Sy CATCHWORDS INDUSTRIAL LAW - application tor declaration that certain persons hold office until forthcoming union election - whether applicant "holding over" as relevant officer - validitv of previous election - construction of Union rules - discretion of Court bo arant relief souaht - whether the application interlocutory in nature or a final hearina. Concilration and Arbitration Act, 33. l4l. 165 CAMIEN STAPLETON y. FIELD % ofS. No. [25 mt L3re Lockhart J. e7 July 1384 Svdnev IN THE FEDERAL COURT OF AUSTRALIA ) U Of NEW SOUTH WALES ) BETWEEN : AND: JUDGE MAKING ORDER : LOCKHART J. WHEPE MADE: SYDNEY TATE OF ORDER: 27 JULY 1984 ORDER The Court orders Fhat: l. The rule nisi be discharaed, No. 125 of 1984 DAMIEN STAPLETON Applicant FIELD & OPS. Respondents IN_THE FEDERAL COURT OF AU LIA OF NEW SOUTH WALES —-—~-~ No. 125 of 1984 BETWEEN DAMIEN STAPLETON Applicant AND: FIELD & ORS. Respondents Coram: Lockhart J. 27 Julv 1984 REASONS FOR JUDGMENT LOCKHART J. As ( have reached a firm view about the result of this matter I propose to give judament now. I have been assisted in taking this course by the full submissions of counsel. The applicant, Damien Stapleton, seeks an order pursuant to s. 14L of the Conciliation and Arbitration Act 1904 ("the Act") directing the respondents to treat him as Secretary of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association ("the Association") until the declaration of the next election for branch officers. An order is also soudht to restrain the respondents from appointina anybody other than the applicant as Secretarv in the meantime. The respondents are the Association and certain members and officers of the Association. 2. This application is but one round ina lona and hard fought battle between the parties for control of the New South Wales Branch of the Assoriation ("the Branch"). I suspect it may not be the lasc. The litiaation relates to the 1982 election for officers of the Branch held as lona ago as February 1982. The applicant became Secretary of the Branch 1n 1975. and in 1976 he became the Federal Secretary of the Association. He continued to hold the office of Branch Secretarv until about March 1982. He still holds the office of Federal Secretarv. The applicant nominated for the 1982 branch elections for the position of Branch Secretary/Treasurer. A Mr. Simon Jenkins also nominated for the position. There were no other candidates. On about 24 Februarv 1982 the Returning Officer declared the result of the election for Branch Secretary as follows: Mr. Jenkins - 819 votes: the applicant - 3908. A total of 1648 members had apparentlv voted in the election. with some 21 votes declared informal. Mr. Jenkins, who is the fourth respondent. was declared elected to the position of Branch Secretarv. In March 1982 the applicant lodaed an application for an inquirv into the election pursuant to s. 159 of the Act. The matter was dulv referred to the Court. The application was heard by Evatt J. during 1982 and 1983 ever many days ranging from 17 May 1982 to 30 September 1983. 3. On 11 March 1982 a Judge of this Court made ex parte orders preserving in office those persons who had held office before the 1982 Branch elections. Those orders remained in force until 4.15 p.m. on 16 March 1982. The applicant sought to have those orders continued on 16 and 17 March 1982; but Evatt J., who heard the application to continue the orders, declined to continue then. During the course of the inquiry conducted by Evatt J. the applicant alleged that various irreqularities had occurred in the conduct of the e-ection for Branch officers. T need not refer to all of them; but they included allegations that some persons had been crossed off the roll of voters and consequently not sent ballot papers when, in fact. they were financial members; that some persons resident in New South Wales were not sent ballot papers, whereas other persons who were resident in a State other than New South Wales were sent ballot papers; that ballot papers were sent to some persons at their places of work and not their residential addresses; that certain persons were sent ballot papers at a time insufficient to al ow those papers to be returned by post; and that certain of the successful candidates were ineligible to be elected pursuant to the rules of the Association. The matter was heard by Evatt J. His Honour gave fudgment on 31 August 1983. I need not stay to set out the findinas of his Honour as they are reported in (1983) 50 A.L.R. 293. His Honour held that, having regard to the obtfects of the Act, certain of the conditions and restrictions which some rules of the Association imposed were 4. unreasonable and uniust, in contravention of para. 140(1)(c) of the Act and therefore invalid. His Honour held that in all the circumstances a fresh election should be held. Following the publication of his Honour's reasons for judament, the matter was relisted for arqument principally with respect to the appropriate orders to be made vursuant to s. 165 of the Act: and for that purpose further hearings took place on 16, 23, 29 and 30 September 1983. Durina the course of those