Lynch v Howard

[1980] FCA 118

Re: ALICE ROSE LYNCH
And: W.J. HOWARD, A. BARTON, J. MARSHALL, J. OSBORNE, K. MARCH, M. McGREGOR,
E. JOHNSON, D. WATKINS, F. LAURIE, D. WITTINGSLOW, W. NOCK, W. SPICER,
L.J. OSBORNE, A. FOSTER, F. FOSTER, R. SMALL, E. TREVORS, B. RENET, A. BOWDEN
L.J. SHOPT, AND THE SHOWMEN'S GUILD OF AUSTRALASIA (1980) 44 FLR 71
N.S.W. No. 1 of 1980
Industrial Law - Conciliation and Arbitration - Appeal

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Smithers(1), Evatt(2) and Keely(2) JJ.

CATCHWORDS

Industrial Law - election to membership - "a majority of the votes of all members present and voting" - meaning of - recourse to history of rule where ambiguity - Conciliation and Arbitration Act s.141

Evidence - application for leave to adduce further evidence on hearing of appeal - Federal Court of Australia Act s.27

Appeal - application that proceeding be remitted to trial judge for further hearing - discretion of appeal court - whether parties bound by the course of the trial - Federal Court of Australia Act s.28(1)(c)

Conciliation and Arbitration - Registered organization - Performance and observance of rules - Proposed member of organization - Requirement that proposed member receive majority of votes of members present and voting at meeting - Informal votes - Conciliation and Arbitration Act 1904 (Cth), ss. 140, 141.

Appeal - Application for leave to adduce further evidence at appeal - Application to remit matter to trial judge - Discretion of appellate court - Federal Court of Australia Act 1976 (Cth), ss. 27, 28 (1) (c).

HEADNOTE

Rule 4(c) of the rules of a registered organization provided in part: "A person proposed for membership must receive a majority of the votes of all members present and voting at the meeting before being accepted as a member. This voting shall be by secret ballot."

The appellant, a member of the organization, brought proceedings under ss. 140 and 141 of the Conciliation and Arbitration Act 1904 after her husband (the applicant) had unsuccessfully applied for membership of the organization. The trial judge found that at the relevant meeting the applicant had received fourteen "Yes" votes, four "No" votes and that sixty-eight members present had not recorded a vote and dismissed the appellant's action.

On appeal.

Held: Per curiam - (1) Rule 4 (c) required each applicant to receive a majority of the votes of all members present and voting at the election in respect of the candidature of the applicant.

Per Smithers J. - Rule 4 (c) referred to formal votes.
(2) The respondents should not be permitted to call further evidence from the returning officer as to the voting figures at the relevant meeting because the evidence would contradict that led by the respondents at the trial and would not necessarily cause the court to rule in favour of the respondents.

Sanders v. Sanders (1881), 19 Ch D 373, referred to.
(3) It was not appropriate to remit the matter to the trial judge under s. 28 (1) (c) of the Federal Court of Australia Act 1976 in view of the further evidence the respondents proposed to lead because: (a) To do so would place the respondents in a more favourable position than had the trial judge correctly interpreted r. 4 (c) and made the orders sought by the appellant under s. 141 of the Act. (b) The respondents in the circumstances were bound by their conduct of the action at first instance. Seaton v. Burnand, (1900) AC 135; Roycroft v. Iago (1873), 4 AJR 145, referred to. (c) The further evidence might not be decisive.
(4) Appeal allowed.

HEARING

Sydney, 1980, June 10-12; August 27. #DATE 27:8:1980

APPEAL.

The appellant appealed from an order of a single judge of the Federal Court of Australia dismissing applications under ss. 140 and 141 of the Conciliation and Arbitration Act 1904. The facts appear from the judgments.

R. C. Kenzie and M. J. Kimber, for the appellant.

R. Hunter Q.C. and M. F. Holmes, for the respondents.

Cur. adv. vult.

Solicitors for the appellant: W. G. McNally & Co.

Solicitors for the respondents: M. Rosenblum & Co.

T. J. GINNANE

ORDER

1. The appeal be allowed.

2. The order of the Court made on 13 December 1979 be set aside.

3. In lieu thereof each of the respondents, other than the Showmen's Guild of Australasia, is directed to perform and observe the rules of the Guild by recognising James Thomas Lynch as a member of the Guild.

Appeal allowed. Order of the court made on 13th December, 1979, set aside, in lieu thereof each of the respondents, other than the Showmen's Guild of Australasia directed to perform and observe the rules of the Guild by recognizing James Thomas Lynch as a member of the Guild.

JUDGE1

I have had the advantage of reading the reasons of my brothers Evatt and Keely JJ. concerning the construction of rule 4(c) of the rules of the Showmen's Guild of Australasia. I agree with those reasons. They lead to the conclusion that, to succeed in an application for membership of the Guild at an Annual General Meeting an applicant must receive a majority of the votes of all members present and voting at the meeting in respect of the candidature of the appellant.

