CATCHWORDS Lama Ae ta 'S aS é . re Induscrial law - registered organizations - elec ton reo Ml A LOW applications for anquiries ~ whether requiremehy eee ls sation iv a tr'! mandatory - whether Court should procced with gab ner , possible irregularities. Conciliation and Arbitration Act 1904 s. 159(2)(c), s. 159(4) (b) s. 163(1)(c), s. 164(4) (b) Re Application by Ferris for an Inguiry into an Election in the Australian _Workers' Union (1982) 2 1.R. 432 Re_ Elections for Offices in Australasian Meat Industry Employees Union (1963) 5 F.L.R. 260 Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 F.L.R. 195 Re Australian Postal and Telecommanicatiors Union: Ex parte Wilson (1979) 28 A.L.R. 330 Re Roya] AusLlralian Nursing Federation {South Australian Branch) (unreported 10th November 1983) Re Penhallurick (1983) 51 A.L.R. 589 GRAY J. MELBOURNE 21 August 1984 MRR pen etn eee SO en epermertie = ame mr ree - i a ers - -- Nene se alee rR al a a ne wee ee ae te ee IN THe FEDERAL COURT OF AUTChARTA) ) SOUTH AUSTRALIA DTSTRICT REGISTRY) S.A. Mo's 7, 9, 10 & a ) ll of 1964 LNDUSPRIAL DIVISTOL ) HAkTT AR OF Ay, Vearsonu' Mey GOIN baat, J Hie ure J 21st August 1934 REASOMS POR diboaslid? Before the Court are four applications for in yair3es concerning elections in the South Avetrelran Branch of the Australasian Sovicty of fHnaginecers. In matter S.A. No. 7 of 1%ce, which was filed with the lndustrial Registrar on Jatn June 19a, the Applicant 3s henneth John Bragg, and the eleclion concern ad is that for State Socretary. In mitter E44. Now 9 OF 1384, whach vas filed wath the Industrial Rogistrar on 6th June 98h, the Applicant is John Hector Lawley, and tne office the subj ct of the election is Federal Council Delesyate. Jn matcer S.A. Ne, JO ut 1984, which was also filad with the fudustrial Rogistrar cn 1871 Jure 1984, the Applicant as Brian Alexender Cope, and the ofits. concerned is thet of Paneh Beecurdve Meme. Jr wnattes B.A. No, 1] of 1904, which wis filed wrth the Indes vctad Regeglrer on Jeth June 1934, the Applicant 38 Wom sievlor Jewiey, and the offsee concerned virtue Auslralas N is Organizer. AIL electaons are cowplele, and, by of the provisions of rule 17 of the Rules of jan Society of Enginecrs, the persons elected took o on lst July 1984, The TO some extent, the applications are similar an the Ef1ce form. application an S.A. No. li of 1934 contains the following: "PARTICULARS OP ALLACRD TPRECURAP [Pt py The publishing and PYOVAUSIAN to the wenbershin of the said Branch by or on behalf of the Successful candidate Vavad Wallaan Thovoson at or prior to the woment each ember cast his or her vole o7 a "How 10 Vote" notice which contarsed untrue or ancorrect statements or inferences intended or likely to mislead or improperly interfere with the electors of tho Said Union in or 'n relation to the full and/or free recording and/or casting of their votes. The publishing and distiibuticon to each Mauwher of the said "low 10 Vote" card at the time and in the manner aforesaid by which Means prevenlinyg or hindering or attempting to prevent or hinder the full and free recording and/or casting of the voles by the bersons entitled to record and/or cast votes jn rejation to tre said election and/or ballot. The action of the Auctretian Postal Comoicsi)en and/or its servanie« and/or agents and/or othex wade - oe ee = eee - 3. persons unhnowa to the Applicant whereby the "How n to Vote" card of the ~Applicunt Guly arranged «60 us to be received by each and cvery merber or person entitled to record and/or cast a vote in relation to the said election praur to or at the time of the casting of such vote Was ampronerly interferod with and/or caused not to be sen thereby preventing and/or hinde;s ing the persons entitled to vote from fully ana [reely devennsiningy for vnon 20 east aud/or reco desl and how such an rejation to the said election. The fact that a matter, miverial and significant to the issues raised