hearings, and possiblv earlier, counsel then appearing for the applicant submitted that, upon the proper construction of the Association's rules. the applicant was "holding over" as Branch Secretary as a result of his election to that office in the Branch election of 1978. which was the election immediately preceding the one in dispute, elections in the Association being triennial. On 30 September 1983 Evatt J. made orders which it 18s important. so far as relevant, to set out in full. Thev appear at pages 320 and 321 ot the report to which [I have referred in the following terms:- "(L) The court determines that irreqularitics have occurred in the 1982 election for the otficers of the New South Wales Branch of the Australian Theatrical and Amusement Emplovees Association, hereinafter called the ATAEA, being an election for the offices of President, Vice-President, Secretarv/Treasurer, Assistant Secretarv and 12 executive members. 5. (2) The court orders that a new election be held pursuant to s. 165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Registrar appointed under the Act in accordance with the following scheme and timetable:- (a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with r42A(b)(i1) of the rules of the oraanization. (b) On 8 June 1984 an advertisement be placed in the Sydnev Morning Herald and the Daily Telegraph inviting nominations for the said offices in accordance with the provisions of r42A(c) of the rules of the oraanization. (c) Nominations to open on 29 June 1984. (d) Nominations to close on 20 July 1984. (ea) The ballot where necessary to commence on 10 Auaust 1984. (f) The ballot to conclude on 31 Auaust 1984. (2?) The court directs that the returnina officer conducts the said election on the basi3 that:- (1) That the words "and for a period of one calendar month thereafter" in certified r9(a) of the rules of the oraanization are deleted. (11) That the word "continuously" in r47(c) of the rules of the oraanization is omitted. (iii) That all the words after the word "nomination" where first appearing in certified r47(c) of the rules of the orqanization are deleted. 14) The court orders that until the new election is concluded each of the wersons elected to the resvective offices of President. Vice-President, Secretarv, Treasurer, Assistant Secretary and twelve executive members in the subject election shall each hold his or her respective office and shall be deemed for all purposes to have held such office in the New South Wales Branch of the organization since 24 Februarry 1982 and cach shall be a member of and shall be deemed for all purposes to have been a member of the executive of the New South Wales Branch of the oraanization since that date, 65) The court orders that the costs of the following parties, namely. Mr. Stapleton, Mr. Jenkins. Mr. Tavlor, Mr. Ford and Mr. Nelson be paid by the ATAEA. (6) Liberty is aranted to any party to apply on seven davs' notice to the court and to the other parties to the proceedinas. 6. (7) The exhibits in the matter may be handed out." It is obvious that, in fixing those times for the election and the various antecedent steps, his Honour intended to svnchronise the election with other elections to be held within the Association (see p. 311). His Honour said that he would publish his reasons for makina those orders in due course. Pursuant to the orders of Evatt J., Peter Wallace McGill held the office of Assistant Secretary of the Branch until 22 Mav 1984. On that dav, at a meeting of the Executive of the Branch, the fourth-named respondent (Mr. Simon Jenkins) tendered a copy of a letter of his resiaqnation as Branch Secretarv. The letter was received bv the Executive of the Branch which then resolved to accept the resiaqnation with effect from 5.00 p.m. Thursday 24 May 1984. The Executive passed a resolution that Mr. McGill be appointed to the position of New South Wales Branch Secretarv from 5.00 p.m. 24 May 1384. On 30 Mav 1984 the applicant filed a notice of motion in the same matter as the election inquirv (number 929A of 1982) seekina an order declaring that he holds the office of Secretarv of the Branch until the conclusion ot the new election which Evatt J. had ordered. That motion came before Evatt J. on 8 June 1984, when his Honour took the view that the court was functus officio with respect to the Matter, that it was improperlv before the court and could not therefore proceed. Although his Honour had intended to deliver reasons for judqment for the orders aiven on 30 September 1983. subsequently the Association souaht. and obtained from the High Court of Australia a rule nisi calling upon Evatt J. to show cause whv the order for costs should not be discharged (i.e. the order numbered 5). I was informed zy counsel that the Hiah Court has not vet heard the application for the rule nisi to be made absolute. Evatt J. took the view in June 1984 that, as this step had been taken bv the Association, the High Court order nisi operated asa stav in relation toall relevant matters so that he could not proceed to publish his reasons for judgment. Accordinalv, I do not have the benefit of