely.

Associate: ,

Date: 23 March 1993

Counsel for the applicant: M r R Le Miere
Solicitors for the applicant: Dwyer Durack
Counsel for the organisation: Miss M Hickey
Solicitors for the organisation: Slater & Gordon
Counsel for the Electoral Commission: Mr D Staindl
Solicitors for the Electoral Australian Government
Commission: Solicitor
Counsel for M r Hassan: Mr S Schapper
Solicitors for Mr Hassan: D H Schapper
Date of Hearing: 9, 10, 11 March 1993
Date of Judgment: 23 March 1993

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Citations

In the matter of an Application by Smith, F.A. The Operative Painters & Decorators Union of Australia, West Australian Branch [1993] FCA 155

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24

R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1957] HCA 19

(b)	declaring David Hassan, the person purporting to have been elected, not to have been elected to the position of Branch Secretary;	l
(c)	directing the Industrial Registrar to make arrangements for all steps in relation to the election subsequent to the closing of nominations to be taken again upon the basis that the members

(e)	that the operation of rule 21.14 of the rules of the Branch be modified so that the Returning Officer shall declare the result of the ballot at the office of the Branch at a date and time to be fixed by him;
(f)	that the operation of rule 21.2 of the rules be modified so that the person elected as Branch

t h e Annual Meeting of t h e Branch i n 1996;	l
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Nominations open	Thursday 4 June 1992
Nominations closed	5.00 p.m. Thursday 25 June 1992
Ballots open	Thursday 6 August 1992
Ballot closes	10.00 a.m. Thursday 27 August 1992

(including post code) of	July 1992
every member who was financial as at Thursday (sic) 23 June 1992 in accordance with the Rules of the organisation.

(including post code )of:	August 1992
* every member who became

(including post code) of:	August 1992
* every member who became

(a)	included the names of the 177 persons [of whom 63 persons voted - see transcript 1751 now alleged by the Applicant to have been unfinancial at the relevant time as described in Branch Sub-Rule 21.21 i.e. on the quarter night preceding the annual meeting; and
(b)	excluded therefrom twenty-five apprentices now alleged by the Applicant to have been financial at the relevant time.

21.12	(a)	Ballot papers shall be forwarded by pre-paid post to all financial members one month prior to the Annual Meeting and shall, on completion be delivered by hand or post by members to the Returning Officer within three (3) weeks of date of issue.
(b)	A reply paid envelope shall be supplied with the ballot papers.

21.14	He shall count the votes on the preferential system and report to the members at the Annual Meeting the result of the ballot. Such report shall show the number of votes cast for each candidate, the number of informal votes and the number of ballot papers issued but not returned up to the time of (sic) the ballot closed.
21.21	"Financial member" for the purpose of this rule shall mean a member who is fully financial on the quarter night preceding the Annual Meeting."

The organisation, in its written contentions of fact and law,	dated 26 February 1993 (paragraph 12(a)), contended that,
construed in the context of both the rules of the organisation ("the Federal rules") and the branch rules and in particular the other sub-rules in branch rule 21, those words ("the words under consideration") were "to be construed as meaning financial at the end of the quarter immediately preceding that in which the annual general meeting was held, viz. 31 August 1992." However, in the course of her submissions at the hearing Miss Hickey conceded that it was not possible to contend that it meant financial on 31 August and said (transcript 228) "So, in order to get a ballot paper to and from a member it will have to be some reasonable time before the closing date."
In paragraph 1 of his written contentions of fact and law (undated - received 2 March 1993) on behalf of Mr Hassan, M r Schapper contended:

(a)	permitted at least 60 members who were not fully financial as at 4 June 1992 to vote; and
(b)	did not forward ballot papers to at least 24 members who were eligible to vote.

(a)	declaring all steps taken in the election subsequent to the closing of nominations to be void;
(b)	declaring David Hassan, the person purporting to have been elected, not to have been elected to the position of Branch Secretary
(c)	directing the Industrial Registrar to make arrangements for all steps in relation to the election subsequent to the closing of nominations to be taken again upon the basis that the members entitled to vote in the election are those members who were fully financial as at 4 June 1992;

(d)	that the operation of rule 21.12(a) of the rules be modified so that ballot papers shall be forwarded to all financial members of the Branch by the Returning Officer at a date to be fixed by him;
(e)	that the operation of rule 21.14 of the rules of the Branch be modified so that the Returning Officer shall declare the result of the ballot at the office of the Branch at a date and time to be fixed by him;
(f)	that the operation of rule 21.2 of the rules be modified so that the person elected as Branch Secretary shall take office immediately upon being declared elected;
(g)	that the operation of rule 21.2 of the rules be modified so that the person elected as Branch Secretary shall hold office until the conclusion of the Annual Meeting of the Branch in 1996;
(h)	that the applicant, Frederick Albert Smith, continue to act in the office of Branch Secretary of the Branch until the declaration of the result of the election;

to terminate the inquiry, without inquiring into the other	In those circumstances, in my opinion, the proper course is
alleged irregularities, after making orders based upon the findings as to the first and second irregularities.

Counsel for the applicant:	*M r* R Le Miere
Solicitors for the applicant:	Dwyer Durack
Counsel for the organisation:	Miss M Hickey
Solicitors for the organisation:	Slater & Gordon
Counsel for the Electoral Commission:	Mr D Staindl
Solicitors for the Electoral	Australian Government
Commission:	Solicitor
Counsel for *M r* Hassan:	Mr S Schapper
Solicitors for Mr Hassan:	D H Schapper
Date of Hearing:	9, 10, 11 March 1993
Date of Judgment:	23 March 1993

[1993] FCA 155

23 Mar 1993