CATCHWORDS { Electoral inquiry - referred by Industrial Registrar - alleged irregularity in qualification to stand for office - cured by order pursuant to Sec. 140 Conciliation and Arbitration Act - election to continue - Court's power as to costs. W.A. No. 2 of 1979 Application by GERALD BERNARD CAHILL for an Inquiry into an Election in the OPERATIVE PLASTERERS' AND PLASTER WORKERS' "FEDERATION OF AUSTRALIA AND IN THE MATTER OF a Reference of such Application by the Industrial Registrar to the Federal Court of Australia. Coram: St.John J. Sydney - 30 October, 1979 pene e oe, wee wee ee — ren eee ro aaa pm Aen ete nee em sen! I IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY INDUSTRIAL DIVISION DATE OF ORDER =: 1. ORDER THE COURT ORDERS THAT : W.A. No. 2 of 1979 wee rw IN THE MATTER OF the Conciliation & Arbitration Act 1904 AND IN THE MATTER OF an Application by GERALD BERNARD CAHILL for an Inquiry into an election in the OPERATIVE PLASTERERS' AND PLASTER WORKERS' FEDERATION OF AUSTRALIA AND _IN THE MATTER OF a Reference of such Application by the Industrial Registrar to the Federal Court of Australia. JUDGE MAKING ORDER : St.John J. 30 October 1979 WHERE MADE : Sydney The election proceed with Frederick James Hagger as a candidate for election to office of Branch Secretary/ Treasurer of the Operative Plasterers' and Plaster Workers' Federation of Australia, Western Australian Branch. No order as to costs. aA ee omar IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY » INDUSTRIAL DIVISION ) ) ) ) ) W.A. No.2 of 1979 IN THE MATTER OF the Conciliation & Arbitration Act 1904 AND IN THE MATTER OF an Application by GERALD BERNARD CAHILL for an Inquiry into an Election in the OPERATIVE PLASTERERS' AND PLASTER WORKERS' FEDERATION OF AUSTRALIA AND IN THE MATTER OF a Reference of such Application by the Industrial Registrar to the Federal Court of Australia. 30 October, 1979 ST.JOHN J By reference dated 16 October, 1979, the Industrial Registrar referred to this court an application under Section 159 of the Conciliation and Arbitration Act 1904 (The Act) by Gerald - Bernard Cahill alleging irregularities in an election currently being held for offices in the Operative Plasterers' and Plaster Workers' Federation of Australia (The Plasterers' Union). One alleged irregularity was a contravention of Rule 18A, the relevant parts of which are as follows:- 18a 1. [ir en ee All Branch Officer bearers of the New South Wales, Queensland, South Australian, Western Australian and Tasmanian Branches shall be elected in the following manner and in the terms of this rule. Any member of the Branch who is financial as provided for in sub-clause (14) of this Rule at the time of nominations and has financial membership of the Branch in accordance with the scale set out at the end of this sub-rule may nominate for such positions according to this scale. Provided that no member who has reached the age of sixty-five (65) years may nominate for a full time position. The scale of financial membership of the Branch necessary for members to be qualified to nominate for the following positions is as under - Branch President } ) Branch Secretary/Treasurer ) Three years ) financial Branch Delegate to National Conference ) membership Branch Vice President ) ) Members of Committee of Management ) One year .) financial Branch Organizer ) membership State Councillor } Financial - ) membership The term of office for the above positions shall be four years and such terms shall commence from the declaration of the ballot. A Returning Officer shall be appointed by the Branch COM and such Returning Officer shall not be the holder of any office in, and shall not be an employee, of the Federation or of any Branch, Sub-Branch or section of the Federation. The Returning Officer shall have the conduct of all elections of officers of the Branch provided for in these rules. Returning Officers may at any time in writing resign their positions and shall resign if they desire to become a candidate at any election held under the Rules of the Federation. Any casual vacancy of the Branch Returning Officer shall be filled by the Branch COM. The Returning Officer shall be responsible for the calling of nominations for the election of Branch Officers and shall have power in accordance with these rules to accept or reject such nominations provided that if he rejects any nomination the following provisions shall have effect - (a) the Returning Officer shall notify the person concerned of the defect in the nomination; and (b) the Returning Officer shall where it is practicable to do so give the persons concerned the opportunity if possible, of remedying the defect within not less than seven days notification: and {c) if the person concerned within such period is able to and does in fact remedy the defect in the . - . .f4 ee ee re eee ee ne pe nomination in accordance with these rules the Returning Officer shall thereupon accept such nomination, Where a ballot becomes necessary the Returning Officer shall have complete charge of that ballot and on completion of the counting of ballot papers shail as soon as it is possible to do so declare the result of the ballot, inform the Branch Secretary and the COM of the result and advise the candidates in such election by post, telegram, telephone, telex or verbally. Nominations for the above positions shall be called by the Returning Officer by notification in the Federation journal or in one daily newspaper circulating in the capital city and in each Sub-Branch or district area on or before the last day of August of every fourth year commencing as on and from the last day of August, 1979. All Sub-Branches shall be notified by circular of the opening and closing date of nominations. Provided that such advertisement shall clearly indicate that the National Executive members and full time National Officers are elected by and from delegates to National Conference and not otherwise. Any member desiring to nominate for the above