Johnson, D. v The Pastrycooks

[1990] FCA 400

Re: IN THE MATTER of an application by DALLAS JOHNSON for an Inquiry into
elections in THE PASTRYCOOKS, BAKERS, BISCUITMAKERS AND ALLIED TRADES UNION
(VICTORIAN BRANCH)
No. V I15 of 1990
FED No. 400
Industrial Law - Practice and Procedure
34 IR 18

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - election - inquiry into election - allegation that completed nomination form handed to branch secretary who agreed to convey it to returning officer - nomination form not lodged with returning officer - whether capable of amount to irregularity - whether breach of rules - whether full and free recording of votes hindered or prevented - whether offence.

Practice and Procedure - election inquiry - when decision should be made as to whether allegations capable of amounting to irregularity.

Words and phrases - "irregularity" - "in relation to the election" - "take" - "nomination paper".

Industrial Relations Act 1988 s.218, s.223, s.4, s.315.

Crimes Act 1958 (Vic).

HEARING

MELBOURNE

#DATE 6:8:1990

Counsel for the applicant: H. Borenstein

Solicitor for the applicant: Harry Nowicki and Co.

Counsel for the respondent: M. Hickey

Solicitor for the respondent: Holding Redlich

JUDGE1

On 10th May 1990, the applicant filed with the Court an application pursuant to s.218 of the Industrial Relations Act 1988 ("the Act"). The applicant seeks an inquiry into irregularities which are alleged to have happened in relation to elections in the Victorian Branch of the Pastrycooks, Bakers, Biscuitmakers and Allied Trades Union ("the Union"). The elections were for the offices of branch president, branch vice- president and nine ordinary members of the branch committee of management. In accordance with the Act, the elections were conducted by an officer of the Australian Electoral Commission. Nominations closed at 12.00 noon on 11th April 1990. No more nominations were received than the number of offices to be filled, so all persons nominated were declared elected on 26th April 1990.

1. In his application, the applicant alleged two irregularities as follows:
   "1.In breach of Rule 8(d)(ii) of the
   

Rules of the branch the returning officer failed to give notice of the calling of nominations for the election by inserting a notice in the appropriate official publication of the union of

(sic.) branch or by circular to all members of the branch.

2.On or about 4th April, 1990, a

member of the branch, Rada Josevska, completed a nomination form in the election for the position of ordinary member of the Committee of Management of the branch and the Secretary-Treasurer of the branch, G. Richards collected it and undertook to deliver it to the returning officer. In fact, Richards did not deliver it to the returning officer."

1. At the first directions hearing on 21st May, the question was raised whether the second of these allegations, if established, would be capable of amounting to "an irregularity...in relation to the election", within the meaning of s.223(1) of the Act. Ordinarily, where such an issue is raised, the Court would proceed to hear all the necessary evidence, and to make findings of fact, and then to determine whether the facts so found were capable in law of amounting to an irregularity. In the case of an application for an inquiry into an election pursuant to the Act, the Court may be required to ascertain whether it has jurisdiction to inquire into the allegations made before it embarks on such an inquiry. In R. v. Gray; Ex parte Marsh (1985) 157 CLR 351, the High Court of Australia held that this Court had been in error in reaching a conclusion that it could inquire into certain allegations made by an applicant for an inquiry into elections pursuant to the now repealed Conciliation and Arbitration Act 1904. Having so held, the High Court then considered whether a Writ of Prohibition should issue to this Court, restraining it from proceeding further with the purported inquiry. The six justices who constituted the High Court were divided evenly on that question. The result was that a Writ of Prohibition issued on a statutory majority, the then Chief Justice favouring that view. In Cambourn v. Federated Engine Drivers and Firemens Association of Australasia (Federal Court of Australia, 9th February 1990, unreported), Pincus J. dealt with an application for an election inquiry, in which there were some allegations which gave rise to doubt as to whether the Court had jurisdiction to inquire into them. His Honour considered the judgments of the various justices in Gray's case. At pp 4-5, his Honour said:
   

"I have, of course, no concluded view, but the decision in Gray's case seems to me to furnish some authority for the proposition that if there is room for argument about jurisdiction, the Court should determine that point in the first place, and not leave it until all the evidence is in, as Gray J. apparently proposed to do. The prudent course, in my opinion, is to dispel any doubts about jurisdiction at the outset, or alternatively, to hold that in respect of one or more matters, there is no jurisdiction and to exclude those matters from the scope of the inquiry.

