In the matter of applications by Bragg, K.J. & Ors for Inquiries into elections into the Australasian Society of Engineers South Australian Branch
[1985] FCA 184
•03 MAY 1985
Re: IN THE MATTER OF Applications by KENNETH JOHN BRAGG, JOHN HECTOR LAWLEY,
BRIAN ALEXANDER COPE and JOHN HECTOR LAWLEY for Inquiries into Elections in
the AUSTRALASIAN SOCIETY OF ENGINEERS, SOUTH AUSTRALIAN BRANCH
Nos. 7,9,10 & 11 of 1984
Industrial Law
6 FCR 304
10 IR 297
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial Law - registered organisations - elections - applications for inquiries - whether requirements of an application mandatory - whether court should proceed with inquiry - whether possible irregularities.
Conciliation and Arbitration Act 1904 s. 159(2)(c), s. 159(4)(b) s. 163(1)(c), s. 164(4)(b)
Re Application by Ferris for an inquiry into an Election in the Australian workers' Union (1982) 2 I.R. 432
Re Elections for Offices in Australasian MeatIndustry Employees Union (1963) 5 F.L.R. 260
Jutte v Amalgamated Engineering union, Australian Section (1967) 10 F.L.R. 195
Re Australian Postal and Telecommunications Union: Ex parte Wilkson (1979) 28 A.L.R. 330
Re Australian NursingFederation (South Australian Branch) (unreported 10th November 1983)
Re Penhullurick (1983) 51 A.L.R. 589
Industrial Law - Registered organisation - Election inquiry - "Irregularity" - Whether the making, during an election campaign, of a statement which misleads a voter in the formation of his judgment as to the candidate for whom he will vote constitutes an "irregularity" - Whether unsuccessful applicants acted reasonably in applying for an inquiry - Conciliation and Arbitration Act 1904 (Cth), ss 4, 159, 165, 168.
HEADNOTE
The making, during an election campaign within a registered organisation, of a statement which misleads a voter in the formation of his judgment as to the candidate for whom he will vote, does not constitute an "irregularity in or in connection with an election for office". This is so irrespective of whether that misleading statement deals with the candidate's personal qualities or his policies or his membership of, or affiliation or association with, a political party or an association or any other body of persons.
Statement in Evans v. Crichton-Browne (1981) 147 CLR 169, 206-207, applied.
Re Adamson (1984) 57 ALR 280; 8 IR 410, referred to; Re Penhallurick (1983) 51 ALR 589 and dicta of St John and Wilcox JJ in Re Adamson (1985) 59 ALR 629 at 630-632, not followed.
HEARING
Adelaide, 1984, December 5-7; 1985, February 5; May 3.
#DATE 3:5:1985
APPLICATIONS
Applications for inquiries pursuant to Pt IX of the Conciliation and Arbitration Act 1904 (Cth).
R M Goot, for the applicants.
R C Kenzie QC, for the union and certain successful candidates.
G J Materne, for the returning officer.
Cur adv vult
Solicitors for the applicants: Johnson Withers & McCusker & Co.
Solicitors for the union and certain successful candidates: Steve Masselos & Co.
Solicitors for the returning officer: Australian Government Solicitor.
RRST
ORDER
Each application dismissed. Certified that each applicant acted reasonably in applying for the inquiry.
JUDGE1
Before the Court are four applications for inquiries concerning elections in the South Australian Branch of the Australasian Society of Engineers. In matter S.A. No. 7 of 1984, which was filed with the Industrial Registrar on 12th June 1984, the Applicant is Kenneth John Bragg, and the election concerned is that for State Secretary. In matter S.A. No. 9 of 1984, which was filed with the Industrial Registrar on 18th June 1984, the Applicant is John Hector Lawley, and the office the subject of the election is Federal Council Delegate. In matter S.A. No. 10 of 1984, which was also filed with the Industrial Registrar on 18th June 1984, the Applicant is Brian Alexander Cope, and the office concerned is that of Branch Executive Member. In matter S.A. No. 11 of 1984, which was filed with the Industrial Registrar on 18th June 1984, the Applicant is John Hector Lawley, and the office concerned is Organizer. All elections are complete, and, by virtue of the provisions of rule 17 of the Rules of the Australasian Society of Engineers, the persons elected took office on 1st July 1984.
