Mahony, Patrick John v Petie, Robert Dawson and Australian Bank Employees Union

MAHONY v. PETIE (1979) 37 FLR 488
*(EDITOR'S NOTE: On 14th September, 1979, the Court
by consent discharged the order nisi.)
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Evatt J.(1)

CATCHWORDS

Conciliation and Arbitration - Elections - Challenge to rules of organization - Rules silent as to inspection of electoral roll - Right of candidates to inspect roll of members - Meaning of "inspect" - Duties of returning officer - Interim order vacated - Conciliation and Arbitration Act 1904 (Cth.), ss. 140 (1), (10), 141.

HEADNOTE

The claimant, a member of the Australian Bank Employees' Union, was a candidate at elections being conducted by the organization for positions on the New South Wales division committee and delegates to the federal conference, pursuant to the rules, and in particular r. 15, of the organization. Rule 15 (d) required that within twenty-one days of the close of nominations the returning officer forward ballot papers by pre-paid post to each financial member at his address as it appeared in the register of members.

The claimant was granted a rule to show cause directed to the union and its New South Wales division secretary requiring them to show cause why, under s. 140 of the Act, an order declaring r. 15 of the rules of the organization to be void and, under s. 141 of the Act, an order directing the secretary to observe the rules by refraining from issuing instructions to the returning officer, should not be made. The claimant was granted an interim order, pursuant to s. 140 (10) of the Act, restraining the organization, the New South Wales division secretary and the returning officer from posting the ballot papers until such time as the claimant was supplied with a copy of the membership roll. Rule 56 provides: "Each register kept by each division secretary may be inspected by any member of the association at any time during ordinary office hours, on application to the appropriate secretary." Before the grant of the interim order the returning officer had posted approximately 1,700 envelopes containing ballot papers and the balance of approximately 3,500 had already been sealed and were ready for posting. The claimant had known for some three weeks before he applied for the interim order that he would not be given a copy of the register of members.

Held: (1) The claimant had shown a prima facie case in accordance with the principles to be applied in the granting and continuance of interim orders.

World Series Cricket Pty. Ltd. v. Parish (1977), 16 ALR 181, applied.

(2) On the evidence, the balance of inconvenience to the organization outweighed the convenience to the claimant, and the interim order should be vacated.

(3) Although expressing no final view as to the interpretation of r. 56, it would appear on the authorities that it not only gives members the right to view the register, but also includes the right to copy it.

Observations as to the position generally of returning officers in union elections, and the decision of the Full Court in Lyons v. Deegan (1978), 35 FLR 430, cited.

HEARING

Sydney, 1979, September 11, 12. #DATE 12:9:1979

APPLICATION.

Application pursuant to s. 140 of the Conciliation and Arbitration Act 1904.

L. Lamprati, for the applicant.

J. McCarthy, for the respondents.

S. Wong (solicitor), for the returning officer.

Cur. adv. vult.

Solicitors for the applicant: Patrick Grimes & Co.

Solicitors for the respondents: Arthur Pritchard & Co.

N. GOOD.

JUDGE1

September 12.

The following judgment was delivered.

EVATT J. At the present time elections are being conducted in the Australian Bank Employees' Union (the organization), an organization registered under the Conciliation and Arbitration Act 1904 (the Act), for, inter alia, the positions of representatives on the New South Wales division committee and delegates to federal conference, pursuant to the rules, and in particular r. 15, of the organization. (at p489)

