1S CATCHWORDS Industrial Law - registered organization - ianquiry into alleged election ircegularities - whether time fixed for lodging nominations had expired - whether div2zsional vepresentatives "duly electad" before returning officer 5 declaration of results of election - whether rules pertitted committee members to cast a number of vobes in an election by seccet ballot - whether duty to cenduct election before proposed committees meeting - Giscretion ta refuse relief where new alection imm-nent. Conciliation and Arbitration Act ss. 159, 165(1), 165(4), 168(2), 1683) In the matter of an Application by David Irving Watson for an anquiry into an election in the Victerian Branch of the Commonwealth Scientific and Industrial Research Organisation Technical Association. Number V.18 of 1985 Melbourne 30 April, 1986. IN THE FREDEPAL COURT CF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION No. V.18 of 1335 IN THE MATTER of an Application by David Teving Watson far an inquiry into an election in the Victorian Branch of the Commonwealth Scientific and Industrial Research Organisation Technical Association. KEELY J. 50 APRIL, 1 or) as Melbourne MINUTES OF OPDER THE COURT ORDERS THAT; 1. The application for orders relating to the election of Branch Councillor on 27 June, 1985 be dismissed. 2. It be certified that the applicant acted reasonably in applying for the inquiry. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ai rina we we THE FEDERAL COURT OF AUSTRALIA VICTORTA DISTRICT REGISTRY INDUSTRIAL DIVISION No. V.18 of 1985 IN THE MATTER of an Application by David Irving Watson for an inquiry into an election in the Victorian Branch of the Commonwealth Scientific and Industrial Research Organisation Technical Association. 30 APRIL, 1996 KEELY J. REASONS FOR DECISTON David Irving Watson (the applicant) was at all material times a member of the Commonwealth Scientific and Industrial Research Organisation Technical Association (the Association), an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904 (the Act). On 25 September, 1985 the applicant lodged an application under s. 159 of the Act for an inquiry by the court inta alleged irregularities in or in connexion with an election, held on 27 June 1985, for the office of Branch Councillor for the Victorian Branch of the Association, (the election). ts On 20 December, 1985 che Industrial Registrar granted the application and veferred the matter to the court for determination. On 6 January, 1986 a Judge of the court gave directions as to the persons to be notified of the time and place for conducting the inquiry. On 7 February 1386 Mr. Marshall appeared on behalf of the applicant and Mr. Macken appeared on behalf of the Association, the General Secretary (Ms. Caral Popham) and Mr. R. J. Campbell. Mr. Campbell was the Chairman of the Victorian Branch of che Association and was also tne successful candidate in the election. Both Mr. Marshall and Mr. Macken obtained directicns from the court designed to define the issues as far as iy possible. The application was heard on April 7, 3, 16 and 17. Although it is now ten months since the election, it will be apparent from the dates sek cut above that the applicant has not been responsible in any significant way for the time which has elapsed since the e2lection. In the circumstances it is desirable that a decision be given without delay but 1t will not te necessary to refer in these reasons to every submission put to the court. The yarticulars of the three alleged irregularities "tL. Duly elected Divisional Representatives were eefused, of alternatively not given, a vote in the said election. 2. The said election was not conducted in accordance with the Rules of the Association in that Divisiconal Representatives who did vote were only given one vote and were not given the correct number of yotes reflecting the voting strength of each Divisional Repressntative as orovided for in the said Rules. a. Tne Branch Commictee had failed to provide for the conduer of an election for Divisional Resresentatives from the Textile Industry Division and the Textile Industry Division members did not have any Repeesentarive or Representatives who could partictipate in the Said election for Branch Councillor." As to the first alleged irregularity I agees with the submissions of Mr. Macken that, on the material before the court, the Divisional Representatives had not been "duly elected" at the time of the collegiate election held at the meeting of the Branch Committee on 5S. In my opinion, on the material in this ie) 27 June, 19 u inquiry, there are two reasons why they had not been n "duly elected": wm le wo wo nh . bE co (1) at the time of the election on 27 J c n was still possible for other persons to be nominated for election as Divisional Representatives. This was sa because of the terms ii] of the Returning Officer's notice, dated 9 June 1385, calling for nominations, (2) at that time the Returning Officer had not performed her duty under Rule 26(a) to "declare" the