JUDGMENT No. 3347 88... UL ivi CATCHWORDS INDUSTRIAL LAW -— registered organization - applications for election inquiry - interpretation of rules - whether rule 53(18)(b) contravenes s. 133(1)(c) of the Act - whether "defect" in rule 53(18)(b) limited to ""patent" defect - meaning of "the date of nominations" in rule 50 - whether unfinanciality of candidate and/or nominator can _ be "remedied" after nominations closed - whether requirement that candidates and nominators be financial members over a period of time is oppressive, unreasonable or unjust - certificate under s. 168 of the Act that applicants acted reasonably in bringing applications. Conciliation and Arbitration Act 1904 ss. 2(f£), 133(10(c), 140(1)(a), 140(1)(c), 159(4), 165(4) and 168(2) a Spiratos v Australasian "United Steam Navigation Co. Ltd. (1955) 93 CLR 317 TNT Management Pty. Ltd. v Brooks (1979) 23 ALR 345 Mawbey v Thone & Ors. (1969) 15 FLR 161 Naqvi - Re Election Inquiry (unreported - delivered 26/3/81) Kioa & Ors. v West & Anor. (1985) 159 CLR 550 Applications by FRANK TROJA, PATRICK MULDOON and WARWICK SHANKS for inquiry into alleged irregularities in election for offices in Victorian Branch of the AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION NOS. VI 48, 49 & 51 OF 1986 KEELY J. 19 JULY, 1988 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION JUDGE MAKING ORDERS PLACE ORDERS MADE DATE OF ORDERS KEELY J. ) ) ) Nos. VI 48, 49 & 51 of ) 1986 ) THE MATTER of an slectinn for offices in the Victorian Branch of the AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION AND IN THE MATTER of applications by FRANK TROJA, PATRICK MULDOON and WARWICK SHANKS for an inquiry into alleged irregularities in or in connexion with the said election. MELBOURNE 19 JuLY, 1988 MINUTES OF ORDER THE COURT ORDERS THAT : 1. The inquiries instituted by the references to the court of the applications of Frank Troja, Patrick Muldoon and Warwick Shanks be terminated. 2. 2. Each applicant have a certificate under s. 168(2) of the Conciliation and Arbitration Act 1904 that they acted reasonably in applying for the inquiry. (Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA) VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISION 19 JULY, 1988 ) ) Nos. VI 48, 49 & 51 of ) 1986 ) IN THE MATTER of an election for offices in the Victorian Branch of the AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION AND THE MATTER of Suplicattons by FRANK TROJA, PATRICK MULDOON and WARWICK SHANKS for an Inquiry into alleged irregularities in or in connexion with the said election. KEELY J. REASONS FOR JUDGMENT In September-November 1986 an election was conducted under s. 170 of the Conciliation and Arbitration Act 1904 ("the Act") for three offices in the Victorian Branch of the Australasian Meat Industry Employees Union ("the Union"), an organization of employees registered under the Act. The election was conducted by Jeffrey William Howarth ("the returning officer"), a member of the staff of the Australian Electoral Commission, Melbourne. Frank Troja, Patrick Muldoon and Warwick Shanks each claimed that there had been irregularities in or in connexion with the election and on 13 and 18 November 1986 lodged applications under s. 159 of the Act for an inquiry by the court. On 17 and 20 November 1986 the Industrial Registrar referred those applications to the court under s. 159(4) of the Act. Reasons for the delay before the hearing commenced Hearings as to various procedural matters took place on 2 and 17 December, 1986 and on the latter date the matters were adjourned to a date to be fixed, on the basis that counsel for the parties would have discussions, designed to clarify the issues in the inquiry and to reach agreement, as far as possible, as to various factual matters. Those discussions extended over a lengthy period of time and, asa result, the matter was not listed for hearing until 22 October, 1987. On that day the court was informed by counsel for the Union and the successful candidates and by counsel for the applicants that the delay had arisen by reason of the need for the parties _to investigate factual matters, including questions as to whether Mr. Baker, who had nominated two candidates, had paid his contributions to the Union in respect of certain half-years over a period of 15 years. Further affidavits were filed in January and February 1988 and on 2 March 1988. The matter was heard on 7, 8, 9 and 10 March 1988 ~ during which time a substantial amount of oral evidence was heard. After hearing submissions as to the future progress of the inquiry the inquiry was adjourned; after a further short hearing on 28 March, 1988 final addresses, commencing on 16 May 1988, occupied more than 8 hearing days. Mr. Tracey, of counsel, appeared for the three applicants. Mr. G. Moore, of counsel, appeared for the returning officer and the Australian Electoral Commission. Mr. A. M. North, of