In the Matter of an Application by Evans, Kenneth Richard for an Inquiry into an Election In the Hospital Employees Federation of Australia [1985] FCA 130

IN THE MATTER OF AN APPLICATION BY FENNETH RICHARD EVANS FOR AN

IN THE MATTER of an applicaticn by KENNETH RICHARD EVANS for an inquiry into an election ain THE HOSPITAL EMPLOVEES FEDERATICN OF AGZTRALTA

On 7th Septemuer 1985, tue Inuustrial Registrar referrea LO the Court an application for an inquiry into 2ieéctions in the Queensland branch of the Hospital Employees Federation ar Australia. The elections were for ali positions in that branch,

and were conducted pursuant to s. 170 cf the Cenciliation and

Arpitration Act 1904 ("the Act"). The Industrial Registrar was therefore not required to consider unaer 5s. i166 of the Act

whether reasonable grounds existed for an inquiry; ne yreferrecr

the matter to the Court under s. 159(4)(a) of the Acc.

un Zlst September 1984 the Court heard an application ty

the Applicant for interim Graers, which would have had the effect

of reversing the results of the elections until the inquiry was

completed. That application was refused. On llth Uctoner 1984,

-2- positive orders were made, placing those who were successful in

the elections into office, pending the outcome of the inquiry.

As originally framed, ~ the "application involved allegations that some members entitled to vote did not receive ballot papers, that resources and funds of the branch were improperly used to support a candidate or group of candidates, that false statements were made about a group of candidates, that a candidate was threatened, and that the processing of membership

applications was delayed until after the elections.

The hearing of the inquiry began on 8th October 1984. Mr. McCarthy of counsel, who then appeared for the Applicant and a number of other candidates, stated that he intended to widen the scope of the inquiry by contending that most of those to whom ballot papers had been forwarded in the elections were not validly admitted to membership of the Hospital Employees Federation of Australia ("the organization"). This new issue required that the organization itself be given an opportunity to

The hearing of the inquiry proceeded over three and a half days, during which the Court received a number of affidavits and oral evidence from the Applicant and other witnesses. It was then adjourned to give the organization a chance to consider its position, and to take steps to validate its membership if this was necessary. It was necessary for the Court to give directions on subsequent occasions as to the conduct of the affairs of the

branch, in furtherance of the interim orders given on llth

The hearing resumed today. On its resumption, Mr. Hall

of counsel, who now appears for the Applicant and the "other candidates for whom Mr. McCarthy appeared, indicated the desire of the Applicant to discontinue the inquiry. Mr. Marshall of counsel, appearing for the organization, applied for the termination of the inquiry pursuant to s. 159(4)(b) of the Act, on the basis that no reasonable ground exists for the application. Not surprisingly, Mr. Tutt, the solicitor for a number of successful candidates, and Mr. Swan, the solicitor appearing for the Australian Electoral Commission, did not oppose

the application. All parties, it appears, are content to accept

The question now arises what course should the Court take? An inquiry under Part IX of the Act is an _ unusual

proceeding. Once an application has been referred to the Court under s. 159(4)(a), an inquiry is deemed to have been instituted. Section 165(1) then imposes on the Court a positive duty to inquire into and determine the question whether any irregularity has occurred in or in connection with the subject election. It seems that such inquiry and determination must be carried to its

conclusion, even if it becomes obvious that, at the end, no

orders will result because none of the alleged irregularities would be likely to have affected the result of the election (see gs. 165(4)). The Court can only avoid the conduct of an inquiry by terminating the inquiry under s. 159(4)(b), if it is satisfied

that no reasonable ground exists for the application.