those reasons todav. On 5 July 1984 a Judge of this Court made an order that the respondents show cause whv the orders which I mentioned at' the beainninag of mv iudament should not be made. The matter was heard bv me yesterday and todav. Couisel tor the applicant submitted that the Association's rules either expressly provide or contemplate that incumbent officers of the Association should continue to hold office bevond the period ot three vears until the result of the next election is declared. It was asserted that the 1982 Branch election was null and void and that no valid declaration of the result of that election has been made. Counsel submitted that. upon the proper construction and operation of the Association's rules. in particular sub-rule 18(a), the principle of "holding over" applied following the resiqnation of Mr. Jenkins as 8. Branch Secretary on 24 May 1984. so that the applicant's tenure of that office revived and will remain until the declaration of the new election ordered by Evatt J. Counsel for the respondents submitted that the rules of the Association do not bear this construction. He submitted also that those same submissions were put to Evatt J. bv counsel for the applicant durina the hearing to which I have alreadv referred on at least one occasion and, notwithstanding those submissions. his Honour made the orders of 30 September, including order 4. Submissions were also put to me on behalf of both parties relating to the exercise of the Court's discrction, if anv, in this matter. In mv opinion the startina-point for this Court's consideration of the matter presently before it must be the orders made bv Evatt J. on 30 September 1983. Those orders followed a lenathv inquiry conducted by his Honour into the 1982 election for offices of the Branch of the Association. Manv irreqularities were alleged. A areat deal of evidence was adduced and lenathy submissions were made over a lona period of time. His Honour decided that there were certain deficiencies in the rules which rendered the 1982 election 1982 void. Bv his orders of 30 September his Honour did not in terms order or declare that the election was void: but 1t is obvious from a reading of the orders as a whole. and from his Honour's reasons for o1udament, that he had formed the view that the election was void. but did not think it necessarv to pronounce a formal order to the effect. This is common around between the parties. 9. His Honour then ordered that anew election must be held pursuant to s. 165A of the Act for all relevant offices in the Branch. He aave detailed and carefully considered directions to that end. Those directions envisaged the poll concluding on 31 August next. His Honour thus recoanised that a little under 12 months would elapse between the date of his orders and the declaration of the poll. The orders, especiallv order number 4, were obviouslv desianed to ensure that 1n the meantime the affairs of the Branch would be conducted bv officers of the Branch and members of its Executive free from suggestions of trreaularitv surrounding their appointment. The orders reflect a plain intent on his Honour's part to ensure stabilitv in the Management of the Branch until its officers are elected following the conclusion of the new elections held by order of the Court. The orders manifest an intent that the Branch's affairs be conducted free of the internecine strife that has hitherto beset it with its attendant dislocation, uncertaintv and expense. Order number 4 operated to appoint the President. Vice-President. Secretary, Treasurv, Assistant Secretary and 12 members of the Executive of the Branch for all purposes and to deem them to have held their respective offices since 24 Februarv 1982. It was submitted bv counsel for the applicant that Evatt J.''s orders do not necessarily indicate that his Honour reiected the applicant's submission then made to him (which was essentiallv the same submission made to me) namelv. that the applicant "held over" as Branch Secretary by operation of the Association's rules. There is no necessary inconsistency between his Honour's orders and the acceptance 10. of the construction of the rules of the Association contended for by counsel for the applicant: but the source of his Honour's order number 4 iss. 165 of the Act. If his Honour had accepted the construction of the rules contended for by the applicant he must, it seems to me, necessarily have treated s. 165 as authorising the Court to override the rules in that respect. I do not, of course. for one moment accept the construction of the rules contended for by counsel for the applicant. But his Honour's order is necessarily inconsistent with any right of the applicant to continue in office as Branch Secretarv whether bv "holding over" under the rules or otherwise. The two cannot operate together. It was submitted bv counsel for the applicant that the onlv source of the power to fill the vacancy caused by Mr. Jenkin's resianation as Branch Secretarv is sub-rule 729(b): and it assumes that the appointment of the Secretarv is made under the rules and not bv order of the Court. I refect this