JUDGMENT Mo. PAS f BB... CATCHWORDS INDUSTRIAL LAW - rules of registered organization - election being conducted by Electoral Officer under s. 170 of Conciliation and Arbitration Act - whether Act requires him to observe rules - whether Court has jurisdiction to give directions to him under s. 141 - whether his advertisement calling for nominations was "a step" in the election - whether his advertisemeent of the period of any necessary ballot was "a step" in the election Conciliation and Arbitration Act 1904 LINDSAY JAMES TANNER v GARY R. HALL & JOHN WILLIAM NELLOR 15 APRIL, 1988 V5 OF 1988 MELBOURNE KEELY J. IN THE FED COURT OF AUSTRALIA ) ) VICTORIA ICT REGISTRY ) No. V 5 of 1988 ) ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 AND: IN THE MATTER of LINDSAY JAMES TANNER Applicant AND: GARY __R. HALL and JOHN WILLIAM NELLOR Respondents 15 APRIL, 1988 KEELY J. REASONS FOR JUDGMENT On 7 April, 1988 a rule was granted calling upon the first named respondent to show cause why an order should not be made under s. 141 of the Conciliation and Arbitration Act 1904 (the Act). The order sought related to an election (the election) for certain offices in the Victorian Branch (the Branch) of the Federated Clerks Union of Australia (the Union), which is an organization of employees registered under the Act. The election was being conducted by the first respondent, a member of the staff of the Australian Electoral Commission - see s. 170(5) of the Act; he commenced leave on 31 March 1988, on which date the second respondent, another member of the staff, was "nominated Cby the Electoral Commissioner] to take over the conduct of the election from 31 March 1988". Mr. B. J. Doyle, of counsel appeared for the second named respondent, who was added as a respondent on his own application and without objection by the applicant. Mr. Ian Fehring, of counsel, appeared for the applicant, whois a member of the Union and Assistant State Secretary of the Branch. He sought orders that each of the two respondents perform and observe the rules of the Union and of the Branch by: "(a) Closing the period for the lodging of nominations of candidates Cin the] election . by not later than 18th April, 1988. (b) Opening the ballot for those offices .»» not earlier than 2nd May, 1988 and not later than 16th May, 1988. (c) Closing the ballot for those offices +e. On 30th May, 1988." Mr. Tracey, of counsel, appeared for the Union, which was initially granted leave to intervene only on the question of the manner in which the court should exercise 1ts discretion under s. 141. However, certain developments during the hearing of submissions as to the respondents' contention that the court had no jurisdiction to make the order sought, led to the court giving the Union leave to advance submissions as to that question of jurisdiction. The submissions by both Mr. Doyle and Mr. Tracey that the court has no jurisdiction to make the order sought were based upon two separate contentions. First, it was said that, as the respondents were not members of the Union, neither was a "person who is under an obligation to perform or observe Cthe rules of the Unionj" within the meaning of those words in s. 141(1G) of the Act. Second it was contended that s. 141(5) of the Act acted as a bar to the making of the orders sought. As to the first contention, reliance was placed upon the decision of the Commonwealth Court of Conciliation and Arbitration in Holmes v Riordan and Martin (1955) 86 CAR 180 where the Court (Kirby and Morgan JJ., Dunphy J. dissenting) held (p. 187) that the rule "to show cause against the respondent Martin should be discharged". Mr. Martin was the Commonwealth Electoral Officer conducting the election under 3s. 96M of the Act at that time - see now s. 170 and s. 170A of the Act. Morgan J. delivered the reasons of Kirby J. and himself which (at 187) expressed their disagreeement with an opinion expressed by Dunphy J. in the earlier case of Ahearn v McKeon (1951) 72 CAR 93 at 100. In their reasons for judgment they quoted (at 186) passages from the decisions of the High Court in Federated Ironworkers' Association of Australia v The Commonwealth and Others (1951) 84 CLR 265 at 283 and in The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section and Others (1953) 89 CLR 636 at 646-7 and said: "It would appear to follow that Martin is someone who must conduct the election in accordance with the rules insofar as he does not depart from them within the powers given to him by section 96M(6), but as he has those powers it seems to us incongruous that he should be ordered by the Court to observe rules some of which at least he can - within his own discretion properly exercised - break, particularly as_ the Court cannot know which rules he might decide by his actions or directions should not be observed. We do not think that we should regard the Legislature as having intended to create so incongruous a situation." Following upon that decision, Mr. Holmes applied to the High Court for writs of mandamus against both the Arbitration Court and Mr. Martin. Fullagar J. refused both applications and the applicant then appealed to the Full High Court from that refusal. There is no law report containing the reasons for judgment given by the Full High Court. However, Mr. Doyle and Mr. Tracey relied upon the following passage in the judgment of the Commonwealth Industrial Court (Spicer CJ., Dunphy and Kerr JJ.) in Mawbey v Thone and Others (1969) 15 FLR 161 at 165 which referred to the decision of Kirby and Morgan JJ. in Holmes v Riordan (supra) and said: ".,. the effect of which Cdecision] is that in an election conducted under s. 170 the electoral officer cannot be subjected to control by this Court by way of orders made under s. 141. This decision was affirmed by the High Court (10 Industrial Information