Re In the matter of an application for an inquiry relating to an election for an office in the Federated Ship Painters & Dockers Union of Australia, Queensland Branch

[1993] FCA 665

Attention: JudgmentsClerk

Please find herewith judgment
of Cooper J. in the matter of

BRISBANE

JUDGMENT No. .06.6.?DI..&,

Federated ship Palnters and
Dockers (Q1 1/93] , together
with dlsk contalnlng copy of
same. This judgment is for

LIMITED DISTRIBUTION.

With thadks , !I

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
ADELAIDE STREET

C A T C H W O R D S

Industrial - application for an inquiry relating to an elecbon for an office in a Union - appo~ntment by committee of management to fill a casual vacancy - allegation that appointment irregular and not in accordance with the rules of the union - whether sufficient evidence to support an inquiry - power of court llmlted to declaring previous election to be void and directing that a fresh election be held - an election in accordance with the relevant rules already been called - no reasonable ground for

calling an inquiry where the result w~ll be that no practical order can be made.

Jndustrial Relations Act 1988 Sections 223(3), 221, 219(b)

, ,	,	.
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Re:  In the matter of an ap~lication for an inauirv relating to an election for an office

in the Federated S h i ~	Painters and Dockers Union of Australia Oueensland Branch
No. Q1 1 of 1993

Coo~er J.. Brisbane. 3 Se~tember. 1993

JN THE FEDERAL COURT O F AUSTRALIA

O U E E N S M D D I S T R I n REGISTRY

INDUSTRIAL DIVISION No. 0 1 1 of 1993

RE: In the matter of an application for an inquiry
relating to an election for an office in the Federated

Ship Painters and Dockers Union of Australia, Queensland Branch

CD&!?&!:	Cooper J.
I%4c!z:	Brisbane
mm	3 September, 1993

MINUTES O F ORDER

THE COURT DIRECTS

1.   That the secretary/treasurer of the Queensland branch of the union receive any membership dues tendered by the applicant to enable him to become a financial member of the union and to enable him to stand for any position which he may chose at the forthcoming elections.

THE COURT ORDERS:

1.                    That the application for an inquiry is dismissed.

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m ;..

Note Settlement and entry of orders is dealt with in Order 36 of the Federal Court

Rules.

IN THE FEDERAL COURT O F AUSTRALlA

Y	-	Q
INDUSTRIAL DIVISION No. 0 1 1 of 1993

RE: In the matter of an application for an inquiry

relating to an election for an office in the Federated

S h ~ p Painters and Dockers Union of Australia, Queensland Branch

CORAM:	Cooper J.
PLACE:	Brisbane
DATE:	3 September, 1993

EXTEMPORE REASONS FOR JUDGMENT

This is an application by Mr. Timothy for an inquiry into the election of

the SecretaryJtreasurer of the Queensland Branch of the Federated Ship Painters and Dockers Union. Mr Bourke was appointed by the committee of management, or the

alleged committee of management to a casual vacancy in that position in late 1992. The appointment was for the balance of the three year term. The term of the

committee of management and office holders in the union expires on or about 19

September, 1993.

I have had tendered to me today a decision of Deputy Industrial

Registrar Lapierre directing that nominations be called, and an election held to fill the

positions in the various state branches, including the Queensland Branch, and the Newcastle branch of the union. A notice to members was forwarded on 30 August,

1993 calling for nominations to the positions of president, vice president, secretary

treasurer, minutes secretary, committee members, and trustees of the Queensland
branch.

The applicant disputes the appointment of Mr. Bourke as

secretalyltreasurer on the basis that it was one which was irregular and not in accordance with the rules of the union, that it was an appointment made to prevent him from achieving a position as an office holder in the union, and further that the appointment was made for the purpose of excluding him from a position where he would be able to investigate and reveal serious misconduct in the management and affairs of the union over time. Allegations of serious misconduct have been placed before the court by the applicant. I have absolutely no doubt that the applicant is

acting in what he sees as the best interests of the branch of the union in Queensland, and what he sees is in the best interest of its membership. He has, as he has outlined to this court, made the allegations of m~sconduct to a number of bodies charged with the administration of criminal justice in this state and nationally, and they are matters which he wishes to have raised in any inquiry into the appointment of which he complains.

The position is, that even if I assume in favour of the applicant that

there is evidence sufficient to support an inquiry concerning the appointment of Mr.

Bourke, the power of the court after an inquiry is limited by section 223(3) of the	Industrial Relations Act 1988 to declaring the previous election to be void and
directing that a fresh election be held and related steps. That is, in this case, even
assuming Mr Timothy succeeded in relation to all of the allegations he raises and the court was satrsfied that there had been an irregularity, the practical result would be that orders wh~ch were open to be made by the court under the section would not and could not then be made. This follows because an election in accordance with the relevant rules has already been called as evidenced by the notice to members of 30
August, 1993. And presumably by the time the inquiry is finished, the positions will
have been filled in accordance with a fresh ballot. Therefore, it seems to me that
there is no reasonable ground for calling an inquiry where the result will be that no practical order can be made which would affect the persons who then hold the
positions. Those persons would have been elected in another election, yet to be held
and in respect of which no complaint has been or can now be made.

The applicant can stand if he wishes for a position at the election which

has now been called provided that he can find a nominator and a seconder and

provided that he can become a financial member. There may indeed be real practical

difficulties for him in obtaining nomination, but those difficulties would exist in any

event even if the court ordered an inquiry into the appointment of Mr. Bourke to the position of secretaryltreasurer in 1992. The applicant says and I accept, as it seems

consistent with the affidavit of Mr. Bourke, that he cannot pay his union dues so as to become financial because no union fees are being accepted, the membership of the

branch having dispersed to other unions. To overcome this obstacle to the applicant 1

DIRECT that the secretaryltreasurer of the Queensland branch of the union receive	any membership dues tendered by the applicant to enable him to become a financial
member of the union and to enable him to stand for any position which he may chose at the forthcoming elections. So far as the question of finding a nominator and a seconder is concerned, that is a matter that the applicant will have to take up with other persons in the union or who become members in the short term.
Mr. Tlmothy has asked that I make interim orders in relation to the affairs of the union because of proceedings pending in the Australian Industrial Relations Commission. The power to make interim orders under section 221 of the
Industrial Relations Act 1988 only arises where an inquiry into an election has been instituted An inquiry is instituted for the purpose of the section when the court is
satisfied that there is reasonable ground for the application for an inquiry into an
election and fixes a time and place for conducting the inqu~ry (see section 219(b)).
In the instant case for the reasons I have given I cannot be satisfied that there is
reasonable ground for an inquiry which cannot lead to any practical result beyond that which has occurred by the calling of the elections by Mr. Fitzgerald, the returning officer, on 30 August, 1993. Therefore there is no power or occasion to make the interim orders sought.

In the circumstances, the application for an inquiry is dismissed.

THE COURT DIRECTS

1.                    That the secretaryltreasurer of the Queensland branch of the unlon receive any membership dues tendered by the applicant to enable him to become a financial member of the union and to enable him to stand

for any position which he may chose at the forthcoming elections.

THE COURT ORDERS:

2.   That the application for an inquiry is dismissed.

I certify that this and the preceding three (3) pages are a true copy of the extempore reasons for judgment herein of his Honour Mr. Justice Cooper.

Date: 7 September, 1993 &U,( ddeia'~

Associate

Applicant in Person:	Mr. M. Timothy
Solicitor for the Registrar,
Australian Industrial Relations
Gmmission:	Mr. G. Power, of Australian Government Solicitor
Date of Hearing:	3 September, 1993
Place of Hearing:	Brisbane