re Carter; re Federated Clerks Union of Australia, Victorian Branch (No 1)

Re: In the matter of an application by ROSEMARY PATRICIA CARTER for
an Inquiry into elections in the Federated Clerks Union of Australia
Victorian Branch
No. V33 of 1988
FED No. 267
Industrial Law
32 IR 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - election - whether irregularity happened - directions given by returning officer for election timetable - timetable not in accordance with rules - whether returning officer had power to give directions - when directions will constitute irregularity - alleged multiple voting - difficulty in determining authorship of crosses - role of expert witness - methodology of expert witness examined - preparation of electoral roll - whether additions and deletions to roll in accordance with rules - whether rules require membership at time of ballot - whether rules required actual closure of books for determination of financiality - employers and shop stewards may be agents for receiving membership applications - whether period of grace where contributions by automatic deduction - whether members ceasing employment, but not resigning, entitled to vote - effect of period of grace on financiality - financiality of candidates - meaning of "continuously" financial.

Conciliation and Arbitration Act 1904 ss. 140, 145, 170 and 170A(1)

Industrial Relations Act 1988 ss. 196, 218, 223 and 264

Industrial Relations (Consequential Provisions) Act 1988 ss. 3, 5 and 55.

HEARING

MELBOURNE

#DATE 31:5:1989

Counsel for the applicant: Mr. B. Mueller

Solicitor for the applicant: Oakley Thompson & Co.

Counsel for the Union: Mr. R. Tracey

Solicitor for the Union: A.J. Macken & Co.

Counsel for some of the Mr R. Kenzie, Q.C. and Mr M. Kimber
successful candidates:

Solicitor for some of the Holding Redlich
successful candidates:

Counsel for the Australian Mr Bell
Electoral Commission and the
Returning Officer:

Solicitor for the Australian Australian Government Solicitor
Electoral Commission and the
Returning Officer:

ORDER

The Court orders that the inquiry is adjourned to a date to be fixed for further hearing.

NOTE: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

JUDGE1

On 18th July 1988, the applicant lodged with the Industrial Registrar an application for an inquiry into elections in the Victorian Branch of the Federated Clerks Union of Australia ("the Union"). The application was lodged under Part IX of the Conciliation and Arbitration Act 1904 ("the former Act"). On 1st March, the former Act was repealed by s.3 of the Industrial Relations (Consequential Provisions) Act 1988 ("the Consequential Provisions Act"). It has been replaced by the Industrial Relations Act 1988 ("the Industrial Relations Act"). Pursuant to s.55 of the Consequential Provisions Act, the application is to be treated as if it had been lodged with the Court under s.218 of the Industrial Relations Act. The Court is therefore obliged by s.223(1) of the Industrial Relations Act to inquire into and determine the question whether an irregularity has happened in relation to the subject elections.

It is not in dispute that the applicant is a member of the Union. The Union was an organization registered under the former Act. By virtue of s.5(1)(a) of the Consequential Provisions Act, the Union is taken to have become registered as an organisation under the Industrial Relations Act.
The elections were conducted for all positions in the Victorian Branch of the Union. These are the offices of President, Deputy President, Senior Vice-President, Junior Vice-President, Secretary, First Assistant Secretary and Second Assistant Secretary, who together constitute the State Executive, sixteen State councillors elected by the whole of the membership, together with varying numbers of councillors elected by each of eight sections, conference delegates elected in varying numbers by each of the eight sections and one district, six national councillors, a first alternate national councillor and a second alternate national councillor. The elections were conducted by officers of the Australian Electoral Commission, as a result of a request made to the Industrial Registrar, pursuant to s.170 of the former Act. Nominations were called for on 31st March 1988, and closed on 21st April 1988. The candidates for conference delegates from the Bendigo District Council and a candidate for third alternate national councillor were elected unopposed. All of the remaining positions were contested. The candidates divided themselves into two opposing camps, each of which published a "ticket", recommending a vote for its candidates. The tickets were designated by the surnames of the candidates for the position of secretary, Michael John O'Sullivan and Lindsay James Tanner. A ballot opened on 31st May 1988 and closed on 21st June 1988. There were several ballot papers. One contained the seven offices which constitute the State Executive, the six national councillors and the first and second alternate national councillors. Another was for the State councillors to be elected by the whole of the members. In addition, members in the various sections received separate ballot papers, applicable to their sections.
The results of the elections were declared on 24th June 1988. They involved a substantial victory for candidates on the Tanner ticket. Barbara Lee Lewis won the election for President by 482 votes. The applicant was defeated by Michael David Giddings for the senior Vice-President's position, by a margin of 160 votes. The margins for the other offices fell within this range.
The most significant of the irregularities which the applicant alleged was that described as multiple voting. The allegation was that numbers of ballot papers had been filled in by a small group of persons, and that the votes so cast had favoured candidates on the Tanner ticket. In addition, the applicant made allegations of irregularities in the content of the roll of voters, and allegations that a small number of candidates whose nominations had been accepted, and who had participated in the ballot, were ineligible to be candidates. A further argument was that irregularities had arisen from the conduct of the election on a timetable other than that contained in the rules of the branch. This argument was pursued, and must be dealt with, although it was conceded that any irregularity found would not have affected the results of the elections. An argument that an irregularity arose from an inadequate advertisement for nominations was abandoned in the course of the inquiry.
The inquiry was heard on some fourteen days, with adjournments being necessary for various purposes. Mr. Mueller of counsel appeared for the applicant, Mr. Tracey of counsel for the Union, Mr. Bell of counsel for the two returning officers and the Australian Electoral Commission and Mr. Kenzie Q.C. with Mr. Kimber of counsel for the successful candidates in the elections for the State Executive positions. It is convenient to deal with the different alleged irregularities under separate headings.
THE ELECTION TIMETABLE
Rule 29(e) of the rules of the Victorian branch of the Union ("the branch rules") contains a provision that nominations must be lodged with the returning officer no later than the third Monday in April in the year in which the election is to be held. Rule 29(o) of the branch rules provides:

"Voting shall open not earlier than the second Monday and not later than the fourth Monday after nominations close and shall close on the sixth Monday after nominations close."

The elections were not conducted in accordance with the requirements of these rules. Mr. Mueller and Mr. Tracey contended that the failure so to conduct them amounted to an irregularity. The actual timetable was as follows. The period for receiving nominations opened on 31st March 1988 and closed at 12.00 noon on 21st April 1988. The third Monday in April 1988 was the 18th. The ballot opened on 31st May and closed at 9.00 a.m. on 21st June. The second, fourth and sixth Mondays after the close of nominations (and after 18th April) would have been 2nd May, 16th May and 30th May respectively.
There was evidence, which was not challenged, that the returning officer gave directions for the timetable, pursuant to s.170A(1) of the former Act. That sub-section provided:

"A person conducting an election, or taking a step in or in connection with an election, for an office in, or a branch of, an organization under section 165A or under section 170, may, notwithstanding anything contained in the rules of the organization or branch, take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connection with the election or to remedy any procedural defects in those rules which appear to him to exist."

There was also unchallenged evidence as to the returning officer's reasons for giving the directions that were given. The returning officer saw those directions as necessary to ensure that no irregularities occurred in the elections. The time for lodging nominations was fixed so as to ensure that members were afforded adequate time to lodge nominations. In extending the time, the returning officer took into account the fact that the Easter holiday period fell during the period for lodging nominations. In fixing the date of the ballot, the returning officer considered that the period of between two and four weeks fixed by rule 29(o) between the closing date for nominations and the opening of the ballot was too short. It was necessary to check the validity of over two hundred nominations for one hundred and four positions. This check involved ascertaining the financial status of each nominee, and of each of the nominators. If any defect had been found in any nomination, it would have been necessary to allow a period of not less than seven days and not more than ten days for remedying the defect, pursuant to rule 29(g) of the branch rules. It was also necessary to prepare a roll of voters, and to arrange for the printing and enveloping of ballot papers. The returning officer considered that it might have been necessary for him to obtain legal advice on questions that may have arisen, especially as to the eligibility of candidates. A period of three weeks was chosen between the opening and closing dates of the ballot, to ensure that adequate time was allowed for the investigation of claims of non-receipt of ballot papers and the issue of any necessary duplicate ballot papers.
In determining whether a direction of a returning officer, purportedly given under s.170A(1) of the former Act, has given rise to an irregularity, the Court must act with care. It has no jurisdiction to sit on appeal from the returning officer, for the purpose of determining whether his or her decision was correct. If faced with the task of deciding what was an appropriate direction, the Court may have taken a different view from that taken by the returning officer. The Court is not charged with that function. Unless the direction of a returning officer is wrong in law, or such that no reasonable returning officer could have given it, or the exercise of the power to give a direction is not a bona fide exercise of that power, for the purpose for which the power is given, the Court should not interfere. A direction given by a returning officer in the exercise of the power given by s.170A(1) overrides the rules of the organisation concerned. It follows that a failure to comply with those rules, where such a direction has resulted in the non-compliance, cannot amount to an irregularity.
In the present case, no real attack was made on the validity of the returning officer's directions. In the light of the evidence, such an attack would have been bound to have failed. It is clear on the evidence that the returning officer exercised his power to give a direction bona fide, and for the purpose for which the power is given. The grounds upon which he acted show that his directions were reasonable in all the circumstances. They were certainly not wrong in law. For these reasons, I find that no irregularity happened as a result of the timetable under which the elections were conducted.
ALLEGED MULTIPLE VOTING
The applicant's case on this issue depended entirely on the evidence of Leonard William Timewell, an independent document examiner whose early experience was gained while he was a member of the Victoria Police. He began his examination of ballot papers used in the elections in July 1988, after another person or persons had already isolated certain ballot papers, apparently on the basis that they might have been completed by one or a small group of persons. Mr. Timewell's initial examination lasted approximately 160 hours. The end result, as given in his evidence in affidavits sworn on 10th August 1988, and 14th October 1988, and in his oral evidence, was the isolation of a number of groups of ballot papers. It is convenient to use the designations given to these groups as exhibits during the course of the inquiry.
Exhibit T1 consisted of forty-four executive and national council ballot papers, described in Mr. Timewell's first affidavit in the following terms:

"The characteristic of these ballot papers was that the first square contained an overwritten "X" with no detectable overwriting in any later square and no sign of pen failure."

