CATCHWORDS INDUSTRIAL LAW ~ election inquiry - whether 2 votes in same _ envelope breaches secret ballot - whether "irregularity" irregularities in that ballot papers issued to members ineligible to vote and not issued to members eligible to vote - meaning of words "result of election may have been affected" - court's residual discretion Conciliation and Arbitration Act 1904 s. 165(4) Re Australasian Meat Industry Employees Union, Western Australian Branch; Ex parte Ferguson (Toohey J. 5 November 1986 unreported) * Application by PAUL MICHARL NOACK for an inquiry into an election in the VEHICLE BUILDERS EMPLOYEES' FEDERATION OF AUSTRALIA, SOUTH AUSTRALIAN BRANCH No. SA 10 of 1986 KEELY J. MELBOURNE 23 APRIL, 1987 + IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIAN DISTRICT REGISTRY) No. SA 10 of 1986 ) ) INDUSTRIAL DIVISION JUDGE MAKING ORDER DATE OF ORDER WHERE MADE IN THE MATTER of an application by PAUL MICHAEL" NOACK for an enquiry into an election in the Vehicle Builders Employees Federation of Australia (South Australia Branch) KEELY J. oe 23 APRIL, 1987 oo MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT: The election for the office of Assistant Secretary of the South Australian Branch of the Vehicle Builders Employees' Federation of Australia, the result in which was declared by the returning officer on 19 November 1986, be declared void. Luis Cuevas, a person purporting to have been elected to the said office, be declared not to have been elected. Note: The Industrial Registrar make arrangements for a new election to be held for the said office. There be liberty to apply. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. aX IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY) No. SA 10 of 1986 ) INDUSTRIAL DIVISION ) THE MATTER of an sppliceeion by PAUL MICHAEL NOACK for an enquiry into an election in the Vehicle Builders Employees Federation of Australia (South Australia Branch) 23 APRIL, 1987 KEELY J. REASONS FOR JUDGMENT This is an application by Paul Michael Noack (the applicant) for an enquiry under Park IX of the Conciliation and Arbitration Act 1904 (the Act) into alleged irregularities which he claims occurred in or in connexion with the election (the election) of the Assistant State Secretary of the South Australian Branch (the Branch) of the Vehicle Builders Employees' Federation (the Federation). The election was conducted under s.170 of the Act and the returning officer was Mr. Carey, a member of the staff of the Australian Electoral Commission. Four parties were represented in the proceedings. Mr. McCusker appeared for the applicant, Mr. Stanley for the Federation, Mr. Meegan for Mr. Cuevas (the successful candidate) and Mr. Materne for the returning officer. By 14 April 1987 there had been a hearing of these proceedings on eight sitting days. On that day, after a short adjournment during Mr. Stanley's cross-examination of the applicant's solicitor, Mr. Rowe, the parties all joined ina _ request, that the court should hear argument at that stage on two matters and decide those two matters. That request was made because it was considered that the decision on those matters might render unnecessary any further hearing; it was granted because it would be in the interests of all parties if the agreed course reduced the length of the remaining hearing by shortening the time needed both for evidence (including possible lengthy cross~examination) and the submissions on various other issues which had been raised. The first matter as to which a decision was sought was a submission by the applicant that an irregularity had occurred by reason of the returning officer's decision to treat as valid 46 votes, contained in 23 envelopes, each of which contained 2 ballot papers. I am not prepared to uphold his submissions on this aspect. As to the facts, subject to one possible qualification, the evidence as to the 46 ballot papers (i.e. 23 "pairs" of ballot papers) fails to satisfy me that the name of the candidate for whom the voters had voted was necessarily made known to any other person, e.g. the other person whose vote was included in the same envelope. The qualification, to which I have referred, is that an inference to that effect could be drawn as to "three or four pairs" of votes, having regard to evidence given by Mr. Carey. However, having considered all the evidence as to those ballot papers, if it were necessary to decide, I would not be prepared to draw the inference that those completed ballot papers had been shown to other voters. It is not necessary to determine that issue of fact because, even if I had inferred that those voters had voluntarily shown their ballot papers