Wall, in the matter of an Inquiry Relating to an Election for an office in the; Ansett Pilots Association (No 2) - [2000] FCA 1674

FEDERAL COURT OF AUSTRALIA
Wall, in the matter of an Inquiry Relating to an Election for an office in the
Ansett Pilots Association (No 2) [2000] FCA 1674
INDUSTRIAL RELATIONS – election inquiry resolution purporting to dismiss committee member – resolution of no effect – whether casual vacancy existed on committee.
INDUSTRIAL RELATIONS – election inquiry – applicant nominated himself for position of office bearer – nomination not in form required by rules of relevant association – nomination rejected by returning officer – rejection irregular – effect of irregularity on subsequent election of office bearers.
INDUSTRIAL RELATIONS – election inquiry – where election found to be void – who is to fill position of office bearers.
IN THE MATTER OF PETER WALL and ANSETT PILOTS ASSOCIATION
AND IN THE MATTER OF AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION (No 2)
V 727 of 2000
GOLDBERG J
21 NOVEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

No V 727 of 2000

IN THE MATTER OF:

PETER WALL
Applicant

and

ANSETT PILOTS ASSOCIATION
Respondent

AND IN THE MATTER OF:

AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION

JUDGE:

GOLDBERG J

DATE OF ORDER:

21 NOVEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.The election for the offices of two Vice Presidents of the Ansett Pilots Association conducted by a returning officer of the Australian Electoral Commission and declared on 7 September 2000 is declared to be void.

THE COURT ORDERS THAT:
1.The Industrial Registrar is directed to make arrangements for a new election for the offices of two Vice Presidents of the Ansett Pilots Association.

2.The Rules of the Ansett Pilots Association be modified to the extent necessary to enable:

(a)Nominations to be called by the returning officer for the offices of two Vice Presidents of the Ansett Pilots Association as soon as practicable after the making of this order;

(b)Nominations to be called from those persons who are members of the Committee of Management of the Ansett Pilots Association at the date of the making of this order and who have not subsequently died, resigned or otherwise vacated that office;

(c)Nominations to remain open for a period of not less than fourteen days;

(d)The term of the offices of two Vice Presidents of the Ansett Pilots Association, to be filled by the new election, to expire on the same date as the terms of office of the other office bearers of the Ansett Pilots Association who were validly elected on 7 September 2000.

3.The Ansett Pilots Association provide the applicant within seven days of the making of this order, with the minutes of all meetings of the Committee of Management of the Ansett Pilots Association held since 15 August 2000.

4.Liberty be reserved to the applicant to apply, on 48 hours notice within twenty‑one days of being provided with such minutes, to the parties notified of the inquiry (other than the Australian Electoral Commission) for any declaration to be sought by the applicant pursuant to s 226 of the Workplace Relations Act 1996 (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

No V 727 of 2000

IN THE MATTER OF:

PETER WALL
Applicant

and

ANSETT PILOTS ASSOCIATION
Respondent

AND IN THE MATTER OF:

AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION

JUDGE:

GOLDBERG J

DATE OF ORDER:

21 NOVEMBER 2000

WHERE MADE:

