McLeish, David v Dolan, Clifford Ormond

[1979] FCA 4

I n d u s t r i a l law - e l ec t i on f o r o f f i c e s i n t rade unlon (registered

organisa t ion) - e l ec t i on mater ia l circulated t o members of union paid f o r from union funds - breach of implied r u l e -

rhe ther i r r e g u l a r i t y withln ss.& and 165 of Conci l la t lon and

:.rSltretion Act 1904 - held not such an i r r e g u l a r i t y .

Ba l lo t papers not d i s t r i bu t ed t o a l l members due t o computer

malfunction - held an i r r e g u l a r i t y withln t h e meaning of the Act but, by reason of number of poss ib le votes involved, not one whlch had o r might have a f fec ted t h e r e s u l t - Conciliation

and Arb i t ra t ion Act 1904, ss .4, 159, 165(1) and (4) .

I N THE MATTER of an inquiry i n t o an e l ec t i on i n the

AUSTRALIAN POSTAL AKD TELECOMMUNICATIONS UNION (Applicant -

Edward k e l t h WILSGM).

N1S.W. No. 38 of' 1979

SHEPPARD, J.

Sydney

20th December, 1979

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION	NO. 38 of 1979
NEW SOUTH WALES DISTRICT REGISTRY

IN THE MATTER of the Conciliation and krbitratlon Act, 1904

AND IN THE MATTER of an inquiry into an electlon in the Australian

Postal and Telecommun~cat~ons Unlon

I~ppllcant - Edwara Kelth ?illson)

DATE OF ORDER: 20 December, 1979

WHERE MADE: Sydney

JUDGE MAKING ORDER: Sheppard, J.

THE COURT ORDERS THAT:

The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION	No. 38 of 1979
NEW SOUTH WALES DISTRICT REGISTRY

IN THE MATTER of the Conciliation and

Arbitratlon Act, 1904

AND IN THE PATTER of an inquiry into an electlon in th'e Australian Postal and Telecornrnunlcations Union

l~pplicant - Edward Kelth 'Yillson)

-

20 December, 1979 SHEPPARD, J.

JUDGMENT

This is an application by Edward Keith Wilson pursuant

to s.159 of the Conciliation and Arbitratlon Act 1904.	The
applicant is a member of the Australian Postal and Tele-

communications Union ("the A.P.T.U." or "the uniontt). An

election for a number of offices in the union began on

3 September 1979 and concluded on 2 October 1979. It was

conducted pursuant to s.170 of the Act by an officer of the

Australian Electoral Office in Sydney.

The irregularities claimed to have been present were

stated in the application as follows:

1. Use of the organization's property and resources by the general secretary-treasurer so as to support, promote or defeat various candidates for office.

2. The unauthorised collection of ballot papers by a candidate in the election.

At the hearing the second matter relied upon was abandoned. The first was pressed and in addition it was claimed that a number of persons entitled to vote had been disfranchised

because no ballot papers had been sent to them. It is open

to the applicant to rely on .that matter, notwithstanding it

was not referred to in his application. Once an inquiry is

put in train, the court is empowered to examlne any breach of

the Act or relevant union rules or conduct by officials,

parties or individuals, which is disclosed by the evidence

and through which an irregularity within the meaning of the

Act may have occurred; Re Elections for Offices in

Australasian Meat Industry Employees Union, 5 FLR 260 at p.265,

Jutte v. Amalgamated Engineering Union, 10 FLR 195 at p.201.

The basis for the first matter of complaint is the sending

by the general secretary-treasurer of the union, Mr. Slater,

on 29 August 1979 of an open letter to some members of the

New South Wales branch of the union. The letter was sent on

the letterhead of the federal executive of the union. It was

printed at a cost of $998.55. It was enclosed in envelopes

belonging to the union. With it was also enclosed a unlon

newsletter, about which no complaint is made.

The envelopes were addressed by a commercial malling firm,

which also placed the letter and the newsletter in the

envelopes. Its charges amounted to $474. Postage amounted

to $1,261.	Each of the amounts incurred was pald out of
union funds.

The open letter was headed with the words, "Come Off It,

Mr. Hawkins". These were printed in large bold type. The

letter began by referring to a circular whlch had been sent

by Mr. Hawkins on 9 August 1979 and was numbered 79/77.

