Re Federated Liquor & Allied Industries Employees Union of Australia Ex parte Elton, B.R

[1985] FCA 369

Re: FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES' UNION OF AUSTRALIA
Ex Parte: BRIAN RAYMOND ELTON
No. QLD Q9 of 1985
Industrial Law
13 IR 268

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Pincus J.

CATCHWORDS

Industrial Law - inquiry into union election - Federal Court - applicant wishing not to pursue matter - whether Court obliged to continue inquiry - nature of inquiry - whether reasonable ground for application - no practical disadvantage in termination - costs of terminated inquiry.

Conciliation and Arbitration Act 1904, ss.159, 165, 168, 197A

HEARING

BRISBANE
#DATE 18:7:1985

ORDER

1. It is not satisfied that there is at present reasonable ground for the application made by Brian Raymond Elton.

2. The inquiry instituted by the reference to the Court of the said application be terminated.

JUDGE1

In this matter, I have before me an application for an inquiry under s.159 of the Conciliation and Arbitration Act 1904 made by Mr Brian Raymond Elton. Mr Elton made the application to the Registrar in accordance with the requirements of s.159(2) and the Registrar referred the matter to the Court as required by s.159(4)(a). The Registrar had no choice in the matter because the election was one conducted under s.170 of the Act and was therefore of the sort referred to in s.159(3).

1. When the matter first came before the Court on 15 July, Mr Carberry appeared for Mr Elton and Mr Raymund Smith appeared for a Mr Brailey. Mr Smith explained that his appearance was prompted by the fact that Spender J. on 4 July directed that advice of the application be given to him, amongst others, and it appears that that in turn was as a result of solicitors for Mr Brailey having written to the Registrar on 12 June 1985 suggesting that irregularities had occurred, additional to those complained of by Mr Elton. Mr Smith drew my attention to the decision of Gray J. in the matter of an application by Michael Anthony Prichard for an inquiry into an election in the South Australian branch of the Federated Clerks' Union of Australia, a decision in which was given on 2 April 1985. Mr Smith argued on 15 July, and has again argued today, that his Honour's decision produces the result that, once an inquiry is instituted at the instance of Mr Elton, it must be pursued and that I cannot, at the behest of Mr Elton, discontinue it.

2. The matter was adjourned until today when Mr Shaw appeared for Mr Elton and Mr Raymund Smith appeared, as before, on behalf of Mr Brailey. Mr Shaw has drawn my attention to the fact that, recently, there was argued before the Full High Court a question as to the constitutional validity of Part IX of the Act in the case of The Queen v. Gray, ex parte Bali. Mr Shaw told me that the matter was not completely argued, counsel on behalf of the prosecutor only having been heard. In view of that intimation, and because of my own doubts about the matter, I have been seriously concerned as to whether I should follow the course of requiring notice to be given to Attorneys-General. However, as will appear, I have determined not to do that.

3. Mr Shaw said today that Mr Elton, who had applied for and got a reference to the Court, no longer wished to proceed with the matter. In fact he succeeded in the election and so his lack of interest is understandable. Mr Smith said I could not terminate an inquiry for the reason just mentioned - that is, that the proper construction of the statute, in accordance with the decision of Gray J. in the Prichard case, is such as to preclude me from taking that course. Mr Smith was also good enough to inform me that his client, Mr Brailey, has prepared an application alleging irregularities, and that it is shortly to be lodged under s.159(2). Assuming that occurs, and I have no reason to doubt it, then the matter will be back before the Court in any event.

4. Mr Shaw has challenged the correctness of the decision of Gray J. in the Prichard case and has urged upon me the view that the mere presence of the word "any" in s.165(1) is a slender foundation upon which the build the notion that the Court has vested in it an inquisitorial power. Section 165(1) reads as follows:-
   
   

"At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary."

Gray J. has, I think, taken the view that the Court's function is to look for irregularities. He expressed this, for example, by saying at p.9 of his reasons in the Prichard case:-

"In circumstances where the moving party has withdrawn, therefore, the court is placed in the difficult position of conducting an inquisition without having the resources to do so properly. It is obliged to pursue and to make findings upon possible irregularities even if those irregularities could not possibly have affected the result of the election ..."

1. I have, during the time of the adjournment, had a look at the matter and have formed some tentative views about it. Section 159(1), which is the basis of the whole procedure, reads as follows:-
   
   

"Where a member of an organization, or a person who, within the preceding period of 12 months, has been a member of an organization claims that there has been an irregularity in or in connection with an election for an office in the organization, or in a branch of the organization, he may lodge an application for an inquiry by the Court into the matter."

The words "the matter" appear to me to be a reference back to the claim spoken of earlier in the sub-section:-

"... that there has been an irregularity in or in connection with an election for an office ..."

One would think that, if the application for an inquiry by the Court "into the matter" were successful, the inquiry would be limited to the claim.

1. The further dealing with the application is governed by s.159(4)(a), as I have already mentioned. It requires that the Registrar, in such a case as this, refer the application to the Court and "thereupon an inquiry shall be deemed to have been instituted". It seems to me at least arguable that the expression "an inquiry" is used in s.159(4)(a) in the same sense as that in which it is used in s.159(1); that is, an inquiry into "the matter", being the claim that there has been an irregularity.

