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Poseidon Ltd v Adelaide Petroleum NL

Poseidon Ltd v Adelaide Petroleum NL

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Case Copied 6 November 1991 9 min read

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IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY )
INDUSTRIAL DIVISION 1

No. V1 72 of 1991
IN THE MATTER of an application by CHRISTOPHER KEILY for an inquiry into a ballot of the members of the Transport Workers' Union of Australia
IN THE MATTER of an amalqamation in the

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Australia

Corm: Olney J RECE/\/r
Place: Melbourne 29 NflV 1991 -

FEDERAL COURT OF

Date : 6 November 1991 AUSTRALIA

c, PRINCIPAL

REGISTRY /

EX TEMPORE RULING -4
b . '

I am unmindful of the consequences of the ruling I gave recently concerning the construction of sub-regulation 94(4)(b), and without the assistance of counsel have given some thought as to where the matter goes from here. I am now indebted to counsel for having thoughtfully addressed the issues and it appears that I have to make decisions which take account of the real issues and also the provisions of the law so that this ballot can be conducted in a manner that complies with the regulations.

requirement of a secret ballot, but as I have indicated

But for 94(4) (b) I may well have been of the view that

the system envisaged by the returning officer met the

in the reasons I gave, that paragraph of the regulation seems to be aimed specifically at the perception of voters which it is said is such that a name or other identifying material on an envelope containing a ballot paper may in some way lead to the secrecy of the ballot being compromised. The three suggested alternatives that have been advanced today would all overcome the problem created by regulation 94(4)(b).

First, there is what I could call the "Gray scheme" (being that referred to by Gray J in Pullen's case), which is the preferred scheme of the returning officer. It contemplates that the name, serial number and signature of the voter would.appear on the outer self- addressed reply paid envelope. Second, as advocated on behalf of the applicant, there is the suggestion that only the serial number of the voter be shown, whether it be on the outer envelope or an intermediate envelope. Third, there is the scheme advocated on behalf of the

TWU, whereby there would be three envelopes, with name,

serial number and signature on the intermediate envelope.

It does appear to me that the perception that an irregularity may occur can be satisfactorily addressed by an appropriate and understandable explanation, particularly as these days union ballots and elections are conducted by the Australian Electoral Commission.

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Things may have been different in earlier days when ?. ..

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unions elected their own returning officers, but that is

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not the case here.

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There is merit in the TWU's argument, which is supported 1:.

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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] FCA 663
Decision Date: 6 Nov 1991

CaseChat Overview and Summary

In the Federal Court of Australia, Olney J was asked to determine how a ballot of Transport Workers' Union members should be conducted to comply with the law. The ballot was being held to decide whether to merge several unions into one. The main legal issue was how to conduct the ballot so that it was secret and did not violate the regulations. Olney J considered three options presented by the parties. The first option was to put the voter's name, serial number and signature on the outer envelope. The second was to only put the serial number on the outer envelope. The third was to use three envelopes, with the name and signature on the intermediate envelope. Olney J concluded that the third option, using three envelopes, was the best way to ensure the ballot remained secret and complied with the regulations. He noted that if the name appeared on the outer envelope, it could lead to fraud or the perception of fraud.

Olney J ordered the returning officer to notify the voters about the new ballot and assure them it would be conducted properly. He also ordered that any completed ballots received so far should be kept unopened and eventually destroyed. Olney J thought the parties could work out the details of the new ballot between themselves, but he would intervene if needed. The court's decision ensured the ballot could be conducted in a way that complied with the law and maintained the secrecy of the members' votes.

Orders