Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Morrison

REASONS FOR JUDGMENT 1 On 19 May 1999 Stuart Morrison lodged an application for an inquiry under s 218 of the Workplace Relations Act 1996 (Cth) into the election for an office (the federal secretary) in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division. The application, which was in the prescribed form, alleged that there had been an irregularity in relation to the election. The alleged irregularity was particularised in the application in the following terms: "1. On or about September 1998, and prior to the closing of nominations, Noel Treharne a candidate for the position of Federal Secretary/Assistant National Secretary of the Division ('the Position') reached an agreement, arrangement or understanding ('the Secret Agreement') with the National Secretary of the Union, Mr Doug Cameron, that should Noel Treharne be elected to the Position, the Position would be or become a full‑time paid position. 2. The Secret Agreement was not publicly known and was not known to: (a) Members of the Union (other than Noel Treharne), being potential candidates, and (b) the Applicant in particular. 3. The Australian Electoral Commission called for nominations for the Position. At the time the nominations were sought the public stance taken by the Union and members of its National Council was that after the election the Position would be or would become an Honorary Office. 4. At the time nominations were sought the Applicant was induced by the public stance taken by the Union and members of its National Council not to nominate for the Position. 5. Had the Applicant known of the Secret Agreement he would have nominated for the Position. 6. Noel Treharne was the only nomination received who was aware of the Secret Agreement. Noel Treharne was the person who was elected to the Position." The facts supporting those particulars were also set out in the application. It is not necessary to recite them. 2 Section 219 of the Workplace Relations Act provides: "Where: (a) an application for an inquiry has been lodged with the Court under section 218; and (b) the Court is satisfied that there is reasonable ground for the application; the Court shall fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry shall be taken to have been instituted." On 26 May 1999 the trial judge, being satisfied that there was a reasonable ground for the application, fixed a time (10:15am on 5 July 1999) and a place (the Federal Court of Australia at Melbourne) for conducting the inquiry. In the event, the inquiry did not begin at the appointed time, but commenced on 19 September 2000, two days ago. 3 At a directions hearing that was held shortly before the inquiry began, counsel for the union informed the trial judge that he wished to raise what might now be described as a "jurisdictional issue". Counsel said that it would be the union's contention that the particulars contained in the application, even if true, could not constitute an irregularity as that term is defined in s 4(1) of the Workplace Relations Act. He requested the appointment of a date upon which the court would hear the union's claim to have the inquiry terminated for want of jurisdiction. The trial judge said that it would be preferable for any argument on jurisdiction to be heard on 19 September, the day upon which the inquiry was due to commence. The trial judge gave directions for the filing of written submissions concerning the issue. However, the trial judge did indicate that on 19 September, the inquiry would proceed "on all issues". 4 When the inquiry was called on counsel indicated that the union wished to press its claim that there was no jurisdiction to entertain the inquiry. The union had not returned a motion seeking an order, as had been foreshadowed, but very sensibly the trial judge permitted argument to take place. At the conclusion of the submissions, or perhaps during the course of those submissions, the trial judge said that he could not resolve the issue of jurisdiction until he had made findings of fact on the evidence to be led. He therefore declined to make a ruling on the union's application that the inquiry be terminated. Yesterday the trial judge provided further reasons for taking the course that he did in refusing to rule on the union's application. It appears that the trial judge came to a clear view that he could not properly consider the union's application that the inquiry is without jurisdiction until all of the factual questions had been determined. 5 The union applied for leave to appeal "from the judgment of his Honour Justice North given on 19 September 2000 at Melbourne to proceed with the hearing of proceedings numbered V 279 of 1999". Section 421 of the Workplace Relations Act permits with leave an appeal to the Full Court from a judgment of a single judge in an inquiry. "Judgment" is defined in s 4(1) to mean "a judgment, decree or order, whether final or interlocutory, or a sentence". 6 Perhaps the "order" from which the union seeks leave to appeal is not that which is described in the application for leave to appeal because I suspect that no such "order" was made. Rather, the refusal by the trial judge to immediately enter upon the determination to resolve the "jurisdiction issue" is the appropriate or relevant "order". By declining to consider the application until he had heard the evidence, the trial judge had made a judicial determination and hence an "order", so it seems to me. If this is not a correct characterisation of what occurred, it is sufficiently arguable for me nevertheless to proceed upon the assumption that an "order" was made. 7 In addition, the union has filed a motion asking that the inquiry before the trial judge be stayed. Immediately after the trial judge had ruled that he would not deal with the union's application, the inquiry proper got under-way. The evidence is still incomplete but it is anticipated that it will conclude later today or perhaps early tomorrow morning. The union seeks the stay pending the hearing of its application for leave to appeal and if leave be granted it will no doubt seek a continuation of the stay. 8 The application is, to say the least, an unusual one. I am asked to stay proceedings that are presently before another judge, who himself has indicated that the proceeding should continue. It is nevertheless necessary for me to deal with the motion, and I treat it as made in the application for leave to appeal. Despite past practices, it is now accepted that generally speaking it is not appropriate for an application for a stay to be considered by a single judge. In Australian Workers' Union v Pilkington (Aust) Ltd [2000] FCA 1169 the Full Court said that an application to stay the order of a single judge pending an appeal from that order should be considered by a Full Court. However, the motion for the stay was brought on as a matter of extreme urgency and it was simply not possible to convene a Full Court at such short notice. Accordingly, in pursuance of the authority conferred on me by the rules, I will deal with the application, though I do so with a good deal of hesitation. 