Re Vehicle Builders Employees' Federation of Australia (SA Branch)

[1987] FCA 195

CATCHWORDS

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INDUSTRIAL LAW - election inquiry - whether 2 votes in same-

envelope breaches secret ballot - whether "irregularity" -

irregularities in that ballot papers issued to members

ineligible to vote and not issued to members eligible to vote

- meaning of words "result of election may have been

affected" - court's residual discretion

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Conciliation and Arbitration Act 1904 S. 165(4)

Re Australasian Aeat Industry Employees Union, Western

Australian Branch; Ex parte Ferguson (Toohey J. 5 November

1986 unreported) I

Application by PAUL MICHAEL NOACK for an inquiry into an

election in the VEHICLE BUILDERS EMPLOYEES' FEDERATION OF

AUSTRALIA, SOUTH AUSTRALIAN BRANCH

NO. SA 10 Of 1986

KEELY J.

MELBOURNE

23 APRIL, 1987

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IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIAN DISTRICT REGISTRY)	NO. SA 10 Of 1986
INDUSTRIAL DIVISION

IN THE NATTER an Of

~~~~ ~~~~

L U - MICHAEL -

NOACK for an enquiry into X e c t i o n in the Vehicle

Employees	Builders
Federation Australia f
(South Australia Branch)

JUDGE NAAKING ORDER : KEELY 3.

DATE OF ORDER	: 23 APRIL, 1987
WHERE MADE	: MELBOURNE

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MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The election for the office of Assistant Secretary of the South Australian Branch of the Vehicle Builders

Employees' Federation of Australia, the result in

which was declared by the returning officer on 19

November 1986, be declared void.

2. Luis Cuevas, a person purporting to have been elected

to the said office, be declared not to have been

elected.

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3. The Industrial Registrar make arrangements for a new

election to be held for the sald office.

4. There be liberty to apply.

l - Note: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL -. COURT OF -. AUSTRALIA

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SOUTH AUSTRALIAN DISTRICT REGISTRY) No. SA 10 of 1986

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DIVISION	INDUSTRIAL	1
IN THE MATTER of an
application by PAUL MICHAEL-
NOACK for an enquiry into X e c t i o n in the Vehicle

Employees	Builders
Federation Australia f
(South Australia Branch)

23 APRIL, 1981 KEELY J.

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REASONS FOR JUDGMENT

This is an application by Paul Itichael Noack (the

applicant) for an enquiry under Park IX of the Conciliation

and Arbitration Act 1904 (the Act) into alleged

irregularities which he claims occurred in or in connexion

with the election (the election) of the Assistant State

Secretary of the South Australian Branch (the Branch) of the

Vehicle Builders Employees' Federation (the Federation). The

election was conducted under S . 170 of the Act and the

returning officer was Mr. Carey,	a member of the staff of the
Australian Electoral Commission.

Four parties were represented in the proceedings. Mr.

McCusker appeared for the applicant, Mr. Stanley for the

Federation, Mr. Meegan for Mr. Cuevas (the successful

candidate) and Mr. Materne for the returning officer. By 14

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April 1987 there had been a hearing of these proceedings on

eight sitting days. On that day, after a short adlournment

during Mr. Stanley's cross-examination of the applicant's

solicitor, 13r. Rowe, the parties all joined in a request,

that the court should hear argument at that stage on two - matters and decide those two matters. That request was made

because it was considered that the decision on those matters

might render unnecessary any further hearing; it was granted

because it would be in the interests of all parties if the

agreed course reduced the length of the remaining hearing by

shortening the time needed both for evidence (including

possible lengthy cross-examination) and the submissions on

i various other issues which had been raised.

The first matter as to which a decision was sought was

a submission by the applicant that an irregularity had

occurred by reason of the returning officer's decision to

treat as valid 4 6 votes, contained in 23 envelopes, each of

which contained 2 ballot papers. I am not prepared to uphold

his submissions on this aspect. As to the facts, subject to

one possible qualification, the evidence as to the 46 ballot

papers (i.e. 23 "pairs" of ballot papers) fails to satisfy me that the name of the candidate for whom the voters had voted was necessarily made known to any other person, e.g. the

other person whose vote was included in the same envelope.

The qualification, to which I have referred, is that an

inference to that effect could be drawn as to "three or four

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pairs" of votes, having regard to evidence given by Mr.

Carey. However, havlng considered all the evidence as to

those ballot papers, if it were necessary to decide, I would

not be prepared to draw the inference that those completed