It was found by the learned trial Judge as a fact that in respect of the candidature of James Thomas Lynch of the total ballot papers received by the Returning Officer in the ballot conducted by him at the Annual Meeting of 15 April 1979, fourteen recorded "yes" votes in respect of Mr. Lynch, four recorded "no" votes and the balance did not record any vote in this case.

It is consistent with the reasons of the trial Judge that the expression "did not record any vote in this case" does not mean that in all cases the voters had not placed any marks upon the ballot paper in respect of Lynch. It probably refers not only to those cases but also to ballot papers on which there were markings apparently relating to Mr. Lynch but of a kind that the preference of the voter could not be seen.

Accordingly it is necessary to consider the rule construed as above to ascertain whether the required majority for success of an applicant is that he must receive a majority of the votes of all the members who voted in respect of his candidature including the "votes" of those who voted informally or only of a majority of the formal votes cast in respect of his candidature.

In the Shorter Oxford English Dictionary a vote is defined in various ways. Relevantly to the context of the rule in question the following definitions may be noted, namely, "an indication by some approved method of one's opinion or choice on a matter under discussion", "an intimation that one approves or disapproves, accepts or rejects a proposal, motion, candidate for office or the like", "a means of signifying choice, approval, etcetera". In the present context the first or second of these definitions would seem most appropriate. The mechanics of voting are directed to producing votes which the Returning Officer will be able to count and from the count of which he will be able to say whether those indicating acceptance of the candidate are a majority of "the votes of all members present and voting" in the secret ballot. There is of course a sense in which a person "voting" informally does vote at the meeting, but he does not produce a vote in the ordinary meaning of the word. In that meaning a person who has purported to cast a vote but has not indicated his choice has not produced a vote.

Under the rule the Returning Officer is concerned to ascertain how many votes there are within the category of the votes of all members present and voting and how many "yes" votes have been cast. It is a question whether the "votes" of persons who delivered ballot papers to him marked in a way from which the inference was that the voter had intended to cast a vote in respect of the candidature of Mr. Lynch but had failed to indicate whether his preference was to accept or reject, formed part of "the votes of all the members present and voting" in the ballot.

From the evidence of the Returning Officer it would appear that there may have been a large number of informal votes. It would probably be possible to assess precisely how many by reference to the ballot papers. But if reference is made to the contents of the ballot papers for this purpose it would be impossible to exclude reference to the "no" votes appearing on the face of those ballot papers. This would create problems for the appellant in this case because on their face there is a large majority of "no" votes.

I think the relevant part of the relevant rule must be construed as if it were expressed in the terms that the person proposed for membership must receive such number of "yes" votes as constitutes a majority of the votes of all members present and voting at the meeting in secret ballot. So expressed the first reference to votes must refer to "yes" votes which are formal and thus indicate a preference for acceptance of the candidate. If all that is intended is that those votes must be a majority of the total formal votes one might think that some simple words such as that "the candidate must receive a majority of the votes cast at the meeting" would have sufficed. But other words were used which state that the votes of which the candidate's "yes" votes must be a majority are the votes of all members present and voting. If the votes of which the "yes" votes are to be a majority are the total of the "yes" and "no" formal votes the word "all" has no work to do. But it would have work to do if the word voting is used as a reference to the mechanics of voting in secret ballot. And the rule says of the voting referred to "this voting shall be by secret ballot". Again, the reference to all members "present" at the meeting carries with it a notion that the majority required has something to do with how many members are present at the meeting. And the total expression may reflect the notion that the required majority is a majority of the persons present at the meeting provided that they go through the process of voting. Unless there be some such notion there is no purpose in including the words relating to all members present. It is not to be thought that the reference to all members present is to make it clear that persons not present are not to have a vote. The rule provides that the candidature of the appellant for membership is to be submitted by the Secretary to the Annual General Meeting.

Accordingly in order to give some significant effect to the expression "of all members present and voting" it is necessary to attribute to the word "voting" a meaning such as "going through the process of casting a vote in respect of the candidate". A person would certainly do this if he marked the ballot paper so that it was apparent that he desired to express a preference for yes or no although he had failed to do so.

But if to accommodate the words "all persons present and voting" one were to give a special meaning to the word "voting" nothing would be achieved unless violence were done to the word "votes" in the total phrase "majority of votes of all persons present and voting". That of which the "yes" votes must be a majority is itself a number of votes. The "yes" votes comprehended within that number must obviously be formal votes. The form in which the rule is expressed uses the word "votes" only once to comprehend the "yes" formal votes and the total votes of which those formal votes must be a majority. It would need strong indications to show that the number of votes of which those "yes" votes were to be a majority comprehended both "yes" and "no" formal votes and informal votes, in other words, that the word "votes" used only once was used in two senses and referred both to formal "yes" votes in a total number of votes comprising formal and informal votes. Informal votes are not really votes at all and are not relevant to a majority of real votes.