To some extent, the applications are similar in form. The application in S.A. No. 11 of 1984 contains the following:
"PARTICULARS OF ALLEGED IRREGULARITIES
1. The publishing and provision to the membership of the said Branch by or on behalf of the successful candidate David William Thompson at or prior to the moment each member cast his or her vote of a "How to Vote" notice which contained untrue or incorrect statements or inferences intended or likely to mislead or improperly interfere with the electors of the said Union in or in relation to the full and/or free recording and/or casting of their votes.
2. The publishing and distribution to each member of the said "How to Vote" card at the time and in the manner aforesaid by which means preventing or hindering or attempting to prevent or hinder the full and free recording and/or casting of the votes by the persons entitled to record and/or cast votes in relation to the said election and/or ballot.
3. The action of the Australian Postal Commission and/or its servants and/or agents and/or other persons unknown to the Applicant whereby the "How to Vote" card of the Applicant duly arranged so as to be received by each and every member or person entitled to record and/or cast a vote in relation to the said election prior to or at the time of the casting of such vote was improperly interfered with and/or caused not to be sent thereby preventing and/or hindering the persons entitled to vote from fully and freely determining for whom and how such votes should be cast and/or recorded in relation to the said election.
4. The fact that a matter, material and significant to the issues raised in the said election namely the economic management of the South Australian Branch and in particular the financial statements of the said Branch for the year ending 30th November, 1983 though in existence and available to be published and further showing significant deficits was restrained from publication until after the commencement of the recording and/or casting of the votes thereby preventing and/or hindering the full and free recording of votes by persons entitled to do so in relation to the election.
5. The non-receipt of ballot papers by persons entitled to record a vote in the said election and in addition thereto:-
(a) The refusal to provide a ballot paper to persons entitled to vote who having not received a ballot paper sought a ballot paper but were refused thereby disenfranchising such persons and preventing the full and free or any recording or casting of votes by those persons entitled to record votes in relation to the election.
(b) The provision of ballot papers to persons entitled to vote but without the further provision of the pre-paid, return address envelope where in such event such persons provided their own envelope but such ballots were rejected thus preventing such persons the full and free or any recording of the votes in relation to the said election.
(c) The non-receipt by persons entitled to record votes of any ballot paper thus preventing their recording whether full and free or otherwise of votes in relation to the said election.
6. The publishing on the "How to Vote" card published and distributed by or on behalf of David William Thompson of an authorisation by one B. Tirri which authorisation by the said "Bob Tirri" did not occur and would not have occurred.
7. The said David William Thompson by reason of the registered rule of the said Union and in particular Rules 2 and 40 is not eligible to stand for the office of Organiser for the State of South Australia.
FACTS RELIED ON
1. As to the particulars set out in paragraphs (1),
(2) and (6) the Applicant relies on the "How to Vote" card authorised by E.E. Crowden a copy of which is annexed hereto.
2. As to the facts relied on in paragraph (3) the Applicant by arrangement with the Australian Postal Commission prior to and on the 16th day of May 1984 ensured a posting such that the "How to Vote" card for the election would reach all persons entitled to vote no later than when they received the ballot paper. In accordance with the arrangment the Applicant delivered envelopes individually addressed to every person entitled to cast a vote in relation to the said election at the Central Mail Exchange at 4.15p.m. on Wednesday the 16th day of May, 1984. In like manner and with the same purpose the successful candidate David William Thompson provided to the Australian Postal Commission individually addressed envelopes containing the "How to Vote" card for his election. By actions within the Central Mail Exchange the Applicant's envelopes were interfered with such that they would arrive the day after receipt by voters of the ballot paper and therefore some 24 hours after the persons entitled to cast their vote would in the majority of cases have attended to the casting of the vote.
