Main, In The Matter Of An Election For An Office In The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union; Victorian Divisional Branch; Electrical Division
[1999] FCA 1080
•3 AUGUST 1999
FEDERAL COURT OF AUSTRALIA
Main, In The Matter Of An Election For An Office In The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing And Allied Services Union; Victorian Divisional Branch; Electrical Division [1999] FCA 1080
IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION; VICTORIAN DIVISIONAL BRANCH; ELECTRICAL DIVISION
EX PARTE: GARY NORMAN MAIN
V 426 of 1999
RYAN J
3 AUGUST 1999
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 426 OF 1999
IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION; VICTORIAN DIVISIONAL BRANCH; ELECTRICAL DIVISION
EX PARTE:
GARY NORMAN MAIN
JUDGE:
RYAN J
DATE OF ORDER:
3 AUGUST 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 426 OF 1999
IN THE MATTER OF AN ELECTION FOR AN OFFICE IN THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION; VICTORIAN DIVISIONAL BRANCH; ELECTRICAL DIVISION
ApplicantEX PARTE: GARY NORMAN MAIN
JUDGE:
RYAN J
DATE:
3 AUGUST 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There is before the Court an application instituted purportedly by the filing of an affidavit by the applicant, Gary Norman Main, sworn 30 July 1999. That is an application for an inquiry into an election in the Victorian Divisional Branch ("the Branch") (Electrical Division) of the Communications, Electrical, Electronic Energy Information, Postal, Plumbing and Allied Services Union, ("the Union").
By his application, Mr Main gives the following particulars of alleged irregularities;
"expending the funds of the Union in the preparation, publication and distribution of material which can fairly be regarded as electioneering material in favour of the nomination of the first, second respondent and others in the election".
The application names Dean Jonathan Mighell as first respondent and Gavin Mark Marshall as second respondent. They are respectively the Secretary and Assistant Secretary of the Branch and have been nominated as candidates for re-election to those offices in the subject election for which nominations were called on 5 July 1999. Then, by way of facts relied on, the application sets out allegations of the publication by the respondents of what is said to be electioneering material.
In addition, by an affidavit filed in court this morning, Mr Main deposes to the supply to the returning officer of a roll of members of the Union which Mr Main alleges was made available for candidates in the election on 23 July 1999. His complaints about the form of that roll are:
"4.The roll does not contain details of either the gender of the members therein listed, or the Christian names of the members listed therein.
5.The respondents have access to a roll that has these details.
This is demonstrated by:
5.1A copy of the mailing sachet which contained a copy of the exhibit GNM3 -
which is now produced and shown to me and marked GNM6:
5.2.A copy of a letter which has been sent to members by the first respondent
which is now produced and shown to me and marked GNM7.
6.The roll is divided into various divisions. The first page of each division is in a print size which is capable of being scanned by a computer to enable printing of letters, envelope stickers and other material for use in my campaign. The majority of the roll is not being printed in a type which is barely legible to the human eye, and not, I am instructed by my computer consultant, able to be scanned by a computer for the purpose of producing mail-out material."
As far as the irregularity said to be constituted by the publication or dissemination of electioneering material with the use of Union funds or resources is concerned, I am bound by the authority of the High Court in Re Collins ex parte Hocking (1989) 167 CLR 522 to hold that that is not an irregularity in or in connection with an election, within the meaning of s.218 of the Workplace Relations Act. In a joint judgment in that case, Toohey and McHugh JJ at page 526 said:
"While any breach of the rules of an organisation may constitute an irregularity in terms of the definition, not any breach will give rise to an irregularity in or in connection with an election, the phrase used in Part IX of the act. (See sections 159(1), 160(1) paragraph (a), 165(1)). In R v Gray ex parte Marsh (1985) 157 CLR 351 at 368 Gibbs CJ noted, "The notion of an irregularity in relation to an election involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election."
Then the joint judgment continues:
"That is because the court is concerned, under Part IX of the act, with an irregularity in or in connection with an election. It is not that irregularity, is itself so circumscribed. Furthermore, the court is constrained by s.165(4) from declaring an election void, unless of the 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." Conduct which constitutes a breach of the rules of an organisation, but which goes no further than supporting the candidature of members of a particular team, amounts to an irregularity. But it does not give rise to an irregularity in or in connection with an election, because it does not involve a departure from some rule, practice or principle governing the conduct of the election."
As will be apparent from the discussion in which I have engaged with Counsel this morning, I take the same view of the irregularity said to have been constituted by the supply to the returning officer of a roll of members in a form less adaptable to the electioneering purposes of candidates than other lists or rolls available to the incumbent officers of the Branch, and presumably used by them to disseminate their electioneering material. I pressed Mr Flower of Counsel for the applicant to indicate how the supply of a roll in that form to the returning officer constituted a departure from some rule, practice or principle governing the conduct of the election. But he was able only to assert, which he did as strongly as possible, that it involved a corruption, as he put it, of a practice affecting the election, because it operated unfairly in the way which I have just described.
In my view that is not sufficient to distinguish it from the distribution of electioneering material itself. The applicant's complaint is really about conduct occurring at one stage before the dissemination of electioneering material, that is, conduct preparatory to the dissemination of material by compiling a mail-out list or other facility of that kind. For these reasons, I have been led to conclude that, even if all of the factual matters asserted by the applicant were made out, the Court could not ultimately find that there has been an irregularity in the requisite sense. That makes it unnecessary for me to consider the applicant's failure to comply with Reg 62 which Mr Borenstein contended has occurred because the application has not been accompanied by a statutory declaration.
Accordingly, the application will be dismissed.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN . Associate:
Dated: 3 August 1999
Counsel for the Applicant: Mr A Flower Solicitor for the Applicant: J N Zigouras & Co Counsel for Dean Jonathan Mighell and Gavin Mark Marshall: Mr H Borenstein Solicitor for Dean Jonathan Mighell and Gavin Mark Marshall:: Maurice Blackburn & Co Date of Hearing: 3 August 1999 Date of Judgment: 3 August 1999
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