Re Application by Shahid Naqui for an Inquiry into an election in the Amalgamated Metal Workers & Shipwrighters Union

[1982] FCA 149

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

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 - Application previously ruled a nullity - Applicant seeks certification that he "acted reasonably in so applying" - Certification refused. Conciliation and Arbitration Act 1904, ss.160(1)(i) and 168(2).

HEARING

ADELAIDE

#DATE 28:5:1982

ORDER

The application for a certificate under s.168(2) Conciliation and Arbitration Act 1904 be refused.

JUDGE1

On 25 March 1982 the Court ordered that a purported application made by Shahid Naqvi under Part IX of the Conciliation and Arbitration Act 1904 (the Act) for an inquiry into an election for the office of State Secretary, South Australia, an office within the Amalgamated Metal Workers and Shipwrights Union (the organization), an organization registered under the Act, be dismissed. At that time Mr McCusker, who appeared for the organization, sought an order for costs, which was opposed by the applicant.

Owing to the Court's commitments, the Court directed that the parties file and serve written submissions in this regard by 8 April 1982, and should either party have wished to reply to the other's written submission, replies thereto were to be filed by 16 April 1982. On 16 April 1982 the District Registrar of the Court in Adelaide received a letter from Messrs Johnston, Withers, McCusker and Company, Solicitors, who appeared for the organization at the inquiry, confirming earlier oral advice that they had received instructions from the organization not to proceed with its application for costs against Mr Naqvi.

Subsequently by letter dated 29 April 1982 Mr Lindsay, solicitor for Mr Naqvi, wrote to the Registrar of the Court confirming that he had been informed that the organization had withdrawn its application for costs, but indicated to the Registrar that the applicant sought a certificate from the Court pursuant to s.168 of the Act and for that purpose requested that the matter be re-listed for 9.30 a.m. on 26 May 1982 for the hearing of the application by Mr Lindsay under that section. Section 168(2) of the Act reads:

"Where, upon an inquiry, the court does not find that any irregularity has occurred but certifies that the person who applied for the inquiry acted reasonably in so applying, the Attorney-General may authorize payment by the Commonwealth to that person of the whole or part of his costs and expenses, including expenses of witnesses."

When the matter was called on for the hearing of his application, Mr Lindsay submitted that the grounds set out in the purported election filed by Mr Naqvi were such that the Industrial Registrar, before granting and referring the application to the Court under s.160 of the Act, must have been satisfied that there were reasonable grounds for an inquiry into the question whether there had been an irregularity in or in connection with the election which may have affected the result of the election (see s.160 (1)(i)) and further that the evidence that had been called before the Court during the inquiry did not show that Mr Naqvi had acted unreasonably in applying for such inquiry.

These short reasons for judgment are intended to be read as if they were incorporated into the reasons for judgment delivered on 25 March 1982 referred to above. Nevertheless, the Court reads the last sentence of those reasons:

"Accordingly, in my view there was no valid application lodged pursuant to s.159 of the Act and the matters which had 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."

Accordingly, the Court is of the opinion that there having been no valid application under Part IX before the Court, it has no jurisdiction to make the certification referred to in s.168(2) of the Act and the applicant's application for such certificate is refused.