to other persons, in my opinion that action would not be sufficient to constitute a breach of branch rule 14 which required that the election be by secret ballot. In my view Mr. McCusker's contention to the contrary does not gain any support from the fact that many years ago it used to be an offence against the regulations made under the Act for a person voting in certain ballots to show his ballot paper to any person, or to permit any person to see the ballot paper, while he was marking it or after he had marked it (see Commonwealth Conciliation and Industrial Arbitration Law by McWilliam and Boyt, 1946). I should add that in my opinion the returning officer's direction to the voters to place the ballot paper in the envelope provided to the member was directory and not mandatory (cf. Re Australian Journalists Association; Ex parte Geoffrey Gleghorn - unreported, delivered 29 February 1980). Py Accordingly I am not prepared to find that the returning officer's decision to treat as valid the 46 votes, including the "three or four pairs" to which reference has been made, was an irregularity. The second matter arose out of concessions made by Mr. Stanley and by Mr. Meegan that, on the material before the court, irregularities had occurred in connexion with the election; those conceded irregularities were (a) that 59 persons, who were unfinancial and were not entitled to vote, had each received a ballot paper and (b) that 8 persons, each of whom was a financial member at the material time, were not given ballot papers. It should be added that Mr. McCusker contended, on behalf of the applicant, (i) that a larger number of persons were wrongly given ballot papers, (ii) that a larger number were wrongly denied ballot papers and (iii) that there were other irregularities. However, he joined in the course proposed to the court, on the agreed basis that his rights are reserved as to all the other matters raised by hin. In the light of the concessions and the material at present before the court, I find that at least the following irregularities occurred, namely, (a) that at least 59 persons who were not entitled to vote in the election were given ballot papers and (b) that at least 8 persons who were entitled to vote in the election were not given ballot papers. Mr. Stanley contended that, notwithstanding his concessions, the court should not declare the election void because of the statutory direction in s. 165(4) that it shall not do so "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 irregularities." He supported that contention by a carefully prepared and well presented submission, which was adopted by Mr. Meegan. Mr. Stanley submitted that the court, in considering whether to form the "opinion" referred to in s. 165(4), should look "at real not merely theoretical possibilities." Those words are taken from the following passage (p. 7) in the reasons for judgment in Re Australasian Meat Industry Employees Union, Western Australian Branch; Ex parte Ferguson (unreported - delivered 5 November 1986). There, Toohey J. said:- "Thus the question is whether the Court is of opinion that, having regard to the irregularities found, the result of the election may have been affected. Unless the Court is of that opinion, it may not declare the election void. Clearly the Court is not required to make a positive finding but, equally, the Court is looking at real not merely theoretical possibilities." It may be added that, on the material in that case, his Honour was not able to form the opinion which, by reason of s. 165(4), 1s a prerequisite to a declaration that an election is void. The court's statutory duty, under s. 165(4) of the Act, is to form an opinion as to whether "the result of the election may have been affected". I agree, with respect, with Toohey J., that in performing that duty the court is to look "at real not merely theoretical possibilities". However it should be noted that his Honour is speaking of possibilities - not probabilities. In my opinion, where the possibility is "real" - as distinct from "merely theoretical" - it is proper for the court to form the opinion that' the result of the election "may have been affected". In s. 165(4) the words used - "the result of the election may have been affected" - are different from those considered by Mitchell J. in Crafter v Webster and Guscott (No. 2) (1980) 23 SASR 321; there the (S.A.) Electoral Act 1929-1976 provided, ins. 185, that no "election shall be declared void on account of any ... error ... which is not proved to have affected the result of the election" (emphasis added). They are also different from those considered by Isaacs J. in Kean v Kerby (1920) 27 CLR 449; there, s. 194 of the Commonwealth Electoral Act 1918-1919 provided that "No election shall be avoided ... on account of the ... error of any officer which shall not be proved to have affected the result of the election" (emphasis added). In that case Isaacs J. pointed out that the position was different in England, saying (at 458) that under the English legislation "if the matter is left so that the mistake may have affected the result, the election may be declared invalid. Under our (Commonwealth Electoral] Act it is different". The Legislature, in enacting s. 165(4) of the Act with the words "the result ... may have been affected" must be assumed to have intended a different meaning from that of the words used in s. 194 of the Commonwealth Electoral Act 1918-1919, to which Isaacs J. was referring. In my opinion the Legislature intended that the court, in considering whether to form the opinion that, on the material before it, "the result of the election may have been affected", should take into account those possibilities which it considers are "real not merely theoretical possibilities" - to use the words of Toohey J. Where the court considers that such possibilities exist, it should not speculate as to whether there is a "likelihood" that the result would have been affected. It may be noted that the Legislature used the word "likelihood" in s. 165(4), when it was referring to the "likelihood [of] similar irregularities" but did not refer to the "likelihood" of the result of the election being affected. In this connexion I adopt, with respect, the following passage from the judgment of Griffith CJ. in Chanter v Blackwood (No. 2) (1904) 1 CLR 121 at 131:- "I cannot see that any other result can follow when a number of persons, sufficient to change the majority into a minority, if they all voted against the candidate having the majority, have wrongly been allowed to vote. I cannot enquire how they actually voted. It is clear that they may have voted for the respondent, in which case the petitioner's majority would be larger, or that they may have all voted for the petitioner, in which case the respondent would have been elected. But the numbers being as they are, it is impossible for me to say that the majority of the electors may not have been prevented from exercising their free choice." In the present case, the margin in favour of the successful candidate was only 27 votes. Eight persons were wrongly denied a vote. More importantly, 59 persons were wrongly given ballot papers. There is no material before the court as to how many of the 59 persons in fact voted, or as to how many voted for the successful candidate; further, it can not be known how many of the eight would have voted if given the ballot papers to which each was admittedly entitled or for which candidate each would have voted. It may be interpolated that Mr. Meegan very briefly referred, in his final address, to the possibility of a subpoena being served upon each of the 59 persons in an endeavour to obtain evidence as to whether they had voted but said that there were enormous practical problems in such a course. No party has suggested that such a step should be taken and in my opinion it is not warranted in all the circumstances of the case, including the length of the hearing and the number of occasions upon which the hearing has already been adjourned, at the request of a party, to enable further investigation. I am not prepared to uphold Mr. Stanley's submission that the court should have regard to the general voting pattern and reach the conclusion that, on the balance of probabilities, only approximately 30% of the 59 persons would have voted - a submission based upon the fact that only approximately 30% of the ballot papers issued were returned to the returning officer. In my opinion such a "conclusion" in respect of the 59 persons would be mere conjecture and cannot be inferred from the fact that approximately 30% of the overall electorate voted. For similar reasons I am not prepared to conclude that only approximately 30% of the 8 persons would have voted. In my opinion the result of the election may have been affected by the irregularities found to have occurred. Mr. Stanley's submission was supported by reference to dicta in a number of decided cases, including that decided by Smithers J., sittang as the Australian Industrial Court, in Re Behan (unreported -— delivered 19 November 1976). His oo 10. Honour said (at p. 25) that "Something more is required than an opinion that 1t "could" possibly have been affected" and (at p. 33) that:- ",.. having regard to the general voting pattern it is most unlikely that they would