vu We Copyright in the Commonwealth Government IN THE FEDERAL COURT OF AUSTRALIA Industrial Division No. 37 of 1979 In the matter of - THE CONCILIATION AND ARBITRATION ACT 1904 And in the matter of - AN_ APPLICATION BY PHILIP ANTHONY O'BRIEN FOR AN INQUIRY INTO AN ELECTION IN THE ADMINISTRATIVE AND CLERICAL OFFICERS ASSOCIATION, . COMMONWEALTH PUBLIC SERVICE And in the matter of - A_REFERENCE OF SUCH APPLICATION BY THE INDUSTRIAL REGISTRAR TO 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) PV/VB/la 28 11/12/79 O'Brien HIS HONOUR. This 1s the determination of a preliminary point raised by counsel for one Paul Munro to the jurisdiction of the court to proceed with this inguiry. The application itself is one made pursuant to section 159 of the Conciliation and Arbitration Act 1904. The applicant, Philip Anthony O'Brien, claims that there has been an irregularity in or 1n connection with an election for the office of federal secretary of the Administrative and Clerical Officers Association, Commonwealth Public Service. An election for that office was held pursuant to section 170 of the act on 23 March 1979. Mr Munro was the successful candidate. Section 170 of the act provides for the conduct, at the request of an organization or a ranch thereof, of an election by the Industrial Registrar or a deputy industrial registrar or another officer employed in a registry. Alternatively the Industrial Registrar may make arrangements with the chief Australian Electoral Officer for the conduct of the election by an Australian electoral officer or one of the other classes of person referred to in section 170(5). The election was conducted by an Australian electoral officer. The claim made by the applicant is not based upon any complaint as to the manner in which the ballot itself was conducted but is founded upon allegations that the New South Wales branch of the organization unlawfully provided assistance to Mr Munro in support of his campaign to be elected. Section 159(3) of the act provides: Except as provided by sub-section (4), this section does not apply to or in relation to an election conducted under section 165A, an election in or in connexion with which a step 1s taken under that section or an election conducted under section 170. Sub-section (4) so far as 1t 1S material and sub- section (5) are as follows: An application may be made under this section in respect of an election conducted under section one hundred and seventy of this Act 1f the application 1s made within the time that 1s applicable under the next succeeding sub-section and, where such an application 1S made - (a) the Industrial Registrar shall, not- withstanding the next succeeding section, forthwith refer the application to the Court and thereupon an inquiry shall be deemed to have been instituted; PV/H/2a 29 11/12/73 O'Brien PV/H/3a O'Brien (b) the Court 1S not required to proceed with an inquiry unless it is satisfied that there 1s reasonable ground for the application; Sub-section (5): An application in accordance with the last preceding sub-section may be made - (a) before the completion of the election; (b) within the period of six months commencing on the date of completion of the election; or (c) after the expiration of that period of six months but before the expiration of the period of office to which the election related, but the Court shall not proceed with the hearing of an inquiry upon an application made in accordance with paragraph (c) of this sub-section unless the Court is satisfied that the person making the application did not have, within the period of six months referred to in paragraph (b) of this sub-section, and could not, by reasonable diligence have acquired within that period, knowledge of, and the means of establishing, the Matters that are alleged to constitute an irregularity. Sub-section (2) provides, so far as 1t 1s relevant: An application under this section shall - {d) be accompanied by a statutory declaration by the applicant declaring that the facts stated in the application are, to the best of the applicant's knowledge and belief, true. The undisputed facts are that the application 1tsel£ was lodged with the Industrial Registrar on 21 September 1979, that 1s two days before the expiry of the period of six months provided for in section 159(5)(b). It was not accompanied by a statutory declaration by Mr O'Brien declaring that the facts stated in 1t were to the best of his knowledge and belief true. Such a declaration was however lodged on 27 September 1979, more than s1x months after the holding of the election. It 1s the submission of counsel for Mr Munro that the court has no jurisdiction to entertain the application because Mr O'Brien has failed to comply with the provisions of section 159(2)(d) which it 30 11/12/79 PV/H/4a O'Brien en EE + eee 1s claimed are mandatory. It is the submission of counsel for Mr O'Brien that the provisions of section 159(2) have no application because of the provisions of section 159(3). In my opinion the submission of counsel for Mr Munro should be upheld. The application assuming it to be one