Lynch, A.R. v. Howard, W.J. & Ors [1980] FCA 118

Federal Court of Australia|1980-07-01

Industritl jaw - electior to menrbershic - "2 rederity cf phe

votes of cll members pr-sent and votino" ~ teconing tf - receures

to history of rule where ambiaurty - Corcilirtror 277 Arbitrrhian

nln em en er enehe ae ddan ihe tamteadioed tal ow es : ee ee ee ee ee wee ee

Accordingly it is necessary to consider tke rule construed as above to ascertain whether the required majority for success of an applicant is that he must receive @ majority of the votes of all the members who voted in respect of hig

candijature including the "votes" of those who voted irformelly

or only of a majority of the formal votes cast in respect of pris

In the Shorter Cxford English Dicticnary a vcte is @efined in various ways. Pelevantly to the context cf the rule in guestion the following Gefinitions may be noted, nanraly, "ar indication by some approved method of one's opinion or chcice on

a matter under discussion", "an intimetion that one 2prrove r

OF disapproves, accepts or rejects a proposal, motion, candidate fer office or the like", "a means of signifying choice, sprrov-), etcetera". In the present context the first or secon? of these Gefinitiors would seem most appropriste. The mechanics of votira are directed to producing votes which the Feturning Cfficer will be able to count end From the count cf which he will be e#ble to say whether those indiceting acceptance of the candidate are 3 majority of "the votes of all rembers present and voting" in the secret ballot. There is of cours2 8 sense in which a pergor "voting" inform2lly does vote at the meeting, but he @ees not produce 2 vete in the ordinery teaning of the word. In thet mearing 2 person who hes ourrorte"? to cast a vote brut bas not

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Urder the rule the Peturning Officer is concerns3 to ascertain how many votes there are within the category of the votes of 2-11 members oresent ard voting sn2 how many "yee" votos bave been cast. It is a cuestion whether the "votes" cf rersons who delivered bellot papers to him marked in a way from which the inference was that the voter hed interdeA to cast a vote in respect of the candidature of Mr. Lynch tut hed feiled to indicate whether his preference was to accert or r2ject, forme? part of "the votes of 211 the members preeent and votina" in the

From the evistence of the Feturning Officer it would appear that there may have been a large number of informal votes. It would probably be possible to assess precisely how many by reference to the ballot papers. But if reference is made to theo contents of the bellct rapers for this purpose it would te impossible to exclude refererce to the "neo" votes arrearire on the face of those ballot parers. This would create oroblems for the appellant in this case because on thoair face there is a laride

I think the relevant Pert of the relevant rule must be construed as if it were expressed in th> terms that the person proposcZ for mombership rust receive such number cF "yes" votcs as conetitutes the process of voting. Unless there be some such notion there is no purpose in including the words relating te all members present. It is not to he thought that the reference toa all members present is to make it clear that persons ret present are not to have a vote. The cule providees that the cantidature of the appellent for membership 15 to be subvittes by the Secretery

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Accordingly in order to give some significant effect to the expression "of all members present and votino" it is Necessary to attribute to the word "voting" a meaning euch as "going through the process of casting 2 vote in respect of the candidate". A persen would certainly do this if he msrke3 tho ballot paper so that it was apparent that he desired to express a

preference for yes or no although he hat failed to do so.

But if to accommedate the words "all persons present and voting" one were to give a special meaning to the word "voting" nothing would be achieved unless violence were dene to the word "votes" in the total phrase "majority of vetes of all persons present and voting". That of which the "yes" votes must be 2 Majoricy is itself a number of votes. The "yes" votes comprehended within that number must obviously be forma] votes. The form in which the rule is expressed uses the word "votes" only once to comprehend the ""yes" formal votes an3 the total votes of which those formal votes must Le @ majority. Tt would need strong indications to show that the number of votes of which those "yes" votes were to be a mejority cerprehended both "yes" and "no" formal votes and informal votes, in ether words, that the word "votes" used only once was used in two senses anid referred both to formal "yes" votes in a totel rumber of votes

comprising formél end informa) votes. Infernal votes @re not

really votes at all and are not relevant to 2 majority of resi

It appears to me therefore that the proper construction ef the rule should proceed on the basis that the expression "all members present and voting" is not irtenjied to reouire that a special meaning be given to the word "votina", It would be ono thing if to adopt this 2zpproach meart doing violence to the words concerned but it dees not do sc. If "votes" neans formal votes and "voting" means voting so 2s to produce a formel vote, ther, if there be an ultimate majerity of "yes" votes that m2jority is a majority of the votes of all members vcresent and voting. In the result I am satisfied that the required majority is a

Majority of the formal votes cast et the meeting in respect of

the candidature of a person applying for admission to membershir.

