Application by Damien Stapleton for an Inquiry into an election for Offices... [1983] FCA 254 | Case summary

Federal Court of Australia|1983-09-30|Before: Evatt J

into Election for offices in Branch of organization - whether Industrial Registrar has power to delete part of an organization rule amendment submitted for his consent - whether the organization's rules providing that an unfinancial member on paying arrears remains unfinancial for

a further month is oppressive, unreasonable or unjust - whether the organization's rule providing that a member, to stand for office,

must have been continuously financial for the 12 months prior to nomination is oppressive, unreasonable or unjust - whether a

member "on deductions" becomes financial as from the time of deduction by the employer or only from the time of receipt of deductions by

the union office - whether a candidate for office who is financial

at nomination but becomes unfinancial during the ballot (and

where the rules are silent) can continue as a candidate.

Conciliation and Arbitration Act 1904 ss.139(4), 140(1) (c), 159, 165, 170, 170A and 171F

Application by Damien Stapleton for an Inquiry into an Election for

Offices in the Australian Theatrical and Amusement Employees Association (N.S.W. No.9A of 1982)

Application by George Ryan for an Inquiry into an Election for Offices in the Australian Theatrical and Amusement Employees Association

Application by John David Weston for an Inguiry into an Election for

Offices in the Australian Theatrical and Amusement Employees Association (N.S.W. No.36 of 1982)

) ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. No.9A of 1982 ) )

IN THE MATTER of an application by Damien Stapleton for an inquiry into an election in the New South Wales Branch of the Australian Theatrical and Amusement Employees Association.

ORDERS JUDGE MAKING ORDER: EVATT J. DATE OF ORDER: 30 September 1983 WHERE MADE: SYDNEY

The Court determines that irregularities have occurred in the 1982 election for the officers of the New South Wales Branch of the Australian Theatrical and Amusement Employees Association, hereinafter called the ATAEA, being an election for the offices of president, vice-president, secretary/treasurer, assistant secretary and 12 executive members.

The Court orders that a new election be held pursuant to s.165A of the Conciliation and Arbitration Act (the Act) for all offices in the New South Wales Branch of the ATAEA and directs that such election be arranged by the Industrial Registrar appointed under the Act in accordance with the following scheme and timetable:

(a) In the week commencing 23 April 1984 the returning officer shall cause to be circulated to all members of the ATAEA whether financial or not a notice in accordance with rule 42A(b) (ii) of the rules of the organization.

(b) On 8 June 1984 an advertisement be placed in the Sydney Morning Herald and the Daily Telegraph inviting nominations for the said offices in accordance with the provisions of rule 42A(c) of the rules of the organization.

(e) The ballot where necessary to commence on 10 August 1984;

The Court directs that the returning officer conducts the said election on the basis that:

(i) That the words "and for a period of one calendar month thereafter" in certified rule 9(a) of the rules of the organization are deleted;

(ii) That the word "continuously" in rule 47(c) of the rules of the organization is omitted;

(iii) That all the words after the word "nomination" where first appearing in certified rule 47(c) of the rules of the organization are deleted.

The Court orders that until the new election is concluded

each of the persons elected to the respective offices of president, vice-president, secretary, treasurer, assistant secretary and twelve executive members in the subject election shall each hold his or her respective office and shall be deemed for all purposes to have held such office in the New South Wales Branch of the organization since 24 February 1982 and each shall be a member

of and shall be deemed for all purposes to have been a member

of the executive of the New South Wales Branch of the organization

The Court orders that the costs of the following parties, namely, Mr Stapleton, Mr Jenkins, Mr Taylor, Mr Ford and Mr Nelson be paid by the ATAEA.

Liberty is granted to any party to apply on seven days notice to the Court and to the other parties to the proceedings.

NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No. 28 of 1982

IN THE MATTER of an application for an Inquiry pursuant to

Section 159 of the Conciliation and Arbitration Act, 1904, into

an election in the Australian Theatrical and Amusement Employees. Association (N.S.W. Branch) by

THE COURT ORDERS THAT: The application be dismissed.

THE COURT CERTIFIES THAT:The applicant herein acted reasonably in applying for the subject inquiry.

