Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Huxtable

Case •

[1979] FCA 36

•

26 APRIL 1979

No judgment structure available for this case.

Re FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES' UNION OF AUSTRALIA; Ex
parte HUXTABLE (1979) 40 FLR 418
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA


INDUSTRIAL DIVISION
Northrop J.(1)
CATCHWORDS

Conciliation and Arbitration - Application for inquiry into elections of organization conducted under s. 170 of Conciliation and Arbitration Act 1904 - Alleged irregularities - Interpretation by returning officer of rule prescribing qualifications for office - Gratuitous erroneous advice - Nominations accepted in accordance with rules but contrary to previous advice - Whether reasonable ground for application - Meaning of irregularity - Time election commenced - Whether applicants deprived of right to nominate - Duties of returning officer - Conciliation and Arbitration Act 1904 (Cth.), ss. 4, 113(1)(c), 140, 159, 165, 170.

HEADNOTE

In April 1978 a returning officer of the Australian Electoral Office commenced, pursuant to s. 170 of the Conciliation and Arbitration Act, to conduct elections for the Tasmanian branch of the Federated Liquor and Allied Industries Employees' Union of Australia. On 12th April, 1978, nominations were called for, such nominations had to be received by 15th May, 1978, and the elections were duly completed by 14th July, 1978. Branch r. 4 of the rules of the said union provided: "All officers, members of the management committee, representatives of council, representatives to the A.C.T.U. and Trades Hall Council shall be financial members for twelve calendar months immediately prior to nomination. All officers and representatives as prescribed in this rule shall remain a financial member or forfeit all positions he or she holds.

"Notwithstanding the foregoing paragraph on and after 1st May, 1978, all officers, members of the management committee, representatives of council, representatives to the A.C.T.U. and Trades Hall Council shall be members for a continuous period of twenty-four months immediately prior to nomination and who have not been in arrears of contributions during that period. All officers and representatives as prescribed in this rule shall, in the event of owing arrears of contributions, forfeit all positions he or she holds."

The second paragraph of branch r. 4 came into effect on 21st June, 1977. Normally an election begins not later than the time at which nominations are called, in this case 12th April, 1978, and the rules of the organization then in operation are the rules which normally are to be applied with respect of the conduct of that election, therefore the second paragraph of branch r. 4 did not apply to the said elections because it was not to operate until after 1st May, 1978.

The returning officer informed the State secretary of the said union that he was applying the second paragraph of branch r. 4. The State secretary informed the three applicants of such qualifications and as a result they did not nominate for office or offices in the election. After the close of nominations the returning officer rejected five nominations because they did not comply with the second paragraph of branch r. 4 yet several days later accepted as valid the five nominations previously rejected. The applicants alleged the following irregularities: (i) the returning officer publicized an incorrect interpretation of branch r. 4; (ii) such incorrect interpretation excluded members from nomination; (iii) the returning officer accepted nominations contrary to his publicized interpretation of branch r. 4.

Held, that where an application for an inquiry in respect of elections conducted under s. 170 of the Act has been instituted, the court is not required to proceed with the inquiry unless it is satisfied that there is reasonable ground for the application (s. 159(4)(b) of the Act) and the court found no such reasonable grounds to exist because: (a) the returning officer did apply the correct union rule as to nomination validity i.e., only the first paragraph of branch r. 4; (b) s. 4 of the Act defines irregularity as: "Irregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered", and on the facts s. 4 was not infringed; (c) reliance upon gratuitous advice from a returning officer via a State secretary did not deprive the applicants of their right to nominate for office as a member can nominate irrespective of advice from a returing officer; (d) gratuitous advice from a returning officer cannot be construed as action within s. 170A of the Act, therefore no regularity occurred pursuant to s. 170A of the Act; (e) the second paragraph of branch r. 4 did contravene s. 140 (1) of the Act but as the returning officer did not apply this rule no irregularity arose - if it had, the court would have had wide powers under s. 165 of the Act to rectify any such irregularity; (f) observations on the duty of returning officers to be present to assist the court.

Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978), 35 FLR 72; Egan v. Maher (No. 1) (1978), 35 FLR 197; Allen v. Townsend (1977), 31 FLR 431; R.v. Judges of the Commonwealth Industrial Court; Ex parte Amalagamated Engineering Union (Shearer's case) (1960), 103 CLR 368, referred to.

HEARING

Hobart, 1979, March 6; April 2-3, 26. #DATE 26:4:1979

APPLICATION.

The material facts appear from the judgment.

D.J. Gunson, for the applicants.

