Spiratos v Australasian United Steam Navigation Co. Ltd

[1988] FCA 384

CATCHWORDS

INDUSTRIAL LAW - registered organization - applications for election inquiry - interpretation of rules - whether rule 53(18)(b) contravenes S. 133(l)(c) of the Act - whether "defect" in rule 53(18)(b) limited to "patent" defect - meaning of "the date of nominations" in rule 50 - whether unfinanciality of candldate and/or nominator can be "remedied" after nominations closed - whether requirement that candidates and nominators be financial members over a period of time is oppressive, unreasonable or un~ust - certlficate under S. 168 of the Act that appllcants acted reasonably in bringlng applications.

Conciliation and Arbitration Act 1904 s s . 2(f), 133(10(c),

140(l)(a), 140(l)(c), 159(4), 165(4) and 168(2)

.

Spiratos v Australasian'United Steam Navigation Co. Ltd.

Kioa h Ors. v West & Anor. (1985) 159 CLR 550

(1955) 93 CLR 317

TNT Management Pty. Ltd. v Brooks (1979) 23 ALR 345

Mawbey v Thone & Ors. (1969) 15 FLR 161

Naqvi - Re Election Inquiry (unreported - delivered 26/3/81)

V

,

Applications by FRANK TROJA, PATRICK MULDOON and WARWICK

SHANKS for inquiry into alleged irregularlties in election

for offices in Victorian Branch of the AUSTRALASIAN MEAT

INDUSTRY EMPLOYEES UNION

NOS. VI 48, 49 & 51 OF 1986

KEELY J.

19 JULY, 1988

MELBOURNE

.

IN THE FEDERAL COURT OF AUSTRALIA)
)

VICTORIA DISTRICT REGISTRY ) Nos. VI 48, 49 & 51 of

) 1986

INDUSTRIAL DIVISION	1
THE IN MATTER an of
election for offfces in the

~~ ~~~ ~ ~

Victorian Branch of the

AUSTRALASIAN MEAT INDUSTRY

EMPLOYEES UNION

AND IN THE	MATTER	of
appllcatlons	FRANK	by

TROJA, PATRICK N U L D O O m WARWICK SHANKS for an

lnqul ry Into alleged

irregularities	in	or	In
connexion	with	the	sald
electlon.

JUDGE MAKING ORDERS : KEELY J.

PLACE ORDERS MADE	: MELBOURNE
DATE OF ORDERS	:  19 JULY, 1988
MINUTES OF OR'DER

THE COURT ORDERS THAT : '

1. The inquiries instituted by the references to the

court of the applications of Frank Troja, Patrick Muldoon and

Warwick Shanks be terminated.

.

2. Each applicant have a certificate under S . 168(2) of

the Conciliation and Arbitration Act	1904 that they acted
reasonably in applying for the inquiry.
(Note:	- Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.)

.

U

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY ) Nos. VI 48, 49 & 51 of

) 1986

DIVISION	INDUSTRIAL	)
IN THE MATTER Of an election for offices in the Victorian Branch of the AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES UNION
irFeguiarities in or in
connexlon with the sald
election.

19 JULY, 1988 KEELY J.

REASONS FOR JUDGMENT

In September-November 1986 4n election was conducted

under S. 170 of the Concillation and Arbitration Act 1904

("the Act") for three off'ices in the Victorian Branch of the

Australasian Meat Industry Employees Union	("the Union"), an
organization of employees registered under	the Act. The
election was conducted	by Jeffrey William Howarth ("the
returning officer"), a member	of the staff of the Australian
Electoral Commission, Melbourne. Frank Troja, Patrick Muldoon and Warwick Shanks each claimed that there	had been

irregularities in	or in connexion with e election and on 13
and 18 November 1986 lodged applications under S. 159 of	the

Act for an inquiry by the court. On 17 and 20 November 1986 the Industrial Registrar referred those applications to the court under S. 159(4) of the Act.

Reasons for the delay before the hearing commenced

Hearings as to various procedural matters took place on 2 and 17 December, 1986 and on the latter date the matters were adlourned to a date to be fixed, on the basis that counsel for the parties would have discussions, designed to clarify the issues in the inquiry and to reach agreement, as far as possible, as to various factual matters. Those discussions extended over a lengthy period of time and, as a

r e s u l t , the matter was not listed for hearing untll 22

October, 1987. On that day the court was informed by counsel for the Union and the successful candidates and by counsel for the applicants that the delay had arlsen by reason of the

need for the parties to investigate factual matters,

including questions as to whether Mr. Baker, who had

nominated two candidates, had pald his contributions to the

Union in respect of certain half-years over a perlod of 15
years. Further affidavits were flled in January and February
1988 and on 2 March 1988. The matter was heard on 7, 8, 9

and 10 March 1988 - during which time a substantial amount of

oral evidence was heard. After hearing submissions as to the

future progress of the inquiry the Inquiry was adjourned;
after a further short hearing on 28 March, 1988 final
addresses, commencing on 16 May 1988, occupied more than 8

hearing days.

