Kelly v Amalgamated Metal Workers' and Shipwrights' Union
[1981] FCA 207
•20 NOVEMBER 1981
Re: IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904
And: IN THE MATTER of an Application by Roderick Terence Kelly for an Inquiry
into an election for offices in the Amalgamated Metal Workers' and
Shipwrights' Union (1981) 56 FLR 124
No. 38 of 1981
Industrial Law - Conciliation and Arbitration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Sheppard J.(1)
CATCHWORDS
Industrial Law - elections for offices in registered organisation - calling of nominations - nominations called for orally from floor of branch meetings - compliance with regulations and rules of organisation - procedure not in accordance with requirements of regulations - Conciliation and Arbitration Act 1904, ss.133, 133A, 140, 141, 159, 164 and regulations 146AB to 146AE inclusive.
Conciliation and Arbitration - Registered organization - Election for offices - Inquiry - Determination of time and place for calling nominations - Advertisement calling for nominations - Requirements of - Union journal calling for nominations not fully circulated - Form of nominations - Nominations called for orally from floor of branch meetings - Not in writing - Irregularity - Discretion - Conciliation and Arbitration Act 1904 (Cth), ss. 133, 133A, 140, 141, 159, 164, 165 - Conciliation and Arbitration Regulations 1956, regs. 146AB, 146AC, 146AD, 146AE.
HEADNOTE
The applicant sought an inquiry pursuant to Pt IX of the Conciliation and Arbitration Act 1904 into an election for offices in a registered organization alleging that certain irregularities had arisen in their conduct. That was so because the procedure adopted by the returning officer provided only for the calling of nominations from the floor of the meeting. That was not a permissible method of calling for nominations.
Held: (1) Irregularities had occurred because - (a) The returning officer had not validly determined in accordance with the Conciliation and Arbitration Regulations reg. 146AC the times and dates of the commencement and close of the period for lodging nominations and the place for lodging nominations. (b) The advertisement containing details of the elections published in purported compliance with reg. 146AD was defective as it did not validly set out (i) the form in which nominations were to be made; (ii) the place for lodging nominations; (iii) the times and dates of the commencement and close of the period for lodging nominations. (c) The provisions of the organization's rules as modified by reg. 146AD (3) were not complied with in that (i) the notice in the relevant union journal informing members of the opening of nominations was not a notice in accordance with reg. 146AD (1); (ii) the distribution and circulation of that journal was not substantially as envisaged by the rules. (d) The relevant nominations which had not been made in the handwriting of the nominators were not in accordance with the requirements of the rules and of reg. 146AE (1) (a).
(2) These irregularities were irregularities within s. 4 of the Conciliation and Arbitration Act because if nominations were not called in accordance with the relevant regulations and rules there could be no full and free recording of votes.
Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979), 28 ALR 330, distinguished.
(3) Although the applicant's evidence that he did not appreciate when the nominations would be called could not be accepted, the failure to carry out the proper procedure for calling nominations might, as a real or distinct possibility, have affected the result of the election within s. 165 (4) of the Act.
(4) Although the court had a residual discretion under s. 165 (3) of the Conciliation and Arbitration Act to refuse to act when irregularities were established, in this instance the election should be declared void.
HEARING
Sydney, 1981, October 20-22; November 12, 20. #DATE 20:11:1981
APPLICATION.
The applicant sought an inquiry pursuant to the Conciliation and Arbitration Act 1904 into election for certain offices in a registered organization.
D. M. Ryan Q.C. and N. Mushin, for the applicant.
M. J. R. Clarke Q.C. and J. W. Shaw, for the respondents.
Cur. adv. vult.
Solicitors for the applicant: Gill, Kane & Co.
Solicitors for the respondents: Turner Freeman.
T. J. GINNANE
ORDER
THE COURT HAVING DETERMINED that irregularities have occurred in or in connection with the elections with the Amalgamated Metal Workers' and Shipwrights' Union for the offices of National President, Assistant National Secretary and National Organiser Division 2 which elections were completed on the 18th day of November 1980 AND THE COURT BEING OF OPINION having regard to such irregularities that the result of the said elections may have been affected thereby IT IS ORDERED AND DECLARED:
That the said elections be and are hereby declared to be void.
That the Industrial Registrar take all necessary steps to conduct an election for each of the said offices from and including the fixing of dates for the opening and closing of nominations, being 8 March, 1982, and 21 March, 1982, respectively with voting to commence not less than 12 weeks after the closing date for nominations.
That until the completion of the elections hereby directed to be conducted by the Industrial Registrar, Mr. R. Scott, Mr. L. Carmichael and Mr. W. Martin continue to occupy and perform the duties of the respective offices as if they had been duly elected thereto in accordance with the rules of the organisation.
That upon completion of the said elections the candidates declared elected to each of the said offices shall hold office for the period for which they would have held office if they had been elected to take up their offices in March 1981 and that the operation of the Rules of the organisation be modified accordingly.
That there be liberty to apply.
JUDGE1
This is an application by Roderick Terence Kelly for an inquiry by the Court into a claim made by him that there have been irregularities in or in connection with elections for offices in the Amalgamated Metal Workers' and Shipwrights' Union. Mr. Kelly is a member of the Prahran branch of the Union.
The application is brought pursuant to s.159 of the Conciliation and Arbitration Act 1904. Pursuant to s.160 of the Act the Industrial Registrar decided to "grant the application and refer the matter to the Court". The powers of the Court in relation to the application are those provided for in s.165 of the Act to which I shall later refer.
The offices in question are those of National President, Assistant National Secretary and National Organiser of Division 2. Nominations for the offices were called at branch meetings of the Union held in June 1980. Amongst the nominations received were those of Mr. Scott for National President, Mr. Carmichael for Assistant National Secretary and Mr. Martin for National Organiser of Division 2. Other nominations were received but no other nominee was willing to stand for election with the result that the three gentlemen to whom I have referred were elected unopposed to the offices for which they were nominated.
In order to understand the claims which are made by the applicant it is necessary to refer to a number of the provisions of the Act and the Regulations made thereunder, to the Rules of the Union and to evidence concerning what appeared in certain of the Union's publications and in relation to certain other matters.
The Legislation
Part VIII of the Act is entitled "Registered Organisations". Section 132 provides for the registration of organisations and s.133 for the inclusion in the rules of organisations of certain provisions in relation to the holding of elections. Amongst other things s.133 requires that the rules of an organisation are to provide for the election of the holder of each office either by a direct voting system or a collegiate electoral system. The former system is that provided for in this case. By definition (s.4(1)) it is a method of election in which all financial members are eligible to vote.
Additionally the rules must provide for the conduct of every such election (including the acceptance or the rejection of nominations) by a returning officer not being the holder of any other office in the organisation. The rules must also provide that, if the returning officer finds a nomination to be defective, he shall, before rejecting the nomination, notify the person concerned of the defect and, where it is practicable to do so, give him the opportunity of remedying the defect within such period as is applicable under the rules, which is to be, where practicable, not less than seven days after his being so notified. Elections are to be by secret ballot.