3. As to the matters set out in paragraphs (4), (5) and (7) this is based upon oral information provided by persons entitled to cast a vote and the Applicant proposes to call those persons to give oral testimony to the irregularity particularised therein.
4. Annexed hereto and marked with the letter "2" is a certified copy of the registered Rules of the Australasian Society of Engineers. The said David William Thompson is and was at all material times a foreman employed as such by the Defence Research Centre, Salisbury in the State of South Australia."
The application in matter S.A. No. 7 of 1984 is in the same form as that set out above, with the following exceptions:
(a) The name "E.E. Crowden" appears in place of the name "David
William Thompson" in paragraphs 1 and 6 of the Particulars of Alleged Irregularities, and paragraph 2 of the Facts Relied On;
(b ) There is no paragraph 7 of the Particulars of Alleged
Irregularities, and no paragraph 4 of the Facts Relied On, i.e. there is no allegation of ineligibility against Mr. Crowden, the successful candidate for the office of State Secretary.
The application in matter S.A. No. 9 of 1984 is in the same form as that in matter S.A. No. 11 of 1984 with the following exceptions:
(a) The name "Robert F. Douglas" appears in place of the name
"David William Thompson" in paragraphs 1 and 6 of the Particulars of Alleged Irregularities and paragraph 2 of the Facts Relied On;
(b) Paragraph 7 of the Particulars of Alleged Irregularities reads as follows:
"7. The said Robert F. Douglas by reason of the registered rules and in particular by reason of the fact that he was a retired member as described in Rule 40.2 was not and could not be eligible to stand for or be a member of the Federal Council;"
(c) Paragraph 4 of the Facts Relied On is in the following form:
"4. Annexed hereto and marked with the letter "2" is a certified copy of the registered Rules of the Australasian Society of Engineers. The said Robert F. Douglas is and was at all material times retired from the trade covered by the Constitution."
The application in matter S.A. No. 10 of 1984 is in the same form as that in matter S.A. No. 11 of 1984, with the following exceptions:
(a) The name "Robert F. Douglas" appears in place of the name
"David William Thompson" in paragraphs 1 and 6 of the Particulars of Alleged Irregularities and paragraph 2 of the Facts Relied On;
(b) Paragraph 7 of the Particulars of Alleged Irregularities reads as follows:
"7. The said Robert F. Douglas by reason of the registered rules of the said Union and in particular Rules 2 and 40.2 is not and was not eligible to stand for the office of the Executive for the State of South Australia in that he had retired from the trade covered by the Constitution of the said Union and was not eligible to be a member of the State Branch Executive;"
(c) Paragraph 4 of the Facts Relied On reads as follows:
"4. Annexed hereto and marked with the letter "2" is a certified copy of the registered Rules of the Australasian Society of Engineers. The said Robert F. Douglas is and was at all material times retired from the trade covered by the Constitution."