Mr. Tracey, of counsel, appeared for the three

applicants. Mr. G. Moore, of counsel, appeared for the returning officer and the Australian Electoral Commlssion. Mr. A. M. North, of counsel, appeared for Messrs. Dougan, Bird and Terpos, who were the successful candldates for the three offices the subject of the Inquiry, for Mr. Curran, the secretary of the Victorian Branch, and for the Union. It

will be convenient to refer to the	persons for whom he
appeared as “the respondents”.
Agreed Facts

A statement setting out facts which had been agreed upon by those three counsel was tendered in evidence. That statement included the following matters:

1. On 26 September, 1986 a notice was publlshed calling for nominations for certain posltions in the Vlctorian

Branch. That notice included the following:-

“The Australasian Meat Industry Employees

Union Victorian Branch

Notice to Members

c

The Deputy Industrial Registrar has made arrangements with the Electoral Commissioner under section 170 of the Conciliation and Arbitration Act 1904 for me to conduct vacancy elections for the following offices for the remainder of the term of office:

Branch President

Branch Assistant Secretary

Committee of Management Representatives as	-	.
follows:

SCI Meat and Paper Pty Ltd - Richmond	(1)
Meat Pak - Camperdown ( 1 ) R-i Ralphs - Brooklyn ( l )

Nominations, which comply with the

requirements of the registered rules of the Union, are invited and may be made at any time from 26 September 1986 and must reach

me not later than 12 noon on Monday, 13

October 1986. Nominations sent by post

must also reach me by that time.

Should a ballot be necessary, voting

material will be posted to eligible members

at the address shown in the Unlon's

records. I intend to open the ballot on 17

November 1986 and close it at 9 am on
Monday 1 December 1986.

Nomination Forms can be obtained from the Branch Office of the Union or from me at the address shown below." '

(The present prociedings are not directed towards the offices of Committee of Management representatives at R. J.

Ralphs - Brooklyn or Meat Pak - Camperdown).

2. The timetable for the election included provlsion that nominations would open on	26 September, 1986 and close at 12
noon on 1 3 October, 1986.

3 .      At all material times the followlng were rules of the

Union: 

“Rule 6 - Contributions

(1) A sum in payment of contributlons of

an amount of not less	than thirty-flve
dollars ($35) and not more	than One hundred
and fifty dollars	($150) as may be decided

upon by the Committee of Management of any
Branch, shall be paid half-yearly not later
than January 31 and July 31 each year by

all members, each Branch, sub-Branch or

district committee shall have the right to

demand payment of such contributlons, for which a membership ticket shall be issued,

conditionally that all fines and levies due

are paid, such ticket to be Inter-

changeable between all branches of the

Union. Persons joining the Union following

these dates and unfinancial members who pay

all contributions, fines,	and levies shall
be issued with a ticket.

(2) Such contributions shall be paid to and collected by the Branch Secretary or

authorised official of	the Union.
(2A) Notwithstanding any	pr.ovisions to the
contrary contained elsewhere in	these rules

a Branch may make arrangements with an

employer for deducting on	the authority of
any member (including a person ellgible	to
become a member pursuant	to Rule 5 ) of

these rul s amounts by way of

contributions, payable to the Union in

accordance with these rules from the wages or monies payable by the employer to the member .

Where such arrangement was made or such an

authority was given before this Sub-Rule came into force, the flnancial status of

any member who	is given such authority
shall be determined as if	the Sub-Rule had
been enforced immediately	prior thereto.
....

?

6A - Eligibility to Vote

(1) Notwithstanding any provisions to the

contrary in these rules, a member
shall be deemed eligible to vote in
any elections provided f o r by these

rules,

(a) if he has pald during the

half-year immedlately precedlng the half-year in which the ballot is conducted the contributions flxed pursuant to Rule 6(1) of these rules for that preceding half-year, and has also paid any fine, levies or other monies (other than arrears of contributions) which may be owing to the Union not later than 30 days before the date fixed for the closing of the ballot.