ballot papers had been shown other to voters. -

It is not necessary to determine that issue of fact

because, even if I had inferred that those voters had

voluntarily shown their ballot papers to other persons, in my

opinion that action would not be sufficient to constitute a

breach of branch rule 14 which required that the election be

by secret ballot. In my view Mr. McCusker's contention to

the contrary does not gain any support from the fact that

many years ago it used to be an offence against the

regulations made under the Act for a person voting in certain

ballots to show his ballot paper to any person, r to permit

any person to see the ballot paper, while he was marking it

or after he had marked it (see Commonwealth Conciliation and

Industrial Arbitration Law by McWilliam and Boyt, 1946). I

should add that in my opinion the returning officer's

direction to the voters to place the ballot paper in the

envelope provided to the member was directory and not

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mandatory (cf. Re Australian Journalists Association; Ex

parte Geoffrey Gleghorn	- unreported, delivered 29 February
1980).

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Accordingly I am not prepared to find that the

returning officer's declsion to treat as valid the 46 votes,

including the "three or four pairs" to which reference has

been made, was an irregularity.

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The second matter arose out of concessions made by Mr.

Stanley and by Mr. Meegan that, on the material before the court, irregularities had occurred in connexion with the

election; those conceded irregularities were (a) that 59

persons, who were unfinancial and were not entitled to vote,

had each received a ballot paper and (b) that 8 persons, each

of whom was a financial member at the material time, were not

given ballot papers.

It should be added that Mr. McCusker contended, on

behalf of.the applicant, (i) that a larger number of persons

were wrongly given ballot papers, (ii) that a larger number

were wrongly denied ballot papers and (iii) that there were

other irregularities. However, he joined in the course

proposed to the court, on the agreed basis that his rights

are reserved as to all the other matters raised by him. In

the light of the concessions and the material at present

before the court, I find that at least the following

irregularitles occurred, namely, (a) that at least 59 persons

who were not entitled to vote in the election were given

ballot papers and (b) that at least 8 persons who were

entitled to vote in the election were not given ballot

paper s .

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Hr. Stanley contended that, notwithstanding his

concessions, the court should not declare the election vold

because of the statutory direction in S. 165(4) that it shall

not do so "unless the Court is of opinion that, having regard- to the irregularity found, and any circumstances giving rise

to a likelihood that similar irregularities may have

occurred, ... the result of the election may have been

affected ... by irregularities." supported He that

contention by a carefully prepared and well presented

submission, which was adopted by Hr. Heegan.

Hr. Stanley submitted that the court, in considering

whether to form the "opinion" referred to in S. 165(4),

should look "at real not merely theoretical possibilities."

Those words are taken from the following passage (p. 7) in

the reasons for judgment In Re Australasian Meat Industry

Employees Union, Western Australian Branch; Ex parte Ferguson

(unreported - delivered 5 November 1986). There, Toohey J.

said:-

"Thus the question is whether the Court

is of opinion that, having regard to the

irregularities found, the result of the

election may have been affected. Unless

the Court is of that opinion, it may not

declare the election void. Clearly the

Court is not required to make a positive

finding but, equally, the Court is

looking at real not merely theoretical

possibilities."

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It may be added that, on the material in that case, his

Honour was not able to form the opinion which, by reason of

S . 165(4), 1s a prerequisite to a declaration that an

election is void.

The court's statutory duty, under S. 165(4) of the

Act, is to form an opinion as to whether "the result of the

election may have been affected". I agree, with respect,

with Toohey J., that in performing that duty the court is to

look "at real not merely theoretical posslbilities". However

it should be noted that his Honour is peaking of

possibilities - not probabilities. In my opinion, where the

possibility is "real" - as distinct from "merely theoretical"

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- it is proper for the court to form the opinion that the

result of the election "may have been affected".

In S . 165(4) the words used - "the result of the

election may have been affected" - are different from those

considered by aitchell J. in Crafter v Webster and Guscott

(No. 2) (1980) 23 SASR 321; there the (S.A.) Electoral Act