results of the elections to the Branch Committee. T accept Mr. Macken's submission that, the context of other rules of the Asscciation and in bhe Light sf $5, 123(1)(d)(71) of the Act, the r2quilrement that the Returning Officer "declare the results of alections" 15 not aA mere formality. Officer's letter to the three candidates far election as Divisional Representative was not, as a matter of law, a declaration of the results of tne election to the Branch Committee within the Meaning of Pule ZA(a). In addition, at the time of delivery of the letters, the Returning Officer could not "declare" the results; those results were not known because the cime for nominations had not clicsed. Arcordingliy the three persons said by th m applicant to have baen wrongly denied a vote were not entitled to vote in the eléction. Tt Follows that in wy opinion the first alleged irregularity did not occur. As toa the second alleged irregularity, Mr. Marshall submitted that Rule 30(d)(1), read in conjunction with Rule 17(e), entitled the members of the Branch Committee voting at the meeting on 27 June, 1985 to a number of votes related to the number of financial members represented by them (referred to by the parties and in these reasons as "multiple voting"). I am unable to uphold that sukmission. Although the matter 15 not un cam doubt, in my Spinion Rule 230/43)(1), on its mh re bi brug construction, did mst confer a right to "multiple voting" upon "sach member of the Eranch Committee present". Nor do I consider that FPule 17{2), on its true construction, appliel to "A secret Ballot" conducted at a meeting of the Branch Committee. i¥) ub-rule 17(e) in my cpinion was a general provision, applicable to voting at a Branch Committee meating on "motions" as distinct from voting in a secret Ballot cf the reference in the last sentence of Rule 17(8) toa "the motion". As a general provision it can not prevail over the special provision in Rule 30(d)(i) dealing with a secret ballot conducted at the meeting. Accordingly, in my opinion the second alleged irregularity did not occur. Me. Marshail stated in his opening address that, if ne failed to persuade the court that the second alleged irregularity (as to "multiple voting") had occucred, then, unless he succeeded as to both tne first and the third alleged irregularity, he would not seek to persuade the court to make orders declaring the election void. That concession was made because of the law and the facts. As to the law, s. 165(4) of the Act provides that "the Court shall not declare an election ... to be void ... unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities May have occurred ..., the result of the election may have been affected ... by 1rregularities". As to the material facts, Mr. Marshall accepted that, in the absence of a finding that the second alleged irregularity (the refusal of "multiple voting") had occurred, he could not contend that the numbec of votes involved was such that "the result of the election ul May Tiav2 been affected ... by irregularities" i.e. unless he obtained findings that both the first and the third irreguiaritiss had occurred. As already appears, the court does not find that e1ther the first or the second alleged irregularity occurred, and ait follows By) that, even if the third alleged irregularity had occurred, the applicant could not obtain an order declaring the election to be void (s. 165(4)). The court is, however, under a duty to "inquire into and determine the question whether any irregularity has occurred in or in connexion with the election" (s. 165(1)). However, having considered the evidentiary material and the arguments, I am not satisfied that the third alleged irregularity occurred. Ms. Geermans, the Returning Officer for the Branch, was callei as a witness by the applicant. It 15 not easy to reconcile some parts of her evidence with some parts of the evidence of the applicant. The difficulty of reconciliation lies not so much in any direct conflict Between the evidence as in the interpretation of certain passages. The evidence was the subject of detailed consideration in tne respective tinal addresses but no criticism was made - and in my opinion none could fairly have been made - as to the credibiiity of either Ms. Geermans or of Mr. Watson. If the question of whether the court should make an order declaring the election void depended upon the correct aunterpretation of the evidence as to this aspect, TI would have considered ce-listing the application in order to raise with the parties the possibility of racalling either or both of the witnesses in order to clarify the meaning of their evid wu a isl uit Having regard to the mature of the courc's duty in proceedings under Part IX cr the Act, in my opinion the court should, in an appropriate case, (notwithstanding the dizadvantages inherent in the recall of witnesses after the commencement of final addresses) consider the possible recall of witnesses in order to clarify the evidence already given by them, even where the