MELBOURNE

REASONS FOR JUDGMENT
Introduction

In this proceeding the applicant has filed an application for an inquiry into the election of the office bearers of the Ansett Pilots Association (“the Association”), the results of which were declared on 7 September 2000.
On 2 October 2000 I ordered, pursuant to O 29 r2 of the Federal Court Rules, that the following question be set down for hearing and decided separately from any other question in the proceeding before the trial of the proceeding:
“Having regard to any relevant provisions of the Workplace Relations Act 1996 (Cth) and to the Rules of the Ansett Pilots Association (“the Association”), and assuming for the purposes only of the determination of this question, the validity of a resolution of the Annual General Meeting of the Association held on 15 August 2000 which purported to dismiss the applicant from office as a member of the Committee of Management of the Association, did that resolution:
(a)      prevent, or
(b)      exclude, or
(c)       have any other effect upon
the applicant taking up office as an elected member of the Committee of Management of the Association at the conclusion of the Annual General Meeting of the Association held on 15 August 2000 pursuant to the applicant’s election to that office in a ballot conducted by the Australian Electoral Commission declared on 7 August 2000 and pursuant to the provisions of Rule 39(s)(i) of the Rules of the Association.”
On 3 November 2000 I published my reasons for ordering that the question be answered “No”. I incorporate those reasons in these reasons for judgment.
The parties have accepted, as a result of my answer to the separate question, that the election of Mr Nathan Miller and Mr Philip Yates to the two offices of Vice President of the Association on 7 September 2000 is void and that a new election should be held. That result follows from my reasons for judgment of 3 November 2000 in which I found that the applicant’s nomination for the office of Vice President of the Association was not a nullity and that the resolution of the Annual General Meeting of the Association on 15 August 2000 did not have any effect upon the office to which the applicant had been elected on 7 August 2000, or upon the applicant taking up his office as an elected member of the Committee of Management. I also found that it was not open to the Annual General Meeting on 15 August 2000 to dismiss the applicant from the office of a member of the Committee of Management of the Association to which he had been elected on 7 August 2000, but which office he did not assume until the conclusion of that Annual General Meeting.
For the purposes of determining the separate question it was assumed that the resolution of the Annual General Meeting, held on 15 December 2000, was valid. The applicant challenged the validity of the resolution independently of the issues raised in the course of answering the separate question. However, it has become unnecessary to consider that challenge as a result of the answer to the separate question. Whether the resolution was invalid, independently of the issues raised in the course of answering the separate question, need not be determined because the resolution was of no effect.
It follows from my earlier reasons that the rejection by the returning officer of the applicant’s nomination for the office of Vice President on 7 September 2000, on the ground that the applicant was no longer a member of the Committee of Management of the Association, was an irregularity in relation to the election. This is because the applicant was, and continued to be, a member of the Committee of Management of the Association on and from the conclusion of the Annual General Meeting of the Association on 15 August 2000. Such irregularity affected the result of the election for the two Vice‑Presidents.
In such circumstances no casual vacancy occurred in the office of member of the Committee of Management of the Association held by the applicant on, and subsequent to, the conclusion at the Annual General Meeting on 15 August 2000. It was therefore not open to the returning officer to accept Mr Brice Halls, or any other person, as a member of the Committee of Management of the Association, to fill a casual vacancy in the office of the member of the Committee of Management on, or subsequent to, the conclusion of the Annual General Meeting of the Association on 15 August 2000.
There was a further irregularity in relation to the election associated with the lodging by the applicant of his nomination for the office of Vice President with the returning officer on 4 September 2000. Rule 40(g) of the Association’s Rules provides:
“Each nomination so received shall be received by the Returning Officer conducting the election and if he/she finds a nomination to be defective he/she shall, before rejecting the nomination, notify the person concerned of the defect and, where it is practicable to do so, give him/her the opportunity of remedying the defect, within the period of not less than 7 days after his/her being so notified;”
The returning officer rejected the applicant’s nomination for the office of Vice President without first notifying the applicant of the defect in the nomination and without giving the applicant the opportunity of remedying such defect within the period of not less than seven days after he had been so notified. Such irregularity affected the result of the election for the two Vice Presidents.
The consequence is that there should be an order declaring the election of the two Vice Presidents of the Association on 7 September 2000 void. The Industrial Registrar should be directed to make arrangements for a new election for the offices of two Vice Presidents of the Association to be held and the Rules of the Association should be modified to the extent necessary to enable:
·Nominations to be called by the returning officer for the offices of two Vice Presidents of the Association as soon as practicable;
·Nominations to be called from those persons who are members of the Committee of Management of the Association at the date of the making of this order and who have not subsequently died, resigned or otherwise vacated that office;
·Nominations to remain open for a period of not less than fourteen days;
·The term of the offices of two Vice Presidents which are to be filled by the new election to expire on the same date as the terms of office of the other office bearers who were elected on 7 September 2000.
The issue arises as to who should undertake the functions of Vice President, pending the result and declaration of the new election. Under Rule 27 the Vice Presidents “function in cooperation with the President” and, in the absence of the President, a Vice President, delegated by the President, exercises the powers and carries out the duties of the President. Rule 42(c) of the Association’s Rules provides:
“Committee Members and Office Bearers shall hold office until their successors are elected in elections held in accordance with these Rules unless they earlier transfer from their pilot base, die, resign or are dismissed from office.”
The applicant submitted that this Rule had the result that the two persons who were Vice Presidents prior to the closure of the Annual General Meeting on 15 August 2000 continue to hold that office until the new election is held and its results declared.
The Association submitted that it was appropriate that Messrs Miller and Yates who were declared elected on 7 September 2000 continue to occupy the offices of Vice President until the declaration of a new election because one of the previous Vice Presidents, Mr Ryan, had been elected President. However, Mr Miller was a Vice President prior to the Annual General Meeting and he will be able to act in the role of President in accordance with Rule 27 of the Association’s Rules in the absence of the President.
Having regard to the circumstances under which the applicant was excluded from the ballot for Vice President I consider it more appropriate that, to the extent possible, such persons as were Vice Presidents prior to the Annual General Meeting, and were validly elected to that position, continue in that office pending the new election. That is the effect and consequence of Rule 42(c) and in my view the Rule should be given effect wherever possible. It therefore follows that Mr Miller will fulfil the role of Vice President, and there will be a vacancy in the office of the other Vice President, until the declaration of the results of the new election.
The parties have agreed that it is appropriate that the Association provide the applicant within seven days with the minutes of all meetings of the Committee of Management of the Association held since 15 August 2000. They have also agreed that, in order for there to be finality to the issues raised as a result of the election on 7 September 2000, liberty be reserved to the applicant to apply within twenty‑one days of being provided with such minutes, on 48 hours notice to the parties notified of the inquiry, other than the Australian Electoral Commission, for any declaration to be sought by the applicant pursuant to s 226 of the Workplace Relations Act 1996 (Cth). I will so order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.
Associate:
Dated: 21 November 2000

Counsel for the Applicant: A J Macken

Solicitor for the Applicant: A J Macken & Co

Counsel for the Respondent: H Borenstein

Solicitor for the Respondent: Jerome Willems

Date of Hearing: 13 November 2000

Date of Judgment: 21 November 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	No V 727 of 2000

IN THE MATTER OF:	PETER WALL Applicant and
ANSETT PILOTS ASSOCIATION Respondent
AND IN THE MATTER OF:
AN APPLICATION BY PETER WALL FOR AN INQUIRY INTO AN ELECTION FOR AN OFFICE IN THE ANSETT PILOTS ASSOCIATION
JUDGE:		GOLDBERG J
DATE OF ORDER:		21 NOVEMBER 2000
WHERE MADE:		MELBOURNE

Counsel for the Applicant:	A J Macken
Solicitor for the Applicant:	A J Macken & Co
Counsel for the Respondent:	H Borenstein
Solicitor for the Respondent:	Jerome Willems
Date of Hearing:	13 November 2000
Date of Judgment:	21 November 2000