Before'saying more of the terms of Mr. Slater's open

letter, I should say something of Mr. Hawkins clrcular and of Mr. Hawkins himself. Mr. Hawkins is another member of

the union. He holds office as secretary-treasurer of the

New South Wales branch of it. That was not an offlce for

which there was an election in September 1979, but Mr. Hawkins

was a candidate in that election for the position of branch

councillor. Had he been elected, he would not have had to

relinquish his position as secretary-treasurer. He would

have been entitled to hold both offices. In the result,

however, he was not elected branch councillor.

For some time there has been antipathy between Mr. Hawkins

and Mr. Slater. The most recent evidence of this, prlor to

the sending of the open letter by Mr. Slater on 29 August 1979,

was the circular sent by Mr. Hawkins on 9 August 1979. It

was typed on the letterhead of the New South Wales branch of

the union and addressed to A.P.T.U. representatives. I

gather that those were all the persons holding office in the

union.

The circular was the subject of a declslon of Sweeney J

in a matter decided by him on 14 September 1979. The matter

was anqplication by a Mr. Kanan pursuant to s.141 of the

Act. The respondents to the application were Mr. Hawkins and a Mr. Battese, who was the general president of the New South

Wales branch of the union. Sweeney J held that the sending

of the circular was a breach of the rules of the union

because there had been a use of union resources, including

funds, to produce a circular the terms of which advantaged

certain candidates in the election and sought the defeat of

their opponents. The basis for saying that what was done

amounted to a breach of the rules of the unlon was that,

although there was no express rule against the use of the

resources and funds of the union for the support of particular

candidates, there was to be implied in the rules a provision

to that effect. Reference was made to Short v Wellings,

72 CAR 84 and to the judgment of this court in Lyons v.

Deegan (27 June 1978 unreported).

His Honour analysed the circular in detail. I do not

refer to his analysis, other than to say that in my respectful

opinion his conclusion that it was designed to advantage

particular candidates in the election and to disadvantage

others was unquestionably correct.

With that background I can now return to the terms of the open letter in question entitled I1Come Off It, Mr. Hawkins".

In my opinion it, like Mr. Hawkins circular of 9 August 1979,

was also a document designed to advantage some candidates in

the electlon and disadvantage others. I do not quote from

it in letail.	It is sufficient to refer to the following
paragraphs:

"ADVICE TO MR. HAWKINS

It is my considered opinion and, I believe, the opinion of officials and rank and flle union members throughout Australia also, that the New South Wales Branch is at the

lowest ebb ever in the hlstory of the union - even at a

Itfar worse l e v e l than when the New South Wales Branch

was con t ro l l ed by the notorious DLP Industrial

Groupers twenty years ago. fel low officials must accept t h e responsibility f o r t h i s .

Yes, M r . Hawkins, under your leadership t h e New South

COMPLAINTS FROM NEW SOUTH 'dALES MEMBERS

New South Wales members complain t o the Federal Offlce regu la r ly about a whole range of problems, including

t h e following:

.	Correspondence from Branch members remains unanswered
by you o r your o f f i c e
.	Country members do not get a fair say in the affairs of t h e New South Wales Branch (e.g. Wagga Wagga sub- Branch)
.	You are unable to answer the genuine day-to-day
enqui r ies of members s a t i s f a c t o r i l y
.	The abuse and smears you level at others who do no-t go along with your a n t i c s

... a. a . . ... ...

I th ink you signed Circular No. 79/77 on 9 t h August 1979

because you a r e worried, M r . Hawkins, about the

opposi t ion i n your own S t a t e and,	moreover,	opposi t ion
from your former f r iends .
IT'S UP TO YOU - THE MEMBERS

The APTU Federal Office has received a constant flow of

complaints from APTU New South Wales members agalns t the

New South Wales Branch Office.

If the re is any 'd i s rup t ive e l ec t i on propaganda' being

d i s t r i b u t e d we bel ieve it probably or lg lnated i n t h e

o f f i c e of M r . Hawkins.

NOW I T IS UP TO YOU - THE MEMBERS - TO MAKE THE U N I O N

STRONG ONCE AGAIN I N NEW SOUTH WALES.

Ignore M r . Hawkins' s lander sheets ."

It was the s t rong submission of counsel f o r t h e organization

t h a t the open l e t t e r was no more than a rep ly t o an a t t ack

on the union i t s e l f made by M r . Hawkins i n h i s c i r cu l a r .