On the case presented by the respondent and the applicant there was such a majority for Mr. Lynch and the learned Juége so found. According to tnat finding of fact by the learned Yudac Participation of the members present an2 votina at the meeting produced only eighteen votes in respect of Mr. Lynch, of which, fourteen were "yes" votes and four were "no" votes. Accordingly Mr. Lynch did receive a majority of the votes cf all mremrbers present and voting at the meeting and his case for admission to

But the respondents challenge the finding that there were only four "no" votes. By way of introduction they contend thet, in view of the proper construction of the relevant rule adonted

by the lcarred judge, thot particuler finding ws not necessary

" RUE IRPTOT IR TONS ED TEE IYER TEER PO meme emer name oe eenpnee me Re noe oe ee eee ee | -

for the decisicn he made. This latter contention may be accepted, but in the end it 1s seen to be non-significant for current purposes because what is involved is the course of the trial in relation to the issues which were the live issues before the ceurt.

The chellenge to the finding rests on the ccententian that on the evidence it is manifest that there were sixty or mors valid "no" votes cast by members voting at the meeting. AnA it 1S true that reference to the ballot papers put in evidence 7t 'the hearing before the learned Judge and constituting Fxhibat F reveals that, according to the markings thereon fourteen votes recorded "yes" vetes,but some sixty or more voters record27 "no"

The reesons of the learned Judge contain no reference zt all to the ballot papers. It is clear that his Honour accected the evidence of the Peturning Cfficer to the effect that there were foutcen "yes" votes and four "no" votes cast in resrect of Mr. Lynch. It is probable that his Honour aid net exsmine the

ballot papers to confirm the evidence of the Peturning Officer.

The Returning Cfficer was called by the epplicant in the proceedings and examined only to establish that he hed made én affidavit and that its cortents were true anc correct. That

affidavit describes his conduct of the ballot -ndJ tht cellectien

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of the ballot papers in a locked box end continued, "I then wrote the results on a slip of paper and handed the list to the President, annexed hereto and marked with the letter "A" ais a copy of the results which I handed to the Presicent." This

annexure became an exhibit tendere? 'Sy the eoplicant 2n? is referred to herein as Annexure "A". On its face it showed that the Returning Officer hed entered against the nate of Mr. Lynch the figures 14 and 4. It would be reasonskle but not inevitable

to interpret those figures as indicating that Yr. Lynch had

received fourteen "yes" votes and four "no" votes. In

cross-examination of the Peturning Officer by couns2l fer th respondents some eighty-six ballot papers were shown ta him. Fe was asked to glance at the signature cn the bottom right hand corner of "those documents". Be did this and said that his initials were there. He said he had seen the documents befor and that he had handed them out personally te the peovle et the meeting eand had locked them in the ballict box after the peocle had voted. Be was then asked whether after "totalling" the ballot papers he cemplcted Annexure 2. He said, "I completed that from a form where I had acknowledged every vote and on sach occasion recorded the number of the "yes" votes ard the number af

vetes having previously included this with the positive, negative and informal", Hoe was then led te eleborate thie in respect of the figures relating to a candidate other than ¥r. Lynch and ¢13 so in a way that irdicated that the same tethod was

applied to each candidate. Cn this basis he confirted that the

figures fourteen and four relating to ¥r. Lyrch in@icete?

In re-examination counsel for the applicant aked the

witness, "Mr. Towers, looking 2t Annexure A ... thet means thet Mr. Lynch got fourteen "yes" votes and four "no" votes ard the rest you recordeé 2s informe1? The witness 2nswered "The rest were not answerec""., In answer to his Honour he added "they were just blanks they did not indicate whether they wanted yes or ne ~.." As the witness was about to leave the box counsel] for the respondents said with reference to the ballot papers "JI omittes? to tender these docurents, your fFonour". And bis Honour s7i7,

"They will be Exhibit F". Be then indicated to counscl for the

It is clear that before counsel for tha respondents cross-examined the Peturning Officer he had conferrcd with hin and apparently it was with knowledge of the steps taken by th- Returning Officer that counsel guestiore? him with a vinow to

establishing the meaning of the figures on Annexure A.