It appears to me therefore that the proper construction of the rule should proceed on the basis that the expression "all members present and voting" is not intended to require that a special meaning be given to the word "voting". It would be one thing if to adopt this approach meant doing violence to the words concerned but it does not do so. If "votes" means formal votes and "voting" means voting so as to produce a formal vote, then, if there be an ultimate majority of "yes" votes that majority is a majority of the votes of all members present and voting. In the result I am satisfied that the required majority is a majority of the formal votes cast at the meeting in respect of the candidature of a person applying for admission to membership.

On the case presented by the respondent and the applicant there was such a majority for Mr. Lynch and the learned Judge so found. According to that finding of fact by the learned Judge participation of the members present and voting at the meeting produced only eighteen votes in respect of Mr. Lynch, of which, fourteen were "yes" votes and four were "no" votes. Accordingly Mr. Lynch did receive a majority of the votes of all members present and voting at the meeting and his case for admission to membership of the Guild is established.

But the respondents challenge the finding that there were only four "no" votes. By way of introduction they contend that, in view of the proper construction of the relevant rule adopted by the learned judge, that particular finding was not necessary for the decision he made. This latter contention may be accepted, but in the end it is seen to be non-significant for current purposes because what is involved is the course of the trial in relation to the issues which were the live issues before the court.

The challenge to the finding rests on the contention that on the evidence it is manifest that there were sixty or more valid "no" votes cast by members voting at the meeting. And it is true that reference to the ballot papers put in evidence at the hearing before the learned Judge and constituting Exhibit F reveals that, according to the markings thereon fourteen votes recorded "yes" votes but some sixty or more voters recorded "no" votes in respect of Mr. Lynch.

The reasons of the learned Judge contain no reference at all to the ballot papers. It is clear that his Honour accepted the evidence of the Returning Officer to the effect that there were fourteen "yes" votes and four "no" votes cast in respect of Mr. Lynch. It is probable that his Honour did not examine the ballot papers to confirm the evidence of the Returning Officer. There was no reason for him to do so.

The Returning Officer was called by the applicant in the proceedings and examined only to establish that he had made an affidavit and that its contents were true and correct. That affidavit described his conduct of the ballot and the collection of the ballot papers in a locked box and continued, "I then wrote the results on a slip of paper and handed the list to the President, annexed hereto and marked with the letter "A" is a copy of the results which I handed to the President." This annexure became an exhibit tendered by the applicant and is referred to herein as Annexure "A". On its face it showed that the Returning Officer had entered against the name of Mr. Lynch the figures 14 and 4. It would be reasonable but not inevitable to interpret those figures as indicating that Mr. Lynch had received fourteen "yes" votes and four "no" votes. In cross-examination of the Returning Officer by counsel for the respondents some eighty-six ballot papers were shown to him. He was asked to glance at the signature on the bottom right hand corner of "those documents". He did this and said that his initials were there. He said he had seen the documents before and that he had handed them out personally to the people at the meeting and had locked them in the ballot box after the people had voted. He was then asked whether after "totalling" the ballot papers he completed Annexure A. He said, "I completed that from a form where I had acknowledged every vote and on each occasion recorded the number of the "yes" votes and the number of the "no" votes having previously included this with the positive, negative and informal". He was then led to elaborate this in respect of the figures relating to a candidate other than Mr. Lynch and did so in a way that indicated that the same method was applied to each candidate. On this basis he confirmed that the figures fourteen and four relating to Mr. Lynch indicated fourteen "yes" votes and four "no" votes.

In re-examination counsel for the applicant asked the witness, "Mr. Towers, looking at Annexure A . . . that means that Mr. Lynch got fourteen "yes" votes and four "no" votes and the rest you recorded as informal? The witness answered "The rest were not answered". In answer to his Honour he added "they were just blanks they did not indicate whether they wanted yes or no . . . " As the witness was about to leave the box counsel for the respondents said with reference to the ballot papers "I omitted to tender these documents, your Honour". And his Honour said, "They will be Exhibit F". He then indicated to counsel for the applicant that he might have access to them.

It is clear that before counsel for the respondents cross-examined the Returning Officer he had conferred with him and apparently it was with knowledge of the steps taken by the Returning Officer that counsel questioned him with a view to establishing the meaning of the figures on Annexure A.

At the end of the cross-examination it was clear that counsel had set out to establish by the viva voce evidence of the Returning Officer that Mr. Lynch had received only fourteen "yes" votes and in so doing he had necessarily established also that he had received only four "no" votes, and counsel for the applicant accepted and confirmed this evidence through the Returning Officer. Of course the contents of the ballot papers were in conflict with the fact deposed to by the Returning Officer so far as he had spoken of there being only four "no" votes. The inference is that counsel for the respondents did not know this when he tendered the documents and that counsel for the applicant was and remained equally ignorant. It was inevitable that both counsel for the applicant and the learned Judge would infer that the respondents accepted that the evidence of the Returning Officer was true and that Mr. Lynch had received fourteen "yes" votes and only four "no" votes.

