Rennie, G.A. v Australian Workers Union

[1990] FCA 468

IN THE FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DISTRICT REGISTRY

INDUSTRIAL DIVISION

BETWEEN :  GORDON ANDREW RENNIE

Applicant

AND :  AUSTRALIAN WORKERS UNION

Respondent

W:	PINCUS J
URTCUnMW  RECEIVED
PLACE :	-.A--.-
m:	25 MAY 1990

FEDERAL COURT OF

AUSTRAUA PRINCIPAL

EX TEMPORE REASONS FOR JUDGMENT

This is an application for an inquiry under Division 5 Part IX of the Industrial Relations Act 1988. The grounds of the inquiry, which are taken by amendment, concern two quite different matters. One is that there is a strong prima facie case that two of the people, Messrs Arnold and Ballin, who stood for the office of organiser, were not eligible to stand.

for Organiser so you must place an X besides 23

The argument was put in some detail and it seems to be almost compelling. The second point taken is that the successful how-to-vote ticket was misleading, in that it contained the expression:

"To cast a formal vote you must place an X
opposite the names of the candidates for whom
you wish to vote, e.g. there are 23 positions

names as per the How-To-Vote ticket otherwise
your vote will be informal."

The suggestion which is made by Mr Martin for the applicant is that the expression "as per the How-To-Vote Ticket" is misleading and might induce people to think that unless they followed the Ludwig/Meiklejohn How-To-Vote Ticket,

,

in which these words appear, then the vote would be informal.

It is said against that, and I think truly, one would have to be particularly lacking in alertness and general experience of elections to think so, but one cannot deny the possibility that some people might have thought so. The result is that there is something to argue about on both points. The more difficult question in my view is whether or not there is within the meaning of section 219(b), reasonable ground for the application.

Mr Martin suggested that reasonable ground simply is

a matter worth arguing about, whether or not there is any

prospect of upsetting the election. M r Batch, on the other

hand, said that that would not be a reasonable ground, yet there seemed to be no real possibility of the election being upset under s.223(4). That provision uses the expression, "the result of the election may have been affected," and it was pointed out by Mr Martin that "may have been" is apt to encompass a mere possibility.

It seems to me unlikely that it "may have been affected" is intended to mean that and although no authority has been cited, I should have thought it would connote a higher probability than that. I am also in agreement with Mr Batch's suggestion that in looking for reasonable ground, you do consider whether the inquiry is likely to be, or not to be, an empty exercise.

All that having been said, I think one should be reluctant to cut off an inquiry on the basis of an anticipation of the ultimate outcome, and I hold that there is reasonable ground for the application within the meaning of 219(b).

The court is then to fix a time and place for conducting the inquiry. The length of the inquiry seems to be not great, but regrettably I cannot say with precision when it is likely to occur. I will nominate the date of Friday, 1 June, and the time 3 pm as the time and place for conducting

the inquiry. I should mention, however, that unless the inquiry finishes very quickly, it is likely not to get very	far that day.
The other question which was argued is, I think, a simpler one, and that is whether or not an interim order should be made leaving the applicant, Mr Rennie, in office pending the resolution of the inquiry.
The fact is that Mr Rennie missed out by a significant number of votes; not a very large number, I suppose, but significant, nevertheless, 3 0 0 9 votes, and Mr Martin says that under the rules another election has to be held, because three of the people who were elected have resigned or indicated their intention to resign.

v

This simply gives Mr Rennie a chance of being elected again. It seems to me I should not make any assumption as to whether he is likely to be elected or not in that future election, and I should fasten upon the question of how he is likely to fare in the inquiry.

It seems to me that he has not been elected. He may or may not be appointed, but the court should, I think, take into account when asked to make an order compelling the union to keep him on as organiser after his failure to be elected, whether it thinks there is a high probability of the inquiry resulting in a successful outcome for him.

I do not think there is a high probability, although there is a question worth debating; that is, it seems to me, that I have to take into account the view which I have that the court may well say that there has been an irregularity or irregularities, but there is a much more difficult task on the part of the applicant to show that the result of the election may have been affected under 2 2 3 ( 4 ) .

I therefore do not propose to make an interim order

and I re fuse the appl icat ion f o r an interim order.

I c e r t i f y t h a t t h i s and the four preceding pages are a true copy o f the reasons f o r judgment herein o f h i s

Honour M r J u s t i c e Pincus.