NEW SOUTH WALES DISTRICT REGISTRY N.S.W. No.36 of 1982

IN THE MATTER of an application by John David Weston for an inquiry into an election in the New South Wales Branch of the Australian Theatrical and Amusement Employees Association.

ORDERS JUDGE MAKING ORDER: EVATT J. DATE OF ORDER: 30 September 1983 WHERE MADE: SYDNEY

The Court orders that the inquiry herein be terminated.

The Court certifies pursuant to s.168(2) of the Conciliation and Arbitration Act 1904 that the applicant John David Weston acted reasonably in making his application for the inquiry under Part IX of the Act.

NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. No.9A cf 1982 ) )

for offices in the New South Wales Branch of the Australian

Theatrical and amusement Employees Association AND IN THE MATTER of an

application for an Inquiry pursuant to Section 159 of the

Conciliaticen and Arbitration Act, 1904, into the said election by Damien Stapleton

REASONS FOR JUDGMENT The triennial election of the members of the Executive of the New South Wales Branch (the Branch) of the Australian Theatrical and Amusement Employees Association (the organization) an organization registered under the Conciliation and Arbitration Act 1904 (the Act) was held in January/February 1982. The business of branches of the organization is conducted by e Branch

Executive which, in the New South Wales Branch, was, after the 1982 elections, to consist of a President, a Vice President, 4@

Secretary/Treasurer, an Assistant Secretary and 12 ordinary

members. The election was held pursuant to s.170 of the Act, the Returning Officer being a member c# the staff of the Australian

Nominations for the filling of the various cflices cpened

on 4 January 1982 and closed cn 19 January 1982. Other than for the office of President nominations for the remaining cffices

were such that ballots were required. Such ballets commenced on 2 February 1982 and closed cn 23 February 1982, the Returning Cf£ficer declaring the result of each ballot on 24 February 1982 by letter to the Secretary of the Branch of the organization at

its office at 15 Glebe Point Road, Glebe which reads:

Australian Theatrical and Amusement Employees Association Elections Pursuant to Section 170 of the Conciliation and Arbitration Act 1904

I refer to my letter dated 3 July 1981, concerning the arrangements for me to conduct the election for various offices in the above Association and wish to inform you that the elections have been duly conducted and the results, together with my declaration of the poll, are attached.

My declaration of the poll for the uncontested position of President was forwarded te you on 21 January, 1982.

AUSTRALIAN THEATRICAL AND AMUSEMENT EMPLOYEES ASSCCIATION NEW SCUTE WALES BRANCH 1982 ELECTIONS

CANDIDATES VOTES JENKINS, Simon 819 STAPLETON, Damien 808 TOTAL 1627 INFCRMAL L

OWEN, Susan RICHARDSON, RYAN, George SCHUBERTH, J.T. SUGGETT, W. Alan SUSSEX, L. TAYLOR, Greg WALKER, Tan aA. WINDON, Steven

I declare Susan CWEN, BIENSTOCK, J.T. James FORD, NELSCN, Ken

A. SCHUBERTH, Greg TAYLOR, McSWAIN and Cavid FENSLER elected."

(9) 720 915(11) 916(10) 1456 (1)1353 ( 1305 (719142118780 ) )

WALKER, George RYAN, Sam Julie James BAILEY, Colin Louis IRVING, Ronald M.

Thereafter on 5 March 1982 Damien Stapleton a member of the Branch lodged with the Industrial Registrar an application for an inquiry into the said election pursuant to s.159(1) of the Act challenging the whole election. For some 7 years prior to the said election Mr Stapleton had been the full-time Secretary/Treasurer of the Branch and for the majer part of that period the Federal Secretary of the organization. As appears from the figures set ovt above he had been the unsuccessful candidate for the office of Branch Secretary/Treasurer in the

Such particulars as set out in the application filed by Mr

"1. Persons who were not financial members of the union were sent ballot papers in the said election.

Persons who were financial members of the union were not sent ballot papers in the said election.

Persons who reside in other states were sent ballot papers in the said election.

Persons who were entitled to vote in the said election, and who were sent ballot papers did not receive the ballot papers.

Persons who were entitled to vote in the said election, and who were sent ballot papers, did not receive the ballot parers in time to return them by the close of the ballot.