submission. To aive his Honour's orders of September 1983, especiallv order number 4, full force and effect necessarily requires, in my opinion, that the officers and members of the Executive appointed bv his Honour until the declaration of the poll in Auqust this vear be aiven the same powers and authorities as if thev had been elected under the rules. including the powers of filling extraordinarv vacancies under sub-rule 20(b). and of otherwise manaqgina the affairs of the Association. His Honour's order was, as I read it. intended to have teeth and not to be a mere paper tiger. ll. There was some challenge made bv counsel for the applicant in arqument before me as to his Honour's power to make order 4 or any like order. In my opinion I do not have to consider that arqument because the starting point for anv consideration of the application presently before the Court must be Evatt J.'s orders of 30 September. No appeal was lodaed from them. They bind the Association and must be treated by this Court as valid orders. In anv event, as at present advised, I would reqgard para. 165(3)(d) of the Act as a sufficient source of authority for the making of the relevant orders on 30 September. To my mind thev answer the description of orders incidental or supplementary to or consequential upon other orders made under the section. including orders of the Court declaring elections to be void and orders directing the Industrial Registrar to make arranaements for other elections which the Court orders to be held. However. I do not have to express a final 'view on this and do not do so. The Executive of the Branch accepted the resianation of Mr. Jenkins as Secretarv and appointed Mr. McGill in his place. The rules of the Association authorised that appointment and no challende is made to it bv the applicant except for the "holding over" arqument. to which I have referred. In my view it follows that the application must fail. Evidence has been led by the parties, however. on questions relating to the discretion of this Court to aqrant the relief soucht. The applicant's case is that he is more knowledaeable and experienced 12. than Mr. McGill in the affairs of the Association and in the various industries from which it draws its members. The respondents assert that the applicant mismanaged the Association's affairs in various respects durina his tenure as Branch Secretary. There are alleqaations and counter allegations made which I need not mention except to sav that I have considered them all. Each party denies most of the other party's allegations. In the end. I am not satisfied that the status quo should be altered. Until the poll is declared it is better that the management of the affairs of the Branch and the delicate matters relating to the forthcoming elections be attended to bv the officers of the Branch. including the Secretarv, who presentlv holds office. I should sav that I take the status quo to be the management structure of the Branch that exists pursuant to, and that has arisen under, Evatt J.'s orders of September last. Counsel on both sides approached this case on the footing that 1t is interlocutory in nature and not a final hearing. so that only a prima facie case need be established in the sense in which that has been discussed in cases too well known for me to mention, or that there is a reasonably arquable case to be tried, posina what is. in my view, on the facts of the case, simply another wav of expressing the same test. Also on this view 1t is necessarv to consider the balance of convenience. I tave some difficulty teaarding chi3s a3 en fruth an application for interlocutory relilet. It 13 an order calling uren the respondents to show cause: and what 15 30ughe against chem aus that nm ste1aticn = rules in certain respects Ur they perform and observe the A yntil the declaration of the next alection for Branch officers. and rerrain from taking certain actisn ain the meantime. I rhink the peoper v1lew 1s that th. 13 not an intericcutorv rearing. Tk iz a final disecosition of the return of fhe order to show cause. H.ovever, Toho aet thi.« that if matters hich aprercach Le Faxen because. in mv Sramzin, 2E 25 more tukely chan not tnat the acvolicant s case will fairl oar a obLinalL heaciny. coo, if Bericely need not cineider the 4usetion <f balance <f convenience. Even - ff d14 Sambark weon roan acarce.a cand Io nave ceorsiderea Le cae rhti oc ceste For reasons thar I Lave alesady sivan an c2latirn fl che auesliia oF aliereevtion) in mz meinen fne cralance of sonventence favours rns refusal at interiscutory reiref. Finaily, I sheula 2av chat wthcuwgn tne cesoective meric: if rhe apolicants. Me. MeTill and scner. were canvassed in avisaence and acted before me, I cresoase o> cav nething acrar chen. The occasion does nit fewer 1h and in view ef che tCirtnecmirs slertrens, it 1s i undesirable to comment. Thev sachuld seach nave a cnante ti rairly cut 14. their cases to their electors untrammeliled ov anv adverse or positive findinas bv the court om matters which I think che electors are best able to decide. Accordinalvy, the rule to show cause 1s discharaded. Au. CATCHWORDS INDUSTRIAL LAW - application tor declaration that certain persons hold office until forthcoming union election - whether applicant "holding over" as relevant officer - validitv ot previous election - construction of Union rules - discretion of Court to grant relief soudqht - whether the application unterlocutory in nature or a final hearina. Conciliation and Arbitration Act, 33. 