The section goes on to specify a number of matters which are to be provided for in relation to the conduct of the election and provides that the rules shall be such as to ensure, as far as practicable, that no irregularities can occur in connection with such an election.
Section 133AA provides that every election by a direct voting system for an office within an organisation which is, inter alia, the office of president, assistant-secretary or other executive officer, shall be by secret postal ballot. "Postal ballot" is defined in s.4(1), but it is unnecessary to refer to the terms of the definition. The section also provides that the regulations may make provision for and in relation to the conduct of an election in accordance with the requirements of the section in the case of an election in respect of which the rules of the organisation do not provide for a secret postal ballot. The section, and the regulations made for the purposes of the section, are to have effect notwithstanding anything contained in the rules of an organisation. Section 133AA was inserted into the Act by s.13 of the Conciliation and Arbitration Amendment Act 1976 (No. 64 of 1976) which came into force on 1 March, 1978.
Regulations made for the purposes of s.133AA, although gazetted on 30 August, 1976, also came into force on 1 March, 1978. They are contained in Part V AA of the regulations made under the Act, which Part is entitled "Secret Postal Ballot". Regulation 146AA contains some definitions to which it is unnecessary to refer except to note that the word "election" means an election to which s.133AA of the Act applies, "being an election for an office within an organisation the rules of which do not provide for a secret postal ballot for that office". Regulation 146AB provides that where provision is made in respect of matters relating to the conduct of an election for an office within an organisation, the rules of the organisation shall not apply in relation to those matters except to the extent to which those rules so apply by virtue of Part V AA of the regulations.
Regulations 146AC, 146AD and 146AE are as follows:
"146AC. (1) The Returning Officer shall determine the times and dates of the commencement and close of the period for lodging nominations of candidates for election for an office having regard to -
"(a) the date of expiration of the term of office of the holder of the office;
(b) the time required to lodge nominations;
(c) the time required to complete the election; and
(d) the provisions of the rules of the organization relating to the times and dates of the commencement and close of the period for lodging nominations in respect of the election.
(2) The Returning Officer shall determine the place for lodging nominations of candidates for election.
146AD. (1) The Returning Officer shall, within the period of 21 days before the date of commencement of the period for lodging nominations of candidates for an election for an office within an organization, cause to be published in a newspaper or newspapers a notice setting out -
(a) the name of the organization;
(b) the title of the office;
(c) the form in which nominations are to be made;
(d) the place for lodging nominations;
(e) the times and dates of the commencement and close of the period for lodging nominations,
and inviting nominations of persons, eligible for election for the office under the rules of the organization, to stand as candidates for election for the office.
(2) The Returning Officer shall, in respect of an election for an office within an organization, determine the newspaper or newspapers in which the notice referred to in sub-regulation (1) shall be published having regard to -
(a) the region to which the functions of the office relate;
(b) the provisions of the rules of the organization relating to the publication of notices inviting nominations of candidates for election to that office.
(3) Where the rules of an organization provide for a notice inviting nominations of candidates for election to be published in a manner other than in a newspaper, the Returning Officer, in addition to publishing the notice referred to in sub-regulation (1) in the manner provided by that sub-regulation, shall, if practicable, publish the notice referred to in that sub-regulation in the manner provided by those rules.
"146AE. (1) A person is not eligible for election for an office -
(a) where the rules of the organization provide for the nomination of a candidate for election for that office to be made in writing - unless the nomination is in accordance with the rules of the organization; or
(b) where those rules do not so provide - unless the nomination is in writing and is signed by the person and by the number of persons, qualified under those rules to nominate a candidate for that office, that is equal to the number of nominators (if any) that is required, under those rules, for a nomination for that office.
(2) Where the Returning Officer finds that a document lodged at the place and within the period determined by the Returning Officer under regulation 146AC and purporting to be the nomination of a person as a candidate for an election for an office within an organization is not a nomination in accordance with the provisions of sub-regulation (1), the Returning Officer shall, if practicable, give notice to the person, as soon as practicable, by telegram of the reasons why the document is not a nomination in accordance with those provisions and, where the person is eligible for election for the office under the rules of the organization, the Returning Officer shall, in the telegram, notify the person that his nomination as a candidate for the election may be lodged at that place -
(a) within a period of 7 days after the date of sending the telegram; or
(b) where, under the rules of the organization, a defective nomination may be remedied within a period of longer than 7 days after the close of the period for lodging nominations - within that longer period.
(3) A person is not eligible for election unless the nomination of the person as a candidate for election is lodged at the place determined by the Returning Officer under sub-regulation 146AC (2) and within the period for lodging nominations under sub-regulation 146AC (1), or under sub-regulation (2), whichever is applicable."
Regulation 146AF provides that where on the expiry of the period for lodging the nomination of a candidate for an election for an office, only one candidate is nominated, the returning officer shall declare that the candidate has been elected to that office. Succeeding regulations in Part V AA provide for the roll, a post box for ballot papers, the issue of ballot papers and a number of other consequential matters to which it is not relevant to refer.
There are further provisions of the Act to be mentioned. Section 140(1)(c) provides, inter alia, that the rules of an organisation shall not impose upon members of an organisation conditions, obligations or restrictions which, having regard to the objects of the Act and the purposes of the registration of organisations under the Act, are oppressive, unreasonable or unjust. Section 140(2) provides that a member of an organisation may apply to the Court for an order under s.140 in respect of the organisation. Section 140(5D) provides that an order under the section may declare that the whole or a part of a rule of an organisation contravenes s.140(1) or that the rules of an organisation contravene it in a specified respect. Under s.141 (sub-ss.(1) and (1G)) a member of an organisation may apply to the Court for an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules. The Court has jurisdiction to hear and determine an application for such an order.
I have already referred to s.159 of the Act pursuant to which this application is made. The section is in Part IX entitled "Disputed Elections in Organisations". Section 165(1) provides for the functions and powers of the Court at an inquiry under s.159. The Court is to inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary. If the Court finds that an irregularity has occurred, the Court may, subject to sub-section (4), make one or more of a number of specified orders. These include an order declaring the election, or any step in or in connection with the election, to be void, an order declaring a person purporting to have been elected not to have been elected and an order directing the Industrial Registrar to make arrangements, in the case of a completed election, for any step in or in connection with the election (including the submission of nominations) to be taken again or for a new election to be held. It is to be observed that the exercise of the various powers which the Court has is conditioned upon the Court finding that an irregularity has occurred. It is also to be observed that the Court's power is introduced by the words "the Court may".
Section 165(4) is as follows:
"The Court shall not declare an election, or any step taken in or in connexion with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities."