Persons who were entitled to vote in the sard election did not receive palict papers at their home address shown on the unicn's records, such ballot papers were forwarded tc a place of work and/er to a

Casual employees who were financial members and entitled to vote were not sent ballot papers.

authorities and were entitled to vote were not sent ballot papers.

That the candidate for Secretary, Mr S. Jenkins and the candidate for Vice President, Ms L. Gailey, were not admitted to membership in accordance with the rules of the organization and were therefore not entitled to be candidates in the said election.

That there was no compliance with either the rules of the organization or the provisions of Regulation 146AD of the regulations made pursuant tc the provisions of the Conciliation and Arbitration Act, 1904.

That the notice calling for nominations and the pallot paper did not indicate all the offices to be filled by the election of a candidate."

The rules cf the organization certified by the Industrial

Registrar as at 11 March 1982 were tendered. Relevant rules as

(a) Elections for all branch Executive positions including the office or Secretary/Federal Councillor, Federal Executive Member or as the

case may be Secretary/Treasurer/Federal Councillor/Federal Executive Member shall be conducted triennially.

(c) Only those members financial at the date of calling for nominations and who were financial on the last day of the preceding quarter, shall be eligible to te included on the Roll cf Voters for branch elections.

A member wno has not paid contributions in accordance with Rule 3 and 8 of these rules and (dad) hereof shall be deemed to be an unfainancial member and shall remain an unfinancial member until such time as all contributions including any fines, levies or other monies payable by him have been paid and for a period of one calendar

(1) Any of the rights privileges and benefits of the Association,

(iv) Nominate any candidate for election to any office,

(vii) Take part in any meeting or proceedings connected with the Association,

(viz1) Receive copies of any journals, reports or documents issued by the Association.

Contributions shall be such as shall be fixed from time to time by the Federal Council ....

Contributions for any year shall fall due on the first day of January in the year and shall be

payable in advance. They may be paid yearly or half-yearly or, where a branch Executive so decides, quarterly. Payment of Contributicns

(2) In the case of half-yearly payments within one calendar menth of January 1 cr July 1 in each year.

(iz) In the case of quarterly payments within one calendar month of January 1, april 1, July 1 or October 1 in each year.

Notwithstanding other provisions of this Rule, a branch Executive may authorise the branch Secretary to make arrangements with an employer (including any government department) for deduction, on the signed authority of a member, the form of which is acceptable to the branch Executive, of amounts by way of Contributions from the wages or other mcenies payaple to the

member. As lona as such authority remains in force, the member shall be deemed to be financial notwithstanding that his payments are

Any member who fails to pay his Contribution prior te or upon the date on which = such Contribution falls due may be required thereafter to vay an additional Contribution not exceeding five dollars per month for that period in respect of which he has so failed to pay the whole of the Contribution due.

Association under these Rules may be postponed, reduced er forgiven by the Federal Council, Federal Executive or the Executive of the branch

to which the member is attached if the member proves that on account of distress, sickness, unemployment or other gocd cause he is not able to fulfil his obligations in respect of such

Unless the context otherwise requires, the fallowing construction shall be applied throughout these

Rules: (a) to (£) ...... (g) "Quarter" means those three menth periods ending

March 31, June 30, September 30 ocr December 31 in any year.

"Half-year" means those six mcnth periods endin June 30 or December 31 in any year. cee wee

CANDIDATES- Continuously financial for 12 months prior to

It is convenient at this stage to deal with an issue raised in

respect of r.47(c). It was agreed by the parties that prior to

Executive must be financial members of the branch concerned in additicn to which such
member must have been a continuously financial }

the date of nomination. In the case of the ' branch President, a candidate for election shall

On 11 December 1980 the organization filed in the office of the Industrial Registrar an application for alterations to rr.5, 8, 9, 13, 14, 16, 17,20, 35, 47, 48, 51 and 65 of its rules, together with a Statutory Declaration of Mr Stapleton as Federal Secretary ci the organization. (see folic 240 of the Industriel

Registrar's register in resvect of the organization).