2. Mr Shaw has argued that the expression "any irregularity" in s.165(1) is capable of meaning "any irregularity of the kind alleged". The other possible view is that it means "any irregularity at all whether alleged or otherwise". It must be conceded, in my view, that the latter is the more natural meaning, although the former construction seems to me to be open.

3. Mr Shaw has urged the view that one reason for adopting the construction for which he contends is that the duty imposed by s.165(1) is one imposed on the Court, and is obviously intended to be a judicial duty. Although the notion of judicial power extends beyond a lis inter parties, ordinarily the exercise of such power relates to matters of that sort - The Queen v. Spicer, ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 at p 289.

4. I have noted that the view taken by Gray J. has the support of two decisions of Dunphy J. One is in Re Australasian Meat Industries Employees Union 5 FLR 260, and another in Jutte v. Amalgamated Engineering Union 10 FLR 195. I have also noted that in other proceedings in the Prichard matter, Gray J. described such an inquiry as that on which I am asked to embark as "an unusual proceeding, possibly having no parallel". His Honour's decision in those proceedings is unreported, but was given on 26 February 1985. His Honour further described the proceedings as follows:-
   
   

"... the Court has a statutory obligation under section 165(1) of the Act to inquire into and determine the question whether any irregularity has occurred in or in connection with the subject election, and certain other questions. This obligation could be discharged without the presence of the original applicant ... In the normal case the original applicant appears, and is thereby deemed to be a party by virtue of section 164(2). He or she has, however, no right to the carriage of the inquiry. The inquiry may examine issues not raised by the original applicant, and must do so if issues arise which fall within the obligation imposed by section 165(1) of the Act. An inquiry under Part IX of the Act has an element of public interest, at least so far as the members of the organization in which the subject election has taken place are concerned. This is, no doubt, the reason for the inquisitorial nature of the proceedings."

1. I must confess I do not find the reasoning which has led to this result absolutely compelling. It is true that s.165(1) uses the expression "any irregularity" which is at least capable of meaning "any irregularity at all whether alleged or not". But the use of that expression, is, in my view, counter-balanced, so to speak, by the language of s.159(1), to which I have referred above. Further, I am inclined to concur in the submission made by Mr Shaw that the fact that the whole set of the provisions is applicable to a court - that is, a body exercising judicial power - gives rise to the presumption that the grant intended was of power to perform the sorts of functions ordinarily undertaken by a court, as to the nature of which I refer to Silk Brothers Pty. Ltd. v. State Electricity Commission of Victoria (1943) 67 CLR 1 at p 9.

2. I have been somewhat troubled as to how to deal with the matter, and as to whether I should follow the view expressed by Gray J., whose knowledge of and experience in this area far exceed mine. On the whole, I have decided that I should not arrive at a conclusion on that aspect, but deal with the matter in another way in accordance with a further submission advanced by Mr Shaw. This is, that I have power to, and should, dismiss his application under s.159(4)(b), which reads as follows:-
   
   

"The court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application."

Mr Shaw argues that in the circumstances I cannot possibly be satisfied that there is any reasonable ground for his application, because the application complained of an irregularity which had no practical consequence. It seems to me that there is substance in this. The expression "the application" is plainly narrower than the expression "the inquiry", and must be a reference back to the original document lodged by Mr Elton on 3 July 1985. I hold that I am not satisfied that there is reasonable ground for the application made by Mr Elton, having the advantage now of knowing that the irregularity, the subject of the application, had no practical consequence, since Mr Elton was elected. Putting the matter at a lower level, nothing has been placed before me which could possibly satisfy me that there is a reasonable ground for the application, Mr Smith merely arguing that I must proceed with the inquiry and take the course mentioned by Gray J. in the decisions to which I have referred. I therefore hold that I am not required to proceed with the inquiry pursuant to the provisions of s.159(4)(b). I am encouraged to take this course by the frank admission of Mr Raymund Smith that it makes very little practical difference whether Mr Elton's application is kept on foot or not, in view of his client's intention immediately to make a similar application. Mr Raymund Smith was unable to point to any practical disadvantage which he would incur as a result of my terminating the Elton application on the application of Mr Shaw.

1. There has also been discussion on the question of costs promoted, I fear, by an inquiry made of Mr Shaw by me. Mr Raymund Smith has asked for costs of the application and says that s.168(5) implies that I may make an order for costs without being inhibited by such considerations as would arise were the matter governed by s.197A. I am of the view that it is correct, as Mr Shaw submits, that s.168(5) does not give me any power to award costs independently of s.197A, but is simply designed to make it clear that the earlier sub-sections of s.168 impose no implied limitation on the Court's power. I therefore hold that I am limited, in considering the application for costs, by s.197A, there being nothing placed before me to suggest that the proceedings by Mr Elton were instituted vexatiously or without reasonable cause. The application for costs is made on the basis that the very discontinuance of the proceedings shows that the matter falls within the exception in s.197A. I am not prepared to draw that inference, and refuse the application for costs.

2. The orders then which I propose to make are as follows:-
   
   

1. I declare that I am not satisfied that there is at present reasonable ground for the application made by Mr Elton.

2. I terminate the inquiry instituted by the reference to the Court of Mr Elton's application.