counsel, appeared for Messrs. Dougan, Bird and Terpos, who were the successful candidates for the three offices the subject of the inquiry, for Mr. Curran, the secretary of the Victorian Branch, and for the Union. It will be convenient to refer to the persons for whom he appeared as "the respondents". Agreed Facts A statement setting out facts which had been agreed upon by those three counsel was tendered in evidence. That statement included the following matters: i. On 26 September, 1986 a notice was published calling for nominations for certain positions in the Victorian Branch, That notice included the following:- "The Australasian Meat Industry Employees Union Victorian Branch Notice to Members The Deputy Industrial Registrar has made arrangements with the Electoral Commissioner under section 170 of the Conciliation and Arbitration Act 1904 for me to conduct vacancy elections for the following offices for the remainder of the term of office: Branch President Branch Assistant Secretary Committee of Management Representatives as follows: SCI Meat and Paper Pty Ltd - Richmond (1) R J Ralphs - Brooklyn (1) Meat Pak - Camperdown (1) Nominations, which comply with the requirements of the registered rules of the Union, are invited and may be made at any time from 26 September 1986 and must reach me not later than 12 noon on Monday, 13 October 1986. 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 Union's records. I intend to open the ballot on 17 November 1986 and close it at 9 am on Monday 1 December 1986. Nomination Forms can be obtained from the Branch Office of the Union or from me at the address shown below." * (The present proceedings are not directed towards the offices of Committee of Management representatives at R. J. Ralphs - Brooklyn or Meat Pak - Camperdown). 2. The timetable for the election included provision that nominations would open on 26 September, 1986 and close at 12 noon on 13 October, 1986. 3. At all material times the following were rules of the Union: "Rule 6 - Contributions (1) A sum in payment of contributions of an amount of not less than thirty-five dollars ($35) and not more than One hundred and fifty dollars ($150) as may be decided upon by the Committee of Management of any Branch, shall be paid half~yearly not later than January 31 and July 31 each year by all members, each Branch, sub-Branch or district committee shall have the right to demand payment of such contributions, for which a membership ticket shall be issued, conditionally that all fines and levies due are paid, such ticket to be inter- changeable between all branches of the Union. Persons joining the Union following these dates and unfinancial members who pay all contributions, fines, and levies shall be issued with a ticket. (2) Such contributions shall be paid to and collected by the Branch Secretary or authorised official of the Union. (2A) Notwithstanding any provisions to the contrary contained elsewhere in these rules a Branch may make arrangements with an employer for deducting on the authority of any member (including a person eligible to become a member pursuant to Rule 5) of these rules amounts by way of contributions, payable to the Union in accordance with these rules from the wages or monies payable by the employer to the member. Where such arrangement was made or such an authority was given before this Sub-Rule came into force, the financial status of any member who is given such authority shall be determined as if the Sub-Rule had been enforced immediately prior thereto. 6A — Eligibility to Vote (1) Notwithstanding any provisions to the contrary in these rules, a member shall be deemed eligible to vote in any elections provided for by these rules, (a) if he has paid during the half-year immediately preceding the half-year in which the ballot is conducted the contributions fixed pursuant to Rule 6(1) of these rules for that preceding half-year, and has also paid any fine, levies or other monies (other than arrears of contributions) which may be owing to the Union not later than 30 days before the date fixed for the closing of the ballot. (2) Neither the payment of half-year's contributions as set out in Sub-Rule (1)(a) of this rule, nor, anything contained in these rules, shall preclude the Union or any Branch, Sub-Branch or District Committee thereof from recovering all contributions in respect of any previous half-year, or any fines, levies or other monies which may be owing from time to time from any member of the Union. a eeoee 10 -— Members Unfinancial A member who owes to the Union:- (a) Any contributions for a longer period than one calendar month after the due date for the payment thereof; or (b) Any levy for a longer period than one calendar month after the last day on which such levy may be paid; or (c) Any fine for a longer period than one calendar month from the date of the decision imposing the fine; or (d) Any contributions