excepted from the operation of the section by sub-section (3) 1S an applica- tion "under this section". Those are the words of sub-section (4) which apply by reason of what 1s provided for in sub-section (3). The application being, on the hypothesis upon which the matter has been argued, one made pursuant to the section, 1tsS provisions prescribe the manner and form in which it must be made. It follows that the provisions of sub-section (2) must be observed, including those of paragraph (4d) earlier set out. It 1S common ground that they were not observed. There was no submission that its provisions were not mandatory, nor could that submission have been successfully made in the light of the decision of the High Court inthe King v. Commonwealth Court of Conciliation and Arbitration ex parte Federated Clerks Union of Australia, 81 CLR 229. I refer particularly to what was sald at page 243. I also refer to the decision of the High Court in the King v. Commonwealth Court of Conciliation and Arbitration ex parte Grant, 81 CLR 27, particularly at pages 49 to 51. In the development of his argument counsel for Mr O'Brien submitted that there was a reason why in the case of an election conducted under the provisions of section 170 the legislature would not have considered it necessary to require the verification of an application by a statutory declaration. That was said to be so because sub-section (4) required the Industrial Registrar to refer the application to the Court. In contrast the provisions of section 160 which applied in the case of elections conducted by an organization itself - that 1S a case to which section 170 did not apply - vested the Industrial Registrar with jurisdiction to decide whether or not to grant the application and, in the event of it being granted, to refer the matter to the court. In a case such as this there was no discretion: the Registrar was bound to refer it. There was thus no point in requiring the application to be verified. Once the matter was referred to the Court the provisions of regulation 53 would apply. Relevantly 1t would require the application to be 31 11/12/79 eo ee ee en 9 PV/H/5a O'Brien supported by an affidavit of affirmation. No such affidavit has been filed but regulation 155 enabled the court to exempt the applicant from that requirement, perhaps conditionally upon the applicant now filing the requisite affidavit. I have taken the matters so relied upon by counsel for the applicant into account. The first thing to be said is that they do not in my opinion overcome the provisions of the various sub-sections of section 159 to which I have referred. Their meaning 18 in my Opinion clear. Secondly, the reason why section 159(4) provices for the mandatory referral by the Registrar to the court of an application for an inquiry into an election conducted pursuant to section 170 is that such an election may be held by the Registrar himself or by a person associated with him. It seems that the legis- lature thought that it was undesirable that an application which involved an election conducted by the Registrar or one of the other classes of persons associated with him mentioned in the section should be passed upon by the Registrar himself. If he refused the application it might be thought that he would be exposed to charges, unwarranted though they might be, of bias. [It would be a case perhaps of justice not appearing to be done. It mattered not therefore whether the matter was to be dealt with in the first instance by the Registrar under section 160 or was required to be referred to the court pursuant to section 159(4). Verification was required and it had to be by way of statutory declaration which accompanied the application. Until such a declaration was lodged the application was not properly before the Registrar. The fact that regulation 53 provides for an affidavit of affirmation is of no relevance. The legislature has made clear that all applica-— tions under section 159 are to be accompanied by a statutory declaration verifying the application. It follows that the preliminary objection taken by counsel for Mr Munro should be upheld. To some this may seem a rather technical approach but limztation provisions of the kind here provided for are common in many Acts of Parliament. There 1s a public interest in limiting the time within which disputes may be brought before courts. That must be particularly so in the case of an election to an office. A period of six months as allowed and the provisions of section 159(5)(c) are such as to allow further time 1£ the circumstances there provided for do exist. Plainly, they do not 32 11/12/79 an this case. Counsel for the applicant expressly said that his client was not in a position to lead evidence to show that he was within the terms of that provision. What 1s the order you ask for, Mr Madgwick? MR MADGWICK: We ask for an order that the court declined to proceed further with the matter under - I was thinking of 5(c) really, your Honour, because we submitted that this was an application under 5(c) as to which the court could not proceed. Also