in tic suid eleclion nanely the economic manayement of the South Australian Branch and in particular the financial scatemenls of the said Branch for the year ending Svuth November, 1983 though in eristeuce and availeble to be published and _ further shoving significant a@cficits was restrained from publivation until after the comnencoment of the recording and/or casting of the votes therehy preventing and/or hindersny the full and free recording of votes by person, entitled to do so jn xrelatz3on to the election. The non-recejpt of ballet papers by persons entitled to record a vote in the said election and jn addition thereto:- (a) he refuse] to provide « baellor paper to persons entitled to vote who having nol 4. received a ballot papcr sought a ballot paper but were refused thereby dssenfranchising such persons and preventing the full ani free or any recording or casting of votes by those persons entitled to record vores in relation to the election. {b) Whe provisien of billot pauners to persons entitled to vote bal without the furriher provision of the pre-paid, return address envelopes where jn cuch event such p.csons provided their own eneelope rut such vallots were rejected thus preventeng such persons the full and free os any recording ar the votes in relation to the said election. {c) The non-reccipt by persons entitled to record votes Of any ballot paper thus prevenciny their recording whether full and free or otherwise of votes in relation to the said election. The publishing on the "How to Vote" card published and distribated by or on behalf of David va!liam Thompson of an authorisation by one B. Tinri which authorisatzon by the said "Bob Tirri" did not eccur ani would not have occurred. The sar@ David wWalliam 'Theumson by reason of tho registered rule of the said Union and an particular Rules 2 and 49 is not eligible Lo etand for the offace of Organiser for the State of Soulh Austrelia. —te ut . PACTS RELSED OW As to the particulars set out an paragraphs (1), (2) and (6) the Applicant relics on the "How to Vote" card authorised by K.&. Crowden a copy of which 1s annexed heroto. As to the facts relied on in paragraph (3) tho Applicant by arrangement with the Australian Postal Commission prior to tnd on the L6éth day of May 1984 ensured a posting such that tne "How tv Vote" card for the election would reéach all persons entitled to vete no later than when tley received the ballot paper. In accordaice with the arrangment the Applicant deliverei envelopes individually addressed to every person: cutitled to cast a vote in relation to the said electien at the Centra) Mail Exchange at 4.1]5p.m. on Fednesdey the 16th day of May, 1984. In like manner and with the same purpose the successful candid ce David Willian Thompson provided to the Australten Postal Comoissjon iniividually addressed envelopes containing the "How to Vote" card for his election. By actions within the Central Mai] Exchange the Applicant's envelopes vere tterfereda with such that they woutd arrive the day after receipt by voters of the ballot paper and therefore tone 24 hours efter the persons entitled to cact therr vote woul. iy the majority of cevts have attended to the casting of the vote. J Same (a) (b) sane 6. . 3. As to the matters sel oul gn pareqraphs (4), (5) and (7) this 131s based upon oral inforeatton provided by persons entitled to cast a vole and the Applicant proposes to call those persons to give oral testimony to the Jrregularity particularjsed therein. 