9 Before I begin a consideration of the application I should indicate that I will proceed upon the assumption that I have power in substance to grant the relief (a stay of a hearing) that the union seeks in its motion. Whether that relief could be granted in the terms sought seems to me to be a matter of great difficulty. The precise order sought is in the nature of prohibition, which of course is relief I cannot grant. But this is not to deny that an appropriate order, directed in personam to Mr Morrison, could be made which would achieve the same object. 10 I would not grant a stay of the inquiry in the circumstances of this case unless it was clearly shown that there was an error in the approach taken by the trial judge. This is not a case where a stay is sought to preserve the subject-matter of litigation. Nor does the union seek a stay to ensure that its right of appeal is not a barren right, at least not directly. The principal objective of the union as stated by its counsel, is to avoid what it says is the unnecessary time, trouble and expense of an inquiry which should not be taking place. I accept without hesitation that a person should not be brought to litigation by a court acting without jurisdiction. But seeking a stay in that circumstance does not present as compelling a case when compared with one where the subject matter of the litigation is at risk unless a stay were granted. 11 Is there error in what the trial judge has done? Arguably there is. It is the duty of every statutory court to be satisfied that it has jurisdiction to deal with each matter that is brought before it. In most cases, the existence of jurisdiction will be obvious, and the matter will proceed without a specific inquiry into the question. However, if the issue of jurisdiction is raised, then, as a general rule, the court is required to consider that question and satisfy itself that it has jurisdiction before it proceeds any further with the matter: R v Federal Court of Australia; ex parte W A National Football League (1979) 143 CLR 190 at 215; Ex parte Transport Workers' Union of Australia; Re Gallagher (1964) 82 WN(NSW) (Pt 2) 58 at 67. So, as presently advised, it could be argued that the trial judge was in error in refusing to rule on whether he had jurisdiction to entertain the inquiry before proceeding with it. 12 There is perhaps a more important issue. It could be said that the reason given for declining to entertain the union's oral application, namely, that no ruling could be made on that application until all the evidence was in and any contentious issues of fact were resolved, is without justification. In my opinion, as presently advised, the jurisdiction of the court to conduct an inquiry into an election is to be determined by an examination of the allegations made in the originating application for the inquiry at all. If those allegations could sustain a finding of irregularity, then the Court has jurisdiction to embark upon the inquiry and determine whether the matters alleged are true. On the other hand, if the allegation could not sustain a finding that there had been an irregularity, then the Court does not have the jurisdiction to deal with the inquiry. In other words, the Court does not hear and consider evidence in order to determine whether it has jurisdiction to hear and consider that evidence. In Marsh v Adamson (1985) 157 CLR 351 at 381‑382, Brennan J explained the true position. His Honour said "The jurisdiction to inquire thus depends on whether an applicant claims the occurrence of what amounts to an irregularity. If he makes such a claim the court has jurisdiction to inquire; if he does not, the court lacks jurisdiction to inquire. If, on the face of the application, what the applicant claims to have occurred does not amount to an irregularity for the purposes of Pt. IX, a defect in jurisdiction appears. A defect in jurisdiction appearing on the face of the application does not require evidence to establish it (Farquarson v Morgan) nor can evidence cure it. The defect in jurisdiction being apparent, prohibition may be granted to restrain an intended exercise of jurisdiction.…The jurisdiction of the Federal Court to inquire thus depends on whether any of the alleged irregularities which Mr. Adamson claimed to have occurred amounted to irregularities for the purpose of Pt. IX of the Act. Nothing turns on the evidence that might be adduced in the inquiry; the jurisdiction to inquire turns solely on the terms of the application and the documents annexed thereto and on the true construction of Pt. IX. Mr. Adamson's assertion that what he claims to have occurred was an irregularity is immaterial if his application reveals it was not…". See also State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 especially at 116-117. 13 Should there be a stay, or some other order like it? Notwithstanding that the union has demonstrated arguable error on the part of the trial judge, I do not think it appropriate to grant either the relief sought or any like relief. My reasons follow. 14 First, it is possible, notwithstanding the views that I have formed about the likely errors, that the Full Court will not grant leave to appeal in this case. By the time the application comes on for hearing, the inquiry will be over. The Full Court may well take the view that it is preferable that the union await the outcome of the inquiry, and if it is dissatisfied in any respect with the result, it can then seek to appeal from final orders made by the trial judge. Such a course may be attractive because the union might succeed in its contentions, thus obviating the need to trouble the Full Court. 15 Second, there will be no significant injustice suffered by the union if the stay is refused. As I have said, it seeks to avoid the expense of a day or so hearing. I suspect that much of that expense has already been incurred, so that by refusing a stay there will be little additional outlay. 16 Third, there has been considerable delay in bringing this election inquiry on for hearing. The application for the inquiry was first made in May 1999 and it has taken some 16 months for the matter to come on for hearing. I do not know whether the delay has been caused by Mr Morrison or the union, or whether both are responsible. But if the stay is granted, and it ultimately turns out that the court has jurisdiction to entertain the inquiry, the inquiry is unlikely to reconvene until some time in 2001. That is not a satisfactory result. Further, it is highly likely that if the outcome of the inquiry is not known until some time next year, the result will have no practical significance. By that time, it is possible that the court will be unable to make any order consequent upon a finding, if one is made, that an irregularity has taken place. 17 Finally, much of the problem that has occurred in this case has been brought about by the fact that the union itself delayed for some 16 months before advising the court of its objection to jurisdiction. By the time it indicated that the jurisdictional point was to be argued, the inquiry had already been set down for hearing. Because the inquiry itself was going to be short, it was inevitable that the union's argument about jurisdiction would be fixed for hearing at the same time as that which had been appointed for the inquiry proper. If on the other hand, the union had acted with more expedition the proceeding would have taken a different course. 18 In the result the union's application for a stay will be dismissed.