Re Jarman; Ex parte Cook (No 2)

[1996] HCA 7

HIGH COURT OF AUSTRALIA

BRENNAN CJ , GAUDRON AND KIRBY JJ

In the Matter of - AN APPLICATION FOR A WRIT OF CERTIORARI AND A WRIT OF MANDAMUS (First Respondent) AND AGAINST THE HONOURABLE JUSTICE MOORE, ALAN JARMAN (Second Respondent), COMMUNICATION WORKERS UNION OF AUSTRALIA (Third Respondent), AUSTRALIAN ELECTORAL COMMISSION (Fourth Respondent) EX PARTE - QUENTIN REDVERS COOK (No. 2)

15 May 1996

Industrial Law—Industrial Relations Court of Australia—Election of union officers—Inquiry into election irregularity—"an office to which the inquiry relates"—Limited to offices the election for which is the subject of the inquiry—Industrial Relations Act 1988 (Cth), Pt IX Div 5: ss 218, 221, 223. Industrial Law—Prerogative relief—Writs of certiorari and mandamus to compel exercise of jurisdiction by the Industrial Relations Court of Australia—Notice of motion referred to the Full Court dismissed—Costs—"without reasonable cause"—Industrial Relations Act 1988 (Cth), s 347(1). Words and phrases—"relates". Industrial Relations Act 1988 (Cth), Pt IX Div 5: ss 218, 221, 223, 226(1), 347(1).

Headnote

Hearing

CANBERRA, 13 and 14 March 1996
#DATE 15:5:1996



Counsel for the Applicant: P.E. King and M.J. Cohen


Solicitor for the Applicant: Paul Etherington and Associates


Counsel for 2nd Respondent: W.R. Haylen, QC and N.H. Rudland


Solicitors for 2nd Respondent: McClellands


Counsel for 3rd Respondent: W.R. Haylen, QC and R. Reitano


Solicitors for 3rd Respondent: R.L. Whyburn and Associates


Intervener:
S.C. Rothman SC instructed by Maurice May and Co. (5th Respondent)

Orders

1. Motion of writs of certiorari and mandamus dismissed.
2. Costs reserved.

Decisions

BRENNAN CJ AND GAUDRON J. The prosecutor moves on notice for the issue of writs of certiorari and mandamus directed to Moore J of the Industrial Relations Court of Australia. When this motion was listed before a Full Court constituted by seven Justices, an application was made for the matter to be remitted to the Industrial Relations Court. Submissions were made as to the power of this Court to remit to the Industrial Relations Court matters in which a writ of mandamus directed to a Judge of that Court is sought under s 75(v) of the Constitution. The Court announced that it would not exercise the power, if any, that it has to remit. The reasons for that decision will follow in due course (1). The Court then reconstituted to hear the motion on its merits.


2. At issue are the powers of the Industrial Relations Court under Div 5 of Pt IX of the Industrial Relations Act 1988 (Cth) ("the Act") in relation to an inquiry into an election to certain offices of the Postal and Telecommunications Branch, New South Wales ("the branch") of the Communication Workers' Union of Australia ("the Union"). Since the institution of the inquiry, the Union has amalgamated with another organisation to form the Communications, Electricians and Plumbers Union ("CEPU"). The amalgamation is irrelevant to the issues now to be determined.


3. Rule 77 of the Union rules provides for the election of office-holders, some of whom hold what are described as "full-time positions", others of whom are part-time "sectional representatives". Relevantly that rule reads:
"(a) ...

(b) Each Branch shall have for its management a Branch Committee
of Management consisting of a President, two Vice Presidents, Secretary, Assistant Secretary, full-time Organisers as specified in this sub-rule and not fewer than eight nor more than eighteen Sectional Representatives who shall be elected for a period of two years. Provided that any person elected to an office which has been a (sic) declared a full-time office shall be elected for a term of office of four years. For the purposes of Branch administration the following Branch offices shall be declared full-time positions:
New South Wales: Branch President, Branch Secretary, Branch
Assistant Secretary, twelve (12) Organisers; ...
(c) The Branch President, Vice President, Secretary, Assistant
Secretary and full-time Organisers shall be elected by ballot of the financial members of the Branch.
(d) Sectional Representatives shall be elected from the members
comprising the respective groups as provided in Rule 47 in accordance with the Branch needs as determined by the Branch Committee of Management provided that the number of Sectional Representatives from each Divisional Section shall be equal, with a minimum of four (4) and a maximum of nine (9) from each Divisional Section.
..."