In the course of the inquiry, the overwritten cross in the first square of these ballot papers came to be called the complex cross, and crosses consisting of two intersecting lines only came to be called simple crosses. Each of these ballot papers was marked in accordance with the Tanner ticket, so that the complex cross appeared in the square beside the name of Barbara Lee Lewis, the candidate for President on that ticket. In the course of cross-examination, Mr. Timewell's attention was drawn to the fact that some of the crosses other than in the first squares of these ballot papers were not simple crosses. This did not cause him to change his mind on the question whether those ballot papers properly belonged in exhibit T1. Late in the hearing, Mr. Timewell did concede that one of the ballot papers chosen by him in this category did not properly belong in exhibit T1 and that another warranted more detailed examination before a final view could be expressed as to whether it so belonged. Mr. Timewell's evidence was that he was satisfied to a high degree of probability, not far short of proof beyond reasonable doubt, that all of the ballot papers in exhibit T1 were the work of one writer.
Exhibit T6 consisted of four executive and national council ballot papers. According to Mr. Timewell, these papers had the same characteristic as those in exhibit T1, namely a complex cross in the first square and simple crosses in the remaining squares. The difference was that these four ballot papers were marked in accordance with the O'Sullivan ticket, so that the complex cross was to be found in a square beside the name of Keith Young Harvey, the candidate for President on the O'Sullivan ticket. Mr. Timewell's evidence was that the same person who was responsible for exhibit T1 was also responsible for exhibit T6.
Exhibit T2 consisted of 108 executive and national councillor ballot papers, all marked in accordance with the Tanner ticket. The characteristic of this group was said to be the presence of complex crosses, distributed at random throughout the ballot papers. Mr. Timewell's evidence was that all 108 ballot papers were the work of one writer.
Exhibit T7 consisted of seven executive and national council ballot papers, with the same characteristic as those found in exhibit T2, except that these seven ballot papers were all marked in accordance with the O'Sullivan ticket. Mr. Timewell's evidence was that the ballot papers in exhibit T7 were the work of the same person as the ballot papers in exhibit T2.
Exhibit T11 consisted of three ballot papers from the liquor section and exhibit T14 consisted of two ballot papers from the auto section. Mr. Timewell's evidence was that these ballot papers bore the same characteristic as those in exhibits T2 and T7, and were the work of the same person.
Exhibit T4 consisted of twenty-one executive and national council ballot papers, all marked in favour of the Tanner ticket, and said by Mr. Timewell to be characterised by the presence of a very neat cross. Exhibit T16 contained twelve ballot papers from the air section, also marked in favour of the Tanner ticket, and also containing what Mr. Timewell described as a very neat cross. Mr. Timewell's evidence was that these two groups of ballot papers were the work of one writer.
In exhibit T5, there were two ballot papers, characterised by the presence of crosses which had "a tilted effect rather than...drawn directly from corner to corner". They were executive and national council ballot papers, completed in accordance with the Tanner ticket. They were said by Mr. Timewell to indicate a very strong probability of a common author. Also included in the exhibit, for a reason that was never explained, was a third ballot paper, not said to have been the work of the same author, but to have been included to demonstrate the similarity of design of cross.
Exhibit T9 consisted of four ballot papers from the liquor section. According to Mr. Timewell, the crosses on these papers were written with a similar colour ink, and were of similar design. The design characteristic identified had to do with the angles between the two strokes of the cross. The four ballot papers did not follow any particular ticket. Indeed, two of them contained votes for one candidate for State council, and two for the other. Nevertheless, Mr. Timewell gave evidence that there was a strong probability of common authorship between the papers.
Exhibit T10 consisted of eight ballot papers from the liquor section, with crosses described as being more consistent with being drawings rather than spontaneous writing. In Mr. Timewell's view, there was a probability of common authorship amongst these papers, but it was not quite as strong a probability as was the case with other groups of ballot papers.
Exhibit T12 consisted of eight papers from the auto section, with crosses characterised by careful overwriting of most strokes, and with some of the ballot papers apparently completed in a similar blue ink.
Exhibit T13 was a group of six ballot papers from the auto section, containing crosses exhibiting an apparent tremor. Mr. Timewell was of the view that it was probable that these papers were written by a common author, but not as strong a probability as was the case with some other groups.
Exhibit T15 consisted of five papers from the auto section, which Mr. Timewell described as containing relatively neatly drawn crosses, not protruding outside the square at any point. Again, Mr. Timewell's assessment of the probability of common authorship was somewhat lower than that with respect to some other groups, but he did consider that there was a probability of common authorship.
The final group was exhibit T17, which was two ballot papers from the air section. It is conceded on all sides that these two ballot papers are very likely to have been filled in by the one hand. The crosses indicate a high degree of pictorial similarity; they are made up of a near vertical stroke, characteristically with a small hook at the top end, intersected by another line running downwards from left to right. In addition, each of the papers bears indentations which are consistent with the other having been marked whilst resting on top of it.