Mr. John Poole is the returning officer conducting the said election. He is not a member of the organization but it has been stated that he is a retired bank officer who was for many years a member thereof. (at p489)
The claimant, Patrick John Mahony, is a member of the organization and is a candidate for two positions, namely a New South Wales division committee man and a delegate to the federal conference. (at p489)
The affairs of the organization are managed by a conference, a federal executive, division committees and various officers of the division. The conference is the supreme legislative and governing body of the organization and consists of its officers together with delegates from divisions elected in accordance with the rules. The divisions are provided for in the rules and, in effect, are branches of the organization in the various States or in any particular area which, by resolution of the conference or the federal executive, it is considered that a division should be established. (at p489)
The division committees consist of the officers of the division, together with committee men representing and elected by the members employed by each employer in the industry of banking, employing members attached to the division, together with representatives of persons employed in connexion with the industry of credit unions. (at p489)
The claimant is employed by the Railways Staff Credit Union Ltd. The New South Wales division of the organization consists of some 20,500 financial members, of whom some 600 are employees of the various credit unions in the State. The electorate for the ballot for the first position the claimant has nominated for, namely, as division committee man, are those 600 members employed by such credit unions, whilst the electorate for the ballot for the second position he has nominated for, namely, delegate to conference, is the total financial membership of the New South Wales division. (at p490)
Nominations were called for early in August 1979 and closed on 21st August. In fact, ballot papers were commenced to be forwarded to the members of the organization on 7th September last. According to the present programme the ballot closes on 25th September next. (at p490)
Rule 15 (d) of the certified rules of the organization requires that within twenty-one days of the close of nominations the returning officer shall forward by pre-paid post to each financial member at his address, appearing in the register of members, ballot papers together with a pre-paid postage return envelope. In accordance with r. 15 (d) such ballot papers should have been forwarded by 11th September. (at p490)
At or about 9.30 a.m. on 7th September last the claimant, through his counsel, Mr. Lamprati, sought and was granted a rule to show cause directed to the organization and to the New South Wales division secretary, Robert Dawson Petie, pursuant to s. 140 and s. 141 of the Act respectively, to show cause why, under s. 140, an order declaring r. 15 of the rules of the organization to be void, and, under s. 141, an order directing Mr. Petie to perform and observe the rules of the Australian Bank Employees' Union by refraining from issuing instructions to John Poole, the officer who was conducting elections in the New South Wales division of the organization, not to supply a copy of the membership roll to the applicant should not be made on the grounds set out in the affidavit of the claimant sworn on 7th September. (at p490)
Thereafter, Mr. Lamprati sought an interim order pursuant to s. 140 (10) restraining the organization and Mr. Petie that, pending further order of the court, the posting of the ballot papers for the current elections referred to above be delayed until such time as Patrick John Mahony, the claimant, is supplied with a copy of the New South Wales division membership roll or until further order of the court, and that the said elections not be invalidated by reason only of the making of such interim order. (at p490)
At that point in time it was not clear whether some of the ballot papers had been posted out by the returning officer, but nevertheless the interim order was granted. I mention the fact of the wording of the interim order asked for in the application and in particular the last part of the order wherein it was mentioned that the elections be not invalidated by reason only of the making of the interim order. I point that out because in the formal order that was taken out and entered in this matter, pursuant to the granting of the interim order on 7th September, no mention is made of the fact that the elections be not invalidated by reason only of the making of the interim order. My note, which was made at the time of the granting of the order, is that the interim order as asked for in the application be granted. (at p491)
At that time it was pointed out that the returning officer was not a party to the proceedings, and Mr. Lamprati indicated to me, when he sought the rule to show cause, that he felt sure that once the organization and/or Mr. Petie knew of the granting of the interim order sought, then the returning officer would take no further steps in the elections pending further order of the court. (at p491)