Annexed to each of the applications is a copy of the same document, described in argument as a "How to Vote card". It is in the following form:
******************************************************** * * * FOR A COPY OF THE "HOW TO VOTE" FORM, SEE PAMPHLET * * * ********************************************************
Also annexed to the applications in matters S.A. No. 9, S.A. No. 10 and S.A. No. 11 of 1984, were copies of extracts from the Rules of the Australasian Society of Engineers. Rule 2 of those Rules provides as follows:
"RULE 2. CONSTITUTION
This Society shall consist of members engaged in any of the following trades or branches of trades:
(a) Engineers, Fitters, Turners, Water Meter Fitters, Tool and Gauge Makers, Die Sinkers, Mechanical and/or Scientific Instrument Makers, Scale Makers and Adjusters, Safe Makers, Pipe Fitters, Motor Mechanics, and Tuners and Testers, Cycle and Motor Cycle Mechanics, Typewriter Mechanics, Patternmakers, Coppersmiths, Brassfinishers, (Engineering and General) Forgers, Forge Furnacemen, Blacksmiths, Shipsmiths, Angle-Ironsmiths, Springsmiths, Spring Fitters, Welders, Oxy-Acetylene Cutters, Locksmiths, Mechanical Draughtsmen, Millwrights, Iron and Steel Rollers, Electrical Fitters, Electrical Mechanics, Machine Makers, Milling Machinists, Planers, Slotters, Borers, Shapers, Drillers, Polishers, Grinders and Lappers, Bolt and Nut Machinists, Agricultural Implement Makers, Panel Beaters (restricted to Panel Beaters employed in the Australian Capital Territory by the Department of the Interior in the Transport Workshop), Gunsmiths, Technicians (except persons who are members or eligible for membership of the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia) and any other Machine Operators or Mechanics employed in the Engineering, Locomotive, Shipbuilding. Rolling Stock, Aircraft Munition and Iron Trades, or in any other Industry, and the paid officials of the Society.
(b) Smiths' strikers and mechanics' assistants or groups of strikers and assistants engaged in any of the above trades deciding to amalgamate with or join this Society shall be admitted upon such terms as shall be agreed upon by the Federal Council and consistent with the Rules of the Society, so long as it is not antagonistic to any other Trade Union dealing solely with that class of worker and operating in the immediate locality."
Rule 40 contains the following provisions:
"RULE 40. MEMBERSHIP SECTIONS
1. Honorary Members:
Any member upon being appointed to the position of foreman or sub-foreman, or leaving the trade, may, if he desires to retain his membership, become an honorary member.
Any member appointed to the staff shall not be eligible for honorary membership if he uses the tools of trade.
An honorary member may take part in any meeting of his Branch and speak on any subject dealt with at the meeting, but he shall not move or second a motion or be eligible to hold any office and shall have no vote at meetings except on matters affecting the Funeral Fund. An honorary member shall not be made an active member whilst unemployed or away from the trade, and shall not contest an election for an Executive position until he has been an active member for six months. Any member of the Society occupying the position of foreman or sub-foreman shall be exempt from taking part in any trades disputes and shall not work with the tools of trade.
2. Retired Members:
No member who has retired from the trades covered by the constitution of this Society shall retain full membership of the Society, provided that any member who has ten consecutive years as a financial member and who has reached the age of 55 years and who has retired from work because of age or illness or incapacity may become a retired member of the Society and may retain his Funeral Benefits by the payment of twenty cents (20c.) per quarter. A retired member shall not be eligible to be a member of the Federal Council or any State Branch Executive or any Sub-Branch Executive."
On 5th July 1984, at Adelaide, Mr. McCusker appeared before me for the Applicant in each case. Mr. Kenzie appeared for the Australasian Society of Engineers in each case, and also for Mr. Crowden in matter S.A. No. 7 of 1984, Mr. Douglas in matters S.A. No. 9 and S.A. No. 10 of 1984, and Mr. Thompson in matter S.A. No. 11 of 1984. In each case, Mr. Matterne appeared for Graham John Carey, the Returning Officer. Mr. Kenzie sought to prevent each of the inquiries from proceeding further. He relied upon the provisions of s. 159(2)(c), and 159(4)(b), of the Conciliation and Arbitration Act 1904. These provisions are in the following terms:
"(2) An application under this section shall-
...
(c) specify the election in respect of which the application is made and the irregularity which is claimed to have occurred, and state the facts relied on in support of the application;
...
(4) An application may be made under this section in respect of an election referred to in sub-section
(3) if the application is made within the time that is applicable under the next succeeding sub-section and, where such an application is made-
...