In the case of all these ballot papers, Mr. Timewell gave evidence that the probability of each group having a common author was such that he would have advised the returning officer not to admit those ballot papers to the count.
In addition to those groups, Mr. Timewell drew attention to one ballot paper bearing indentations of crosses, such that it appeared that another similar ballot paper was resting on it when completed. No such other ballot paper was produced in evidence. A further group of three ballot papers and two envelopes was designated as exhibit T3. These documents all contained stains from a particular colour of ink. It is possible to see that two of the ballot papers, one for the executive and national council and one for the air section, were folded together inside one of the envelopes. There was no suggestion that the ink stains on the other ballot and envelope were connected with the first two.
Mr. Timewell was called to give evidence on behalf of the Union, and not on behalf of the applicant. A very substantial part of the hearing was devoted to cross examination of Mr. Timewell by Mr. Kenzie on behalf of the successful candidates. In addition, the successful candidates called Paul Denison Westwood, an independent document examiner whose early experience was gained whilst he was a member of the Australian Federal Police. Mr. Westwood had examined the groups of ballot papers referred to by Mr. Timewell. He expressed the view that it was not safe to conclude that one person was the author of each of the ballot papers in any of the groups referred to by Mr. Timewell except exhibit T17, and even that it was unsafe to conclude that one person was responsible for any two ballot papers in any such group. In addition, Mr. Westwood examined a number of other ballot papers. His evidence was that, if Mr. Timewell's categories in exhibits T1 and T2 were valid, there were many additional ballot papers that would fit within them, and that the voting on such ballot papers would be distributed between the two tickets in roughly the proportions in which the voting overall was so distributed.
There can be no doubt that the fact that the ballot papers were marked with crosses is a factor making the ascertainment of multiple voting a very difficult task. Many of the difficulties are pointed out in Osborn, Questioned Documents (2nd ed.), at pp 314-318. Portions of this work were quoted with approval in the judgment of Dunphy J. in Re The Federated Ironworkers Association of Australia (Sydney Metropolitan Branch) (1950) 73 CAR 27, at pp 66-67. Osborn rejected the proposition, appearing in many cases, that a cross does not contain identifying characteristics, in favour of the proposition that a cross may be made uniformly in a definite and distinctive manner. At pp 319-321 of his book, he referred to a case of electoral fraud in Puerto Rico, in which crosses on ballot papers could be identified as having been added after the original voter had marked the ballot paper. That was a case in which some crosses were shown to have been written by illiterate and untrained writers, whereas others had been made freely and rapidly by a skilled writer, and a large number of them had been made by the same writer. According to Osborn, at p 321, "The striking similarity on many ballots was unmistakable and the fundamental difference between the voter's halting and awkward mark at the top and the rapid groups of nine was easily seen...".
In his affidavit, filed in this proceeding, Mr. Westwood also referred to the extreme difficulties of identifying crosses as having been written by one person. Because the cross is a simple character, and the effect of its being marked in a small printed square on a document must be taken into account, it would not be surprising to find a high incidence of crosses that are pictorially very similar, and which a close examination may reveal as very similar, even though they have been written by different people. According to Mr. Westwood, an expectation of similarity would be increased in the case of documents written by members of a group of literate people, most of whom are engaged in occupations in which writing skills are a necessary part of the daily performance of their duties. Such is the case with members of the Union. In addition, there may be groups of people who might make crosses in a similar manner, groups such as old people, frail or ill people, people who are by nature habitually neat, people who use or attempt to use the corners of squares on the document as the starting and finishing points for the lines of their crosses, habitually quick writers, the untidy and those who are not concerned to stay within the boundaries of a printed square, habitual overwriters or retracers, and those who are motivated to be emphatic in the expression of their preferences. It is also possible to find in the ordinary course ballot papers containing a number of crosses which disclose a considerable level of variation. This may result from a number of factors, including indifference to the task at hand, lack of concern for appearance, failure to write an adequate cross at the first attempt for reasons such as pen failure, variations in confidence or desire to express a choice emphatically, attempts to reproduce examples provided in instructions on the ballot paper, or in how to vote tickets, the influence of alcohol or drugs, and variations of the surface on which the ballot paper is placed while being completed, or movement from one surface to another during the course of completion of it. There may also be variations caused by completion of the ballot paper in stages, at different times, on different surfaces or with different pens. Mr. Timewell conceded in cross examination the relevance of most of these factors. He did not concede Mr. Westwood's conclusion that it is only in rare cases, where distinctive features recur in crosses on a consistent basis, that any conclusion of common authorship of crosses can be drawn.
A thorough review of Mr. Timewell's evidence gives rise to a number of difficulties about accepting his conclusions. Although his experience and study in the field qualify him to be regarded as an expert document examiner, in some respects Mr. Timewell's approach to the task which he undertook belied his expertise.
The first affidavit sworn by Mr. Timewell contained no information as to the methods used by him in examining ballot papers, or any system which he had of sorting or classifying them. At a directions hearing on 13th September 1988, remarks were made about the paucity of material in the affidavit, and a direction was made that a further affidavit by Mr. Timewell be filed and served, setting out in detail his observations and conclusions from his inspection of the ballot papers. Notwithstanding this direction, the second affidavit contained only Mr. Timewell's conclusions as to various groups of ballot papers, and sketchy descriptions of characteristics which he attributed to those groups. Nothing was said as to the manner in which he came to compile the groups, or as to details of similarities and dissimilarities found by him in various crosses. Nor were these questions explored at all in examination in chief. As a consequence, a considerable time was spent in cross-examination by Mr. Kenzie, seeking to explore exactly what Mr. Timewell had done and observed. The excuse offered by Mr. Timewell for the lack of material in his affidavits was that he had once been told by a crown prosecutor in Victoria that he should put as little as possible into a statement to be given to an accused person, because greater detail in such a statement would lengthen the cross-examination unnecessarily. Leaving aside any disquiet which such a claim must produce about observance of the rights of accused persons in Victoria, this excuse discloses a fundamental misunderstanding of the role of an expert witness. An expert who is confident of his or her methods and conclusions will be more than happy to set them out in detail in an affidavit, and to allow them to be tested and evaluated by the opposite party or parties. The function of an expert witness is to assist the Court in reaching a conclusion on a subject which is not, or not entirely, common knowledge. Partisanship will lead very quickly to a loss of credibility of an expert. Unwillingness to expose his or her methods to appraisal by a party or parties other than the party engaging the expert must be suggestive of partisanship. In the present case, I do not conclude that Mr. Timewell acted as he did from a desire to promote the cause of the party whose witness he was. Rather, he seems to have acted out of ignorance of the proper role of an expert witness. Whilst less disturbing than partisanship, this ignorance must cast some doubt on the validity of Mr. Timewell's approach.
In cross-examination of Mr. Timewell, it became apparent that he had not received, or requested, instructions in writing as to the task which he was engaged to perform. Nor was he able to recall the precise terms of his oral instructions. All that was clear was that he was shown 551 ballot papers, selected by some other person or persons from the bulk of the ballot papers in the custody of the Australian Electoral Commission, on the basis that those papers might contain indications of common authorship. It was contended by counsel for the successful candidates that the evidence showed that Mr. Timewell began with a presumption that he would find evidence of common authorship. I do not think that Mr. Timewell did so begin, but the lack of clarity in his evidence as to just what was his understanding of the task required of him is further cause for misgivings about the soundness of his approach.
Mr. Timewell examined all of the executive and national council ballot papers within the group of 551 which had been isolated previously. He then extracted a random sample of one ballot paper in seven from some three thousand of the remaining executive and national council ballot papers, of which there were over six thousand in all. This produced a sample of 483 ballot papers. After this, he examined all of the executive and national council ballot papers. At each stage, he culled out those which did not appear to him to disclose evidence of common authorship. As the process continued, his groups of ballot papers that became exhibits T1 and T6, and his groups of ballot papers that became exhibits T2 and T7 were compiled. The group which became exhibit T4 was begun later, when, according to Mr. Timewell, he began to come across ballot papers which disclosed considerable similarity. After completing an examination of the executive and national council ballot papers, Mr. Timewell examined the papers from some of the sections, culling as he went, and compiling the groups from the sections to which reference has already been made. According to his evidence, in deciding whether or not to place a ballot paper into a particular group, Mr. Timewell rejected it if he had real doubt about its inclusion.
The most fundamental criticism made of Mr. Timewell's approach arose from his reliance upon what came to be called during the course of the trial the "link analysis". Apart from exhibit T17, and perhaps the pair of ballot papers in exhibit T5, Mr. Timewell conceded that he was not able to put any two ballot papers from any group side by side and to say with any certainty that they had been written by the same person. In other words, his groups were not compiled by a comparison of each ballot paper with each other in the group, with an examination to determine whether there were sufficient similarities in the formation of the crosses to give rise to a probability of common authorship, and for dissimilarities, to see whether they were of such significance as to cast serious doubt on the possibility of common authorship. Instead, Mr. Timewell's method was to examine a paper, for the purpose of determining what was the range of methods of constructing a cross possessed by the writer of the particular paper. This approach naturally involved an assumption that the particular paper had been written entirely by one person. Having ascertained the range of the writer from one ballot paper, Mr. Timewell saw it as legitimate to examine another ballot paper, to see whether crosses on it fell within that range. If he found that some of the crosses on the second ballot paper fell within the range of the first, he then felt entitled to take the view that the same author may have been responsible for the two papers. It was then legitimate, in his view, to regard the dissimilar crosses in the second ballot paper as extending the range of the particular writer. A third ballot paper could then be examined on the same basis. If a significant number of crosses on the third ballot paper fell within the range revealed by the first two, then the ballot paper could be regarded as the product of the same person, and any dissimilar crosses in the third ballot paper could be regarded as a further extension of the range of the particular writer. In this way, a number of ballot papers could be linked together. This was the technique used by Mr. Timewell in assembling his various groups of ballot papers.
Mr. Westwood was critical of this link analysis method. He was of the view that it is unsafe to link ballot papers, unless it is possible to be satisfied that both were written by the same person. In my view, link analysis is a completely unsatisfactory method for an expert document examiner to apply in a case such as the present. It is a method subject to a logical flaw. Having satisfied himself as to the range of the writer of the first ballot paper, Mr. Timewell did not find that range duplicated in a second ballot paper. What he found was some crosses falling within the range of the first ballot paper, and some falling outside that range. At that stage, two logical possibilities existed. One was that the characteristics common to the two ballot papers were characteristics exclusive to one writer. The other was that those characteristics were characteristics shared by two writers. If the first of these possibilities is adopted, it follows that the range of the single writer is extended to the extent of the dissimilar crosses in the second ballot paper. To apply the same technique in respect of a third ballot paper, in which some crosses falling within the combined range of the first two occur, is to increase the range of the supposed single writer even further. A continued application of the technique results in the proposition that a single writer with a very wide range of characteristics in his or her crosses existed, and that any ballot paper containing crosses with some of those characteristics was written by that person. Further, any ballot paper containing some crosses with some of those characteristics, and other crosses without them, simply extends the range of the supposed individual writer.
If the second logical possibility, that of two writers with some characteristics in common, is adopted, then reference to a third or any subsequent ballot paper will not result in a conclusion of common authorship. Rather, the amassing of a group of ballot papers, sharing some characteristics of the crosses on them, will be suggestive of a number of persons inclined to write crosses showing those characteristics. When asked why he had adopted the first logical possibility rather than the second, Mr. Timewell was unable to give a satisfactory answer. In the end, he fell back on the proposition that his experience as a document examiner enabled him to accept the proposition that the characteristics he observed were unlikely to have been shared by more than one person. It is questionable to what extent the experience of any document examiner could enable adherence to this proposition. This is particularly so in the case of documents containing nothing but crosses, as distinct from documents containing substantial quantities of handwriting, in which the uniqueness of the writing may be tested by reference to a number of features of design, layout and technique. Even on his own evidence, Mr. Timewell's experience of documents containing crosses did not appear to be sufficiently large to enable him to assert an opinion as to whether the population at large, or the voting population within the Union, would be likely to contain more than one person capable of executing some crosses on a ballot paper with certain characteristics. Given the relatively simple nature of a cross, the likelihood of more than one person among the voters executing it, on some occasions, in a particular way cannot be excluded so readily.
The result of Mr. Timewell's application of link analysis, particularly in the larger groups of ballot papers, is startling to the untrained eye. Within each of the exhibits T1 and T6 group, the exhibits T2, T7, T11 and T14 group, and to a lesser extent within the exhibits T4 and T16 group, there is to be found an enormous variety of types of crosses. In each of those groups, there is a wide range of pictorial design and of positioning within (and partly outside) the squares on the ballot papers. The complex crosses identified by Mr. Timewell within the first two groups do not conform to any consistent pattern at all. In Mr. Timewell's descriptions of complex crosses, much reference was made to the presence of vees, apparently made by a writer drawing a stroke, and then immediately attempting to retrace it, but doing so inaccurately, so that the first line was not retraced at all, or only partially. The complex crosses in the two large groups of ballot papers exhibit a great range of variations. Some have two vees. The vees may point in any direction. They may range from a completely inaccurate retrace, in which no part of the second line follows the first, to a retrace which is almost complete, and diverges from the original line at a late stage. Given all of these differences, it is a matter of surprise to a close observer of the ballot papers, not claiming expertise in document examination, that Mr. Timewell is able to assert the probability of common authorship of each group. No group, except exhibit T17, contains crosses that could be described as having been made uniformly in a definite and distinctive manner.
Another significant difficulty which Mr. Timewell had was in describing the characteristics of the groups. In his first affidavit, he said as to a group of ballot papers which afterwards became part of exhibit T1, "the characteristic of these ballot papers was that the first square contained an overwritten "X" with no detectable overwriting in any later square and no sign of pen failure." In his second affidavit, he described the characteristics of the ballot papers in exhibit T1 as "a complex cross in the first square and simple crosses in other squares." In that same affidavit, he described the characteristics of the ballot papers in exhibit T2 as being "a complex and distinctive cross". At various stages in his evidence, he had great difficulty in explaining what was meant by a complex cross, or the complex crosses. The presence of one or more vees came to be a major requirement of such crosses, and the absence of a pen lift in the making of the vee was referred to on some occasions. There was confusion over the use of the terms "retrace" and "overwrite", so that at some times it appeared that Mr. Timewell was saying that a vee was not an overwriting or a retrace. Further confusion resulted from a suggestion that the presence of a vee was unnecessary, if the cross was made with a retrace which tended towards a vee. At a late stage in his cross-examination, Mr. Timewell stated on several occasions that he was having great difficulty in expressing in words what he had observed as complex crosses on ballot papers. He even went so far as to claim that he was unable to state what he meant by such complex crosses. His cross-examination ended late one afternoon. On the following morning, he was asked in re-examination whether he could give a definition of a complex cross. He came out with a definition which he had written down overnight, and which was an obvious attempt to include all of the elements which had surfaced in the course of his earlier evidence. This definition was as follows:

"The complex crosses consist of at least 3 lines, with two of the lines being connected without pen lift at one end and the other line, or lines, crossing the connected lines at an angle approximately 80 - 100 degrees. In the part of the cross consisting of two lines, these lines diverge at some place to make a V formation. This divergence ranges from being at the end of the first line to a position along the line.