"Application is hereby meade by the Australian Theatrical and Amusement Employees Association for consent to the change of its rules in the follcwing respects:

ll. That sub-clause(c) of Rule 47 be deleted and the following sub-clause substituted:

(c) "All candidates for election to, and members of the Branch Executive must be financial members of the branch concerned and shall have been continuously financial for a period of twelve months prior to the date of nomination. In the case of Branch President a candidate for election shall have completed at the date of nomination, two years on the Executive of the branch provided that in the case where no member eligible for election to the position of Branch President nominates, the eligibility provisions relating to the Branch Executive shall apply.""(emphasis added)

On 1 June 1981 the Industrial Registrar wrote to the Federal Secretary of the organization concerning the said alterations lodged on 11 December 1980. Such letter contains the

"Sub-rule 47(c) provides that all candidates for election to, and members of the Branch Executive, shall have been continuously financ1al for a period of twelve months prior to the date of nomination. That provision raises two matters.

Firstly, I refer you to a decision of the Industrial Division of the Federal Court of Australia in Lovell -v- Federated Liquor and Allied Industries Employees Union of Australia (10 November 1978), wherein it was held that a rule that required candidates to be continuously financial for a certain period in order to be eligible to nominate for office was contrary to section 140(1)(c) cf the Act. In view of the Court's decision, the word "continuously" has been deleted from sub-rule 47(c).

Leveridge -v- Shop, Distributive and Allied Employees Association (31 F.L.R. at p.403) and in

Allen -v- Townsend (31 F.L.R. at pp.456, 457) concerning the distinction between restrictions on candidature for election tc councils and committees with numerous members and restrictions on candidature for important offices, such 4s secretary and assistant secretary, are relevant to the period of twelve months specitied by sub-rule 47(c) insofar as that pericd 1s applicable to members of the

Branch Executive. It was held in each of the abovementioned cases that to exclude the participation of shorter term members from participation in bodies of numerous members was unreasonable and oppressive. I suggest therefore that consideration be given to altering sub-rule 47(c) in accordance with the Court's findings. a

qualifying period not in excess of three months for candidates for election to the Branch Executive

would be acceptable. You may wish to discuss this matter with Mrs R. Hansen of this Office. "

Also on 1 June 1981 after setting out the fact that the

particulars of alterations of the rules referred to above had

been lodged on 11 December 1980 the Industrial Registrar issued

his certificate pursuant to s.139(4) of the Act as follows:

"In my opinion the alterations, with the exception of the alterations to sub-rule 8(e), sub-rule 9(d), sub-rule 35(b), the word "continuously" in sub-rule 47(¢c) and the alteration to sub-rule 48(e)(ix), comply with and are not contrary to the provisions of the Act, the Regulations or of an Award, are not otherwise contrary to law and have been made in

accordance with the relevant procedures laid down by the rules ot the organization. I certify accordingly in pursuance of sub-section 139(4)."

It is clear that the above certificate has been treated by members of the Industrial Registrar's office as having certified the amendment to r.47(c) with the word "continuously" deleted therefrom. The rules of the organization as tendered herein and certified by the Industrial Registrar as at 11 March 1982 show

r.47(c) 1n its amended form but with the word "continuously"

"continuously" by the Registrar in such circumstances was beyond power given to him by s.139(4) of the Act and that the Industrial

Registrar, having formed the view that the sub-rule as lodged for

certification was contrary to the provisions of the Act, had no

alternative but to disallow the amendment in toto. Accordingly, so the argument ran, his certification of r.47(c) with the word "continuously" cmitted was ultra vires and vcid. It was further argued that it followed that as the rule-making body of the organization at the time of adopting rule changes in 1980 had in fact adopted a resolution deleting the old r.47(c) before adopting the new r.47(c) and as the Industrial Registrar had in fact deleted the old r.47(c) un June 1981 the rules of the

organization on and after 1 June 1981 contained no r.47(c).

Assuming the Industrial Registrar had, of his own motion,

deleted the word "continuously" from sub-r.(c) of r.47 on 1 June 1981 then such deleticn in my view would have been void. Section 139(4) of the Act does not permit the Industrial Registrar in the circumstances under discussicn here to delete @ word or a phrase from adopted rule amendments of his own motion (contrast the position under s.140(8)). If he is of the opinion that a particular word or phrase in a rule or sub-rule amendment makes that rule or sub-rule contrary to the Act etc. he should refuse certification of the rule or sub-rule with the consequence that