(b) the Court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application;"
Mr. Kenzie drew attention to a passage from the judgment of Fitzgerald J. in Re Application by Ferris for an Inquiry into an Election in the Australian Workers' Union (1982) 2 IR 432 at page 447, which reads as follows:
"A number of authorities indicate that the requirements of sub-s. 159(2) are mandatory and that a failure to comply with them substantially avoids the application. The first of these cases seems to be R v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks Union of Australia, N.S.W. Branch
(1950) 81 C.L.R. 229; see p. 242 per Latham C.J. with whom McTiernan and Kitto JJ. agreed and Webb J. at p.
224. That decision has since been applied on two occasions by single judges of this Court: see Re Election in Administrative and Clerical Officers Association, Commonwealth Public Service (1980) Current Review (B87) p. 363, a decision of Sheppard J., and the decision of Evatt J. in Re an Application for an Election Inquiry in the Amalgamated Metal Workers and Shipwrights Union by Shahid Naqvi (1982) 2 IR 174. Contrast R v. Commonwealth Court of Conciliation and Arbitration; ex parte Grant (1950) 81 C.L.R. 27.
The particular requirement of sub-s. 159(2) upon which the respondents placed reliance is that contained in par. (c), that the application shall "specify...the irregularity which is claimed to have occurred, and state the facts relied on in support of the application". Insofar as the application fails sufficiently to set out the facts relied on, counsel for the union further submitted that the applicant has failed to comply with par. (d) of sub-s. 159(2), in that there is no statement of facts in the application to which the statutory declaration can be regarded as referring. It is unnecessary for the purpose of this matter to say more than that this seems to me a submission of considerable force: see R v. Commonwealth Court of Conciliation and Arbitration; ex parte Federated Clerks Union, supra, at p. 241; cf. In re Berrill (1978) 52 ALJR 359; and Evans v. Critchon-Browne, supra."
Having regard to that passage, and to the authorities cited in it, I am prepared to accept that the requirements of sub-s.(2)(c) are mandatory. Mr. Kenzie invited me to hold that each of the Applicants had failed to state the facts relied on by him in support of his application; insofar as facts were stated, Mr. Kenzie argued, they were insufficient to make out a case that an irregularity or irregularities may have occurred in relation to any of the subject elections. In the alternative, Mr. Kenzie argued that the grounds set forth in the applications did not disclose matters which gave rise to a reasonable ground for any of the applications to proceed, and that I should terminate each of the inquiries pursuant to sub-s. (4)(b). Mr. Kenzie did not invite me to reach a determination on the question whether any particular matter is capable of constituting an irregularity, in situations where the authorities are in conflict or there is controversy as to what may amount to an irregularity. An example of such a matter where controversy exists is the question whether an act or omission by a person entirely unconnected with the organization could constitute an irregularity. It is proper that, at this stage, I should take the view most favourable to the Applicants as to what might constitute an irregularity, rather than trying to determine controversial issues without the benefit of full argument or evidence.
It was conceded by Mr. Kenzie that, if the facts alleged in any of the applications were sufficient to satisfy sub-s.(2)(c) in relation to any one ground upon which that application was based, the inquiry was properly before the Court. In my view, this is a proper concession. There is authority that an inquiry pursuant to Part IX of the Conciliation and Arbitration Act 1904 is not limited by the grounds expressed in the application; the obligation of the Court pursuant to s. 165 is to "inquire into and determine the question whether any irregularity has occurred". See Re Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 FLR 260 at page 265, Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 F.L.R. 195 at pages 201-2, and Re Australian Postal and Telecommunications Union; ex parte Wilson (1979) 28 ALR 330 at page 333. Once an inquiry is properly before the court, the court has power, pursuant to s. 164(4)(b), to inform itself on any matter in such manner as it thinks just. An inquiry into an election is not an ordinary proceeding in which the court is content to listen only to the allegations of the parties and to rely upon them to provide the evidence. Although adversarial in nature, the procedure has inquisitorial aspects.
It was common ground between the parties that, for the purposes of s. 159(2)(c), it is permissible for the court to look at any part of the document constituting a purported application. In order to determine what facts are stated as relied on in support of the application, the court is not confined to what appears under the heading "Facts Relied On".