At the end of the cross~examination it was clear thet counsel had set ovt te establish by the vive voce evidence of the Returning Officer that Mr. Lynch had received only fourteen "yes" votes and in so doing he had necessarily established also that he had received only four "no" votes, and counsel fer the apolicent accepted and conficmed this evidence through the Poturnina

Officer. C£ course the contents of the ballot capers were ir

gE nec eres erage eee eer eee ee ee e+ = ~ ae ee eee ee ee

conflict with the fact deposed to by the Returning Cfficer so far as he had spoken of there being only four "no" votes. The inference is that counsel for the respondents did not know this when he tendered the documents and th3t counsel for the applicant was and remained eaually ignorant. It was ineviteble that both counsel for the applicant and the learne? Judae would infer tat the respondents acccpted that the evidence of the Returning Officer was true and that Mr. Lynch had received fourteen ""yos"

It is not as though the issue as to how meny "yos" votes

and how many "no" votes hed been cast in respect of the candidature of Mr. Lynch had arisen suddenly or by surprises. The affidavit of the Returning Cfficer filed before the trial by the respendents was directed to that issve. Also at the very commencement of the hearing before the learned trial Judee

one secs a ceony of what apparently was a ballot paper handed out 2nd under cotegery (a) or line 6 one sees:

Do you *rrrove cf James Thomas Lyrch being accepted as a momber of the guild? Yes/No? 14/4,

If that means that there were 14 yee votes for Mr. Lynch 2nd 4 no vetes, then «2 would wish to argue that within the meaning of the rule the meeting hat voted to 74mit hir ast so member, but my jearned frien? tells me 1t 1s his undcrstanding that that 3¢ not what Mr. Towers would say. Arrangements have kein made te bring Mr. Towers in but I understand? he cennet cst here until about 12 o'clock. JT merely iniicate

to your Yonour et the outect that that is the only way in which we would be seeking to invoke the jurisdiction of the court under section 141."

What Mr. Towers did say appears from what was led from him by

It would sppear thet this was the basis upon which the hearing proceeded from that point. No further reference apnoears to have been made to the ballet capers and it would seem that their contents were not examined by anybody. The applicant acceoted the evidence that there were only fourteen "yes" votes. But if there were only four "no" votes, fourteen "

yes" votes were enough if the rule were construe? es the

Reference to the Ballot pacers would Fave corfirmed that there were only fourteen ""yes" votes. It is to ke inferred that the applicant had no suspicion at any time thet the Peturning Cfficer was in error. tIndeed the rroductior of the ballot papers by the respondents in conjunction with the asking of questions designed to confirm the figures or

Annexure "A" would have been enough to create the impression

quite convincingly thet the ballot papers and the FPeturnirg,

Officer were at one. and with both counsel accepting t

evidence of the Peturning Cfficer in these circunstsances t

zs finding of th2 lcarned Judge that there were fourteen "ye

votes for Lynch and only four "ro" votes was itself

Ir the course of this apoeal Mr. Bunter fer the respondcnts sought te call fresh evidenc2, nanely to elicit from the Returning Cfficer in substence, that be had erred in stating that the figure "4" on annexure "A" represented Lynch's "no" vote. It was desired to correct that statement by asserting that the figure "4" represented the informal votes in respect of Lynch and not the "ne" votes.

In rejectirg this application the court vornted out that although the epplication was made 4s on2 to ¢31) fresh evidence it was in effect an application to call a witness to deny evidence which he had given at the tricl. It was pointed out that no explanation had been given as to why the evidences the subject of the epplication w3s to be preferred to that which had been given in all solernity six months earlier. Jt was pointed out also that it could not be said that if the evidence were given that the opposite result would Fe reached. The evidence would be subject even on the material before the court at that stage to comments of considerable weight. an4 on the issue of diligence in relation to the "fresh" eviderce the respondents' position was particularly weak. It was pointed out also that the court was responsive to the views

expressed by Jessel ".F. in Sarders v. 3=nders (1881)

"The appellant has epplied fer leave to acduce fresh evidence... The applicatior is

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discussed in Court." In connection with the @ismissal of tha application to cell- the "fresh evidence" it is important to note thet the fresh evidence was evidence designed to support the position now desired by the respondents to be adopted which is in complete conflict with the cese which was mede at the trial. It wat an the grounds mentioned above in conjunction with tha consideration of the matters relevant to the rejection of the