'On the other hand I am of the view that the resclution of

the rule-making bedy of the organization adopting the deletion of former r.47(c) would have been conditional upon the Industrial Registrar certifying the new r.47(c). Accordingly r.47(c) for the purposes of this inguiry 1s as set out above under the heading "Rule 47(c) prior to December 1980". The sub-rule, in such form, was the subject of a challenge in the inquiry, by Mr Kenzie's clients, the allegation being that the sub-rule contravened

It will be seen that the critical date for determining whether a member is financial for the purpose of a branch election is the date of calling for nominations (r.50(c)). That date in the subject election was 4 January 1982. It was agraed by all parties herein that under the rules as certified the last day by which members must have paid all subscriptions necessary to make them financial and so eligible to vote in the subject election was 30 November 1981 (rr.50(c), 9, 8 and 3).(That is, 2l December 1981 less cne month (r.9(a))). But r.9(&) was aise challenged, it being alleged that the sub-rule contravened

"A.The Federal Returning Officer cr as the case may be, the branch Returnina Cffticer shali:-

(ii) Two months pricr to the final date by which all members must have paid all subscriptions necessary to make them financial and so eligible to vote in accordance with (g) hereof, the Returning Officer shall cause to be circulated to all members, financial or not, a notice which

(dd) the qualifications of electors, including the date by which all membership subscriptions shall be paid in order that the member will be eligible to vote in the election.

(ee) the dates between which nominations are to be received.

(ff) the method by and manner in which nominations are to be lodged.

take place. (hh) the date on which the election shall be declared."

After several requests to the Branch office in Sydney the Returning Officer eventually received from Mr Stapleton during the latter half of September 1981 a set cf membership cards listing all the 5973 members of the Branch (both financial and unfinancial) and their addresses. Between 29 September 1981 and 1 October 1981 the Returning Officer by pre-paid post sent to each of those members a notice dated 29 September 1981 in che form provided fer by r.42A(b)(ii). Included in such notice was a note which read:

membership subscriptions must be paid by 30 November 1981"

On 19 January 1982, it then being apparent that a ballot

would be necessary, the Returning Officer wrete to Mr Stapleton as Secretary of the Branch issuing directions pursuant tc s.170A(1) of the Act, that he be provided with a certified list in duplicate signed by the Secretary showing the name and postal address of each and every member or the branch who was financial in accordance with r.50(c). The form of the required certificate

On 27 January 1982 the Returning Cfficer received from Mr Stapleton a computer print-out plus a further list of names, together with a certificate signed by Mr Stapleton. Mr Stapleton stated in evidence that the computer print-out consisted of both full-time and casual employees whilst the second list was a copy of a book containing the names and addresses of "outdoor" employees. These classifications are discussed later herein. Certain names had been deleted from such lists prior to their receipt in the Australian Electoral Office. Those two lists became exhibits 1n the inquiry. On 28 January 1982 the Returning Officer received approximately 2,000 cards from the Branch which he understood were cards of financial members attached to the Branch whose names were net on either of the two lists delivered on the previous day. following 4 conversation with Mr Stapleton as to the vossibility that such cards may have to be kept by the Returning Cfficer for one year after the completion of the election (s.17C0A(5)), Mr Stapleton

provided the Returning Officer with @ third list containing the

names and addresses of the members whose names appeared on those

ecards. On receipt of this third list the cards were returned to Mr Stapleton. This third list was also an exhibit in the inquiry and was stated by Mr Stapleton in his evidence tc be a list of those members who had signed acceptable authorities for

deductions ef contributions by employers which were in force at

Mr Stapleton's certificate referred to above 1s dated 27

"I hereby certify that I have forwarded to the Australian Electoral Office a list containing nemes and postal addresses of each and every member of the Australian Theatrical & Amusement Employees' Association (N.S.W. Branch) who is financial in accordance with Rule S50C(sic) of the registered rules of the above Association."