which he _ had collected on behalf of the Union, shall be deemed unfinancial and while he so remains unfinancial, shall be excluded from all the privileges, except the right to vote pursuant to Rule 6A, but not from the obligations of membership, and shall at all times be and remain liable to pay the whole of such arrears of contributions, fines, levies, and monies collected on behalf of the Union, and the Union may at any time sue such member without prior notice for the whole or any part of the monies owed by him. 50 - Qualifications for Office Except in the case of officers elected in the first twelve months of the formation of the Branch, no person shall be eligible to be elected to office unless he has been a member of the Union for at least 12 months immediately preceding his nomination for election, and is a financial member of the Branch of which he intends to seek office at the time of nomination. A retiring officer shall be eligible for re-election. No person shall be eligible for election to office who will reach the age of sixty-five (65) years before the date of nominations. 53 -— Branch ... Committee Elections (18) Manner in Which Pergons May Become Candidates for Election. (a) Subject to these rules, each nomination shall be in writing and shall be signed by at least two financial members of the Union, and the nominee shall consent thereto and authenticate the same by his signature, which assent may be either upon one nomination paper or otherwise. Candidates shall be financial in accordance with these rules. (b) The Returning Officer shall have the right in accordance with these rules to accept or reject such nominations; provided that if he rejects any nomination, the following provisions shall have effect:- (i) The Returning Officer shall notify the person concerned of the defect in the nomination; and (ii) The Returning Officer shall, where practicable to do so, give the person concerned the opportunity of remedying the defect within seven (7) days after being notified of the defect. . (iii) If the person concerned within such period is able and does in fact remedy the defect in the Nomination in accordance with these rules, the Returning Officer shall thereupon accept such nomination. (20) Members Entitled to Nominate. Only members of the Union financial in accordance with these rules shall be entitled to nominate for office at any election." 4, At the close of nominations (at 12 noon on 13 October, 1986) the returning officer had *received the following nominations for the following affices: Branch President - David George Dougan, Darryl Johnson and Patrick Muldoon Branch Assistant Secretary ~ Graham Bird, Frank Troja and Warwick Shanks Committee of Management Representative - Darryl Johnson and Con Terpos 5. On 13 October 1986 Patrick Muldoon lodged a nomination for the office of Branch President. By telegram dated 23 October 1986 the returning officer notified Mr. Muldoon that his nomination was defective because Robert Andrews (one of those who had nominated him) was not a financial member of the Union. That telegram, omitting formal parts, was in the following terms: "Australasian Meat Industry Employees Union - Victorian Branch Elections In accordance with rule 53(18)(b) of the rules of the Australasian Meat Industry Employees Union I am hereby notifying you that your nomination for the office of Branch President is defective. The Union's records show that at the time of nomination, nominator Robert Andrews was not a financial member and _ therefore ineligible to nominate you. (Rule 53(18)(a) refers). In the absence of any proof to the contrary or advice from another elifible financial nominator being received by me, I intend to formally reject your nomination after 12 noon on Friday 31 October 1986." 6. On 13 October, 1986 Warwick Shanks lodged a nomination for the office of Branch Assistant Secretary, being nominated by Robert Andrews and Patrick Muldoon. By telegram dated 23 October 1986 the returning officer notified Mr. Shanks that his nomination was defective because Mr. Andrews was not a financial member of the Union. 10. 7. On 29 and 30 October 1986 respectively Mr. Muldoon and Mr. Shanks each submitted a second nomination form. 8. Messrs. Robert Lang and Paul Baker were the nominators on the second nomination form for both Mr. Muldoon and Mr. Shanks as candidates. By letter dated 3 November 1986 the returning officer rejected the nominations of both of them as candidates on the ground that Messrs. Lang and Baker were not financial members of the Union. 9. On 13 October 1986 Darryl Johnson lodged a nomination for the offices of Branch President and Committee of Management Representative from SCI Meat and Paper Pty. Ltd. - Richmond. 