Browne v Black

Regional President of the Printing Division of the Union. The Commission appointed a member of its staff, Maurice Dean, as the Returning Officer. 8 The Union has approximately 49,000 members entitled to vote at elections. For the purposes of the election the members were divided into three groups, namely: (i) the Metals Division, comprising 23,999 members; (ii) the Printing Division, comprising 7,409 members; and (iii) all other Divisions (referred to as the "Others Division"), comprising 17,657 members. 9 Members in the Metals Division were eligible to vote for the National Secretary, the Victorian State Secretary and the State Organiser. Members in the Printing Division were eligible to vote for the National Secretary, the Victorian Secretary and the Printing Division President. Members in the Others Division were eligible to vote for the National Secretary and the Victorian State Secretary. 10 Initially the Returning Officer proposed to deliver the ballot material to the post office for posting to the members on the opening day of the ballot, believing this would satisfy r 4A.12(h). The assumption made was that the word "forward" in the expression "forward by pre-paid post" meant to give the material to the post office for dispatch. This construction of the rule has been queried and it is necessary to resolve its meaning. As the cases show, the words "forward by pre-paid post" are ambiguous. Material may be forwarded by post when it is posted or when it would be delivered in the ordinary course of the post: Browne v Black [1912] 1 KB 316, where there was a division of opinion in the Court of Appeal; Lewes Nominees v Strang (1983) 49 ALR 328, a decision of the High Court. 11 In my opinion the expression "forward by pre-paid post" in r 4A.12(h) means that the ballot papers must be posted to voters on the opening of the ballot. Rule 4A.12 imposes a number of obligations upon the Returning Officer, some of which are to be performed "before the opening date of the ballot", for example to compile a roll of voters (r 4A.12(b)), to cause ballot papers to be printed (r 4A.12(f)). The words "before the opening day of the ballot" identify the day before which those acts are to be done. The words "on the opening day of the ballot" in r 4A.12(h) have a similar effect. They instruct the Returning Officer as to the day on which he or she is to dispatch the ballot papers. In context, the words cannot be taken to refer to the day on which the ballot papers would be received in the ordinary course of the post. See also Retail Dairy Company Ltd v Clarke [1912] 2 KB 388, where it was held that the word "sent" in s 20(1) of the Sale of Food and Drugs Act 1899 (UK) meant "dispatch". The section provided that a certain defence to proceedings under the Act would not be available "unless the defendant has, within seven days after service of the summons, sent to the purchaser a copy of [a] warranty or invoice". 12 Mr Dean acknowledges that the ballot papers were not dispatched for mailing on 28 April 2000. Most, but not all, ballot papers were lodged with Australia Post at 1.30 pm on Sunday 30 April 2000. The reason for the delay was that on 27 April 2000 Mr Dean was advised that the ballot papers that had been prepared for posting to voters included 106 addressees who had resigned from the Union and were not eligible to vote. Steps were taken to remove the ballot material addressed to these persons. The time involved meant that the material could not be lodged with Australia Post as planned. The result was that most members received the ballot material a day or so later than they would have if the Rules had been complied with. It is possible that there was no delay in the receipt of material by some voters. There were no weekend mail deliveries in Victoria on 29 and 30 April 2000. Accordingly, if ballot material was posted on 28 April 2000, it would not have been received by any member before 1 May 2000. But some members might have received their ballot material on 1 May 2000, because mail is cleared by Australia Post every Sunday. The evidence shows that some members did not receive their ballot papers until 4 or 5 May 2000. Very few members are likely to fall into that category. 13 I said that most, but not all, ballot material was lodged with Australia Post on 30 April 2000. By oversight, 2662 members of the Union attached to the Victorian Region of the Technical and Supervisory Division were not sent their ballot material. Envelope labels for members attached to this Division were not delivered to the mailing house that was preparing the material for posting, so nothing was sent to them. This error was discovered on 4 or 5 May 2000. The material directed to these members was eventually delivered to Australia Post for posting on the afternoon of Friday, 5 May 2000. Enclosed with the ballot material was a notice, under the hand of the Returning Office, which read: "Your ballot paper has been delivered to you later than anticipated. To ensure your vote is counted, please return your ballot paper in the enclosed Reply Paid envelope as soon as possible so that it reaches me by the close of the ballot. The ballot closes at 10.00 am on Friday, 19 May 2000." 