In the V's where the divergence is not at the end of the line, the return stroke is written wholly or partially over the first stroke up to that place where the divergence occurs. An alternative form of the cross occurs when both sections of the cross contain V's of the type described, and in both the single and double V's the points of the V may point to any corner of the square.

Thus these complex crosses consist of either a V and a single line or 2 V's - the V's being made without a pen lift at the part of the V where the change of direction occurs. In examination of these crosses the apparent writing speed and the line quality were also considered."

This definition includes at least one element which had never been mentioned specifically before, namely the requirement that the lines intersect at an angle of between 80 and 100 degrees. An examination of the crosses in the first squares of the ballot papers in exhibit T1 shows clearly that that was not a criterion applied by Mr. Timewell when selecting the ballot papers to form that exhibit. It does not take an expert's eye to see that many of those crosses are constructed with lines intersecting at angles which fall outside 10 degrees on either side of a right angle. Nor does the definition contain any indication of the nature or characteristics of the "apparent writing speed and the line quality" referred to, although Mr. Timewell did amplify the definition to the extent of saying that he had eliminated "very high speed entries". Mr. Timewell asks the Court to trust his analysis, without making clear the process by which it has been conducted. It should also be noted that, because this comprehensive definition was given in re-examination, no opportunity existed for an cross-examination on it. I am not satisfied that it was the definition which Mr. Timewell had clearly in his mind right through his examination of the ballot papers and his evidence. It is beyond understanding that he could have been incapable of articulating this definition at an early stage (indeed in his first affidavit) if it had been the definition on which he relied. I am satisfied that Mr. Timewell's concept of a complex cross for this purpose was a fairly elastic one, and that it became necessary for him to refine it progressively as he was put under pressure in cross-examination about his method of selecting ballot papers.
A couple of other significant points about this definition are worth noting. Early in his evidence, Mr. Timewell stated that the writer of the ballot papers in exhibits T1 and T6 was not the same person who wrote the ballot papers in exhibits T2, T7, T11 and T14. Later, particularly when he was seeking to refine the definition, it became apparent that the complex crosses in all groups were said to meet the same definition, and Mr. Timewell was forced to concede that all were capable of falling within the range of one writer. This was a serious departure from his earlier evidence, and a concession that the fact that a complex cross appeared in the first square of the ballot papers in exhibits T1 and T6 was not necessarily enough to make them distinctive. As I have pointed out, the revelation that some ballot papers in exhibit T1 contained other complex crosses did not cause Mr. Timewell to concede that they did not belong in that exhibit. In the end, as a result of his introduction of the absence of pen lift into the definition of a complex cross, he was forced to concede that one ballot paper did not belong in that exhibit. In the first square of that ballot paper, there appears a cross which consists of two sets of parallel or near parallel lines, much as if the writer of the cross was preparing to play a game of noughts and crosses. Neither pair of lines forms a vee. Unless the definition of a complex cross were very loose, it is impossible to see how this ballot paper could have been included in exhibit T1 from the start. Still less is it possible to see how Mr. Timewell could have defended its inclusion for so long under cross-examination, before finally conceding that it did not belong.
Mr. Timewell seemed to take the view that concession was something undesirable. One of the twelve ballot papers in exhibit T16 was not marked in the same way as were the others in that group, in that the votes cast were not for the same candidates. This ballot paper was drawn to the attention of Mr. Timewell during cross-examination. An examination of the ballot paper revealed that the person who had marked it appeared to have cast a vote for a female candidate, wherever possible, rather than to have followed any ticket. Notwithstanding this, and his assertion that he had culled out ballot papers which on their faces indicated that the persons marking them were motivated by particular concerns, Mr. Timewell was adamant that this ballot paper belonged in exhibit T16. He even went so far as to say that only sworn evidence by more than one author of the ballot papers in that group, denying authorship of any of the others, would have convinced him to remove the particular ballot paper from the group in which he had placed it after examination. This was perhaps the most extreme, but by no means the only, example of Mr. Timewell's unwillingness to concede even that the strength of his conviction about whether a particular ballot paper belonged in one of his groups had been modified by factors drawn to his attention, but not noted by him previously.
Even more odd was Mr. Timewell's refusal to concede that more ballot papers might belong in the categories which he had selected than those he had put forward. Mr. Westwood's evidence was that, if Mr. Timewell's categories of documents in exhibits T1 and T6, and T2 and T7 existed, then many more executive and national council ballot papers belonged in those categories as well. Because these extra ballot papers were distributed between the two tickets, and for other candidates, in something like the overall voting pattern, this evidence was suggestive of the commonness of the characteristics. Although he had said that he applied a high standard of probability in assembling his categories of ballot papers, and had rejected ballot papers in cases of doubt, Mr. Timewell was adamant that he would not add any of the further ballot papers selected by Mr. Westwood. This was so, even though Mr. Timewell re-examined those ballot papers for nineteen and a half hours during the course of the trial. In the case of many of them, his initial reason given for refusing to include the ballot papers in his categories after this re-examination was that they did not follow any particular ticket. Once it was pointed out to him that this was irrelevant for the purpose of determining whether particular methods of making crosses were common amongst the voters, he added that he adhered to his original reasons for excluding those ballot papers from his categories. Given the imprecise nature of document examination where crosses are concerned, and Mr. Timewell's own evidence as to his culling process, it is surprising that he maintained such rigid views as to where the line should be drawn around each of his categories.
For all of these reasons, I have a clear preference for Mr. Westwood's evidence that the characteristics identified by Mr. Timewell do not constitute a proper basis for attributing single authorship to any one of Mr. Timewell's groups of ballot papers, with the exception of exhibit T17. Even in the case of exhibit T5, with respect to which Mr. Timewell was able to say that he could compare two ballot papers and give an opinion that they were written by the same person, without reference to any other ballot paper, his opinion is doubtful. The doubt is raised by his inclusion in that group of another ballot paper, which he describes as containing crosses of a similar design, without his expressing a view that common authorship existed among the three ballot papers. The inclusion of this additional ballot paper without such an opinion suggests that the making of a cross in the particular manner is a characteristic of more than one person.
Besides preferring the evidence of Mr. Westwood to that of Mr. Timewell, there are additional reasons why a finding of any irregularity constituted by multiple voting must be rejected. When pressed to give an opinion as to the number of different writers involved in the preparation of his categories of ballot papers, Mr. Timewell claimed some difficulty in doing so, but came up with a range of possible numbers. In his view, the minimum number of persons who could have been responsible for multiple voting was four, and the maximum was seven or eight, a figure later increased to ten. The claim put on behalf of the applicant and the Union, therefore, is that between four and ten people were able to acquire numbers of ballot papers, in circumstances in which they were able to fill them in, and post them to the returning officer, without detection otherwise than by examination by an expert. In the circumstances, having regard to the way in which the elections were conducted, those events are inherently improbable. Mr. Tracey argued for the possibility of the introduction of extra ballot papers, not printed with the authority of the Australian Electoral Commission. This argument was based on evidence from Mr. Timewell that several different types and grades of paper had been used for the ballot papers examined by him. This argument would have considerably more weight if there had been evidence that all of the alleged multiple votes were cast on ballot papers printed on one, or more than one, specific kind or kinds of paper, being paper different from the ordinary ballot papers. In fact, the different types of paper are distributed in a random fashion through the votes. A finding that ballot riggers introduced extra ballot papers into the elections is not possible.
Apart from that suggestion, counsel for the applicant and counsel for the Union offered no theory as to how the multiple voting might have occurred. They relied solely on the evidence of Mr. Timewell. It was necessary for them to postulate that between four and ten persons, not at that time associated with the running of the Victorian branch of the Union (because those on the Tanner ticket were not the holders of any offices at the time when the ballot was conducted), were able to acquire the necessary ballot papers. No evidence came to light from members entitled to vote who complained that they had not received ballot papers. No suggestion was made that ballot papers were sent in large numbers to places of employment, and were then appropriated instead of being distributed to members employed there. No witnesses came forward to say that they had seen or heard of actual instances of multiple voting. No-one admitted to, or boasted of, voting more than once, so far as the evidence in this inquiry goes. Given the careful manner in which the Australian Electoral Commission conducts itself, the acquisition of the requisite number of ballot papers by the requisite number of people without trace is unlikely.
Mr. Timewell's evidence is also based on the hypothesis that the various groups of ballot papers are not the product of deliberate attempts to disguise. Despite this, there is a range of different pens used within each group, and an absence of indentation marks, suggesting that the groups were not completed at the same time and in the same place. Again, it is improbable that the number of persons supposed to have been responsible for the various groups of ballot papers would have had access to ballot papers at different times, and perhaps places, and have used different pens to fill them in.
A further telling point is the fact that some ballot papers identified by Mr. Timewell as being written by the same author as others in fact recorded votes for the alternative ticket. It will be recalled that Mr. Timewell believed that the four ballot papers in exhibit T6 were written by the same person as the forty-four in exhibit T1, and the seven ballot papers in exhibit T7 by the same author as the 108 in exhibit T2. The votes for State council candidates in exhibit T9 cancelled each other out. Exhibits T12 and T13 appear to be marked in favour of opposing tickets; the need to vote for four out of nine candidates for conference delegates from the auto section resulted in one of the candidates receiving a vote on each ballot paper in both groups, but otherwise the two groups of ballot papers are marked in favour of opposing candidates. Persons attempting to rig a ballot, making no attempt to disguise their writing styles in doing so, and therefore apparently heedless of the likelihood of detection, are highly unlikely to cause some votes to be cast against the candidates of their choice. Unless the motive were to escape detection, it is almost inconceivable that a person wishing to promote the Tanner ticket, by having false votes recorded in favour of the candidates on that ticket, would deliberately mark several ballot papers in favour of the candidates on the O'Sullivan ticket. The much more probable conclusion is that the characteristics identified by Mr. Timewell with respect to exhibits T1 and T2 were common to a number of voters, including those responsible for exhibits T6 and T7.
For all of these reasons, I consider it to be improbable that multiple voting occurred with respect to any of the categories of documents chosen by Mr. Timewell, except exhibit T17. As to exhibit T17, it is undoubted that the same person marked both ballot papers. That circumstance by itself is not suggestive of an irregularity in the election. It is consistent with an innocent explanation, such as one voter inviting another voter to fill out his or her ballot paper at the same time, so as to ensure that the voting wishes of the first voter were complied with. Accordingly, no finding of irregularity by way of multiple voting can be made.
THE ELECTORAL ROLL
In rule 29 of the branch rules, there appear, among others, the following provisions:

