In the matter of an application by Evans, Kenneth Richard for an inquiry into an election in The Hospital Employees Federation of Australia [1984] FCA 337

Federal Court of Australia|1984-07-01|Before: Gray J

Bree eh ate et emt cima an i neem ertrmerenrice han Seat eS ae te Pantin ee nt er ee ne

Industrial law - registered organizations ~- inquiry into election - - application for interim orders - - prima facie case -

Beecham Group Limited v. Bristol Laboratories Pty. Limited

Cook v. Crawford (1979) Industrial Arbitration service, Current

Re Evans: Application for an anquiry into an Election in the

) ) QUEENSLAND DISTRICT REGISTRY ) No. 9 12 of 1984 ) INDUSTRIAL DIVISION )

IN THE MATTER of an application by KENNETH RICHARD EVANS for an inquiry into an election in THE HOSPITAL EMPLOYEES FEDERATION OF AUSTRALIA

On llth July 1984 an officer of the Australian Electoral Commission declared the results of a number of elections in the Hospital Employees Federation of Australia, Queensland Branch.

The elections were for one position of Junior Vice-President, one

position of Branch Secretary, one position of Branch Assistant

Secretary, two positions of Branch Trustees, eight positions as

ordinary members of the Committee of Management, and six

positions of Branch Delegates to the National Council.

The Industrial Registrar has referred to the Court pursuant to s. 159(4)(a) of the Conciliation and Arbitration Act 1904 an application by Kenneth Richard Evans for an inquiry into

each of these elections. Pursuant to s. 163(1)(c) of the Act,

Mr. McCarthy, who appears for the Applicant, seeks an interim

order that the persons who currently occupy all of the offices the subject of the elections continue to do so until the inquiry

The principles laid down by the High Court of Australia

in Beecham Group Limited v. Bristol Laboratories Ptv. Limited (1967) 118 C.L.R. 618, at pages 622-623, have been applied by the

Full Court of this Court to cases involving statutory

injunctions; see World Series Cricket Pty. Ltd. v. Parish (1977)

16 A.L.R. 181. The same principles have also been applied to

various powers under the Conciliation and Arbitration Act to

grant interim orders; see Thompson v. Townsend (1979) 38 F.L.R. 143, Cook v. Crawford (1979) Industrial Arbitration Service,

Current Review 492, Mahony v. Petie (1979) 37 F.L.R. 488, and

Lancaster and Canny v. The Municipal Officers' Association of

Australia (1981) Industrial Arbitration Service, Current Review ll. Unless persuaded to the contrary, I am disposed to apply

these same principles to an application for interim orders under

The first element of these principles requires that the applicant for interim relief should make out a prima facie case; that 1s to say, he or she should establish that if the evidence remains as 1t is, he or she has some likelihood of success at the trial. It appears to me that, in the present circumstances, the question of a prima facie case involves both the issue whether irregularities have occurred and the issue whether any such

irregularities may have affected the result of any of the

The only hard evidence of an irregularity likely to have affected the result is that 26 members did not receive ballot

papers, because their addresses were changed in the records of

The margins by which the successful candidates' votes exceeded the votes of their rivals in the elections are as follows: in the election for Junior Vice-President, the margin

is 50; in the election for Branch Secretary, the margin is 38; in the election for Branch Assistant Secretary, the margin is 57.

The remaining positions involved the election of more than one

candidate. For Branch Trustees, the gap between the lowest winning candidate and the highest unsuccessful candidate was 22. In the case of the members of the Committee of Management, the gap between the lowest successful and the highest unsuccessful

candidate was seven, and in the case of Branch Delegates to the National Council, the gap between the lowest successful and the

It follows from these figures that the non-receipt of ballot papers by 26 members entitled to vote may have affected the result of the election for some of the positions at issue, those being the ones in which more than one candidate was to be elected. In relation to those positions it should be noted that those who received the highest vote ineach case are not affected, but those who received the lowest, or close to the

lowest votes, may be. I have not been asked by either Mr.

McCarthy or by Mr. Murdoch, who appeared for a number of successful candidates, to distinguish between the various

concerned, it is, in my view, undesirable that I should state anything which might be taken to bea preliminary conclusion about those matters. Some of them involve a considerable degree of speculation as to the facts; others involve difficult questions of law and of legal principle. It is sufficient if I say that I do not at present feel satisfied that a prima facie case 1S made out in respect of those alleged irregularities. Notwithstanding this, I proceed to consider the balance of convenience, because a prima facie case has been made out in respect of some of the positions, and in case I am wrong in

Rule 16(b) of the Branch Rules provides that the annual general meeting of the Branch shall be held in the month of September. It has been agreed by both counsel before me that the actual date of the annual general meeting is 28th September 1984. By virtue of Branch rule 9(a)(iii), the newly elected officers in all positions are due to take office from the completion of the annual general meeting for the year in which they are elected; that is to say, they -will take office on 28th - September 1984

'Only two of the offices the subject of the elections are

full-time positions, they being the Branch Secretary and the

Branch Assistant Secretary. Each of the occupants of these

positions is also a full-time officer of a state registered union with membership substantially the same as that of the Branch. Mr. McCarthy has submitted that it is more convenient and more efficient to allow these persons to continue to administer the Branch. On the other hand, it is worth noting that ne2ther of these persons will lose his job or his income if the rules are allowed to operate according to their terms. In addition, I am informed that neither of these persons has in the past been elected to the position which he now holds in the Branch. Each of them was appointed to fill a casual vacancy in that position. The elections for those particular positions, Branch Secretary and Branch Assistant Secretary, which have been held this year, constitute the only expression of the will of the members as to

There is no evidence that any inconvenience or loss of efficiency would result if those who have been elected take up their offices in accordance with rules, even if they are subsequently ousted upon the hearing of the inquiry. On the contrary, it seems to me to be undesirable that one side ina contest such as this should have exclusive control of the assets and the records of the branch pending the inquiry, and indeed

perhaps pending the conduct of any possible new ballot that might

Accordingly, no ground has been shown on the balance of convenience why the rules should not operate according to their

terms, and why those who have been elected should not take

office. It is my hope that questions as to the validity of their taking office will be resolved within a short period, having regard to the direction that I propose to make as to the date of

I therefore dismiss the application for interim orders.

I certify that this and the (5) five preceding pages are a true copy of the Reasons for Judgment herein of his

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Judgment (53 paragraphs)