In the matter of Section 218 of the Industrial Relations Act 1988 and In the matter of an application for an inquiry into an election for offices in the Transport Workers Union of Australia, Western Australia Branch

[1989] FCA 396

IN THE FEDERAL COURT	)
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
INDUSTRIAL DIVISION	) No. WA 3 of 1989

IN THE MATTER of Section 218 of the

Industrial Relations Act 1988

and

IN THE MATTER of an application for
an inqulry Into an election for
offlces in the Transport Workers
Unlon of Australla, Western

Australla Branch.

CORAM :  FRENCH J .
26 JUNE 1989

EX TEMPORE REASONS FOR JUDGMENT ON MOTION TO
STRIKE OUT PARTICULARS OF ALLEGED IRREGULARITIES

I do not propose to embark upon a lengthy exposition of reasons for my decision in relation to the varlous attacks on the particulars that have been flled by Mr Humphreys. It is Important to say however, that the Court does not regard these partlculars as pleadings. The motlon will be determined on the substantive question whether any of the partlculars impugned, taken individually or in con~unction wlth other particulars, fall to dlsclose any tenable basis upon which the Court could conclude that an order should be made pursuant to 5.223 of the Industrial Relations Act 1988. And the approach to be taken to that questlon is a restrlctlve one. It is a drastic matter to determine on the papers alone whether or not somebody should be permitted to bring evidence on a particular allegation in an Inquiry of thls kind.

This is the prlnclple that regulates strlke out applications	the Court under civll lurisdlctlon and it IS appropriate that
be followed here. I have regard to the particulars collectively and individually. The example I suggested to Mr meadows was of a case where an allegation of a slngle breach of security is made. It might be that the allegation disclosed something so trlvlal or insignificant that, taken by itself, it could never support an application for relief under 5.223. It might, on the other hand, form part of a collocation whlch could lead to a conclusion that, to use the words of s.223(4), the result of the electlon may have been affected. And as to that test which conditions, as it were, the power of the Court to declare an election or any step taken in relation to an election to be void; I respectfully accept the criterion enunciated by Toohey J. In Re Ferguson (1986) 17 IR 208, that one looks to a real and not merely a theoretical possibility that the result of the election may have been affected.
Accepting as Keely J. sald in the later case Re Vehicle Builders Employeesr Federation of Australia ( S A Branch) at (1987) 13 FCR 350, one is not requlred to flnd a probability but rather a possibility subject to the threshold requirement enunciated.
Particular 1

Turning to the particulars of irregular~tles flled by Mr

Humphreys, I am not prepared to strlke out particular number 1. It seems to me that that does conceivably ralse a question of undue influence or duress and is a matter whlch would have to be assessed in the light of all the evidence. I make no judgment in saying that. The questlon whether, if the facts alleged in the particulars were proven, the Court would be satisfied that such duress had been made out, 1s stlll open.

Particular 2

So far as Particular 2 is concerned, I am satisfled that there is no basls shown whereby the refusal to supply Humphreys with a list of union members eligible to vote, could be sald to have had any real possibility of affecting the outcome of the election. That is not to say, of course, that that, as with some of the other allegations, might not ralse questions of fairness or the appearance of impartiality on the part of the returning officer or other persons concerned with the conduct of the election. But s.233(4) does require some connection with the result of the election as distinct from falr procedure. I am unable therefore to see any basis upon which particular 2 could support the relief which is sought.

Particular 4

I am satisfied that 4 may give rlse to matters affecting the outcome of the election. One posslbllity which may require further particularisation is that Mr Ofconnor, the candidate for the position of branch secretary/treasurer, sald to have "arranged" for the printing of ballot papers, may have assumed

between that and mere delegation, is not sufficient to requlre	responslbillty for that function. But the £allure to dlstlngulsh
paragraph 4 to be struck out.
Particular 5
SO far as paragraph 5 is concerned, accepting that 5(1) arguably discloses a breach of the rules, I am not satisfied that either 5(1) or 5(2) support any contention that there has been an irregularity that may have affected the outcome of the election. However, 5(3) does raise a question of security and must be permitted to stand. I would accede to the motlon lnsofar as it relates to 5(1) and 5(2), but not 5(3).
Particular 6
6, agaln, raises a question of security which taken by itself, might not be sufflclent to glve rlse to the conditions of the exercise of the Court's dlscretlon under 5.223, but in conjunction wlth other matters might, and I do not think that it should be disposed of in the absence of a conslderatlon by the Court of the whole of evidence.
Particular 7
I think 7 should stand. I appreciate that there may be differing views on the construction of rule 33(p) as to the nature of the count to be undertaken by the Branch Returning Offlcer. Prima facie it seems to me that the rule contemplates an inltial count of all ballot papers to get the number of papers. And
practicable after the close of the ballot. The same urgency does arguably, that should take place Immediately or as soon as
not attend to the actual counting of the votes recorded. If one has to look for a purpose attaching to the requirement for an initial count, it would seem to relate to later verifying that there has been no interference with the ballot papers whlch have been cast and returned. I express no concluded view on construction, however, because I thlnk that is a matter to be dealt with in the context of a fuller argument at the close of the inqulry ltself and, of course, in the llght of the evidence which is brought before it.
Particular 8
Paragraph 8, again, goes to a question, I think, essentially of fairness. If made out, it would raise a question as to the appearance of lmpartlallty on the part of the returning officer. However, it does not allege a factor whlch might be said in the sense enunciated by Toohey J. which I have adopted, to have affected the outcome of the electlon and I would strlke out paragraph 8.
Particulars 9, 10, 11 and 12
Paragraphs 9, 10, 11 and 12 require inquiry on the question of breaches of security generally, and I am not prepared to strike those out on the basls that indlvldually they mlght not have any strong connection wlth the outcome of the election.
Again, it is a matter of looking at the question as a whole and not just on the basis of lndlvldual allegations.
Particulars 13 and 14

Paragraph 13 is not challenged. Paragraph 14 is, in

effect, conceded. It is a paragrpah which really makes no

positive allegation and appears to have been overtaken by events.

So it too will be struck out.

Conclusion

Particulars 2, 5 ( 1 ) , 5 ( 2 ) , 8 and 14 of the statement and

particulars of alleged Irregularities flled on behalf of Peter

Lawrence Humphreys wlll be struck out.

I certify that thls and the preceding
flve ( 5 ) pages are a true copy
of the Ex Tempore Reasons for Judgment

of His Honour Justlce French.

Associate:	t 1'4
Date:	6

Counsel Assisting the Inquiry: Mr P. Nlsbett

Counsel for Messrs. Higham, O'Connor and McGlveron: Mr R. Le Mlere

Solicitors for Messrs. Higham, O'Connor and McGiveron: Dwyer

Durack

Counsel for Mr Humphreys: Mr R. Meadows

Solicitors for Mr Humphreys: Freehill Hollingdale & Page

Date of Hearing: 26 June 1989 Date of Judgment: 26 June 1989