"Unless otherwise provided by these rules the procedure to be observed at any elections to be held pursuant to these rules shall be as follows:-

(a) Only members who are financial to the end of the quarter preceding an election by the end of the quarter preceding that election shall be deemed financial within the meaning of this rule.

(b) For the purpose of an election the books of the Branch shall be deemed to have closed at the end of the quarter preceding that election. Only members shown in the records at the Branch Office as financial within the meaning of sub-rule (a) shall be entitled to have a ballot paper forwarded to them. For the purpose of this sub-rule and sub-rule (a) an election shall be deemed to take place at the time of the despatch of the ballot papers. Provided that any member who, within seven days before the close of the ballot, satisfies the Returning Officer upon application in writing that he was qualified by the end of the quarter preceding the election, shall be entitled to receive a ballot paper."

The electoral roll was established by the following procedure. On 1st April 1988, a list was extracted from the computer in the branch office, showing the name and address of every financial member attached to the branch as at the end of the previous day. Between 1st April and 2nd May, this list was refined by deleting some names and addresses, and adding others. Together with a letter dated 9th May 1988, the refined list was forwarded to the returning officer. By further letters dated 16th May, 23rd May, 25th May and 26th May, the returning officer was advised of further deletions and further additions, as well as changes of address. Thereafter, up to 16th June, the returning officer was advised of further changes of address and further additions of the names and addresses of members. No deletions were advised during this period, as the ballot had opened on 31st May, and ballot papers had already been sent to persons whose names appeared on the amended list. Ballot papers were sent to those whose names were added to the list after 26th May. It is as to these additions and deletions that the applicant complains of irregularities, on several grounds.
In the first place, it was argued that no additions or deletions at all should have been made. This was on the basis that 31st March was the end of the quarter preceding the elections, and that rule 29(b) of the branch rules operated to close the books at that date, so that only persons actually shown at that date in the books of the branch as financial members, and all such persons, were entitled to vote. The contrary argument was that rule 29(b) operated to give persons who were actually financial members as at the end of the relevant quarter, and who remained members up to the time of the ballot, an entitlement to vote.
It is significant that rule 29(a) uses the phrase "members who are financial", and rule 29(b) uses the phrase "members shown in the records...as financial". This tends to suggest that, in order to receive a vote, a person must be a member at the time when the ballot is conducted, and also be financial. For this purpose, there is a specific definition of "financial", which contains two requirements. The member must be financial to the end of the quarter preceding the despatch of the ballot papers by the end of that quarter. The rules, therefore, look to the question of membership at the time when the ballot is conducted, but to financial status at an earlier time. If the rules were not construed in this way, it would be possible for persons who had ceased to be members between the end of the preceding quarter and the commencement of a ballot to be entitled to vote. In the present case, two months elapsed between those two dates, and the likelihood is that a number of persons would have ceased to be members of the Union in the ordinary course during that time. To construe the rules as allowing those persons to retain their voting rights would be to undermine the democratic structure of the Union. No difficulty is caused by a construction that requires membership at the time of the ballot.
As to the question of financiality, it is clear that the rules ought not to be construed as giving or withholding voting entitlements, according to whether information about a member's status was or was not actually recorded in the books of the Union by a particular date. To regard rule 29(b) as effecting an actual closure, as distinct from a "deemed" closure at 31st March would be to make voting entitlements entirely dependent upon the efficiency or otherwise of administrative procedures within the branch. As will be seen, all of the persons whose names were added to the list which became the electoral roll after 1st April were persons who had joined the Union prior to that date, and who had made payments sufficient to make them financial as at 31st March. For various reasons, evidence of these facts was not received in the branch office, or entered into the computer system, prior to 31st March. To construe the rule as depriving these persons of a vote would again be to contradict notions of democracy which are inherent in the rules, and in the status of the Union as a registered organisation. Such a construction should not be adopted unless the words of the rule compel it. They do not. If they did, questions might arise of their validity under s.140 of the former Act, and s.196 of the Industrial Relations Act.

I therefore have no difficulty in rejecting the argument that rule 29(b) required the entries in the branch computer, as they appeared at 31st March 1988, to be adopted for the purposes of the electoral roll, without any additions or deletions. Rather, the rules required the electoral roll to consist of persons who were members at the time when the ballot was conducted, who had been members at 31st March 1988, and were financial at that date, even though they were shown to be so by later entries.
In order to deal with the actual additions and deletions, it is necessary to understand many provisions of the rules of the Union with respect to the acquisition and termination of membership and the payment of contributions. Rule 5 of the rules of the Union ("the national rules") contains some provisions about how to join the Union. Sub-rule (1) requires application to a branch, and allows for the manner of such application to be determined by rules of the branches. There are provisions for applications direct to the National Executive in certain circumstances, which do not arise for consideration in the present case. Under sub-rule (2), the nature of the form of application and the information required on it are left for determination by the National Executive or the branch concerned. Sub-rule (4) provides:

"No error, omission or want of form in connection with any person's application for, or admission to, membership shall invalidate his or her membership and every person shall be deemed to be a member who has been acknowledged to be a member by the Union or a Branch, and either has made application for membership or acknowledges or has acknowledged in any way the fact of his or her membership...".

There follow provisos concerning the termination of membership in certain circumstances which do not need to be considered. Under sub-rule (7), a member is deemed to have become a member as from the date of admission provided in the rules of a branch, or the date of receipt of the application at the office of a branch, where no provision as to date of admission is made in the rules of a branch, or the date of receipt of an application at the national office where application is made to the National Executive.
Rule 7 of the national rules provides for entrance fees and contributions. Under sub-rule (1), entrance fees are to be fixed by branch rules, and are not to be less than fifty cents; they may be waived by any branch at its discretion. Under sub-rule (2), contributions are also to be fixed by rules of a branch. Sub-rule (3) provides for the payment of contributions by yearly, half-yearly or quarterly payments, or by payments by the "contribution term" or by salary deduction, in accordance with the rules of the branches.
Rule 9 provides that contributions shall be due and payable in advance on the first day of each period in respect of which they are calculated under the rules of the branches. There is a proviso, under which different periods of grace may be allowed, depending upon the period with respect to which contributions are payable. Under para. (c) of the proviso, where quarterly payments are in force, members may be declared unfinancial if their contributions are not paid within fourteen days from the beginning of any quarterly period. Under para. (e), members who pay their contributions by salary deduction may be declared unfinancial if at any time they are in default in the payment of any contributions. Provision is made for the rules of a branch to adopt these provisions. Rule 10 of the national rules deals with resignations. In substance, it echoes the provisions of s.145 of the former Act (see now s.264 of the Industrial Relations Act). Those provisions permit instant resignation if a person ceases to be employed so as to be eligible for membership of the Union, or resignation on not less than three months' notice. In both cases, resignation is to be by notice in writing. Rule 11 of the national rules also contains a provision for purging the register of members, but no issue of its operation arises in the present case.
Rule 6 of the branch rules deals with admission to membership. Sub-rule (a) contemplates the filling in and signing of an application form. Sub-rule (b) provides for the submission of an application either to a general meeting of a section or directly to the State Executive. Under sub-rule (c), applications considered by a section are to be forwarded to the State Executive. Sub-rule (d) requires the State Executive to consider applications for membership at its first meeting next after their receipt by the State secretary, and in any event within thirty days of such receipt. Sub-rule (e) provides for acceptance or rejection of any application by the State Executive. There are various other provisions in rule 6, relating to investigation of applications, and to appeals. Sub-rule (l) provides:

"An applicant for membership admitted to membership shall be deemed to be admitted to membership as from the date of the receipt by the State Secretary of his application for membership."