I propose to direct - although to do so may be contrary to the view of Brennan J. just referred to - firstly, that the applicant give the fullest particulars available of the alleged irregularities, and secondly, that affidavits be filed on behalf of the applicant setting out the evidence relied on to show that the irregularities exist and that they are within the scope of s.247. The purpose of requiring the affidavits to be filed at this stage rather than later is not to reach any conclusion as to whether the facts stated in them are correct, but simply to enable the Court to be informed in as much detail as is practicable precisely what case is advanced by the applicant. If there is any remaining doubt about jurisdiction, I shall invite submissions on the point at that stage."

1. In conformity with the reasoning of Pincus J., directions were given on 21st May in the present case for the filing and service of points of contention of fact and law and affidavits by the applicant. The inquiry was then adjourned until 7th June for further directions and arguments as to whether the applicant's second allegation was capable of amounting to an irregularity. On that day, Mr Borenstein of counsel appeared for the applicant, Ms Hickey of counsel appeared for the Union, Mr Richards (the secretary-treasurer of the Victorian branch of the Union) and Mr Logie (the successful candidate for the office of branch president), and Mr Bell of counsel appeared for the returning officer and the Australian Electoral Commission.

2. Because it is not the function of the Court to make findings of fact at this stage, it is necessary to set out in some detail the allegations which the applicant makes. In determining whether the Court has jurisdiction to inquire into an alleged irregularity, the best possible light for the applicant must be cast upon the way in which the allegations are framed and upon the evidence in any affidavits on which the applicant relies.

3. In his application, the applicant specified the following relevant facts upon which he relied with respect to his second allegation:
   "4.Rule 8(d)(ii) of the rules of the branch provides:
   

"Nominations shall be called by the Returning Officer by notice inserted in the appropriate official publication, of the Union of

(sic.) Branch or by circular to all members of the Branch. Nominations shall be in writing, signed by the nominee and by two nominators (who shall be financial members of the Branch) and shall be delivered to the Returning Officer at the head office of the Branch not later than eight weeks prior to the June General Meeting of the Branch in the year of the election." .......

7. A member of the branch, Rada Josevska ("Josevska"), wished to nominate in the election for Committee of Management was prevented from doing so by the actions of Richards.

8. On or about 4th April, 1990 Richards came to Josevska's workplace and Josevska told Richards that she wished to nominate in the election for the Committee of Management. Richards completed nomination form for Josevska and she signed it. The nomination form was then taken by Richards for delivery to the Returning Officer. Josevska subsequently discovered that the nomination form had not been delivered by Richards to the Returning Officer and she had accordingly been deprived of the opportunity of contesting the election."

The relevant contentions of the applicant in his contentions of fact and law were as follows:

"5. Branch rule 6(d) provides

that the Secretary/Treasurer shall be the Executive Officer of the branch and shall be "generally responsible for the proper administration of the Branch."

6. The position of Secretary/Treasurer

of the branch is currently held by Gregory Richards ("Richards").

.......

1. On or about 4th April, 1990 Richards

met with another member of the branch, Rada Josevska ("Josevska") at her workplace. Josevska told Richards that she wished to nominate in the election. Richards had her sign a nomination form and then took it with him. Richards represented to Josevska that he would lodge the nomination form for Josevska.

1. Richards collected nomination forms

from other nominees, Brenda Kauss and Christopher James Goodrick, in similar fashion.

1. Some of the nomination forms which

Richards collected as aforesaid were lodged with Nellor and Josevska's was not. Richards lodged only one nomination form for each position to be filled in the election."

The applicant also filed and served affidavits of Brenda Kauss, Christopher James Goodrick and Rada Josevska. In her affidavit, Ms Kauss recounts a telephone conversation she had with Mr Richards, in which Mr Richards assured her that she and Mr Goodrick would be on the committee. Mr Richards came to the place where Ms Kauss worked on 5th April, and offered her a nomination form to sign. She signed it and Mr Richards said he would take care of the form and took it away with him. She was subsequently informed that she had been elected unopposed to the committee of management.