141, 1 Tony rs) ] LAMIEN <TAPLETON v. FTELD & ORS. Yo, £25 of s9R4 Lockhart J. 27 Jalv 1984 Svdnev IN THE FEDERAL COURT OF AUSTRALIA » D OF NEW SOUTH WALES ) BETWEEN : AND: JUDGE MAKING URDER: LOCKHART J. WHEPE MADE: SYDNEY DATE OF ORDER: 27 INLY 1984 ORDER The "ourt orders that: 1. The cule pisi be discharaed. No. 125 of 1984 Applicant Respondents IN THE FEDERAL COURT OF AUSTRALIA ) ) OF NEW SOUTH WALES ) No. I25 of 1984 BETWEEN : DAMIEN STAPLETON Applicant AND: FIELD & ORS. Respondents Coram: Lockhart J. 27 Julv 1984 REASONS FOR JUDGMENT LOCKHART J. As [( have reached a firm view about the result of this matter I propose to aive judament now. I have been assisted in taking this course by the full submissions of counsel. The applicant. Damien Stapleton. seeks an order pursuant to s. 14L of the Conciliation and Arbitration Act 1994 ("the Act") directing the respondents to treat him as Secretary of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association ("the Association") until the declaration of the next election for branch officers. An order 18 also sought to restrain the respondents from appointing anvbody other than the applicant as Secretary in the meantime. The respondents are the Association and certain members and officers of the Association. 2. This application is but one round ina long and hard fought battle between the parties for control of the New South Wales Branch of the Association ("the Branch"). I suspect it may not be the lasc. The litiaation relates to the 1982 election for officers of the Branch held as long ago as February 1982. The applicant became Secretary of the Branch in 1975, and in 1976 he became the Federal Secretarv of the Association. He continued to hold the office of Branch Secretarv until about March 1982. He still holds the office of Federal Secretarv. The applicant nominated for the 1982 branch elections for the position of Branch Secretary/Treasurer. A Mr. Simon Jenkins also nominated for the position. There were no other candidates. On about 24 Februarv 1982 the Returning Officer declared the result of the election for Branch Secretarv as follows: Mr. Jenkins - 319 votes: the applicant - 808. A total of 1648 members had apparentiv voted in the election. with some 21 votes declared informal. Mr. 'Tenkins, who is the fourth respondent, was declared elected to the position of Branch Secretary. In March 1982 the applicant lodged an application for an t1unquirv unto the election pursuant to s. 159 of the Act. The matter was dulv referred to the Court. The application was heard by Evatt J. during 1982 and 1983 over manv days ranging from 17 May 1982 to 30 September 1983. uw On 11 March 1982 a Judge of this Court made ex parte orders preserving in office those persons who had held office before the 1982 Branch elections. Those orders remained in force until 4.15 p.m. on 16 March 1982. The applicant sought to have those orders continued on 16 and 17 March 1982; but Evatt J., who heard the application to continue the orders, declined to continue them. During the course of the inquiry conducted by Evatt J. the applicant alleqed that various irregularities had occurred in the conduct of the election for Branch officers. I need not refer to all of them: but they included allegations that some persons had been crossed off the roll of voters and consequently not sent ballot papers when, in fact, they were financial members; that some persons resident in New South Wales were not sent ballot papers, whereas other persons who were resident in a State other than New South Wales were sent ballot papers; that ballot papers were sent to some persons at their Places of work and not their residential addresses: that certain persons were sent ballot papers at a time insufficient to al ow those papers to be returned by post; and that certain of the successful candidates were ineligible to be elected pursuant to the rules of the Association. The matter was heard by Evatt J. His Honour agave jiudament on 31 Auaust 1983. I need not stay to set out the findings of his Honour ag they are reported in (1983) 50 A.L.R. 293. His Honour held that, having regard to the obiects of the Act, certain of the conditions and restrictions which some rules of the Association imposed were 4. unreasonable and untust, in contravention of para. 140(1)(c) of the Act and therefore invalid. His Honour held that in all the circumstances a fresh election should be held. Following the publication of his Honour''s reasons for qudament, the matter was relisted for arqument principally with respect to the appropriate orders to be made pursuant to s. 165 of the Act; and for that purpose further hearings took place on 16, 23, 29 and 30 September 1983. During the course of those hearings, and possiblv