14 The ballot material included a reply paid envelope addressed to Mr Dean at a particular post office box at the Melbourne General Post Office (GPO). There were three post office boxes altogether, and the mail directed to each box depended on the Division to which the member was attached. There was one post office box for members of the Metals Division, one for members of the Printing Division and one for members of the Others Division. Officers of the Commission attended the GPO on each working day in the weeks commencing 8 May and 15 May 2000 to collect the returned ballot envelopes. The ballot envelopes were taken to the Commission's offices. There they were sorted into three piles, one for each Division. The ballot envelopes in each pile were then counted and placed into bundles of fifty. A rubber band was placed around each bundle. As a bundle was made up it was placed onto a tray. 15 A daily count was made of the number of envelopes collected from the GPO. How the count was undertaken is not clear. Mr Dean was involved in the first two days of counting. He said that he counted the envelopes that had been received in the Metals Division by sorting them into bundles of fifty and placing those bundles into trays. He counted the number of bundles that he placed into some of the trays. Nine bundles were able to fit in a tray. It is likely that Mr Dean did not count the number of bundles that he placed into every tray. It appears that to determine how many envelopes had been returned, an estimate was taken of the number of bundles in all the trays. Mr Reweti, another member of the Commission's staff, was also involved in the count. On the first two days of counting he was responsible for counting the envelopes received from members attached to the Printing Division. Mr Reweti recollects that there was an estimate rather than a precise count of the envelopes received from voters in the Metals Division. 16 The result of the daily count was recorded in documents described as "GPO clearance sheets". There was one sheet for each Division. The ballot closed on 19 May 2000. The clearance sheet for the Metals Division records the number of ballot envelopes received as 17,877, after an adjustment for one counting error which was explained by Mr Dean. 17 When the ballot closed the ballot envelopes were taken to an area known as the "envelope slitting room" and each envelope was slit at the top. The ballot envelopes were then returned to a conference room where the ballot papers were removed from the envelopes and the empty envelopes again placed into bundles of fifty on trays according to Divisions. 18 There was then a count of the votes followed by a recount. In the election for the Victorian State Secretary, Mr Johnston received 8,488 votes and Mr Roe received 8,045 votes, after the distribution of preferences. 19 It was soon noticed that there was a discrepancy between the number of ballot papers admitted to the count for the election of the Victorian State Secretary, namely 16,753, and the number of ballot envelopes recorded as having been returned, that is 17,877. The returned envelopes were counted a second time. The recount yielded 16,965 envelopes. Thus two discrepancies were apparent. First, there was a difference of 212 between the ballot papers counted and the number of ballot envelopes on hand. Mr Dean has expressed the opinion that the difference can be attributed to 212 members returning ballot envelopes which did not contain a ballot paper for the election of the Victorian State Secretary. The second discrepancy was a difference of 912 between the number of ballot envelopes recorded on the post office clearance record and the number of ballot envelopes on hand. 20 At first it was thought that 912 envelopes with ballot papers were missing. Searches were undertaken to locate them. The conference room was searched during the evening of Friday 19 May and during both the morning and evening of Monday 22 May 2000. The envelope slitting room was searched on 19 May and 22 May 2000. Another room where the envelopes had been stored was also searched. None of the "missing" envelopes could be located. After these extensive searches, it can safely be assumed that there are no "missing" envelopes at the Commission's premises. 21 Mr Dean believes that there are no missing ballot envelopes nor any missing ballot papers, and explains the discrepancy in the figures as resulting from a counting error. Mr Dean is of the opinion that there has been a counting error because he does not believe that any ballot envelopes or ballot papers were taken from the Commission's premises. Mr Dean attributes the counting error to the fact that the initial count was based on an assumption that there were nine bundles of fifty envelopes in each tray of envelopes for the Metals Division. Mr Dean had placed many of the envelopes into trays. He counted the number of bundles in several trays, but did not count the bundles in all trays. Mr Dean now says that returned envelopes in the Metals Division were thicker than those in the Others Division because they contained one extra ballot paper, and concludes from this that he erred in assuming there were nine bundles of fifty envelopes in each tray. 22 The applicant says that I should not accept this explanation. First he says that Mr Dean accurately counted the number of envelopes that he put into each tray. As I have said I doubt whether this is what Mr Dean did. Then the applicant suggests that it is most unlikely that the thickness of the envelopes could be the explanation for what has occurred. He says, for example, that voters in the Printing Division also returned three ballot papers in one envelope and if the thickness of envelopes was the cause of the discrepancy there should be a similar discrepancy in the Printing Division vote, and there was no such discrepancy. The applicant also says that it is wrong to approach the analysis on the basis that there was a difference in the thickness of the Metals Division returned envelopes compared with those returned in the other two Divisions. Often there will be no difference in thickness. Sometimes ballot papers were folded differently. Sometimes extra paper, such as the instruction sheet, was included in the envelope. Sometimes not all ballot papers were returned. I accept these comments. Where they lead, however, is another matter. 