Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division (No 2) [2012] FCA 1387

Federal Court of Australia|2012-12-06|Before: Flick J

ating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165, referred to Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28, 166 FCR 398, cited Re Ferguson; Re Inquiry into Election in A/asian Meat Industry Employees Union, WA Branch (1986) 17 IR 208, cited Gray v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FCA 380, referred to Re Killesteyn (application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers' Federation (Qld)) [2009] FCA 1311, 261 ALR 730, cited Re McJanett [2009] FCA 996, 178 FCR 448, considered State of South Australia v State of Victoria (1911) 12 CLR 667, cited Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162, considered The Texas Company (Australasia) Limited v Federal Commissioner of Taxation (1940) 63 CLR 382, applied

Date of hearing: 23 November 2012

Division: FAIR WORK DIVISION

Category: Catchwords

Number of paragraphs: 35

Counsel for the Applicant: Mr A A Hatcher SC with Mr A M Slevin

Solicitor for the Applicant: Maurice Blackburn Lawyers

Counsel for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia: Mr R C Kenzie QC with Mr T J Dixon

Solicitor for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia: NEW Law Pty Ltd

Counsel for Mr A Hicks: Mr W L Friend SC

Solicitor for Mr A Hicks: Hall Payne Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 2159 of 2011

JUDGE: FLICK J DATE OF ORDER: 6 December 2012 WHERE MADE: SYDNEY

The orders made on 25 October 2012 are set aside.
The Originating Application as filed on 1 December 2011 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 2159 of 2011

