Qa\ IN THE FEDERAL COURT OF AUSTRALIA ) OF NEW SOUTH WALES ) N.S.W. No. 9A of 1982 INDUSTRIAL DIVISION ) THE CONCILIATION AND ARBITRATION ACT 1904 PART Ix APPLICATION BY DAMIEN STAPLETON FOR AN INQUIRY INTO AN ELECTION IN THE AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLIYSES ASSOCIATION ORDERS EVATTI J. VATE OF JRDER: 31 Auqust 1984 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The Notice of Motion dated 30 Auqust 1924 pe dismissed. ~ cee. > IN THE FEDERAL COURT OF AUSTRALIA ) OF NEW SOUTH WALES ) N.S.W. No.9A of 1982 INDUSTRIAL DIVISION ) ThE CONCILIATION AND ARBITRATION ACT 1904 FART IX APELICATION BY DAMIEN STAPLETON FOR AN INQUIRY INTC AN ELECTION IN THE AUSTPALIAN THEATRICAL AND AMUSEMENT cMPLOYEES ASSGCTATION Toram: Evar 7 mber L384 c 2e2nt oa FPEASONS FOR JUDGMENT In matter N.S.W. No. 3A of 13282 Damien Scapleton, a member wh the Australian Theatrical and Amusement Emplovees Stoc1aticr. "the m¢mapicaticon':. an organization eesistered under che Conciliation and Agoitraticn Act Ladd, Bac \'rhe Ack o, navina made an arplication cro tne Industrial Resi3trar pursuant ¢23 3.199 1) of che Ast cecane the sy re! atplicant in an inauiry before tne Court neld under Fart Tez a t my of fre Act into an eiseticon For tne firllina of certain offices witnin the Hew Souch Wales granch « the Eranch": of Ene sald organization. He had seen che secretary of the Branch for some vears prior to the said election but had peen defeated for that office my Me Simon Jenkins ina two-way contest bv eleven formal votes. ' After a lenathy and hotlv contested inquiry tne Court as presently constituted on 30 Seotember 1983 having found chat irreaularities had occurred in che said election made the followina orders pursuant to 3.165'3) of the Act: "cli The Court determines that irreqularities have eccurred in the 1982 election for the warficers of the New South Wales Sranch of the Australian Theatrical and Amusement Emplovees Assocliatien, hereinafter calied the ATAEA,. being an election for the efrfices cof Assistant zecretarv and LZ 242 _utllve memper?:. 'at The Court orders chat a néw election be meld rursuant to 2,145 mf the cConcriiation and Arbitration Act ou"tne ach':s for all offices in the ilaw South wales sranch cf tne ATAEA and directs that such <l=ction ce arranaed bv tne Industrial Reaiztrar aerointed unaer the Act in accordance with the fciiowina scheme and timernarle:- wad In the week commencing 235 April i984 tne returning officer j3nall caus2 co oe e1rculated to all mempers of tne ATAEA ~ a whether financial or not a notice in accordance with e.42A(b)(1i1) of the cules of the orqanization, vb) On 68) CUJune) «613840 «an |) 6advertisement be placed in the Sydnev Morning derald and the Dailv Teleaqraoh inviting nominatisns For the said offices in accordance with the provisions of r.4lAtic! of the rules of the craanization, 1c) WNeminations to open 3m 23 June 1344, 'd)) Nominations to clese cn 20 Tully 1384, .2@, The ballot -vwner2 netestary to commence on 10 Auvust 1344, (f) The balist to conelu:2 cn 31 August yay 4, The esurt direct3 that the returning officer eanducts the said election on the basis {1+ that the words ani for a wericd of one calendar montn chereaftec ur certified r.3.a)r of tne rules uf the erganization are deleted, ,ii> rnat the word eontinucusiv" in ced7 10) or the cules a rhe organization 15 omirted, 'iin that all the words after the werd "nemination" where first anooesaring in certified r.47(c) of tne rules of the organization are deleted. 14) The court orders that until the new election 1s soncluded each of the persons elected to the respective mstfices of Fresident, Vice-President. Secretary, Treasurer, Assi wh fant Secretary and twelve executive members ain the subiect election shall 2ach hold his or ner cespective etfice and shall be aeemed for all wurposes bo have neld sucn office in the New South Wales Branch o: the crganization since 24 Februarv 1382 and <ach shail be 4 memper or and shall be deemed for ill purposes to have been a member of the execunive of the New South Wales Branch of the orwtanitarion aince that date. oe) The courrc orders that the vwosts of the Ecllowina cart1és. namely. He Ftrareleton. Mr Jenkins. Mr Tavlor. Mr Ford and Mr Nelson pe paid ov the ATAEA. oy Liberty 1.3 aranted to any party to apply on seven daavs' notice to the court and to the other parties to the proceedings. ~ The exhibits in the matter may be handed wut." (See Re Stapleton (In the matter of an application for an inquiry into an election for offices in the Australian Theatrical Amusement Employees Association (1983) 50 ALR 293) Havlen appeared for Mr Stapleton and Mr Kenzie appeared for Mr McGill and certain other office-holders of tne Branch. Mr Havlen indicated that it was his submission that the Court was functus officio and consequently nad no yurisdiction to hear the motion. Mr Kenzie aareed., The Court having heard full supmissions in this reaard held that the Court was functus in respect of its orders and that the motion was improperly before the Court and accordinaly the same was dismissed. Therearter on 5S TJTulv i984 Mr Staoleton soucnt a rule to show cause oursuant to <¢.141 of the Act seeking syders that che cesponds bo) ns thereto 'heina officials of the Eranch, obev che rules of the Urqaanicaticn ana treat nim a3 secretary <:f che Branch unril che