4. Annexed hereto and marked with tne Jetter "2" asa certified copy of the registered Rules of the Australesian Society of Ensineers. Tne saad David Willaaw Thompson as and vas at all waterszsal ties a foreman employed as such by the Peoefenlre Resvarch Centre, Salisbury ain the Stete of South Australia." The application jin mutter S.A. No. 7 of 1984 1s in rhe form as that set out avnove, witn the following ecceplyons. + The nune "E.B. Crowden"" appears in place of the noms "David William Thowpson" an paragraphs 1 and 6 of the Puariiculars of Alleged Trregularities, and paragraph 2 of the Facte Relied On; There is no paragraph 7 of the Particulars of Allaget d Irregularities, and no paragraph 4 of the Waects Relred On, Jee. there 3s no allegation of ineligibility against Nr. Crowden, the successful candidate for the office of Staic Secretary. The applauation in patter S.A. No. 8 or 1494 1s in the forn as that in matter S.A. No. 11 vf 1984 with the Fuollowins exceptions: (a) (b) (c) same The name "Robert F. Douglas" appeurs in place of the uaae "Davad William 'VYhonpson" 3n paragraphs 1 and 6 of the Particulars of Alleged Irregularities and prreygraph 2 of tne Facts Relied On; Paragraph 7 of the Particulars of Alleged Lrregularities, reads as follows: "7. The said Robert F. Douglas by reason of the registered rules and in parraculat by reason of the fact that he was a retired membue: us Geseribed in Rule 40.2 was not and could not be eligible to stand for or be a wember of the Fudercal Coni)e;i:" Paragraph 4 of the Fucts Relied On js in the following form. "4. Annexed hereto and marked with the letter "2" 35 a certified copy of the stered Rules of the ad fe) ise) a Australasian Society of Engineers. The said Robert F. Douglas 3s and was at al] material times retired froin the trade covered by the Constitution." The application in mitter S.A. No. 10 of 1984 35 in the form as that ian matter S.A. No. 11 of 198%, with the following exceptions: (a) (b) The name "Robert F. Douglas" appears ian place of the nae "David Walliam Thompson" in paragraphs 1 and 6 of the Particulars of Alleged Irregularities aad paragraph 2 of the Facts Relicd On; Paragyaph / of the Particuluzs of Allegea 'rredquleritlies reads as follows: - te we eR eect Male oP ans clement Bie a net a NS wee "7. The said Robert F. Douglas by reason of the registered rules of the said Union and in particular Rules 2 and 40.2 is not and was not eligible to stand for the office of the Executive for the State of South Australia in that he had retired from the trade covered by the Constitution of the seid Union and was not eligible to be a member of the State Branch Executive;" (c) Paragraph 4 of the Facts Relied On reads as follows: "4. Annexed hereto and timarked with the letter "2" is a certified copy of the registered Rules of the Australasian Society of lingineers. The said Robert EF. Douglas is and was at all material tim2s retired from the trade covered by the Constituticn." Annexed to each of the applications 38S a copy of the same document, described in argument as a "Ilow to Vote card". ft is in the following form: is a ne] x Nicd | we mien VY Ov | oN he O Q \ r Oss vos vos, AUSTRALAS wh me r ! ' iy — [as] 5 a a y ~~ Be At qc. eT oo Ct 7 = = ; C ¢ 3 — : = be S Le woe y nd > oe -— of 3 Ot c - vd ee) Ww OW Ts L. aa Fae a owe 2 oan ° a a S Boe ae 2! oc aon i ~~ ov wa pay <i _ lo i ~ we oe aol > -™~ ~ t on ~~ hae 2 MS mo, : aed 7 77 ns "~ oa contd se " tee 7 KL, = sr ~ ~ i of Tar boy LL Al? x --- -~ =, ~J re = ee - — tos . a ne z 4 -—y = a >. ot. aoe — a. i a, Na fs Vo oC S rs tod i fo aN —| Ly 5 _ 7 NU weet Lt ~ 7 ae S 6 xy [ig _— ve < el . Rook, to -- _ x ow ta on ' . a ~J a ee "a "J ~_ note 7 fen . "D > ead *: Ls Cf —~ Coa" — <2 ree) Ts po) -- fe OD ee) 7) tn on oe _ = ' — 2 t2 = yas rnd veo = Po oe rr oak = tat yw ye we oe yoy a | a i -sooen ey aw ot Ny se . Ne "2 -- - Ww id Le. ", yo : —_ oc io c re a ae soe ID ! i v "3 ~. Ge Nee NS ~ in 4 "Ss 'ee Ne ? — Sa ee _— bes Cle — : av Sf Cc oy a 7 t 7 cos. YS ws Ne wae ead ns uty t sepapany S.A. aan . ot mete ee 10. : Also annexed to the applicatiuons in matiers S.A. No. 9, No. 10 and S.A. No. 11 of 1984, vere copies of extracts fro. the Rules of the Australasian Socicty of Engineers. Rule 2 of those Rules provides as follows: Rule "RULMN 2. CONS S ULES LON This Gociety shall consist of members eudaged Jn any of the following trades or 