Subsequently, on Friday 7th September, Mr. Lamprati and a solicitor from the claimant's firm of solicitors, Messrs. Patrick Grimes and Co., namely Susan Mary Stanton, attended upon me in chambers seeking a variation of the interim order that I had granted earlier in the day by adding the name of Mr. Poole to those to whom such order had been directed. (at p491)
This came about by the circumstances set out in Susan Mary Stanton's affidavit sworn 10th September, 1979, but the facts therein set out were given orally to me in chambers. I was informed that after the granting of the interim order she, Miss Stanton, had contacted Mr. Poole, the returning officer, and asked if he was prepared to give an undertaking that no ballot papers would be sent out in the elections but Mr. Poole indicated that he would not give such an undertaking until he had been served with a court order and meanwhile he would have to seek advice from the union officials. (at p491)
The court, late on Friday afternoon, varied the order made in the morning, by adding the name of Mr. Poole to the persons to whom the order had been directed. There were consequential orders made as to service and abridging of time so that the matter could be listed before the court at 9.30 a.m. on 11th September, 1979. (at p491)
I mention these facts so that if an application under Pt IX of the Act is made in the future after these elections have been conducted, the court then will be aware that a specific order had been made that the said elections be not invalidated by reason only of the making of such interim order. (at p491)
In fact, during the hearing yesterday, 11th September, it was pointed out that that was the twenty-first day after the closing of nominations and was the last day on which the returning officer should forward out ballot papers. I then indicated that I would make an order until today's date similar to the order that had been originally asked for. (at p491)
The matter was listed for hearing of the continuance of the interim order and for directions in the matter on 11th September. Prior to it being called in court, Mr. McCarthy of counsel and Mr. Lamprati attended on me privately, and Mr. McCarthy indicated he was appearing for the organization and for Mr. Petie. I then asked counsel whether the returning officer was represented and Mr. McCarthy informed me that he was appearing for the returning officer as it was the view of the organization that the returning officer was an employee of the organization. (at p492)
It was suggested it may be better if there were separate representation for the organization and the returning officer. Mr. McCarthy then asked for a short adjournment whilst an affidavit to be sworn by Mr. Petie was engrossed. This was granted. (at p492)
When the matter did come on for hearing, Mr. Wong, a solicitor, appeared for the returning officer. Mr. McCarthy then asked leave to file in court a notice of appearance on behalf of the two-named respondents, namely, the organization and Mr. Petie, together with an affidavit of Mr. Petie, sworn 11th September. That notice of appearance is filed by a firm of solicitors, Arthur Pritchard & Co., but is signed by Mr. Wong, a solicitor of that firm. (at p492)
Both the claimant and Mr. Petie gave oral evidence. Mr. Petie stated in his evidence that inquiries of the returning officer revealed that on Friday morning, before the granting of the interim order herein, the returning officer had caused approximately 17,000 envelopes containing ballot papers, etc., to be posted out and that the balance of the postal ballot papers which had already been sealed and were ready for posting, amounted to some 3,500. Further, that the returning officer, when he was served with the interim order herein, together with the papers directed to be served upon him, refrained from sending out those 3,500 envelopes until further order of the court. (at p492)
The evidence before me clearly shows that the claimant in this matter was informed both by Mr. Petie and the returning officer as early as 10th August that he would not be supplied with a copy of the register of members. The court was referred to r. 56 of the certified rules of the organization, which reads: "Each register kept by each division secretary or by the federal secretary may be inspected by any member of the association at any time during ordinary office hours, on application to the appropriate secretary." (at p492)
No detailed argument was placed before the court as to the proper interpretation of this rule, and in particular, the words "may be inspected" contained therein. Mr. Petie stated in his evidence that it was the view of the federal executive and other officers of the organization that the word "inspected" meant simply viewing the register and not to copy it in any way at all. As there has been no detailed argument as to r. 56, and in view of the fact that the rule is not relied on in any formal application before the court, I express no final view as to its interpretation; but I would say that it would appear that, following authorities, the rule not only gives members the right to view the register, but also includes the right to copy such register. (at p493)