10. By telegram dated 23 October 1986 the returning officer notified Mr. Johnson that his nominations were defective because he was not a financial member of the Union. It is convenient to note, at this stage, that Mr. Tracey, on behalf of the applicants, accepted that, on the evidence before the court, he was unable to submit that either Mr. Johnson or Mr. Andrews was a financial member of the Union at the material time. Whether Mr. Baker was a financial member at the material time 11. Mr. Baker gave evidence that he was financial and that he had always paid his Union dues. He was subject to a carefully prepared cross~examination by Mr. North, on behalf of the respondents. It was not suggested by Mr. North that Mr. Baker was an untruthful witness and I am satisfied that in giving his evidence he honestly believed that he had paid all his dues and was therefore a financial member at the material time. However, although I accept that Mr. Baker's evidence was what he believed to be the truth, the cross-examination revealed that on some matters Mr. Baker was giving evidence of what he believed "would have" happened as to payment of his Union dues; he was not able to remember precisely what had happened on some occasions and was "reconstructing" the events. It is not surprising that he had difficulty in remembering precisely what had happened as to the payment of his dues on a number of occasions during a period of approximately 20 years; 1t may be added that he was initially unable to remember having made a payment of Union dues to the Australian Workers Union. I have considered Mr. Baker's evidence and the relevant documentary evidence in the light of the very detailed submissions made both by Mr. North, as to why Mr. Baker's evidence should not be accepted, and by Mr. Tracey, as to why it should be accepted. Mr. North referred, amongst other things, to (1) the "reconstruction" by Mr. Baker in 12. giving his evidence; (2) affidavit evidence, which was not the subject of cross~examination, and other evidentiary material suggesting that an employer did not deduct Union dues from Mr. Baker's wages; (3) the "spontaneous evidence" (as Mr. North described it) given by Mr. Baker that he "apologised" to Mr. Shanks when told that he, Mr. Baker, was not a financial member; (4) the absence of any corroborative evidence as to the payment of Union dues to the Union delegate, Mr. Lehner, during the first half of 1975 and the second half of 1978. As to the latter I have taken into account Mr. Tracey's submission that Mr. Baker, not being the applicant in the case, was under no duty to lead corroborating evidence. I have also considered each of the seven matters listed on pages 7-8 of the applicants' amended contentions of fact and law (dated 20 April 1988), as well as the transcript references and other matters cited by Mr. Tracey in his final address. a In Spiratos v Australasian United Steam Navigation Company Limited (1955) 93 CLR 317, Dixon CJ., Webb and Fullagar JJ. said (at 322-323) that the claimant: "... must induce in the tribunal a belief that death did occurr by accident - not as a matter of certainty but as a matter of definitely preponderant probability. 'The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities 13. independently of any belief in its reality' (per Dixon J. in Briginshaw v Briginshaw (1938) 60 CLR 336, at p. 361)". I am aware that the opinion of Dixon J. in Briginshaw's case was criticised in TNT Management Pty. Ltd. v Brooks (1979) 23 ALR 345 at p. 352-353 by Murphy J., who also stated that Nesterczuk v Mortimore (1965) 115 CLR 140 was "incorrectly decided" by Kitto, Menzies, Windeyer and Owen JJ.; Murphy J. did not refer to the above passage from the reasons for judgment of Dixon CJ., Webb and Fullagar JJ. in Spiratos at 322-323. Applying that statement of principle to the present matter, I am unable to find as a fact that Mr. Baker paid his Union dues in respect of each of the six half yearly periods in dispute. It is, of course, possible that he did make the payments in respect of each of those periods but the evidence as a whole has not satisfied me, "as a matter of definitely preponderant probability", that Mr." Baker made the payments in respect of every one of the periods. It follows that I am unable to uphold Mr. Tracey's submission that Mr. Baker was eligible to nominate Mr. Shanks and Mr. Muldoon. It should be added that, for reasons given later in considering the meaning and effect of the rules, in my opinion it was not open to the returning officer to accept, as a valid nomination, the "second nomination forms", signed 14. by Mr. Baker and Mr. Lang, which were submitted on 29 and 30 October 1986 i.e. after the time fixed for the closing of nominations. That opinion is itself a sufficient answer to the applicants' contention that there was an irregularity consisting of the rejection of the nomination signed by Mr. Baker. However, having regard to the role played by Mr. Baker in the hearing, including the length of his evidence and cross-examination, it seemed appropriate to express my opinion as to his