Re Amalgamated Metal Workers & Shipwrights Union v Ex parte Naqvi, S

[1982] FCA 38

Re: IN THE MATTER OF AN APPLICATION FOR AN ELECTION INQUIRY UNDER PART IX OF
THE CONCILIATION AND ARBITRATION ACT 1904 IN THE AMALGAMATED METAL WORKERS AND
SHIPWRIGHTS UNION BY SHAHID NAQVI
S.A. No. 2 of 1982
Industrial Law
2 IR 174

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Evatt J.

CATCHWORDS

Industrial Law - Application for inquiry into election pursuant to Part IX of Conciliation and Arbitration Act - compliance with procedure in relation to such application provided for in Act mandatory - failure to so comply - such application and action thereon by Industrial Registrar under s.160 of the Act a nullity - decision by the Court of a question separately from other questions - consequential disposal of proceedings - Conciliation and Arbitration Act 1904 - Part IX - ss.159(1) and (2) s.160(1) and (4) - 0.29 rr.1-4 of Federal Court Rules

HEARING

ADELAIDE

#DATE 25:3:1982

ORDER

The application for an inquiry is dismissed.

JUDGE1

On 29 January 1982 Mr S.G. Hastings, then an Industrial Registrar appointed under the Conciliation and Arbitration Act 1904 (the Act), referred, pursuant to s.160(1)(a) of the Act, a purported application for an inquiry into an election to the Court. Such application was stated to have been lodged pursuant to s.159 on 21 October 1981 by one Shahid Nagvi, who claimed therein that he was a member of the Amalgamated Metal Workers and Shipwrights Union, an organization registered under the Act (the organization) and that there had been irregularities in or in connexion with the election for the office of State Secretary, South Australia within the organization.

The Court referred to in Part IX of the Act, which includes ss.159 and 160, is the Federal Court of Australia in its Industrial Division (see s.118A(1)(a) and (b)). The matter was listed for directions hearing before Keely J. on 24 February 1982, when certain directions were made and certain interim orders sought by Mr Naqvi pursuant to s.163 were refused.

The matter came on for hearing on Monday, 22 March 1982 when Mr Millhouse Q.C. and Mr Lindsay appeared for Mr Naqvi; Mr McCusker appeared for the orgainization and Mr Williams the returning officer who conducted the said election, whilst Mr Tumbers, the successful candidate in the election, appeared in person.

When giving evidence Mr Naqvi identified the purported application, which included a form headed Form 18 (and which has been referred to in evidence as the Form 18 document) together with annexures referred to therein and a statutory declaration declared by Mr Naqvi at Adelaide on 20 October 1981 before a Mr Cini, a Commissioner for Declarations appointed under the Statutory Declarations Act 1959 (Commonwealth).

Prior to 28 May 1981 (when S.R. 1981 No.119 was made) Reg.74 of the Regulations made under the Act provided that:-

(1)An application under section 159 of the Act shall be in accordance with Form 18 and shall be lodged with the Industrial Registrar.

(2) The time after the completion of an election within which an application under section 159 of the Act in respect of the election may be lodged is six months.

S.R. 1981 No. 119 repealed Reg.74 and deleted Form 18 from the First Schedule to such Regulations. On 15 July 1981 S.R. 1981 No.201 was made. That Statutory Rule inserted Reg.138 and in the First Schedule, Form 39A.

Reg. 138 reads: "(1) For the purposes of paragraph 159(2) (a) of the Act, the prescribed form is Form 39A.

(2) For the purposes of paragraph 159(2)(b) of the Act, the time after the completion of an election within which an application in respect of that election is to be lodged is 6 months.".

Form 39A is similar to the former Form 18 except that the Court referred to in the new form is the Federal Court of Australia in lieu of the Commonwealth Industrial Court.

Accordingly at the relevant time(October 1981)the application under s.159 of the Act should have been in accordance with Form 39A and not Form 18 but nothing turns on this point. However it does explain the reference in Mr Cini's evidence to the "obsolete" form meaning the form lodged by Mr Naqvi.