M.C. Kimm, for the union and its acting secretary.

W. Baker, for the returning officer.

On 3rd April, 1979, at the conclusion of argument, Northrop J. indicated that the applications would be dismissed and that reasons for judgment would be delivered at a later date. His Honour also made the following comments concerning the failure of the returning officer to appear on the first day of the hearing: ". . . for various reasons the only persons who formally appeared were the applicants, there being no appearance on behalf of any other person to whom notice had been directed to be given. From information given to me it appeared that some of those persons might not have had notice of the fact that the hearing was on in March. I gave directions as to the giving of further notice and that the hearing would be adjourned until yesterday. As I understand the position notice was given but the date of the adjourned hearing was not indicated in the notices so given, but in the events which turned out, apart from possibly two of the candidates, every other person either knew of the hearing yesterday or his interests were represented by parties present here yesterday and it was decided to proceed with the hearing. This matter was to come on for hearing initially last month, in March, and the returning officer was not present.

"I had the impression that the returning officer either had heard or should have heard the matter was coming on for hearing, and I was concerned that he had not appeared, being used to the practice in Victoria and New South Wales that the returning officer in matters of this kind appears in court usually represented by a laywer to assist the court in any material way. Although a party in some respects he is not a party taking sides but is a party in the sense of being there to assist the court in unravelling the facts and saying what in fact did happen. Again, I was concerned that if the officer knew of the hearing and did not attend because of no formal notification that this could amount to a discourtesy, and possibly could amount to contempt of court. I arranged for the Registrar to contact the returning officer who came to court. He explained to me that he had received no offical notification of the hearing. He did apologise to the court for his absence and I did indicate then I would consider this matter further at the close of proceedings.

"I do not propose to charge Mr. Ogle or make any formal complaint against him."

Solicitors for the applicants: Dobson, Mitchell & Allport.

Solicitors for the union and its secretary: Lester, Fielder & Faraone.

Solicitors for the returning officer: Alan R. Neaves (Commonwealth Crown Solicitor).

S.G. COLLINS
JUDGE1

April 26.

NORTHROP J. delivered the following written judgment.

In April 1978, Kevin James Ogle, in his capacity as an officer of the Australian Electoral Office, Hobart, as the returning officer, commenced, pursuant to s. 170 of the Conciliation and Arbitration Act 1904 (Cth.), as amended ("the Act") to conduct elections in the Tasmanian branch of the Federated Liquor and Allied Industries Employees' Union of Australia ("the union") an organization of employees under the Act, for the office of president, the office of vice-president, the office of guardian, the office of trustee (two), the office of committee of management (eight), the office of organizer (two), and the office of federal council representative (two). The rules of the union provided detailed procedures by which the elections were to be conducted. The procedures applicable to the election for the offices, other than that of the office of organizer, are contained in branch r. 5. The applicants did not pursue their claim with respect to the election for the office of organizer and no further reference need be made thereto. The office of federal council representative is to be conducted pursuant to the procedures contained in branch r. 5 by reason of federal r. 6. The details of branch r. 5 are set out in my reasons for judgment in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 FLR 72, at p 87 , and need not be repeated. It is sufficient to say that the returning officer conducted the elections for the offices in the Tasmanian branch according to the procedures contained in branch r. 5. (at p421)

  1. By the required advertisements published on 12th April, 1978, the returning officer called for nominations. The advertisements stated that the nominations must be in accordance with the rules of the union and had to reach the returning officer at a specified address not later than 12 noon on 15th May, 1978. The returning officer received one nomination only for the office of guardian. With respect to each of the other offices, more nominations were received than the number of vacancies to be filled, and so the returning officer conducted the elections for those offices in accordance with the rules of the union. The elections were completed on 14th July, 1978, and the returning officer declared the results of the elections. (at p421)

  2. Each of the applicants is a member of the union and the Tasmanian branch thereof. None of the applicants nominated for any of the offices for which elections were held. (at p421)

  3. On 8th January, 1979, each of the applicants, pursuant to s. 159 of the Act, lodged with the Industrial Registrar an application dated 19th December, 1978, 19th December, 1978, and 21st December, 1978, respectively claiming that there had been an irregularity in or in connexion with the elections for the offices in the Tasmanian branch of the union and seeking an inquiry by the court into the matter under Pt IX of the Act. On 24th January, 1979, the Industrial Registrar, pursuant to s. 159(4) of the Act, referred the applications to the court and thereupon the inquiry was deemed to have been instituted. In passing, it is noted that the applications were made six days only before the end of the period of six months commencing on the date of the completion of the elections, s. 159(5)(b) of the Act. It is not necessary to consider whether the election for the office of guardian had been completed when the sole nomination for that office was accepted by the returning officer as valid. (at p421)

