Re Wong; Ex parte Kitson

[1979] FCA 67

C o p y r i q h t i n t h e C o n m o n w e a l t h G o v e r n m e n t L /

I N THE FEDERAL COURT OF AUSTRALIA

Indus t r i a l D l v i s i o n

No. 1 G of 1 3 7 9

I n t h e m a t t e r of -

TIIE CONCILIATION AND ARBITRATION

ACT 1 9 0 4

B E T W E E N -

DX4IEM STAPLETON

C l a i m a n t

- and -

AUSTRALIAN THEATRICAL AND

AMUSEMENT EI4PLOYEES ASSOCIATION

VIESTERI? AUSTRALIA BRANCI1

R e s p o n d e n t

( C o n t i n u e d from 1 9 / 6 / 7 3 a t P e r t h )

-

C o r a m : J.B. SWCCNEY J

TRAIJSCRIPT OF PROCEEDIIJGS

AT PERTH ON WEDNESDAY, 20 JUNE 1 9 7 9 , AT 1 0 . 1 6 A.M.

[?S (VD)

S t a p

HIS HONOUR: I have prepared a judgment i n t h i s matter which I

w i l l read onto t h e t r a n s c r i p t . It i s i n these t e r m s :

This is an appl ica t ion by M r Damien Stapleton,

t h e claimant, f o r an order pursuant t o s . l71(c ) with

regard t o t h e a f f a i r s of t h e Western Austral ian branch

of t he Austral ian Theat r ica l and Amusement Employees

Association branch. I t concerns an e l ec t i on i n t h e

branch of t h r ee o f f i c e r s on t h e branch executive held

between t he months of June and October 1978. When the

matter came before me,'for d i r ec t i ons an order was made f o r t h e se rv ice on t h e o the r branches of t h e assoc ia t ion , and f o r an advertisement t o be placed i n

The W e s t Austral ian, t h e metropolitan da i l y newspaper,

c i r c u l a t i n g i n t h e state of Western Aust ra l ia .

A t t h i s s t age it was s a i d t h a t t he e l ec t i ons had

been uncontested but during t h e hearing it appeared

t he r e had been 1 0 nominations f o r e i g h t pos i t ions on

t h e executive and t h a t t he r e were, as a consequence,

two defeated candidates. When t h i s appeared t h e claimant

proceeded t o communicate with these two defeated

candidates and each of them gave evidence before m e

t h a t he was	s a t i s f i e d with and had no complaint about
t he conduct	of t h e ba l l o t . Turning t o t h e i r r e g u l a r i t i e s ,

t h e r u l e s of t h e organisa t ion contain q u i t e an e labora te

and f a i r and s u i t a b l e code f o r t he conduct of e l ec t i ons ,

including those i n branches. It i s c l e a r , however, t h a t

these r u l e s w e r e not adhered t o . Whether these r u l e s

or any of them be t r e a t e d a s mandatory, requi r ing

s tr ict adherence, o r d i r ec to ry , requi r ing only a sub-

s t a n t i a l adherence, I am q u i t e s a t i s f i e d t h a t they w e r e ,

i n f a c t , neglected. There was ne i t he r s u b s t a n t i a l nor

s t r i c t adherence t o them.

In f a c t , what was done was t h a t ins tead of t he

appointment of a re tu rn ing o f f i c e r according t o t h e

r u l e s and t h e conduct of t h e b a l l o t by him, t h e conduct

of the b a l l o t was handed over t o t h e Western Austral ian

Trades and Labor Council by a general meeting of t he

associa t ion . I accept t h e evidence given before me

t h a t t h e reason f o r t h i s was, and w a s bel ieved, t h a t

a former minis ter f o r labor had urged t h a t unions e i t h e r

have t h e i r b a l l o t s conducted by t h e Trades and Labor

Council o r by an e l e c t o r a l o f f i c e r of t h e Commonwealth.

