The Conciliation and Arbitration Act 1904 An Application by O'Brien, Philip Anthony for an Inquiry into an Election in the Administrative and Clerical Officers Association, Commonwealth Public Service A Reference... - [1979] FCA 144

IN THE FEDERAL COURT OF AUSTRALIA

Industrial Divlsion

No. 37 of 1979

In the matter of -

THE CONCILIATION AND ARBITRATION

ACT 1904

And in the matter of -

A REFERZNCE OF SUCH APPLICATm

BY THE IYDUSTRIAL REGISTRABX

THE FEDERAL COURT OF AUSTRALIA

Coram:

SHEPPARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 DECEMBER 1979, AT 10.15 A.M.

(Continued from 10/12/79)

HIS

HONOUR.

Thls

is t h e de te rmlna t lon

a p re l lmlnary

p o l n t r a l s e d by

counsel

f o r one Paul Munro

t o t h e

j u r l s d l c t l o n

t h e

c o u r t

t o proceed

wl th

t h l s

l nqu l ry .

The

a p p l l c a t l o n

l t s e l f

i s one

made

pursuant

t o s e c t l o n

159 of

t h e

C o n c l l l a t l o n

and

A r b l t r a t l o n A c t 1904.

The

a p p l l c a n t ,

P h l l l p Anthony

OIBr len , c la lms

t h a t t h e r e has

been

l r r e g u l a r l t y

I n o r i n connection

wi th

e l e c t l o n

f o r t h e o f f l c e

f e d e r a l

s e c r e t a r y of

t h e Adminls t ra t lve

and

C l e r l c a l

O f f l c e r s

Assoc l a t l on ,

Commonwealth

P u b l l c

Serv lce .

e l e c t l o n

f o r t h a t o f f l c e was

h e l d

pursuant t o s e c t l o n 170 of

t h e a c t on

2 3 March

1979.

M r Munro

was

t h e

s u c c e s s f u l

candidate.

Sec t lon 170 of

t h e a c t p rov ldes

f o r t h e

conduct ,

a t t h e

r e q u e s t

o rgan lza t lon

o r a

branch

t h e r e o f ,

e l e c t l o n by

t h e I n d u s t r l a l

R e g l s t r…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: The Conciliation and Arbitration Act 1904 An Application by O'Brien, Philip Anthony for an Inquiry into an Election in the Administrative and Clerical Officers Association, Commonwealth Public Service A Reference... [1979] FCA 144
Case: [1979] FCA 144
Decision Date: 11 Dec 1979

CaseChat Overview and Summary

The case involves an application by Philip Anthony O'Brien under section 159 of the Conciliation and Arbitration Act 1904, seeking an inquiry into an election held on 23 March 1979 for the position of federal secretary of the Administrative and Clerical Officers Association, Commonwealth Public Service. The election was conducted by an Australian electoral officer and resulted in Paul Munro being elected. O'Brien alleges that the New South Wales branch of the organisation unlawfully provided assistance to Munro in support of his election campaign. The central legal issue is whether the Federal Court has jurisdiction to proceed with the inquiry, given that the application was not accompanied by a statutory declaration as required by section 159(2)(d) of the Act. The court held that the requirement of a statutory declaration is mandatory and not merely directory, and since O'Brien failed to comply with this requirement, the application was deemed incompetent. Consequently, the court dismissed the application for want of jurisdiction. Additionally, the court declined to certify that O'Brien acted reasonably in instituting the proceedings, and it decided not to award costs to Munro as it was not satisfied that the proceedings were instituted without reasonable cause.

Orders