In each of the applications in matters S.A. No. 9, S.A. No. 10 and S.A. No. 11 of 1984, there is an allegation that the successful candidate in the election concerned was ineligible to be a candidate. See paragraph 7 of the Particulars of Alleged Irregularities and paragraph 4 of the Facts Relied On, together with the annexed extracts from the Rules in each of those matters. With respect to Mr. Douglas, in matters S.A. No. 9 and S.A. No. 10, the allegation is made that he is "retired from the trade covered by the Constitution". In matter S.A. No. 11 of 1984, the allegation is made with respect to Mr. Thompson that he "is and was at all material times a foreman employed as such by the Defence Research Centre, Salisbury". These allegations are allegations of fact. True it is, they are not detailed, but in a real sense they do constitute the facts relied on.
The acceptance by a returning officer of the nomination of an ineligible candidate is capable of constituting an irregularity. See, for example, the decision of Fisher J. in Re Royal Australian Nursing Federation (South Australian Branch) (unreported, 10th November 1983). It follows that each of matters S.A. No. 9, S.A. No. 10 and S.A No. 11 of 1984 is properly instituted with respect to at least the ground of ineligibility, and that s. 159(2)(c) has been complied with with respect to that ground.
The same does not apply to matter S.A. No. 7 of 1984, which contains no allegation of ineligibility. In that application, as in the others, the allegations in paragraphs 1, 2 and 6 of the Particulars of Alleged Irregularities are cast in wide terms. Paragraphs 1 and 6 do, however, state facts. In a sense, the annexure of the How to Vote card itself is a statement of a fact or facts relied on. That How to Vote card is alleged to contain untrue and incorrect statements or inferences. Mr. McCusker suggested that the failure of the How to Vote card to distinguish members of the Ernie Crowden team from those who were not members of that team was misleading. In particular, Mr. McCusker suggested that some persons might be induced to believe that Mr. Bragg was a member of Mr. Crowden's team by the fact that his name appears on the How to Vote card in type of the same size and emphasis as all the other names. It is clear that the resolution of these allegations depends to a large extent on the inferences to be drawn from the How to Vote card itself and on argument. It may also depend upon the existence or non-existence of evidence of actual misleading. Even if this is so, it is clear that s. 159(2)(c) does not require that the application contain the whole of the evidence; all that is required is that the facts relied on be stated. In my view, sufficient facts are stated in each of the applications with respect to the Particulars of Alleged Irregularities in paragraphs 1, 2 and 6. There is authority that the misleading of voters might constitute an irregularity. See Re Penhallurick (1983) 51 ALR 589, at page 596 where, Fitzgerald J. said:
"Thus, any breach of the rules will be an irregularity, as will be any act, omission or other step which prevents or hinders the full and free recording of votes by all persons entitled to record votes or the correct ascertainment or declaration of the results of the voting. But conduct which may not meet either description may also be an irregularity. For example, it seems to me that it may well be that conduct which misleads voters and thereby causes them to alter their votes, but not to refrain from voting may not properly be described as conduct which prevents or hinders the full and free recording of votes; cf Evans v Creichton-Browne (1981) 33 A.L.R. 609; 55 A.L.J.R. 287 at 288. However, it does not seem to me to be open to doubt that such conduct might well constitute an irregularity and might well justify the court declaring an election void if, having regard to the likelihood of other similar irregularities, the irregularity in question may have affected the result of the election."
On this reasoning, each of the applications complies with s. 159(2)(c) with respect to paragraphs 1, 2 and 6 of the Particulars of Alleged Irregularities. In addition, it cannot be said that there is no reasonable ground for the application with respect to those allegations. It must be emphasized that, in reaching these conclusions, I am not to be taken as having made a final determination of the issue whether any irregularity has occurred in relation to any of the subject elections. The determination of those issues will depend upon the hearing of evidence and the completion of full argument. Still less am I to be taken as having reached any conclusion at all on the issue whether, if any irregularity has occurred, it may have affected the result of any election. That question simply has not arisen yet.