positions shall apply either personally or in writing to the Returning Officer for a nomination form. Such forms shall be signed by the candidate and by two financial members . - - f5 and forwarded by registered post to the Branch Returning Officer or handed personally at the Branch Office of the Federation and a receipt thereupon obtained. Nominations shall be closed at 4 p.m. on the last Friday of September, 1979 and each four years thereafter following that date. Nominations must be received by the Returning Officer by that time on that date to be eligible. Candidates may include with their nomination form a statement not exceeding 200 words containing only the candidate's personal history and only the candidate's policy statement. The Returning Officer shall examine all nominations to ensure that they are in order and if any nominations are found to be defective the Returning Officer, before rejecting the nomination, shall notify the person concerned of the @efect and where practicable to do so give him the opportunity of remedying the defect within a period of not less than seven days after being so notified. The applicant complains that one Frederick James Hagger who was nominated for the office of Secretary/Treasurer was Gisqualified from standing for that office because his membership of the Plasterers' Union was of two years and three months duration and therefore, he was ineligible to stand for that office. There was no dispute as to the duration of the membership but in separate proceedings heard with the reference was an application by the said Mr Hagger for an order pursuant . - - -/6 ne 8 aeterre: Neral ett rat ee tn pee papier tints teeny. to Section 140 declaring void Rule 18A sub-rule 2 of the Rules of the Plasterers' Union in so far as it prescribed a qualification of three years financial membership before nomination to Secretary/Treasurer of the Plasterers' Union. In a separate judgment I have dealt with this application and have declared void Rule 18A sub-rule 2 in so far as it excludes as candidates for office persons who have previously acted in the office for which they have been nominated. In these circumstances I do not see why the election should not proceed because of that irregularity which has been remedied by my judgment in Frederick James Hagger v. The Operative Plasterers' and Plaster Workers' Federation of Australia and David Charles Parker No.41 of 1979 in the New South Wales Registry. The applicant also relied on a further alleged irregularity namely 'that Mr Hagger's nomination for the office of Secretary/ Treasurer was not lodged in time. The allegation was that the nomination must have been late because Mr Cahill alleged that he inspected the list of nomination forms at the time nominations would have been closed and Mr Hagger's nomination form was not included in the forms he inspected. Mr Cahill's inspection could well have had that result but he may well have exam2ned less than all the forms. I have heard evidence from the personal secretary to the returning officer, June Gloria Pow, who swore that Mr Hagger delivered to her his nomination on the morning of the day on which nominations closed at 4 p.m. I accept her evidence and see absolutely no reason why she should be disbelieved. The returning officer had instructed her to receive nominations. I therefore find there is no irregularity based upon the time Mr Hagger's eed ep ene me wees roa or nomination was received. In the course of hearing it appeared undisputed that the returning officer, Mr David Parker, was away from Perth in the North West of Western Australia during some days during which nominations could be received. He did not return until after the Friday on which nominations closed. It appears to "me that, on a proper construction of Rule 18A, that the presence of the returning officer to receive nominations is implicit in the Rule. Firstly, the use of the words "handed personally" in Rule 18A sub-rule 4, and sub-rule 7 which evinces an intention that a nominee should have the opportunity of making good defective nominations when found to be so by the returning officer. I therefore find that there has been an irregularity in that respect but no complaint is made upon that basis and apparently no candidate has been disadvantaged. I think the election should proceed despite that irregularity. I therefore order that the election proceed with Frederick James Hagger as a candidate for election to office of Branch Secretary/Treasurer of the organization, West Australian Branch. On the question of costs of the inquiry I was referred to Section 197A of the Act which restricts the power of the Court to order costs in "proceedings". Specific power in relation to costs of inquiries initiated under Section 159 of the Act is contained in Section 168 of the Act. In my view such an inquiry is not a "proceeding" within the meaning of Section 197A and I am re-enforced in this view because Section 168 was - . -/8 weet re NET enacted in 1949 and left untouched by the amendments in 1973 which included Section 197A. Pursuant to Section 168 sub- section 1 I authorize payment by the Commonwealth to the applicant Gerald Bernard Cahill of the whole of his costs and expenses. In my view Mr Cahill had reasonable grounds for making his application and until Rule 18A was declared void, in the judgment above referred to, his success in his application was assured. By Section 168 (5) the Court's power to make an order as to costs and expenses in connection with an inquiry is preserved but in the circumstances I do not think it reasonable for me to order the applicant to pay the costs of other persons represented at the inquiry. I therefore make no order as to costs. I certify thet this and the / preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr. Justice S.Jauy,- . Associate LR-So (hada fen eect ap anemtnnean nn ns Na phen tle intetiten names teatatnant bans EE SAA ete Hy ep ag pS ttt Ante Wearing satin G ESET TENE Perea Drei OY