Rule 60 makes provision for a roll of membership. Sub-rule (a) provides that a register of the names of the officers and members residing in each State (as far as 1s known), be kept at the office of the Branch and be open for inspection. Rule 57 sets out the duties of Branch Secretary. He shall: (c) keep proper books of account of all monies received and expended by or on account of the branch; (n) keep a register of ali members resident in the State; and (0) attend to all branch

The rules of the organization make gerevision fer a secret

postal ballot within the meaning of the Act (r.42). Rule 42A(g) provides that the Branch Returning Officer shall prepare a roll of voters (who shall be financial members entitled to vote in accordance with the rules) at least 14 days before the date determined for the commencement of the ballot. There was no Branch Returning Cfficer appointed by the Branch Executive in accordance with the rules prior to the request by the Branch for

Notwithstanding anything contained in the rules of an organization a returning officer conducting an election under s.170 of the Act is given wide powers under s.170A(1). He may take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in the election or to remedy any procedural defects in the rules of an organization. In practice officers of the Australian Electoral Office who conduct s.170 elections in organizations give directions to secretaries of organizations or their branches to

forward to them as returning officers certified lists of members

eligible under the rules to vote in particular elections. Failure to comply with any such direction is an offence unéer the Act, the penalty being a fine or impriscnment up to 6 months or

A union secretary whose duties include a duty to keep financial records of the branch and a list of members attached to

the branch is in my view the most suitable verson to be called

upon by the Returning Officer pursuant to s.170A(1) cf the Act to compile and certify a roll of voters. MTrue it 1s that rules of organizations making provisions concerning the conditions under which members become unfinancial vary and are often confusing but in practice each particular secretary generally is aware of the branch office procedures, has recourse to legal advice and, knowing the approximate date of forthcoming elections well in advance, has ample opportunity to supervise the compilation and

In this particular organization the rules make provision for a membership covering an extensive range of employees. Members fall into different classifications. A different rate of contribution has been set for full-time, casual and ""cutdoor" members. Members may have their contributions deducted by certain employers from their wages(r.8c). In practice members who have in fact paid their contributions in advance may under certain circumstances be placed on what is known as "suspense". These matters are referred to later herein but highlight the necessity of having some official available to certzfy the correctness of é

roll of voters. Here, that official rightly was the Branch

Rule 8(a) provides that the rate of contributions payable

Dy members 1s to be that as fixed from time to time by the

Federal Council of the organization. The Council at its 1980 Annual Federal Council meeting determined that the New South Wales Branch of the organization be authorised to increase rates

1981 1982 Fuli-time and Freelance members $72.00 $80.00 Casual employees $44.00 $50.00 Outdcor employees $18.00 $20.00

During the inquiry it was discovered that the rate of contributions charged during 1981 was in excess of the rate fixed by the Federal Council. For example, Mr Stapleton had circulated casual members incorrectly stating that fees were S48 and not $44, This fact necessitated examination of the records of such members in the three lists of members tendered and those who were shown as owing small amounts had to ke closely checked to ensure that no member had been treated as unfinancial when in fact he had paid sufficient monies to cover the proper subscription for

In addition there had been a practice for many years within the organization that so-called "junior members" pay half fees. The rules make no provision for such members or fer such a practice. There was no evidence before the Inquiry as to the actual number cf members who in fact may have paid contributions at half rate and who may have been treated as financial for the

subject election. These matters are raised cnly to illustrate the

difficulties that could well have been experienced in preparing a2 valid roll of members by a returning officer unfamiliar with the procedures and office systems in the Branch. The same

difficulties were encountered by counsel representing the parties

in their endeavours to demonstrate the actual number of members (if any) who either were forwarded ballot papers when they were unfinancial or were not forwarded ballot papers when they were

Contributions in practice were collected in any one of the following ways; payment over the counter at the Branch office; collection by organizers or delegates on a particulér job cr site and then either posted or delivered to the Branch; by mail from the member direct; by deduction by the employer of a pre-determined percentage of the gross wages paid to members (for example a casual member employed on race days by the Australian Jockey Club would have 1% deducted from his wages for the day. Similarly a casual usherette employed at a particular cinema).

In all cases other than deductions, receipts are issued to

members on receipt of payment. The evidence, which 1s accepted, us that at particular times of the year, possibly because o= the number of contributions being received in the office of the

Branch by mail, a back-log of some days would occur before

particular item would be processed so that the dates shown on the copy of receipts held within the Branch office weuld not necessarily be the dates on which moneys were actually received.

