Re Inquiry into election in Australian Federated Union of Locomotive Enginemen, Victorian Division v Ex Parte Emmett, John Maxwell

Re ELECTIONS IN AUSTRALIAN FEDERATED UNION OF LOCOMOTIVE ENGINEMEN, VICTORIAN
DIVISION; Ex parte EMMETT (1978) 33 FLR 269
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Election - Secret postal ballot - Alleged irregularity - Returning officer to determine time for lodging nominations - Returning officer to determine place for lodging nominations - Notice calling for nominations - Nominations to be mailed to post office box - Close of nominations - Discovery of nomination after close of nominations - Rejection of nomination - Whether irregularity in conduct of election - Whether place for lodging nominations determined by returning officer - Whether "the place for lodging nominations" includes any official mail receptacle - Object of regulation governing conduct of secret postal ballots - Accessibility of place determined for lodging of nominations to intending candidates - Whether result of election affected - Relief - Whether delay in making application - Conciliation and Arbitration Act 1904, ss. 133AA, 159 - Conciliation and Arbitration Regulations, Pt VAA, regs. 146AC, 146AE (3).

HEADNOTE

The Conciliation and Arbitration Act 1904 provides by s. 133AA that every election by a direct voting system for specified offices within an organization shall be by secret postal ballot. Subsection (2) provides that the regulations may make provisions for and in relation to the conduct of an election in accordance with the requirements of the section in the case of an election in respect of which the rules of the organization do not provide for a secret postal ballot. Part VAA of the Conciliation and Arbitration Regulations, Secret Postal Ballots, provides by reg. 146AC (1) that the returning officer shall determine the time and dates of the commencement and close of the period for lodging nominations of candidates for an election for an office. Sub-regulation (2) provides that the returning officer shall determine the place for lodging nominations of candidates for election. Regulation 146AE (3) provides that a person is not eligible for election unless the nomination of the person as the candidate for election is lodged at the place determined by the returning officer under reg. 146AC (2) and within the period for lodging nominations under reg. 146 AC (1) or (2), whichever is applicable.

Section 159 of the Act enables a member of an organization, or a person who, within the preceding period of twelve months, has been a member of an organization, who 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, to lodge an application for an inquiry by the court into the matter.

During the conduct of an election for a number of offices in the Victorian branch of an organization registered under the Act, the returning officer called for nominations for the offices by a notice which stated that nominations closed on 12th November, 1977, and "must be mailed to the Returning Officer . . . Box 65, North Melbourne 3051." On 7th November, a member of the organization posted nomination papers addressed to the returning officer at the address above in respect of three offices, viz. those of central branch chairman, central branch committee member and biennial conference delegate. After the closing date for lodging nominations, the nominations collected by the returning officer from the post box included that of the member for the office of biennial conference delegate, but not those for the other two offices.

On an inspection some days later, the post box was found to contain four nominations, including the two of the member not previously found in the post box. The returning officer rejected both nominations. The member lodged an application for an inquiry into the election for central branch chairman alleging that the returning officer's rejection of his nomination was an irregularity in the conduct of the election.

Held: (1) The notice issued by the returning officer calling for nominations constituted a notification that the place for lodging nominations determined by him within the meaning of reg. 146AC was any official mail receptacle. Accordingly, the nomination of the member for the office of central branch chairman had been lodged at the place for lodging nominations within the period determined by the returning officer for the lodging of nominations.

(2) Semble, if the place determined by the returning officer was not any official mail receptacle, the returning officer had failed to determine the place for lodging nominations within the meaning of reg. 146AC because - (a) on a proper construction, the provisions of the regulation regarding the returning officer's determination of the place for lodging nominations was designed to enable the physical deposit of a nomination by an intending candidate, either personally or by his agent and the post box determined by the returning officer did not enable such a physical deposit; and (b) the object of regs. 146AC and 146AE so far as they related to the returning officer's determination of the place for lodging nominations and his giving of notice of the place so determined, was to ensure that an intending candidate was apprised of what was required in order to lodge a nomination.