It is not as though the issue as to how many "yes" votes and how many "no" votes had been cast in respect of the candidature of Mr. Lynch had arisen suddenly or by surprise. The affidavit of the Returning Officer filed before the trial by the respondents was directed to that issue. Also at the very commencement of the hearing before the learned trial Judge counsel for the applicant said:-

". . . If your Honour would turn to annexure A, one sees a copy of what apparently was a ballot paper handed out and under category (a) on line 6 one sees:

Do you approve of James Thomas Lynch being accepted as a member of the guild? Yes/No? 14/4.

If that means that there were 14 yes votes for Mr. Lynch and 4 no votes, then we would wish to argue that within the meaning of the rule the meeting had voted to admit him as a member, but my learned friend tells me it is his understanding that that is not what Mr. Towers would say. Arrangements have been made to bring Mr. Towers in but I understand he cannot get here until about 12 o'clock. I merely indicate to your Honour at the outset that that is the only way in which we would be seeking to invoke the jurisdiction of the court under section 141."

What Mr. Towers did say appears from what was led from him by counsel for the respondents.

It would appear that this was the basis upon which the hearing proceeded from that point. No further reference appears to have been made to the ballot papers and it would seem that their contents were not examined by anybody. The applicant accepted the evidence that there were only fourteen "yes" votes. But if there were only four "no" votes, fourteen "yes" votes were enough if the rule were construed as the applicant contended it should be.

Reference to the ballot papers would have confirmed that there were only fourteen "yes" votes. It is to be inferred that the applicant had no suspicion at any time that the Returning Officer was in error. Indeed the production of the ballot papers by the respondents in conjunction with the asking of questions designed to confirm the figures on Annexure "A" would have been enough to create the impression quite convincingly that the ballot papers and the Returning Officer were at one. And with both counsel accepting the evidence of the Returning Officer in these circumstances the finding of the learned Judge that there were fourteen "yes" votes for Lynch and only four "no" votes was itself inevitable.

In the course of this appeal Mr. Hunter for the respondents sought to call fresh evidence, namely to elicit from the Returning Officer in substance, that he had erred in stating that the figure "4" on annexure "A" represented Lynch's "no" vote. It was desired to correct that statement by asserting that the figure "4" represented the informal votes in respect of Lynch and not the "no" votes.

In rejecting this application the court pointed out that although the application was made as one to call fresh evidence it was in effect an application to call a witness to deny evidence which he had given at the trial. It was pointed out that no explanation had been given as to why the evidence the subject of the application was to be preferred to that which had been given in all solemnity six months earlier. It was pointed out also that it could not be said that if the evidence were given that the opposite result would be reached. The evidence would be subject even on the material before the court at that stage to comments of considerable weight. And on the issue of diligence in relation to the "fresh" evidence the respondents' position was particularly weak. It was pointed out also that the court was responsive to the views expressed by Jessel M.P. in Sanders v. Sanders (1881) 19 Ch D. 373 at 380 where he said:-

"The appellant has applied for leave to adduce fresh evidence. . . The application is for an indulgence. He might have adduced the evidence in the Court below. That he might have shaped his case in the court below is no ground for leave to adduce fresh evidence before the court of appeal. As it has often been said nothing is more dangerous than to allow fresh oral evidence to be introduced after a case has been discussed in Court."

In connection with the dismissal of the application to call the "fresh evidence" it is important to note that the fresh evidence was evidence designed to support the position now desired by the respondents to be adopted which is in complete conflict with the case which was made at the trial. It was on the grounds mentioned above in conjuction with the consideration of the matters relevant to the rejection of the "fresh evidence" explained in the judgment of the majority of the Court that the evidence was rejected.

But Mr. Hunter submitted that even on the evidence before this Court the finding that there were only four "no" votes cannot stand. It is against the evidence and the weight of evidence. Alternatively he contended that the finding was made in circumstances that it does not stand with the same strength as a finding of fact actually made after examination of all the relevant evidence or one actually necessary to sustain the judgment of the Court. It is almost certain, so the argument goes, that the learned trial Judge did not examine the ballot papers, and that if he had, he would not have made the finding, or at least would have required further argument. The finding as to the number of "no" votes was unnecessary for the decision in the case because according to the construction of the rule adopted by his Honour the only relevant matters were the number of "yes" votes and the number of other "votes" whether formal or informal.

No explanation is tendered as to how it was that the respondents' advisers took a position, from which they now seek to resile which involved acceptance by them of the oral evidence of the Returning Officer. It seems to be that the idea of questioning the inference arising from the contents of Annexure A, which came into existence on 15 April 1979, never occured to anybody in the course of the trial. Indeed it was not until the hearing of this appeal had proceeded some distance, when some questions from the bench initiated an examination of the ballot papers, that it was discovered by the respondents' advisers that the contents of the ballot papers were in conflict with the evidence of the Returning Officer.