'ranches of tradas: (a) Engineers, Filters, Turners, Water Meter Fatters, ool and Gauye Makers, Die Sinkorcs, Mechenical and/ov Sorentific Instrument Makers, Scale Makers and Adjvsters, Sale Mahers, Pape witterc, Motor Hecheanies, and iwisrs ana Testers, Cycl2 and Motar Cycle iecbanics, Typoviriter hechani¢s, Vattersmibvers, Coppersas this, Brassfinisners, (Enginecring and General) Vorgers, sorye Furnacemen, ener Sarpemsshs, ANGLe lron3iait tio, Sprinusr2tis "Ing PFittes Welders, Oxy-Aceryloene Cutters, 'Lo oc cami ths, Mechan} cal Draughe sven, Mi] Ve *ghte, Jrou and Sleel Rollers, Liectrical Witte. s, Electrical Mechanics, Machsae Marner, Mal Ligy Machrnisis, Planers, Slotters, Borers, Shapers, raLllers, Polishers, Grinder Jad hapnoers, Bolt eid mut Machinists, Aygricultwal Lipp Louw ise fiasers, Pane) Reatocs {restricted to Panel Beaters onmployed in "the Aust calrvan Capital Territory by the Deoarteenl of the Interjor in the Yransport Werxshop), Gunsmiths, Technicians (ecept persons who are members or eliqivle for menbsrship of the Association of Architects, Bngineers, Serveyors and Draughismen of Australia) and any other Machine Opesators or MNechanacs crployed in the engineering, Loconotive, Shipbuildind. Rolling Stock, Airerafl Munition and Jron Trades, or in any other Industry, and the paid offictals of the Socicry. (b) Smiths! strikers and mechanics! assistants or groups of strikers and assistatts engiged 3n any of the above trades dee1rding to amajgemate with or join this Seciety shall be admitted upon such terms as shall be agreed upon by the Federal Coune1il and coans'stent with the Rules of the Society, so Jon, as it is not antagonistic tom any other Trade Unaic.. Gealang solely with that cluss of worker and operating . the jimnediate locality." 49 coitains the follavund provisions: "RULE 40. MIEMSEURSHTP SBucTloss 1}. - 1. Honorary Nembcis: Any member upon being apprzinted to the position of foreman or sub-foreman, or leaviuy the trade, may, 3J£ ne desires to retain his wemhersbip, become an nonorury Memper. Any inember appointed to the staff shall not be cligible for honerary wewhership af he uses the tvoels cf trade Bn honorary wewrber way take part in any meeting of his Branch and speak on any subject dealt with at the eetsany, but he shall not move or second a notion or he eliginple to hold any offices aug shall havo no vole at meetungs except on matters aficceting tae Funerul Fund. An honorary rember shall not be wade an active nember whilst unemmloyed o: avay from tne trade, wd snall not contest an election far an BNecuiive posttion until he has been an active momour for six insuithe. amy mene of the Society occupying the position of forenmsin or sub-foreman shnalh be exceume Lrer takiny part an any trades dispates and shall not. vork with the tools of trade. 2. Retired Members: No member who has retired from the trades covered by the constitution of this Society shell retatn Ffuyl mewbecohip of the Suciaty, proviaad that my inember tho hes 1¢cn consecutive years as a financial iu Sober cud who has reached the age of 55 years ani who his revived from work because of age or illness or apeapucrty hey oe a retired momoer of the Society and may retain his Funeral Benefits by the payment of twenty cents (2uc.) per quarter. A reticed member snajl] not be eligible to be a inember of the Federa) Councj] or any Stave Franch Executive or any Sub-Branch HNxecutive." cyt a cui 2 Cn 5th July 1984, at Adelaide, Mr. McCusker appeaced before me for the Applicant an each case. Mr. Kensse appeared for the Australasian Society of Engineers in each case, and also Cur Mr. Crowden ijn ratter S.A. No. 7 of 1984, Mr. Douglas gn matters S.A. No. 9 and S.A. No. 10 of 1984, and Mr. Thosnsoan gn matier S.A. No. 11] of 1984. In each case, Mr. Matterne appeared Lor Graham John Carey, the Returning Officer. Mr. KFenzie sought to prevent cach of the inquiries froaw proceeding furtnec. He relied upon the