After Mr Naqvi had identified the documents filed by him as his application pursuant to Part IX of the Act Mr McCusker sought leave to examine him on the voir dire as to the documents. At the conclusion of such examination on 23 March, a doubt as to the date shown in the Form 18 document lodged by Mr Naqvi pursuant to s.159(1) and the date of filing that form and the Statutory Declaration was evident. Consequently Mr Cini was called as a witness on the morning of 24 March.

At the conclusion of Mr Cini's evidence Mr McCusker made application pursuant to O.29 of the Rules of Court for an order that the application under Part IX of the Act be dismissed on the basis that such application was a nullity. Mr Millhouse indicated that he had no further evidence to place before the Court in relation to the circumstances under which the Form 18 and the Statutory Declaration filed in the matter had been drawn up, declared, dated and filed in the Adelaide Registry of the Australian Conciliation and Arbitration Commission.

Accordingly submissions were heard as to the validity of the application so filed. In addition to the procedure laid down in O.29 of the Rules of Court, the Court in this regard also exercised its discretion under s.164(4)(a).

The overall effect of the evidence of both Mr Naqvi and Mr Cini and the documents themselves, including the date endorsed on such documents purporting to be the date when the documents were lodged in the Adelaide registry of the Australian Conciliation and Arbitration Commission, is such that I am not satisfied that on 20 October 1981 when the Statutory Declaration referred to and filed herein was declared by Mr Naqvi before Mr Cini, the Form 18 document which has been filed herein was in fact in existence.

Accordingly in my view the purported application filed was not a valid application conforming with the provisions of s.159 of the Act. Sub-section (2) of that section provides:

"(2) An application under this section shall -

(a) be in writing in accordance with the prescribed form;

(b) be lodged with the Industrial Registrar before the completion of the election or within such time after the completion of the election as is fixed by or under the regulations;

(c) specify the election in respect of which the application is made and the irregularity which is claimed to have occurred, and state the facts relied on in support of the application; and

(d) be accompanied by a statutory declaration by the applicant declaring that the facts stated in the application are, to the best of the applicant's knowledge and belief, true."

Sheppard J. considered s.159(2) of the Act in re an Application by P.A. O'Brien for an inquiry into an election in the Administrative and Clerical Officers' Association, Commonwealth Public Service (judgment 11 December 1979 - Law Book Company's Industrial Arbitration Service, Current Review 1980 p.363) and held that the provisions of s.159(2) (d) are mandatory. I agree. In my view the provisions of all paragraphs of that sub-section are mandatory (see R. -v- Commonwealth Court of Conciliation and Arbitration ex parte Federated Clerks Union (1950) 81 C.L.R. 229 @ 243 and cf. Re Federated Storemen and Packers Union of Australia (1958) 89 C.A.R. 847. See also Transport Workers' Union of Australia, New South Wales Branch and Ors. -v- Knoblanche (No.1) 1954 A.R. 301 applying Marks & Ors -v- Seale & Ors 1929 A.R. 114). The Statutory Declaration declared by Mr Naqvi before Mr Cini on 20 October 1981 sets out in Mr Naqvi's handwriting his name and address; then is printed the words "do solemnly and sincerely declare: followed again in Mr Naqvi's handwriting the words:"that the fact(sic) on the Form 18, with the other documents, are true and correct to best my knowledge". It is to be noted that no date is set out in the declaration as to when the Form 18 was said to have been completed. If in fact the particular Form 18 document which was subsequently filed in the Registry was not the Form 18 referred to in the Statutory Declaration (as is, on my finding, the case), then in my view the applicant has not complied with the provisions of sub-s.(2) of s.159 of the Act.

In my view the onus of showing that the Form 18 referred to in the Statutory Declaration was in fact the Form 18 document filed in the Registry was on the applicant. As I have stated I am not satisfied that the particular Form 18 filed was in existence on 20 October 1981 when the Statutory Declaration was witnessed but was in fact written by Mr Naqvi personally on 21 October 1981. The latter date is in my view the date that it originally bore. That date has undoubtedly been altered to the 20th by Mr Naqvi. He has agreed that he did alter the date to the 20th October but was not prepared to admit that it had in fact been dated 21 October prior to the time when he made the alteration.

