Egan v Maher

The nature of the proceeding 1 This case is concerned with the validity of the nomination of Valerie Ann Butler for two offices in elections conducted within an organisation registered pursuant to the Workplace Relations Act 1996 (Cth) ('the WR Act'). In order for her nominations to be valid, pursuant to the rules of the organisation, Ms Butler had to be a financial member attached to a particular divisional branch of the organisation, and had to have had that status for at least 12 months, at the date of closing of nominations. The question whether Ms Butler was a member attached to the relevant divisional branch is unusually complicated, because of difficulties of construction of the relevant rules, the failure of the rules to make provision for some matters, and failure to observe the rules in some respects. 2 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union ('the Union') is an organisation, registered pursuant to the WR Act. The provisions of the WR Act governing the registration and conduct of the affairs of registered organisations are now found in Sch 1B of the WR Act. Notwithstanding that those provisions are found in a schedule, they are designated as sections and subsections, as if they were provisions found in the body of the WR Act itself. Accordingly, a reference in these reasons for judgment to a section, accompanied by a number, is to be taken to be a reference to a provision in Sch 1B of the WR Act, unless the contrary is indicated, in order to avoid the necessity to make constant reference to the fact that the provisions are found in Sch 1B. 3 By written decision dated 21 March 2005, pursuant to s 189(3), a deputy industrial registrar recorded the fact that the Union had lodged in the Industrial Registry prescribed information in relation to the conduct of an election. Attached to the decision was a list of the offices within the Union for which prescribed information in relation to the conduct of elections had been lodged. Among the offices listed were three branch committee of management members from the Lines and General Divisional Section of the Victorian Postal and Telecommunications Branch ('the P&T Branch'), and one divisional executive member from the Lines and General Divisional Section of the P&T Branch. The deputy industrial registrar's decision pronounced that he was satisfied that an election for all the offices listed in the attachment was required to be held under the rules of the Union, and announced that he was making arrangements for the conduct of the election by the Australian Electoral Commission, in accordance with s 189(3). 4 The elections were conducted by the Australian Electoral Commission. In Victoria, the returning officer was John Pepper. After the returning officer had called for nominations, he received two nomination forms in respect of Valerie Ann Butler, each signed by two financial members of the Union attached to the Lines and General Divisional Section of the P&T Branch. In one form, Ms Butler was nominated for the office of branch committee of management member. In the other, she was nominated for the office of divisional executive member. The returning officer received both forms on 2 May 2005, the closing date for nominations. 5 The applicant in the present proceeding, Ms Gail Cholosznecki, objected to the nominations of Ms Butler. The returning officer made inquiries of Ms Butler, and of the branch secretaries of the P&T Branch and Victorian Telecommunications and Services Branch ('the T&S Branch'). After considering responses to those inquiries, the returning officer decided to accept the nominations of Ms Butler. Ballots were conducted in relation to a number of offices, from 1 June 2005 to 30 June 2005. On 5 July 2005, the returning officer declared the results of the ballots. He declared Ms Butler elected to both of the offices for which she had been nominated. In the ballot for three branch committee of management members, Ms Butler's vote tally was the third highest of five candidates. In the ballot for divisional executive member, Ms Butler defeated Ms Cholosznecki, the only other candidate, by 49 votes, 183 to 134. Those who were successful in the elections took office on 1 August 2005, and are due to hold office until 31 July 2007. 6 On 30 September 2005, Ms Cholosznecki applied to the Court, pursuant to s 200(1), for an inquiry into the elections for the offices to which Ms Butler was elected, alleging that there had been an irregularity in relation to each election, because Ms Butler was not eligible to be nominated. There is no dispute that Ms Cholosznecki is a member of the union, and therefore has standing to apply pursuant to s 200(1). On 18 October 2005, in accordance with s 201, being satisfied that there were reasonable grounds for the application, I fixed a time and place for the conduct of the inquiry, initially for directions only. I directed service of the application on a number of parties, including the two unsuccessful candidates for the office of branch committee of management member, the Union, the Communications Division of the Union, the P&T Branch, and the T&S Branch. At the first directions hearing, on 24 October 2005, there were appearances on behalf of Ms Cholosznecki, Ms Butler, the Australian Electoral Commission and the returning officer, and the Union. An affidavit of service has now been filed, establishing that service on the other parties was effected in accordance with my order. At the hearing of the inquiry, those representing the Australian Electoral Commission and the returning officer, and the Union, sought and were granted leave to withdraw from the hearing. Leave to withdraw was granted to the representative of the Union, despite my misgivings about being deprived of any assistance the Union might have been able to give me with respect to the construction of its rules. The issues were therefore argued between counsel for Ms Cholosznecki and counsel for Ms Butler.