1929-1976 provided, in S. 185, that no "election shall be

declared void on account of any ._. error ... which is not

proved to have affected the result of the election" (emphasis

added). They are also different from those considered by

Isaacs J. in - Kean v Kerby (1920) 27 CLR 449; there, S . 194 of

the Commonwealth Electoral Act 1918-1919 provided that "No

election shall be avoided ... on account of the ... error of

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any officer which shall not be proved to have affected the

result of the election" (emphasis added). In that case

Isaacs J. pointed out that the posltion was different in

England, saying (at 458) that under the English legislation

"if the matter is left so that the mistake have affected -

the result, the election may be declared invalid. Under our

[Commonwealth Electoral] Act it is different".

The Legislature, in enacting S. 165(4) of the Act with

the words "the result ... may have been affected" must be

assumed to have intended a different meaning from that of the

words used in S. 194 of the Commonwealth Electoral Act

1918-1919, to which Isaacs J. was referring. In my opinion

the Legislature intended that the court, in considering

whether to form the opinion that, on the material before it,

"the result of the election may have been affected", should

take into account those possibilities which it considers are

"real not merely theoretical possibilities" - to use the

words of Toohey J. Where the court considers that such

possibilities exist, it should not speculate as to whether

there is a "likelihood'' that the result would have been

affected. It may be noted that the Legislature used the word

"likelihood" in S. 165(4), when it was referring to the

"likelihood [of] similar irregularlties" but did not refer to

the "likelihood" of the result of the election being

affected.

In this connexion I adopt, with respect, the following

passage from the judgment of Griffith CJ. in Chanter v

Blackwood (No. 2 ) (1904) 1 CLR 121 at 131:-

”I cannot see that any other result can follow when a number of persons, sufficient

to change the majority into a minority, if

they all voted against the candidate having

the majority, have wrongly been allowed to

vote. I cannot enquire how they actually

voted. It is clear that they may have voted

for the respondent, in which case the

petitioner‘s malority would be larger, or

that they may have all voted for the

petitioner, in which case the respondent

would have been elected. But the numbers

being as they are, it is impossible for me

to say that the majority of the electors may

not have been prevented from exercising

their free choice.”

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In the present case, the margin in favour of the

successful candidate was only 27 votes. Eight persons were

wrongly denied a vote. More importantly, 59 persons were

wrongly given ballot papers. There is no material before the

court as to how many of the 59 persons in fact voted, or as

to how many voted for the successful candidate; further, it

can not be known how many of the eight would have voted if

given the ballot papers to which each was admittedly entitled

or for which candidate each would have voted.

It may be interpolated that Mr. Meegan very briefly

referred, in his final address, to the possibility of a

subpoena being served upon each of the 59 persons in an

endeavour to obtain evidence as to whether they had voted but

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said that there were enormous practical problems in such a

course. No party has suggested that such a step should be -

taken and in my opinion it is not warranted in all the

circumstances of the case, including the length of the

hearing and the number of occasions upon which the hearing

has already been adjourned, at the request	of	a party, to
enable further investigation.

I am not prepared to uphold Mr. Stanley's submission

that the court should have regard to the general voting

pattern and reach the conclusion that, on the balance of

probabilities, only approximately 30% of the 59 persons would

have voted - a submission based upon the fact that only

approximately 30% of the ballot papers issued were returned to the returning officer. In my opinion such a "conclusion" in respect of the 59 persons would be mere con~ecture and

cannot be inferred from the fact that approximately 30% of

the overall electorate voted. For similar reasons I am not

prepared to conclude that only approximately 30% of the 8

persons would have voted. In my opinion the result of the

election may have been affected by the irregularities found

to have occurred.

Mr. Stanley's submlssion was supported by reference to

dicta in a number of decided cases, including that decided by

Smithers J., sittlng as the Australian Industrial Court, in

Re Behan (unreported - delivered 19 November 1976). His

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Honour said (at p. 25) that "Something more is required than an opinion that it "could" possibly have been affected" and - (at p. 33) that:-