Once an inquiry of this kind is properly before the court in relation to one or more grounds, there is a real doubt whether the court can exercise the power under s. 159(4)(b) in relation to other specific allegations of irregularities. In other words, there is a real doubt whether the court can refuse to proceed in relation to some of the alleged irregularities. Section 159(4)(b) refers to "an inquiry" and not to any specific irregularity. In my view, the court could only refuse to proceed if there was no reasonable ground for the application at all. It follows, therefore, that these inquiries must proceed, as reasonable grounds for the applications to exist.
In these circumstances, it is preferable that I make no comment on the Particulars of Alleged Irregularities with which I have not already dealt. Mr. McCusker submitted a document, with annexures, which contained further particulars in relation to each of the alleged irregularities. The document also sought to add a further alleged irregularity. Having regard to the fact that the inquiry will proceed in respect of each application, it is appropriate that I should say nothing more about these allegations until such time as evidence is before the Court and full argument has been heard.
Mr. McCusker sought orders pursuant to s. 163(1)(c) of the Act. In the first place, he invited the Court to order that all of the persons who held office before 1st July 1984 should continue to act in their offices until the completion of the inquiry in each case. In this respect, Mr. McCusker emphasized the width of s. 163(1)(c), and argued that that provision gives to the Court a discretion to make orders of the kind sought. There is no doubt that the provision is broad enough to permit the Court to make orders of the kinds sought. The question is whether those orders are proper in all the circumstances. It was drawn to Mr. McCusker's attention that to make the orders he sought would have the effect of reinstating in office persons who had not sought re-election and who had, therefore, indicated that they no longer wished to act in their former offices. Those persons were not before the Court. In my view, there is a very real difference between making an order under s. 163(1)(c) at the instance of a person who seeks to be reinstated to an office, and making such an order compelling unwilling persons who are not before the Court to act in capacities which they have renounced.
Mr. McCusker then restricted his application to an order that the Applicant in matter S.A. No. 7 of 1984, Kenneth John Bragg, act as Organizer pending the outcome of the inquiry into that position. Mr. Bragg held the office of Organizer up to the 30th of June 1984. He was not, however, a candidate for that office in the subject election; he preferred to renounce his position as Organizer, and to stand for election as Branch Secretary. In those circumstances, it is extremely difficult to see how the Court could, in effect, reinstate Mr. Bragg as Organizer. When seeking to be elected to another office, he must be taken to have accepted the risk that, if he failed in his bid for that office, he would not be able to fall back on his previous position as Organizer. Mr. McCusker pressed upon me that this risk was undertaken by Mr. Bragg upon the footing that he would participate in a properly conducted election. This is undoubtedly so, but I do not think that it alters the nature of the choice made by Mr. Bragg. Reference was also made to the fact that Mr. Bragg is now unemployed, whereas Mr. Thompson, the successful candidate in the election for Organizer, may be able to resume the employment which he had up to 30th June 1984. It appears to me that these considerations are too problematical. On the evidence before me, persons have been elected to office by fairly substantial majorities in each case. Notwithstanding the possibility that irregularities may have occurred, those persons are the choice of those members of the Branch who voted to occupy their respective positions. I do not think that the intentions of the voters who so expressed their intentions should be overruled on an interim basis. I therefore propose to dismiss the application for interim orders.
Mr. McCusker also sought access to material in the possession of the Returning Officer. The Returning Officer is not unwilling to provide information. It appears to me that Mr. McCusker's request in this regard, will be met adequately by the order which I propose to make, that the Returning Officer file and serve an affidavit concerning his conduct of the election. The inquiries will continue; I propose to hear the parties on the question what directions are appropriate, including a direction as to the time within which the Returning Officer is to file his affidavit. Other than an order dismissing the application for interim orders, it is unnecessary for me to make any order as to the occupancy of the various positions, pending the outcome of the inquiries. By the force of the rules, those elected will hold office unless and until any order is made to the contrary.
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