all or even mostly have voted for the same candidate or candidates. Accordingly it would, in the particular circumstances of this election and of the membership of this Branch, and I wish to emphasise this, be unreal to think that the result of the election may have been affected by the failure to send ballot papers to these 309 persons." (emphasis added) It may be that his Honour's words, read in their overall context, do not express a principle that is different from that expressed by Toohey J. However, if the opinions expressed by their Honours do differ, then, with the greatest of respect for that of Smithers J., I prefer the principle expressed by Toohey J. in Ex parte Ferguson (supra). I also prefer that principle to the dicta in other cases cited by Mr. Stanley where, and to the extent that, they depart from that principle. One case was Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 ALR 330 at 337 where Sheppard J. said:-— "... Mor am I satisfied that each of the 56 persons, if he or she had received a ballot paper, would have voted. In round terms, 6000 persons out of a total electorate of 15,000 cast votes." 11. It may be noted that the report of that decision does not give the "winning margin" of the successful candidate. In froja v A-M.I.E.U. (1978) 46 FLR 340 at 348 the "margin" was 720 and the number wrongly given votes was approximately 4,900. Another case cited by Mr. Stanley was Kelly v Amalgamated Metal Workers' and Shipwrights' Union (1981) 56 PLR 124 at 148 where Sheppard J. referred to "a real or distinct possibility" that the result may have been affected. Mr. Stanley also sought to rely upon aé_ reference by Fitzgerald J., in Re Penhallurick (1983) 51 ALR 589 at 598, to "a practical risk, which is more than mere fanciful speculation, that [it] ... might have affected the result of the election". Those two passages may be compared with the principle expressed by Toohey J. that "the Court is looking at real not merely theoretical possibilities". Lastly, in Re Bragg (1985) 60 ALR 136 at 154 there is a dictum of mine which gives some support to Mr. Stanley's argument. That statement was expressly (p. 153) made obiter and without any contrary submissions being put as to the meaning of the words in s. 165(4); further, it was made before the decision in Ex parte Ferguson and I have no hesitation in following the principle expressed by Toohey J. in that case 1n preference to my obiter dictum in Bragg's case. 12. It was also submitted by Mr. Stanley that the court, even if it were satisfied that the result of the election may have been affected, should decline, in the exercise of its discretion, to declare the election invalid. I accept that the court has a residual discretion and could decline to declare the election invalid if there were cogent reasons favouring that course in all the circumstances of the case (Kelly's case supra - per Sheppard J. at 149). I agree, with respect, with Sheppard J. that "there may be cases in which ... it would be in the public interest or in the interests of ... all of the members of a union not to act [to declare void an election)". However, as at present advised, I am unable to envisage a case in which the court could so decide "in the interests of some ... of the members ...". I am not prepared to uphold Mr. Stanley's submission that circumstances exist warranting the exercise of the court's discretion to decline to make the order. The exercise of the discretion in the manner sought would not necessarily assist in overcoming whatever problems may exist in relation to other ballots conducted at the same time. Accordingly, having determined that irregularities have occurred, I have decided to make orders:- ve 13. 1. Declaring the election to be void. 2. Declaring that Luis Cuevas, a person purporting to have been elected, not to have been elected. 3. Directing the Industrial Registrar to make arrangements for a new election to be held. 4, Reserving liberty to all parties to apply. I certify this and the preceding twelve pages to be a true copy of the Reasons for Judgment of his Honour Mr. Justice Keely Associate : Alan & . Date: Js4-S7 ¥ Dates of Hearing Counsel for the Applicant Solicitors for the Applicant Counsel for the Union Solicitors for the Union Counsel for Mr. Cuevas, the successful candidate Solicitors for Mr. Cuevas, the successful candidate Counsel for the Returning Officer Solicitors for the Returning Officer 14. 20, 23, 24, 25, 26 February 23, 24, 25 March, 14 & 15 April Mr. P. McCusker Johnston Withers McCusker & Co. Mr. T. Stanley Duncan Groom Hannon & John Mr. Meegan Palios Meegan & Nicholson Mr. G. Materne Australian Government Solicitor