In the matter of the Conciliation and Arbitration Act, 1904 in the matter of an application by Adamson, Robert McColl for an inquiry into an election for an office in the Amalgamated Metals Foundry & Shipwrights Union

CATCHWORDS

32 5

Industrial Law - registered organizati.on

- inquiry into

election - whether application within time - "date of

conpleti on of the election"

Conciliation and Arbitration	I---	Act 1904 S . 159, S. 133(l)(d)r
S. 170

Re Federated Clerks Union	of Australia; Re Callaghan	--	(1983)
6 I.R. 258

R. v. Coaks (1854) 3 El. and B1. 249

---

Pritchard v. Mayor of Bangor (1886) 18 Q.B.D. 349, and (1888)

3 App. Cas. 241

Lynch v. McGrane

- (1965) 7 F.L.R.

188

Beeson v. Blayney (1966) 8 F.L.R.

292

Re Boilermakers' Society of Australia;

Ex Parte O'Shea

(1949) 66 C.A.R. 435

R. V. Commonwealth Court

of Conciliation of Arbitration: Ex

Parte Grant (1950)

81 C.L.R. 37

RE ADAMSON: APPLICATION FOR

AN INQUIRY INTO

THE AMALGAMATED METALS FOUNDRY

& SHIPWRCGHTS V

l '

GRAY J a m q	5TH S S W H B E R	1984	.	I
MELBOURNE

IN THE FEDERAL COURT

OF AUSTRALIA )

.. .

NEW SOUTH WALES DISTRICT REGISTRY	)	NSW No. 28 of 1984
INDUSTRIAL DIVISION	1

IN THE MATTER OF the

Conciliation and Arbitration

Act, 1904

AND IN THE MATTER

OF an

Application by ROBERT McCOLL

ADAMSON for an

I n q u i r y a n

Election for an office in the

AMALGAMATED METALS FOUNDRY	&
SHIPWRIGHTS' UNION

ORDER

JUDGE MAKING ORDER: GRAY

' DATE

ORDER:

5TH

OCTOBER

1984

WHERE M?.DE:

MELBOURNE

THE COURT ORDERS THAT:

The

applications for the

orders

sought

paragraphs

and 2 of the Notice

of Motion filed on behalf of Charles

Bali on 17th September

1984 are dismissed.

The inquiry is adjourned

to a date to be fixed, for

the

hearing of the applications for the remaining orders

sought in the Notice

of Motion.

IN THE FEDERAL COURT

OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY	)	NSW No. 28 of 1984
1
INDUSTRIAL DIdION	)

IN THE MATTER

OF the

Conciliation 'and Arbitration

Act, 1904

AND IN THE MATTER

OF an

Application by ROBERT McCOLL

ADAMSON for an Inquiry into an

Election for an office in the

AMALGAMATED METALS FOUNDRY	&
SHIPWRIGHTS' UNION

GRAY J.

5TH OCTOBER

1984

REASONS FOR JUDGMENT

On 5th September

1984, the Industrial Registrar referred

to the Court

an application by Robert McColl Adamson for an

inquiry into an election in the Amalgamated Metals Foundry an,:

Shipwrights' Union ("the Union"). The reference was made pursuant

to the duty which the Industrial Registrar has, by virtue of S.

159(4)(a) of the Conciliation and Arbitration Act 1904 ("th

Act"), forthwith to refer an application to the Court in respect

of an election conducted under

S. 170 of the Act.

By way

of preliminary question it is necessary

determine whether the Court lacks jurisdiction

conduct an

inquiry by Ykason

of the alleged failure

of the Appljcant to lodge

his application

with the Industrial Registrar within the tima

limit laid down by

S. 159(5) of the Act.

The election concerned was for the position

f National

Organizer - Division 4 in

the

Union.

The

Applicant

was

\ *

candidate, as was one Bali; there were no other candidates. The ballot opened on 23rd January 1984 and closed at 1O.OOam on 17th

February 1984.	The counting of the votes was completed on 17th
February 1984.	At some time on that day, the identity of the

successful candidate, Mr. Bali, was known

to the officer of the

Australian Electoral Commission who conducted the election.