Finally, in relation to the legislation, it is necessary to note the definition of "irregularity" in s.4(1) of the Act which begins with the words, "In this Act, except where otherwise clearly intended . . . . . ". The definition of "irregularity" is as follows:
"'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby 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"
The Rules
Before referring to the rules it should be noted that the union is an amalgamation of previously existing unions each of which was an organisation registered under the Act. The amalgamation of the Amalgamated Engineering Union, the Boilermakers' and Blacksmiths' Society of Australia and the Sheet Metal Working Agricultural Implement and Stovemaking Industrial Union of Australia was effected in 1972, the name of the union becoming the Amalgamated Metal Workers Union. In 1976 there was a further amalgamation when the Federated Shipwrights & Ship Constructors' Association was merged with the Amalgamated Metal Workers Union, the name of the Union then becoming the Amalgamated Metal Workers' and Shipwrights' Union. The union is a registered organisation under the Act. Its rules took effect in December 1976. Amendments to the rules were made in 1977 and 1978. Amongst the amendments which were made were amendments to take account of the introduction into the Act of s.133AA and the coming into force of the regulations contained in Part V AA of the Regulations.
Rule 1 of the rules, to the detail of which it is unnecessary to refer, provides for the name, objects and constitution of the union. Rule 2 provides for elections and voting. The opening provisions of Rule 2.1 are as follows:
"All elections within the Union for an office as defined in Section 133AA of the Conciliation and Arbitration Act shall be conducted in accordance with the provisions of the Act and Regulations.
All other elections in the Union shall be by secret ballot vote in accordance with these Rules.
Election for all or any office prescribed by these rules shall be conducted by a Returning Officer. The duties of the Returning Officer shall be:"
There then follow a number of provisions to which it is unnecessary to refer.
Rule 2.2 of the Rules is as follows:
"Candidates for all fulltime office shall be nominated not less than 12 weeks before the ballot voting commences. A member qualified for any of the offices listed in this rule shall be nominated by any other financial member on the prescribed form provided at the Branch, but any member so nominated must accept nomination in the manner prescribed by these rules before a ballot takes place."
Rule 2.3 provides that acceptance of nomination for election to any office shall be in the candidate's own handwriting on an acceptance of nomination form prescribed by the National Council. Nominations are to be accepted "within the date specified on the form unless the date be extended for good reason by the Returning Officer conducting the ballot". The form referred to is the form provided for in Rule 2.2, not the acceptance of nomination form referred to in Rule 2.3.
Rule 2.6 provides for "the qualifications" to be held for particular offices. The relevant provisions of Rule 2.6 are as follows:
"The following qualifications must be satisfied in the case of the particular office referred to hereinafter.
NATIONAL PRESIDENT
(a) Any financial member of any Branch of the Union may nominate a member qualified in accordance with these rules at the Branch meeting for the fulltime office of National President. The person elected shall hold office for a period of four years. All members of the Union financial in accordance with these rules shall be entitled to vote in the ballot for the election of National President.
. . . . . . . . . . . .
NATIONAL SECRETARIES and
ASSISTANT NATIONAL SECRETARIES
(b) The qualifications and conditions for the office of Joint National Secretary and Assistant National Secretary shall be the same as apply to the National President.
NATIONAL ORGANISERS
(c) The qualifications and conditions for the office of National Organisers shall be the same as apply to the National President."
Rule 5 provides for the National Council of the Union. It is comprised of the National President, the National Secretaries, the Assistant National Secretaries, the National Organisers and a number of other officials. Rule 6 provides for the powers of the National Council. It is the committee of management of the Union and, subject to the powers and decisions of the National Conference (provided for in rule 3) has the care, control, superintendence and management in all respects of the affairs, business, funds and property of the Union. There follow in rules 7 and 8 provisions concerning meetings of the National Council and duties of national officials including the National President, the Assistant National Secretaries and National Organisers.
Rule 12 provides for the election of full time national officials. The rule is as follows:
"1. The National Council shall determine the date for election to these positions.
2. The National Returning Officer shall by notice in the Union Journal and circular to all Branches inform members of the opening of nominations for these positions in time to comply with the provisions of Rule 2.
The date for the receipt of nominations and acceptance shall be decided by the National Returning Officer, and such dates shall be fixed having in mind the provisions of Rule 2.
The National Returning Officer shall also arrange for a supply of prescribed nomination forms to be available for Branches.
He shall notify the Joint National Secretaries of the result of all elections for National full-time positions."
Rule 36 provides for branches of the Union and for meetings of those branches. Branches may be established and their areas defined by the State Councils, subject to the approval and other powers of the National Council. Every member of the Union is to be attached to a branch which, except in special circumstances determined by the State Council, shall be the branch established in the area in which he resides. Rules 36.3 and 36.4 are as follows:
"3. A meeting of the members of each Branch shall be held monthly for the transaction of its business. Such meetings shall be held between the 8th and 21st day of each month inclusive. No intoxicating drinks shall be allowed in the room until the conclusion of the discussions of the meetings. No Branch shall be removed from one place to another unless by consent of a majority of the members voting at a meeting specially summoned for that purpose.
4. The time of commencing and finishing all Branch meetings shall be 7.30 p.m. to 10 p.m. Branches shall have the discretionary power to commence sooner or close later if these hours be convenient. Branches shall have the power to change their night of meeting if such night falls on a holiday, such alteration to be decided on not less than four weeks previously.
The Branch Meeting in the months of March, June, September and December shall be Star Nights in each quarter."
The Evidence
The persons elected to the offices in question were the previous holders thereof. Mr. Scott's previous term of office as National President expired on 5 March, 1981; Mr. Carmichael's term as Assistant National Secretary expired on 22 March, 1981, and Mr. Martin's term as National Organiser of Division 2 on 28 March, 1981. Regulations 136C and 136E required the lodging by the Union of a return of information concerning elections to be held and the publication of information concerning those elections by the Industrial Registrar. Pursuant to those regulations there were inserted by the Industrial Registrar on 6 October, 1979, advertisements in a number of newspapers circulated in each of the States and Territories of Australia. The advertisement in each case was headed with the name of the Union and, amongst other things, notified an election for each of the offices here in question. The advertisement stated that nominations would open on 8 June, 1980, and close on 21 June, 1980.
Further advertisements, this time inserted by the Union, were published in newspapers circulating in each of the States and Territories. The advertisements were published on 20 May, 1980, and were in the following form:
"AMALGAMATED METAL WORKERS
& SHIPWRIGHTS' UNION
CALLING OF NOMINATIONS
All members of the above organisation are hereby advised that nominations will be called for the undermentioned positions at the June 1980 meeting of the respective branches of the Union
* NATIONAL PRESIDENT
* JOINT NATIONAL SECRETARY
* ASSISTANT NATIONAL SECRETARY
* NATIONAL ORGANISER DIVISION 2
Any financial member may nominate any other member qualified in accordance with the rules of the Union for this position on the form provided at the Branch.
The June meeting of the respective branches summoned for this purpose will be held on the date between the 8th and 21st June, 1980, as specified on each member's quarterly Membership Contribution Card.
Nominations for this position must reach the Returning Officer at the address shown here-under not later than 3 pm on the 7th July, 1980.