In the conduct of an inquiry, the Court is empowered to direct the issue of subpoenas for the production of documents and the attendance of witnesses; service of such subpoenas, and the expenses of them,- are arranged by the Registrar of the Court; see Order 48 Rule 4A of the Federal Court Rules. Section 164(4) of the Act gives the Court a discretion as to procedure, and

dispenses with. the rules of evidence, allowing the Court to

It is plain from the legislation that the Court conducting an inquiry is expected to adopt some role other than its normal one of passive listener to the evidence and submissions of the parties, and decider of the issues presented to it. Part IX of the Act gives an inquisitorial function to the Court; no doubt the reason for this is that the public has an interest in the proper conduct of elections within organizations registered under the Act. Organizations perform a function which is central to the operation of the system of conciliation and

arbitration and should be properly representative of their

All this having been said, however, it is plain that the Court is not intended to conduct an inquiry in a room with stars painted on the ceiling, by summoning all persons who may be likely to throw light on issues formulated by the Court, and putting them on oath. Such a procedure would be so foreign to the traditions of the common law that the Parliament cannot be presumed to have intended it. The Court is not afforded the

assistance of counsel to conduct the inquiry on its behalf, in

• 5 - the manner in which counsel assists a royal commission. Save for such assistance as the Industrial Registrar may give, if authorised under s. 162A of the Act, the Court is not provided with its own investigative staff to procure the evidence which ° may be necessary for the Court to perform an inquisition. Provision is made in s. 164 for parties. In the normal course, issues are raised, and evidence is brought forward by the parties. Subject to the receipt of some evidence not normally admissible, an inquiry is in practice conducted in much the same way as any other Court proceeding, the Court hearing what the

parties put forward and deciding the issues raised.

It seems to me, therefore, proper that I should have regard to the wishes of the parties in deciding whether to terminate the inquiry under s. 159(4)(b). Each of the parties has the benefit of competent legal advice. The interests of the parties are divergent, so that I can be satisifed that a decision by each party not to press for the continuance of the inquiry is the result of mature consideration of the position. The parties include the organization itself, which is capable of speaking for the interests of its members. Any public interest which may remain in the continuance by the Court of an investigation of the conduct of the elections is outweighed by the undesirability of the Court imposing its processes on the affairs of the organization when its intervention is not desired by anyone, and by the avoidance of the enormous costs to the parties and to the public of a continued hearing. If the inquiry is terminated, the position will be the same as if it had never

been instituted; the results of the elections will endure in the

It is proper that I should address myself to the issues raised in the inquiry. The organization has addressed itself to remedying the possibility that those who were thought to be its members in Queensland may not be validly so. It has put in train measures relying on s. 171E of the Act to validate the membership of persons previously treated as members. To the extent that these measures succeed, the membership of those persons will be validated retrospectively. To the extend that they do not succeed, application can always be made to validate the admission of members under s. 171C of the Act; see Troja v. Australasian Meat Industry Employees Union (1978) 46 F.L.R. 340. Adjournment of the inquiry to enable such validation would be an appropriate

As to the remaining issues, I do not propose to canvass the evidence in detail. It is sufficient to say that some were not pursued and the evidence relating to others presented a different case from that set out in the application. On the evidence which I have heard, I consider it unlikely that the results of the elections would have been affected by any irregularity alleged. In the light of the attitudes of the

parties, the likelihood of further evidence emerging to change

I therefore find that I am not satisfied that there is reasonable ground for the application. The Court will order that

Mr. Tutt did ask that I make a finding that it is not just that his clients should be reguired to bear the costs incurred by them in connection with the inquiry, for the purpose of facilitating an application to the Attorney-General pursuant to s. 168(3) of the Act. I decline to make a finding in those terms; the question whether it is not just that a person bear costs in connection with an inquiry is committed by the Act to the Attorney-General; it would be wrong for the Court to attempt to pre-empt that decision. It is plain that the position of Mr. Tutt's clients, that the results of the election should not be overturned, has been vindicated by the Applicant's decision not

The Court orders that:

1. Each of the interim orders made on llth October 1984, Bih November 1984 and 28th November 1984 is discharged;