Mellor, S. (inquiry into an election in Federated Liquor & Anor)

[1986] FCA 467

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) Q6 of 1986
INDUSTRIAL DIVISION	)

APPLICATION BY SHIRLEY MELLOR FOR AN INQUIRY INTO AN

ELECTION IN THE FEDERATED LIOUOR AND ALLIED INDUSTRIES

EMPLOYEES UNION OF AUSTRALIA

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	10 OCTOBER 1986
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1. This matter be determmed by the Court at a hearing

to commence on Monday, 17 November 1986.

2 . The affidavlts to be relied upon be filed and

served: -

(a)	On behalf of J.E. Curtls, by way of supplementary materlal only, as soon as reasonably possible after such materlal becomes available to the said J.E. Curtls.
(b)	On behalf of the applicant, Shlrley Mellor, on or before 17 October 1986.

(c) On behalf of Messrs. Elton and Hardle on or

before 31 October 1986.

2A.	Oral evidence may be called at the hearing by leave only on the Court's being satisfied that special circumstances exist necessitating the giving of such leave.
2B.	The persons who, to the knowledge of the said J.E. Curtis, make direct accusations relevant to the case against either or both of Messrs. Elton or
Hardie be approached to make affidavits, and that
such affidavits be filed as soon as possible, and
if any of such persons is unwilling to make any

affidavit, that he be subpoenaed and called at the

hearing on behalf of the said J . E . Curtis.

m:	Settlement and entry of orders is dealt with In
Order 36 of the Federal Court Rules.

. -

IN THE FEDERAL COURT OF AUSTRALIA )

9UEENSLAND DISTRICT REGISTRY ) Q6 of 1986

DIVISION INDUSTRIAL )

AFFLICATION BY SHIRLEY MELLOR FOR AN INOUIRY INTO AN

ELECTION IN THE FEDERATED LIOUOR AND ALLIED INDUSTRIES

EMPLOYEES UNION OF AUSTRALIA

PINCUS J. 10 October 1986

EX TEMPORE REASONS FOR JUDGMENT

In thls matter Mr. Hanuer Q.C.. who appears with Mr.

Diehm for Mr. Curtis, has drawn my attentlon to the fact that the

inquiry may be somewhat embarrassed if. on the date set for

hearmu - which is now 17 November 1986 - it is unclear what

material is properlv before the court.

Mr. Jerrard of counsel has pomted out that some of the

material, and In particular the sheets, Exhlblt "W", conslsts of

conclusions as well as statements of prlmary fact. More

importantly, Mr. Jerrard says that the answers to the circulars

which constitute the large proportion	of the primary facts should
not be recelved.

The view which I took when the matter was last before me

was that a proper conclusion could be drawn from the material

without the necessity of calling for the persons who have answered

circulars, and I adhere to that view.

2

It is, of course, open to any party to seek to call

before the trial judge such oral evidence as he sees fit, but it

has been my purpose to try to ensure that the matter 1 s heard

expeditiously and justly. Section 164(4) of the Conciliation and

Arbitration Act produces the result that the procedure of the

Court is, subject to the Act and Regulations, wlthin the Court's discretion and:

"the Court is not bound to act in a formal manner

and 1s not bound by any rules of evidence but may

inform itself on any matter in such manner as It

thinks just. "

As I understand the attitude of Mr. Jerrard's clients,

they propose to at least consider ignoring the order I made when

the matter was last before me for filing of affidavits on thelr

behalf, to attempt to conduct the matter as if it were a crimlnal

trial by taking objection to the evidence and then, depending on

the result of the objection, deciding what course they wlll take:

whether to call evidence or not. It is not my intention to permit

that to happen, and I therefore accede to Mr. Hanger Q.C.'s

suggestion that I should rule now on the polnts ralsed by Mr.

Jerrard, rather than leaving the whole matter to Gray J. I had

initially thought it was convenient to leave Gray J. to deal with

all evidentlary points, but it turns out not to be so.

I therefore rule as follows: that the answers to the

clrculars are properly received in evidence, and that under

s.l64(4)(b) the statements of conclusions made in the summary

sheets, Exhibit " W " , need not be deleted. As to the latter, they

seem to me to be innocuous, the summary sheets are really just a

J

ready reference. and it is inconceivable to me that an:? Judge

would uive any particular weight to concluslons that others mlqht

draw from the primary material, all of which has been made

available to the Court.

I therefore decline to strike out any of the evldence

which is objected to. The orders which were made when the matter

was last before me on 2 October need to be varied. Order 1 will

be deleted and replaced by the following order:

The matter be determined by the Court at a hearlng to

commence on Monday, 17 November 1986.

Order 2 requires to be varied in the following fashion.	2 ( a ) will
read :

On behalf of J .E . Curtis, by way of supplementary material

only, as soon as reasonably possible after such material

becomes available to the said J . E . Curtis.

2(b), will be:

On behalf of the applicant Shirley Mellor, on or before	17
October 1986.

2(c), will be as it is. There will also be an order 2A:

Oral evidence may be called at the hearing by leave only on

the Court's being satisfied that special circumstances exist

necessitating the giving of such leave.

4 .

I wlll add order 2B:

That the persons who, to the knowledge of the sald J.E.

Curtis, make direct accusations relevant to the case against

either or both of Messrs. Elton or Hardie be approached to

make affidavits and that such affidavits be filed as soon as

possible, and if any of such persons is unwillinu to make any

affidavit, that he be subpoenaed and called at the hearing on

behalf of the said J.E. Curtis.

Order number 3 of my previous order made on 2 October 1986 is now

spent, and will be deleted. There seems to be no necessity to

make a change in the subsequent orders.

' certlfy tbat thl; and the 3 precedlng

r -	-5 are a true copy of the reasons for
1 ' ' '	vent hcreln of HIS Honour
Mr	Justlce Plncus

Dated 10 6 /qgG