4. In July 1994 a postal ballot for the election to the full-time offices of the branch was being conducted. An allegation of irregularities in relation to that election was made by Mr Noel Battese, who has been added as a respondent to these proceedings. He lodged an application on 27 July 1994 for an inquiry into the alleged irregularities under s 218 of the Act. Section 218, the first of the sections in Div 5 of Pt IX of the Act, reads as follows:
"Where a person who is, or within the preceding period of 12
months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Court (2) into the matter."
Division 5 governs inquiries into alleged irregularities in elections for the offices of an organisation or a branch of an organisation registered pursuant to the Act.


5. Moore J, being satisfied that there were reasonable grounds for the application, fixed a time and place for conducting the inquiry (3). The prosecutor was given leave to appear - presumably as a person "justly entitled to appear" - at the inquiry. The inquiry into that election has not yet been concluded. It stands adjourned to a date later in this month.


6. The function and powers of the Industrial Relations Court in conducting an inquiry are set out in s 223, the relevant provisions of which read:
"(1) At an inquiry, the Court shall inquire into and determine the
question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.
(2) In the course of conducting an inquiry, the Court may make
such orders (including an order for the recounting of votes) as the Court considers necessary.
(3) If the Court finds that an irregularity has happened, the
Court may, subject to subsection (4), make one or more of the following orders:
(a) an order declaring the election, or any step in relation to
the election, to be void;
(b) an order declaring a person purporting to have been elected
not to have been elected, and declaring another person to have been elected;
...

(4) The Court shall not declare an election, or any step taken in
relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities."


7. In May 1995, while the inquiry into the alleged irregularity in relation to the 1994 election for the full-time offices was on foot, nominations were called for the election of part-time "sectional representatives". The sectional representatives and the holders of full-time positions together make up the Committee of Management of the branch (4). Approximately one-half of the Committee of Management hold full-time offices and are elected for 4 years; approximately one-half are sectional representatives and are elected for 2 years (5). At the time of the May 1995 election, the prosecutor held office as a sectional representative. He was concerned that the same irregularities as he and Mr Battese had alleged in relation to the election of the full-time officers would occur in relation to the election of sectional representatives. On 8 May 1995 he filed a notice of motion seeking, inter alia, the following orders in respect of the sectional representative members of the Committee of Management:
"1. That the current office holders of the State Committee of
Management in the Communications, Electricians and Plumbers Union ('CEPU') remain in office until a final determination has been made in this matter, or until further order of the court.
2. In the alternative to the above, that the ballot relating to
the State Committee of Management in the CEPU be suspended until a final determination has been made in this matter, or until further order of the court."
On 1 June 1995, Moore J held that he did not have the power to make the order sought. Accordingly, he dismissed the notice of notion. The prosecutor submits that s 221(1)(c) conferred the requisite power on his Honour who ought to have exercised it by hearing and determining the motion on its merits.


8. Section 221(1) relevantly provides:
"Where an inquiry into an election has been instituted, the Court
may make one or more of the following orders:
(a) an order that no further steps shall be taken in the conduct
of the election or in carrying into effect the result of the election;
(b) ...

(c) an order that a person who holds, or last held before the
election, an office to which the inquiry relates may act or continue to act in the office;
(d) where it considers that an order under paragraph (c) would not
be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;
(e) an order incidental or supplementary to an order under this
subsection;
(f) an order varying or discharging an order under this
subsection."


9. The prosecutor submitted that Moore J should hold that the offices of the sectional representatives answered the description of "an office to which the inquiry relates" within the meaning of that term in s 221(1)(c). Moore J rejected that submission. In this Court, the prosecutor repeats his submission. He does not suggest that the fact that he held the office of a sectional representative is relevant but he submits that there is a relationship between each of the offices held by a member of the Committee of Management and all of the other offices held by members of that Committee. Therefore, so the argument runs, an inquiry into the election of some of those members was said to relate to the offices held by other members of the Committee of Management. Thus the jurisdiction of the Industrial Relations Court to make an order under s 221(1)(c) in respect of the offices of the sectional representatives was said to be enlivened by an inquiry in relation to the election of the holders of the full-time offices. To support this submission, the prosecutor relies on the wide meaning attributed to the term "relates" (6). As a matter of policy it was submitted that a wide field of operation should be attributed to the word "relates" in order, inter alia, to avoid the necessity for a multiplicity of inquiries into the several elections of the members of the Committee of Management.