1. Mr Goodrick in his affidavit also recounts that Mr Richards came to the place where he and Ms Kauss worked on 5th April. Mr Richards offered Mr Goodrick a form to sign and Mr Goodrick signed Mr Richards took the form away and said he would take care of it. Mr Goodrick was subsequently informed that he had been elected unopposed to the committee of management.

2. Ms Josevska's affidavit contains evidence of a visit by Mr Richards and an organiser of the Victorian branch of the Union to her place of work on 4th April. After a stop work meeting had been held, Ms Josevska asked Mr Richards whether she could nominate for the committee in the elections. Mr Richards said that she could, and then wrote her name, address and phone number on a form and asked her to sign it. He told her that he would take care of the form and took it away with him. To the best of her recollection, Ms Josevska's form was already filled in so far as the requirements for nominators were concerned, although she had not indicated to him at any time prior to the conversation on 4th April that she wished to nominate.

3. An affidavit filed by the returning officer, pursuant to a direction of the Court, contains evidence that no nomination was received from Ms Josevska.

4. The word "irregularity" is defined in s.4(1) of the Act in the following terms:
   

"Irregularity", in relation to an election or ballot, includes:

(a) a breach of the rules of an organisation or branch of an organisation; and

(b) an act or omission by means of which:

(i) the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii) a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered;"

It was not contended that this definition should be construed differently from the similar statutory definition which was considered by the High Court in Gray's case and in Re Collins; Ex parte Hockings (1989) 87 ALR 656. In the former case, at p 364-365, Gibbs C.J., with whom all other members of the Court agreed on this point, said:

"On behalf of the prosecutors it was submitted that the definition of "irregularity" in s.4(1) is exclusive as well as inclusive, or, in other words, that "includes" has the same effect as "means and includes". It is true that the word "includes" may have that meaning if the provision in which it appears reveals that intention: see Y.Z. Finance Co. Pty. Ltd. v. Cummings (1964) 109 CLR 395, at pp 398-399, 402. Most of the definitions contained in s.4(1) of the Act are prefaced by the word "means", although a few are prefaced by "includes"; in one definition (that of "Judge") both "means" and "includes" are used in contrasted senses. It would appear from the context provided by s.4(1) that the Parliament intended the definition of "irregularity" to be inclusive and not exclusive, or in other words that the definition was intended to comprehend such things as the word would ordinarily mean as well as those specifically included. Although the things specifically included in the definition are so widely defined that at first it does not seem easy to envisage other things which would not come within the specific terms of the definition but would still be irregularities in the ordinary meaning of the word, it is possible to suggest examples for instance, a threat made contrary to s.171(2) which induced the withdrawal of a candidature, or a case (suggested by Gray J.) in which, without breach of the rules, a returning officer failed to make available any reasonable facility for the receipt of nominations, so that persons who desired to be candidates were prevented from nominating."

Further, at pp. 367-368, his Honour said:

"According to the Oxford English Dictionary "irregularity", in its relevant sense, means "want of conformity to rule; deviation from or violation of a rule, law, or principle...deviation from what is usual or normal". The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election."

1. It was made clear in Re Collins that, although a breach of the rules of an organisation may be characterised properly as an irregularity, no jurisdiction exists to inquire into such a breach, unless it is "in relation to" an election or ballot. In the course of her judgment, with which Toohey and McHugh JJ. expressed substantial agreement, Gaudron J. at p 661 referred to the provision of the repealed Act which corresponded with the present section 223(4) and said:
   

"The sub-section recognises that an act or omission constituting an irregularity may be such that, ex post facto, it can be seen that it has not or will not affect the election result. But, it also impliedly recognises that an irregularity is constituted by an act or omission which has a tendency to affect an election result and the impact or likely impact of which can be ascertained in the course of an inquiry."

1. Reference was also made to the judgment of this Court, reported under the name of Re Bragg; Ex parte Australasian Society of Engineers South Australian Branch (1985) 6 FCR 304. In that case, Keely J. held (consistently with the subsequent decision of the High Court in Gray's case) that the distribution of campaign literature likely to mislead members of a registered organisation in making their decisions as to how they would vote in elections within the organisation did not constitute an irregularity. In the course of his judgment, Keely J. examined the records of the parliamentary debates in respect of the passage of the original election inquiry legislation in 1949, for the purpose of determining what was the "mischief" which the legislation was designed to cure. In those debates, there were references to "intimidation and malpractice" in elections in registered organisations. See pp 313-317.