Accordingly, the returning officer's refusal of the member's nomination for the office of central branch chairman constituted an irregularity in the conduct of the election, the result of which may have been affected by the irregularity.

(3) The court should not refrain from making an order for the fresh conduct of the election, assuming it was empowered to exercise such a discretion, because, on the evidence, there had been neither delay in making the application of such a duration as to warrant its so refraining nor prejudice to the returning officer by reason of delay.

HEARING

Melbourne, 1978, May 15, 18, 19, 22; June 23. #DATE 23:6:1978

INQUIRY INTO ELECTION.

A member of an organization registered under the Conciliation and Arbitration Act 1904 lodged an application under s. 159 of the Act for an inquiry into an alleged irregularity in the conduct of an election for a number of offices in the Victorian branch of the organization.

H.T. Nathan, for the applicant.

J.E.R. Bland, for the returning officer.

Cur. adv. vult.

Solicitors for the applicant: Alfred Branicki & Associates.

Solicitors for the returning officer: Slater & Gordon.

JUDGE1

June 23.

The following judgment was delivered.

KEELY J. On 17th April, 1978, John Maxwell Emmett (the applicant) applied under s. 159 of the Conciliation and Arbitration Act 1904 (the Act) for an inquiry by the court into irregularities claimed to have occurred in or in connection with an election for two offices in the Victorian division of the Australian Federated Union of Locomotive Enginemen (the union), an organization of employees registered under the Act of which organization the applicant was a member at all material times. (at p271)

On 4th May, 1978, the industrial registrar granted the application and referred the matter to the court for determination by it under s. 165 of the Act. At the hearing Mr. Nathan of counsel appeared for the applicant and Mr. Bland of counsel appeared for Neil C. Bouker, the returning officer. Service of the documents was effected upon those candidates who were declared successful in the election for the two offices, but there was no appearance on behalf of any of those candidates. (at p271)
The claimed irregularities related to the office of central branch chairman of the Victorian division of the union and the office of central branch committee member of the Victorian division of the union. (at p271)
The returning officer called for nominations by a notice in the following terms:

"CENTRAL BRANCH BIENNIAL ELECTION

Nominations are invited for the positions of -

1 Branch Chairman

1 Branch Vice-Chairman

1 Branch Secretary

6 Branch Committee members

4 Biennial Conference Delegates

Please make nomination form clearly legible and signed properly. Nomination forms available from BRANCH SECRETARY of LOCO HALL.

Nominations close on November 12th, 1977, and must be mailed to -

Returning Officer,

Box 65,

NORTH MELBOURNE. 3051

(Signed)

Neil C. Bouker,

RETURNING OFFICER". (at p272)