Authorised by:
J. P. Devereux
National Returning Officer,
PO Box M300,
SYDNEY MAIL EXCHANGE, 2012."
The advertisements were inserted in the Public Notice column of the newspapers but were set out more as display type advertisements than would be the case in relation to ordinary classified advertising. In other words, the advertisement was displayed in each case in a prominent manner.
It is the Union's submission that the advertisements were inserted by Mr. Devereux in his capacity as Returning Officer pursuant to the provisions of Regulation 146AD earlier set out.
Also on 20 May, 1980, Mr. Devereux sent a circular to the secretary of each branch of the Union directing him to call nominations for the subject offices "at your 1980 June summoned meeting of the branch". The circular informed each branch secretary of the name of the current holder of each office and said that each was eligible for re-election "provided they have conformed to the rules of the Union".
At the relevant time there was published each month by the Union a publication known as The Amalgamated Metal Workers and Shipwrights' Union Monthly Journal. The issue published for May 1980 contained on page 2 information under the heading "Elections and Other Notifications". Amongst the information contained on that page was the following:
"NOMINATIONS POSITION NATIONAL PRESIDENT
Nominations for this position are to be taken in all the Union's Branches at the June 1980 meetings which will be summoned for the purpose. The present occupant Bro. R. Scott is eligible for re-election subject to Rule.
"NOMINATIONS ASSISTANT NATIONAL SECRETARY
Nominations for this position are to be taken in all the Union's Branches at the June 1980 meetings which will be summoned for the purpose.
The present occupant Bro. L. Carmichael is eligible for re-election subject to Rule.
NOMINATIONS NATIONAL ORGANISER
DIVISION No. 2
All Branches of the Union are to take nominations for the above position at the June 1980 meetings which will be summoned for the purpose.
The present occupant Bro. W. Martin is eligible for re-election subject to rule."
The usual practice in relation to the distribution of the journal was to send copies of it to the secretary of each branch of the Union and to all shop stewards. The estimated circulation of it was said in the evidence to be 12,000 copies. I referred to its circulation in my decision in Wilson v. Devereux (1980) 40 F.L.R. 223. I there said (p.225) that 25 journals were sent to each of 107 branches and two to each of 7,500 shop stewards. That made the circulation in round figures some 18,000. During the argument in the present case there was general acceptance of those figures. The evidence of Mr. Campbell, who is one of the Assistant National Secretaries of the Union, is that the manuscript for the May 1980 journal was forwarded to a printing company, Kralco Printing Co. Pty. Limited, and was printed by that company before 7 May, 1980. The wrappers and labels had been produced by an employee of the Union, Mr. Whitton, and had been collected from the Union's office by a courier for the printing company on 11 April, 1980. Copies of the May journal were collected for distribution to the branches on 7 May, 1980, and were mailed on the following day to those branches of the Union which had post office box addresses. The balance were delivered by courier. Copies of consignment notes, which are in most cases receipted, were tendered and show that the journals for delivery to addresses other than post office box numbers were despatched on 7 May, 1980. A receipt endorsed on the consignment note for delivery to Mr. N. Marshall, who is the secretary of the Prahran branch of the Union, shows that 25 copies of the journal were received on his behalf on 9 May, 1980.
Due to a misunderstanding between a distribution company, R. L. Polk & Co. (Australia) Pty. Limited and the printing company, no copies of the May 1980 journal were despatched to any shop stewards. The circulation of the May 1980 journal was therefore to the branches alone and amounted to no more than approximately 3,000 copies, or a little less, instead of 18,000.
Another publication which the Union has is now known as the "Metal Worker". Previously the publication was known as the "Amalgamated News". That was the other publication referred to by me in Wilson v. Devereux (supra) The name was changed on 4 March, 1980. Thereafter the publication was no longer known as the "Official Journal of the Amalgamated Metal Workers' and Shipwrights' Union".
There is evidence by officials of the Union as to the history of the two publications, that is to say the Union Journal and the Metal Worker. Prior to the amalgamation in 1972 the Boilermakers' and Blacksmiths' Society had published a newspaper entitled either "Boilermaker" or "Boilermaker-Blacksmiths Journal". This publication did not contain official notifications of the Society but published news and information of a general nature. After the amalgamation the new Union continued the publication which then became entitled "The Amalgamated News". According to the evidence of Mr. Garland who is one of the Joint National Secretaries of the Union, the Amalgamated News was never regarded as a journal of record by the Union. It was not produced to a strict or regular timetable. Its publication depended upon the occurrence of events or industrial issues with which the Union was concerned. The newspaper was designed to inform the membership of the Union generally on industrial, social and political issues. It is true that from time to time it was described as the official journal of the Union. But it has not always been described as such and was not so described when it was published in the months of May and June 1980. The evidence concerning the history of the two publications was not available to me when I decided Wilson v. Devereux (supra). I then had no more than an agreed statement of facts and copies of the two publications. At that time the Amalgamated News was described as the official journal of the Union. If the evidence now before me had been available at the earlier hearing I would not have expressed the tentative opinion that the Amalgamated News rather than the other publication was the journal referred to in Rule 12.2 of the Union's rules.
Although the evidence satisfies me that the monthly journal is the publication referred to in Rule 12.2, there remains a difficulty. The evidence establishes, as I have mentioned, that the distribution of the journal was both to branches and to shop stewards. The May 1980 issue notifying the opening of nominations for the offices here in question was not distributed to shop stewards. That gives rise to a question to which I shall later return of whether the journal for May 1980 was published as must have been contemplated by those who drew the rules in question.
It has been the practice of the Union since it was formed in 1976 and for its predecessors to post to each member a quarterly membership card. The card is intended to be an account of what is owing for membership dues and to provide the member with a record of his standing as a member of the Union. The cards serve an additional purpose. Each is a notification of what is described as a "summoned meeting". Each notifies the fact that the meeting will take place on a particular day in the month at a specified meeting place. On the reverse side of the card is noted business to be dealt with at the meeting.
The applicant for this inquiry, Mr. Kelly, received his membership card for the April/June 1980 quarter in the second half of May 1980. It notified him that there would be a meeting of the Prahran branch to which he belonged on the third Tuesday in June (17 June) in the library opposite the Prahran Town Hall. No time for the meeting was stated but Rule 36.4 of the Union rules earlier referred to, subject to what I have later to say, would make the time 7.30 p.m. Noted on the back of the card was branch business which was introduced by the words, "Dear Member, you are summoned to attend the June 1980 quarterly summoned meeting of your branch. The date and place are indicated on reverse side of this card". The business noted included nominations for the offices of National President, Assistant National Secretary and National Organiser Division No.2.
The meetings of other branches were not all held on the third Tuesday in June. They were held on dates from and including 8 June up to and including 21 June. Subject to that and, of course, to the meetings of other branches taking place at other locations, the evidence establishes that each member about the end of May 1980 had received what is described as a second quarter 1980 membership card which notified him that at the June meeting of his branch nominations for the offices in question would be called.