l ' . . . having regard to the general voting pattern it is most unllkely that they would all or even mostly have voted for the same

candidate or candidates. Accordingly it

would, in the particular circumstances of

this election and of the membership of this

Branch, and I wish to emphasise this, be

unreal to think that the result of the

-on may have been affected by the

failure to send ballot papers to these	309
persons." (emphasis added)

It may be that his Honour's words, read in their overall

context, do not express a principle that is different from

that expressed by Toohey J. However, if the opinions

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expressed by their Honours do differ, then, with the greatest

of respect for that of Smithers J., I prefer the principle

expressed by Toohey J. in Ex parte Ferguson (supra).

i I also prefer that principle to the dicta in other

cases cited by Mr. Stanley where, and to the extent that,

they depart from that principle. One case was Re Australian

Postal and Telecommunications Union; Ex parte Wilson	(1979)
28 ALR 330 at 337 where Sheppard J. said:-

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' I . . . nor am I satisfied that each of the 56

persons, if he or she had received a ballot

paper, would have voted. In round terms,

6000 persons out of a total electorate of

15,000 cast votes."

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It may be noted that the report of that decision does not

give the "winning margin" of the successful candidate. In -

v A.M.I.E.U. (1978) 46 FLR 340 at 348 the "margin" was

720 and the number wrongly given votes was approximately

4,900.

Another case cited by MT. Stanley was Kelly v

Amalgamated Metal Workers' and Shipwrights' Union (1981) 56

FLR 124 at 148 where Sheppard J. referred to "a real o r

distinct possibility" that the result may have been affected.

Mr. Stanley also sought to rely upon a reference by

Fitzgerald J., In Re Penhallurick (1983) 51 ALR 589 at 598,

to "a practical risk, which is more than mere fanciful

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speculation, that [ ~ t ] ... might have affected the result of

the election". Those two passages may be compared with the

principle expressed by Toohey J. that "the Court is looking

at real not merely theoretical possibilities". Lastly, in - Re

Bragg (1985) 60 ALR 136 at 1 5 4 there is a dictum of mine

which gives some support to Mr. Stanley's argument. That

statement was expressly (p. 153) made obiter and without any

contrary submissions being put as to the meaning of the words

in S. 165(4); further, it was made before the decision in - Ex

parte Ferguson and I have no hesitation in following the

principle expressed by Toohey J. in that case ln preference

to my obiter dictum in Bragg's case.

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It was also submitted by Mr. Stanley that the court, even if it were satisfied that the result of the election may -

have been affected, should decline, in the exercise	of	its
discretion, to declare the electlon invalid.

I accept that the court has a residual discretion and

could decline to declare the election invalid if there were

cogent reasons favouring that course in all the circumstances

of the case (Kelly's case supra - per Sheppard J. at

!	149). I agree, with respect, with sheppard J. that "there
may be cases in which ... it would be in the public interest
or in the interests of ... all of the members of a union not
to act [to declare void an election]". However, as at
present advised, I am unable to envisage a case in which the
court could so decide "in the interests of some ... of the
members . . . ' I .

I am not prepared to uphold Mr. Stanley's submission

that circumstances exist warranting the exercise of the

court's discretion to decline to make the order. The

exercise of the discretion in the manner sought would not

necessarily assist in overcoming whatever problems may exist

in relation to other ballots conducted at the same time.

Accordingly, having determined that irregularities

have occurred, I have decided to make orders:-

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1. Declaring the electlon to be void.

2. Declaring that Luis Cuevas, a person purporting to

have been elected, not to have been elected.

3 . Directing Industrial the Registrar make to

arrangements for a new election to be held.

4 . Reserving liberty to all parties to apply.

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I certify this and the preceding twelve pages to be a true

copy of the Reasons	for Judgment of his Honour Mr. Justice
Keely

14.

Dates of Hearing

20, 23, 24, 25, 26 February

23, 24, 25 March, 14 & 1 5

April

Counsel for the Applicant

Mr. P. McCusker

Solicitors for the Applicant

Johnston Withers McCusker &

CO.

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Counsel for the Union	Mr. T. Stanley
Solicitors for the Union	Duncan Groom Hannon & John
Counsel for Mr. Cuevas, the

successful candidate Mr. Meegan

Solicitors for Mr. Cuevas,

the successful candidate Palios Meegan & Nicholson

Counsel f o r the Returning

Officer Mr. G. Materne

Solicitors for the Returning

Officer

Australian Government

Solicitor