Further, the evidence of Mr. Petie shows that in the New South Wales division, of the employees employed by private banks and credit unions, some eighty per cent belong to the organization. Further, that since 1974, I think it was, there has been agreement between the private banks and the organization as to a "closed shop" principle, and that the dues or subscriptions of members are to a large extent deducted by employers from the salary of members. The organization has its own computer and the register of members is in fact a print out of the computer which normally, the court has been told, would, subject to human error in the feeding of the current information into the computer, show the financial position of members at any given time. (at p493)
The rules of the organization further provide that a member whilst on deduction is deemed to be financial at any point of time. Mr. Petie also said in evidence that the addresses shown in the register of members to a large extent is the address of the employer and not the home address of the member. Further, if a member is transferred from one branch of a bank to another, either in the metropolitan area or a country centre, the particular bank lets the organization know of the transfer and the new branch is then shown as the address of that member. (at p493)
Mr. Mahony, in his oral evidence, agreed that he had had published some 800 "how to vote" pamphlets on his behalf and it was his intention to circulate these among the members employed in credit unions, and had to some degree brought that about, particularly in his own credit union, but his main contention was that he was anxious to be able to canvass the whole divisional financial membership with a view to getting elected as federal delegate to the conference. (at p493)
Also placed before the court were two copies of the organization journal, called "Dollars and Sense", for the months of July and September 1979. In the July copy members were informed of the forthcoming elections, nomination forms were provided therein and candidates were informed that in the September issue of the journal there would be published precise details as to the status, age and experience of the candidates and that candidates might also in that edition of the journal at no expense to themselves make known their individual policies to the electors by providing a typewritten policy speech not exceeding 200 words and that the resume might be accompanied by a black and white passport size photograph. A date was given as to when such material had to be placed in the hands of the editor of the journal. (at p493)
In the September issue of the journal it is clear that Mr. Mahony took advantage of the offer to publish a short policy speech, together with the placing of his photograph in the journal. Apparently lots were drawn as to the positions of the various candidates' photographs and policy speeches and Mr. Mahony's appears in the centrefold first on the left-hand side at the top of the page. (at p494)
The court was informed that every member of the New South Wales division had been forwarded a copy of the September journal some time prior to the current elections. In my experience this is the first time I have seen a provision provided whereby candidates are given the opportunity to place their "policy speech" before members in this way and it is to be commended. The rules apparently do not make specific provision for this procedure, but it has been a practice apparently for some years. (at p494)
Mr. McCarthy on behalf of the organization and Mr. Petie has submitted that the affidavit evidence of Mr. Mahony was less than frank. I do not understand this submission. As I understand his submissions, he suggests the court was not informed in such affidavit that Mr. Mahony had been afforded the opportunity to place his policy speech in the journal. It has been pointed out by Mr. Grimes this morning that a letter from the returning officer addressed to the solicitors for the applicant, wherein it was stated that Mr. Mahony had been afforded such opportunity, was in fact annexed to his affidavit. On the other hand, I am not at all satisfied that the sole purpose of Mr. Mahony was that he wanted the register of members for his own purposes to use in his current election campaign. My impression of him as a witness was that he was less than frank with the court on occasions until he was informed by the court of his position as a party to these proceedings. (at p494)
He was questioned as to the costs of posting out propaganda to each and every financial member and agreed that such costs could run into thousands of dollars. (at p494)
I am of the view that prima facie any candidate in a union election is entitled to the electoral roll. If in fact a candidate wants to expend $10,000 in canvassing 20,000-odd members then it is a matter for him. If he circulated a glossy paper, finely printed propaganda sheet, again it is a matter for him. I only add, of course, that if such was the case, perhaps the electorate may wonder where the money to pay for such propaganda was coming. It may well be a double-edged sword as far as that candidate was concerned. (at p494)
Mr. McCarthy has referred the court to the principles that are to be applied in the granting and continuance of interim orders such as the present. Bowen C.J., in World Series Cricket Pty. Ltd. v. Parish (1977) 16 ALR 181 , after referring to Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. (1968) 118 CLR 618 , said: "The High Court expressed the view that in all cases . . . the balance of convenience . . . " (1977) 16 ALR, at p 186 . (at p494)