The evidence established the following facts, inter alia: (1) The applicant on 7th November, 1977, at North Melbourne post office posted three stamped envelopes addressed to "The Returning Officer (Central) P.O. Box No. 65, North Melbourne 3051". (2) Each of the three envelopes contained a separate nomination form, one for the position of central branch chairman, the second for the position of central branch committee member and the third for the position of biennial conference delegate. (3) The returning officer cleared postal box No. 65 at the North Melbourne post office on Monday, 14th November, 1977, and at that time the box contained, inter alia, the envelope containing the nomination by the applicant for the position of biennial conference delegate, but not the two envelopes containing the other two nominations by the applicant. (4) On Wednesday, 16th November, 1977, the returning officer in the company of the applicant and others requested an employee of the Postal Commission to examine post office box No. 65 from the inside of the post office. The employee did as requested and found in box No. 65 four envelopes including the two envelopes addressed and posted by the applicant and containing his nomination forms in respect of the positions of central branch chairman and central branch committee member respectively. (5) One of the four envelopes found in box No. 65 on Wednesday, 16th November, 1977, contained a nomination form by Mr. W. Winton. That envelope (the Winton nomination envelope) although properly addressed to the returning officer, had been wrongly placed in a box reserved for the normal mail of the union. An employee of the union handed the Winton nomination envelope to the returning officer who on 10th November, 1977, went to the North Melbourne post office and handed the envelope to one Mr. Peter Frawley, a postal clerk, and reminded him of the instruction he had previously given that all mail addressed to the returning officer was to be put in box 65. (6) The returning officer subsequently made inquiries both from Mr. Frawley and the postmaster, but was unable to obtain any explanation as to how the Winton nomination envelope, which the returning officer had personally handed to Mr. Frawley on 10th November, 1977, with an express instruction that it be put in box 65, nevertheless was not in that box on Monday, 14th November, 1977, but was in the box on Wednesday, 16th November, 1977. (7) The returning officer obtained certain legal advice and, acting in accordance with that advice, accepted the Winton nomination but refused to accept the two nominations by the applicant on the ground that they were not contained in post office box No. 65 when he cleared it on Monday, 14th November, 1977. (at p273)
Evidence was given as to other nominations and as to other matters including the applicant's allegation of an irregularity consisting of "permitting or allowing access to the post office box by persons other than the returning officer". However, in view of the decision which I have reached I do not find it necessary to deal with those matters. (at p273)
Although both the postmaster and the postal clerk gave evidence before the court no satisfactory explanation was given as to how two of the three nominations posted by the applicant at the same time were (like the Winton nomination envelope) not in box No. 65 on Monday, 14th November but were in that box on Wednesday, 16th November, 1977. (at p273)
On the last day of the hearing Mr. Nathan limited the application to one for an order in respect of the position of central branch chairman, stating that he sought no order in relation to the branch committee. Accordingly, the main question falling for determination in this proceeding is whether the refusal by the returning officer to accept the nomination by the applicant for central branch chairman was an "irregularity" within the meaning of s. 4 of the Act. (at p273)
Both counsel agreed that Pt VAA of the Conciliation and Arbitration Regulations made under the Act (regs. 146AA-146AT inclusive) applied to the election the subject of the inquiry. (at p273)
Regulation 146AC provides as follows:"(1) The Returning Officer shall determine the times and dates of the commencement and close of the period for lodging nominations of candidates for election for an office. . . (2) The Returning Officer shall determine the place for lodging nominations of candidates for election." (at p273)
Regulation 146AE(3) provides as follows: "(3) A person is not eligible for election unless the nomination of the person as a candidate for election is lodged at the place determined by the Returning Officer under sub-regulation 146AC (2) and within the period for lodging nominations under sub-regulation 146AC (1), or under sub-regulation (2), whichever is applicable." (at p273)
The notice calling for nominations issued by the returning officer which I have set out earlier contained (inter alia) the following:

"Nominations close on 12th November, 1977, and must be mailed to -

Returning Officer,
Box 65,
NORTH MELBOURNE. 3051"