To my mind the submission that on the evidence as it stands before this Court in this appeal, the proper finding of fact, if open to this Court to make it, would be that there were in fact some sixty or more "no" votes cast in respect of Mr. Lynch, has much to support it. However, it would not be an inevitable finding. Also in view of the fact that the applicant would reasonably have accepted the evidence of the Returning Officer as led on the issue by the respondents' conduct in respect thereof, such a finding could not be made in the absence of an opportunity being given to the applicant, the appellant in this appeal, to examine fully the ballot papers and investigate and perhaps call evidence as to whether their condition now is that in which they were when examined by the Returning Officer on 15 April 1979.

But this is a case in which the adverse finding of fact of which the respondents now complain was one made inevitable by the respondents' own conduct. It is almost as though the respondents asked for it. It is the result of the presentation of evidence to the effect of the finding, in a way which expressed quite patently the view of the respondents that the finding could not be other than that which was made, that it was made.

The respondents submit all of that occurred by mistake. They are prepared to atone for that mistake by paying the costs of proceedings rendered useless by that mistake if given the opportunity to recast their case on the critical issue. But for the reasons expressed by my brothers Evatt and Keely JJ. that course is not one which should be adopted by this Court. A party who submits the facts to be as presented by him and whose submissions are accepted and whose case has been concluded on the basis that those facts are true, may not, except in very special cases, seek to revise the factual basis on appeal. It may be a basis for a submission that a case is special in the relevant sense, that the remedy sought is a discretionary one and that it affects the interests not only of the parties but of other persons. In a sense the order sought is only against named officers of the Guild and the order against them may affect the interests of the other members. But the proceedings are under s.141(1) of the Conciliation and Arbitration Act 1904 and as such are brought "in respect of the organization" namely the Guild, and the Guild is a party to the proceedings. Accordingly it is the organization itself as much as the personal respondents whose conduct of the proceedings has led to the finding of fact which it is now desired to challenge.

So far as discretion is concerned, if indeed, on the terms of s.141 as now expressed, there is a discretion to refuse relief although the conditions on which relief may be granted have been satisfied, any question of exercising a discretion not to make an order under s.141 would normally be referable to the facts as found in proceedings concluded according to law. I do not think it ought to be exercised to facilitate relitigation of the issue now raised in this case in a process involving the taking up by the respondent of a new position in conflict with that taken in the course of a trial which has been concluded according to law.

In my opinion the appeal should be allowed, the order of the court made on 13 December 1979 be set aside and in lieu thereof an order made that each of the respondents, other than the Guild, perform and observe the rules of the Showmen's Guild of Australasia by recognising James Thomas Lynch as a member of the Guild.

JUDGE2

This is an appeal from a judgment of a single judge of this court given on 13 December 1979 which dismissed an application by Alice Rose Lynch (the applicant) for two orders pursuant to s.140 and s.141 of the Conciliation and Arbitration Act 1904 (the Act). Under s.140 the applicant sought an order declaring that part of Rule 4 of the rules (the rules) of The Showmen's Guild of Australasia (the Guild) contravened s.140(1) (c) of the Act. The application under s.141 of the Act sought an order that the respondents, other than the Guild, be directed to perform and observe the rules of the Guild by treating James Thomas Lynch, the husband of the applicant, as a member of the Guild. At all material times the applicant was a member of the Guild which is an organisation of employers registered pursuant to the Act.

On the hearing of the appeal Mr Kenzie of counsel, who appeared for the applicant, stated that if he succeeded on the appeal from the dismissal of the application under s.141 of the Act and obtained the order sought by that application, he did not desire to pursue the remainder of the appeal. Accordingly, the court took the course of deferring the hearing of argument on the appeal from the dismissal of the application under s.140 of the Act.

Rule 4 of the rules is in the following terms:

"Membership

4(a) Any person who is over the age of 18 years may become a member of the Guild provided that he is a full-time showman and has owned and operated his own show equipment for a period of 3 years prior to his application for membership.

(b) Any person may become a member of the Guild who is the issue of a member of the Guild or the widow of a deceased member of the Guild and who is over the age of 18 years at the date of application for membership.

(c) All applications for membership shall be in the form required by the Committee giving the qualifications of the proposed member in detail, signed by the applicant and by the proposer and seconder who shall be members of the Guild of not less than three years' standing, must be lodged or forwarded by post to the Secretary of the Guild at the Registered Office for the time being of the Guild, accompanied by the full amount of the prescribed entrance fees as hereinafter provided except in the circumstances set out in Rule 5(f) hereof. The Secretary shall cause such nominations to be posted on the Notice Board at the Registered Office of the Guild for a period of one month prior to the Annual General Meeting and shall submit the names to the next Annual General Meeting of the Guild for election. A person proposed for membership must receive a majority of the votes of all members present and voting at the Meeting before being accepted as a member of the Guild. This voting shall be by secret ballot.

(d) On election by the Guild the Secretary shall notify the applicant of his acceptance as a member of the Guild."