10. Although the word "relates" is wide in scope, the relevant relationship for the purposes of s 221(1)(c) is between a particular "office" and "the inquiry". The structure of Div 5 of Pt IX of the Act so defines the subject matter of the inquiry as to preclude the construction which the prosecutor seeks to place on s 221(1)(c). Section 218 authorises the making of an application for an inquiry into alleged irregularities "in relation to an election for an office". The only election to which an inquiry under Div 5 can relate is an election for a particular office. If the Court finds an irregularity has happened in relation to an election, the Court is empowered not only to declare the election void but to declare "a person purporting to have been elected not to have been elected" (7). In other words, an inquiry under Div 5 can lead to a declaration of non-election to the office to which a person was purportedly elected in the election in relation to which an alleged irregularity has happened. The relevant relationship for the purposes of s 221(1)(c) between an inquiry and an office is indicated by ss 218 and 223(3): it is established by a particular election. That is, the office to which an inquiry relates is the office for which a particular election has been conducted, being the election in relation to which the irregularity that is the subject of the inquiry allegedly happened. There is no other relationship to which s 221(1)(c) might refer. An order which the Court is empowered to make under s 221(1)(c) can affect the holding of only that office to which a person has purportedly been elected in the relevant election. That election is identified in the application for the inquiry (8). The office for which that election was held is the only office to which the inquiry relevantly relates.


11. In the present case, there is no relevant relationship between the inquiry that has been instituted into the election for the full-time offices and the offices of sectional representatives. As the only inquiry being conducted relates to the election for the full-time offices, those are the only offices to which the power conferred by s 221(1)(c) might extend.


12. A further argument was advanced on the footing that the irregularity alleged to have happened in the election of the persons holding full-time offices was endemic to elections conducted by the branch or, perhaps, by the Union. An inquiry into the allegedly endemic irregularity in an election was said to be related not only to the offices for which the election was held but also to other offices related to the first-mentioned offices. There are two answers to this argument: first, that no irregularity whether endemic or not had been found when the application under s 221(1)(c) was made; second, as already pointed out, s 221(1)(c) requires the office and the inquiry to be related through a particular election: the election for the office must be the election in which the alleged irregularity happened. In this case, no inquiry has been instituted into any irregularity that might have occurred in the election of the sectional representatives.


13. It follows that Moore J was right in holding that there was no power conferred upon him by s 221(1)(c) to make the orders sought by the prosecutor. Accordingly the motion for writs of certiorari and mandamus should be dismissed. Costs



14. Section 347(1) of the Act provides relevantly:
"A party to a proceeding (including an appeal) in a matter arising
under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause."
The application for writs of certiorari and mandamus invokes the jurisdiction of this Court conferred by s 75(v) of the Constitution. Nevertheless, the proceeding in which that jurisdiction is invoked was brought in order to enforce what was alleged to be the duty of Moore J to determine an application for an order under s 221(1)(c) of the Act. It was thus a proceeding to which s 347(1) applies (9). The contesting respondents nevertheless seek an order for costs on the footing that the proceeding for prerogative relief was instituted "without reasonable cause". Although there is considerable force in that submission, it is preferable to stand over the question of costs until the reasons for decision on the issue of the power to remit are delivered.

KIRBY J. When this motion for the issue of writs of mandamus and certiorari, directed to Moore J of the Industrial Relations Court of Australia, came before the Court, a preliminary point was argued. It concerned the power of the Court to remit to the Industrial Relations Court matters in which a writ of mandamus or prohibition was sought from this Court under s 75(v) of the Constitution, directed to a judge of the Industrial Relations Court. That question will be the subject of later determination.


2. The argument concerning remittal having concluded, the Court announced that it would not exercise the power, if any, that it had to remit the matter. The Court was then reconstituted, as at present, to hear the substance of the parties' arguments.


Election dispute and inquiry
3. The principal facts are stated in the reasons of Brennan CJ and Gaudron J. I will not repeat the description of how the present problem arose, the terms of the rules of the Union or the statutory provision principally in question.


4. However, to understand my approach to the proceedings, it is necessary to sketch a little more of the background without which it may be difficult to appreciate fully the arguments placed before the Court in support of the claim for relief.


5. The election for the full-time offices of the Postal and Telecommunications Branch, New South Wales of the Union ("the branch") was commenced in May 1994 when nominations were called by the Australian Electoral Commission. Because more nominations were received from candidates than positions to be filled in the branch, a postal ballot was commenced on 1 July 1994. It closed on 29 July 1994. One of the candidates for the full-time offices of National Secretary and Branch Organiser was Mr Quentin Cook (the prosecutor).