earlier, counsel then appearing for the applicant submitted that, upon the proper construction of the Association's rules. the applicant was "holding over" as Branch Secretary as a result of his election to that office in the Branch election of 1978. which was the election immediately preceding the one in dispute, elections in the Association being triennial. On 39 September 1983 Evatt J. made orders which it 185 umportant. so far as relevant, to set out in full. Thev aprear at pages 7?20 and 321 ot the report to which I have referred in the following terms:- "(1) The court determines that irreaularitics have occurred in the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Emplovees Association, hereinafter called the ATAEA, being an election for the offices of President, Vice-President, Secretarv/Treasurer, Assistant Secretarv and 12 executive members. 5. (2) The court orders that a new election be held pursuant to s. 165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Reqistrar appointed under the Act in accordance with the following scheme and timetable: - (a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with r42A(b)(1i) of the rules of the oraqanization. (b) On 8 June 1984 an advertisement be placed in the Sydney Morning Herald and the Dailv Telegraph inviting nominations for the said offices 1n accordance with the provisions of r42A(c) of the rules of the organization. (c) Nominations to open on 29 June 1984. (d) Nominations to close on 20 July 1984. (e) The ballot where necessary to commence on 10 Auaqust 1984. (f) The ballot to conclude on 31 August 1984. (3) The court directs that the returnina officer conducts the said election on the basis that:- (i) That the words "and for a period of one calendar month thereafter" in certified r9(a) of the rules of the organization are deleted. (121i) That the word ""continuouslv" in r47(c) of the rules of the oraanization 1s omitted. (111) That all the words after the word "nomination" where first appearing in certified r47(c) of the rules of the organization are deleted. (4) The court orders that until the new election is concluded each of the persons elected to the respective offices of President. Vice-President, Secretary, Treasurer, Assistant Secretary and twelve executive members in the subject election shall each hold his or her respective office and shall be deemed for all purposes to have held such office in the New South Wales Branch of the organization since 24 Februarry 1982 and cach shail be a member of and shall be deemed for all purposes to have been a member of the executive of the New South Wales Branch of the organization since that date. (5) The court orders that the costs of the following parties, namelv, Mr. Stapleton, Mr. Jenkins. Mr. Tavlor, Mr. Ford and Mr. Nelson be paid by the ATAEA. (6) Liberty is aqranted to any partv to apply on seven davs' notice to the court and to the other parties to the proceedinas. 6. (7) The exhibits in the matter may be handed out." It is obvious that. in fixing those times for the election and the various antecedent steps, his Honour intended to svnchronise the election with other elections to be held within the Association (see p. 311). His Honour said that he would publish his reasons for making those orders in due course. Pursuant to the orders of Evatt J., Peter Wallace McG111 held the office of Assistant Secretary of the Branch until 22 Mav 1984. On that dav, at a meeting of the Executive of the Branch. the fourth-named respondent (Mr. Simon Jenkins) tendered a copy of a letter of his resignation as Branch Secretarv. The letter was received bv the Executive of the Branch which then resolved to accept the resiaqnation with effect from 5.00 p.m. Thursday 24 May 1984. The Executive passed a resolution that Mr. McGill be appointed to the position of New South Wales Branch Secretarv from 5.00 p.m. 24 May 1984. On 30 Mav 1984 the applicant filed a notice of motion in the same matter as the election inquirv (number 9A of 1982) seeking an order declaring that he holds the office of Secretarv of the Branch until the conclusion ot the new election which Evatt J. had ordered. That motion came before Evatt J. on 8 June 1984. when his Honour took the view that the court was functus officio with respect to the matter, that it was improperly before the court and could not therefore proceed. Although his Honour had intended to deliver reasons for qudqment for the orders qiven on 30 September 1983. subsequently the Association souqht, and obtained from the High Court of Australia a rule nisi calling upon Evatt J. to show cause whv the order for costs should not be discharaqed (i.e. the order numbered 5). I was informed oy counsel that the High Court has not vet heard the application for the rule nisi to be made absolute. Evatt J. took the view in June 1984 that, as this step had been taken bv the Association, the Hiah Court order nisi operated asa stav ain relation toall relevant matters so that he could not proceed to publish his reasons for qudament. Accordinalv, I do not have the benefit of those reasons todav. On 5 Julv 1984 a Judae of this Court made an order