11:

addition, both candidates had scruti.neers present thoughout and at

the completion of the counting of the votes. The identity

of the

successful candidate was known to both the Applicant and to Mr.

Bali, at the latest,

on 18th February 1984. On that date, the

fact that

Mr.

Bali had won the election was published in an

article in the 'Weekend Australian, a newspaper which circulates

nationally, although the figures given in that article for the

number of votes secured by each

of the candidates bore littlc

resemblance to the actual results.

By letter dated 2nd March 1984, the officer

the

Australian Electoral Commission

who

acted as Returning Officer

wrote to the National Secretary of the Union, advising that the election had been duly conducted and fnat the results, together

;

- 3 -

with his decladtion of the poll, were attached. Attached was a sheet bearin‘g a heading “Declaration of the Poll“, and containing information as to the number of votes received by each candidate,

the number of informal votes received, the total number

of ballot

papers printed, the total number

of ballot papers posted and the

total number of duplicates issued.

X ’

Rule 2 of the Rules of the Union deals with elections

and voting.

Part “A“ of that rule relates to elections for

national officers, including National Organizers. Sub-rule

7 of

that part lays down the duties

of a returning officer with respect

to the conduct

a ballot in any such election. These duties

appear in paragraphs designated by the letters

of the alphabet;

in general, they are set out in the order in which the returning

officer might be expected to perform them. Paragraph

(U) is as

follows

“(U) No later than 14 days after the completion of the

counting of ballot papers the Returning Officer

shall declare the result of the election by issuing

to	the National Council a statement in writing

setting out:

(i) the number of ballot papers printed;

(ii) the number of ballot papers posted to persons on the roll of voters;

(iii) the number of duplicate ballot papers issued;

(iv) the number of formal Votes cast;

(V)

the number

of votes rejected as informal;

and

(Vi)

the number of votes received by each

candidate.

”

Paragraph (v) requires the returning officer to cause a copy

his statement

be forwarded to each candidate. Paragraph

( W )

- 4 -

imposes an obligation

on the returning officer to keep for

period of o6e year after the completion of an election all ballot

papers, envelopes, rolls and other documents coming into his

possession in or in connection with the conduct of the election.

Paragraph (X) is in the following terms:

(X)	Subject to paragraph (xa), a person elected	to
an office referred to in sub-rule (1) shall

take ‘up office no fater than	2 months after
the declaration of the result	of the election

and shall, subject to these rules, hold office

until the election of a successor or the

attainment of 65 years of	age, whichever	I
sooner occurs.

Paragraph (xa) concerns persons

who attain the age

of 65 no

earlier than

12 months before the expiration

of their terms of

office.

It is unnecessary to refer to paragraphs (y) and

(21,

which relate to candidates, rather than to the duties

of the

returning officer. Paragraph (za) deals with casual vacancies.

The application for inquixy was lodged with the

Industrial Registrar on 30th August 1984.

No attempt was made to

rely upon the extended time limit laid down by

S. 159(5)(c), or to

contend that the application had been lodged before the completion

of the election, within the meaning

of S . .l59 (5) (a).

The issue,

therefore, is whether the application was lodged within six months “commencing on the date of completion of the election“, within the meaning of S . 159(5)(b).

The question which the Court i S required to answer is

essentially one of statutory construction. Mr. Trew, who appeared

- 5 -

with

Mr.

McCarthy for the successful candidate in the election,

argued ,that. the date

of completion of the election was either the

date on which the ballot closed, being the date at which the fates L of the candidates were determined by the presence of all completed ballot papers in the ballot box, or, at the latest, the date by

which the result

was "known". The first limb of this argument was

based on a numbek oh authorities, to which I shall turn shortly,

..a

in each of which it had been held that a person was entitled to be

treated as having been elected in the absence of a declaration,

a correct declaration,

of the result of a ballot. The second limb

of Mr. Trew'

S argument was really designed to take account

of the

decision of the Full Court of the Federal Court of Australia in

Federated Clerks Union of Australia; Re Callaghan

(1983) 6

I.R.