provisioas of ss. U89(4)(e}, and 159(4)(»), of Lhe Concidiat jon and Arbitration Act 1904. These provisiors are in E 12. . the following terms: "(2)) An application unde) this section shall- (c) specify the election in respect of which the application is mije and the irregularity Which is claimed to have occurred, and state tne facts relied on an support of the appliculion; pony w (4) An application miy be mad? uader this seztion in respect of an elecvicn reversed to ia sub-section (3) 2£ the applivation 1g mice wilhin the tam: tnat 3S applaucable under the neste succeeding sub-section and, where such an "apps cacion 3s made: (b) the Court 35 nok required t9 procecd with an inquiry unless at ts satisfred that there as reasonable ground fur the ¢pylication;" Mr. Kenzie drew attention to a passace Crom the yodgrert of Fitzgerald J. jn Re Apnlicataonu hy Ferris Foc 3zn Jsqasrys te an Election 3n the Australian Workers! Unton (1962) 2 1.R. 432 at page 447, which reads as follovs: "A number of autherilies indicate tnat the requirements of sub-s. 159(2) are mandatory and that a farlnre to comply with them savstantiajly avoids Ine application. The first of these cases seemd to be R. v. ones liation ans Cormonvealth Court of parce Federal. x Clerks Union Of Aust C550) BE SLURRY 224; see bp. 247 pes Lathan Cad. with whom licTieruan and Kitio Jd. aygrecd ant webnp J. at op. 224. That decisio)1 his since been applied on two occasions by single jJudyes of this Court: see Re on in Aad @ ani Clerical Officers ion, ¢ sl7c bervice (1480) Current Review [137] p. 303, &@ decession os Sheppard J., and the decisjzon of Evatt 97. gn Re en Anrlica in ANTE pitxvat ior ex parts or ait The particular requirement of sub-s. 159(2) upon which the resnmoneents placed relianee tr inat contained 13. . jn par. (c), that the applacution shall "specify...the irregularity which is C1 alned to have oeccucred, and state the facts relied on dn support of the applicition". Insofar as the application fails sufficiently to sect out the facts relied on, counse) for the union further submitted that the applicant has failed to comply with par. (ad) of sup-s. 3159(7), an thet there 1s no statement of Facts un the application toa which the statuiory declarulion cun be rcuvarded as referring. It as unnec osoary for the purpese of this mitter to say more than that this sees to we a submission of considerable foree: see Kh. v. Coneonvealth Courc of Couciliatien ald Arbitration; cx parte ¥ ' aio op. P41; cf. In re Beriid) (1976) AvlLed.R. 359; and Evans v. Crilenos- Breen, supra. '4 Having regard to that pussage, ani to tne authorittcsa cited in J J am preprired to accept that the recujrauneits of sub-s.(2)(c) aie mandatory. Iv. Kenzte anvited me to hold that esch of tnu Applicants hal failet to state the facts relicd on by nim su Support of his application; juoofar as facts vere stated, mr. Kenzic argued, they were insufficient to make out a ecse that an yyregularity or j3rregulailties may have occurred in relatron io any of the subject clections. Tn the alternative, lir. Keunzie argued that the grounds set forth ian the applications did not disclose matters which gave rise to a reasonable ground for any of the applications to preceed, and that 1 should teriwiuate euch of the inquiries pursuant to sub-s. (4)(b). Mr. Kenzie did not invite me to reach a determination on the question whether any particular matter js capable of constitutiny an irregularity, in Situations where the authorities are in confliet or there 13 controversy as to what may akount to an irxecgularity. An example of such a watter vhere controversy exists 16 the question whetner an act or mission by a person entirely unconnected with tne Ovygani4atiou could constitute an arregeiarity. Lt js proper that. at this stave, I shontd take the viww most favourable to tLe oe ee ee mee eee . 