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
Details
AGLC
Re Wong; Ex parte Kitson [1979] FCA 67
Case
[1979] FCA 67
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, Damien Stapleton, the claimant, filed an application against the Australian Theatrical and Amusement Employees Association Western Australia Branch, the respondent, seeking validation of an election held between June and October 1978. The court had to determine whether the irregularities in the election process were significant enough to invalidate the election results. The key issue was whether the election rules were strictly adhered to and whether any deviation from these rules led to substantial injustice.
Justice Sweeney found that the election was conducted in clear breach of the union's rules, which included the appointment of a returning officer and the method of counting votes. Despite this, the election appeared to be fairly and honestly conducted. The court concluded that the invalidity in the management and administration of the branch and the election process warranted validation of the election results. The court emphasized the importance of adhering to organizational rules to avoid chaos and uncertainty.
The court validated the election results for the positions of branch president, branch secretary, branch vice-president, and the executive committee of the branch, held between June and October 1978. The court ordered the respondent to lodge a certified copy of the rules with the court.