258, with which I shall also deal shortly. On the basis	of this
decision, Mr. Trew argued that the date of completion of the

election may vary, according

to the provisions of the rules under

which it is conducted: there may be cases in which a declaration

i s essential to the entitlement of the candidate with the highest

number of votes to hold office. According to Mr. Trew's argument, the Rules of the Union indicate that the declaration comes after

the election is over: paragraph

(U) of sub-rule

7, referred

above, obliges the returning officer

to "declare the result

of the

election"; under paragraph ( X ) , once the election of a successor is achieved, the person who previously held the office ceases to

so.

M r .

Trew also canvassed the history of the legislation,

with particular reference to

S . 133(l)(d) of the Act.

- 6 -

Mr. Moore,

who appeared for the Applicant, and whose

argument was adopted by Mr.

Shaw, who appeared for the Union,

relied

authorities which tended to conflict with those upon

which Mr. Trew relied, and in particular upon the Callaghan case	I
referred to above.

Ns. Donaldson,

who appeared for the Electoral

. S

. . e

Commission, did not make submissions on the point.

In R. v. Coaks (1854) 3 El. & B1. 249, the Court of

Queens Bench held that a candidate in a municipal election was entitled to vote on the council, notwithstanding that the returning officer had declared another candidate elected at B

election.

The ineligible to stand, and the Court took the view that the other

candidate

declared

elected

had

been

candidate was entitled

to be treated as elected even in the

absence of a declaration by the returning officer in his favour.

In argument before me, reference was made to Pritchard v. Mayor of Bangor, both in the Court of Appeal (1886) 18 Q.B.D. 349, and in the House of Lords (1888) 13 App. Cas. 241. Both sides relied upon this case as authority to support their

respective arguments.

Again, the election was a municipal one.

Upon the votes being counted, the returning offjcer stated

o thd

Mayor the considered the position, the returning officer then declared the

number

votes

given

to each

candidate:

having

candidate with the lesser number of votes elected,

on the ground

C.. -	. ._.-
a

- 7 -

that the candidate with the greater number was ineligible to

stand. .' It Gas held that the question

of eligibility to stand was

not properly one for the returning officer, and that the returnins

officer should have declared elected the candjdate with the

greater number

of votes.

The proceeding was commenced by thc

candidate with the lesser number

of votes, who had been declared

elected.

It was' an. application for mandamus. The view seems

..-

have been taken, in the Court of Appeal and the House of Lords, that the statement to the Mayor by the returning officer of the number of votes which each candidate had received amounted to a

sufficient declaration of the result, and that, accordingly, the

candidate with the greater number

of votes had in fact been

elected.

For

this reason, the case is of little assistance in

determining whether an election can be said to have been

completed wxthout declaration of the result. Reference was made

to certain views expressed.

On the one hand, at page 364 of the

report of the Court

of Appeal decision, Lord Esher M.R. said

"Though it is not necessary

to decide the point, I

am inclined to

think that his declaration

is merely ministerial, and that, if he

remained silent and did not make any declaration, the person who had the majority of votes would be duly elected." On the other

, I

hand, in the House of Lords, Lord Watson said, at page

253, "If

there was no declaration, then there was no completed election of

either of these two candidates."

In Lynch v. McGrane (1965) 7 F.L.R. 188, the

Commonwealth Industrial Court held that a member of an

I’

- 8 -

organiza t ion

reg is te re

under

the

Act was er

I t i t l e d

t o

t r ea t ed

a s a member’of the

committee

management of a branch of t h a t

o rgan iza t ion ,

desp i t e

t he

f ac t

t ha t

had

not

been

validll-

dec l a red

e l ec t ed

t o

t ha t

committee

management.

A t page

194 ,

s a id :

t he . cour t

“As s t a t ed above, Ryan‘ S nomination was the only one

r ece ived

f o r

t h e

o f f i c e

t o which

was

d e c l a r e d

e lec ted .

He.