At the Annual General Meeting of the Guild on 15 April 1979 86 members were present and each was handed by the Returning Officer, Mr Cyril Towers, a ballot paper listing the names of all of the applicants for membership, including that of Mr Lynch. The ballot paper was headed "Cross out word not applicable" and asked, in respect of each candidate for membership, the question:

"Do you approve of:=(name of candidate) being accepted as a member of the Guild.?. Yes. No."

All 86 ballot papers were returned to the Returning Officer who counted the votes. After the count it was announced that all "Category A" applicants for membership (i.e. those who came within Rule 4(a) and not within Rule 4(b) of the rules) including Mr Lynch, had failed to obtain a sufficient number of votes to be admitted to membership. The learned trial judge found as a fact that in "the case of Mr Lynch, fourteen 'yes' votes were recorded, four 'no' votes and the remainder, namely 68, did not record any vote in his case".

On the afternoon of the first day of the hearing of the appeal, Mr Hunter Q.C., who appeared with Mr Holmes for the respondents to the appeal, informed the court that Mr Holmes had during that afternoon examined the ballot papers which were tendered in evidence before the learned trial judge. Mr Hunter said that that examination disclosed that, in relation to Mr Lynch, 60 of the voters had the word "yes" crossed out and that 15 had the word "no" crossed out. On that basis he submitted that there was a substantial majority of votes against Mr Lynch's admission to membership of the Guild, notwithstanding the evidence given by Mr Towers, the returning officer, and accepted by the learned trial judge, that the voting in respect of Mr Lynch consisted of 14 "yes" votes and 4 "no" votes with 68 members not recording any vote in his case.

Mr Hunter submitted that the court should accept the ballot papers as primary evidence of the votes cast in respect of Mr Lynch and should prefer it to the oral evidence of the returning officer. The court, after a short adjournment to look at the ballot papers, said that Mr Hunter:

"should not assume that we will necessarily be persuaded by these documents (i.e. the ballot papers) that the facts as orally stated by Mr Towers and shown in his schedule in relation to the yes and no votes for Mr Lynch will be displaced . . . There is no sworn evidence . . . that these documents were in the condition that they are now at the time Mr Towers made his count".

Mr Hunter then said "we see a very simple explanation as reconciling the testimony and the contents of these documents". He applied for leave to adduce further evidence which he wished to put before the court on the following day.

On the second day of the hearing of the appeal Mr Hunter supported his application for leave to call further evidence by tendering an affidavit by Mr Towers, sworn that day (11 June 1980). Mr Towers in his affidavit:

1. made statements as to the voting at the 1979 Annual General Meeting which were in conflict with the oral evidence given by him before the learned trial judge;

2. made no attempt to explain why he had given oral evidence at the trial which in his affidavit he implied - without expressly so stating - was incorrect;

3. said that the ballot papers which were an exhibit in the proceedings, were in the same condition as they were in at the completion of the counting of the votes but gave no explanation as to how he could swear to that fact.

Mr Hunter also sought and obtained leave to file on the third day of the hearing of the appeal an affidavit by Rupert George Rosenblum, the solicitor for the respondents. That affidavit dealt with various matters and included a passage which appeared to be an attempt to explain why Mr Towers had given oral evidence which the respondents now contended was incorrect, saying that:

"prior to giving that evidence he had not been asked to refresh his recollection of the results of that voting from the primary evidence consisting of the ballot papers recording the votes of the members of the respondent Guild. He had, though, identified those papers."

The court refused to grant the application for leave to adduce further evidence, saying, inter alia:

"the application is made to call what is called fresh evidence, that evidence being in effect merely a denial by a witness of evidence which he previously gave. No explanation is given as to why the evidence in the affidavit is to be preferred to that which he gave in all solemnity six months ago and, in our view, it could not possibly be said that if that evidence were adduced an opposite result would have been reached."

Accordingly the appeal from the dismissal of the application under s.141 of the Act is to be considered on the evidence before the learned trial judge.

His Honour upheld a submission by counsel for the respondents that Mr Lynch had not been "accepted as a member of the Guild" because he had failed to "receive a majority of the votes of all members present and voting at the" Annual General Meeting in 1979. It was submitted on behalf of the respondents that Mr Lynch had failed to "receive a majority of the votes of all members present and voting at the meeting" because he had only received 14 "yes" votes. It was argued that this was so notwithstanding that, as the learned trial judge found, there were only "four 'no' votes and the remainder, namely 68, did not record any vote in his case".

We are unable to accept that argument. In our opinion the natural meaning of the rule in requiring an applicant to "receive a majority of the votes of all persons present and voting at the meeting" (Rule 4(c)), is to require each applicant for membership to receive a majority of the votes of those members present at the meeting who vote in the election held to decide whether or not that particular applicant for membership should be accepted as a member.