parties have refrained from seeking leave to recall them. If witnesses were recalled leave would, of course, be given to the opposing party to further cross-examine the Witnesses on that aspect. However, for the reasons already given, no order declaring the election void will be made and in those circumstances the recall of witnesses will not be considered. The question of whether the third alleged irregularity occurred will be decided upon the evidentiary material already placed before the court by the parties and in the light of the opposing submissions as to the interpretation of that material. Cn that material Tam not prepared to hold that the Returning Officer farled to properly call for nominations for the na Textile Di] la Mm bad fa | ra lection of Divisional Reprasentativ DU Industry Division as part of the category "A.N.A.H.L. and Textile Industry Davision'. I accept Mr. Macken's submission that Gail Marion Russeil was elected unopposed as that Divisional Representative and, as such, had the right to participate in the election for Branch Councillor held on 27 June 1385. The applicant also relied upon the alleged admission of 28 members attached to the Textile Industry Division at Special Meeting No. 1 of the Vactorian isons were made as a # Go u ra Branch Committee in May 1985. Sub to the meaning of Rule 4{b) of the Association's Rules which was in the following terms: "A person desirous of becoming a member shall apply on an application form through a Branch Treasurer or the General Treasurer to Council. The person shall, if found eligible for membership by the Council, be enrolled as a member upon payment of the prescribed subscription." No resolution as to the admission of those persons as members was carried by the Council until December, 1985. The applicant contended that the words "if found eligible for membership by the Council" in Rule 4(b) constituted a condition subsequent and that the 298 persons had validly become members of the Association in May, 1985. Mr. Macken, on the other hand, in answer to a question from the court, said that the persons in question "did not acquire any rights of membership by the fact of that purported meeting" (in May 1985). circumstances could alter the case" and that "it may well be ... Nard for an organization to dispute the mambership cf some persons having regard to a course of conduct". The applicant also submitted that if the words "if found eligible for membership by the Council", appearing in the sub-cule, were canstrued as a4 condition precedent, they would conflict with the provisions of the Act, including s. 144, and the sub-rule would be to that extent invalid. He relied upon that contention as a reason for construing the words as constituting a condition subsequent instead of being a condition precedent, It may be said immediately that, in the light of the submissions of Mr. Marshall and of Mr. Macken as to the rule relating to admission ta membership, it is obvicusly desirable enat the Association give prompt consideration to both the meaning and the validity of sub-rule 4(b). There 1s much force in the applicant's submissions but 1t is not necessary to determine those questions of law in the present proceedings. That is because the applicant, even if his submissions as to admission to memberships, 1c. were correct, has farled to persuade me that, (as he ccntended in relation to the third alleged irregularity) the Branch Committee was required by the rules "to provide for the conduct of an election far Cal Divisional Representative" to be completed at some time between 12 June 13985 and the commencement of the meeting on 27 June 1985. On this aspect the applicant's "contentions of fact and law", as amended during the hearing, included the following: - "93. At least by 12 June 1985 there were at least 51xX persons employed in the Textile Industry Division of C.5.1.R.0. who were financial members of the Association. 10. In accordance with the provisions of Rule 17(a) of the rules of the Association, the mambers of the Association employed in the Textile Industry Division wece at least as at 12 June 1985 and continuing, entitled to elect one representative to the Branch Committee, such offices having arisen by virtue of Rule 17(a)." I have given careful consideration to the terms of Rule 17(a), upon which the applicant placed considerable reliance. That sub-rule included the following provisions:- "(a) The management of the Branches shall be vested in the Branch Committees which shall cansist of the Chairman, Vice-Chairman, Treasurer, Secretary and ane or more Representatives. All members of the Committee shall be financial members of the Association. There shall be one Representative for each Division or Section of CSIRO located within the Branch and to which 51x But not more than thirty financial members of the escc1lation are attached .... Financial mambers of the Branch who are appointed to a Division or Section not having a Representative an the Branch Committee, shall for the purpose of