23 The issues that I have to determine are whether 912 ballot envelopes with ballot papers were received by the Commission and if so whether the ballot papers were not counted. It is not necessary for me to determine what has become of the envelopes and ballot papers. However, I am satisfied that they are not on the Commission's premises, for if they were they would have been discovered by now. I also put to one side the possibility that the envelopes and the ballot papers were mixed with other voting material that was at the Commission's premises. The evidence suggests that this could not have occurred. Thus, although I need not decide what has become of the missing envelopes and ballot papers (if any are missing), I am faced with a situation where one of two things must have occurred. Either the envelopes and ballot papers were not received and the position is, as Mr Dean believes, that there has been an error in counting, or the Commission did receive the envelopes and ballot papers and they have been illegally removed from the Commission's premises. 24 The manner in which I must decide these issues is not clear. This is an inquiry, not a proceeding inter partes. It is an inquiry to determine whether there has been any irregularity in the election of the Victorian State Secretary and if so to determine what orders should be made. The jurisdiction to make any order depends upon a finding that an irregularity has occurred. What is the requisite standard for determining whether there has been an irregularity? Is it the standard of proof that is required in civil proceedings? Does the applicant have an onus to satisfy that standard? Or is this a case where the only question is what is the correct or preferable decision on the evidence that has been led? 25 In Re Magee; Re Inquiry into Elections for Offices within Transport Workers' Union and the Victorian Branch thereof (1991-92) 41 IR 27 at 35, Keely J expressed the tentative opinion that there "may be no formal onus of proof on an applicant where…the court is conducting an inquiry [into an election]". He went on to say, however, that the Court could not find that an irregularity had happened unless it was so satisfied on the balance of probabilities. In Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1, Gray J took Magee to hold that an applicant did carry a burden to establish the requisite facts on the balance of probabilities. Gray J said (at 21): "…those who wish to establish that irregularities have happened in relation to elections must at least bear an onus of producing evidence and that, on the whole of the evidence, the Court must be satisfied on the ordinary civil onus of proof that such irregularities have occurred, before it can make a finding to that effect." I do not believe that an applicant carries any burden of proof either in the sense that the applicant is obliged to prove or disprove facts (sometimes referred to as a legal burden) or is obliged to adduce evidence in order to raise an issue (sometimes referred to as an evidential burden, but see Jayasena v R [1970] AC 618 as to the use of this expression). The only burden that an applicant must satisfy is to show that an inquiry should be instituted. Section 219 imposes that burden. In my opinion, once an inquiry is being undertaken the applicant carries no burden of proof. His interest is to see that a fair election has been held, but he is under no obligation to prove the case. 26 Further, I favour the view that this being an inquiry, and not a proceeding inter partes, it would be wrong to hold that any finding must be made in accordance with the civil standard of proof, namely that the existence or non-existence of an alleged fact is more probable than not. I accept that in most cases a decision-maker will arrive at the same result whether by applying the civil standard of proof or by determining whether he or she is sufficiently satisfied as to the occurrence or non-occurrence of an event. This is because a decision-maker who asks whether he or she is reasonably satisfied of the existence or non-existence of a fact will often reach a conclusion by considering the preponderance of probability. But there will be some cases where an application of the objective civil standard will yield one result and inquiring whether the requisite degree of satisfaction has been reached will produce a different result for the reason that the latter test is subjective. 27 In the present case I am satisfied, in accordance with either approach, that there has been no 'irregularity' in the counting of the votes. There has been no irregularity because I am not satisfied that any ballot papers are missing. I do not believe that any ballot papers have been stolen. The evidence persuades me that there has been a mistake in counting. My reasons for arriving at the conclusions are as follows. 28 First, there is the number of envelopes or envelopes and ballot papers involved. The discrepancy is 912 envelopes. If bundled into groups of fifty they would constitute eighteen bundles and take up two trays of the type used for storage in the Commission's premises. It would not be easy to remove this many envelopes from their location without someone observing that this was happening. 29 Second, and this is really an aspect of the first point, there is the location of the envelopes. At all times they were in a secure area of the Commission's premises. The only occasion when persons other than officers of the Commission were in the area was during the count. Then there were in attendance between nine and twelve scrutineers, appointed by the candidates. When the scrutineers were present so also were approximately twenty members of the Commission's staff. It is true that many of the staff members were involved in either removing ballot papers from envelopes or counting the votes and were not concentrating on movement around the area. But there are a number of Commission staff whose attention was not engaged in this way. In my opinion it is extremely unlikely that any one person could have picked up and removed so many envelopes or envelopes and ballot papers without attracting the attention of either Commission staff or one of the scrutineers. 