evidence, notwithstanding the conclusion reached as to the construction of the rules. Whether sub-rule 53(18)(b) is valid (s. 133(1)(c)) The terms of sub-rule 53(18)(b) have been set out earlier in these reasons. The applicants contended that it contravened s. 140(1)(a) of the Act in that it was contrary to s. 133(1)(c) of the Act or, alternatively, failed to make a provision required by s. 133(1)(c). That sub-section required that the Union's rules:- "(c) shall provide that, if the returning officer conducting such an election finds a nomination to be defective he shall, before rejecting the nomination, notify the person concerned of the defect and, where it is practicable to do so, give him _ the opportunity of remedying the defect within such period as is applicable under the rules, which shall, where practicable, be not less than 7 days after his being so notified". 15. The applicants' submission is based on the fact that the sub-section provides that the returning officer "shall, before rejecting the nomination, notify the person concerned of the defect" whereas rule 53(18)(b) provides that the returning officer "if he rejects any nomination ... shall notify the person concerned of the defect ..."; they rely upon the fact that the draftsman of the rule used the word "if", instead of the word "before". A careful consideration of the terms of the sub-rule and of its context does not suggest any reason why the Union would have wished the sub-rule to differ in its effect from the rule required by s. 133(1)(c) of the Act. On the contrary, the remainder of the sub-rule appears to be directed towards achieving the effect required by s. 133(1)(c), namely, that "the person concerned", after being "notified" under sub-rule 53(18)(b)(i), shall be given "the opportunity of remedying the defect" (sub-rule 53(18)(b)(ii)). In addition, the material placed before the court by the Union showed that sub-rule 53(18)(b) was substituted as one of a number of rule amendments; in respect of those amendments, a statutory declaration (declared 18 February 1987 and filed with the Industrial Registrar in support of the Union's application for certification of those amendments) contained a statement by Mr. F. T. Hall, the Federal Secretary, that "most of the alterations have become. necessary to meet amendments to the ... Act". 16. In my opinion, in order to give effect to the intention shown by the sub-rule, considered in its context, sub-rule 53(18)(b) should be construed as if the word "before" were substituted for the word "if", appearing immediately before the words "he rejects any nomination". So construed, the sub-rule is valid and is not contrary to s. 133(1)(c) of the Act and the rules, as a whole, do not fail to make a provision required by the provisions of s. 133(1)(c) of the Act. Accordingly, I reject the applicants' contention that an irregularity occurred by reason of the returning officer acting as if rule 53(18)(b) was 1n the form required by s. 133(1)(c). Whether "defect" in rule 53(18)(b) means patent defect The respondents have submitted that the word "defect" in rule 53(18)(b) should be construed as being limited to patent defects, having regard to its context, namely, the imposition of an obligation upon the returning officer. The sub-rule expressly confers upon the returning officer the power to reject nominations and then requires him to "notify the person concerned of the defect ...". In my opinion the returning officer is given the power to reject a nomination by reason of a defect which is not patent e.g. on the ground that the candidate had not "been a member of the Union for at least 12 months immediately preceding his nomination" (rule 17. 50) or on the ground that he was not "a financial member of the Branch ... at the time of nomination" (rule 50). The respondents' submission is rejected. The meaning of "the date of nominations" in rule 50 Submissions were heard on the question whether rule 50, in using the words "the date of nominations", in one place, and the somewhat different words "the time of nomination", in another, intended to refer to dates which might be different. I accept Mr. Moore's submission that in both cases the rule, properly construed, is referring to the same date, namely, the date fixed by the returning officer for the closure of nominations i.e. 13 October 1986 in the present case. In Mawbey v Thone & Others (1969) 15 FLR 161 it was argued that the words "the date of nomination", in the rule there under consideration, meant the date on which each candidate lodged his nomination - and not the date fixed as the closing date for nominations. Spicer CJ., Dunphy and Kerr JJ. (at 180) rejected that argument saying:-— "This is not likely to be what is meant but rather that there would be a "date of nomination" for all candidates by reference to which the qualifications for all were intended to be calculated. It is possible to give r. 68 a meaning which would achieve this by dealing with the matter on the basis that there is objectively speaking a "date of nomination" for all candidates, namely the last day for nominating and this is "the date of nomination" in relation to which tickets must show relevant membership qualifications." 