electing Representatives be attached by the Branch Committee to Divisions or Sections having such Representatives. Also .1f there are at least six unattached financial members, they shall be grouped together and as such group, shall have a separate Representative. In axercising the powers conferred upon it under this clause, the Branch Committee shall give due Consideration to the wishes of tne members involved...." The applicant has failed to persuades ma that the cules imposed upon the Branch Committee the duty to conduct, during the period of 15 days before the meating on 27 June 1985, an election for such a Divisional Representative. It has not been shown that the alleged failure by the Branch Committee to conduct such an u SBlection constituted an irregularity in or in connexion with" the election for Branch Councillor an 27 June 1985. I should add that, on the question of the admission of new members, the applicant sought to rely upon "custom and practice" within the Association. However, as to that aspect I accept Mr. Macken's submission that custom and practice cannot prevail over a provision in the certified cules of a4 registered orqanization: see q Demas_ and ors. v Pearson and oors. (1951) 73 CAR 3 at 5 per Kelly C.J., with whose reasons for judgment Foster and Wright JJ concurred. For these reasons I am not satisfied that the third alleged urregularity occurred, namely, that the "Branch Committee nad failed to provide for the conduct of an election for Divisional Representatives from the Textile Industry Division and the Textile Industry Division members dad not have any Representative or Representatives who could participate in the said election for Branch Councillor" The respondents also submitted that, if, contrary to their submissions, the court found that an irregularity had occurred and the court was of the opinion that "the result of the election may have been 5(4)), the Court should, ain its pry affected" (5s. 1L discretion, decline to make the ordars sought. That submission was not based - and in my opinion, for the reasons already given, could not have bean based - upon any delay by the applicant in bringing or in conducting the proceedings. It was based upon the fact that the Branch Councillor elected on 27 June 1985 will only hold office until "the Annual General Meeting of the Association" (Rule 10) which will be held in July 1986 (Rule 32(a)) and upon the short period of time before the next election for the same office of Branch Councillor. In this connexion, the respondents relied upon a passage from the judgment of a Full Court in Alishorn v stapleton and Ors. (1984) 8 IR 229 at 233. The passage In ud was from the joint judgment of Woodward and Northrop JJ, with whose reasons for judgment Smithers ACJ agreed, ani was in the following terms:- " in any case, the Association was now well advanced towards holding the State elections in New South Wales and South Australia which were seen as necessary preliminary steps cto the holding of an election for federal officers. We can detect no error in the reasoning which led his Honour to this conclusion and so, even 1f we had been persuaded by the appellant's arguments on the legal issues involved, we would have refused the orders sought." As I have concluded that none of the three alleged irregularities occurred, it is not necessary to decide that question but, as it was canvassed at some length in the hearing,i shall express my opinion. There is considerable force in Mr. Macken's submission but I do not consider that the circumstances of this case were such as to warrant the exercise of the discretion against the applicant, had the alleged irregularities been found to have occurred. For the reasons given, the court does not find that any irregularrty occurred and does not make any of the orders sought in relation to the election. The applicant asked that the court, if it did not find that any irregularity had occurred, should certify, under s. 168(2) of the Act, that the applicant acted reasonably in applying for the inquiry. Having regard to the evidence and arguments advanced in the course of the inquiry, 1n my opinion it is praper to do so and accordingly I so certify. The question of whether "it 15 not just that" the respondents "should be required to bear ... any costs or expenses ... incurred ... in connexion with the inquiry aaa" is, by S. 168(3}), a matter for the Attorney-General, without the requirement for a certificate from the court which exists in the case of an applicant. In my opinion the court should not seek to influence in any way the xercise of that power by tne Attorney-General. However, at the request of the respondents, I record the fact that in these proceedings there was no suggestion made that any of the respondents had failed to act bona fide in any of the matters to which the inquiry related. I certify t.t this and the thirteen preceding wre are a truc copy of the Reasors *" ~ "~~ * heron of the Honow.ll. 1--. we Keely, asco ANY Vit vy Dated: 30 April 1996 4