JUDGE: FLICK J DATE: 6 decemBER 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Applicant, Mr Troy Gray, filed an Originating Application in this Court on 1 December 2011 seeking an "inquiry" into an election for an office in the Electrical, Energy and Services Division ('the Electrical Division') of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ('the Federal Union') pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) ('the Registered Organisations Act'). 2 Mr Gray had earlier commenced a separate proceeding in this Court in which he challenged r 5.2.6 of the rules of the Electrical Division. That proceeding was heard by his Honour Justice Perram in December 2011. His Honour delivered judgment in April 2012: Gray v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FCA 380. 3 This proceeding, in which an "inquiry" is sought, came before the Court on 6 February 2012 and 27 March 2012. On those occasions it was adjourned to await the decision of Perram J on the basis that the issues for determination in that proceeding would have a substantial bearing on the Applicant's prospects in this proceeding. After his Honour's decision was published in April 2012, a Notice of Appeal was filed in May 2012. Thereafter, the current proceeding again came before the Court on 8 May 2012 when it was adjourned to await the decision of the Full Court. 4 On 24 September 2012, at the behest of Mr Gray, the current proceeding was set down for hearing as to whether there were "reasonable grounds for the application". The hearing took place on 5 October 2012. Mr Gray, in summary form, relied upon there being essentially two "irregularities" in the conduct of elections that had taken place in the period spanning July-September 2011. He contended that there were two groups of people on the roll of eligible voters who were not entitled to vote, namely: members of the Electrical Division in New South Wales who paid their contributions to the Electrical Trades Union of Australia, New South Wales Branch (the State Union) and not to the Federal Union; and members of the Electrical Division who are "life members" or "honorary members" who are no longer employed in the industry over which the Federal Union has coverage and who pay no contributions. The ineligibility of the former group of people focussed attention upon r 5.2.6 (in particular) of the Rules of the Electrical Division. Before Justice Perram a declaration had been sought that this rule was "oppressive, unjust or unreasonable" pursuant to s 142 of the Registered Organisations Act. 5 Judgment in this proceeding was delivered on 25 October 2012: Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165. It was concluded that the Court was "satisfied" that there were "reasonable grounds for the application" in respect to the former "irregularity" - but not the latter. 6 In reaching that state of "satisfaction" reliance was placed upon the conclusions of Perram J. 7 Directions were made on 9 November 2012 requiring Mr Gray to provide an "outline of the alleged irregularities or issues to be the subject of the inquiry". That outline, as had been foreshadowed at the Directions Hearing, canvassed "irregularities" in addition to those which had been relied upon in October. Once the Court was "satisfied" that an inquiry should be conducted, the position advanced on behalf of Mr Gray was that the Court was not thereafter confined to an inquiry directed to the irregularity or irregularities first identified. The Directions Hearing was stood over to 15 November 2012 with a view to then fixing a "time and place for conducting the inquiry" and the giving of "such directions" as were then considered "necessary". 8 Intervening, however, was the decision of the Full Court, on 13 November 2012 in respect to the appeal from Perram J's decision: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Gray [2012] FCAFC 158. The Full Court concluded that Mr Gray's case, insofar as it concerned financial arrangements, should not have succeeded: [2012] FCAFC 158 at [38]. The appeal was allowed. 9 The conclusion of the Full Court, it was accepted, deprived the Court of the sole basis upon which it had reached its state of "satisfaction" in the October 2012 judgment. 