The evidence would suggest that the quarterly meetings of branches held in March, June, September and December referred to as summoned meetings on the membership cards are the "Star Nights" mentioned in Rule 36.4.
Mr. Kelly gave evidence as to what transpired at the meeting of the Prahran branch held on 17 June. His evidence was not contradicted by other evidence and not challenged in cross-examination. I therefore accept it. It establishes that the circular from Mr. Devereux dated 20 May, 1981, calling for nominations was read to the meeting. Nominations were called for the positions in question. Messrs. Scott, Carmichael and Martin were nominated. The nomination forms are in evidence. It does not appear that the nominators signed the nomination forms, but rather that the names of the nominees and nominators were written in by the secretary of the branch, Mr. Marshall. The nominators made their nominations orally from the floor of the meeting. The forms were signed at the bottom by the branch president and secretary. The procedure followed at the Prahran branch meeting would seem to have been the procedure adopted at other branch meetings as well. There is not direct evidence of that matter, but so much may be inferred from the way in which the nomination forms are set out and from general evidence which there is about the Union's practices in calling for nominations in the past.
Mr. Kelly said that he was anxious to nominate candidates for the positions other than Messrs. Scott, Carmichael and Martin, but did not do so because he was unaware until he went to the meeting that nominations would be called and he could not ascertain whether persons he wished to nominate were financial and willing to stand for office.
It is next necessary to refer to other aspects of Mr. Kelly's evidence which are challenged by the respondents. He said that he did not read the membership card and had not appreciated that it served the purpose of notifying a summoned meeting or the business to be dealt with thereat. Although he had received similar cards for a period of over 10 years (a similar practice had been followed by the A.E.U. of which he was a member before the amalgamation) he had never appreciated that the cards were used to notify meetings. He did not carry the cards with him but kept them in a plastic envelope which was produced by him together with all cards going back to 1970. He did not carry his card with him because he was a shop steward employed by Kraft Foods Limited and could identify himself as a member of the Union because of his position as such.
Mr. Kelly said that he had not received the May 1980 journal. That evidence should be accepted because the evidence establishes that no May 1980 journals were sent to shop stewards. He said that the secretary of the Prahran branch had not brought the journals to the May 1980 meeting. That evidence I would also accept because no evidence to the contrary was called. In the light of the fact that Mr. Marshall must have received the journals on or about 9 May, the only inference open is that he must have forgotten to bring the journals to the meeting.
The circular calling for nominations, although read at the June meeting, was not, according to Mr. Kelly, read at the May meeting. I accept his evidence in that regard, firstly because it is not contradicted and, secondly because the evidence would suggest that the circulars were not despatched in time for the May meetings of the branches. Furthermore, the evidence is that it was not the practice of the Union to send such circulars so as to enable them to be available earlier than the summoned meetings when the nominations were for National, as distinct from State, offices.
There remains a question mark concerning Mr. Kelly's evidence of whether he appreciated that the membership card was also a notice of meeting. That is a matter to which I shall return. The significance of his evidence in this respect is that, if accepted, it would establish that, until he came to the June meeting, he was not in fact aware that nominations for the offices in question would be called thereat. He had not seen the newspaper advertisement or the May 1980 issue of the journal. The circular from Mr. Devereux calling for nominations was read out only at the June meeting.
The Submissions of the Parties and the Questions for Determination
Mr. Kelly contends that there were irregularities in the following respects:
(a) There was a breach of Rule 12.2 of the rules because, although notice of the elections was published in the Union journal in the sense of a notice being included therein, there was no proper publication of the journal because it did not go to shop stewards including Mr. Kelly.
(2) The Union journal was not made available at the May meeting of the Prahran branch.
(c) The procedure whereby nominations were called for only at meetings of the branches was contrary to the provisions of the regulations, particularly Regulations 146AC and 146AD.
In the submission of the respondents no irregularity is shown to have occurred. Additionally the respondents submit that any irregularity which there is is not an irregularity for the purposes of s.165. If Mr. Kelly had a remedy it was to make an application pursuant to s.141 rather than s.159. The respondents further submit that I ought not to be satisfied of the matter referred to in s.165(4) and finally contend that there is an overriding discretion in the Court to grant or refuse relief and that I should, even if satisfied as to all other matters, in the exercise of my discretion, refuse to act under s.165(3).
In the course of the submissions of the parties and the discussion thereon which ensued, there was an extensive review of all relevant provisions of the Act, the regulations and the Union's rules as well as of the evidence which is before the Court. This review drew to my attention matters, other than those relied upon by the applicant, which may constitute irregularities. In the treatment of the argument that follows I have endeavoured to cover all these matters. I conceive it my duty to do so by reason of the fact that this proceeding is an inquiry and concerns matters of important public interest. The proceeding is not adverserary litigation of the usual kind.
It seems to me that in broad terms the following questions arise for determination:
1. Did the Returning Officer call for nominations in accordance with the provisions of the regulations and the Union's rules.
2. If not, is there any irregularity within the meaning of s.165.
3. If so, am I satisfied in terms of s.165(4) that, having regard to the irregularity or irregularities found, the result of the elections may have been affected thereby.
4. If I am so satisfied, have I any discretion nevertheless to refuse relief, and, if so, how ought that discretion be exercised.
Requirements of the Regulations and the Union's Rules and the Question of Non-compliance therewith
The starting point is the first sentence of Rule 2.1 which, in effect, provides that elections within the Union for the offices here in question are to be conducted in accordance with the provisions of the Act and Regulations. That provision is to be contrasted with the second sentence of Rule 2.1 which provides that all other elections in the Union are to be by secret ballot vote in accordance with the rules. It will be remembered that s.133AA(2) provides that the regulations may make provision for and in relation to the conduct of an election in the case of an election in respect of which the rules of the organisation do not provide for a secret postal ballot. For the offices in question the rules of the Union here do not so provide. The fact that they provide for a secret ballot in relation to the elections for other positions in the Union is not to the point. It follows that the next step is to go to the regulations in Part V AA. These, and not the rules, govern the procedure which is to be followed. That is not to say that later provisions of the rules may not be picked up by the provisions of the regulations and thereby made applicable. But in this respect it is important to bear in mind Regulation 146AB which provides that where provision is made in respect of matters relating to the conduct of an election for an office within an organisation, the rules of the organisation shall not apply in relation to those matters except to the extent to which they apply by virtue of regulations contained in Part V AA.
The first obligation cast by the regulations upon the returning officer is to determine the times and dates of the commencement and close of the period for lodging of nominations of candidates having regard, inter alia, to the provisions of the rules of the organisation relating to the times and dates of the commencement and close of the period for lodging nominations in respect of the election. The Returning Officer is also to determine the place for lodging nominations of candidates for election. The evidence reveals that Mr. Devereux as Returning Officer determined the date of the commencement of the period for lodging nominations as 8 June, 1980, and the close of that period as 21 June, 1980. But it also reveals that he did not intend that nominations could be lodged during the whole of that period by each member of the Union. The dates he selected were respectively the dates of the earliest and the latest of the branch meetings to be held in June 1980. It was his intention to follow the procedure provided for in the rules (2.6) which contemplate nominations being made only at branch meetings.