Mr. Bland contended that that portion of the notice on its true construction notified "the place for lodging nominations" (within the meaning of reg. 146AC) determined by the returning officer as being "Box 65, North Melbourne 3051". Mr.Nathan contended on the other hand that "the place for lodging nominations" was any receptacle for mail provided by the postal authorities (which I shall call official mail receptacle). (at p274)
No doubt the returning officer intended box 65 to be the place at which nominations should in the normal course of events arrive. However, I consider that the notice amounted to a notification that "the place for lodging" nominations determined by the returning officer was any official mail receptacle. Mr. Bland submitted that this view involves reading the words "the place" as meaning "the place or places", and that the words should not be so read. However, in my view there is nothing in the wording of the regulation or its surrounding context to run counter to an interpretation that the singular includes the plural. (at p274)
The returning officer's notice directed that nominations "must be mailed" and therefore required any intending candidate to mail his nomination by enclosing it in a properly addressed and stamped envelope and then depositing or placing that envelope containing the nomination in any official mail receptacle. I consider that the notice was a notification that the returning officer had determined that any official mail receptacle should be the place at which nominations should be lodged. (at p274)
On the view which I have just expressed the nomination of the applicant for the office of central branch chairman was lodged at the place for lodging nominations determined by the returning officer and was so lodged on 7th November, 1977. (at p274)
If the view which I have expressed that the returning officer determined that any official mail receptacle should be the place at which nominations should be lodged, be not correct and the words used in the notice notified intending candidates that "the place for lodging nominations" determined by the returning officer was box 65, then in my view the returning officer failed to determine the "place for lodging nominations" as required by reg. 146AC. I base that view on the fact that box 65 was not a place at which nominations could be directly lodged by the intending candidate either personally or by an agent selected by him. Instead, the intending candidate would be necessarily dependent upon employees of the postal authorities in order to bring about a lodging of his nomination in box 65. (at p274)
The Shorter Oxford English Dictionary includes the following meanings of the verb "lodge": ". . . 3. To place, deposit". In my view, the meaning of the words "determine the place for lodging nominations" in reg. 146AC is that the returning officer shall determine a place at which it is possible for any intending candidate - either personally or by his agent - to physically lodge (i.e. place or deposit) an envelope containing his nomination. Mr. Bland conceded - rightly in my view - that if the returning officer's notice, properly construed, meant that the "place for lodging" there determined by the returning officer was "Box 65, North Melbourne", then that place was not a place at which any intending candidate could physically lodge the nomination. All that such an intending candidate could do would be to properly address and stamp an envelope containing his nomination form and deposit it in an official mail receptacle provided by the postal authorities. (at p275)
In my opinion, the purpose of regs. 146AC and 146AD in requiring that the returning officer "shall determine the place for lodging nominations" and then give notice in a newspaper setting out "the place for lodging nominations" and "inviting nominations" is to ensure that those wishing to become candidates will know exactly what they have to do in order to lodge a nomination. I consider that reg. 146AC, properly construed in the context of Pt VAA of the regulations and the relevant sections of the Act, intends that the place so determined by the returning officer shall be a place at which intending candidates can perform the physical action of directly lodging, i.e. depositing or placing, their nominations in the place so determined. (at p275)
For the reasons which I have given, I determine that an irregularity has occurred, namely the refusal to accept the nomination by the applicant for the position of central branch chairman. I am of the opinion that, having regard to the irregularity found, the result of the election may have been affected by the irregularity. Counsel for the returning officer did not argue to the contrary on this aspect and in my view no such argument could have been put. (at p275)
It was argued by Mr. Bland that if the court rejected his primary submission and held that an irregularity within the meaning of the Act had occurred, the court had a discretion as to whether to make an order for a fresh election where the applicant had been guilty of undue delay in the matter as Mr. Bland contended was the position in this case. He relied upon the decision of Dunphy J. in Re Amalgamated Postal Workers Union of Australia (New South Wales Branch); Ex parte Lowe (1957) 1 FLR 235 and also cited The Queen v. Spicer; Ex parte Foster (1958) 100 CLR 163 a passage where the High Court, dealing with s. 141 of the Act, said: "In the second place the Commonwealth Industrial Court is not bound under s. 141 to exercise its jurisdiction. It is a jurisdiction which is conferred in permissive terms and the court has a discretion" (1958) 100 CLR, at p 168 . (at p275)
Assuming - without deciding - that the court has a discretion in this matter and may refuse to make an order by reason of undue delay by an applicant, the question is whether in this particular case there has been a delay of such a length as to warrant refusing an order where the existence of an irregularity has been established and the result of the election may have been affected. That question must depend upon the particular facts, including the length of and the reasons for the delay. (at p276)

The applicant was vigorously cross-examined by Mr. Bland as to his failure to initiate these proceedings at an earlier point of time. The applicant claimed that he was waiting for some action within the union as the result of an inquiry by a sub-committee which met on or about 28th December, 1977 - before which sub-committee the applicant had appeared. The applicant told the court that he had "heard" that the sub-committee was to "report back to the committee of management". Apparently it did not in fact report back and ultimately in late March 1978, the applicant gave instructions for the issue of these proceedings. (at p276)
In all the circumstances including the relative shortness of the delay and the fact that Mr. Bland was not able to point to any prejudice by reason of the delay, I have decided that the proper course is to make an order for the holding of a fresh election. The parties agreed at the conclusion of the hearing that the form of the order should be open to discussion after delivery of the judgment. (at p276)

ORDER

Order accordingly.

[1978] FCA 49

23 JUNE 1978