Such a rep ly , i f it were designed t o p ro t ec t t h e union a s a

whole from an unwarranted a t t ack , would not have been a breach

of any rule express or implied, Holmes v. Rlordan 86 CAR 180

at p.197. But in my opinion Mr. Slater's letter went

beyond a mere reply to any attack on the union itself. In

reaching that conclusion, I have taken into account the

whole of its terms and the fact it was despatched on

29 August 1979, just before the commencement of the conduct

of the election.

Counsel for the organization pressed upon me the pint that I had to make allowances for the cut and thrust of

union politics. I agree that what to some may seem a

counter attack, may, to people engaged in the tough infighting

of union affairs, be no more than a reply. Indeed, in t9e

wider sphere of politics itself, there is an increasiri~ and

regrettable tendency for questions not to be answered, but

rather for the so called reply to consist of a blistering

attack on the interrogator himself. All I say about this

is that this community is bound by the one set of rules.

The actions of people, whether they be politicians, union

officials, company directors or the office bearers of a

local sporting club, must be looked at objectively and in

accordance with ordinary standards. So judged what

Mr. Slater wrote in his open letter was designed positively to disadvantage some of the candidates in the election and thus inferentially to advantage others. I should add that the fact that it was enclosed with a newsletter which urged

a fair vote, makes no difference to my concl~~sion	in that
regard.

The open letter was produced with money provlded from

union funds. That is so, at least to the extent of $998,

which was the cost of printing it. There may be a question

as to the amounts incurred for mailing and postage, bearing

in mind that the offending document was despatched with a

union newsletter. I do not need to decide that question,

although I am inclined to the view that the whole of the

expenditure was improperly incurred.

. . It follows that there was an irregularity. The send-

ing of the circular was a breach of an implied provision of the union rules. But it is necessary to determine whether the irregularity was an irregularity within the meaning of

the Act. Unless it was, the jurisdiction vested in thls

court by s.165 of the Act does not arise. The expression

"irregularityt1 is defined in s.4 of the Act as follows:

It 'Irregularityt, 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 entltled 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 definition, by reason of the use of the word u~ncludes",

may not be an exhaustive one, but it is difficult to think of

any other type of irregularity that would not be within the

definition. The words 'any act, omisslon or other meansl1

are very wide, notwithstanding they are qualified by the words

that follow them. No submission was made based on the fact

that the definition was an inclusive one and I put that

matter aside.

There is then the question of whether the words

commencing with the word ttwherebyn qualify not only the

words "any act, omission or other meanstt, but also the

earlier words "a breach of the rules of an organization or

of a branch of an organization".

In my opinion, the better view is that the words

commencing with the word Itwherebyt1 do qualify the reference

to a breach of rules, as well as the words "any act, omlssion

or other meansn. In reachlng that conclusion, I haye taken

into account the presence of the comma after the words

"branch of an organizationu. But the irregularity which is

being defined is an irregularity "in relation to an election

or ballott1. It seems unlikely that the legislature would

have intended that any breach of the rules of an organization

whatsoever would have been sufficient to warrant the court

exercising jurisdiction under s.165. The position may have

been different if the definition had defined an irregularity

as a breach of a rule in relation to the holdlng of an

election or ballot, but that is not the way it reads.

It follows that for a breach of the rules of the

organization to be an irregularity for the purposes of s.165,

the breach must have been one which prevented or hindered

the full and free recording of votes by all persons entitled

to record votes and by no other persons. ?he balance of

the words of the definition can have no relevance. In my

opinion, the breach of the rules which has here occurred is

not of that kind.

It was,submitted by counsel for the applicant that the

terms of Mr. Slater's letter were such as to be capable of

having overborne the ability of electors to make a free and

independent choice, particularly as it was written on the

letterhead of the union. I have given that submlssio?

consideration, but I do not accept it. I think members of

the community at all levels are used to propagande of this

type, similar as it is to that of Mr. Hawkins in his circuler

of 9 August 1979.

I therefore conclude that although there has been a

breach of the rules and thus an irregularity, it 1s not an

irregularity for the purposes of s.165 of the Act. The

first ground of the application is not, therefore, made out.

That does not mean that I do not view the breach which

has here occurred any less seriously than did Sweeney J view

the breach committed by Mr. Hawkins in relation to the

circular of 9 August. Union funds have been mlsapplled.