:was

the re fo re

’ en t i t l ed

t o

declared

elected

without

the

taking

any

vote.

the

meetmg

o f

17 th

J anua ry ,

1962

had

r e fused

t o

approve

h i s

e l ec t ion ,

could

have

obtained

order

from

t h i s

Cour t

t o enforce

r igh ts .

these

c i rcumstances

i.t

seems

t o us t h a t a

formal

declarat ion

his

e l ec t ion

was

not

p r e - r e q u i s i t e

t o

h i s

participation

i n

t h e

a f f a i r s

the

committee

management,

and

t h a t

h e

resolution

15th

August,

1962,

could

properly

seconded

him.

In the

case

R .

v . Coaks

[ (1854)

El. & B1. 249;

118 E.R. 11331 it was he ld

tha t

a person

who

was

e n t i t l e d t o

be declared elected as

counci l lor

a t a municipal

election

was

e n t i t l e d

t o p a r t i c i p a t e

i n

the elect lon of

mayor,

even

though

the r e tu rn ing o f f i ce r

had declared

the

pol l

favour

another

candidate .

This case would seem t o show t h a t i n the

absence

express

p rovjs ion

the

contrary,

the

declarat ion

the

po l l

i n

f avour

the

successful

candidate

i s

not

e s s e n t i a l

t o

h i s

p a r t i c i p a t i o n

i n

t h e

a f f a i r s

o f

t h e

body t o which he is e lec ted . ”

In Beeson v. Blayney

(1966)

8 F.L.R. 292, the

quest ion

was whether

the

term

office

the

Secretary-Treasurer

branch

an organization

was

determined

r u l e s i n f o r c e a t t h e

da te

when

h i s e l e c t i o n

commenced,

o r

amended

r u l e s i n f o r c e a t

the date when he was declared

elected.

Joske

J . , with whom

the

other

two

members

the

court

concurred,

held

that

amended

ru l e s did

not

apply.

A t page

294,

h i s Honour

said:

“ I n my

opinion the

amendments

t o t h e r u l e s a p p l y

and

were

intended to apply only

t o fu ture e lec t ions

and have

a p p l i c a t i o n

t o

a n

e l e c t i o n

which

had

a l r eady

- 9 -

commenced and was in progress at the time the rules were

amended.

By way of further reason, at page

295, his Honour said:

"There

is,

however,

an additional reason in

the

present case for saying that the amendment of the

rules

does not apply and that is that the election in question

was already completed at the time the amendments to the

rules were certified by the Registrar and became

effective. It

is true that at that time the declaration

of	the ballot: had not taken place, but the actual

election is complete as soon as the ballot closes. The ballot has been finally determined and the result is in the ballot box. The election is by the votes. The

declaration of the poll is not the election. It merely

declares the result

of the election which has already

been completed. The entitlement of the elected

candidate flows from the poll

the votes and the

rights which

he possesses as the elected candidate

belong to him and vest in him immediately the poll

closes.

Joske J. cited Lynch v. McGrane, referred to above.

In the Callaghan case, referred to above, the Full Court

was called upon to determine the eligibility of certain persons to be elected as federal officers of an organization. This eligibility depended upon membership by those persons of the Federal Council of the organization. On the same day as the

election for federal officers was conducted, but at a subsequent time, new Federal Councillors were declared elected in place of the two persons concerned. It was argued, on the basis of Lyncn

v. ElcGrane and Beeson v . Blayney that these new Federal

Councillors had been elected before they were declared elected,

the ballot for their election having closed some days before the

election for federal officers. The Full Court refused

to follow

- 10 -

those two cases, holding that the new Federal Councillors could

not be

regiirded

as having been elected until they had been

identified. At page 262, Northrop and Lockhart

JJ. said:

"In some circumstances the close of the ballot may be

the relevant time, as in

Lynch v. McGrane where the time

of the election determined the length

of the term for

which the successful candidate was to hold office. In

other cases, if the one candidate only is nominated, the

close of nominations may be the relevant time, but this

may depend ..upon the par'ticular rules

the

organization. But even there, it may well be that that will not be known until the returning officer declares that the one nomination only has been received."