( 2 )	Neither the payment o f half-year’s contributions as set out in Sub-Rule (l)(a) of this rule, nor, anything
contained in these rules, shall
preclude the Union or any Branch,
Sub-Branch or Dlstrict Committee
thereof from recovering all
contributions in respect of any
previous half-year, or any fines, levies or other monies which may be
owing from time to time from any
member of the Union.
....	10 - Nembers Unfznanclal

A member who owes. to the Union:-

Any contributions for a longer period

than one calendar month after the due date for the payment thereof; or

Any levy for a longer period than one calendar month after the last day on

which such levy may be paid; or

Any fine for a longer period than one calendar month from the date of the decision imposing the fine; or

Any contributions which e had collected on behalf of the Union,

l .

shall be deemed unfinancial and while he so remains unfinancial, shall be excluded from all the prlvileges, except the right to vote pursuant to Rule 6A, but not from the obligations of membership, and shall at all times be and remain liable to pay the whole of such arrears of contributions,

fines, levies, and monies collected

on behalf of the Union, and the Union

may at any time sue such member without prior notice for the whole or

any part of the monies owed by him.

.... 50 - Qualifications for Office

Except in the case of officers elected in the first twelve months of the formation of the Branch, no person shall be eliglble to be elected to office unless he has been a member of the Union for at least 12 months immediately preceding his nomination for election, and is a financial member of the

Branch of which he intends to seek office at the time of nomlnation. A retiring officer shall be eligible for re-election. No person shall be eligible for election to office who will reach the age of sixty-five (65) years before the date of nominations.

....	5 3 - Branch ... Committee Elections
(18) Manner in Whlch Per&ons May Become	....
Candidates for Election.
(a) Sublect to these rules, each nomlnation khall be in writing and shall be signed by at least two financial members of the Union, and the nominee shall consent thereto and

authenticate the same by his signature, which assent may be either upon one nomination paper or otherwise. Candidates shall be financial in accordance with these rules.

(b)

The Returning Officer shall have the right in accordance with these rules to accept or reject such nominations; provided that if he rejects any nomination, the following provislons shall have effect:-

(i)	The Returning Officer shall notify the person concerned of the defect in the nomination; and
(ii)	The Returning Officer shall, where practicable to do so, give the person concerned the opportunity of remedying the defect within seven (7) days after being notified of the defect.
(iii)	If the person concerned wlthin such period is able and does in fact remedy the defect In the

nomination in accordance with

these rules, the Returning Officer shall thereupon accept such nomination.

....

( 2 0 )	Members Entitled to Nominate.
Only members of the Union flnancial in accordance with these rules shall be entitled to nominate for office at any election."

4 .      At the close of nominations (at 12 noon on 1 3 October,

1 9 8 6 ) the returning officer had 'received the following

nominations for the following offices:

Branch President - David George Dougan, Darryl Johnson

and Patrick Muldoon

Branch Assistant Secretary - Graham Bird, Frank Troja

and Warwick Shanks

Committee of Management Representative - Darryl

Johnson and Con Terpos

5. On 13 October 1986 Patrick Muldoon lodged a nomrnation for the office of Branch President. By telegram dated 2 3

October 1986 the returning officer notlfied Mr. Muldoon that his nomination was defective because Robert Andrews (one of those who had nominated him) was not a flnancial member of the Union. That telegram, omitting formal parts, was ~n the following terms:

"Australasian Meat Industry Employees Union

- Victorian Branch Elections

In accordance with rule 53( 18) (b) of the
rules of the Australasian Meat Industry
Employees Union I am hereby notifying you
that YOUK nomination for the office of
Branch President is defective.

The Union's records show that at the time of nomination, nominator Robert Andrews was

not	a
financial member and therefore ineligible to nominate you.	(Rule
53(18)(a) refers).

In the absence of any proof to the contrary

o r advice from another eli5ible financial

nominator being received by me, I intend to

formally reject YOUK nomination after 1 2

noon on Friday 31 October 1986."

6. On 1 3 October, 1986 Warwick Shanks lodged a nomination for the office of Branch Assistant Secretary, being nominated

by Robert Andrews and Patrick Muldoon. By telegram dated 2 3 October 1986 the returning officer notified Mr. Shanks that his nomination was defective because Mr. Andrews was not a financial member of the Union.

7 . On 29 and 30 October 1986 respectively Mr. Muldoon and Mr. Shanks each submitted a second nomination form.