Bulletin 421)." A reading of the "report" in the Industrial Information Bulletin, which did not purport to give a verbatim report, did not appear to support the statement in Mawbey v Thone that the decision of Kirby and Morgan JJ. in Holmes v Riordan "was affirmed by the High Court". The material portion oof the "report" . in the Industrial Information Bulletin was as follows (at 422): "Section 81, the Chief Justice said, deals with people who are under an obligation to perform or observe the rules of an organisation and that Martin was not under such an obligation, but had, in his duties, the use of the rules as a guide to the manner in which the elections should be conducted and not to depart from that guide without due reason. It was argued that Section 81 obliges the official Returning Officer appointed under Section 96M to observe the rules of the organisation and further that this officer is obliged under Section 96M to ensure that no irregularities and no breaches of rules occurred in the elections. The Chief Justice stated that it was not a question for the Court to investigate what the obligation was, but rather whether there was any foundation fora Writ of Mandamus. Wilitams J. said that the Act takes away all the remedies in the case of irregularities provided by the earlier sections of the Act, and said that those powers are not to apply to an election conducted under Section 96M. The Chief Justice delivered a unanimous decision of the Court. He said that in so far as the Arbitration Court was made the object of the proposed Writ, it should be refused on the ground that Section 81 was inapplicable. In so far as the proposed Writ was intended to be directed against Martin, it was an unsuitable remedy and inapplicable to the complaints made." On the first day of the present hearing counsel for the parties and the Union advanced certain submissions as_ to the meaning and effect of the decision of the Full High Court (Dixon CJ., McTiernan, Williams, Kitto and Taylor JJ.) - as "reported" in the Industrial Information Bulletin. It will be apparent from the terms of the passage quoted from that Bulletin that it was referring not only to statements in the "unanimous decision of the Court" (to which express reference is made in the last three sentences) but also to statements made by the Chief Justice and by Williams J. which, it seemed, could not have formed part of that unanimous decision. In addition, it did not purport to report verbatim any portion of the reasons for decision. Having regard to the importance of knowing what the High Court had said, the matter was raised with its Registrar who forwarded to this court the reasons for decision of Fullagar J. (on 18 May 1955) and the full transcript of the proceedings (on 20 May 1955) before the Full High Court, including its reasons for decision, read by Dixon CJ. Copies of those documents were provided to counsel for each party and for the Union. The reasons for decision were as follows: "We are of the opinion that this application should be refused. So far as the Arbitration Court is made the object of the proposed writ, we think it should be refused on the ground that Section 81 is not applicable. So far as the proposed writ is intended to be directed against Martin, we think it is an unsuitable remedy and a remedy which is not applicable to the complaints made. Had we thought that an order nisi might otherwise have been granted, we would have taken time to ascertain whether the poll had been declared before dealing with the application, but as we think that it should be refused in any case, we refuse it now." It will be noted that those reasons are very short. Counsel for the applicant, on the one hand, and for the respondents and the Union, on the other, put opposing submissions as to the meaning of those reasons. In my opinion the High Court decided that the Arbitration Court had not wrongly refused to exercise jurisdiction and accordingly that a writ of mandamus should be refused; the basis of that decision was that Mr. Martin was not a "person who is. under an obligation to perform or observe Cthe rules". Counsel for the parties and the Union referred to passages in the transcript of the proceedings in the High Court as supporting their respective submissions. In my opinion it will rarely be permissible for reliance to be placed upon such a transcript (i.e. of statements made by a judge during the hearing of oral argument) in order to support a submission as to the meaning of the reasons for judgment of that judge. If such a course is ever permissible, then this may well be an appropriate case - having regard to the brevity of the reasons given and the fact that they were delivered immediately at the conclusion of the applicant's submission, in an ex parte hearing. If it is permissible to have regard to that transcript in considering the meaning of the reasons for judgment, in my opinion it supports the opinion which I have expressed as_ to the basis of the High Court's decision. Because of the importance of the question raised by the first contention that the court has no jurisdiction, it seems appropriate to set out two passages from that transcript; they contain reasons why an Australian Electoral Officer, conducting an election under ss. 170 and 170A of the Act, should be held not to be a "person who is under an obligation to observe Cthe rules of the organization]": "DIXON CJd.: Let us come now to the position of the Court to begin with, in s. 81. S. 81 seems to be dealing with people who are under an obligation to perform or observe the rules. "The Court may make an order giving directions as to the performance or observance of any of the rules of an organisation by any person who is under an obligation to observe those rules." I would have thought that "those rules" meant "the" rules