18. Notwithstanding that the words there under consideration included the word "nomination" and not "nominations", I adopt that statement, with respect, as to the correct approach to the construction of the words in rule 50. Whether the unfinanciality of a candidate is a "defect" which can be remedied under rule 53(18)(b) In addition to his submission (which has_ been rejected) that "defect" in rule 53(18})(b) means patent defect, Mr. North submitted that the fact that a candidate was not financial at the time of nomination (rule 50) was not a defect which could be "remedied" under rule 53(18)(b). He and Mr. Moore both submitted that it could not be remedied because rule 50 required that the candidate be financial "at the time of nomination". That time is the time fixed for the closing of nominations (see Mawbey v Thone - supra, at 179-180). It is not "practicable" to "remedy" that defect after the closing of nominations; it would be quite impossible for a payment to have such a retrospective effect. It was also submitted that Parliament could not have intended, in enacting s. 133(1)(c) (nor could the Union have intended, in inserting rule 53(18)(b)), to over-ride Union rules which expressly required that candidates be financial "at the time of nomination". It was pointed out that Parliament had not stated that s. 133(1)(c) was intended to 19. have such an effect and submitted that 1t should not be held that Parliament left such an important matter to implication. It was also pointed out by Mr. Moore that there was no reference to such an intention, or such an effect, either in the Minister's second reading speech or in the Parliamentary Debate. I accept those submissions, notwithstanding the carefully prepared and presented submissions to the contrary advanced by Mr. Tracey. He relied, amongst other things, on the reasons for decision in Naqvi - Re Election Inquiry (unreported ~- delivered 26 March 1981). However, in that case J.B. Sweeney J. came to the conclusion (p. 10) "that Mr. Naqvi was at the date of nomination a financial member" and accordingly the rejection of his nomination was plainly an "irregularity". His Honour did express the further view that the words "defective nomination" in the rule there under consideration covered "the whole act of nominating, including the requirement that a member be financial". It may well be, as Mr. North submitted, that that statement was based primarily on the fact that the rules in that case included a provision that "([w]here members acceptance qualifications are not in accordance with the rule, they be notified as soon as possible". If it was not so based, then, with the greatest of respect to his Honour, the statement was made obiter and, 20. having heard very full argument in the present case, I am unable to accept it as stating a general proposition of law. It may be added that the reasons for judgment in Naqvi suggest that the matter was not fully argued before J.B. Sweeney J.; certainly the reasons for judgment do not suggest that his Honour heard and rejected submissions comparable with the cogent submissions advanced to me on behalf of both the respondents and the returning officer. I also accept the following submissions by Mr. Moore: (a) that rule 53(18)(b), in referring to "the opportunity of remedying the defect", is referring to an existing, albeit defective, nomination which, like all other nominations, must be lodged no later than "the time set down for the closing of nominations"; if not so lodged it "shall be ruled out as invalid" (rule 53(18)(c)); (b) that certain defects may be remedied after that date but within the period given by the returning officer as an "opportunity of remedying the defect"; however, the defects can not be remedied by the lodging of a new nomination; (c) that, where such a defect has been remedied after the closing of nominations, the nomination is "still a nomination as at the date on which it was lodged". In my opinizon the unfinanciality of a candidate, at the close of nominations, was a "defect" which could not be remedied. 