8. Messrs. Robert Lang and Paul Baker were the nominators on the second nomination form for both Mr. Muldoon and Mr. Shanks as candidates. By letter dated 3 November 1986 the returning officer rejected the nominations of both of them as

candidates on the ground that Messrs. Lang and Baker were not

financial members of the Union.

9. On 13 October 1986 Darryl Johnson lodged a nomination for the offices of Branch President and Committee of Management Representative from SCI Meat and Paper Pty. Ltd. - Richmond.

10. By telegram dated 23 October 1986 the returnrng

officer notified Mr. Johnson that his nominations were

defective because he was not a	financial member of the Union.
It is convenient to note, at thls stage, that Mr. evidence before the court, he was unable to submlt that	Tracey, on behalf of the applicants, accepted that, on the
either MT. Johnson or Mr. Andrews was a financial member of the Union at the material time.
Whether Mr. Baker was a financial member at the material tlme

Mr. Baker gave evidence that he was financial and that

he had always paid his Union dues. He was sublect to a

carefully prepared cross-examination by Mr. North, on behalf

of the respondents. It was not suggested by Mr. North that

Mr. Baker was an untruthful witness and I am satisfied that

in giving his evidence he honestly believed that he had paid
all his dues and was therefore a financial member at the
material time. However, although I accept that Mr. Baker's
evidence was what he believed to be the truth, the
cross-examination revealed that on some matters Mr. Baker was
giving evidence of what he believed "would have" happened as
to payment of his Union dues; he was not able to remember

precisely what had happened on some occasions and was

"reconstructing" the events.	It is not surprising that he
had difficulty in remembering precisely what had	happened as
to the payment of his dues on	a number of occasions during a

period of approximately 2 0 years; 1: may be added that he was

initially unable to remember having made a payment of union
dues to the Australian Wqrkers Union.

I have considered Mr. Baker's evldence and the

relevant documentary evidence in the llght of the very detailed submissions made both by Mr. North, as to why Mr. Baker's evidence should not be accepted, and by Mr. Tracey, as to why it should be accepted. Mr. North referred, amongst

other things, to (1) the "reconstruction" by Mr. Baker in
giving his evidence; (2) affldavit evidence, which was not

the subject of cross-examination, and other evidentlary

material suggesting that an employer did not deduct Union

dues from Mr. Baker's wages; ( 3 ) the "spontaneous evidence"

(as Mr. North described it) given by Mr. Baker that he
"apologised" to Mr. Shanks when told that he, Mr. Baker, was
not a financial member; ( 4 ) the absence of any corroborative
evidence as to the payment of Union dues to the Unlon
delegate, Mr. Lehner, during the first half of 1975 and the

second half of 1978. As to the latter I have taken into

account Mr. Tracey's submission that Mr. Baker, not being the

applicant in the case, was under no duty to lead corroborating evidence. I have also considered each of the seven matters listed on pages 7-0 of the applicants' amended

contentions of fact and law (dated 20 April 1988), as well as

the transcript references and other matters cited by Mr.

Tracey in his final address.

I

In Spiratos v Australasian United Steam Navigation

Company Limited i1955) -93 CLR 317, Dixon CJ., Webb and

Fullagar JJ. said (at 322-323) that the clalmant:

' l . . . must induce in the tribunal a belief

that death did occurr by accident - not as a matter of certainty but as a matter of definitely preponderant probabllity. 'The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere

mechanical comparison of probabilities

independently of any belief in its reallty' (per Dixon J. in Bri inshaw v Briglnshaw (1938) 60 CLR 3 3 6 , h ) " .

I am aware that	he opinion of Dixon	J. in Briginshaw's case
was criticised in TNT	Management Pty. Ltd. v Brooks	(1979) 23

ALR 345 at p. 352-353 by Murphy J., who also stated that Nesterczuk v Mortimore (1965) 115 CLR 140 was "incorrectly decided" by Kitto, Menzies, Windeyer and Owen JJ.; Murphy J. did not refer to the above passage from the reasons for judgment of Dixon CJ., webb and Fullagar JJ. in Spiratos at 322-323.

Applying that statement of princlple to the present matter, I am unable to find as a fact that Mr. Baker paid his

Union dues in	respect of each of the s1x half yearly	perlods
in dlspute.	It is, of course,	possible that he did make the
payments in respect of each of those	perlods but the	evldence

as a whole has not satisfied me, "as a	matter of deflnitely
preponderant probability", that Mr.'	Baker made the payments

in respect of every one of the periods. It follows that I am unable to uphold Mr. Tradeyrs submission that Mr. Baker was

eligible to nominate Mr. Shanks and Mr. Muldoon.