Sub-rule (o) echoes the provisions quoted earlier from national rule 5(4).
Rule 7 of the branch rules contains provisions relating to resignations, which differ to some extent from those in rule 10 of the national rules. The provision in the branch rules permits instant resignation if a member ceases to be employed in or in connection with the industry of the Union. The national rule provisions are also fuller with respect to the process of resigning. There is also a provision for purging the register in rule 8 of the branch rules, but again it is unnecessary to consider the effect of that rule.
Rule 10 of the branch rules fixes entrance fees and contributions. Entrance fees are fifty cents, except in the case of members who are employed by the Totalizator Agency Board, its branches or agencies, other than as permanent fulltime employees, for whom entrance fees are $3.50. Provision exists for waiver by the State Council or State Executive. Various rates of contributions are fixed, some for those in specific occupations, and some by reference to sex and wage rates, or age and wage rates. Rule 10(c) provides for a financial year to commence on 1st July, half years on 1st July and 1st January, and quarters on 1st July, 1st October, 1st January and 1st April. It is by reference to this provision that it is possible to ascertain that the quarter preceding the relevant elections ended on 31st March 1988. Rule 10(e) contains provisions for the payment of reduced contributions, according to the month of the quarter in which a member joins. In the second month, two thirds of the quarter's payment is required, and in the third month, only one third must be paid. Sub-rules (f) and (g) contain special provisions for persons employed by the Totalizator Agency Board, its branches or agencies, other than as permanent fulltime employees and for persons employed within the scope of the Victorian Commercial Clerks Award as casuals.
Rule 10A provides for the payment of contributions by salary deductions. The relevant provisions of that rule are as follows:

"(a) Notwithstanding anything to the contrary contained elsewhere in these Rules, a member may effect payment of his membership contributions by having them deducted at designated regular intervals from salary payments paid to him by his employer and for such deductions to be then remitted on his behalf by the employer to the Union provided first. (Sic.)

(i) there exists between the Union and such employer an agreement for such deductions and remittances to take place.

(ii) the member concerned lodges with the Union or a designated representative of the Union an authority signed by him authorising the deductions and remittances.

(b) From the date of lodging such authority with the Union and whilst the authority remains in force, a member shall be deemed to be financial unless either at the date of lodging or at any time thereafter he is in default in the payment of any contributions, fines or levies. Whilst such default continues he may be deemed unfinancial."

Rule 11 deals with arrears. For most members, sub-rule (b) requires quarterly payments in advance, and allows a period of fourteen days' grace from the commencement of the quarter before a member "may be deemed unfinancial until all arrears are paid." It should be noted that that period is in accordance with that which may be allowed under para. (c) of the proviso in rule 9(1) of the national rules. Reference should also be made to branch rule 11(d), which provides:

"(d) Notwithstanding the foregoing provisions of this Rule a member financial to the end of the quarter preceding an election by the end of the quarter preceding that election and otherwise eligible may nominate and stand for election and may vote at his Section or District or a Branch Election, and at any ballots of his Section or of the Branch."

It is convenient to deal first with the additions which were made to the list of members which became the electoral roll, on and after 1st April 1988. Between 1st April and 2nd May, 173 names and addresses were added. Between 3rd May and 26th May, a further 104 were added. Between 27th May and 16th June, a further 74 were added. In each case, the person concerned had made an application in accordance with branch rule 6 before 31st March 1988. Also before that date, the person concerned had paid a sum or sums of money sufficient to satisfy the obligations imposed by branch rule 10 or branch rule 10A in respect of entrance fees and contributions for the period ended 31st March 1988. For various reasons, information concerning these applications and payments did not reach the branch office, and was not placed in the computer system, until after 31st March. In the majority of cases, the persons concerned entered into employment with employers who had agreements with the Union under which the employers were obliged to require their employees to become members of the Union. In the normal course, at the time when the employment commenced, the employee would be required to fill out an application form for membership of the Union, and a form authorising deduction of contributions from his or her salary by the employer. In due course, the employer concerned would remit money to the Union, consisting of the contributions of many employees, including those recently joined. These remittances would take place at various different times, more to suit the convenience of the employer than by any other system. When remittances were forwarded, application forms from new employees would also be forwarded. In some cases, new members would be signed up by workplace representatives or shop stewards, who would later forward the application forms and the requisite moneys to the branch office. In some cases, no doubt, applications would come through section general meetings, in accordance with branch rule 6(c). In the case of each of these applicants, the State Executive of the branch considered their applications. The State Executive met on 13th April, 11th May, 2nd June and 16th June 1988, and admitted a number of new members on each occasion, including some whose applications and payments had been made prior to 31st March. These were the persons whose names were added to the list of members which became the electoral roll.
The only potential difficulty which arises with regard to the people added to the list is the determination of the date of commencement of their membership. As has been pointed out previously, under branch rule 6(l), an applicant shall be deemed to be admitted to membership as from the date of the receipt by the State secretary of his application for membership. If this provision were construed as applying only to receipt by the State secretary personally, it would be largely, if not wholly, inoperative. The State secretary delegates the function of receiving such applications to other persons. The most obvious of such persons are clerical staff in the branch office. Even persons who attend at the branch office to join the Union are unlikely to have their applications end up in the hands of the State secretary personally. The vast majority of persons joining do not attend at the office, but give their applications to work place representatives or shop stewards, or to representatives of their employers. The question is whether those persons stand in the shoes of the State secretary for the purpose of "receipt" of the applications. Rule 32(b) of the branch rules lists the duties of shop stewards. They include, "To secure new members in the establishment of which they are stewards." There is no express obligation on them to forward application forms to the branch office. A number of agreements between the Union and employers in Victoria were in evidence, for the purpose of demonstrating the types of dues deduction arrangements in existence. Many of those agreements also contain provisions obliging the employer to require each new employee to sign an application for membership. Again, nothing express is provided as to the forwarding of that application. These provisions are consistent with shop stewards and employers receiving applications for and on behalf of the State secretary. It has been held that an employer deducting contributions from the wages of an employee may be acting as agent of a trade union to whom the amounts deducted are paid subsequently. See Re Federated Liquor and Allied Industries Employees' Union of Australia; ex parte Farrow (1976) 27 FLR 430. If an employer can be an agent for collecting contributions, there is no reason why a shop steward or an employer cannot be an agent for the purpose of receiving applications for membership. Such a conclusion would conform with the expectations of persons joining. It also accords with the rules. Rule 5(7) of the national rules deems a person to have become a member from the date of receipt of the application at the office of a branch, if no other provision is made in the rules of the relevant branch. If rule 6(l) only operated to make the same provision, it would be unnecessary. It must be intended to have broader effect, by enabling the State secretary to authorize persons outside the branch office to receive applications on his or her behalf. The evidence is that the persons whose names were added to the list which became the roll of voters, after 1st April 1988, all signed application forms prior to 31st March. The overwhelming likelihood is that those application forms were received by the State secretary, by being handed to someone authorised to receive them on his behalf, prior to that date. Accordingly, no irregularity arose by reason of the addition of those names.
In the period between 1st April and 2nd May 1988, 465 names were deleted from the list of members which became the roll of voters. Of those, 290 were so deleted because they were regarded as not financial as at 31st March. Of the remaining 175, the evidence is that 137 were deleted because of resignations received from them. These persons were deleted correctly. No doubt most of them would have been persons who resigned immediately, because they were going to other jobs in which they would not be eligible for membership of the Union. A few may have resigned earlier, giving three months' notice, which expired during the relevant period. This leaves 38 persons deleted, in respect of whom the deletions resulted from information received from shop stewards or employers to the effect that they had left their jobs. Many of them would have been persons whose dues were paid by means of payroll deductions, and whose deductions ceased after 31st March, when they left their jobs. It was considered not practical to contact them, so that the choice was made to delete them.
In the period from 3rd May up to 26th May, when the list was sent to the Australian Electoral Commission, a further 618 names were deleted. Of them, 472 were regarded as unfinancial. This left 146, from 36 of whom resignations were received. Those 36 names were properly deleted. The balance of 110 were in the same position as the 38 deletions in the earlier period, namely that information came to the branch office to the effect that they had left their jobs and it was considered not practical to contact them.
Many of the persons whose names were deleted on the ground that they were not financial were persons whose contributions were deducted from their wages pursuant to authorities given by them in accordance with rule 10A of the branch rules. Information that their dues had ceased to be deducted before 31st March 1988, usually because they had ceased to be employed by the employers to whom the authorities had been given, was received at the branch office after 31st March. Mr. Mueller argued that these persons should have been treated as financial. His argument was that rule 10A should not be construed so as to make a member unfinancial immediately an authority to deduct contributions ceased to operate. The member should have a period of grace in which to pay the balance of contributions in respect of a quarter. As no express period of grace can be found in the rules, they should be construed as allowing payment at any time up to fourteen days after the beginning of the next quarter. This argument is plainly inconsistent with rule 10A. The effect of that rule, especially sub-rule (b) is to exempt a member whose dues are paid by deduction from the obligation to pay quarterly, and to treat such a member as financial, but only within a specified period and only subject to specified conditions. The period is that between the lodging of the authority with the Union and the time when the authority ceases to be in force. The conditions are that the member not be in default in the payment of any contributions, fines or levies. If an authority ceases to be in force, the member concerned will be in default unless and until he or she pays sufficient to make up the balance of contributions up to the end of the quarter in which the cessation occurs. Such a payment may be made at any time up to the end of that quarter in order for the member to be financial at the end of that quarter. It follows that the members whose authorities ceased to be in force prior to 31st March 1988, and who did not make up their contributions by 31st March, were not financial at that date. Their names were properly deleted from the list of members which became the roll of voters, along with the names of all other members who were not financial, information of whose arrears reached the branch office after 31st March.
Of the 38 and 110 names deleted because of information that they had ceased to be employed, totalling 148, many were persons who remained members of the Union at the time when the ballot was conducted. A few may have died. Some may have been employed by the Totalizator Agency Board, other than as permanent full time employees, or as casuals under the Victorian Commercial Clerks Award. The membership of those employees would have terminated automatically if they had not been employed for three consecutive calendar months, by virtue of rule 10(f)(v) and (g) of the branch rules. Each of the remainder was financial as at 31st March 1988, and was qualified and entitled to vote in the elections. Until such time as the Union received a proper resignation, or exercised the powers given by its purging rules, none of these persons could be deprived of membership validly. Whilst such a result may be inconvenient for the Union, no warrant exists in the rules, or in any legislation, for depriving a person of membership simply because he or she has ceased to be employed by one particular employer, and has not indicated to the Union any intentions as to future employment.