of the organisation, not a particular one. Here you have a man who is not under an obligation to observe the rules of an organisation as such, but has in fact certain duties in the performance of his function. One of those is to use the rules as a guide as to the manner in which the elections shall be conducted; not to depart from that guide without due reason. Can you bring that situation within the words "under an obligation to observe and perform the rules of the organisation?" I ean see the analogy, but it is not the same situation, is it? Cp. 181] MR. MILLER: It is submitted that section 81 Cnow s. 141], as the majority of the learned Judges in the Arbitration Court - they accept that Martin is a person bound to observe the rules, "except to the extent to which ..." etc. Once that position is accepted, he is a person within the reach of Section 81. DIXON, CJ.: As at present advised I am not inclined to think it would come within those words. His situation is a different one. It may be going too far to suggest that those rules meant the whole of the rules. It would mean that those rules would be applicable to the situation, but just as a body of rules and he was under their application in various situations which might arise. It rather looks to me as if Section 81 contemplates a different situation from that returning officer, who is, I agree, under a duty of a kind to treat these rules as a guide and to provide the means by which the election can be conducted, subject to his discretion in relation to the rules in particular circumstances. But he is not bound by them as such, is he? It is not their force which comes upon hin. And it is a qualified duty." I accept Mr. Fehring's submission that s. 170A(1) of the Act impliedly imposed upon the respondents the duty to observe the rules of the Union - subject to the very important qualification that the sub-section expressly conferred upon them the right, in circumstances detailed by it, to take action and give directions "notwithstanding anything contained in the rules of the organization or branch". However, I accept Mr. Doyle's submission that, in the light of that qualification, it cannot be said that either respondent at the relevant times, was a "person who Cwas] under an obligation to perform or observe" the rules of the Union within the meaning of s. 141(1G). 10. As the first contention advanced by both Mr. Doyle and Mr. Tracey, in support of their submissions that the court has no jurisdiction to make the order sought, has been upheld, the rule to show cause must be discharged. As their second contention has been argued at some length, I should express my opinion that it also should be upheld. It was based upon s. 141(5) of the Act which provided that: "An order shall not be made under this section that would have the effect of treating as invalid an officially conducted ballot or a step in such a ballot." The first respondent had inserted in "The Age" newspaper on 31 March 1988, an advertisement, over his name as "Returning Officer", which included the following: "Nominations which comply with the requirements of the registered rules of the Organisation, are invited and may be made at any time from 31 March 1988 and must reach me not later than 12 noon on Thursday, 21 April 1988. Nominations sent by post must also reach me by that time. Should a ballot be necessary, voting material will be posted to eligible members at the address shown in the Organisation's records. I intend to open the ballot on 31 May 1988 and close it at 9.00 am on 21 June 1988." rr ll. The applicant contended that the periods fixed by the first respondent in that advertisement did not comply "with the relevant rules of the Victorian Branch in respect of the time for the closing of nominations and the conduct of [the] ballot". The respondents do not dispute that the times fixed fail to comply with the Branch rules; however, they contend that the action of the fixing of those periods was authorised by s. 170A(1) of the Act. In my opinion if the order sought by the applicant was made it "would have the effect of treating as invalid ... a step in Can officially conducted] ballot" and such an order is forbidden by s. 141(5) of the Act. The submissions on this aspect focussed upon the meaning of the words "a step in... a ballot" i.e. in an election conducted under s. 170 - see s,. 141(9). In my opinion the action of the first respondent in calling for nominations was a step in the election - see Friend v Barnes (1969) 15 FLR 184 - at 201, 204 per Spicer CJ. and Smithers J. I am umable to uphold Mr. Fehring's ingenious and forcefully presented argument that, at least as to the times for the ballot, the advertisement, properly construed, was no more than a statement by the returning officer as to his 'future intention if a certain event occurred, namely that a Ts 12. ballot became necessary. I accept Mr. Tracey's submission that, by inserting the relevant statement in the advertisement, the returning officer committed himself, by a formal public pronouncement, to taking action, under s. 170A(1), which departed from the Branch rules. On that basis the fixing of dates for the actual ballot was, in my opinion "a step" in the election; accordingly s. 141(5) forbids the making of the order sought in respect of that action by the returning officer. The rule to show cause is discharged. I certify that this and the preceding eleven pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Keely delivered on 15 April, 1988. Associate: Philp Cie non , '* Dates of Hearing Solicitors for Applicant Counsel for Applicant Solicitors for Respondent Counsel for Respondent Solicitors for the Union Counsel for the Union is. 7, 13, 14 & 15 April, Holding Redlich Mr. I. Fehring Australian Government Solicitor Mr. B. J. Doyle A. J. Macken & Co. Mr. R. Tracey