It was the submission of counsel for the respondents that Mr. Devereux's determination in this respect was within both the Union rules and the regulations. The regulations required the Returning Officer to have regard to the provisions of the rules of the organisation relating to the times and dates of the commencement and close of the period for lodging nominations for the offices in question. The relevant provisions were in Rule 2.6 read in conjunction with Rules 2.1 and 2.2. I reject this submission. I do so because Rule 2.6 apparently contemplates nomination only at a branch meeting; the regulations contemplate that there will be times and dates certain fixed for the commencement and close of the period for lodging nominations. Unless the rules provide for the fixing of such a period, they make no relevant provision with the result that there is no rule to which the Returning Officer either may or is obliged to have regard. That being the position, the provisions of regulation 146AB exclude the operation which, but for its terms, the rule would otherwise have had. Implicit in what I have said, although I pause to spell it out, is that the regulations require that each member of the electorate has available, for the purpose of lodging nominations, the same fixed period as determined by the Returning Officer.
I have some doubt as to whether Mr. Devereux ever determined the place for lodging nominations otherwise than at the respective meeting places of the branches. But the advertisement which he inserted in daily newspapers circulating in various parts of Australia might suggest that he had selected as a place for lodging nominations the post office box number which is shown at the end of the advertisement. If that were so I would conclude that a proper determination of a place had been made. But I think the better view is that the place, or rather places, determined were the places at which the various branch meetings would be held. I do not regard such a determination to be within the terms of the regulation. I do not find it possible, in expressing my reasons for that view, to separate considerations relating to the period during which candidates might be nominated from those relating to the place or places at which nominations might be lodged. What it comes down to is that Mr. Devereux, albeit acting in good faith and in accordance with what he believed was required of him, specified the time and place to be the time and place of each branch meeting.
The evidence discloses that at least in relation to the Prahran branch, but I would suspect others, the meeting place was at premises over which the Union had no control other than during the time for which they were hired. No time at which branch meetings would be open was specified in the advertisement; no such time was specified either in the notices of meeting endorsed on the membership cards. In order to enable one to know the time, one had to be familiar with union practices, or to ask other members who knew the position, or to consult the rules (36(4)). If one did consult the rules, one would conclude the meetings opened at 7.30 p.m. and closed at 10 p.m., but with the proviso that the times might be different because of the power of branches to commence earlier or close later. It is my opinion that to determine a place for the lodging of nominations which in many cases will be at premises at which the Union has no more than a temporary presence in a situation where it might be present between 7.30 p.m. and 10 p.m. or at some other time, is no determination of a place at all. Certainly it is not such a determination of a place as is within regulation 146AC.
The next obligation imposed upon Mr. Devereux was to publish the advertisement required by regulation 146AD. I have earlier set out the form of this advertisement and I do not refer again to the detail of it. During the argument I expressed the tentative view that the advertisement was in accordance with what the regulation required in that it did fix the period, 8 to 21 June, 1980, as the period during which candidates might be nominated. On reflection I think that such a view is erroneous. After due consideration I have reached the conclusion that the advertisement was in accordance with Mr. Devereux's determination that nominations might only be made at branch meetings which would be held between 8 to 21 June, 1980. That being the position the statement at the end of the advertisement that nominations must reach the Returning Officer at the address shown not later than 3 p.m. on 7 July, 1980, is misleading. It could have led persons to think that nominations from members would be received at the post office box shown at any time up to 3 p.m. on 7 July, 1980. As earlier said, I am of opinion that the only places determined by Mr. Devereux for the lodging of nominations were the places at which the branch meetings were to be held. I have expressed the opinion that such a determination was not in accordance with the regulations. It follows that the advertisement in "setting out" those places as the places for lodging nominations was also not in accordance with the regulations.
What I have said so far indicates that there were a number of respects in which the provisions of Regulations 146AC and 146AD were not complied with. There are still further alleged departures from the provisions of the regulations and also the rules of the Union to be considered. It will be convenient to summarise all my conclusions at the end of this section of the judgment rather than to do so now.
It was the submission of the respondents that by reason of the opening sentence of Rule 2.1 earlier referred to and the form of the regulations no notice apart from notices to be published in newspapers was required to be given. But regard must be had to Regulations 146AB and 146AD. In my opinion, notwithstanding the provisions of the first sentence of Rule 2.1, the rules of the Union do provide for a notice inviting nominations of candidates for election to be published in a manner other than in a newspaper. The relevant rule is Rule 12.2 earlier set out. Thus, Mr. Devereux was obliged, if it were practicable, to publish the notice in the manner provided by that rule.
The provisions of the first sentence of Rule 2.1 do no more than provide that the elections for the relevant positions be conducted in accordance with the Act and Regulations. They do not oust relevant provisions of the rules if the regulations themselves pick them up as was the intention of the draftsman (regulation 146AB). The rules do make provision in relation to notifying the calling of nominations for the offices in question (Rule 12.2). It was submitted by counsel for the respondents that these provisions should simply be treated as otiose. But the rules have been amended to take account of the changes in the legislation which came about in 1976, and I would not lightly take the view that rules specially providing for the nomination of candidates for the very offices dealt with in the legislation should be ignored. That is particularly so when the only other notice contemplated by the joint operation of the rules and the regulations is an advertisement which may be inserted in the classified advertising columns of large newspapers.
It follows that Mr. Devereux was obliged by Rule 12.2 to insert in the Union journal an advertisement to the effect of that required by regulation 146AD. Although he inserted an advertisement or notice in the journal, it was not in the required form. In particular it did not specify dates for the opening and closing of nominations nor the place for lodging them. Nor did it set out the form in which nominations were to be made. There is no evidence to suggest that it was not practical for Mr. Devereux to have inserted a notice in the journal which was in the required form.
Then there is the question of the distribution and circulation of the journal. The words of Rule 12.2 required publication of the notice in the journal. What was the draftsman's intention as to the distribution or circulation which the journal should be? The only satisfactory answer to this question is that it should have the distribution and circulation which it customarily had at the time the rule came into effect. That date may be taken to be the date in 1976 when the rules became effective to govern the affairs of the newly amalgamated union or the date when amendments to those rules were made to take account of the amending legislation which introduced s.133AA into the Act. It is immaterial to determine which of those dates is the correct one. At both times the distribution of the journal was to branches and shop stewards. Due to misunderstandings, the evidence of which I have earlier mentioned, no journals were delivered to shop stewards. In my opinion there was, for that reason, no publication of the notice in the Union journal as required by Rule 12.2. The question must, of course, be one of fact and degree. Plainly enough there would be no such publication if the journal were not distributed to anyone or distributed, for example, only to full time officials. On the other hand if, due to misadventure, some shop stewards or some branches did not receive copies, one would be inclined to hold that there had been substantial compliance with the rule and therefore no breach. The evidence reveals that by far the greater number of journals were customarily delivered to shop stewards. The issue in question here, that for May 1980, was received by none unless he happened to obtain one at a branch meeting or in some other way not connected with his position as a shop steward.