"fresh evidence" explained in the judgqmenr of the majority of

But Mr. Hunter submitted that even on the evidence before this Court the finding that thore were only four "no" votes cannot stand. It is against the eviderce and the weight of evidence. Alternatively he contended that the finding was made in circumstances that it does rot st=nd with the same strength as a finding of fact actually vaje efter examination of all the relevant evidence or ones actually necessary to sustain the judgmert of the Court. It is almost certain, so the ergument goes, thet the learned trial Judace dit not examine the ballet rsprtrs, and that if bo bad, he weuld not have made the finding, or at least woule have required further

argument. The findirg 3s to the nunter of "no" votes wes

unnecessery for the decision in the case because secorting to the construction cf the rule adopted by his Honour the only relevant matters were the number of "yes" votes and the number

No explanation is tenéered as to how 1t was that the respondents' advisers took a position, from which they now seek to resile which involv2d eccerptance by them of the oral evidence of the Returning Officer. It seems to be that the idea of questicning the inference arising from the contents of Annexure A, whicn care into existence on 15 April 1°97¢, never occured to anybody in the course cf the trial. Indecod 1t was not until the hearing of this appeal had proceeded some distance, when "some qustions from the bench initiated An examination of the ballot papers, that it was discovered by the respondents' edvisers that the contents of the ckallot

papers were in conflict with the evidence of the Peturning

To my mind the submission that on the evidence As 1t stands before this Court in this 30peal, the proper fircinag cf fact, if open to this Court to make 1t, would Fe that there were in fact some sixty or more "no" votes cast in respect of Mr. Lynch, has much to surport it. Fowever, it weuld rot te an inevitable finding. Blso in view of the fact that the applicent would reasonably have eccented tha evidence of thea

Feturning Officer as led on then issue by the resroncgents

conduct in respect thereof, such a finting could not be made un the absence of an oprortunity beina given to the applicant, the appellant in this appesl, to exarine fully the ballot papers and investigate and perhaps call evidence as to whether their condition now 1s that in which they were when examine}

_ But this is a case in which the adverse finding of fact of which the respondents now complain was onc made inevitable by the respondents' own conduct. It is almost as though the respondents asked for it. It is the result of the Presentation of evidence to the effect of the finding, in 3: way which expressed quite patently the view of the respondents

that the finding could not be other than that which was made,

The respondents submit all of that occurred by mistake. They are preparej to atone for thet mistake by peying the costs of proceedings rendered useless by that mistake if qiven the opportunity to recast their ces2 or the criticel issues. But for the reasons expressed by my brothers Evatt and Keely Jd. that course is not one which should be adopted by this Court. A party who submits the facts to be as presented by him and whose submissions are seccepted and whose case bas been concluded on the basis that those fects are true, mey not, except in very special cases, seek to revise the factual basis

It may be a basis for a sukmission thet a case is special in the relevant sense, that the remedy sought is a discretionary one and that it affects the interests net only

of the parties but of other persons. In a sense the order

sought is only against named officers of the Guild and the order against them may affect the interests of the other members. But the proceedings are under s.141(1) cf the

Conciliation and Arbitration ct 1904 and as such are brought

"in respect of the organization" namely the Cuild, and Guild is a party to the proceedings. Accordingly it is the Organization itself as much as the p2rsonal respondents whose conduct of the proceedings has led to the finding of fact

So far as discretion 1s concerned, 1f indeed, on the terms of s.141 as now expressed, there is a discretion to refuse celief although the conditions on which relief nay be granted have been satisfied, any auestion of exercising a discretion not to make an order under 5.141 would rormally be referable to the facts as found in procecidings conclude? according to law. I do not think it ought to be exercised? to facilitate relitigaticn of the issue now raised in this case in a process involving the taking up by the respondent of 2 new position in conflict with that taken in th2 course of 23

In my opinion the appeal] should be allowed, the order of the court made on 13 December 1979 be set aside and in lieu thereof an order made that each of the resporderts, other than the Guild, perform and observe the rules of the Showments

Guild of Australasia by recognising James Thomas Lynch es a

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Anpellant eT, HOWAPD, A. BBFTON, 7. VARSAALL, T, ASPAPNF, &, E. Jopreon, >, 8 AgT" . LauriIT, aaa irlah Riielcd Rebel BOCK, ™. COTCEO, LIT. oTeerner A, PCSTEP, ©. FOSTFT, Pe SMALL, ©. TeeUnPS, 9, Pere, A. ROVEFN, L.T. CUorT arl UP SEore'TN'S COL. OF AUCTRALASTS