2. In his submissions on behalf of the applicant, Mr Borenstein did not contend that Mr Richards acted as agent for the returning officer in accepting a nomination form from Ms Josevska. In my view, the evidence of Ms Josevska discloses that Mr Richards acted as her agent, for the purpose of conveying her nomination to the returning officer. Unless it can be shown that Mr Richards was subject to some particular duty in that respect, he was in no different position from that of any other person requested to convey a nomination form to a returning officer. Indeed, his position was no different from that of the Australian Postal Commission in a case in which a candidate posts a nomination. It is the responsibility of a candidate to ensure that his or her nomination is lodged with the returning officer in the correct form, at the correct place and by the correct time. There can be no irregularity for the purposes of the Act merely by the failure of some means chosen by a candidate to convey the nomination form.

3. Mr Borenstein argued that the facts alleged amounted to an irregularity on a number of bases. He contended for a breach of the rules, relying on the obligation imposed on the secretary-treasurer of the branch by rule 6(d) of the rules of the Victorian branch of the Union to "be generally responsible for the proper administration of the Branch". His argument was that elections for officers within the branch, conducted under rule 8 of the rules of the branch, were part of the administration of the branch, and that rule 6(d) imposed on the secretary-treasurer of the branch a duty not to hinder or obstruct the conduct of an election. The argument may be good insofar as it suggests that the secretary/treasurer has a duty to refrain from doing anything which would interfere with the proper conduct of an election. It falls down when the attempt is made to extend this duty to acting positively to assist the process of nomination of a particular candidate. Nowhere in the rules is to be found any such positive obligation attaching to the secretary/treasurer. No such obligation is implicit in the rules; if it were, an irregularity might arise if the secretary/treasurer did all within his or her power to ensure the lodgment of a nomination, but failed for reasons beyond his or her control. No case for breach of any rule is made out.

4. Mr Borenstein also attempted to argue that the failure of Mr Richards to lodge Ms Josevska's nomination form amounted to an act or omission by which the full and free recording of votes by all persons entitled to record votes was prevented. The argument was that members were unable to vote for Ms Josevska in the absence of her nomination having been lodged, so that an irregularity of the kind referred to in paragraph (b)(i) of the statutory definition had occurred. This argument cannot be accepted. The relevant part of the statutory definition directs attention to the "recording" of votes, i.e. the process by which those eligible cast their votes so that they may be counted, not to the process of establishing who will be the candidates for whom the eligible voters are entitled to cast votes. This proposition flows from the decision of the Court in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable (1979) 40 FLR 418. In that case, certain persons desirous of nominating in elections in a registered organisation were advised by the returning officer that they would not be eligible. They refrained from lodging nominations. An attempt was made to institute an inquiry into the relevant elections, based on the allegation that an irregularity occurred by the failure of the persons concerned to lodge nominations as a result of incorrect advice. On the assumption that the advice was incorrect, Northrop J. held that there was no reasonable ground for an inquiry, because no finding of an irregularity could be made on the facts alleged. In particular, at p 425, his Honour held that there had been no act or omission whereby the full and free recording of votes by all persons entitled to record votes had been prevented or hindered. In my view, that decision is indistinguishable in principle from the present case, and is correct. If a defect in the nomination process occurs, leading to the absence of a nomination for an intended candidate, that does not amount to a defect in the process of recording votes.