I have read the transcript of evidence of both Mr Naqvi and Mr Cini concerning the relevant documents and the date when those documents were lodged. As I pointed out, I am not satisfied that the Form 18 document filed was in existence on 20 October 1981. Suffice it to say at this stage that I am certain it was not in existence prior to the time of day on 20 October 1981 when Mr Naqvi declared his Statutory Declaration before Mr Cini.

I do not propose to go through in detail the evidence of both Mr Naqvi and Mr Cini, but I believe that what probably occurred was that, at some stage prior to Mr Cini signing the Statutory Declaration referred to, he had intimated to Mr Naqvi that he would be prepared to, as he put it, witness the Statutory Declaration if Mr Naqvi was unable to obtain a J.P. to do so and that Mr Cini had at that time given Mr Naqvi a photocopy of page 51732 of the CCH publication of the Conciliation and Arbitration Act 1904 (Second 1980 Edition - green cover) so that Mr Naqvi could prepare a Form 18 which Mr Cini then believed was the form required together with a "blank" printed Statutory Declaration form.

Mr Cini has said in his evidence that this could have been "several days before he put in his Form 18". I accept this evidence. Thereafter, on 20 October 1981 Mr Naqvi attended at the Registry Office of the Australian Conciliation and Arbitration Commission in Adelaide and saw Mr Cini with the printed Statutory Declaration form filed in in his own handwriting in the way referred to earlier herein and that Mr Cini then took a declaration from Mr Naqvi in respect of that Statutory Declaration.

In his evidence, Mr Cini has stated that he did not then know whether he, Mr Naqvi, had only "his stat. dec. with him or whether he had the other pieces". By "the other pieces" I take him to mean the other documents that were subsequently lodged for filing and which were referred to in the Form 18 document which was in fact filed.

Mr Cini stated in his evidence that at the time when he witnessed the Statutory Declaration he advised Mr Naqvi that he should seek counsel from either the Industrial Relations Bureau or from a solicitor or a lawyer and that in fact Mr Naqvi then left him. I accept as evidence that Mr Naqvi, as stated by Mr Cini, left him to attend the Bureau in Adelaide.

Mr Cini further stated that it was his belief on 20 October 1981 that his obligation as a Commissioner for Declarations was to obtain a declaration from the person making the Statutory Declaration that it was his signature upon the document and that the matters set out in the Statutory Declaration were true and that he, Mr Cini, had no obligation to look at any other document at that time.

I am convinced that subsequent upon Mr Naqvi attending the Bureau after leaving Mr Cini on 20 October 1981, when he had witnessed the Declaration, the Form 18 document that was filed was written out by Mr Naqvi in his own handwriting and that that document had been written out on 21 October 1981.

I am further satisfied that on 21 October 1981 Mr Naqvi then attended at the registry to file his documents. Those documents consisted of the Statutory Declaration referred to, the Form 18 document in the handwriting of Mr Naqvi, which had the "21st day of October 1981" as its date and photocopies of the various documents which were in fact referred to and lodged with the Form 18 document. As I say, I am satisfied that he attended at that Registry Office on 21 October with those documents.

I am further satisfied that, when those documents were perused by the officer who was to receive them across the counter, it was then ascertained that the date of the Form 18 document, namely 21 October, was later than the date of the Statutory Declaration, namely 20 October 1981, and that Mr Naqvi then altered the date on the Form 18 document from the figures "21" followed by the letters "ST" day of October 1981 to the figures "20" and the letters "TH" and inserted the letters "Tues" immediately before the word "day", so that the date shown on the form was then the "20th Tuesday of October, 1981".

I am further satisfied that the documents with that amendment were then accepted across the counter and stamped on the back 21 October 1981. This being so, it is clear that sub-s. (2) of s.159 of the Act has not been complied with. As I have already said, the provisions of that sub-section are mandatory. The facts set out in the Form 18 document filed by the applicant had not been declared by him in the Statutory Declaration filed as being true to the best of the applicant's knowledge and belief, as is required by paragraph (d) of sub-s. (2) of s.159. Accordingly, in my view, there was no valid application lodgedpursuant to s.159 of the Act and the matters which have taken place on and after 21 October 1981 before the Registrar and in this Court have been a nullity and the purported application for an inquiry into the said election is dismissed.