30 Third, and perhaps of less significance, I can detect no reason why a person would wish to tamper with the election by removing 912 envelopes and ballot papers. Unless the person who removed the ballot papers knew how the votes were cast, it is unlikely that he or she thought that their removal would have affected the result. I say this because anyone in the area where the votes were being counted would have known that the election was close. Removing 912 ballot papers in those circumstances was not a step that could reasonably be expected to affect the result. In this regard I assume that the trend of the voting would have been repeated, to a significant extent at least, in the "missing" ballot papers. 31 I should also mention on this issue that I discount the possibility of a person having stolen both 912 envelopes and a corresponding number of ballot papers after the ballot papers had been removed from the envelopes. The opportunity to steal both envelopes and ballot papers separately was much less than the opportunity to steal only the envelopes. 32 In arriving at the conclusion that there has been no theft of ballot envelopes containing ballot papers, it logically follows that the explanation for the discrepancy is a counting error. This is not to say that I accept Mr Dean's theory on how that error occurred. What has convinced me that there was a counting error is the fact that no precise count of the returned envelopes in the Metals Division was taken, but only an estimate of the number. Conducting a count by a process of estimation is certainly a dangerous way to proceed. It unnecessarily creates a risk of error. Mr Dean's theory is one explanation for the error. There are others. One that springs to mind is that there may have been an error made in the count of the number of trays that held envelopes. But this is just speculation. I do not know how the error occurred. However, the existence of error is the most probable explanation for this unfortunate state of affairs. 33 I can now turn to the delays in posting that do constitute an irregularity in the election. Here the question is whether an order should be made declaring the election void. 34 I am of the firm view that the delay in posting the ballot papers is not an irregularity that gives rise to a likelihood that the result of the election may have been affected. The failure to deliver the ballot envelopes to the GPO on the day of the opening of the ballot may have delayed the receipt of the ballot material by some members, but if it did then generally speaking the delay was of the order of a day or two. This delay would have no effect on the result of the election, in my opinion. 35 The delay in sending the ballot material to 2,662 members attached to the Technical and Supervisory Division of the Union stands on a different footing because the delay was significant. But notwithstanding this delay, I do not believe that there was any effect on the outcome of the election. In reaching this conclusion I have regarded the following factors. First, it is not uncommon to find in union rules a requirement that ballot material is to be sent to members fourteen days before the close of the ballot. In one reported case, I recall that the period was as short as seven days. Second, a clear warning was given to the members who wished to vote, that they should do so quickly. Third, one thing that is apparent is that voters tend to return their ballot papers shortly after receipt. Approximately two-thirds of all votes had reached the GPO within eleven or twelve days of the opening of the ballot, even though there was a late posting of the initial ballot material. Fourth, an analysis suggests that no more than 114 completed ballot papers would have been sent by members attached to the Technical and Supervisory Division. If these votes were counted, they could not have affected the outcome of the election. 36 The delay in posting the ballot papers in due time is unfortunate because it can lead to the view that there has not been a fair election. However, the issue is not whether there is an appearance of unfairness about the election but whether the result of the election may have been affected, or may be affected, by the irregularity and any possible similar irregularities. This has not happened in this case. 37 I mention in passing that I have not in this inquiry followed the approach of Griffith CJ in Chanter v Blackwood (No. 2) (1904) 1 CLR 121. In that case, his Honour said that according to the common law, if there was a theoretical possibility of a different result in an election, that would be a sufficient ground to set aside the election. This view was not followed by Isaacs J in Kean v Kerby (1920) 27 CLR 499 and is inconsistent with the statute. 38 The final matter to mention is that a few members received more than one ballot paper. This point is a distraction. There is no suggestion that any member cast more than one vote. To do so it would be necessary for the voter to return the ballot in a separate prepaid envelope of the type prepared by the Returning Officer. It is extremely unlikely that anyone would go to the trouble of reproducing the prepaid envelope. Hence I pay no regard to the third alleged irregularity. 39 For the above reasons the inquiry is terminated. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 9 June 2000 Counsel for the Applicant: Mr W R Haylen QC

Solicitor for the Applicant: Taylor & Scott

Counsel for the returning officer: Mr K Bell QC Mr T O'Donoghue

Solicitor for the returning officer: Australian Government Solicitor

Counsel for Mr C Johnston: Mr H Borenstein

Solicitor for Mr C Johnston: Harry Nowicki & Co

Counsel for the Australian Manufacturing Workers Union: Mr J Pearce (2 June 2000) Mr D Shaw (5 June 2000)

Solicitor for the Australian Manufacturing Workers Union: Holding Redlich

Dates of Hearing: 2, 5 June 2000

Date of Judgment: 9 June 2000