Hickson, David v Australian Electoral Commission & Anor [1997] FCA 779

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - Election inquiry - Nomination of candidate - Nomination rejected on ground that one of ten nominators was unfinancial at nomination date - Rule requiring Returning Officer to notify nominee of any perceived defect in nomination and allow opportunity to rectify defect within seven days - Within seven days alleged unfinancial nominator paid all arrears of contributions and an additional person (being a financial member) joined in the nomination - Whether defect cured - Application of rule to defect caused by a nomination being unfinancial. Workplace Relations Act 1996, s 197(1)(c), (4), Division 5 of Part IX DAVID HICKSON v AUSTRALIAN ELECTORAL COMMISSION and PAUL BASTIAN NI 1123 of 1997 JUDGE: WILCOX J PLACE: SYDNEY DATED: 19 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NI 1123 of 1997 ) GENERAL DIVISION )

BETWEEN: DAVID HICKSON

Applicant

AND: AUSTRALIAN ELECTORAL COMMISSION

First Respondent

PAUL BASTIAN

Second Respondent

JUDGE: WILCOX J PLACE: SYDNEY DATED: 19 AUGUST 1997

MINUTES OF ORDER

THE COURT: 1. DETERMINES the following irregularities have occurred in relation to the election for the office of State Secretary of the New South Wales Branch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union"), the result of which was declared on 18 March 1997: (a) Contrary to subrules 10 and 11 of Part "A" of Rule 2, "Elections and Voting", of the Rules of the Union, the Returning Officer rejected the nomination of the applicant for the said office; (b) Contrary to the said subrule 11, the Returning Officer declared Paul Bastian, the second respondent, elected to the said office without a ballot having been held, despite the alleged defect in the nomination of the applicant for the position having been remedied not later than seven days after the applicant was notified by the respondent of the alleged defect. 2. DECLARES THAT: (a) the result of the said election may have been affected by the said irregularities; (b) the applicant, David Hickson, was validly nominated for election to the said office; (c) the decision of the Returning Officer to reject the nomination of the applicant is void; (d) the declaration of the result of the said election is void; and (e) Paul Bastian was not duly elected to the said office. 3. DIRECTS the Industrial Registrar to make arrangements for an election for the said office, subject to the following: (a) The candidates for that election shall be David Hickson and Paul Bastian; (b) The roll of voters in the election shall consist of all persons eligible under the Rules of the Union to vote in an election for the said office as at 30 September 1997 and updated 14 days prior to the opening of the ballot; and (c) The ballot for the said election shall open on 28 October 1997 and close on 18 November 1997. 4. ORDERS that Paul Bastian continue to act in the position of State Secretary of the New South Wales Branch of the Union until the declaration of the ballot ordered by the Court. 5. GRANTS liberty to apply in respect of the above directions and orders. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.