10 On 15 November 2012 the Federal Union, perhaps not surprisingly, contended that no "time and place" for conducting any inquiry should be fixed. It contended that the sole basis upon which the Court had reached its state of "satisfaction" was removed by reason of the decision of the Full Court. It was said to be too late for Mr Gray to seek to supplement the irregularities upon which he had relied on 5 October 2012 by now either "re-opening" or advancing alternative grounds to satisfy the Court that an "inquiry" should be held. But Mr Gray contended that the Court had no power to do anything other than to "fix a time and place" for the inquiry. 11 The suggestion that the Court lacked power to do anything other than to fix a "time and place" for an inquiry was said to flow from the terms of s 201 itself. That section provides as follows: Instituting of inquiry Where: (a) an application for an inquiry has been lodged with the Federal Court under section 200; and (b) the Court is satisfied that there are reasonable grounds for the application; the Court must 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 is taken to have been instituted. The requirements of both paragraphs (a) and (b), it was contended on behalf of Mr Gray, had been met - there had been an "application for an inquiry" (being the Originating Application filed on 1 December 2011) and the Court had been "satisfied" that there were reasonable grounds for the inquiry (ie. the 25 October 2012 judgment). 12 The power conferred by s 206(6) of the Registered Organisations Act, it was further contended on behalf of Mr Gray, could only be invoked after the Court had begun the inquiry - s 206(6) was not a source of power to terminate an inquiry even before it had commenced. Section 206(1) and (6) provide as follows: Action by Federal Court (1) At an inquiry, the Federal Court must inquire into and determine the question whether an irregularity has happened in relation to the election, and such further questions concerning the conduct and results of the election as the Court considers necessary. … (6) Without limiting the power of the Court to terminate a proceeding before it, the Court may, at any time after it begins an inquiry into an election, terminate the inquiry or the inquiry to the extent that it relates to specified matters. No other source of power to terminate the proceeding before the Court was self-evident according to Mr Gray. An application for an election inquiry pursuant to s 200 of the Registered Organisations Act, it was pointed out, is not a "proceeding" - at least for the purposes of seeking leave to issue a subpoena: Re McJanett [2009] FCA 996, 178 FCR 448. Indeed, once the Court had reached the requisite state of "satisfaction", it was there said that s 201(b) was made out and no "order" of the Court was even necessary: [2009] FCA 996 at [34]; 178 FCR at 456. If this be correct, provisions such as r 39.05 of the Federal Court Rules 2011 (Cth) would confer no power to vary any "order" as to the Court's state of satisfaction as no such "order" was necessary. 13 Had this Court published its reasons for decision some three or four weeks later - and after the decision of the Full Court on 13 November 2012 - the present argument as to the Court not having any power to revisit any conclusion as to its state of "satisfaction" would not have arisen. There would have been no question but that the application for the "inquiry" would have been unsuccessful. All of the arguments in respect to the "irregularities" relied upon by Mr Gray had been presented during the hearing on 5 October 2012. The sole basis for being satisfied that there may have been an irregularity arising by reason of some members having voted who were not "financial" would have been answered by the decision of the Full Court. 14 But all that matters not - at least according to Senior Counsel for Mr Gray. Once the state of "satisfaction" has been reached in his client's favour, the legislation thereafter dictates that an "inquiry" must be conducted. 15 That submission is rejected. 16 It is concluded that this Court retains power to dismiss the proceeding before it and that there is no reason why that power should not be exercised in the present case.

