La Macchia v Minister for Primary Industry

[1986] FCA 452

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY	1	No. SA 3 of 1986
1
INDUSTRIAL DIVISION	)

IN THE MATTER OF - the

Conciliation	and
Arbitration Act, 1904

AND IN THE MATTER OF an Application by DORIANO TAM for an Inquiry into an Election for an office in

XEELY J. 8 OCTOBER, 1986

EX TEMPORE REASONS FOR JUDGMENT

. _ _

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

I.       .L

MR P. MOLONEY: I appear for the applicant, Mr Tam, in

thls matter.

MR P. McCUSKER: I appear on instructions of Freeman Turner,

the solicitors for the union. -

HIS HONOUR: What are your submissions in this matter?

TRANSCRIBED REPORTED NOT

HIS HONOUR: In this matter, the Industrial Registrar on

2 1 March 1986 was satisfied that there were:

Reasonable grounds for an inquiry lnto

the question of whether there hawbeen

irregularities in or in connection

with the electiordfor zone

representatives to state conference

[of the SA branch of The Amalgamated

Metal Workers Union1

That vlew was based upon hls concluslon that the returnzng offlcer had erred in relectlng the

nominatlon of Doriano Tarn for one of those

positlons. Mr Tam 1s the appllcant In these

proceedrnqs. The Industrlal Reglstrar consldered

the lnformation in the appllcatlon and, after

having lnquirles made, he reached the concluslon

that the:

. - ._ - .

. - . Mr Tarn wlth the relevant quarterly	Errors in reconclllnq payments by
periods resulted ln him being found
lneligible to be a candidate.

and, accordingly, the nomination had been wrongly

rejected. The court has been told that since

the applicatrons first came before the court

there have been discussions between the legal

representatives of the applicant on the one

hand and of other interested parties on the

other. Today the parties have all been

represented before the court namely, one,

The Amalgamated Metal Workers Union; two, The

Amalgamted Metal Workers Union (South Australian

Branch); three, the returnlng offlcer,

Mr B.E. Gausden; four, the candldates who were

declared elected unopposed as	the five zone
representatlves.

Those partles joined the applicant in placing

before the court a mermr+ndum of agreed facts

which is exhibit A . It is clear from that

statement that the nomlnation of the applicant

for the positlon had been wrongly rejected by

the returning officer. Having considered the

memorandum of agreed facts lodged on behalf of

each of the parties interested, I am satisfied

that an irregularity occurred In connection

with the election. That irregularlty consisted

of the wrongful rejectlon by the returning

.'officer of the nomination of the

appllcant, -

Doriano Tarn, as the Industrlal Registrar said

in his declsion:

The rejection of the applicant's

nomination had the consequence that

ballots were not necessary and the

unopposed candidates were declared

elected.

The court having accepted that errors had

occurred in reconclling payments made by Mr Tarn

as set out earlier and the nomination having

been relected, it necessarily follows that

in the words of sectlon 1 6 5 ( 4 ) , "The result of

the election may have been affected" by the

irregularity. The form of the approprlate orders

to be made was the subject of submissions on

behalf of the appllcant and the other lnterested

parties. The court has already indicated the

orders it proposes to make.

Those orders are now made: -

One, the electlon conducted by Mr B.E. Gausden

within the South Australian branch of The of Zone 3 representatives to state conference,

the results of which were declared by the

returning officer on 19 November 1985,	is declared
to be void;

.---.	..
. 'Two, Messrs B. Medcalf, J. Finlay, M. Dwyer,	-. ~

J. Gresty, and MS S. Biddle are declared not to

have been elected to the offices of Zone 3

representatives to South Australian branch state

conference;

Three, the Industrial Registrar is directed to make

arrangements for new elections to be held for the

offices of Zone 3 representatives to state conference;

and,

Four, the operation of sub-rule 4 of rule 2

Part D in its application to the conduct of the

new elections shall be modified bv reading that

sub-rule as if there were deleted from it the

words :

No later than 26 weeks before the date of the expiration of the term

of office of the holder of the office

to which the election relates.

AT 2.24 PM THE MATTER	WAS ADJOURNED
INDEFINITELY

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY	)	No. SA 7 of 1986
1

DIVISION INDUSTRIAL 1

- .

. -	IN THE MATTER OF -'the
Conclllation and
Arbitration Act, 1904
AND IN THE MATTER OF an Applicatlon by DORIANO TAM for an Inquiry into an
Electlon fo; an office in
the AMALGAMATED METAL
WORKERS UNION

KEELY J 8 OCTOBER, 1986

EX TEMPORE REASONS FOR JUDGMENT

M R P. MOLONEY: I appear for the applicant.

MR P. McCUSKER: I appear for the union, the returning

officer and Mr Kock.

HIS HONOUR: If you would just point to the differences. The other one was the zone representative; this one relates to the delegate to the national conference.

TRANSCRIBED REPORTED NOT

c

HIS HONOUR: Thls matter i's closely related to matter number

SA 3 of 1986 In which judgment has lust been given.

The agreed statements of facts there referred to

related to both matters. For the reasons there

given I am satisfied that an irregularity occurred

in connection with the election of a regional

delegate to the national conference for Region B.

As the nomlnatlon of the applrcant Was wrongly

re~ected, it follows in thls matter, as it dld In

SA 3 of 1986, in the words of sectlon 1 6 5 ( 4 ) , "The

result of the electlon may have been affected" by

the lrregularlty. The form of the orders was the

subject of submlsslons on behalf	of the applicant
and the other lnterested partles	and the court has

already indlcated the orders It proposes to make.

- -	Those orders are now made:
. - .

. - - l . The election conducted by Mr B.E. Gausden

within the South Australian Branch of the Amalgamated Metal Workers Union for the

offlce of Region B delegate to national

conference, the result of which was

declared by the returning officer on 16 August 1985, is declared to be void;

2 . Mr H. Kock is declared not to have been elected to the office of (South Australian

Branch) Reglon B delegate to national

conference:

3 . The Industrial Registrar is directed to

make arrangements for a new election to

be held for the office of (South

Australian Branch) Region B delegate to

national conference.

That is the end of the orders as I understand

r

it; Gentiernen;- ;f there ere any queries or doubts

about It do not hesitate to raise them. I am sorry

if that is not available ln a typed form but we

Will see if the transcript can be expedited. At

the same time, we realize they do have great

. - - Pressures on them at present in that direction.

AT 2 . 2 8 PM THE MATTER WAS ADJOURNED

INDEFINITELY