It is appropriate to say at this point that a rule such as Rule 12.2 is frequently likely to be the source of problems of this kind. The evidence demonstrates the difficulties which may arise. Further problems may even now be occurring (I express no view whether they are or not) as the result of the Union's decision to bring the journal out quarterly instead of monthly. That decision was made after the events here in question. But in the future there may need to be considered whether the current publication remains the journal referred to in Rule 12.2. It would be much more satisfactory if the rule spelt out what notice of nominations being open was in fact to be given. In the light of the Union's longstanding practice of notifying each member of branch meetings and the business thereof on membership cards, I would have thought that consideration could be given to altering the rule to provide for notice in that way. If such a course were taken, care would need to be exercised to provide for the form of the notice having regard to the provisions of regulation 146AD(1) and (3).
There is, in my opinion, a further departure from the requirements of the regulations because of the failure of the nominators of the candidates to nominate them in writing. The nominations to which I refer are those made at the meeting of the Prahran branch of the Union. Regulation 146AE plainly requires nominations to be in writing. The writing referred to is that of the nominator. Sub-regulation (1)(a) deals with the situation where the rules do not so provide, in which case the nomination is again required to be in writing and signed by the nominator. There may be a question as to whether the writing referred to in sub-regulation (1)(a) need be the writing of the nominator. I express no concluded view on that matter, although my tentative view is that the writing of the nominator is what is required. My conclusion in that regard arises from the general scheme of the regulations which contemplate nominations being sent to the place determined in that behalf by the Returning Officer. But should that conclusion be wrong, I am satisfied that the relevant rule (Rule 2.2) contemplates that the nomination will be in the handwriting of the nominator. The relevant words are, "shall be nominated . . . . on the prescribed form". The nominator could not comply with this provision unless he himself wrote on the form. The nominations were not therefore in accordance with the rule the requirements of which the regulations obliged nominators to follow.
In relation to compliance with the regulations and the rules it remains to consider whether there was any departure by reason of the fact that the May 1980 issue of the journal which contained notice of the calling of nominations was not available at the May meeting of the Prahran branch. It will be recalled that copies were delivered to the secretary of that branch in time for him to have them available at that meeting. There is no evidence that the relevant issue was not available at other branch meetings held in May. Nor is there any satisfactory evidence to suggest that production of the journal at the June meetings of branches rather than at the May meetings thereof was unusual or such as to be contrary to the Union's previous practice. The failure of the secretary of the Prahran branch to produce the journal to the May meeting does not of itself satisfy me that there has been other than substantial compliance with Rule 12.2.
But for the reasons I have given there are established a number of departures from the provisions of the regulations and the rules of the Union. These are -
1. Mr. Devereux, as Returning Officer, did not, as he was required to do by regulation 146AC, validly determine -
(a) the times and dates of the commencement and close of the period for lodging nominations;
(b) the place for lodging nominations.
2. The advertisement published in purported compliance with regulation 146AD was defective in that it did not, or did not validly, set out -
(a) the form in which nominations were to be made;
(b) the place for lodging nominations;
(c) the times and dates of the commencement and close of the period for lodging nominations.
3. The provisions of Rule 12.2, as modified by regulation 146AD(3) were not complied with in that -
(a) the notice published in the May 1980 issue of the journal was not a notice in accordance with regulation 146AD(1);
(b) the distribution and circulation of the journal was not substantially as envisaged by the rule.
4. The nominations of the candidates made at the June meeting of the Prahran branch were not in accordance with the requirements of Rule 2.2 and regulation 146AE (1)(a) because the nominations were not in the handwriting of the nominators.
There is a further matter to be mentioned. No provision of the regulations expressly requires the calling of nominations to be in accordance with the determinations made pursuant to regulation 146AC and the advertisement published pursuant to regulation 146AD. But it is my opinion that the underlying intention of the regulations is that nominations will be called in accordance with the procedure which those regulations contemplate. Any other view would be ludicrous. In the way that events transpired nominations were only permitted to be made orally from the floor at branch meetings. Whilst such a procedure may have been authorised by Rule 2.6 if it had not been affected by the regulations, particularly regulation 146AB, it is not a procedure which is lawful. The manner in which nominations were called quite apart from the way in which notice of them was given, was irregular.
There was a submission by counsel for the respondent that some of the provisions of the rules and regulations were directory rather than mandatory. I think that some may be. An instance is so much of regulation 146AD as requires the setting out in the advertisement of the form in which nominations are to be made. If no other departure from the regulations had been involved, I do not think that the consequence would have been great. But insofar as any of the other provisions could be said to be directory, there remains a plain failure to comply with them. This is not a case where the respondents are able to show that there has been substantial compliance with any of the provisions of which I consider the Returning Officer to have been in breach. I hasten to add that, although I make that finding, it involves no reflection on Mr. Devereux who, I am satisfied, did his best to comply with what he believed to be the requirements of the regulations and the rules of the Union.
"Irregularity"
It was submitted on behalf of the respondents that none of the departures I have found to exist was an irregularity within the meaning of s.4(1) and thus s.165 of the Act. It was said that the departures, being concerned with the notice to be given members about, and the procedure for, the nomination of candidates were not connected with the full and free recording of votes or of persons entitled to record votes. Reliance was placed on my decision in re Australian Postal and Telecommunications Union; ex parte Wilson (1979) 28 A.L.R. 330 at p.336. In the respondents' submission no more was involved than breaches of the rules. The applicant's remedy was an application pursuant to s.141, not s.159. In this respect I pause to note that a number of the departures involve breaches of the regulations rather than breaches of the rules.
I am of opinion that the submission should be rejected. In short I think that the following of the proper procedure, including the giving of proper notice, for nominating candidates is fundamental to there being a full and free recording of votes. I am strengthened in that view by the provisions of s.133(1)(b) and (c). The section specifies what matters the rules of an organisation are to provide for in relation to elections and in the two paragraphs mentioned refers to nominations expressly. In the former it is provided that "the conduct of every such election" is to include the acceptance or the rejection of nominations. The section thus expressly demonstrates a legislative intention which one would have expected to be present, to treat the calling for nominations as an essential step in the electoral process. To the same effect is s.165(3)(c) which expressly includes as a step in an election the submission of nominations. If nominations were not called in accordance with the relevant regulations and the Union's rules, there could be no full and free recording of votes. The A.P.T.U. case relied upon by the respondents is plainly distinguishable from a case such as this.