These dates, on the evidence, could be up tc 7 days after receipt

depending upon wnether a week-end intervened or whether some

In the subject election the returning officer forwarded 4762 ballot papers out to members. 410 envelopes were returned unclaimed. In all 1648 completed ballot papers were returned, representing a return of 37.85% of those members who had apparently received ballot papers. This, in the experience of the Court, is a reasonably high percentage for union elections

As stated earlier herein the application for the inqu2ry was lodged by Mr Stapleton on 5 March 1982. On 9 March 1982 the Industrial Registrar referred the application to the Court

On 11 March 1982 a notice of moticn was filed in the Court by the applicant seeking the following interim orders: (1) an order restraining the Returning Cfficer from presenting his report concerning the said election to @ general meeting of members of the Branch which was due to be held on Sunday, l4 March 1982; and (1i) an order that the versons who had hele office in the Branch pricr to the said election continue in

office. An affidavit by Mr Stapleton was filed in support of the

motion. On 11 March i982 the Court (Morling J.) granted ex parte

orders as sought, such orders to remain in force until 4.15 ¢.m.

on 16 March 1982 when the application for the inquiry was to be

On 16 March 1982 Mr W. Haylen of counsel, who had appeared on behalf of the applicant on the ex parte application before the Court on ll March 1982, again appeared. Mr R. Kenzie of counsel appeared for certain of the successful candidates. Submissions in regard to the continuance of the interim orders made on 11 March 1982 were heard on that and the following day when the Court as presently constituted vacated the orders of Morling J. and thereafter gave directions as to the filing of points of

The applicant's points of claim were filed 26 March 1982. It was claimed that 55 persons (unnamed) had been crossed off the roll of voters and consequently not sent ballot papers when in fact they were financial; that 16 persons (unnamed) were sent ballot papers when they were not financial members; that 3 persons (unnamed) who were resident in a State other than New South Wales were sent ballot papers; that 28 persons (unnamed) were sent ballot papers at their place of work and not to a residential address; that 40 persons (unnamed) were sent ballict papers at a' time insufficient to allow the ballot paper to be

returned by post; that Mr Jenkins, a candidate for the office of

Secretary and Ms L. Gailey, a candidate for the office o

Vice-President had not been admitted to membership of the

organization in accordance with the rules and were therefore not entitled to be candidates; that Mr McGill, a candidate for the office of Assistant Secretary and Mr Taylor, a candidate for the Executive had both become unfinancial during the course of the ballot; that Mr Bienstock and Mr Hensler candidates for the Executive were ineligible to nominate for office in that they did not have continuous financial membership for a period of 12 months prior to the date of nomination as required by r.47(c) and that beth the notice calling for nominations and the ballot paper failed to indicate all the positions to be filled by the election of the Branch Secretary in that the rules provided that the Branch Secretary was ex-officio a Federal Councillor (r.11(a)) and ex-officio a member of the Federal Executive(r.17(c)). A further ground was subsequently not pressed. Further and better

particulars of the above allegations were supplied before and

Points of defence filed on behalf of the successful candidates represented by Mr Kenzie raised, as a defence to the claimed irregularities in the roll cf voters, a defence that the applicant, Mr Stapleton as Secretary of the Branch, having certified the accuracy of the roll of voters as set out above was estopped in this inguiry from denying the accuracy of such roll. In the alternative, the points of defence challenged the allegations of irregularities in the roll of voters which irregularities had been particularised subsequent to the filing

As the inquiry progressed challenges were made almest daily to the roll cf voters by the counsel representing the applicant. Such challenges necessitated searches of the records including receipt books and the like by certain of those persons who had been successful in the subject election who were of course then quite unfamilar with the office accounting and card systems which had been in force in the Branch office for several years. A Mr White wno is and has been employed by the Branch as its Accounts Clerk for some years gave assistance where possible but for some time during the inquiry he was absent from Austraiia on holidays, the trip having been arranged prior to the election. As a consequence the roll of voters was subjected by all parties to the most thorough and exhaustive examination experienced by the Court as presently constituted. This was time-consuming not only outside Court hours but also, of necessity, during Court hours. The above remarks should not be construed as a criticism of any one of the parties or their representatives and was to be expected in all the circumstances especially as the voting was as

Application by Damien Stapleton for an Inquiry into an election for Offices in the Australian Theatrical & Amusement Employees Association [1983] FCA 254

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (254 paragraphs)

Cited By (1)