It should be added that, for reasons given later In
considering the meaning and effect of the rules, in my

opinion it was not open to the returning officer to accept,

as a valid nomination, the "second nomination forms", signed

I

by Mr. Baker and Mr. Lang, which were submitted on 29 and 30
October 1986 i.e. after the time fixed for the closing of
nominations. That opinion is itself a sufficient answer to
the applicants' contention that there was an irregularity
consisting of the rejection of the nomlnation signed by Mr.
Baker. However, having regard to the role played by Mr.
Baker ln the hearing, including the length of his evidence
and cross-examination, it seemed appropriate to express my

opinion as to his evidence, notwithstanding the conclusion

reached as to the construction of the rules.

Whether sub-rule 53(18)(b) is valid (S. 133(l)(c))

The terms of sub-rule 53(18)(b) have been set out

earlier in these reasons. The applicants contended that it contravened S. 140(l)(a) of the Act in that it was contrary to S. 133(l)(c) of the Act or, alternatively, failed to make a provision required by S. 133(l)(c). That sub-section required that the Union's rules:-

" ( c ) shall provide that, if the returning officer conducting such an election finds a

nomination to be defective he shall, before rejectingthe nomination, notify the person concerned of the defect and, where it is practicable to do so, give him the opportunity of remedying the defect wlthin

such period as is applicable under the rules, which shall, where practlcable, be not less than 7 days after his being so notified".

The applicants' submission is based on the fact that the sub-section provides that the returning offlcer "shall, before rejecting the nominatlon, notlfy the person concerned of the defect" whereas rule 53(18)(b) provldes that the

returning officer "if he rejects any nomlnation .. . shall notify the person concerned of the defect . . . ' I ; they rely upon the fact that the draftsman of the rule used the word "if", instead of the word "before".

A careful consideration of the terms of the sub-rule

and of its context does not suggest any reason why the Union

would have wished the sub-rule to differ in its effect from the rule required by S. 133(l)(c) of the Act. On the

contrary, the remainder of the sub-rule appears to be

directed towards achieving the effect required by S . 133(l)(c), namely, that "the person concerned", after being "notified" under sub-rule 53(18)(b)(i), shall be glven "the opportunity of remedying the defect" (sub-rule 53(18)(b)(ii)). In addition, the material placed before the court by the Union showed that sub-rule 53( 18) (b) was substituted as one of a number of rule amendments; in respect

of those amendments, a statutory declaration (declared 18

February 1987 and filed wlth the Industrial Reglstrar in support of the Union's application for certiflcation of those amendments) contained a statement by Mr. F. T. Hall, the Federal Secretary, that "most of the alterations have become necessary to meet amendments to the ... Act".

In my opinion, in order to give effect to the

intention shown by the sub-rule, considered in its context,
sub-rule 53(18)(b) should be construed as if the word
"before" were substituted for the word "lf" , appearing
immediately before the words "he re~ects any nomination". So
construed, the sub-rule is valid and is not contrary to S.
133(l)(c) of the Act and the rhles, as a whole, do not fall
to make a provision required by the provisions of S.
133(l)(c) of the A c t . Accordingly, I reject the applicants'
contention that an irregularity occurred by reason of the
returning officer acting as if rule 53(18) (b) was In the form
required by S. 133(l)(c).

Whether "defect" in rule 53(18)(b) means patent defect

The respondents have submitted that the word "defect" in rule 53(18) (b) should be const5ued as being limited to patent defects, having regard to its context, namely, the imposition of an obligatipn upon the returnlng officer. The sub-rule expressly confers upon the returnlng officer the

the person concerned of the defect . . . l ' . In my opinion the	power to reject nominations and then requlres him to "notify
returning officer is given the power to reject a nominatlon by reason of a defect which is not pa ent e.g. on the ground that the candidate had not "been a member of the Unlon for at least 12 months immediately preceding his nomination" (rule

I

5 0 ) or on the ground that he was not "a financial member of the Branch . . . at the time of nomination" (rule 5 0 ) . The respondents' submission is rejected.