Further, the context of the words "receive a majority of the votes of all members present and voting at the meeting", suggests that the word "voting" is referring to voting in the election held to determine whether an individual applicant should be accepted as a member. The word "voting" can not mean "voting at the meeting" on some item of general business which is unrelated to the election of one or more applicants as members. The "voting" referred to must be voting in the election referred to in the preceding sentence. Once it is accepted that the word "voting" is intended to be confined in that way then in our opinion the natural meaning to be given to the word "voting" in its context is voting in respect of a particular applicant in the election for membership.

The context of the words under consideration shows the purpose of the provision. Rule 4(c) requires that nominations of new members shall be "posted on the Notice Board at the Registered Office of the Guild for a period of one month prior to the Annual General Meeting" at which meeting "the Secretary . . . shall submit the names . . . for election". The principal purpose of that portion of the rule is to ensure that members of the Guild have sufficient notice to enable them to attend the Annual General Meeting and to vote for or against any individual applicant for membership. Perhaps it should be added parenthetically that we express no opinion as to whether the rule, having such a purpose and effect, contravenes s.140(1)(c) of the Act: the court has not heard any argument on that part of the appeal. The majority which an applicant must receive before being accepted as a member of the Guild is a majority of the "members present and voting". The rule does not require an applicant for membership to receive the votes of a majority of the members of the Guild or the votes of a majority of the members present at the Annual General Meeting. That the rule does not so intend has been made clear by the inclusion of the word "present" and the inclusion of the words "and voting".

It will be noted that, if an applicant for membership were the only candidate for election at an Annual General Meeting, then he would be accepted as a member if he "received a majority of the votes of all members present and voting at the meeting" in the sense that he received "a majority of the votes of all members present" who crossed out "Yes" or "No" on their ballot papers. The inclusion of the words "and voting" recognises that some members present at the meeting may not vote on the question of whether a "person proposed for membership" should be "accepted as a member of the Guild". In our opinion the rule manifests an intention that the fact that some members present - even if it be the great majority of them - fail to vote (whether by deliberately abstaining from voting or otherwise) shall not operate to require an applicant for membership to obtain a greater number of votes than would have been necessary had those members failed to attend the meeting. Further, in our opinion, there is nothing in Rule 4 which evinces an intention that an applicant for membership who is one of a number of applicants, may by reason of that fact be required to obtain a greater number of votes than would have been necessary had he been the only applicant for membership or had his application for membership been the subject of a separate ballot from those of each other candidate for membership.

If the meaning of the words is ambiguous it is permissible to examine the history of the rule in an endeavour to ascertain its meaning - see R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 C.L.R. 208 at p.237 per Latham C.J. But, as Kitto J. said in the same case (at p.263), it is not permissible to appeal to:

"earlier enactments, not for the purpose of removing any uncertainty . . . either patent or latent, but for the purpose, first of introducing uncertainty into plain words, and then of resolving the difficulty thus illegitimately created."

As the Privy Council said in Aristide Ouellette v. Canadian Pacific Railway Co. (1925) A.C. 569, at pp.574-5:

"Such a reference to previous legislation may be forced upon a Court by reason of the ambiguity employed in the use of terms which the mind could not readily grasp without a previous preliminary interpretation. But it is always a process of construction which is accompanied with much danger."

In our view the material sentence in Rule 4(c) is not ambiguous.

However, in any event, we do not consider that the examination of the history of amendments to the rule set out in the judgment of the learned trial judge supports the argument for the respondents. It appears that the rule as amended in 1946 required that a candidate for membership receive the votes of a majority of those voting at an Annual or Special General Meeting of the Guild and that, before that amendment, it was only necessary to receive the votes of a majority of those voting at a Management Committee meeting. The rule was again amended in 1955 so that a candidate for membership was required to receive "a two-thirds majority of the members present at the (Special or Annual General) meeting and voting before being elected as a member . . . ". In 1977 the rule was amended so as to require a simple majority of the votes of "all members present and voting at the meeting" and it was also prescribed that the voting must be by secret ballot.

In our opinion the history of Rule 4 does not support the respondents' submissions even if, contrary to our view, reference could properly be made to that history in an endeavour to ascertain the meaning of the words under consideration. We also consider that the submission is not strengthened by the presence of the word "all" in the words "all members present and voting" nor by the fact that, as a matter of history, the word "all" was inserted in 1977.

Accordingly, we are unable to accept the submissions put on behalf of the respondents as to the construction of Rule 4.

In his reply Mr Hunter put as an alternative submission that, if the court did not accept those submissions, it should remit the proceeding to the learned trial judge for further hearing and determination (s.28(1)(c) of the Federal Court of Australia Act 1976). He submitted that this would be a proper course having regard to the conflict between the ballot papers and the evidence of Mr Towers on the question of what number of members voted "against" Mr Lynch. It was said that the existence of any such conflict was unknown to the respondents and their legal advisers until the first day of the hearing of the appeal in this court.