Mr. Slater, and perhaps others, are in breach of the fiduciary

duty which at law they owe the unlon to see that its fimcis

and resources are applied for the purposes and objects of the

union 2s a whole. In effect, two factlons of the unlon

have applied unlon funds for their own purposes in an attempt

to secure the return of the persons they supported in an

election.

I should emphasise that the gravamen of what was done

was not the sending of election materlal such as that which

was sent, but the sending of it at the cost and expense of

the union itself.

I turn to the second ground. The evidence of

Mr. Johnston, who conducted the election, establishes that the fact that some members of the union did not recelve ballot papers was due to a malfunction of the computer used by a firm engaged by the electoral office to prepare addresses to be affixed to the envelopes containing some of the ballot papers. What happened was that in some cases the computer transposed on to the envelope the address of the person whose name followed next on the roll, rather than the correct address. According to Mr. Johnston's evidence, which I accept, this happened in 40 cases.

There was evidence from 25 persons, some of whom were

cross-examined, that they dld not receive ballot papers but

nine of them were amongst the 40 affected by the computer

malfunction. The possible number of electors affected was,

therefore, 56. Without going into detail, I am not satis-

fied that each of the six who were cross-examined took

adequate steps to notify changes of address, nor am I

satisfied that each of the 56 persons, if he or she had

received a ballot paper, would have voted. In round terms, 6,000 persons out of a total electorate of 15,000 cast votes.

In my oplnlon the computer malfunction was an

irregularity wlthln the meaning of s.165. I am not persuaded

by the evidence there was any other irregularity. Even if

there were, no more than about 50 votes in all could

possibly be involved.

Section 165(4) of the Act, so far as it is relevant

provides that:

"The Court shall not declare an election, or

any step taken in or in connexlon with an

election, to be void, or declare that a person

was not elected, unless the Court is of opinion

that, havlng regard to the irregularity found,

and any circumstances glving rlse to a likeli-

hood that similar irregularlties may have

occurred or may occur, the result of the election

may have been affected, or may be affected, by

irregularlties.

In my opinion, there is no evidence of circumstances giving

rise to a likelihood that similar irregularities may have

occurred.

The question then is whether I should be of opinion that

the result of the election may have been affected by the

computer malfunction. In a few cases the vote was very close;

otherwise the margin between candidates was very wlde.

Having reflected on the matter, I have decided that the

evidence is not such as to persuade me to form the oplnion

that the result of the election mlght have been affected hy

the irregularity. I would add that that would remaln my

view if the number of voters who did not receive ballot

papers was of the order of 50 rather than 40. In those

circumstances the second ground relied upon also fails with

the result that the application is dismissed.

My conclusion makes it unnecessary to consider to what extent there would have had to be further elections if my

view had been otherwise. In the submission of the applicant -

there would have had to be elections for all offices.	In
the submission of the other parties only that of branch

councillor should have been regarded as affected.	As I
say, I express no view on that matter.

HIS HONOUR:	Do you wish the exhibits returned?
MR. HART:	I would seek an order for the return of the

exhibits, your Honour.

HIS HONOUR: The exhibits may be returned. Is there any

other matter?

MR. SOLOMON: The applic~nt would ask for a certificate

under s.168(2) of the Act.	Mr. Wilson acted
ressonably.

HIS HONOUR: The difficulty, I feel, is that the whole matter

has to be viewed and one has to take into account

the sending of the circular of 9 August to whlch

that of 29 August was a riposte. Does anybody

else wish to say anything about this application?

MR. HART: Your Honour, I am not in a position where I have

any instructions on this point and I would seek to time.

have the matter reserved if it is pursued by

HIS HONOUR: I think that is reasonable, really.

MR. SOLOMON: If your Honour pleases.

HIS HONOUR:

Is it convenient if the matter stands over until

February?

MR. HART:

Yes, from my point of view.

MR. SOLOMON: Yes, your Honour, quite satisfactory.

HIS HONOUR: The application for a certificate under s.168(2)

bf the Act is stood over to a date to be fixed and

notified by my associate in February.

MR. HODGKINSON: In respect of that application, would your

Honour give leave to any other party at that time to make a similar application under the Act?

HIS HONOUR: Yes, I will give that leave.

MR. HODGKINSON: Thank you, your Honour.

HIS HONOUR: Is there any other matter? If not, I will

adjourn.

AT 12.28 P.N. THE MATTER WAS ADJOURNED

INDEFINITELY