14. ". Applicants as to what might constitute an irregalarity, rather than trying to determine controversial issues without the benefit of full argument or evidence. It was conceded by Mr. Kenzie that, if tne facts alleg.d 3n any of the applications were sufficient to satisfy sub-:.(2)(c) in relation to any one ground upon which that application was based, the inquiry was properly before tne Court. In iy view, this as a proper concession. There 16 authority that an inquiry pursuant to Part IX of the Conciliation and Arbitration Act 19C14 1s not Jamrited by the grounds expressed in the applaicatiou; the obligation of the Court pursuant to 5. 165 as to "inquire irto and determine the question whether any irregularity has occurred". « See Re Electio FaLasi on Meat Tnda Employees Uagon (1963) 5 F.L.R. 260 at paye 265, dJutte v Amalgamated Engineering Union, Australyan Section (1967) LO i.Leh, 195 at pages 201-2, and ke Australian Postal ana Telecomnunications Union; ex parte Wilson (1979) 28 A.L.R. 3350 at page 333. Once an inguiry is properly before the court, the court has power, pursuant to s. 164{4)(b), to inform itse)1 on any matter in such manner as it thinks just. An anguiry into an election 3s not an ordinary proceeding jn which the court jis content to listen only to the allegations of the parties and to rely upon them to provide the avidence. Although adversarial in nature, the procedure has inquisitorial aspects. It was common ground between the parties that, for the £ purposes of s. 159(2)(c), it is perrisutrle for the conrt to loo. at any part of the @ocument constituting a purported application. 4 ewe 8 ee Re ~— In order to determine what facts are stated as relicd on gn support of the application, the court js not confaned ta wher appears under the heading "Facts Relied On". In each of the applicaLlions in walters S.A. Ho. 9, S.A. No. 10 and S.A. No. J] of 1984, there 2s an alleyition thet the successful candidate ian the election concerned was aneligitbie to be a candidate. See paragraph 7 of the Purtsiculaurs of A) Leyod Irregularities and parayraph 4 of th2 Tacts Relied On, rogeriicr with the annexed extracts from the Rul¢s an eich of r.hose waiters, With respect to Mr. Douglas, in maiters S.A. Ho. 9 and S.A. No. 10, the allegation is made that he is "retired from tne trade covered by the Constitution". In matter S.A. Mo. TL of 1984, ne atleyation 398 made with respect to Hr. Thormeon that he "is and was at all material times a foreman employed as sven py ihe Defence Research Centre, Saltsbury". These allecdationus are alleyations of fact. True at ais, they are not detailed, but wu a real sense they do constitute the facts relied on. The acceptance by a returning officer of the nosinalson of an ineligible candidate is capable of constituting an irregularity. See, for exairple, the decision of Pisher J. in Re Royal Australian Nursing Federation (south Australian Branch) (unreported, 1LOLh November 1983). lt follows that cach of matiorrs S.A. No. 9, S.A. No. 310 and S.A. No. 11 of 1934 3s properly instituted with respect to at least the ground of ineligibility, and that s. 159(?)(c) has been complied with wath respect to that ground. . i eS eee ere . s - - 16. The same does not apply to matter S.A. No. 7 of 1984, which contains no aJjJlegation of iucligibility. {n thet application, as in the others, the allegations in parayraphs 1, ? and 6 of the Particulars of Alleyed Irregularities are cast ta wide terms. Paragraphs 1 and G do, however, state facts. inoa sense, the annexure of the How to Vote card itself is a statement of a fact or facts relied on. 