EVATT AND KEELY JJ.: This is an appeal from a judament of a Single judge of this court given on 13 Pecember 197° which

dismissed ean application by Alice Fose Lyxch (th= applicent) for two orders pursuant to s.140 an2 s.14] of the Conciliatior 2nd

Arbitration Act 1994 (the Act). Under s.]49 the applicent sought an order ceclaring that part of Pule 4 of the rules (the rules) of The Showmen's Guild cf Australasia (the Guild) contrevene4 s.140(1)(c) of the Act. The application under s.14] of the Act sought an order that the respondents, other thin the Guild, be directed to perform and observe the rules of tke Gu2l7 by treating James Thomas Lynch, the husband of the acrlicant, 28 a member of the Guild. At all material times the acpliceant was a

member of the Guild which is én orgarisation of ensploy2rs

On the hearing of the appeal Mr Fenzie of ceunsel, who appeared for the applicant, stated that if ne suceseded on the appeal from the dismissal of the application unger 5.141 of the Act and cbhtained the order sought by that epplicetion, he 7214 not desire to pursue the remainder of the appeal. Accaordinaly, tne court took the course of deferring the hearing cf araument on the appeal from the dismissal of the application undor ¢.14C cf the

harmed ani enc Not tam an me nr Nan a a re a a tn i ee RN SNE TR ARNE ee mie EMO rhame _,

4(a) Any person who is over th2 ege of 1F years may beceme a member of the Guill? provided that he is a full-time shovwran and has owned and operated his own show ecuiprent for a period of 3 years pricr to his application for membership.

(b) Any person may become a memErr cf the Guild who 1s the issue of 4s member of the Guild or the widow of a deceased member cf the Guild and who is ovor the age of 18 years at the date of applicetion for rembership.

(c) All applications for membership shall he in the form regquircd by the Committee givine the gualifications of the propose] rerber in detail, signe? by the applicert and by the proposer ani seconder who shsll be members of the Guild of not less than three yoers' standing, must be lodged or forwaried by tost to the Secrot2ry of the Guild at the Registered Cffice for the time bering of the Guild, accompanied by the full emount of the prescribed entrance fees as hereinafter provided except in the circumstances set cut in Pule 5(f) hereof. The Secretrry shall cause such nominations to be posted on the

Notice Board at the Registered Cffice of the Guild for a pericd of one month pvrior to the

Annual General Meeting and shell sukmit the names to the next Annual Gereral Meeting cf the Guild for election. A vcerson precosec for membership tust receive a majcrity of thre votes of all members fresent and votino at the Meeting before being accected os a member of the Guild. This voting shajJl be by secret ballot.

(d) On election by the Guild the Secretary shall notify the applicant of his acceotaence as a member of the Cuild."

At the Annual General Meeting of the Guij4 on 15 April 1979 86 members were present and each was handed by the Returning officer, Mr Cyril Towers, a bellot gacer Listing Enr names of all of the applicants for membership, including that cf

Mr Lynch. The ballot paper was headed "Cross out vord not

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appliceble" and asked, in respect of each candidate for

"Do you ercprove of:=(name of candidate) being accepted as 2 member of the Guild.?. Yes. No."

All 86 ballot papers were-returned to the Feturnina Cfficer who counted the votes. After the count,it was announced that all "Category A" applicants for membership (i.e. those who came

within Fule 4(a) and not within Rule 4(b) ef the rules) includinra Mr Lynch, had failed to obt3in 2 sufficient number of votes to he admitted to membership. The learned trial judge found as a fact that in "the case of Mr Lynch, fourteen 'yes' votes wer? recorded, four 'no' votes and the remainder, namely 68, did not

On the afternoon of the first day of the hearing of the appeal, Mr Hunter ¢.C., who appeared with Mr Holmes for the responcents to the eppesl, informed the court that "Ir Holmes hai Guring that afternoon examined the ballet capers which were tendered in evidcnce before the learne? trial au8ae., Fr Huntec said that that examination disclosed that, in relatien to "r Lynch, 60 of the voters had the word "yes" crossed out and that 15 hed tne word "no" crossed out. Cn that basis he submitted that there was a substantial majcrity of vctes saainst Mr Lynch's admission to membership of the Guild, notwithstanding the evidence given by Mr Towers, the returning officer, rd cccopted by the learned trial judge, that the voting 1m respect cf Mr