The meaning of "the date of nominations" in rule 50

Submissions were heard on the question whether rule place, and the somewhat different words "the time of nomination", in another, intended to refer to dates which might be different. I accept Mr. Moore's submission that in both cases the rule, properly construed, is referring to the same date, namely, the date fixed by the returning offlcer for the closure of nominations i.e. 13 October 1986 in the 5 0 , in using the words "the date of nominations", in one

present case. In Mawbey v Thone & Others (1969) 15 FLR 161

it was argued that the words "the date of nomination", i the

rule there under consideration, meant the date on whlch each

candidate lodged his	nomination - and not the date fixed as
the closing date for nominations.	Spicer W . , Dunphy and

Kerr JJ. (at 180) rejected that argument saying:-

"This is not likely to be what is meant but

rather that there would be a "date of
nomination" for all candidates by reference
to which the qualifications for all were
intended to be calculated. It is possible
to give r. 68 a meaning which would achieve
this by dealing with the matter on the

basis that there is objectively speaking a

"date of nomination"	for all candidates,
namely the last day	for nominating and this
is "the date	of nomination" in relation to
which tickets	must show relevant membership

qualifications."

Notwithstanding that the words there under consideration included the word "nomination" and not "nomlnatlons", I adopt that statement, with respect, as to the correct approach to the construction of the words in rule 50 .

whether the unfinanciality of a candidate is a "defect" which

can be remedied under rule 53(18)(b)

In addition to his submlssion (which has been
rejected) that "defect" in rule 53(18) (b) means patent

defect, Mr. North submitted that the fact that a candidate

was not financial at the time of nomination (rule 5 0 ) was not

a defect which could be "remedied" under rule 53(18) (b) . He and Mr. Moore both submitted that it could not be remedied

because rule 50 required that the candidate be financial "at

the time of nomination". That time is the time fixed for the closing of nominations (see MawbFy v Thone - supra, at 179-180). It is not "practicable" to "remedy" that defect after the closing of .nominations; it would be quite impossible for a payment to have such a retrospective effect.

intended, in enacting S. 133(l)(c) (nor could the Union have	It was also submitted that Parllament could not have
intended, in inserting rule 53(18)(b)), to over-ride Union rules which expressly required that candidates be financial "at the time of nomination". It was polnted out that Parliament had not stated that S. 133(l)(c) was intended to
have such an effect and submitted that it should not be he
that Parliament left such an important matter to implication. It was also pointed out by Mr. Moore that there was no reference to such an intention, or such an effect, either in the Minister's second reading speech o r in the Parliamentary
Debate.

I accept hose submissions, notwlthstanding the

carefully prepared and presented submissions to the contrary

advanced by Mr. Tracey. He relied, amongst other things, on

the reasons for decision in Naqvi - Re Election Inquiry
(unreported - delivered 26 March 1981). However, in that
case J.B. Sweeney J. came to the conclusion (p. 10) "that Mr.
Naqvi was at the date of nominatlon a financial member" and
accordingly the rejection of his nomination was plainly an

"irregularity".

His Honour did express the fu,rther vlew that the words "defective nomination" in the rule there under consideration

covered "the whole act of nominating, including the

requirement that a member be financlal". It may well be, as

Mr. North submitted, that that statement was based primarily	on the fact that the rules in that case included a provision
that "[wlhere members acceptance qualiflcatlons are not in accordance with the rule, they be notlfied as soon as
possible". If it was not so based, then, wlth the greatest
of respect to his Honour, the statement was made obiter and,

i

having heard very full argument in the present case, I am unable to accept it as stating a general proposition of law. It may be added that the reasons for judgment in Naqvi suggest that the matter was not fully argued before J.B.

Sweeney J.; certainly the reasons for ludgment do not suggest that his Honour heard and rejected submissions comparable with the cogent submissions advanced to me on behalf of both

the respondents and the returning officer.

I also accept he following submissions by Mr. Moore:

(a) that rule 53(18)(b), in referring to "the opportunity of
remedying the defect", is referring to an existing, albelt
defective, nomination which, like all other nomlnations, must
be lodged no later than "the time set down for the closing of
nominations"; if not so lodged it "shall be ruled out as
invalid" (rule 53(18)(c)); (b) that certain defects may be
remedied after that date but withln the period given by the

defect"; however, the defects can not be remedied by the .	returning officer as an "opportunity of remedying the
lodging of a new nomlnation; (c) that, where such a defect has been remedied after the closing of nominations, the
nomination is "still a nomination as at the date on which it
was lodged". In my opinlon the unflnanclallty of a
candidate, at the close of nominations, was a "defect" which could not be remedied.
Whether the un financiality of a nominator can be remedie' d-
under rule 53(18)(b)