'hat How 19 Vote curd 3s allegzd to contain untrue and ineorrect statements or inferences. Mr. McCusker suggested that the failure of tne How to Vote card io distingursh menbors of the Ernie Crowlen tean From those who ve. not members of that team was wisleadiny. ln particular, itr. McCusker suygested that some persons might be induuccad to belrev: that ty. Bragg was a mumbper of tir. Crowden's Lean by lhe fret his name appears on the How to Vote card in type of the same sine and enphasds as all the other names. lt 3s clear that the resolution of these allegatious depends to a large extent on tue inferences to be drawn from the How to Vote card wlself and on argument. It may also depend upon the existence or non-existc ce ef evidence of actual inislcading. Even af thas is so, it is cle: that s. 159(2)(c) docs not require that the application contain a the whole of the evidence; all that as required is that the facis relied on be stated. ln my view, sufficient facts are stated wn each of the applicotions with respect to the Particulars of Alleged Trregularities in paragraprs 1, 2 and 6G. There 19 authority that the masleading of voters might constitute an irregularity. See Re Penhaliurich (1983) 51 A.L.R. 589, at page 596 where, Pituygerald J. said: "Thus, any breach of tne rules will pe an iurreguiarily, as will be anv act, omission or other step which revents or hinders Une full and fiec retoreding Of votus J he - wet ee ee et a . ors 17. by a)l persons entiatied to record votes or the correct ascertainment or declaration of the ierults of the voting. But conduct which may not meet elther deseription may also be an irregularity. For eyznole, it seems to mo that it may wel] ve that conduct vinch misleads voters and thereby causes Lhem to alter the.r votes, but not to refrain fror voting may not properly he described as conduct which prevents or hinders the full and free recording of votes; ck Hvyans v Creichton-Srovmne (1981) 33 A.L.R. GO9; 59 ALL... 27 at 288. However, it dues not seen to me to be opun to doubt that such conduct veidht well conetitute an gyreygularity and micht well gustify the court declartay an election void af, having reg-var3i to the relihasi? of other simzlar grregularities, the irregularity in question may have affected the rveeult of the olcetion." On this reasoning, each of the apylications complies wvitn s. 159(2)(c) with respect to paragrupns 3, 2 aur G of the — Particulars of Alleyed Irregularities. In addtiion, at cannot Fe said that there is no reasonable ground for the application wien raspect to those allegations. lt mast be empluistzed that, in reaching these conclusions, 1 am not to be taken as having mad? a final @etermination of the issue whether any zrreygilartty haz occurred jin relation to any of the subject elections. The determination of those issues will depend upon the hearang of evidence and the completzon of full argunent. Still less am} to be taken us having reached any conclusion at all on whe issus whether, if any irregularity has ocevrred, it may have affeccred the resuit of any election. That question simply has not arisen yet. Once an inquiry of this kind is proparly before the court in relation to one or more grounds, there is a real doubt whetber the court can exercise the power under s. 159(4)(i2) an relation to other specific allegations of Iriegeulariries. Tn other words, there is a real doubt whether the court can refuse tu a ae en ee ee Rene eee -- - . - "~ 18. procecd in relation 10 some of the alleged irregularities. Section 159(4)(b) refers to "an iuanquiry" and not to any specific jrregularity. In my view, the court could only refuse to procead if there was no reasonable ground for the application at all. Te follows, therefore, that these ingquirics must proceed, as reasonable grounds for the applications to exist. In these circunstances, 3 1% preferable that L mate no comment on the Particulars of Alleged Irregularities with which 1 have not already dealt. Mr. mMceCus\er submtted a docuaent, with annexures, Which contrined Further particulars un rejJation 10 eacn of the alleged arreygularities. The tiocument also cought to addi oc furthor alleged irregulerity. Havany regaid to the fact that ti. gnquiry will proceed in respect of each application, it as appropriate that 1 should say nothing imora about these alleyatiuus a until such tine as evidenss is