Lynch consisted of 14 "yese" votes ard 4 "po" vores with 53

Mr Hunter submitted that the court should accert the ballot papers as primary evidence cf the votes cast in recoect of Mr Lynch and should prefer it to the ora) evidence of the ;

returning officer. The court, after e short adjournment to look

"should not assume that we will necessarily be persuaded by these documents (i.e. the ballot papers) that th2 fects as crally statrd Sy "r Towers anc shown in his schedule in relation to the yes ani ne votes for Mr Lynch will be displaced ... There 1S no sworn eviderce ... that these documerts were in the condition that they are now at the time Ur Towers mate his count",

Mr Hunter then said "we sec a very simple explenation 7s reconciling the testimony and the conterts of these documents" He applied for leave te adeuce further evidence which he wrshec

On the second day of th> hearing of the =ppeal "r Hunter supported his application for leave to call further evidence by tendering an effidevit by "r Towers, sworr thet day (11 June 1980). Mr Towers in his affidavit:

made stetements as to the votirg 2t th> 197° Annual

General Meeting which were un conflict with the oral

evidence given by him before the learned trial rutee;

Pr ee ene mE EITC SEES ESTOPPEL NE a ENR Henin rmermaremmne

made no attempt to explain why he had aiven oral evidence at the trial which in his effidavit he implica

without expressly so stating - w3s incorrect;

said that the ballot papers which were #n exhibit in the procecdings, were in the same condition as they were in

at the completion of the counting of the votes but gave

no explanation as to how he could ewear to that fact.

Mr Hunter also sought andj obtained leave to file on thr third day of the hearing cf the appeal an affidavit by Puvert George Rosenblum, the solicitor for the responderts. That affidavit dealt with various matters and included 2 passage which appeared to be an attenpt to explain why ''r Towers had given

oral evidence which the respondents now contended w2s incorrect,

"prior te giving that evidence he haé not bern asked to refresh his recojilectior of the results of that vecting from the crimary cvidence consisting of the ballot paorrs recording the votes of the nemeEcrs of th2 responéent Guilé.

The court refused to grznt the 2polication for leave to

preferrce to that which be gave an all sclemrity . s1x months age and, jn our view, it covld not

possibly be said that if thst cvieence were adduced an opposite result would have been reached."

Accordingly the appeal from the dismissal of the #pplicetien

under s.14]1 of the Act is to be considered on the evidence kefore

His Foneur upheld 2 submission by counscl for the respondents that Mr_Lynch had not been "accepted as a member of the Guild" because he had failed to "receive a majority of the votes of all members present and voting st the" Annusl General Meeting in 1979. It was submitted on behalf of the resvonderts that Mr Lynch had failed to "receive a nejyority of the votes of all members presont and voting at the meeting" beczuse he hai only received 14 "yes" votes. It was argued that this was so notwithstanding that, as the learned trial judge found, there were only "four 'no' votes and the remainder, namely 52, did not

We are unable to accent that argument. In cur opirion the natural mearing of the rule in requiring en applicant to "receive a majority of the votes of 211 persors present 2nd voting at the meetine" (Fule 4(c)), is to require esch applicant for membership to receive 2 rajority of the votes of thoes members present at the meeting wre vote in the election Feld to

decide whether or not that particular erplicent for tembership

Further, the context of the words "receive 7 majority of the votes of all members present and voting at the meetina", suggests that the word "voting" is referring to voting 1n the election held to determine whether an individual applicent shoul be accepted as a memb2r. The word "voting" can not mean "voting at the meeting" on some' item of general business which 1s unrelated to the election of one or Tore arplicante 2s members, The "voting" referred to must be voting in the election referred to in the preceding sentence. Once it is zccented that the wore "voting" is intended to be confined in that way then in our opinion the natural meaning to be given to the wor? "voting" ir its context is voting in respect of a particular applicent in the

The context of the words under consideration shows the purpose of the provision. Rule 4(c) recuires that nominations of new members shall be "posted cn the Notice Board at the Registered Office of the Guild for a period of ore month orior to the Annual Ceneral Meeting" at which meeting "the Secretary ... shall submit the names ... for election". the principal reurpos* of that portion of the rule is to ensure that members of the Guild have sufficient notice to enable them to atterd the 4nnual General M4etinrg and to vote for or against any injivitueal applicaert for twembership. Perhaps 1t showeld be 24370 perenthetically that we express no cpinion as to whether the rule, having such a purrose and effect, contraveres s.149(1) (c)

of the Act: the court has rot heard any aroument sn that pirt of

the appeal. The majority which an applicant must receive before being accepted as a member of the Cuild is a majority of tke "members present and voting". The cule joes not require an applicant for metbership to receive the votes of a majority of the members of the Guild or the votes cf @ majority of the members present at the Annual General Meeting. That the rule - does not so intend has been mede clear by the inclusion of thea

word "present" and the inclusion of the words "and voting".