Both Mr. Tracey and Mr. Moore submitted that a

nominator's unfinanciality can be remedled. Mr. Moore

submitted that a defect in the nomlnatlon, consisting of the fact that one ( o r both) of the nomlnators was (or were) unfinancial at the time when nominations closed, can be remedied by the substitution, after the closing of nominations, of one or more nominators who were financial members when nominations closed - but who were not nominators at that time. Mr. Moore accepted that, on that submission, a

financial member, who wished to be a candidate, but who, on and before the day on which nominatlons closed, had been unable to persuade any flnancial member to nominate him, could lodge a "nomination" form, not signed by - and not even giving the name of - any nominator; that such a "nomlnation" would have a "defect" (i.e. the abFence of any nominators) which could be remedied during any period allowed by the returning officer.

On that basis, if the potentlal candidate could, after

the closing of nominations, persuade two members to act as
his nominators, the "defect" in his "nomination" could be
"remedied" by the "nomination" being signed, after the date
fixed for the closing of nominations, by those two members
(providing that they were financial at the tlme when

nominations c losed) On t :hat submission, such a "defect" In his "nomination" could be "remedled", notwithstandlng that those two nominators (together with other financial members of the Union) had refused to be his nominators on and before

the date on which nominations closed and notwithstanding that, as a result, the proposed candidate was, on the day

when nominations closed, quite unable to lodge a "nomlnatlon

... in writing ... signed by at least two financial members

of the Union" as required by sub-rule 5 3 ( 18) (a). I am unable

to reach the conclusion that such a (hypothetical) case could

be said to come within the words "defect in the nomination".

In his submlssions Mr. Moore made it clear that he was

not submitting that such a defect could be remedied by the

nominator paying his arrears of contributions after the close

of nominations. He said that such a procedure would "do

violence to the language of the rules, which required the

nominator to be financial at the time of nomination" - i.e.

in the same way as they required a candidate to be financial

at the time of nominatio?. As Mr. Moore put it, neither the

candidate nor the nominator can "ex post facto qualify

themselves if they are not already qualified [i.e. financial]

by the date of the closure of nominatlons".

In my opinion, by the same reasoning process, the
rules require not only that the "nominator" be financial at
the time of nomination but also that he be the nominator at

. 23.

t :hat time. Mr. Moore accepts t :hat, after t :he closing of

nominations, it is too late for a nominator (or a candidate)

3

by paying contributions to become flnanclal retrospectively

i.e. at the time when nominations closed.	In my opinion, for
essentially the same reasons, it	is too late for a person to
become a nominator at that	ime.

Mr. Tracey submitted that the "lack of flnanclallty of

a ... nominator" constituted a defect which could be

remedied, by reason of rule 53(18), within the period allowed
by the returning officer; the same submisslon was put by him

- but not by Mr. Moore - as to the remedylng of the

unfinanciality of a candidate. For the reasons	already
given, I am unable	to uphold those submlssions.

It follows from the conclusions already expressed

that, on the facts disclosed In these proceedings, rule 53(18)(b)(ii) did not empower the returning officer to give to any "person concerned" an "opportunity of remedying" any

defect in that person's-nomination. It follows that	the
returning officer's actions in giving such an opportunity	to

remedy the defects	in the original nominations were breaches
of the rules and "irregularitles"; understandably,	they were
not relied upon by the applicants in these proceedings.	AS

those irregularities did not lead to any nomlnations being wrongly accepted by the returning officer, it is plain that the result of the election could not have been affected by those irregularities (S. 165(4)).

The principles of procedural fairness

Mr. Tracey submitted that the returning officer was exercising statutory power in considering the nominations; that was based on his submission that rule 53(18) (b) was invalid, a submission which has been rejected.

Alternatively, he submitted	that, if rule 53(18)(b) was
valid, it was itself “a statutory duty	manifest in the rules”

i . e . because it was required by S . 133(l)(c) and S . 140(l)(a) that that provision be in the rules. It was submitted that

the principles of procedural fairness	applied to	the
returning officer in	performing his dutles	under rule 53(18).

Mr. Tracey contended that, on the facts disclosed in relation to the candidacy of Mr. Shanks and Mr. Muldoon, (but not that of Mr. Johnson), the returning officer did not act reasonably and fairly in that he did not afford to them the opportunities that fairness demandzd in the circumstances.