before the Court and full argur eur has been heard. Mr. McCusker sought orders pursuant to s. 163{1)(c) of the Act. In the first place, he iunviteda the Court to order that all of the persons who held office bofore lst duly 1984 shouli continue to act in their offices unta] the completion of the inquiry in each case. in this respect, Mr. McCusker emphasizcd the width of s. 163(1)(c), and argued that that provision yives to the Covrt a discretion to rake orders of the kind sought. Tnere is nce doubt that the provision is broad enouyh to permit the Court to make creers of the kinds sougut. The questton Js whether thnocs orders are proper in alk the cire wtances. it was drawn te uc. McCuster's attention that to make the orders he sought vould neve 19. . the effect of reinstating in office persons who had not souyut re-clecti1on and who had, thereforc, mudicated that they no Longe. wished to act in their former offices. Those persons vere not before the Court. In iy view, ther2 jis a very real diffurence between making an order under 6s. 16o3(1l)le) at the rznstance of a person who seek. to be reinstatcd to an of fies, and making such an order cu.wpelling unwilling persons Who are not pefote the Court to act jn capacities which they have riuonunced. Mr. McCusker then reslrictcel his application to an order that the Applicant in intier S.A. Mo. 7 of 1984, Kouneth Johan Bragg, act as Organizer pending the outcone of the inauiry inle that, position. Nr. Braqy held the o fice of Organizer up to the 30th of June 19284. Ho vas not, hovyever, a candidate for thet office in the subject election; he preferred to renounvte his position as Organizer, and to sland for election as Branen Secretary. In those circumstances, it is extremely difficult ic see how the Court could, in effect, reinstate Mr. Bragq a5 Organizer. When seeking to be elected to another office, he unis be taken to have accented the rask that, of he faajJed an has hid for that office, he would not be able to fall back on his previous position as Oryanlzer. Mr. MeCusler pressed upon mes tnat this risk wae undertaken by lit. Bragy vpon the footing that he would perticipate jl a properly condactcd elaction. This is undou»tcely so, but lL do not think that it alters the nature of the choise made by Mr. Bragg. Reference was also made to the facet chat cir. Bragg is now naempaloyet, whereas Nr. Tha pson, Lhe succes.tr] candidate im the election for Orgaaicer, hay be able to resur* tho employment which he had up to 30th June 1904, Tr appoars 10 un2 20. ~ that these considerations are too problemtical. On the evidence before me, persons have becn elected to cfiice by fairly substantial aajyorities Ian each case. Notwithstanding the possilmlity that irregularities may have occurred, those porsons are the choice of those vembers of the Branch who voted to occupy their respective positions. I do not think that the intentions of the voters wno so expressed their djintentrons should be overruled on an interim basis. I therefore propoce io dismiss the application for jnterim ordecss. Mr. McCusxer also sought access to material ino rhe possession o£ the Returning Officer. Whe Returning officer is ner unwillrig to provide information. Vt oapyenrs to mo thar ? iHeCusker!r request in thas reqard, will be met adeujuately by ws0 order waich T propose to make, that the Returniny Officer file ana serve an affidavit concerning his conduct of the clectisn. The inguirjes will contunuae; I propose to hear th- partics on the question what directions are appropriate, including a direction as to the time within which the Returning Officer is to fale his affidavit. Other than an order dismissing the application for interim orders, it is unnecessary for me to make any order as to the occupancy of the various positions, pending the outcoue of tie inquiries. By the force of the rutes, thore electc? will hold office un}ess and until any order is made to the contrary. | . vw