I t was then thought t h a t , i n taking t he s t eps they d id ,

t h e meeting was ac t i ng i n accordance with t h i s injunc-

t ionand i n a manner which would remove any poss ib le

suspicion from t h e b a l l o t . However t h a t may be, it is

q u i t e c l e a r t h a t what was done was i n c l e a r breach of

t h e ru les . This was no t only i n respect of t h e person

conducting t h e b a l l o t , but extended t o such matters a s

t h e method of counting, t h e use of a s p e c i a l pos t o f f i c e

box f o r t h e r e tu rn of t h e b a l l o t papers and many l i k e

matters.

76A/PF

Stap

The evidence leads m e t o t h e b e l i e f t h a t t h e

b a l l o t was f a i r l y and honest ly conducted but i n

complete breach of t h e ru les . I f ind the re fore

t h a t i n v a l i d i t y has occurred i n t h e management and

administrat ion of t h e branch, and i n t he e l ec t i on

f o r o f f i c e r s and branch executive held between t h e

months of June and October 1978. Iam fu r the r s a t i s -

f i e d t h a t no f u r t h e r se rv ice o r no t i ce of t h e

app l ica t ion should be required. I am a l s o s a t i s f i e d

t h a t no s u b s t a n t i a l i n j u s t i c e would be done t o t he

organisa t ion o r t o any member o r c r e d i t o r of t h e

organisa t ion by making an appropr ia te order under

s.l31(c).	I have had t h e opportunity of hearing
evidence by	M r Bluck, t h e sec re ta ry of t h e branch,

and M r S t a r r , t h e p res iden t of t he branch, M r

Stapleton, t h e general sec re ta ry , and t h e two

unsuccessful candidates previously r e f e r r ed t o . I

was impressed by these witnesses and t h e i r frankness;

I am s a t i s f i e d t h a t t h e i n v a l i d i t y occurred and t h a t

those concerned ac ted honestly and bona f i de .

I t must, however, be emphasised t h a t t he r e i s

a c l e a r duty c a s t on a l l those concerned with a

branch of an organisa t ion t o a c t i n accordance with

i ts ru les . With some exceptions made by parliament,

an organisa t ion is l e f t f r e e t o make such r u l e s a s

it wishes. L i k e soc ie ty genera l ly , o r any p a r t i c u l a r

p a r t of soc ie ty , it is imperative t h a t those r u l e s ,

when made, be obeyed, otherwise chaos and uncertainty

r e s u l t and over a period it is i nev i t ab l e t h a t

i n j u s t i c e w i l l be done. I n t h i s p a r t i c u l a r case t h e

consequences t o t h e branch, a f t e r t h e discovery of

t h e i n v a l i d i t y , could, indeed, be se r ious s ince t h e

a c t s of those concerned a s o f f i c e r s o r members of t h e executive committee could w e l l be completely

inva l id . These might extend t o even matters of

i n t e r n a l importance, investments, d i s c ip l i na ry matters

o r t h e l i k e , o r matters of i n d u s t r i a l importance,

such as agreements, representa t ions t o employers o r

employer organisa t ions and s o on. Their complete

i n v a l i d i t y might w e l l be d i sas t rous .

In these circumstances I th ink it proper t o use

t h e s p e c i a l powers of t h e cour t pursuant t o s . l71(c) .

I make an order , as asked, t h a t t h e e l ec t i ons of branch

p res iden t , branch sec re ta ry and branch vice-president

and of t h e executive committee of t h e branch, held

between t h e months of June and October 1978, be val ida ted .

76A/234A/PF

Stap

H I S HONOUR: That is t h e order of t he court , M r N o l a n . I w o u l d

add t h a t you m a y p ick up a copy of t h e ru les , w h i c h I

th ink are exh ib i t A.	T h a t i s on your	under taking t o
lodge a certified copy.

MR NOLAN: Y e s , your H o n o u r .

H I S HONOUR: T h e court w i l l n o w adjourn s i n e die .

NO FURTHER PROCEEDINGS REPORTED

S t a p 7 0