John Charles Penhallurick v Application for an inquiry into an Election in the Transport Workers Union

[1983] FCA 205

Re: JOHN CHARLES PENHALLURICK AND ORS
APPLICATION FOR AN INQUIRY INTO AN ELECTION IN THE TRANSPORT WORKERS' UNION
No. Q2 of 1983
Industrial
5 IR 399

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Fitzgerald J.

CATCHWORDS

INDUSTRIAL - whether reasonable ground for applications for inquiry into elections for various positions in the Queensland branch of the Transport Workers' Union of Australia.

Conciliation and Arbitration Act, ss. 159(4)(b) and 165(4)

HEARING

BRISBANE

#DATE 19:8:1983

ORDER

1. The application for inquiry into the elections be set down for hearing on 4, 5, 6 and 7 October 1983.

JUDGE1

A number of persons have lodged applications pursuant to s.159 of the Conciliation and Arbitration Act 1904, as amended, ("the Act"), claiming that there were irregularities in or in connection with elections for various positions in the Queensland branch of the Transport Workers' Union of Australia ("the branch"). The elections were conducted under s.180 of the Act by an officer of the Australian Electoral Office in Brisbane.

The proceedings have been before me on prior occasions and pursuant to directions then given the applicants' contentions and the respondents' rival contentions have been reduced to points of claim and points of defence. Further, the parties have exchanged affidavits and it is common ground that the material facts are laregly, if not wholly, to be found in the affidavits.

The applicants' allegations fall into three main categories.

1. The respondents, who were candidates in the election, and in effect in control of the branch at the time the election was held, used the resources of the branch to advance their candidatures to the detriment of other candidates;

2. a false, fraudulent and misleading circular, as it is described, was distributed by the respondents; and

3. various relatively minor matters can be pointed to in respect of the roll of members and the ballot papers.

What is presently before me is in substance an interlocutory attempt by the respondents to have the proceedings terminated at the threshold, in reliance upon para. 159(4)(b) of the Act which provides that the court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the applications.

I have been greatly assisted by the precise and careful way in which the respective contentions of the applicants and the respondents have been put before me, which have enabled me to form a view without hesitation that the inquiry should not be terminated at this point, although, of course, whether the applications will ultimately succeed is a matter upon which no view is presently possible.

It is sufficient to refer to the first category of the applicants' contentions, that which is related to the alleged use of the branch's resources by the respondents. It is arguable that such conduct, if such conduct occurred, involved a breach of the rules of the Transport Workers' Union of Australia ("the Union") or of the branch. It is also arguable, although contrary views have been expressed, that a breach of the rules is of itself an irregularity, whether or not the full and free recording of votes by all persons entitled to record votes and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be prevented or hindered thereby.

If the respondents did use the resources of the union or the branch, and if that conduct was an irregularity, then there is a question for resolution, whether having regard to any such irregularity and any circumstances giving rise to a likelihood that similar irregularities may have occurred, the result of the elections may have been affected by those irregularities - see sub-s. 165(4) of the Act.

It is inappropriate that I should comment further on these questions at this point, since it is possible, if not probable, that I will be the judge charged with the further disposition of these proceedings.

There is no formal application before me at the moment. I decline to declare at this stage of the proceedings that I am not satisfied there is reasonable ground for the applications and I decline to order at this point that the application for inquiry into the elections be dismissed.