that the respondents show cause why the orders which I mentioned at' the beginning ot mv jludament should not be made. The matter was heard bv me yesterday and today. Counsel tor the applicant submitted that the Association's rules either expressly provide or contemplate that incumbent officers of the Association should continue to hold office bevond the period of three years until the result of the next election is declared. It was asserted that the 1982 Branch election was null and void and that no valid declaration of the result of that election has been made. Counsel submitted that. upon the proper construction and operation of the Association's rules, in particular sub-rule 18(a), the principle of "holding over" applied following the resiqnation of Mr. Jenkins as 8. Branch Secretary on 24 May 1984. so that the applicant's tenure of that office revived and will remain until the declaration of the new election ordered by Evatt J. Counsel for the respondents submitted that the rules of the Association do not bear this construction. He submitted also that those same submissions were put to Evatt J. bv counsel for the applicant during the hearing to which I have already referred on at least one occasion and. notwithstanding those submissions, his Honour made the orders of 30 September, including order 4. Submissions were also put to me on behalf of both parties relating to the exercise of the Court's discretion, 1£ anv, in this matter. In mv opinion the startina-point for this Court's consideration of the matter presently before it must be the orders made by Evatt J. on 30 September 1983. Those orders followed a lenathy inquirv conducted by his Honour into the 1982 election for otfices of the Branch of the Association. Manv irregularities were alleaqed. A qreat deal of evidence was adduced and lengthy submissions were made over a lona period of time. His Honour decided that there were certain deficiencies in the rules which rendered the 1982 election 1982 void. Bv his orders of 30 September his Honour did not in terms order or declare that the election was void: but it is obvious from a reading of the orders as a whole, and from his Honour's reasons for jiudament. that he had formed the view that the election was void. but did not think 1t necessary to pronounce a formal order to the effect. This is common around between the parties. 9. His Honour then ordered that a new election must be held pursuant to s. 165A of the Act for all relevant offices 1m the Branch. He aave detailed and carefully considered directions to that end. Those directions envisaged the poll concluding on 31 Auaqust next. His Honour thus recoanised that a little under 12 months would elapse between the date of his orders and the declaration of the poll. The orders, especially order number 4, were obviouslv desiaqned to ensure that 1n the meantime the affairs of the Branch would be conducted bv officers of the Branch and members of its Executive free from suagestions of 1rreqularitv surrounding their appointment. The orders reflect a plain intent on his Honour's part to ensure stabilitv in the management of the Branch until its officers are elected following the conclusion of the new elections held by order of the Court. The orders manifest an intent that the Branch's affairs be conducted free of the internecine strife that has hitherto beset it with its attendant dislocation, uncertaintv and expense. Order number 4 operated to appoint the President, Vice-President. Secretarv. Treasurv, Assistant Secretarv and 12 members of the Executive of the Branch for all purposes and to deem them to have held their respective offices since 24 Februarv 1982. It was submitted bv counsel for the applicant that Evatt J.'s orders do not necessarily indicate that his Honour reiected the applicant's submission then made to him (which was essentiallv the same submission made to me) namelv, that the applicant "held over" as Branch Secretarv by operation of the Association's rules. There is no necessarv inconsistency between his Honour's orders and the acceptance 10. of the construction of the rules of the Association contended for by counsel for the applicant: but the source of his Honour's order number 4 iss. 165 of the Act. If his Honour had accepted the construction of the rules contended for bv the applicant he must, it seems to me, necessarily have treated s. 165 as authorising the Court to override the rules in that respect. I do not, of course. for one moment accept the construction of the rules contended for bv counsel for the applicant. But his Honour's order is necessarily inconsistent with any right of the applicant to continue in office as Branch Secretarv whether bv "holding over" under the rules or otherwise. The two cannot operate toqether. It was submitted bv counsel for the applicant that the onlv source of the power to fill the vacancy caused by Mr. Jenkin's resignation as Branch Secretarv is sub-rule 20(b): and it assumes that the appointment of the Secretarv is made under the rules and not by order of the Court. I refect this submission. To aive his Honour's orders of September 1983, especiallv