It will be noted that, 1f£ an applicant for membershio were the only candidate for election at an Arnual Gerere2l Meeting, then he would be accepted as a member if he "received a majority of the votes of all members present and voting at the meeting" in the sens2 that he received "a majyority of the votes of all members present" who crossed out "Yes" or "No" on their ballot papers. The inclusion of the words "and votina" recognises that some members present eat the meeting may not votsc on the question of whether a "rerson proposed for membership" should be "accepted as a member of the Guild". Tn our orinicn the rule manifests an intention that the fact that sone members present ~- even if it be the great majority of them - fa1] to vote (whether by deliberately abstaining from voting or otherwise shall not operate to require an aprlicant for membership to obtain a greater number of votes than would have been recessary had those members failed to attend the meeting. furthor, in our opinion, there is nothing in fule 4 which evinces én intention

that en applicant for membershir whe is one of a rumber of

TOTEM ORR IF MERIT TTR Nor RAT ETE ty ne id - nn er tr ie ee ee ee e+

applicants, may ty reason of that fact be required to obtain a greater number of votes then would have been necessary had he been the only applicant for membership or had his application for

membership been the' subject of a separate ballot from those of

If the meaning of the words is ambiauous it is permissible to examine the history of the rule in an enteavour to

ascertain its teaning - see R. v. Met2l Trades Freloycrs'

Association; Fx parte Amelcamated Enqinerrina Union, Austrelier

Sectior (1951) @2 C.L.F. 208 at p.237 cer Lather C.J. But, as Kitto J. said in the same case (at p.263), 1t is not permissible

"earlier enactments, not for the curpose of removing any uncertainty ... either patent or latent, tut for the rurrpose, first of introdvcins uncertainty into plain words, and then of resolving the difficulty thus illegitimetcly created."

As the Privy Council said in Aristigée Guellette v. Cenadisn

"Such a reference to orevious legislation tay be forcei upon 3 Court ety reson cf the ambiguity employed in the use of terts which the mind could net readily grase without 3 previous creliminary interpretation. Tut 21t 2 always a erecess of corstruction which .s accomranied with much danger."

GET STIS REPRE TA OER NT en me a a te ee rte re err ee Se een ete

Fas coe ee meme etaee lem ateees atte ay aieeadeen etl aan

In our view the material sentence in Pule 4(c) is not ambiguous.

However, in any event, we do not consider that the examination of the history of anendmonts to the rule set out in the judgment cf the learned trial judge supports the argument far the respondents. It appears that the rule as amended in 1944 reguired that a cendidate for membership receive the votes of a Majority of those voting et an Annu3l or Special Ceneral Meeting of the Cuild and that, before that amendment, it was only necessary to receive the votes of a majority of those voting at = Management Committee meeting. The rule was eqain amended in 1¢55 so that a candidate for membership was require' to receive "a two-thirds majority of the members present at the (Special or Annual General) meeting and voting before being elected as 43 Member ...". In 1977 the rule was amenjed so ae to reauire 4 simple majority of the votes of "ell members moresent and voting at the meeting" and it was alse prescribed thst the voting must

In our cpinion the histery of Rule 4 does rot suvport the respondents! subnissions even if, contrary toa our view, reference could properly be made to that history in an endeavour to ascertain the meaning of the words urder consideraticn. Ue also considzcr that the submission js not strenathencd by the presence of the word "all" in the words "all members present ard voting" nor by the fact that, as 2 matter of history, the word

Accordingly, we are unable to accept the cubmissions put

on behalf of the respondents as to the construction of Rule 4.