  4. The particulars of the irregularities alleged by each of the applicants in each of their applications were identical and are as follows: "(1) The returning officer publicized an incorrect interpretation of branch r. 4 in so far as that branch rule applied to the election herein. (2) The returning officer by incorrectly interpreting the branch rule excluded members of the union from nomination who would otherwise have nominated. (3) The returning officer after the closure of nominations accepted nominations from candidates contrary to the interpretation of branch r. 4 enforced throughout the period during which nominations were received and could be received." (at p422)

  5. Branch r. 4 of the rules of the union is as follows:

    "4. QUALIFICATION FOR OFFICE, COMMITTEE AND BRANCH REPRESENTATIVES. (at p422)

  6. "All officers, members of the management committee, representatives of council, representatives to the A.C.T.U. and Trades Hall Council shall be financial members for twelve calendar months immediately prior to nomination. All officers and representatives as prescribed in this rule shall remain a financial member or forfeit all positions he or she holds.

    "Notwithstanding the foregoing paragraph on and after 1st May, 1978, all officers, members of the management committee, representatives of council, representatives to the A.C.T.U. and Trades Hall Council shall be members for a continuous period of twenty-four months immediately prior to nomination and who have not been in arrears of contributions during that period. All officers and representatives as prescribed in this rule shall, in the event of owing arrears of contributions, forfeit all positions he or she holds." (at p422)

  7. The second paragraph of branch r. 4 came into effect on 21st June, 1977, being the date upon which the Registrar gave his certificate under s. 139(4) of the Act. (at p422)

  8. After the date upon which nominations closed, the returning officer initially considered that the nominations of five persons with respect to three of the offices were defective on the ground that each of those five persons did not satisfy the requirements of the second paragraph of branch r. 4. No evidence was given whether the returning officer gave notice of his finding that the nominations were defective, s. 133(1)(c) of the Act, but within a short time of the closing of nominations, the returning officer reconsidered the matter and accepted as valid each of the nominations of each of those five persons. In the result, the returning officer did not reject any nomination as being invalid. (at p422)

  9. In Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia (1978) 35 FLR 72 , in proceedings taken under s. 140 of the Act, the court found that the second paragraph of branch r. 4 contravened s. 140(1) of the Act as it then was. The court, in the exercise of the powers conferred by s. 140(6) of the Act, adjourned those proceedings for the purposes of giving the union an opportunity to alter its rules. In the conduct of the elections in the Tasmanian branch of the union, the returning officer did not apply the second paragraph of branch r. 4, but this occurred some months before the court published its reasons in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia. (at p423)

  10. When an inquiry has been instituted, pursuant to s. 165 of the Act, the court: "shall inquire into and determine the question whether any irregularity has occurred in or in connexion with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary". Where an application for an inquiry in respect of elections conducted under s. 170 of the Act has been instituted, the court is not required to proceed with the inquiry unless it is satisfied that there is reasonable ground for the application, s. 159(4)(b). When the inquiry came on for hearing it soon became apparent that the applicants intended to call a number of witnesses in an attempt to prove facts to support the grounds stated in their applications. Before proceeding with the inquiry, the court has to be satisfied that there is reasonable ground for the application. Accordingly, the persons appearing at the inquiry agreed to make submissions on this preliminary issue on the basis of agreed assumed facts, being facts which the applicants would need to establish by evidence if the court was satisfied that there was reasonable ground for the application. For the purposes of submissions on the preliminary issue, the following statement of assumed facts was agreed. 1. Mr. Burgess was at all relevant times the State secretary of the union. 2. The returning officer informed Mr. Burgess that he was applying the two paragraphs of branch r. 4 to the election. 3. The three applicants and three other unidentified persons inquired of Mr. Burgess as to the qualifications to be required by the returning officer. 4. The three applicants had intended to nominate for office or offices in the election if they were qualified to do so. 5. Mr. Burgess informed the three applicants and the three other unidentified persons that the returning officer would require two years' financial membership of the union. 6. The three applicants as a result of such information did not nominate for office or offices in the election. 7. Mr. Burgess instructed Clarke and Doherty (being collectors with the union) to advise members that the returning officer would require two years' financial membership of the union. 8. Clarke and Doherty so advised a number of unidentified members of the union of the above. 9. After the close of nominations the returning officer rejected the nominations of five persons on the ground that they were not financial members of the union for two years prior to the opening of nominations. 10. Several days later the returning officer accepted as valid the nominations previously rejected. (at p423)