21. Whether the unfinanciality of a nominator can be remedied under rule 53(18){b) Both Mr. Tracey and Mr. Moore submitted that a nominator's unfinanciality can be remedied. Mr. Moore submitted that a defect in the nomination, consisting of the fact that one (or both) of the nominators was (or were) unfinancial at the time when nominations closed, can be remedied by the substitution, after the closing of nominations, of one or more nominators who were financial members when nominations closed ~— but who were not nominators at that time. Mr. Moore accepted that, on that submission, a financial member, who wished to be a candidate, but who, on and before the day on which nominations closed, had been unable to persuade any financial member to nominate him, could lodge a "nomination" form, not signed by - and not even giving the name of - any nominator; that such a "nomination" would have a "defect" (i.e. the absence of any nominators) which could be remedied during any period allowed by the returning officer. On that basis, if the potential candidate could, after the closing of nominations, persuade two members to act as his nominators, the "defect" in his "nomination" could be "remedied" by the "nomination" being signed, after the date fixed for the closing of nominations, by those two members (providing that they were financial at the time when 22. nominations closed). On that submission, such a "defect" in his "nomination" could be "remedied", notwithstanding that those two nominators (together with other financial members of the Union) had refused to be his nominators on and before the date on which nominations closed and notwithstanding that, as a result, the proposed candidate was, on the day when nominations closed, quite unable to lodge a "nomination -.- in writing ... signed by at least two financial members of the Union" as required by sub-rule 53(18)(a). I am unable to reach the conclusion that such a (hypothetical) case could be said to come within the words "defect in the nomination". In his submissions Mr. Moore made it clear that he was not submitting that such a defect could be remedied by the nominator paying his arrears of contributions after the close of nominations. He said that such a procedure would "do violence to the language of the rules, which required the nominator to be financial at the time of nomination" - i.e. in the same way as they required a candidate to be financial at the time of nomination. As Mr. Moore put it, neither the candidate nor the nominator can "ex post facto qualify themselves if they are not already qualified [i.e. financial] by the date of the closure of nominations". In my opinion, by the same reasoning process, the rules require not only that the "nominator" be financial at the time of nomination but also that he be the nominator at 23. that time. Mr. Moore accepts that, after the closing of nominations, it is too late for a nominator (or a candidate) by paying contributions to become financial retrospectively i.e. at the time when nominations closed. In my opinion, for essentially the same reasons, it is too late for a person to become a nominator at that time. Mc. Tracey submitted that the "lack of financiality of a ... nominator" constituted a defect which could be remedied, by reason of rule 53(18), within the period allowed by the returning officer; the same submission was put by him - but not by Mr. Moore - as to the remedying of the unfinanciality of a candidate. For the reasons already given, I am unable to uphold those submissions. It follows from the conclusions already expressed that, on the facts disclosed in these proceedings, rule 53(18)(b)(ii) did not empower the returning officer to give to any "person concerned" an "opportunity of remedying" any defect in that person's nomination. It follows that the returning officer's actions in giving such an opportunity to remedy the defects in the original nominations were breaches of the rules and "irregularities"; understandably, they were not relied upon by the applicants in these proceedings. As those irregularities did not lead to any nominations being wrongly accepted by the returning officer, it is plain that the result of the election could not have been affected by those irregularities (s. 165(4)). 24, The principles of procedural fairness Mr. Tracey submitted that the returning officer was exercising statutory power in considering the nominations; that was based on his submission that rule 53(18)(b) was invalid, a submission which has been rejected. Alternatively, he submitted that, if rule 53(18)(b) was valid, it was itself "a statutory duty manifest in the rules" i.e. because it was required by s. 133(1)(c) and s. 140(1)(a) that that provision be in the rules. It was submitted that the principles of procedural fairness applied to the returning officer in performing his duties under rule 53(18). Mr. Tracey contended that, on the facts disclosed in relation to the candidacy of Mr. Shanks and Mr. Muldoon, (but not that of Mr. Johnson), the returning officer did not act reasonably and fairly in that he did not afford to them the opportunities that fairness demanded in the circumstances. On this matter Mr. North's first submission was that the principles of procedural fairness did not apply. In the alternative he adopted the submissions advanced by Mr. Moore that the requirements of procedural fairness had been complied with in all the circumstances. It is not necessary to determine