Under the particular rules there in question, the Full Court held

that the relevant time was the declaration

of the ballot, on the

basis that that was the time when it was first ascertained who would be the new Federal Councillors. It was this decision which forced Mr. Trew into his alternative argument that, if the

election was not complete vlhen

all the votes were in the ballot

box, it was complete at the time when the indentity

of the winning

candidate was known. It is plain, however, from an examination

the judgment of the majority of the Full Court, that knowledge

the identity of the candidates was regarded as stemming from the

declaration of the result

of the ballot. The case does not

support the proposition that there is some intermediate position between the close of the ballot and the declaration of its results, at which stage the election becomes complete, by reason

of some unquantified knowledge by some unidentified persons as to

who the victor was.

It must be remembered that the phrase "th

date

completion of the election" is found in Part IX of the

Act, which is concerned with jnquiries into possible

r- ~

,-- -..--- - - .. .- ~, --_

- .

I‘

- 11 -

i r r egu la r i t i e s

i n

e l ec t ions

w i th in

o rgan iza t ions .

Sec t ion

159(1 )

g ives the r sgh t t o

make

an appl icat ion for such an inquiry

an;-

member

of an organization, or

any person

who,

within the preceding

period of Knowledge by the

twelve

months,

has

been

a member of an

organization.

candida tes

themselves

the

resu l t

b a l l o t ,

o r

the i r

s c ru t inee r s ,

or by some other

l imited

and

unspecified

class

persons

would

p lace

those

persons

a t

. ,

advantage i n terms of the running

the

l imitation

peri.od

provided

for

S .

159(5)

( b ) , when

compared with

others

who

a r e

e n t i t l e d

t o

make

appl ica t ion .

The

inference

i s s t rong

t ha t

leg is la ture

in tended

the

s ta r t ing

the

l imi ta t ion

per

iod

t o be

point ascer ta inable with reasonable cer ta inty.

The

choice

appears to

l i e between

the close of the bal lot

and

the dec lara t ion

i t s

r e s u l t ,

assuming

tha t t he re

i s

la te r event tha t could

said

t o be

pa r t

t he

e l ec t ion .

my view, the

Callaqhan

case

does not t h a t argument.

ass is t

Mr.

Trew’s

argument:

i f

anyth ing ,

it is aga ins t

I t i s a decis ion which binds m e , whereas Lynch v .

McGrane

and Beeson

v. Blayney

are of persuasive authori ty only.

The

r e a l i t y

is ,

however,

t h a t l i t t l e a s s i s t a n c e

is t o be

gained

from the c a s e s t o which

I have

so f a r r e f e r r e d .

Both -

Lynch

v . McGrane and the

Cal laghan

case

were

concerned

w i t h

t h e

determination

the

dates

on which elected

persons

took

office.

That date completion

may

not

necessar i ly

the

same

da te

the

da te

the

lection.

i n t e r e s t i n g

t o

n o t e

t h a t ,

a t

page

294

of the report

i n Beeson

v. Blayney,

Joske

J. was prepare‘

t o

d e s c r i b e

t h e

l e c t i o n

a s

b e i n g

“ i n

progress”

and

“ n o t

- 1 2 -

completed"

a t t h e t i m e

when

the re levant

r u l e amendments came

i n t c

o p e r a t i o n . ''

A t

t h a t

t i m e ,

t h e

o n l y

event

which

remained

outstanding was the

dec la ra t ion

the

resu l t .

This

t ends

t a

suggest

that ,

al though

a person may, i n some circumstances, be

regarded

having

been

elected

a t

t h e

t i m e

when

t h e

b a l l o t

c l o s e s ,

t h e

l e c t i o n

i t s e l f

i s

not

completed.

Indeed,

the

fact

tha t

vo tes

s t i l l need

t o be

counted

before

the

indenti-ty

the

. ,

winner

can

ascertained

suggests

strongly

that

process

the

lect ion

cont inues

beyond

the

stage

the

b a l l o t .

There

i s no

reason

why

the

dec la ra t ion

the

resu l t

should

not

be regarded

par

this

process ,

even

i f , i n

law,

the

winner

i s

already

e lected.

the

I f

ordinary

and

na tura l

meaning of person would not

words

i s chosen, it seems t o me that the

ordinary

say

that

election

was

completed

while

the

r e tu rn jng

o f f i ce r

had

one

fu r the r

d u t y

t o

perform,

that

o f

dec l a r ing the r e su l t .

f a r as

o the r

au tho r i ty

ex i s t s ,

tends

support

the

view

t h a t t h e e l e c t i o n

not completed before the declaratio?

o f t h e Par t e

r e s u l t .