POWER TO DISMISS THE ORIGINATING APPLICATION 17 Even if it be accepted that the Originating Application did not give rise to a "proceeding" in this Court, that any "inquiry" is separate and discrete from any "proceeding" in which a state of "satisfaction" was reached occasioning an "inquiry", and even if no "order" of the Court was required to institute an "inquiry" - the Court nevertheless retains power to revisit its state of "satisfaction". Prior to the "matter" before the Court being finally resolved and judgment entered, the Court remains vested with the power to determine that the Originating Application should be dismissed rather than fixing a "time and place" for the conduct of the "inquiry". 18 If, before reasons for decision were published, it emerged that there was further evidence or other materials relevant to the decision which had been overlooked or further submissions which should have been advanced, an application could have been made to the Court to adduce that evidence or to make those submissions. The fate of any such application would depend upon its merits. But an applicant for an inquiry would be surprised if he were told that the Court had no such power because there was no "proceeding" before it. There is power, it has been assumed, to grant leave to "re-open" an inquiry and to adduce further evidence: Re Ferguson; Re Inquiry into Election in A/asian Meat Industry Employees Union, WA Branch (1986) 17 IR 208 at 208 per Toohey J. It would be a surprising result if there was power to "re-open" an inquiry but no power to "re-open" a hearing as to whether or not an inquiry should even be held. And, similarly, if it emerged from the reasons for decision evidencing the Court's state of satisfaction (or otherwise) as to whether there are "reasonable grounds for the application" for an inquiry that a submission of critical relevance to an asserted "irregularity" had not been resolved, it is considered that an application could be made to the Court to resolve that which had been inadvertently overlooked. 19 The source of that power, it is concluded, is ultimately to be derived from the power of the Court to exercise the jurisdiction entrusted to it. 20 The jurisdiction of present relevance is that conferred by s 338 of the Registered Organisations Act "in relation to any matter … arising under [the Registered Organisations] Act". 21 Subject to any express provision within the Registered Organisations Act or another Act of Parliament, this Court retains all of the powers conferred on it by the Federal Court of Australia Act 1976 (Cth). Section 206(6) of the Registered Organisations Act does not purport to confine those powers because the power there conferred to "terminate a proceeding before it" is expressly stated to be without limiting "the power of the Court to terminate a proceeding …". 22 In identifying the source of the Court's power, it is not considered necessary to determine whether there is a "proceeding" before the Court either before or after it reaches a state of satisfaction that "there are reasonable grounds for the application" for the purposes of s 201(b). Section 206(6), it may nevertheless be noted, acknowledges that there is both power "to terminate a proceeding" and power to "terminate [an] inquiry". The legislature itself has thus drawn a distinction between the two. Neither s 201 nor s 206 of the Registered Organisations Act seeks to confine the ambit of the powers that may otherwise be exercised by this Court. 23 The source of the power to dismiss the Originating Application filed on 1 December 2011 - notwithstanding the reasons for decision published on 25 October 2012 and s 201 of the Registered Organisations Act - may be found in ss 22 or 23 of the Federal Court of Australia Act. 24 Section 22 provides as follows: Determination of matter completely and finally The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. Section 23 provides as follows: Making of orders and issue of writs The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. The term "matter" or "matters" as used in s 22 and 23 of the Federal Court of Australia Act, and as used in ss 73 to 76 of the Constitution, is "… the widest term to denote controversies which might come before a Court …": State of South Australia v State of Victoria (1911) 12 CLR 667 at 675 per Griffith CJ. There is, of course, a distinction between a "matter" and the "legal proceeding" in which the matter is determined: Crouch v Commissioner for Railways (Queensland) (1985) 159 CLR 22 at 37 per Mason, Wilson, Brennan, Deane and Dawson JJ; Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 at [43]-[45], 166 FCR 398 at 408-409 per Heerey, Sackville and Siopis JJ. 25 For the purposes of the present proceeding, the application for an inquiry pursuant to s 200 of the Registered Organisations Act constituted but part of the "matter" before the Court. The remaining part of that "matter" was the making of orders after an inquiry had been conducted. In respect to that "matter", the power or function of the Court was not confined to simply reaching a state of "satisfaction" as to whether there were "reasonable grounds for the application". The power of the Court, it is considered, cannot be confined to the resolution of the single question as to whether or not it was "satisfied" that there were "reasonable grounds" for the application. It retained power to grant "all remedies" in respect to the "matter" until it was "finally determined": Federal Court of Australia Act s 22. It also retained a power to "make orders of such kinds" as it "thinks appropriate": Federal Court of Australia Act s 23. Having been vested with jurisdiction to determine Mr Gray's Originating Application, the Court thereafter was clothed with the power to "grant all remedies" and to do so in a manner which avoided "all multiplicity of proceedings …". 26 The power to grant "all remedies … so that multiplicity of proceedings concerning any of those matters [may be] avoided" would be diminished if an "inquiry" had to be commenced before it could be "terminated" pursuant to s 206(6) of the Registered Organisations Act. So, too, would the power conferred by s 23 be likewise diminished. 27 Power may also be found in rr 39.04 or 39.05 of the Federal Court Rules 2011. Although it may be accepted that there is no appeal from the reasons for a decision (Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2009] FCAFC 183 at [35] per Sundberg, North and Tracey JJ), the decision that there were "reasonable grounds for the application" made by Mr Gray constituted a "judgment" for the purposes of rr 39.04 and 39.05. 28 The conclusion that the Court has power to now dismiss the Originating Application notwithstanding its earlier state of "satisfaction" is not surprising. A superior court of justice, such as the Federal Court, "has full power to rehear or review a case until judgment is drawn up, passed and entered": The Texas Company (Australasia) Limited v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457 per Starke J.