whether Mr. North's first submission 1s correct because, assuming, without deciding, that the principles applied, I accept Mr. Moore's submission, adopted by Mr. 25. North, that on all the evidence it has not been shown that the returning officer failed to comply with any of those principles. I adopt, with respect, the following passage from the reasons for judgment of Brennan J., in Kioa & Others v West & Another (1985) 159 CLR 550 at 628-9:- "Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed 1n Bushell v Environment Secretary [1981] AC, at p. 97:= "To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair"." The validity of the rules (s. 140(1)(c)) During the proceedings the applicants also advanced a contention that, at the material time, the rules of the Union imposed upon its members "conditions, obligations or restrictions which, having regard to the objects of the Act, and in particular object 2(£), and the purposes of the registration of organisations under the Act, were oppressive, unreasonable and unjust, contrary to s. 140(1)(c) of the Act." It should be said immediately, in fairness to their counsel, that the question whether the court should consider 26. that question in the inquiry was initially raised by me with Mr. North - because he was representing the Union which had a particular interest in dealing with any issue as to the validity of its rules. In the result, considerable time was spent on that aspect, not only in submissions but also by way of evidence and cross-examination, including evidence as to the state of the records of the Union. The applicants' submission was based upon. the requirement, under the rules, that a member, in order to be eligible to be a candidate or a nominator, must, at the time of nomination, have paid all his contributions for the entire period of his membership; reliance was placed upon the state of the records of the Union at the material time. As to this contention I have considered carefully the large number of matters relied upon by Mr. Tracey, in his final address, together with his, Numerous references to documentary evidence and to the transcript of oral evidence. There is much force in his submission and it is a matter to which I have given a great deal of thought, both during the hearing and since the decision was reserved. Mr. Tracey submitted that there are "proven shortcomings" in the Victorian Branch's record system, as well as some unsatisfactory features in respect of two districts in Queensland. As against those matters, there 1s 27. some force in Mr. North's submission that "almost all the evidence as to the reliability of record keeping was directed to the records of only one member [Mr. Baker]". There is also some force in Mr. North's submission that a member, who wishes to be a candidate, or to nominate a candidate, would have a period of time in which to check the branch records as to his financiality. On the other hand, one should not underestimate the difficulties involved in checking with branches in other States. As to that aspect, Mr. North submitted that, in considering whether the rules contravened s. 140(1)(c) of the Act, it was proper to balance the burden on the members (of being obliged to inquire as to their financiality) against the benefit to the members of not being sued for arrears of contributions in respect of periods of unemployment or periods of employment outside the industry. a In the result I have come to the conclusion, although not without considerable doubt, that the applicants have failed to make out the contention that the relevant rules contravened s. 140(1)(c) of the Act. For these reasons I have determined that none of the irregularities, alleged by the applicants, occurred in or in connexion with the election and I have decided to terminate the inquiry into it. 28. In his final address, Mr. Tracey, on behalf of the applicants, submitted that if, contrary to his submission, the court did not find that any irregularity alleged by the applicants had occurred, it should certify that each applicant had acted reasonably in applying for the inquiry. Having regard to the difficult questions of both fact and law put before the court, I have rio hesitation in so certifying under s. 168(2) of the Act. I certify that this and the preceding twenty-seven pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 19 July, 1988. _— Associate: JZ. CO arr Dates of Hearing Solicitors for applicants Counsel for applicants Solicitors for respondents Counsel for respondents Solicitors for returning officer and Australian Electoral Commission Counsel for returning officer and Australian Electoral Commission Date Judgment Delivered 29. 2, 17 December, 1986, 22 October, 1987, 7, 8, 9, 10, 28 March, 16, 17, 18, 19, 20, 23, 30 & 31 May 1988 A. Jd. Macken & Co. Mr. R. Tracey Ryan Carlisle Needham & Thomas Mr. A. North Australian Government Solicitor Mr. G. Moore 19 July, 1988