6. On 27 July 1994, Mr Noel Battese (who was added as a respondent to these proceedings) lodged an application in the Industrial Relations Court pursuant to s 218 of the Industrial Relations Act 1988 (Cth) ("the Act"). The application sought an inquiry into an alleged irregularity in, or in connection with, the conduct of the election. Put shortly, the allegations made by Mr Battese involved a suggestion that blank ballot papers had been solicited from members of the Union and then used to cast a vote in the election adverse to the candidature of Mr Battese's team. Moore J found reasonable grounds for inquiry. He made certain interim orders. The prosecutor was joined as a party to the proceedings. The inquiry into the election has not yet been concluded. This Court was informed that Moore J had fixed final hearings to take place in May 1996, after which it was hoped that final orders concerning the election would be made.


7. Meanwhile, in May 1995, nominations were called for the branch election in respect of part-time positions as provided by the rule as modified by a transitional rule resulting from the amalgamation referred to by Brennan CJ and Gaudron J. That rule contemplated that the positions should be filled at an election to be held in June 1995. The prosecutor was, at the time of the conduct of this election, one of the elected sectional (part-time) representatives. He expressed concern that the same irregularity, he claimed, which had affected the election of the full-time officer-holders, would be repeated in the election of the part-time office-holders. He therefore filed a motion in the Industrial Relations Court seeking the orders which are set out in the reasons of Brennan CJ and Gaudron J.


8. Moore J dismissed the prosecutor's motion on the ground that he did not have the power to make the orders sought. The prosecutor now challenges that decision.


Statutory provisions
9. The prosecutor principally relied on s 221 of the Act. That section is found in Pt IX Div 5 titled "Inquiries into elections". It is set out in the reasons of Brennan CJ and Gaudron J. I shall not repeat its terms. But the surrounding sections are important.


10. Section 218 permits a person who is, or within the preceding twelve months has been, a member of an organisation and who claims that there has been an irregularity "in relation to an election for an office in the organisation or a branch of the organisation" to make application for an inquiry by the Court into the matter. By s 219, where the Court is satisfied that there is reasonable ground for the application, it must fix a time and place for conducting the inquiry and notify all persons who are, or may be, affected. The Industrial Registrar is authorised to secure and inspect election documents and to retain them for the purposes of the inquiry.

11. Section 222 deals with the procedure to be followed at a hearing of an inquiry. Section 223 expresses the Court's duty, relevantly, in these terms:
"(1) At an inquiry, the Court shall inquire into and determine the
question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary.
(2) In the course of conducting an inquiry, the Court may make
such orders (including an order for the recounting of votes) as the Court considers necessary.
(3) If the Court finds that an irregularity has happened, the
Court may, subject to subsection (4), make one or more of the following orders:
(a) an order declaring the election, or any step in relation to
the election, to be void;
(b) an order declaring a person purporting to have been elected
not to have been elected, and declaring another person to have been elected; ...
(4) The Court shall not declare an election, or any step taken in
relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities."


12. These provisions are followed by s 224 which empowers the Industrial Registrar to make arrangements for the conduct of "the new election". Section 225 deals with enforcement of orders. Section 226 provides for the validation of acts where an election is declared void. Thus s 226(1) provides, relevantly:
"Where the Court declares void the election of a person who has,
since the election, purported to act in the office to which the person purported to have been elected, or declares such a person not to have been elected:
(a) subject to a declaration under paragraph (b), all acts done by
or in relation to the person that could validly have been done by or in relation to the person if the person had been duly elected are valid; and
(b) the Court may declare an act referred to in paragraph (a) to
have been void, ..."


Arguments of the prosecutor
13. Before this Court the prosecutor repeated the arguments advanced in the Industrial Relations Court, namely that the office which he occupied was "an office to which the inquiry relates", as provided in s 221(1)(c):
1. The word "relates" is a wide and flexible word, capable of a
large denotation (10);
2. In the case of an election inquiry, "endemic" irregularities
might appear which require, in the public interest, a flexible power to make interim orders and this was the intention of the Parliament in enacting s 221(1)(c) in the wide words chosen (11);
3. By contrasting the words in s 221(1)(c) ("an office to which
the inquiry relates") with the words used in s 226(1) ("the office to which the person purported to have been elected") it is made clear that "relates" in the former paragraph was intended to have a particularly wide meaning;
4. The Act was intended to operate in relation to industrial
organisations which would have an ongoing process of elections so that the Court would be provided with a power to make interim orders of sufficient ambit to cover connected offices not specifically involved in the particular election the subject of an inquiry instituted by an application under Pt IX Div 5; and
5. The office involved in the prosecutor's application "related
to" the office the subject of the inquiry in the sense that both office-holders were members of the Committee of Management of the branch and in that way, if not others, they were "related".