An irregularity therefore happened in relation to the elections, by the wrongful failure to include in the roll of voters up to 148 persons who were members of the Union and financial in accordance with rule 29(b), and were therefore entitled to vote.
Even if the assumption be made that all 148 of these persons were excluded wrongly and would have voted, and that each of them would have voted for the O'Sullivan ticket, this irregularity would not have affected the result of the ballot for any of the State Executive positions. The smallest margin in the elections for the State Executive was 160. Whether the irregularity affected, or may have affected, the results of the elections for national councillors, alternate national councillors, State councillors or State conference delegates is not known yet. At present, there is no evidence before the Court as to the majorities obtained by the various candidates who were elected to these positions. So far, the inquiry has been conducted on the footing that findings would be made and expressed on each of the irregularities alleged, and the parties would then be in a position to present evidence and argument as to the effect of any irregularities which were found to have happened.
THE ELIGIBILITY OF CANDIDATES
Further reference to the rules of the Union is necessary, in order to understand the allegations raised that certain candidates in the elections were ineligible to stand. Some reference has already been made to rule 9(1) in the national rules, under which periods of grace for the payment of contributions may be fixed. It will be recalled that, under paragraph (c), where quarterly payments are in force, members may be declared unfinancial if their contributions are not paid within fourteen days from the beginning of any quarterly period. Rule 9(2) of the national rules provides:

"Notwithstanding anything contained in sub-rule (1) hereof a Branch may provide by its Rules that members financial:- ....

up to the end of the immediately preceding quarter, where quarterly payments are in force, or

....

may not be ineligible to nominate and stand for election as officers, delegates or representatives of the Union or of the Branch, or to vote at any election during the...quarterly period...immediately following that for which they were financial."

Rule 9(3) provides that unfinancial members may be deprived of the privileges of membership; they may also be fined and sued for arrears. Rule 9(4) provides as follows:

"Any member who has fallen into arrears or has been declared unfinancial may apply to be granted continuity of financial membership. Such an application may be considered by the National Council, National Executive, Branch Council or Branch Executive. If the body concerned considers a proper case has been made out it may, in the case of a member who has been declared unfinancial, revoke the declaration and direct the member be treated as having been continuously a financial member from the date of the declaration or from such other date as may be specified in the direction of the body concerned or, in the case of a member who has fallen into arrears, direct the member be treated as having been continuously a financial member from the date he fell into arrears or from such other date as may be specified in the direction of the body concerned, and the member shall be treated as being continuously financial for the relevant specified period for all the purposes of these rules."

Reference has also been made to rule 10 of the branch rules, under which contributions are fixed. It will be recalled that this rule requires quarterly payments, with some exceptions, and fixes the quarters to commence on 1st July, 1st October, 1st January and 1st April. Rule 11 of the branch rules deals with arrears. Under rule 11(b), quarterly payment of contributions is required. That rule provides, "Any member who has not paid his contributions for the current quarter within 14 days from the commencement thereof may be deemed unfinancial until all arrears are paid." Sub-rule (c) provides that unfinancial members may be deprived of the privileges of membership by the State Executive, and also provides for fines for being in arrears. Rule 11(d) has already been quoted, and assumes some importance in the present discussion. Rule 11(f) provides as follows:

"Any member who has fallen into arrears or has been declared or deemed unfinancial may apply to the State Secretary to be granted continuity of financial membership. Such an application shall be considered by the State Council or State Executive. If the body concerned considers a proper case has been made out it may, in the case of a member who has been declared or deemed unfinancial, revoke the declaration and/or direct the member be treated as having been continuously a financial member from the date of his being declared or deemed unfinancial or from such other date as may be specified in the direction of the body concerned or, in the case of a member who has fallen into arrears, direct the member be treated as having been continuously a financial member from the date he fell into arrears or from such other date as may be specified in the direction of the body concerned, and the member shall be treated as being continuously financial for the relevant specified period for all the purposes of these Rules."

The relevant parts of rule 28A(b) of the branch rules are as follows:

"Any member of the Branch shall be eligible for nomination for election as a National Councillor or as a First Alternate National Councillor, Second Alternate National Councillor or Third Alternate National Councillor if such member is financial at the date of closing of nominations and for the period of 12 months immediately prior to such date has been continuously a financial member."

Eligibility for the remaining positions the subject of this inquiry is dealt with in rule 29(c) of the branch rules, which provides:

"A member shall be eligible to nominate or be nominated for election to any position or office in any election held pursuant to these rules only if such member is financial at the date of closing of nominations and for the period of 12 months immediately prior to such date has been continuously a financial member. Provided that in the case of elections for State Councillors from the Sections and Conference Delegates from the Sections and Districts, only members of the Section or District concerned, who are financial within the meaning of this sub-rule, shall be eligible to nominate or be nominated in such elections."