R e Bo i l e rmaker s '

Soc ie ty

o f

Australia:

O'Shea

(1949)

66 C.A.R.

435, Dunphy J. was ca l led upon t o

d e c i d e

w h e t h e r

t h e

l e g i s l a t i o n

r e l a t i n g

t o

i n q u i . r i e s

i n t o

elections within

organlzat ions,

which

had

come

in to

ope ra t ion

o r 1

12th

July

1949,

was

app l i cab le

t o

election

commenced

before

tha t

da t e .

The

b a l l o t

i n

the

e lect ion

concerned

c losed

ior

12th July,

b u t h i s Honour

found

t h a t t h e

r e s u l t had

been declared

16th July.

A t page 438 of

the repor t , h i s

Honour

he ld

tha t

the

- 13 -

election had not been completed until 16th July, the date of

dec1aration"'of the result. Although

his Honour then went on to

hold that the legislation was applicable even if the election had

not been completed,

it cannot be said that the conclusion that the

election was completed on 16th July was not part of the reasoning

on which his Honour's decision was based. Application was made to

the High Court

for. a writ of prohibition in respect

of the

decision of Dunphy J.

See R. v. Commonwealth Court of

Conciliation and Arbitration; Ex Parte Grant (1950)

81 C.L.R. 27.

The application was unsuccessful. At page 48, Latham C. J., with

whom Williams and Webb

JJ. agreed, said:

"There vas, however, no declaration of the result of the

election until 16th July and it is clear that his Honour

was right

in holding that the electlon was not

completed until 16th July."

At page 55, McTiernan J. sald:

"The election in respect

of which the court made the

orders which are now in question was not completed

before the Act came into operation. Any irregularity

whether before or after the Act was a permissible matter

mquiry

by the court. The meaning of the

word

"election" is not confined to the acts whereby the

members

the organization exercise their right to

choose the candidates whom they wish

to hold office. An

election is

not completed before a binding and

definitive declaration is made in accordance with the

rules of

the organization of the names of the persons

chosen by the members"

M r . Trew argued that these observations in the High Court were not

essential to the Court's reasoning, and therefore were of

Persuasive authority observations are entitled to great weight. Unless there were

only.

Even

that

were

the

case,

the

!	!
i

- . - .

-I

- 14 -

c l e a r

a u t h o r i t y

t o

t h e

c o n t r a r y ,

s e r i o u s

o b j e c t i o n s

i r l

principde, it is my

view t h a t I should follow

what was sa id by t h e

members of the High Court i n tha t

case .

I n my

view, there is no

a u t h o r i t y

t o

the contrary, and there is no ser ious

object lon

p r i n c i p l e

t o

t h e

view

t h a t

e l ec t ion

regarded

completed

when

t h e r e s u l t

i s declared.

. .

. L

is worth notjng

that

a s imi la r view was taken by the

then

Indus t r i a l .

Reg i s t r a r

i n

R e Federated

Storemen and Packers

Union of

Australia

(1958)

C.A.R.

847.

L i t t l e

weight

can

at tached

the Industr ia l Regis t rar ' s conclusion,

however,

the

matter was not

argued

before

him:

h i s

s t a t emen t ,

t ha t

t he

election

concerned

was completed on the day t h e

resu l t

was

declared,

seems

t o be an assumption,

rather

than

a dec

i s ion .

Such

o ther au thorx ty as ex is t s tends to suppor t the

same

conclusion.

I r e fe r

t o

s t a t emen t s

t h e members

the

High

Court i n Hodqe v. R .

(1907) 5 C.L.R.

373, a t pages

379,

383 and

387,

and the decis ion of Slat tery

i n Ex Par te Hinds:

Penboss

C19721 2 N.S.W.L.R.

542, a t pages 545-547.

Nothing

i n

t he h i s to ry

o f

t he

l eg i s l a t ton de t r ac t s

from

this

conclusion.