14. Moore J rejected these arguments by reference to the scheme of Pt IX Div 5 of the Act and the meaning of the word "relates", understood in its context in s 221(1)(c). In my view he was right to do so.


Conclusion on power
15. Moore J reminded himself of the remarks of Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) (12):
"There can be no doubt that the expression 'relating to' is
extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used."


16. In the present context, I do not consider that the Parliament intended that the power to make interim orders in the course of conducting an inquiry into a particular election would extend to a power to make orders in respect of another office, the subject of different and later elections, in respect of which no inquiry was sought, which election, at the time of the application, had not even been conducted.


17. It is true that the powers of the Industrial Relations Court in conducting an election inquiry should not be narrowly construed. But the Act has provided ample powers to the Court to make orders, as appropriate and necessary, including at short notice, to meet irregularities appearing in the course of an inquiry into an election. To invoke the jurisdiction of the Industrial Relations Court and to conduct an inquiry into an election is a serious matter. This explains the procedure established by s 219(b) by which, before an inquiry is conducted, the Court must be satisfied that "there is reasonable ground for the application". I say that the step is a serious one because it affects confidence in the integrity of the conduct of the organisation; introduces an element of uncertainty in the tenure of the office-holders affected; distracts the attention of those office-holders, to some extent, from the pursuit of their industrial functions; consumes a great deal of time of the organisation and of public office-holders; and involves much public and private cost. In such circumstances, the proper inference is that the Parliament intended that electoral inquiries should not be lightly embarked upon nor extended unnecessarily beyond the subject matter of the particular application. That is the scheme of Pt IX Div 5 of the Act. The provision of s 221(1)(c) must be read to give effect to that scheme. So read, it confirms the conclusion of Moore J.


18. This opinion is sufficient to dispose of the application without regard to other, and different, arguments advanced by the respondents to defend Moore J's order and to resist the relief sought. These included discretionary considerations arising from the fact that the prosecutor had delayed his application; had failed within the time provided by reg 62 of the Industrial Relations Regulations to make a fresh application under s 218 of the Act (as he might have done); had been defeated by a very wide margin in the election for the office the subject of his application when that election was later completed; and had failed to pursue a suggestion made by Gummow J on the first return of his application in this Court. That suggestion was to the effect that, although, by the Act, he could not appeal from the decision of Moore J, he might, if he wished, seek the opinion of the Full Court of the Industrial Relations Court of Australia on a point of law (13). He failed to do this.


19. A writ of certiorari was avowedly sought only to make effective any remedy secured by the applicant under s 75(v) of the Constitution (14). It does not need to be separately considered.


20. The motion for writs of mandamus and certiorari should therefore be dismissed.


Costs
21. Section 347(1) of the Act provides relevantly:
"A party to a proceeding (including an appeal) in a matter arising
under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause."
The respondents sought costs from the prosecutor upon the basis that the substantive proceeding covered by this decision had been instituted "without reasonable cause". The policy of the Act appears to be that costs should not be ordered save for the wholly exceptional circumstances specified. However, I am content to agree in the course proposed by Brennan CJ and Gaudron J in respect of costs. I therefore agree in the orders which they propose.
1 To be cited as Re Jarman and Ors; Ex parte Cook (No 1).
2 Defined by s 4(1) to be the Industrial Relations Court of Australia.
3 s 219.
4 The Committee of Management manages the affairs of the branch: see definition of "committee of management" in s 4(1) of the Act.
5 r 77.
6 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338, 347, 354, 370 and PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 69 ALJR 829 at 835-836, 845-846; 131 ALR 377 at 385, 398-399 were cited.
7 s 223(3)(b).
8 See reg 62(2) of the Industrial Relations Regulations 1989 and form 4.
9 Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at 93-94.
10 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338, 347, 354, 370.
11 cf Australasian Meat Industry Employees' Union; Ex parte Ferguson (1986) 67 ALR 491 at 494 per Toohey J; cf Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 FLR 195 at 202.
12 (1961) 105 CLR 602 at 620.
13 s 415(2).
14 R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 25, 29, 33; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations for Queensland (1995) 70 ALJR 93 at 105; 132 ALR 198 at 214.