Section 165(4) Considerations
The first matter to be dealt with is the question of whether I should accept Mr. Kelly's evidence that he did not appreciate that nominations would be called at the June meeting of the Prahran branch. I have reached the conclusion that I cannot accept it. My decision is not based upon any matter associated with Mr. Kelly's demeanour in the witness box or answers given by him in cross-examination. Rather it is based upon my view that it is inherently improbable that Mr. Kelly, who has taken an active interest in union affairs for so many years, could have been unaware of the fact that branch business was noted on the membership cards which he received. It is not as if his evidence was to the effect that he was aware of the practice but on this occasion omitted to look at the card. The purport of his evidence is that he had at no time noticed the Union's practice of notifying branch business on the quarterly membership cards. I am not prepared to go so far as to say that I positively disbelieve Mr. Kelly. What I say is that I cannot accept his evidence in this respect. I should approach the questions to which s.165(4) gives rise, therefore, upon the basis that Mr. Kelly knew or should be treated as knowing that nominations for the offices in question would be called at the June meeting of the Prahran branch.
If the case were one concerning only Mr. Kelly's personal position and involved no more than the question of whether the Union rules had been complied with, I would have been inclined to the view that I ought not to be satisfied of the matter referred to in the sub-section. But the case involves broader considerations. I have earlier summarised the departures that have been established from the various procedures which the regulations and so much of the rules as are applicable required. I have found that each of these departures was an irregularity within the meaning of s.165. It may be that if there were but one irregularity or even two that one would not take any serious view of what had occurred. But, so it appears to me, the whole procedure for the calling of nominations embarked upon by Mr. Devereux as Returning Officer involved him in a misconception of what was required. I repeat that I am satisfied that he acted throughout honestly and in good faith, following what has no doubt been the procedure adopted by the Union and its predecessors for many years. But the circumstance that Mr. Devereux has acted in good faith will not avail the respondents if the procedure in fact adopted is not in accordance with the law.
Although there are a multiplicity of irregularities, the real vice of what was done was to continue the practice of providing that nominations might only be made orally from the floor of the various branch meetings. What was required was that nominations should be made in writing by the nominators and sent to or lodged at a place or places determined by the Returning Officer. Furthermore, it is the plain intention of the regulations that there be a fixed period during which each member of the Union should be able to nominate candidates in the way that I have described. It is no compliance with the letter or the spirit of the regulations to permit nominations to be made only during the short period, which itself is uncertain by reason of the operation of Rule 36.4, of a branch meeting.
It should not be thought that the irregularities which I have found to exist involve any technical breaches of the regulations and the rules. In my opinion there are important reasons why the view could be taken, as it was by the draftsman of the regulations, that nominations should be made in the way that is required. There could well be something inhibiting in requiring members at branch meetings to make their nominations orally from the floor. I do not wish to develop this matter. All I wish to emphasise is that one can well understand that someone designing a system to ensure fair elections would want to avoid a situation where nominators had to stand up, perhaps in a hostile atmosphere, for the purpose of nominating candidates who were not, amongst the majority of members present, popular choices.
Those being my views of the consequence of the irregularities here present, I turn to the question of whether I am of opinion that, having regard to the irregularities found, the result of the election may have been affected by those irregularities. There is in effect another limb to s.165(4) but it has no application here. There was discussion during the argument as to the extent of the Court's satisfaction before it could or was obliged to form the relevant opinion. In my view what is involved is the Court forming the opinion, having regard to the relevant factors, that the result of the election may, as a real or distinct possibility, have been affected. There is not involved any question of it being established on a balance of probabilities that the result was in fact affected.
In the submission of the respondents this was not a case in which I should form the relevant opinion. There was no evidence, Mr. Kelly's evidence on the question of notice having been rejected, which would suggest that the result might in any way have been affected. In particular there was nothing to suggest that, if the proper procedure had been followed, nominations other than those which were lodged would have been received. The evidence establishes that there were nominations of the successful candidates from most branch meetings. There were some other nominations but the nominees, for one reason or another, refused to stand.
I have given these considerations attention but, despite them, I have reached the clear conclusion that failure to carry out the proper procedure for calling nominations might, as a real or distinct possibility, have affected the result of the election. I think it is impossible to take any other view.
For those reasons I have formed the opinion that, having regard to the irregularities found, the result of the election may have been affected thereby.
Residual Discretion
It was submitted on behalf of the respondents that because of the use of the word "may" in s.165(3) the Court had a discretion, notwithstanding a positive finding pursuant to s.165(4), to refuse to make orders. I have not found that an easy question to resolve. I was inclined at first to think that the position was governed by principles such as are stated in Ward v. Williams (1955) 92 C.L.R. 496 at pp.505-507. In short the principle there referred to is that where a power is conferred upon a public officer for the purpose of being used for the benefit of persons who are specifically identified and with regard to whom a definition is supplied by the legislation of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised. If the power is conferred upon a judicial tribunal to be invoked by a judicial proceeding, that circumstance is said to be a very strong indication that if the conditions for its exercise are made out, the Court will have little or no residual discretion to refuse to act.
However, the present section confers jurisdiction on a court in proceedings which are of an inquisitorial rather than adversarial nature in a setting where the public interest is very much involved. There may be cases in which, notwithstanding a positive finding pursuant to s.165(4), it would be in the public interest or in the interests of some or all of the members of a union not to act. For that reason I have reached the conclusion that there is a residual discretion vested in the Court to refuse to act if in all the circumstances that is what the public interest or the interest of members or particular groups of members requires.
I come then to the final question of whether I should make an order declaring the election void and consequential orders declaring the persons purporting to have been elected not to have been elected. Having considered the matters put to me by counsel for the respondents on this question, I have reached the conclusion that I should, in the exercise of my discretion, make orders to the effect of those mentioned. The matters put to me were related in the main to the personal position of Mr. Kelly and the question of whether he was really prejudiced by what had happened. Whilst those matters are relevant, they are, for reasons earlier given, by no means determinative of what I should do. The respondents' submissions based on discretion are, accordingly, rejected.
Conclusion
There is one submission with which I have not so far dealt but which I should mention, before delivering my formal conclusions. It was a submission by counsel for Mr. Kelly that Rule 2.6 of the Union rules was invalid. The submission was based on the provisions of s.140(1)(c) of the Act. It was said that the rule was invalid because it operated oppressively, unreasonably or unjustly. I do not find it necessary to deal with this submission. I have found that by reason of the operation of the regulations the rule no longer has any application. If, contrary to the submissions of the respondents, I had taken a different view of the effect of regulation 146AE the matter may have had to be considered. But, in my opinion, the rule could have no application because the underlying requirement of the regulations is that the procedure contemplated by regulations 146AC and 146AD must in fact be carried out. It requires nominations to be made by the various members and sent to the place or places determined and notified by the Returning Officer. There is thus no room for the following out of the procedure whereby nominations are to be made at branch meetings.
My conclusion is that orders pursuant to s.165(3) should be made. These orders will declare the election void and the persons purporting to have been elected not to have been elected. They should probably also provide that the Industrial Registrar is to make arrangements for fresh nominations to be called and a new election to be held.
I do not propose now to make formal orders. I propose to allow an interval to enable counsel and the parties to consider what I have said. When the matter is again in the list counsel for the applicant are to bring in short minutes of orders to give effect to my decision.