T h e

phrase

"the

completion

the

lection",

with

reference

time l i m i t , was

f i r s t

i n t roduced

i n t o the Act

Act

No.

28 of

1949.

That

phrase

now

appears

S .

159 ( 2 ) ( b ) ,

wi.th

re ference

the

t ime

limit

fo r

app l i ca t ions

fo r

i nqu i r i e s

into

elections

other

than

those

conducted

under

S .

170.

A c t

- - S . .

- I. -

- - - -

- 15 -

No. 18 of 1951, there was first inserted into the Act a provision

sjmilar.

to""that

which

now

S .

133(l)(d).

This

paragraph

requires that the rules

of an organization make provision for

elections to be by secret postal ballot, with provision for

number of things including "the declaration

of the result of the

ballot"., The provisions of paragraph

(U) of sub-rule 7 of Part P.

of Rule 2 of the Union'

S Rules, quoted above, can be regarded as

*. '

satisfying this requirement. When the present

S .

159

( 5 )

was

inserted, by Act

No. 37 of 1972, the legislature chose to use the

phrase "the date of completion of the election".

Mr. Trew argued

that, if the Parliament had intended that the limitation period in

S .

159 (5) (b)

was to run from the date

of declaration of the result

of the ballot, it would have sajd so, borrowing that phrase from

S . 133(l)(d)(vi). Two things must be borne in mind, however. In

the first place, not all elections go to the stage of a ballot.

I ,

If there are no more candidates than there are positions

o fill.

no ballot will be necessary. It was necessary for the Parliament,

in fixing the point at which the limitation period begins

to run,

to choose words, which would

be applicable to all elections, not

only those in vIhich

a ballot is necessary. In the second place

consistency in the legislation dictated that a phrase which did not differ markedly from that which appears in S . 159(2)(b) wa- chosen.

As I have said, the Rules of the Union require that the

returning officer declare, by a particular method, the result

an	election in which a ballot is necessary. In my view, having

' I

- - -..

- 16 -

regard to the terms

of the rules, that act of the returning

officer is-.Co be regarded as part

of the election itself.

Mr.

Trew argued that the reference in paragraph

(U), quoted above, to

"the result

of the election" involved a reference to a past event,

suggesting

that

the

election

was

already

complete.

also

referred to paragraph ( X ) , contending that the specific reference

in that paragraph

.to "the declaration of the result of the

' *

election" suggested that this was an act separate from the procass

of the

election.

contrasted

these

Rules

with

provisions

sometimes found, obljgi ng a returning officer to declare the

identity

the person "to be elected", and argued that a

declaration under provisions

of the latter kind would be more

likely to be regarded as part of the process of the election.

Ir.

view,

however,

such

an argument

reads

too

much

into

the

;

provisions of the Rules. In ordinary language, the distinction

not always drawn between an election and a ballot. The Rules

the Union, in sub-rule 6(a) of Part

A of Rule 2 require the

returning officer to declare a candidate elected unopposed when

there is only one nomination for election

to an off ice. Plainly,

sub-rule 7(u)

is intended to relate to the declaration of the

result of a ballot. This

i S the provision required

by S.

133 (1)

(d) (vi) of the Act. Such a declaration is an integral parr

of the ballot, and accordingly

of the election.

It may be the

only means by

whi c11 the result of an election may become

known to

many officers and members of the Union.

- 17 -

My conclusion, therefore, is

that the application

referred to'khe Court

by the Industrial Registrar in this case was

co&enced

within the time limit laid down by

S. 159(5) (b) of the

Act. Accordingly, the Court

has j urisidictjon to proceed

conduct an inquiry. The applications for the orders referred to

in paragraphs 1 and 2 oE the Notice of Motion filed on behalf of

Mr. Bali on 17 September 1984, {~hich sought the dismissal of the

. .

Application on the ground that

it was out of time,

will

dismissed. The application for the orders sought in the remaining

paragraphs of that Noti.ce of Motion will be determined at a later

date.

' _

i	I
'	l

I certify that thls and the

16 SfY&

preceding pages are

a true copy

the Reasons for Judgment herein	of
his Honour Mr. Justice Gray.

W!-

Associate

[1984] FCA 325

5 Oct 1984