  11. The first issue that arises is to determine what rule of the union should have been applied by the returning officer in deciding whether a nomination was valid or not. An essential part of any election is the calling for nominations. Normally an election begins not later than the time at which nominations are called, and the rules of the organization which are then in operation are the rules which normally are to be applied with respect of the conduct of that election, see Egan v. Maher (No. 1) per Evatt J. and per Northrop J. (1978) 35 FLR 197, at pp 229-230, 250 . In the elections, the subject of this inquiry, the returning officer called for nominations on 12th April, 1978. On that date, the second paragraph of branch r. 4, although having come into effect, could not have any operation since on its face it was to apply on and after 1st May, 1978, being a date after the commencement of the elections. There is nothing to support the view that the second paragraph of branch r. 4 which came into operation after the elections had commenced should apply to those elections. If it did apply, the result would follow that members eligible to nominate for office under the first paragraph of branch r. 4 could become ineligible to nominate at a time after a nomination had been made. A rule which had that effect might well be contrary to the provisions of s. 140(1) of the Act. The first paragraph only of branch r. 4 was the rule to be applied by the returning officer in deciding whether a person was eligible to nominate for an office specified in that paragraph. In the result, the returning officer applied the first paragraph of branch r. 4 and so it is not necessary to consider this matter further. (at p424)

  12. The issue remaining to be decided on the preliminary issue is whether the facts assumed for the purposes of submission are capable of constituting an irregularity within the meaning of that word when used in s. 165 of the Act. The word "irregularity" is defined in the Shorter Oxford Dictionary (23rd ed. 1972 reprint) as "the quality or state of being irregular; something that is irregular". In the same dictionary, the word "irregular" is defined in relation to things as "not in conformity with rule or principle, contrary to rule; disorderly in action or conduct, anomalous, abnormal". In the Act, by s. 4, except where otherwise clearly intended, the word "irregularity" has the following meaning: "'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organization or of a branch of an organization, and any act, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered." (at p424)

  1. This provision does not give a definitive meaning to the word "irregular" but extends the meaning, if necessary, to include specific matters. In the present case, the facts assumed for the purpose of submission on the preliminary issue cannot constitute an irregularity within the statutory extended meaning of that word. There has been no breach of the rules of the union or its Tasmanian branch. There has been no act or omission whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of voting is, or is attempted to be, prevented or hindered. (at p425)

  2. In the present case, on a finding of facts most favourable to them, the applicants, relying on advice given by the returning officer and which in the result was wrong, did not nominate for any of the offices for which the elections were to be held. In support of his submission, counsel for the applicants submitted that the word "irregularity" should be construed as meaning "any action that has the clear effect of depriving a person of his right to nominate for an office in an election". Even if this meaning is adopted it cannot be said that the advice given by the returning officer via the agency of the branch secretary, deprived the applicants or any of them or any member of the Tasmanian branch of the union of his right to nominate for an office. Assuming that the applicants came within the first paragraph but not the second paragraph of branch r. 4, then if any of them had nominated for an office, the returning officer would have accepted the nomination as being valid. (at p425)

  3. In support of his submissions, counsel for the applicants relied upon a number of cases decided by the Commonwealth Industrial Court. None of those cases are of assistance in determining the preliminary issue. Those cases concern instances where a returning officer had not complied with the rules of an organization or where the rules were silent and a returning officer had failed to take steps to ensure that members had a reasonable opportunity to nominate for office or to have knowledge of a meeting at which the election was to take place or where confusion could arise from the fact of issuing ballot papers at the one time with respect to two separate and distinct elections. In the present case the rules of the union are not silent on any aspect of the election relating to the calling for and acceptance of nominations for office. There were no gaps to be filled and the returning officer complied with the rules. (at p425)

  4. An election within an organization must be conducted in accordance with the rules of the organization. Section 170A of the Act is an enabling section empowering a returning officer to take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in the rules which appear to him to exist. In the present case there was no need for the returning officer to take action or give directions under s. 170A and he did not purport to take action or give directions under s. 170A. It may have been unwise for the returning officer to give gratuitous advice, being advice which subsequently he did not act upon, but this cannot be construed as action taken or directions given under s. 170A of the Act. In this respect, he was in the same position as any other person giving advice to the applicants. (at p426)

  5. The applicants are not alleging any irregularities arising from the fact that the returning officer applied the first paragraph only of branch r. 4. They are not attacking the validity of any of the rules of the union. They are saying that they accepted the advice given by the returning officer and therefore did not nominate for office. (at p426)