we ask your Honour to expressly find that your Honour 1s not satisfied that there is reasonable ground for the application in that there is not a valid application - - - HIS HONOUR: Where are you reading from? MR MADGWICK: 4({b), your Honour. HIS HONOUR: What 18 wrong with me simply dismissing the application? MR MADGWICK: I think if your Honour were to dismiss the proceedings, that would technically be better. HIS HONOUR: That 1S what 1t amounts to. MR MADGWICK: Yes. HIS HONOUR: Because although there may be no jurisdiction, the matter is expressly referred to the court. In other words, the court has to look at it. MR MADGWICK: It would be appropriate 1f£ your Honour dismissed the application, because there is an application. HIS HONOUR: That 1s what I had 1n mind doing. What do you say, Mr Lamprati? MR LAMPRATI: As your Honour says, 1t 1s a difficult matter. Perhaps the appropriate order in disposing of the application might be merely to dismiss 1t. In the circumstances I would not oppose that. There 1s a further matter, namely the question of section 168. (Continued on page 34) PV/H/6a 33 11/12/79 O'Brien MR MADGWICK: There 1s a matter that arises that I would like to raise before your Honour deals with the applic- ation under section 168 by the applicant. HIS HONOUR: What 1S that? MR MADGWICK: That has to do with your Honour giving a certificate in effect that the applicant acted reas- onably which may assist in the legal aid application, and I would want to seek costs. HIS HONOUR: Let me just understand this. You both agree that the appropriate order for me to make 1s that the application be dismissed? MR MADGWICK: Yes. MR LAMPRATI: Yes. HIS HONOUR: Then it becomes a question of costs? MR MADGWICK: Yes. HIS HONOUR: I will make the order that the application be dismissed. You asked for costs against - - - MR MADGWICK: I asked for costs against the applicant. HIS HONOUR: What 1S the normal rule here in relation to costs? Do they normally follow - - - MR MADGWICK: The position 1s not straightforward. Your Honour has a power under section 168(5) to award costs. It says: Nothing in this section shall limit the power of the court ..... - + » - adn or in connection with an inquiry - The foregoing part of section 168 1s concerned with steps that are involved in the Attorney General indemnifying parties. Your Honour also would have power, in my submission, if for any reason section 168(5) 1s not applicable, contrary to my submission, under section 116 of the act which says: Subject to section 197A under the regulations. ....... . . dismissed for want of jurisdiction. There 1s nothing of relevance, I think, in the regulations but section 197A would govern both section 168(5) and also section 116, and it says: So far as material a party to a proceeding se 2 ew ew we ee eh 6cINStIituted the proc-~ eedings vexatiously or without reasonable cause, NB/VMD/1la 34 MR LAMPRATI 11/12/79 O'Brien _ ee ee oe ee Se eiitemmimmstieceadnentanmaneneenemmeenata' It 1S our submission that the proceeding in . the circumstances - the application - was instit- uted without reasonable cause because 1t was instituted 1n fact under paragraph (c) of section 159(5), and my learned friend very properly told the court that there was no suggestion that reas- onable diligence could not have got the matter right. HIS HONOUR: I do not think he would really agree with you. He would say he brought it within the six months and he has lost an argument about it. MR MADGWICK: If he has lost an argument the effect still is that in the result he was outside the limitation period, and this was not a limitation period which it was within the power of the court or of any other party, being in the position of a defendant, to walve and, in our submission, there could be no clearer case of the proceeding being brought without reasonable cause. The cases say, and the terms of the two sections, section 116 and section 168(5) with respect to those courts who decide the matter obviously make it clear, that under each the court has a discretion as to costs, and we would submit affirmatively that the matters to which your Honour referred at the very end of the judgment are relevant to the question of tte court's discretion, and insofar as the nature of the sub- stantive matters ~ the matters going to merit ~— of the application are concerned, we would just wish to say in relation to discretion that, first of all, allegations of impropriety or infraction of the rules of the union, the organisation, are strenuously denied, and that in particular items said to have been paid for out of union funds were not so paid at all. HIS HONOUR: Mr Madgwick, I cannot go into the merits of it. MR MADGWICK: I know, your Honour, but I want your Honour to know the case that my client would have made because 1t may be said it 1s relevant in respect of your Honour's discretion. HIS HONOUR: It seems to me the question I have to decide 1s whether in the circumstances, by not filing his declaration or lodging it out of time, he instituted the proceeding vexatiously and without reasonable cause. MR MADGWICK: I do not suggest vexatiously. I do say without reasonable cause. He chose, for whatever reasons, to leave it very late and then, finally, to have to rely. 1f at all, upon the allegation that with reasonable diligence he could not have done it sooner. That 15S just not the position, as frankly conceded, and in those circumstances having regard to the public interest NB/VMD/2a 35 MR LAMPRATI 11/12/79 O'Brien a ee orton tee SS Oe el ek Sethian eR mee in these matters being brought on quickly we would submit that it 1s a clear case where the proceedings were instituted without reasonable cause. HIS HONOUR: What do you say, Mr Lamprati? MR LAMPRATI: Your Honour, we oppose the submissions which have been made by my learned friend. Your Honour asked at the outset what 1s the general practice. I might say, your Honour, that I do not know of any case, particularly since section 197A has been enacted, where a party has been ordered to pay costs. HIS HONOUR: I have read a couple of recent judgments of Sweeney J and there is no reference to costs in either of those. I do not know whether application was made after delivery of the judgment. MR LAMPRATI: I believe I am correct in saying that the normal course 1s that the costs lie where they fall. HIS HONOUR: In one of the cases his Honour fouwd what I might describe as a fairly blatant breach of the under- standing that union funds might be expended for this purpose, but there does not appear to have been any order for costs. MR LAMPRATI: No, your Honour. In my submission it 1s not the normal procedure. My learned friend has referred to section 116 and that section makes quite clear that what 1S 1n that section 1s subject to section 179A, which says: A party - - - You have read the section, your Honour? HTS HONOUR: Yes. I do not wish to hear any more, Mr Lamprati. Do you wish to make any separate application under section 168? MR LAMPRATI: I do, your Honour, the relevant part of section 168 being: Where upon an inquiry a court does not find any irregularity .. - 6 e © © © © 6 @ AN SO applying ~ - - HIS HONOUR: I am sorry, I am against you on that.I could not hold that you acted reasonably in the light of the judgment I have just delivered. It seems to me that Mr Madgwick has to establish you acted without reas- onable cause under section 197A and you have to show you acted reasonably, and I would have thought my own judament was a negation of that situation. MR LAMPRATI: In a sense that puts me in a difficult situation. I am not aware of whether your Honour 1s referring to the merits - - - NB/VMD/3a 36 MR LAMPRATI 11/12/79 O'Brien HIS HONOUR: I cannot refer to the merits. I know nothing MR LAMPRA' HIS HONOU about them. I am simply talking about th fact that you filed an application which was not competent because 1t was not accompanied by the declaration. TI: Yes. R: I would think really what the legislature had in mind in sub-section (2) would be the judge's view of the merits in relation to the substance of the matter, and that 1S a matter into which I have not MR LAMPRA HIS HONOU. gone. I know nothing about it. TI: Very well, your Honour. I would ask your Honour, in making any ruling on the question, if your Honour pleases, to indicate that your Honour would not be refusing to certify merits of a consideration by the court on the merits of the matter. R: If you want me to say that I will,but 1t must be clear that I simply know nothing about the matter. I have read the documents accompanying the application but I could not possibly express a view on the merits. The matter has not been before me. MR LAMPRATI: Very well, your Honour. HIS HONOU. NB/VMD/4a OBrien R: Mr Munro, having been successful, has applied for costs. There 1S jurisdiction to award costs but that jurisdiction is subject to the operation of section 197A of the act. Relevantly, the provisions of that section are that a party shall not be ordered to pay any costs incurred by any other party except where the party against whom the order is made instituted the proceedings vexatiously or without reasonable cause. Counsel does not rely upon the proceedings having been instituted vexatiously but does say, in the light of my findings, that the proceedings were instituted without reasonable cause. I have given that matter consideration but I think that the problem dealt with by me in my judgment was not straightforward and I am not satisfied that the proceedings were instituted without reasonable cause. I therefore make no order as to the costs of Mr Munro. Counsel for the applicant has sought a certificate pursuant to section 168(2) of the act that would involve me certifying that Mr O'Brien acted reasonably in the circumstances. I am not prepared so to certify because of the lateness with which his application was made and the fact that I have found it was incompetent in not having been accompanied by the requisite declar- ations. I therefore decline to certify pursuant to section 168(2) of the act. Is there any other matter? If not, the court will adjourn. AT 10-43 A.M. THE MATTER WAS ADJOURNED INDEFINITELY 37 MR LAMPRATI 11/12/79