1. Mr Borenstein also sought to rely on so much of the ordinary meaning of the word "irregularity" as is not covered by the statutory definition. He attempted to equate the word "irregularity" with the word "malpractice", relying on the passage in Bragg's case, to which I have referred. The argument was that the process by which Mr Richards is alleged to have approached Ms Kauss, Mr Goodrick and Ms Josevska, and to have claimed to be able to determine who would be members of the committee of management, was consistent with a plan to ensure that certain nominations only would be lodged with the returning officer and no excess ones would be. The taking of nomination papers from those three persons, and the failure to convey to the returning officer that of Ms Josevska was said to be the execution of the plan. There is grave danger in attempting to substitute the word "malpractice" for the word "irregularity", simply by reason of the use of the former word in a ministerial speech on the passage of a bill through parliament. The word "malpractice" does not add to the certainty of meaning of the word "irregularity". It may be true that the mischief which the legislation was designed to cure was the occurrence of malpractice in trade union elections, but that conclusion gives no clue as to the extent or nature of the malpractices at which the legislation was aimed. There was no evidence of any departure from long standing practice, such as occurred in Re Election for Office in Australian Institute of Marine and Power Engineers (1973) 20 FLR 407. Ms Josevska was not in any sense deprived of her right to stand for office. She only suffered from the failure of the means which she had chosen to convey her nomination to the returning officer.

2. Finally, Mr Borenstein argued that, by dealing with her nomination otherwise than in accordance with his authority to deal with it, Mr Richards had committed an offence under one or more provisions of the Crimes Act 1958 (Vic.) or under s.315(1)(b) of the Act. This last provision is as follows:
   

"315(1) A person shall not, without lawful authority or excuse, in relation to an election for an office in, or in a branch of, an organisation: ...

(b) destroy, deface, alter, take or otherwise interfere with a nomination paper, ballot paper or envelope;"

There has been much authority on what amounts to a taking for the purposes of the common law of larceny. More recent authority on statutory offences makes it clear that a bailee can commit an offence, an element of which is the taking of the article the subject of the bailment, if he or she deals with the article otherwise than in accordance with the terms of the bailment. In R. v. Wibberley (1966) 2 QB 214, the Court of Criminal Appeal held that a truck driver was properly convicted of the offence that he did take and drive away a vehicle, in circumstances in which the vehicle belonged to his employer and he was authorised to drive it on condition that he left it at the employer's depot. Instead, he took it home and then drove it to another place for his own purposes. It follows that an offence under s.315(1)(b) would be committed if a person were given a nomination paper with instructions to deal with it in a certain way, and then dealt with it otherwise than in accordance with those instructions.

1. Ms Hickey argued that s.315(1)(b) had no application at all to the document signed by Ms Josevska, on the ground that the document could not constitute a nomination paper until such time as it came into the possession of the returning officer. No warrant appears for such a restricted meaning. On the contrary, both the wording of s.315(1)(b) and its context suggest a much broader meaning. Given that the purpose of the provision is to protect the process of nomination, it would be strange if no protection were given from the destruction, defacing or alteration of a nomination paper until after the returning officer had cognizance of its contents. The phrase "nomination paper" also appears in s.315(1)(f), which makes it an offence to forge a nomination paper, or to utter one knowing it to be forged. Plainly, such a provision is designed to prevent the forging of a nomination document before it is transmitted to the returning officer, and the uttering to the returning officer of such a forged document. There is no reason to suppose that the phrase is intended to have any different meaning in paragraph (f) from that which it bears in paragraph (b). Theft of a completed nomination paper, in order to prevent it reaching its intended destination, is at the very heart of the purpose of s.315(1)(b).

2. It is to be noted that, by virtue of the opening words of s.315(1), an offence of taking a nomination paper is only committed if the act is done "in relation to an election". This same phrase appears in s.223(1) of the Act as delimiting the area in which the Court has jurisdiction to inquire into whether an irregularity has happened. The unauthorised taking of a nomination paper after the completion of the election in which it was lodged would probably not be an offence under s.315(1)(b), on the ground that it was not "in relation to an election". Similarly, it would be no concern of the Court, acting under s.223, to inquire into such a taking. When such a taking is alleged to have occurred prior to the close of nominations, and may have been done for the purpose of ensuring that a nomination did not reach the returning officer, it must be considered to have been "in relation to" the relevant election, both for the purpose of s.315 and for the purpose of s.223.

3. It is on this basis that I am of the view that the second allegation made by the applicant in the present case is an allegation which, if made out, could lead properly to a finding that an irregularity happened in relation to the subject election. I am fortified in this conclusion by reference to the opinion of Gibbs C.J. in Gray's case, at p 365, that a threat, made contrary to what is now s.315(2), which induced the withdrawal of a candidature, would be an irregularity.

4. The inquiry will therefore proceed in relation to both irregularities alleged.