order number 4. full force and effect necessarily requires, in my opinion, that the officers and members of the Executive appointed bv his Honour until the declaration of the poll in Auaust this year be aiven the same powers and authorities as if thev had been elected under the rules, including the powers of filling extraordinarv vacancies under sub-rule 20(b). and of otherwise managing the affairs of the Association. His Honour's order was, as I read it. intended to have teeth and not to be a mere paper tiger. il. There was some challenge made bv counsel for the applicant in araqument before me as to his Honour's power to make order 4 or any like order. In my opinion I do not have to consider that arqument because the starting point for anv consideration of the application presently before the Court must be Evatt J.''s orders of 30 September. No appeal was lodaed from them. They bind the Association and must be treated by this Court as valid orders. In anv event, as at present advised, I would regard para. 165(3)(d) of the Act as a sufficient source of authoritv for the making of the relevant orders on 30 September. To my mind thev answer the description of orders uncidental or supplementary to or consequential upon other orders made under the section, including orders of the Court declaring elections to be void and orders directing the Industrial Registrar to make arrangements for other elections which the Court orders' to be held. However, I do not have to express a tinal view on this and do not do so. The Executive of the Branch accepted the resiqnation of Mr. Jenkins as Secretary and appointed Mr. McGill in his place. The rules of the Association authorised that appointment and no challenge is made to it by the applicant except for the "holding over" araument, to which I have referred. In my view it follows that the application Must fail. Evidence has been led by the parties, however. on questions relating to the discretion of this Court to arant the relief souaqht. The applicant's case 1s that he is more knowledaeable and experienced 12. than Mr. McGill in the affairs of the Association and in the various industries from which it draws 1ts members. The respondents assert that the applicant mismanaged the Association's affairs in various respects during his tenure as Branch Secretarv. There are alleaqations and counter alleqations made which I need not mention except to sav that I have considered them all. Each party denies most of the other party's alleqations. In the end, I am not satisfied that the status quo should be altered. Until the poll is declared it is better that the management of the affairs of the Branch and the delicate matters relating to the forthcoming elections be attended to bv the officers of the Branch, including the Secretarv, who presentlv holds office. I should sav that I take the status quo to be the management structure of the Branch that exists pursuant to. and that has arisen under, Evatt J.'s orders of September last. Counsel on both sides approached this case on the footing that 1t 1s interlocutory in nature and not a final hearina, so that only a prima facie case need be established in the sense in which that has been discussed in cases too well known for me to mention, or that there is a reasonably arquable case to be tried. posing what 1s, in mv view, on the facts of the case, simply another wav of expressing the same test. Also on this view it is necessarv to consider the balance of convenience. BR sd I have seme daiffreultvy rceqaarding chia a3 un truth an application for anteraccurcey reliet. It 15 an order calling upan the respondents fo show cause: andi what 12 3cucht against chen 1215 that thev werferm and cbserve the Assic1aticn = rules in cernain respects until the declaration of the next slection for Sranch ctficers, and rerrain from takina certain action ain the meantime. I think the proper view 1s that thit 25 not an interlseuterv nearina, fe 1.sa Finai disecsition of the return of the order to show cause. He vever. ido act chix tnat _t matrers "hich apersach is taken pecause., in mv OQrinien, 10 Ls more stikely than not that the applicant 3 case w1il rriil oar a cinal hearings. se, Lf strictiv need not consider the 4usetion of balance of convenience, Eren . f dia oembark upcn raat egerey 2 sand IT have canetidered iP ocae thie ciurrmose For ceasons that I have aletadvy siven in calakbicon &s che me stint 2finien ene oalance a leonvenilence Favour? ene cearusal of rntertiocutary relief. Finally, I sheula sav that altnoutvh tne respeccive merit l of the aeplicants, Mr. Meliill and atner:t were cancaseta in evidence and acqued before me, [ prapose to sav nuthine abrut chem, The secasion fer a i aay at vy Yaee ro and wn view of the forcheomirgd electiens, rr 1s undesirable ta comment. They thowld each have a chance te Fairly cut l4. their cases to their electors untrammeiled ov anv adverse or positive Findinas bv the court on matters which I think the ls able fe or n ct or? are best Mecide. Accordinalv, the rule to shov cause 1s discnaraged. aan Ne re 7 "oro a tL? erty hte H pres eae mere eu Poag > - wT te a Cl ' a" LA ' ,