jeclaration of the election referred cto in the orders ser our above. Un the agrantirg of che said rule the matter vas nimbered 25 of 1384. On 27 Julv 1984 Lockhart J. discharaed cne rule ta snow cause in that matter. reasons for midamenr being as vet unreported. On Thursday afternoon 30 August 1984 Me Stavpliecon filed a furtner Notice of Motion in matter Wo. 3A of 1352 seekina the following orders:- "(li That the Orders mage ov tne Honourable Mr Justice Evatt on :0 September 1792 in Matter \ No. 3A of 1982 be varied as follows:- we mee, . ~i tad: (ff) of Order 2 be varied to the followind terms in respect of those members to whom ballot pacers were sent: (f) The ballot tc conclude on 14 Sepntember 1984." (Be: (f1 9f Order 20 ce Further varied cs the following cerms in respect oF those finan:-al members to whom pailot papers Were nat sent: 'C@s The Oailor ca roncluds on 24 ,ty: Order 3 be varied to enable the notice cegquiced Lor tne Liberty i2 acely granted pv the said vrdér to 52 abriijidged tf enable this Aeplication co be maa? cn 31 August dr <tapleton filed an affidavit sworn 24 Audust 19%4 an 3uccert of the 3a14 mocien, Wilcox J. in 39 Sutust 13284 acerasei rime to anable one motion to o2e meard at noon on 21 August 1234 and made Aporopciate orderg as to zervire of the tlorare of Motion. At noon on 31 Auaust 1934 the motion was listed before the Court as presentlv constituted. Mr Wricht of Counsel appeared for Mr Stapleton: Mr Kenzie of Counsel appeared for Mr McGill and certain other officers of the Branch and Mr McMillan of the Svdnev office of the Australian Government Solicitor appeared for Mr Fenman. an otficer of the Austrailan Electoral Office whois the returning officer in the new election referred to in Order 2 made 30 September 1343. Both Mr Kenzie and Mr McMillan osbiected ta Mr Stapleton's motion on che around that the Court had no Wirisdicrion, It was agreed bv che carries that the Ib question of dJurisaiction should be consiaered first. This involved the Court being airected tao oarts of Mr Stapleton s aftidavit sworn 30 Sugust 1384 shicth in effect asked winter alia) that the ballot, which han been orders to close «on 31 August 1384, «see Grier 2'f'>, cemain coen eprember 1944 pbecau ut until 10 a 2 tnece cad ceen a marl strike within the Svdnev metropelitan area during sart of the currency of the balioc. ~ A segpeer Further Mr McMillan advised the Court- (1) that in fact the ballot had closed at 10 am that day. 31 Auaust 1984 1n accordance with the notice printed on the ballot papers; a (2) that the Returning Officer had forwarded out some 5,360 ballot capers, and +3) that 1.370 ballot papers had been returned to the Returning Otficer by lda.m, that dav. 'aporox. a 37.0 % return): icf perctentade of ballot papers returned in the 1382 election as set out in Evatt J. s dudament in 50 ALR 23.0 Atter hearing argument az to wirisdicticn che Crurt an il August 1984 derermined chat in ochen nado ono yarisdiction in che matter of the motion filed on 30 Aucust rH a 1984, wundicatirg that it would publisn its reasons as soon as possivle. I am firmly of the view that once a 3.165A ib lecti G commences the Court has no jurisdiction under a "Libertv t apply" order that it mav have made when makina orders under 5.165 which form the basis for the new election. This was the case here. Anv step ain any such 3.1455A 2iection mav. since 16 December 1983 «when s.37 of Act No.11S of 15983 commenced). be challenged under Fart IK of the Act by anv member of the warticular organization at anv cime after the commencement of the election. In ffect, the election ~D havina commenced, the provisions of the Act take over. On any such application for an inquiry the Court having satisfied itself that there 15 reasonable around for the challenge ©3.153(4::\5) may make acpropriate orders, either interim :under 53.163) or final 'under 3.155) if satisfied that an 'irrequiarity" has occurred in or in connection with che election wnich mav have affected che result thereor. Alchouqh it ts umnecessary to so dacide on this metion., I would not have been satisfied sn the evidence as set out ain Mr Staoleton 5 affidavit of 30 August 1984 in respect of "he mail strike together with the ocarticulars of the return of ballot cavers in the s.crent election as indicated Ev che returning offiver chat the said mail strike could be said to ne an "1rreqularity" witnin tne ad the result iT meaning of tne act which mav nave affect rhereof. Further, I exeress no ocinion as ro the validity or wtnerwise of the returning orticer s directicn that callom pacers were to be returned ov loOa.m. on Friday 3i August 1384. The Court was iunfcrmed that as ro cime had been provided for in order 2 £) 2fF 30 Zepremper 1987, the returning otficer in order to ensure that no irresularities occurred nad decided that a scecified time on 31 Audust 1984 by which the Eallot papers nad to be returned was required and that in his view lva.m. was the most appropriate time. Accordinalv, a direction to that effect had been printed on each ballot paver, (see 3.170A(1) of the Act.) Accordinaly., the motion herein filed on 30 Auaust 1984 is dismissed. I certiiv that this and che srecedinag {QO paaes are a true racy or the Rea sons for Judament nerein of his densur dy Justice ovyatt . i te su oF oy ul a = v wy ay uw ie} ow (bty Db Ss ra te mm ra — epee ~