  6. A returning officer is not authorized by the Act to give advice, his duty is to conduct the elections in accordance with the rules of the organization, complemented when necessary by the exercise of the powers conferred by s. 170A of the Act. The Act enables a member of an organization to apply to the court for an order declaring that a rule of an organization contravenes s. 140(1) of the Act. Apart altogether from any proceedings or orders made under s. 140 of the Act, an irregularity in or in connexion with an election occurs when a returning officer relies upon a rule which contravenes s. 140(1) of the Act. In an inquiry under Pt IX of the Act an applicant is free to call evidence and make submissions to show that a rule relied upon by a returning officer contravened s. 140(1) of the Act at the time it was relied upon. This occurred in Lovell v. Federated Liquor and Allied Industries Employees' Union of Australia where, in respect of the inquiry under Pt IX (matter V. 18 of 1978) (not reported in F.L.R.), I said: "The returning officer rejected each of the nominations of the claimants and of Mrs. Nevanlinna on the grounds respectively that each candidate did not comply with the conditions contained in branch rr. 4 and 10(b), respectively, relating to the qualifying period of membership of the union. The returning officer rejected the nominations of Mr. Janjis on the ground that he was not a financial member of the union. In addition he rejected the nomination of Mrs. Nevanlinna on the ground that one of her nominators, Mr. Janjis, was not a financial member of the union. For the reasons already stated, branch rr. 4 and 10(b), in so far as each requires a specified period of membership of the union, financial or otherwise, continuous or otherwise, as a condition of eligibility to nominate as a candidate for office, contravenes s. 140(1) of the Act. For the same reasons those branch rules contravened s. 140(1) of the Act at the time the returning officer, in reliance on them, rejected the nominations of the claimants and Mrs. Nevanlinna. Applying the principles referred to in Allen v. Townsend (1977) 31 FLR 431 , it follows that the returning officer cannot rely upon those parts of rr. 4 and 10 (b) to support his rejection of the nominations. Accordingly, unless there are other grounds invalidating the nominations, the rejection of the nominations amount to irregularities within the Act" (1978) 22 ALR 704, at p 740 . (at p427)

  7. The reference in that passage to Allen v. Townsend is to the following extract from the joint judgment of Evatt and Northrop JJ.: "It is open to a party in proceedings under s. 141 of the Act, or for that matter in any proceedings in any court where the matter may be an issue, to claim that a rule of an organization contravenes the provisions of s. 140(1) of the Act and if upheld a party to those proceedings cannot rely upon facts dependent upon the validity of that rule. In legal proceedings of this kind, the invalidity arising from a non-compliance with the requirements of s. 140(1) of the Act results from the operation of that subsection itself and the invalidity does not depend upon an order having been made in proceedings instituted under the provisions of s. 140 of the Act. Any order made in proceedings other than in proceedings instituted under s. 140 of the Act is binding upon the parties to those proceedings only and operates on preceding facts. An order so made has no effect similar to an order made in proceedings instituted under s. 140 of the Act which order operates as from the date of its making and thereafter affects and is binding upon all persons; generally see Shearer's case (R. v. Judges of the Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union) (1960) 103 CLR 368 " (1977) 31 FLR, at p 481 . (at p427)

  8. A member of an organization must decide for himself whether to nominate for an office or not. He must look to the rules of the organization. If he considers he is eligible to nominate, and he desires to nominate, he should nominate irrespective of any expressions of opinion by a returning officer or any other person. The returning officer thereafter is under a duty to accept or reject the nomination in accordance with the rules of the organization. The action by a returning officer in either accepting or rejecting the nomination provides a foundation for an inquiry under Pt IX of the Act. If the court finds that a returning officer relied upon the wrong rule, or upon a rule which was contrary to s. 140(1) of the Act, the court may conclude that an irregularity has occurred. Thereafter the court has wide powers to make orders rectifying the irregularity, s. 165 of the Act. Advice given by a returning officer prior to the close of nominations cannot, on the assumed facts agreed for the purpose of the preliminary issue, constitute an irregularity within the meaning of s. 165 of the Act. (at p427)

  9. The court finds that under s. 159(4)(b) of the Act there is no reasonable ground for the applications. Accordingly, the applications are refused. The court, for the reasons given on 3rd April, 1979, at the conclusion of the hearing, in the exercise of the powers conferred by s. 168(2) of the Act certifies that the applicants acted reasonably in making the application for the inquiry. (at p428)

ORDER

Applications refused.

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