THE ABSENCE OF ANY DISCRETIONARY REASON TO REFUSE RELIEF 29 There is no discretionary reason why the Originating Application filed on 1 December 2011 should not be dismissed. 30 There is no reason to conclude that Mr Gray was not given every opportunity on 5 October 2012 to persuade the Court that there were "irregularities" which warranted the holding of an "inquiry". Indeed, he was successful. Any argument that Senior Counsel appearing for Mr Gray on that occasion advanced a submission which was not resolved is rejected. The submission now identified as the one which was not resolved focussed upon whether there was a third group of members who had voted who had no entitlement to do so. It was now said on behalf of Mr Gray that this third group of people, irrespective of the operation of r 5.2.6, was comprised of people who were not financial but who had nevertheless voted. The numbers of such persons in New South Wales who may have voted could well have affected the election results. The submissions said to have been advanced, but not resolved, was that the reason those persons were included on the roll and allowed to vote did not matter; all that was material was that they were not entitled to do so. The case for Mr Gray, on this approach, was not confined to the reason previously identified - namely the operation of r 5.2.6. Although there was a reference in the transcript to a submission that there was no need for Mr Gray to ascribe a reason as to why non-financial members may have voted, that submission was not developed and the written submissions filed on behalf of Mr Gray did not proceed on this basis. The written submissions were relevantly addressed under the following two headings (without alteration): "The First Ineligible Group - rule 5.2.6 … The Second Ineligible Group- honorary and life members" That was the manner in which the case for Mr Gray was advanced. And that was the case that was resolved. The argument as it has now been recast seeks to address submissions directed to the following heading in the more recent Outline of Submissions filed on behalf of Mr Gray: "Alleged irregularity - Ineligible persons included on the role (sic) of voters" Although it may have been unnecessary for Senior Counsel previously appearing for Mr Gray to have identified the reasons why they were ineligible, the fact is that he did and those reasons were relied upon. 31 If consideration, however, were now to be given to whether there was this third group of people who were not financial but who nevertheless voted in the elections and if the former explanation based upon the operation of r 5.2.6 is left to one side, it would not necessarily be correct to characterise any such "irregularity" as "speculation". This characterisation of the argument, advanced on behalf of the Federal Union in support of its position that any inquiry should be "terminated", may well have been rejected. Grounds which provide no more than a speculative basis for suspicion that there may have been an "irregularity" will not suffice for the purposes of s 201(b) of the Registered Organisations Act: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 162 at 166-167 per French J; Re Killesteyn (application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers' Federation (Qld)) [2009] FCA 1311 at [22]-[26], 261 ALR 730 at 736-738. But the "irregularity" as it has been sought to be recast on behalf of Mr Gray is that persons who were not financial in fact voted - it matters not, on this recast approach, to determine why they were included on the roll of eligible voters. The fact that they were not financial but nevertheless voted, Mr Gray submitted, would have been sufficient for there to be "reasonable grounds" for reaching the requisite state of "satisfaction". The only likely explanation, however, remained the operation of r 5.2.6; the prospect of any other "irregularity" accounting for such large numbers of non-financial members voting remained unidentified and - to that extent - speculative. It may well have been for this reason that Senior Counsel previously appearing for Mr Gray took the step of providing an explanation and thereby removed any "speculative" element from the submissions he previously advanced. 32 Nor can any reliance be placed by Senior Counsel now appearing for Mr Gray upon the forensic choices previously made by his former Senior Counsel. Given the conclusions of Perram J, it can readily be understood why the operation of r 5.2.6 was previously relied upon as a basis for an irregularity sufficient to found an election inquiry and the deliberate characterisation of the first group of non-financial members who had voted. That "irregularity" was supported by his Honour's reasons for decision. But no course should be encouraged whereby arguments which were not previously advanced with as much vigour as they might have been can later be put with renewed vigour when life is later snuffed from that which once seemed a safe refuge. 33 No course should be encouraged whereby a person seeking an inquiry should be given yet a further opportunity to recast or reformulate the alleged irregularities relied upon - or indeed adopt new and different irregularities to found an inquiry. The hearing of the application is the time for all irregularities relied upon to be advanced for consideration - not some later point in time. 34 Perhaps different considerations may apply where an application for an inquiry is made and resolved soon after it has been made. In the present case, however, Mr Gray and his advisors had been given almost a year in which to properly identify the "irregularities" relied upon. Moreover, and having filed his Originating Application in December 2011, Mr Gray waited until September 2012 to have that application heard. Perhaps there was reason for doing so. But the consequence of the delay is that there forever remained the spectre of uncertainty over the results of the 2011 elections. Those elected to office may only hold office for a maximum of four years: Registered Organisations Act s 145(1). There is a need for certainty that only the dismissal of the Originating Application can now achieve.

CONCLUSIONS 35 It is concluded that no "time and place" should be fixed for the conduct of the inquiry sought by Mr Gray in his Originating Application. That Originating Application should be dismissed.

THE ORDERS OF THE COURT ARE:

The orders made on 25 October 2012 are set aside.
The Originating Application as filed on 1 December 2011 is dismissed. I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Fair Work (Registered Organisations) Act 2009(Cth)ss 200, 201, 206, ss 142, 145, 200, 201, 206, 338

Federal Court Rules 2011(Cth)rr 39.04, 39.05

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