In his reply Mr Runter fut as an elternative submissisa that, if the court did not accept those submissions, it should remit the proceeding to the learned trial judge for further

hearing and determination (s.228(1)(c) of the Federal Court of

Australia Act 1976). He submitted that this would be 2 proper course having regard to the conflict between the ballat coeners and the evidence of Mr Towers on the suestion of whet numer of members voted "against" Mr Lynch. ft was said that the existence of any such conflict was unknown to the recponeents and their

legal advisers until the first day of the hearing of the anneal

We have already exrreesed the opinion that the submissions put by counsel for the respondents as to the construction of Rule 4(c) should not Fe eccepted. Had they teon rejectej at the trial and an order been nade unger s.141 directing the respondents (other than the Cu1]2) to verform end observe the rules by recognisina James Thomas Lynch as a member of the Cuild, it would net have been open to any of thase responcents to obtain a further hearing from the lesrno? trial judge on the ground that a belated exemination by their counsel of the ballot papers tendered in evidence on their behelf had

revealed a defence to the apelication which was corrletzly

different from that advanced at the original trial. Tn our viow

FRR errr np peer een EERE Sr ee ee yer re ee ew eee = ee en eee oe

red to try issues and confine themselves to certain of them, or to one only, or te

a particular view or bearing of the evidence with respect to that on2, they are not at liberty to open up a new and totally different case in Eanco, 7n7 2t would acpear that the result 1s the same wrether the omission to tak2 the objection or to present ths particular view to the jury or to the judae arise from inadvertence, forgetfulness, or deliberate intention."

In both of those cases great wright was ettached to the

"course of the trial" and in perticular to the way in which tke

case had been put on behalf of the party sceking to derart from

In the present case an examination cf tr2 appeal Look

From the first day of the trial there was an issue of fact before the leacned trial judge as to whether the voting figures in respect of Wr Lynch were 14 "yes" and 4 "no";

The learned trial judge found as a fact that there were only 4 "no" votes;

Counsel for the respondents on the first Gay of the trial, suggested to the learned trial judge that a short adjournment be granted to enable counsel for the applicant to talk to Mr Towers (the returning officer) - apparently as to what haeprered at the 1979 Annual General Meeting; however, he objected to counsel for the applicant conferring with "xy Towers in the sbsence of the resroncente' legal edvisers;

Counsel for the respondents spent some little time in

[Co a eeetmmtadtalnneiaimtanndoahian atieummaeneneatateranen anneal

conference with Mr Towers during the short 24journment; Counsel for the respendents objecte'" to his opponent tendering the affidavit of Mr Towers which haj teen filed on behalf of the respondents;

Counsel for the respondents objected successfully to

guestion asking whether Mr Lynch had ever heard Mr Towers say what the voting was in resvect of Mr Lynch, Mr Towers gave evidence that be recorded each "yrs" and "no" vote on a sheet and gave it to the President of the Guild (Mr Howard). The sheet was celled for and was not produced. There is no evidence thst the sheet has been destroyed or could not bc found.

Counsel for the respondents cross exanined Mr Tewers and elicited the fact that the two columns of figures on the results sheet were "yes" and "no" votes.

Mr Towers' evidence as to the voting was not contradicted by either of the resporderts who gave evidence after Yr Towers, i.e. the President (Mr doward)

to whom Mr Tow2rs handed the voting results at tne Annual General Meeting - and the Secretary ("r Bowden). Nor was 1t contradicted by the evidence of the Industrial Officer of the Guild (Mr Durkin) who also gave evidence on behalf of the respondents.

Mr Towers gave evidence that, of the persons et tae 1972 General Meeting who were given ballot papers for candidates for meirktership, "some of them scribbled

something diagonally across the form, some of which was

abusive and they were judged informal". Mone of the _ ballot papers tendered in evidence has any such scribbling, In view of the finding of the lesrned trial judae on the ratter which was in issue before him and having regard to the way in

which the trial was conducted, we do not consider that this court

should remit the proceeding for further herring 2nd

In any event, the affidavit material tendered before 'this court on the hearing of the appeal fails to demonstrate thet the result would be different if there were a further bearina before the learned trial judge with an ovportunity for counsel for all parties both to cross examine and to call further evidence. In our opinion it would not be 3 proper cxercise cf this court's power under s.28(1) (c) to remit the vcroceretinda for further hearing and determination on the sassumptior that, wren the further hearing takes vlace, the respondents may, cerhanrs, be

in a position to prove then what they failed to prove at the

In our opinion the epreel should be allowe?, the order of the court made on 13 Cecember 1979 be set asite and in lieu thereof an order made that each of the rescondents, other than

the Guild, perform and observe the rules of The Showments Cuil?

of Australasia by recognising James Thomes Lynch as 3 remk

At a glance

Court

Decision date

Source

Judgment (201 paragraphs)

an oO Lad

Cited By (1)