On this matter Mr.. North’s first submission was that

the principles of procedural fairness did not apply. In the

alternative he adopted	the submissions advanced by Mr. Moore
that the requirements	of procedural fairness had been
complied with in all the circumstances.	It is not necessary

to determine whether Mr. North’s first submlssion 1s correct

because, assuming, without deciding, that the principles applied, I accept Mr. Moore’s submission, adopted by Mr.

e 2 5

.

North, that on all the evidence it has not been shown that the returning officer failed to comply with any of those principles. I adopt, wlth respect, the following passage from the reasons for judgment of Brennan J., in Kioa & Others v West & Another (1985) 159 CLR 550 at 628-9:-

"Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not

fully observed. As Lord Diplock observed In Bushell v Environment Secretary 119811 AC, at p. 97:-

"To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent

to operate effectively in the interests

of their clients would not be fair"."

The validity of the rules (S. 140(l)(c))

During the proceedings the applicants also advanced a

contention that, at the material time, the rules of the Unlon

imposed upon its members "conditions, obligatlons or restrictions which, having regard to the objects of the Act, and in particular objec't 2(f), and the purposes of the

registration of organisations under the Act, were oppressive,

unreasonable and unjust, contrary to S. 140(l)(c) of the

Act. "

It should be said immediately, in fairness to their counsel, that the question whether the court should consider

. .	.4
Y	26.

c

that question in the inquiry was initially raised by me with Mr. North - because he was representing the Union whlch had a

particular interest in dealing with any	issue as to the
validity of its rules.	In the result, considerable time was

spent on that aspect, not only in submissions but also by way of evidence and cross-examination, Including evidence as to the state of the records of the Unlon.

The applicants' submission was based upon the
requirement, under the rules, that a member, in order to be

eligible to be a candidate o r a nominator, must, at the time

of nomlnation, have paid all his contributions for the entlre

period of his membership; reliance was placed upon the state of the records of the Union at the material tlme.

As to thls contention I have considered carefully the

large number of matters relied upon by Mr. Tracey, in his final address, together with hls numerous references to documentary evidence and to the transcript of oral evldence. There is much force in his submisslon and it is a matter to which I have given a great deal of thought, both during the

hearing and since the decision was reserved.

Mr. Tracey submitted that there are "proven

shortcomings" in the Victorian Branch's record	system, as
well as some unsatisfactory features in	respect of two
districts in Queensland.	As against those matters, there 1 s

.	C	2 1 .
>

.

some force in Mr. North's submission that "almost all the evidence as to the reliability of record keeping was directed to the records of only one member [Mr. Baker]".

There is also some force in M r . North's submission

that a member, who wishes to be a candidate, or to nominate a

candidate, would have a period of time In whlch to check the

branch records as to his financiality. On the other hand, one should not underestimate the difficulties involved in checking with branches in other States. AS to that aspect,

Mr. North submitted that, in considering whether the rules

contravened S. 140(l)(c) of the Act, it was proper to balance

the burden on the members (of being obliged to inqulre as to

their financiality) against he benefit to the members of not

being sued for arrears of contributions in respect of periods of unemployment or periods of employment outside the industry.

1

In the result I have come to the conclusion, although

not without considerable. doubt, that the applicants have failed to make out the contentlon that the relevant rules

contravened S. 140(l)(c) of the Act.

For these reasons I have determined that none of the irregularities, alleged by the applicants, occurred in or In connexion with the election and I have decided to terminate the inquiry into it.

a . -

28.

In his final address, Mr. Tracey, on behalf of the

applicants, submitted that if, contrary to his submlssion, the court did not find that any irregularity alleged by the

applicants had occurred, it should certify that each

applicant had acted reasonably in applying for the Inquiry.

Having regard to the difflcult questions of both fact and law

put before the court, I have no hesitation in so certifying
under S. 168(2) of the Act.

I certify that this and the precedlng twenty-seven pages

are a true copy of the Reasons

for Judgment herein of his

Honour Mr. Justice Keely

delivered on 19 July, 1988.

Dates of Hearing	2 , 17 December, 1986, 2 2
October, 1987, 7, 8, 9 , 10, 28 March, 16, 17, 18, 19,
2 0 , 23, 30 L 31 May 1988
Sollcitors for applicants	A. J. Macken L C o .
counsel for applicants	MT. R. Tracey
Solicitors for respondents	Ryan Carlisle Needham L
Thomas
Counsel for respondents	MC. A. North
Solicitors for returning

officer and Australian	Australian Government
Electoral Commission	Solicitor

counsel for returning

officer and Australian

Electoral Commission MT. G. ~ o o r e

Date Judgment Delivered 19 July, 1988