The rule to show cause in this matter claims that r. 15, (the rule under which the present election is being conducted) contravenes s. 140 or, in the alternative, that the rules of the organization contravene s. 140 in that they fail to make a provision required by the Act, namely the provision referred to in s. 130 (3) (1) (d). Suffice it to say that, in my view, the claimant has shown a prima facie case within the meaning of that expression as used in Beecham's case and in Parish's case and in other cases of this Court decided since Parish's case. (at p495)
This then leaves for consideration the balance of convenience. In my view the claimant, on the evidence before me as at present, fails in this regard. In my view, the balance of inconvenience to the organization and its members far outweighs the balance of convenience of the claimant. At this point in time some 17,000 ballot papers were in fact forwarded on Friday 7th September and are no doubt in the hands of a large number of members already, some of whom may have in fact voted and returned their ballot papers. If the other 3,500 ballot papers are forwarded today, the programme set out for the election can be adhered to. (at p495)
In exercising my discretion on this aspect of the case, I have taken into consideration the matters referred to in evidence and in particular referred to earlier in these reasons for judgment. Further I have considered the delay of the claimant in making his application - he has known for some three weeks that he would not be given a copy of the register of members or the electoral roll, whichever it may be called. The probabilities are that the electoral roll is in fact the computer print out of the register of financial members. I make this order being aware also that the claimant may have rights both under s. 141 and Pt IX of the Act after the declaration of the ballot in this matter which he can pursue if so advised. (at p495)
Certain reasons were given to the court as to the union's reasons for refusing to make available a copy of the register of members to any member. These are referred to in the affidavit of Mr. Petie and it is unnecessary to set them out in these reasons. Mr. McCarthy has pointed out to the court that at the substantive hearing of this matter submissions would be placed before the court to show that the rules of the organization, and in particular r. 15, are not in contravention of the Act, that the organization had a strong defence to the claimant's claim in this regard and that the court would then be informed, so I was told; as to the reasons behind the policy of the union in not making copies of the register of membership available to members. I will wait with interest to hear such reasons. Mr. Grimes has submitted that such reasons as set out in the affidavit are not weighty. In my view this submission is well founded. (at p495)
This then leaves one other matter which I feel should be referred to. The court has on more than one occasion had cause to make observations as to the position generally of returning officers in union elections. I quote from the decision of the Full Court of this Court in the matter of Lyons v. Deegan (1978) 35 FLR 430 . The court stated: "Looking at this question by reference to considerations of principle we consider it plain that there is a duty on the part of a returning officer pursuant to rules such as r. 21 and indeed in all cases in which a free vote of members is sought for the purpose of ascertaining the opinion of members, that the returning officer should consider himself as an official at arm's length from those members of the organization having any interest in the vote going one way or the other, so that, in all aspects of the machinery for the taking of the vote the taking of a free vote is achieved, uninfluenced by any propaganda in the machinery" (1978) 35 FLR, at pp 442-443 . (at p496)
The returning officer in the instant case has not given evidence. There is sworn evidence from Mr. Mahony in his affidavit that the returning officer informed him that the secretary, Mr. Petie, had instructed him (that is the returning officer) that he, Mr. Mahony, was not to have a copy of the electoral roll or the register of members. Mr. Petie in his evidence has denied that he gave any such instructions to the returning officer, but that evidence of course does not cut down the evidence or the allegation set out in Mr. Mahony's evidence. (at p496)
As I understand it, the returning officer is conducting the present election from the office of the New South Wales division of the organization. There is no suggestion that any irregularity has up to this stage taken place (other of course than his failure to supply a copy of the electoral roll). But the passage that I have quoted from Lyons v. Deegan should be borne in mind. (at p496)
I vacate the interim order made on 7th September last directed to Mr. Poole, the organization and Mr. Petie. (at p496)
As to the balance of some 3,500 ballot papers, I understand that the returning officer has them ready and can forward them by post by 5 p.m. today, 12th September, 1979. This date is beyond the twenty-one days referred to in r. 15 (d). I make an order extending the time for compliance with r. 15 (d) until 5 p.m. on 12th September, 1979. I further order that such extension is not to invalidate the election by reason only of the making of such order. (at p496)

ORDER

Order accordingly.

[1979] FCA 107

12 SEPTEMBER 1979