Rules 29(a) and (b) of the branch rules have already been set out.
The provisions of these rules, and similar antecedent rules of the Union, have been the subject of construction in previous judgments. In Re Federated Clerks Union of Australia (1973) 22 FLR 47, Joske J. held that provisions such as those found in rule 9(1) of the national rules and rule 11(b) of the branch rules create periods of grace. Although contributions are payable in advance at the beginning of the period for which they are paid, the rules permit them to be paid at any time during the period of grace. In the meantime, the member concerned remains financial. Thus, his Honour held that a member who was nominated for election to a particular office at a time during the period of grace, and who did not pay contributions for that period until after his nomination had been lodged, was financial at the time of the lodging of the nomination. It follows from that reasoning that under the present branch rules, a member may remain financial for up to fourteen days after the beginning of a quarter, and will not cease to be financial unless his or her dues are not paid within that fourteen days. No attempt was made by any counsel in the present case to argue to the contrary. In Re Federated Clerks Union of Australia; ex parte Tanner (1986) 70 ALR 79, at pp 94-97, it was held that the present branch rules produce three possible states in which a member can be. It is possible to be financial, i.e. in the state of having paid to the Union all moneys which the particular member has been obliged to pay. It is possible to be not financial, or in arrears; this state would arise if a member failed to pay a quarter's contribution within the fourteen days period of grace at the commencement of a quarter. A person who is not financial, or who is in arrears, may redeem that position by paying all of the arrears; such a member will then be financial once again. The third possible state is that of being "deemed unfinancial" within the meaning of rule 11(b) of the branch rules, whatever that state may mean. In Tanner's case, it was argued that branch rule 11(b) enabled the State Executive to put someone into the "deemed unfinancial" category. It is unnecessary to consider in the present case whether that is so; there is no suggestion that the State Executive has taken any action to declare any member relevant to this inquiry to be unfinancial. Unfortunately, these authorities do not resolve entirely the problems which arise in the present case.
Rules 28A(b) and 29(c) each require candidates for election to the various positions to be "financial at the date of closing nominations". In the case of the elections the subject of this inquiry, that date was 21st April 1988. On that date, three candidates had not paid their contributions for the quarter commencing on 1st April 1988. They were Syliva Pearl Brooks, the successful candidate for the office of Deputy President, Dawn Pamela Perry, a successful candidate for one of the positions of national councillor and Carolyn Jane Welsh, a successful candidate for the office of state councillor representing the miscellaneous section. Each of those three candidates paid her contributions for that quarter after the date of closing nominations. As a consequence, Mr. Mueller argued that each was not financial at the date of closing nominations.
The difficulty with this argument is that the rules appear to provide a special definition of the word "financial" for the purposes of elections. It will be recalled that rule 9(2) of the national rules permits the rules of a branch to provide that members financial up to the end of the immediately preceding quarter may not be ineligible to nominate and stand for election at any election during the quarter immediately following that for which they were financial. In the case of the Victorian branch, the function contemplated by national rule 9(2) is performed by branch rule 11(d). The latter provision is in positive terms, namely that a member financial to the end of the quarter preceding an election by the end of the quarter preceding that election and otherwise eligible may nominate and stand for election. Rule 11(d) is expressed to apply notwithstanding the foregoing provisions of rule 11, which deal with the obligation to pay contributions within the requisite period of grace. Consistently with rule 11(d), rule 29(a) of the branch rules establishes for the purposes of that rule a special definition of "financial". That definition includes only members who are financial to the end of the quarter preceding an election as financial. To be consistent with rule 11(d), and with rule 9(2) of the national rules, it must be read as absolving members from any need to pay their contributions in the quarter in which the election takes place in order to be financial for the purposes of that election. For the purpose of determining financiality at the date of closing nominations, the rules operate to make irrelevant any non-payment of contributions in the quarter in which the date of closing nominations falls. Neither rule 28A(b), nor rule 29(c) is intended to take away the right given by rule 11(d), and rule 9(2) of the national rules to nominate, stand or vote on the basis of financiality at the end of the preceding quarter. In the case of rule 29(c), this conclusion is strengthened by the definition in rule 29(a). It is, however, the same conclusion in relation to rule 28A(b). It follows that no irregularity happened by the acceptance of the nominations Ms. Brooks, Ms. Perry and Ms. Welsh, by reason of the fact that none of them had paid her contributions in respect of the quarter commencing on 1st April 1988 before 21st April.
The next argument as to irregularity focussed on the requirement in both rule 28A(b) and rule 29(c) of the branch rules that eligibility for nomination required that a candidate "for the period of 12 months immediately prior to (the date of closing nominations) has been continuously a financial member." Ms. Lewis, the successful candidate for President and one of the successful candidates for national councillor paid her contributions in each of the quarters beginning 1st April 1987, 1st July 1987 and 1st October 1987 outside the fourteen day period of grace but within the quarter concerned. Ms. Perry, another successful candidate for one of the national councillor positions did not pay her contributions in respect of the quarter commencing on 1st October 1987 within that quarter; she discharged her arrears on 25th March 1988. Ms. Brooks, the successful candidate for Deputy President, made her payment in each of the quarters commencing on 1st April 1987 and 1st July 1987 outside the fourteen day period of grace but within the quarter concerned. Ms. Welsh, who was elected as a State councillor from the miscellaneous section paid her contributions in respect of the quarters commencing on 1st April 1987, 1st July 1987 and 1st October 1987 outside of those quarters; she discharged her arrears on 11th March 1988.
The first question which arose with respect to the obligations of candidates to have been financial "continuously" for a period of twelve months immediately prior to the date of closing nominations was whether this requirement undid the effect of rule 11(d) and rule 29(a). The argument was that, if at any time during a calendar period of twelve months, measured backwards from the date of closing of nominations, a member was not financial, then that member was not eligible. Thus, failure to pay contributions for the quarter beginning 1st April 1988 within fourteen days of that date would mean that a member could not be financial continuously for the twelve month period up to 21st April 1988. In my view, the rules do not operate in this way. It must be remembered that rule 9(2) of the national rules permits branch rules to provide that a person financial at the end of the preceding quarter "may not be ineligible" to nominate, stand or vote. It is true that rule 11(d) of the branch rules requires that a person be "otherwise eligible" for these purposes. It would be strange, however, if by providing a requirement of continuous financiality, the rules did away altogether with the effect of those provisions which focus on the end of the preceding quarter as the determining date for financiality. The true position is that the requirement of continuous financiality focuses on periods earlier than the end of the last quarter preceding an election, and not on any period between that date and the date of closing nominations.
The returning officer took the view, and Mr. Bell argued, that it is possible for a member to be continuously financial for the relevant period, although there were times during that period when that member was in arrears. Mr. Kenzie on behalf of the successful candidates adopted this argument. It was based on what was said to be a principle inherent in the rules, especially in rules 11(d) and 29(a), that a person who paid the amount for any quarter within that quarter was financial for that quarter. Mr. Bell put strongly the proposition that the rules of a registered organisation should be construed in favour of eligibility, rather than against it. There is no doubt as to this principle. It can only be applied, however, where the rules of an organisation are capable of bearing the meaning contended for. In the present case, I do not think that the rules of the Union can be construed so as to allow a member who was in arrears at times during the relevant period of twelve months to be described as continuously financial.
Rule 11(d) of the branch rules requires that a member satisfy two conditions in order to be eligible to stand for election. The first condition is that the member must be financial to the end of the quarter preceding the election by the end of that quarter. The second condition is that the member be "otherwise eligible". Rule 11(d) does not indicate what criteria must be satisfied in order to "otherwise eligible". For relevant purposes, these criteria are found in rule 28A(b) and rule 29(c) of the branch rules. The requirement is that a member for the period of twelve months immediately prior to the date of closing of nominations must have been continuously a financial member. In this provision, the word "continuously" must have some work to do. If the requirement were only that a member have been a financial member for the period of twelve months immediately prior to the date of closing of nominations, such a requirement would no doubt have been satisfied by showing that a member was financial in respect of each quarter within that period. See the judgment of Smithers J., with whom Evatt J. concurred on this point, in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 22 ALR 704, at pp 731-732. The word "continuously" must be read as adding a requirement to this. The only purpose for the inclusion of that word must have been to provide that the member concerned must never have lost the status of being a financial member at any stage during the relevant period. This seems to have been the view taken by Evatt J. in Re Stapleton (1983) 50 ALR 293, at pp 308-310. In that case, his Honour held that a rule requiring candidates for office to be continuously financial for twelve months was in contravention of s.140(1)(c) of the former Act, having regard to the circumstances of the organization concerned, especially the level of turnover of its membership. No such challenge to the validity of rule 29(c) of the branch rules was launched in the present case.
In my view, the effect of the requirement of twelve months' continuous membership in rule 29(c) is as follows. As at the date of closing nominations, in this case 21st April 1988, the returning officer must examine the financial status of each candidate at a date exactly twelve months before, in this case 21st April 1987. At that stage, a candidate will be financial if he or she has paid the contribution in respect of the quarter beginning 1st April 1987 by 21st April 1987. Even if that contribution were paid outside the fourteen day period of grace, the financial status of the member would be redeemed in time if payment were before 21st April. If a candidate is financial, the next inquiry is as to the quarter beginning 1st July 1987. As long as the contribution for that quarter was paid within the fourteen day period of grace, the candidate will have retained continuous financial status for that quarter. A similar inquiry must be made with respect to the quarter beginning 1st October 1987 and the quarter beginning 1st January 1988. If in any of these quarters the contribution was paid outside the fourteen day period of grace, the candidate will have been other than a financial member for some period during the relevant twelve months. As I have already pointed out, rules 11(d) and 29(a) require that the process go no further than the end of the quarter preceding the date of closing of nominations, in this case 31st March 1988. This is because the rules require that a candidate's financial status after that date not be considered.

This construction is supported by the provisions of rule 9(4) of the national rules, and rule 11(f) of the branch rules, both of which have been set out above. Each enables a member "who has fallen into arrears" to be granted continuity of financial membership. The implication that a member who has fallen into arrears, i.e. who has failed to pay contributions within the period of grace allowed, has lost such continuity, and needs to have it restored, is obvious. Mr. Bell and Mr. Kenzie argued that the presence of these provisions shows that it is possible to restore continuity. It follows, so they contended, that continuity may be restored by making a late payment. If this were the case, there would be no need for a provision enabling a decision to be made to grant continuity where it does not exist.
Applying these criteria, it is clear that none of Ms. Lewis, Ms. Perry, Ms. Brooks and Ms. Welsh was continuously financial for twelve months immediately prior to the date of closing nominations. In the case of Ms. Lewis, Ms. Perry and Ms. Brooks, the result is that each was ineligible to stand for the office or offices to which she was elected. With respect to Ms. Welsh, there is a further question to be determined.
This further question is also relevant to the case of Emily Jane Sullivan, who was the successful candidate for the office of conference delegate from the retail section. She became a member of the Union in September 1987, less than twelve months prior to the date of closing of nominations. The question of the eligibility of Ms. Welsh and Ms. Sullivan depends upon the meaning of the proviso contained in the last sentence of rule 29(c). That proviso is applicable to State councillors from sections and conference delegates from sections and districts. It restricts eligibility to members of the section or district concerned (this being another criterion satisfying the description "otherwise eligible" in rule 11(d)). The proviso also requires that candidates be "financial within the meaning of this sub-rule". Mr. Mueller and Mr. Tracey contended that this phrase required that such candidates be financial for the period of twelve months immediately prior to the date of closing of nominations. Mr. Bell and Mr. Kenzie argued that the only requirement was to be "financial", namely financial to the end of the preceding quarter, as required by rule 29(a). This was the view taken by the returning officer in accepting the nominations of Ms. Welsh and Ms. Sullivan.
In my view, the course taken by the returning officer with respect to these two candidates was correct. This is a case of ambiguity in the rules, a case in which the Court ought not to construe the rules against the eligibility of candidates unless the words are clear. Had the framer of rule 29(c) wanted to impose the requirement of twelve months' continuous financial membership, express reference to this requirement would have been possible. Instead, the only requirement is to be "financial within the meaning of this sub-rule". To be financial for the purpose of sub-rule (c) is to be financial within the meaning of branch rule 29(a), namely to be financial to the end of the quarter immediately preceding the date of closing of nominations. That is the only requirement as to financiality imposed upon candidates for the offices of State councillors from the sections and conference delegates from the sections and districts. The use of the present tense in the proviso is significant, the reference is to members "who are financial...", not to members "who have been financial...". The proviso is not a true proviso, in the sense that it preserves what has gone before and adds a further qualification. It is, in effect, another sub-clause; what has gone before is negated, and a new set of qualifications is introduced for specific purposes.
The result of holding that Ms. Lewis was ineligible to stand for the offices of President and national councillor, Ms. Perry was ineligible to stand for the office of national councillor and Ms. Brooks was ineligible to stand for the office of Deputy President is to conclude that an irregularity happened in relation to the election for each of these positions. Plainly, such an irregularity affected the result of the election in each case. A person not eligible to be a candidate was elected to each of those offices. Each of those elections must be declared void, and Ms. Lewis, Ms. Perry and Ms. Brooks must be declared not to have been elected. I shall hear counsel at a convenient date as to what orders should be made in consequence of these conclusions, as well as the course or courses which should be followed in the light of the wrongful exclusion of 148 names from the roll of voters.
The order of the Court, therefore, must be an order adjourning the inquiry to a date to be fixed for further hearing.

[1989] FCA 267

31 MAY 1989