We have already expressed the opinion that the submissions put by counsel for the respondents as to the construction of Rule 4(c) should not be accepted. Had they been rejected at the trial and an order been made under s.141 directing the respondents (other than the Guild) to perform and observe the rules by recognising James Thomas Lynch as a member of the Guild, it would not have been open to any of those respondents to obtain a further hearing from the learned trial judge on the ground that a belated examination by their counsel of the ballot papers tendered in evidence on their behalf had revealed a defence to the application which was completely different from that advanced at the original trial. In our view the respondents should not be in a more favourable position by reason of the learned trial judge's error in the construction of the rule, i.e. they should not be able to obtain a further hearing as a result of this court exercising its powers under s.28(1) (c) to "remit the proceeding to the court from which the appeal was brought for further hearing and determination . . . ".

As to the exercise by this court of that power, we adopt, as being equally applicable, the words of Lord Morris in Seaton v. Burnand (1900) A.C.135 where the House of Lords reversed a decision of the Court of Appeal granting a new trial. His Lordship said (at p.145):

"My Lords, of course I do not say the rule is so extreme that if there were some extraordinary miscarriage of justice the persons concerned should be bound by it; but in an ordinary case, in my opinion, the parties must be bound by what is called the course of the trial - that is to say, the way in which the trial was carried on - and when the learned counsel on both sides agree upon what are to be the questions to be put to the jury, in my opinion it would be only in an exceptional case (so exceptional that at the moment I cannot anticipate what would be the circumstances that would, in my judgment, justify it) it could be held that any other questions should be submitted to the jury beyond those which the parties had agreed upon."

In Roycroft v. Iago (1873) 4 Australian Jurist Reports 145, in refusing to allow a new trial on the application of a defendant, Barry and Williams JJ. said (at p. 146):

"If parties come prepared to try issues and confine themselves to certain of them, or to one only, or to a particular view or bearing of the evidence with respect to that one, they are not at liberty to open up a new and totally different case in Banco, and it would appear that the result is the same whether the omission to take the objection or to present the particular view to the jury or to the judge arise from inadvertence, forgetfulness, or deliberate intention."

In both of those cases great weight was attached to the "course of the trial" and in particular to the way in which the case had been put on behalf of the party seeking to depart from its earlier conduct of the trial.

In the present case an examination of the appeal book shows that:

(a) From the first day of the trial there was an issue of fact before the learned trial judge as to whether the voting figures in respect of Mr Lynch were 14 "yes" and 4 "no";

(b) The learned trial judge found as a fact that there were only 4 "no" votes;

(c) Counsel for the respondents on the first day of the trial, suggested to the learned trial judge that a short adjournment be granted to enable counsel for the applicant to talk to Mr Towers (the returning officer) - apparently as to what happened at the 1979 Annual General Meeting; however, he objected to counsel for the applicant conferring with Mr Towers in the absence of the respondents' legal advisers;

(d) Counsel for the respondents spent some little time in conference with Mr Towers during the short adjournment;

(e) Counsel for the respondents objected to his opponent tendering the affidavit of Mr Towers which had been filed on behalf of the respondents;

(f) Counsel for the respondents objected successfully to a question asking whether Mr Lynch had ever heard Mr Towers say what the voting was in respect of Mr Lynch.

(g) Mr Towers gave evidence that he recorded each "yes" and "no" vote on a sheet and gave it to the President of the Guild (Mr Howard). The sheet was called for and was not produced. There is no evidence that the sheet has been destroyed or could not be found.

(h) Counsel for the respondents cross examined Mr Towers and elicited the fact that the two columns of figures on the results sheet were "yes" and "no" votes.

(i) Mr Towers' evidence as to the voting was not contradicted by either of the respondents who gave evidence after Mr Towers, i.e. the President (Mr Howard) - to whom Mr Towers handed the voting results at the Annual General Meeting - and the Secretary (Mr Bowden). Nor was it contradicted by the evidence of the Industrial Officer of the Guild (Mr Durkin) who also gave evidence on behalf of the respondents.

(j) Mr Towers gave evidence that, of the persons at the 1979 General Meeting who were given ballot papers for candidates for membership, "some of them scribbled something diagonally across the form, some of which was abusive and they were judged informal". None of the ballot papers tendered in evidence has any such scribbling.

In view of the finding of the learned trial judge on the matter which was in issue before him and having regard to the way in which the trial was conducted, we do not consider that this court should remit the proceeding for further hearing and determination.

In any event, the affidavit material tendered before this court on the hearing of the appeal fails to demonstrate that the result would be different if there were a further hearing before the learned trial judge with an opportunity for counsel for all parties both to cross examine and to call further evidence. In our opinion it would not be a proper exercise of this court's power under s.28(1)(c) to remit the proceeding for further hearing and determination on the assumption that, when the further hearing takes place, the respondents may, perhaps, be in a position to prove then what they failed to prove at the trial.

In our opinion the appeal should be allowed, the order of the court made on 13 December 1979 be set aside and in lieu thereof an order made that each of the respondents, other than the Guild, perform and observe the rules of The Showmen's Guild of Australasia by recognising James Thomas Lynch as a member of the Guild.