In the matter of the Industrial Relations Act 1988 In the matter of an election for office in the Transport Workers Union of Australia, Western Australian Branch

[1993] FCA 193

Re: INDUSTRIAL RELATIONS ACT 1988
And: TRANSPORT WORKERS UNION OF AUSTRALIA, WESTERN AUSTRALIAN BRANCH
No. WI4 of 1991
FED No. 193
Number of pages - 6
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
French J(1)

CATCHWORDS

Industrial Law - registered organisation - elections - irregularity - nomination wrongly accepted - declarations made accordingly - subsequent application by applicant for financial assistance - necessity for declaration of irregularity within the meaning of the Industrial Relations Act - s.342(2)(d).

Industrial Relations Act 1988 s.342

HEARING

PERTH, 19 March 1993

#DATE 30:3:1993

Counsel for Mr J.J. O'Connor: Mr B.L. Tee

Solicitors for the Applicant: Dwyer Durack

Counsel for Mr R. Handmer: S. Hewitt

Solicitors for the Respondent: Freehill Hollingdale and Page

ORDER

The Court orders that:

It is hereby declared that an irregularity within the meaning of section 342(2)(d) of the Industrial Relations Act 1988 occurred in relation to the election the subject of these proceedings for the office of Secretary in the Transport Workers Union of Australia, Western Australian Branch.

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

JUDGE1

FRENCH J On 23 December 1991, John Joseph O'Connor, the secretary of the Transport Workers Union of Australia, Western Australian Branch and a candidate for re-election to that office, lodged an application in the Court under s.218 of the Industrial Relations Act 1988. By that application he sought an inquiry into alleged irregularities which he said had occurred in relation to the pending election. The irregularities alleged were that the Branch Returning Officer had accepted the nominations of two persons who were not, at the time, qualified for nomination for election to the offices for which they had nominated or subsequently qualified to hold those offices. The substantive ground relied upon in each case was that the two persons, Robert William Handmer, a candidate for the office of Branch Secretary and Lawrence Peter Humphreys, a candidate for the office of Branch President, did not meet the requirements of the rules that candidates for election and office holders be persons employed in the transport industry, or holding certain specified offices in the branch or federal organisation. Directions were given by Lee J on 24 December 1991 for the service of copies of the application and supporting statutory declaration on interested parties. On 16 January 1992, I made orders for the conduct of an inquiry including the filing of affidavits. Following the filing of an affidavit by Mr Humphreys, Mr O'Connor withdrew the objection to his candidacy. No other party wished to maintain the objection and counsel for Humphreys withdrew by leave. The grounds for the challenge to Mr Handmer's candidacy were narrowed to his eligibility to nominate. An objection based upon his eligibility to hold office was not pursued. In the event and for reasons which I published on 12 February 1992, I concluded that Handmer was not employed in the industry at the relevant time, that he was not eligible to nominate for office and that his nomination was wrongly accepted. In the circumstances, I made a declaration that the acceptance of his nomination was void and that the Industrial Registrar should take the necessary steps consequential upon that order which would no doubt result in Mr O'Connor being declared elected unopposed. The formal orders made on that occasion were:

"1. It is declared that the acceptance by the Returning Officer of the nomination for election to the office of Branch Secretary/Treasurer of the Transport Workers Union Western Australian Branch lodged by Robert William Handmer on 26 November 1991 is void.

2. The Industrial Registrar make arrangements for uncompleted steps in the election for Branch Secretary/Treasurer to be completed on the basis that there has been one valid nomination for election to that office being that of John Joseph O'Connor.

3. The inquiry be otherwise terminated.

4. Liberty to the parties to apply within seven (7) days for such further orders as may be necessary to give effect to these reasons."

1. On 23 February 1993, Mr O'Connor filed a motion in these proceedings seeking a declaration that:
   

"1. An irregularity as defined by the Section 342(2)(d) of the Industrial Relations Act 1988 occurred in the election, the subject of these proceedings, for office in the Transport Workers Union of Australia, Western Australian branch; or

2. John Joseph O'Connor in bringing the action the subject of these proceedings acted reasonably as defined by Section 342(2)(e) of the Industrial Relations Act 1988."

1. The motion is brought to overcome difficulties experienced by Mr O'Connor's solicitors in obtaining financial assistance in respect of the proceedings under s.342 of the Act. That section provides, inter alia:
   

"342(1) Subject to this Division, the Minister may, on application made by a person under subsection (2), authorise payment by the Commonwealth to the person of financial assistance in relation to the whole or part of the person's relevant costs, if the Minister is satisfied:

(a) that hardship is likely to be caused to

the person if the application is refused; and

(b) that in all the circumstances it is

reasonable that the application should be granted.

(2) An application may be made to the Minister for financial assistance under this Division by the following persons (other than organisations) in the following circumstances:

.

.

.

(d) a person who applied for an inquiry into

an election, where the Court found that an irregularity happened;

(e) a person who applied for an inquiry into

an election, where the Court certified

under subsection 343(1) that the person

acted reasonably in applying;"

1. It appears that because the Court made no formal declaration of an irregularity in the conduct of the election under inquiry in this case, the Office of Legal Aid and Family Services of the Attorney-General's Department does not regard the criteria of eligibility to which I have referred as being satisfied. There can be no doubt, however, that in relation to the acceptance of Mr Handmer's nomination it was found that an irregularity had occurred and in order to put the matter beyond doubt I am prepared to make a declaration to that effect. Of course, no such declaration could be made in relation to Humphreys nor am I prepared to certify in relation to Humphreys that Mr O'Connor acted reasonably. There is simply not enough evidence on that point. An appropriate declaratory order will therefore be made.