consideration of issues
198 The essence of the applicant's complaints encapsulated in the two irregularities alleged in the originating application for an inquiry, is that he was prevented from standing for election in the current election process of the Union for the positions of President and Secretary because of perverse actions taken by or on behalf of the Union, or those who at material times have held influential offices or are its employees, designed to prevent him from being a financial member of the Union who is able to satisfy the Rules of the Union qualifying the right of a financial member from nominating for election to an office.
199 Part of the applicant's complaint is that following his challenges to the election process in the Union in 2008 (to which generally Mcjannett No 1 and Mcjannett No 2 and the proceedings in the WAIRC referred to therein generally relate) steps were taken by the Union or the same group of officers about whose conduct he now complains, to amend the Rules either to make it harder for him to be an office holder of the Union in the future or to preclude him from being an officer holder in the future.
200 Central to the issues raised is Rule 38(a)(i)(B). It is however useful, in order to understand the present issues but also some of the communications that have passed between the applicant and the returning officer to note the terms of Rule 38(a)(i), (ii), (iii) and (iv):
(a) (i) Any member of the Divisional Branch who:
(A) is a financial member of the relevant Divisional Branch as provided for in Rule 6, at the time nominations are called,
(B) has had continuous membership of the Divisional Branch during the period immediately preceding the calling of nominations for the length of time specified in the scale in sub-rule (a)(vi) herein for the relevant offices and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial); and
(C) was,
(i) for not less than 9 months during the period of twelve months immediately preceding the calling of nominations employed as an employee in a trade or calling or branch thereof in or in connection with which the union is registered in the geographic area applicable to the relevant Divisional Branch, or engaged as an officer (as defined by Rule 37 herein) in the relevant Division or Divisional Branch (or in any state registered counterpart organisation thereto) or as an employee thereof after having been elected or appointed thereto; or
(ii) for not more than 3 months during the period of twelve months immediately preceding the calling of nominations, unemployed on account of illness, incapacity or inability to obtain employment
may nominate for such positions according to that scale.
(ii) Provided further that no member shall be entitled to nominate for more than one full-time office.
(iii) Where a member nominates for more than one full-time position the Divisional Branch Returning Officer shall seek from the member an election as to which position the member wishes to contest.
(iv) Where no election is made by the member the Divisional Branch Returning Officer shall treat as valid only the nomination for the more senior position.
Seniority shall be determined in the following order:-
Secretary, Assistant Secretary, President, Organiser.
201 On 21 September 2012, which transpires was the last day on which a member could nominate for a position under Rule 38, the applicant nominated for three positions in the WA Divisional Branch: President, Secretary and Assistant Secretary. He subsequently withdrew his nomination for the position of Assistant Secretary.
202 The responsibilities of the returning officer, at material times, were to ensure that those members who had nominated for relevant positions met the eligibility requirements of the Rules, which included checking the following:
1. Whether the person who has nominated is a "member of the Divisional Branch".
2. If so, whether the member is "a financial member of the relevant Divisional Branch as provided for in Rule 6, at the time nominations are called".
3. If so, whether the member has "had continuous membership of the Divisional Branch during the period immediately preceding the calling of nominations for the length of time specified in the scale and sub-Rule (a)(vi) herein for the relevant offices and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)".
4. Noting that the scale of continuous financial membership of the Branch necessary for members to be qualified to nominate for the positions including Divisional Branch Secretary, Divisional Branch Assistant Secretary and Division Branch President stipulated by (vi) is three years' continuous financial membership.
203 Rule 6, referred to in Rule 38(a)(i)(A), provides for the payment of "contributions". By Rule 6(1) the annual contribution payable by each member shall be fixed by the Divisional Executive on the basis that such contribution shall be no less than 1% of the carpenter base rate in the Building and Construction General On-Site Award 2010, or any award of Fair Work Australia replacing same, multiplied by 52, provided that the Division Executive may fix some other rate.
204 By Rule 6(2), in the first paragraph, any member who has failed to pay the entrance fee (specified in Rule 5), all contributions, levies and fines imposed in accordance with the General Division rules (in which Rule 6 appears) or the Divisional Branch rules on or before the date specified in the Divisional Branch rules, "shall be deemed to be unfinancial, and shall not be eligible, provided that the Divisional Branch rules may provide that such members or some class or classes of such members may vote in a ballot, to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights".
205 Rule 6(2), in the second paragraph, further states:
A member shall be deemed to be financial immediately upon payment of all arrears outstanding. Divisional Branch rules may provide that unfinancial members shall not be entitled to funeral, accident or any other benefits or to exercise any of the rights of members under Divisional Branch rules.
206 The applicant contends that there is, in a primary way, some inconsistency between Rule 38(a)(i)(B) where it provides, in parenthesis - "(irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)" - and Rule 6(2) in the second paragraph in the first sentence which deems a member to "be financial immediately upon payment of all arrears outstanding".
207 In this case, at the material time, there is no doubt that under the Rules a member of the Union was required to pay the relevant contribution (or subscription or dues as they have been variously referred to in the affidavit materials and submissions) by 1 April 2010. As a matter of fact the contribution of the applicant that should have been paid by 1 April 2010 in order to make him a financial member of the Union at material times, was not received by the Union until either 12 November 2010, on one view of Ms Pallot's evidence, or 6 December 2010, when the applicant says he paid the subscription by depositing $650 cash into the Union's account with the Westpac Bank, Merredin Branch.
208 The Union sent a tax invoice to the applicant for payment of membership fees on 6 December 2010. This would appear to have been done in response to an email of the applicant says he sent to the Union's office on 6 December 2010.
209 I will return to entries made in the Union ledger in November and December 2010 shortly which bear on the payment question.
210 It should also be noted, however, that on 6 December 2010, the Presidents of the Union's Federal Division and WA Divisional Branch each sent a letter to the applicant, threatening to expel him from the Union for misconduct - the grounds for expulsion relating to events that had occurred in Bali, Indonesia involving the applicant as a result of which he had been made the subject of criminal proceedings in that country.
211 Subsequently, on 20 December 2010 the applicant responded to the expulsion letter rejecting the allegations made.
212 It appears that nothing further occurred in relation to the expulsion threat. The applicant is still a member of the Union.
213 Matters then moved forward in time to the latter part of this year, 2012, when Union elections including in the WA Divisional Branch were in prospect. On 17 July 2012, Mr Bulloch was appointed returning officer for the WA Divisional Branch elections.
214 On 15 August 2012, while there is some debate on the affidavit materials and other materials before the Court between Mr Bulloch and the applicant as to exactly what occurred that day, there is no dispute that the applicant and Mr Bulloch had a discussion near the reception of the AEC office in Perth as a result of which that afternoon Mr Bulloch emailed a draft election notice for the forthcoming Union election to the applicant.
215 Also not in dispute is that the next day, 16 August 2012, the applicant sent the returning officer an email request for nomination forms, which were then emailed by the returning officer to the applicant on 21 August 2012.
216 The opening day for nominations, that is to say the day that nominations were called for the purposes of Rule 38(a)(i) was 31 August 2012.
217 The closing date for nominations specified in the election notice and nomination form was 21 September 2012.
218 As noted above, the applicant lodged his nominations for the positions he nominated on the last day on 21 September 2012.
219 At the time therefore the returning officer was required to consider the eligibility for election of the persons who had nominated for positions for the purposes of the Union election and in particular considered the applicant's nominations, the following circumstances reasonably appeared to the returning officer:
1. That the applicant was a member of the WA Divisional Branch.
2. That the applicant was a financial member of the Union, as provided for in Rule 6, at the time nominations were called, that is to say, on 31 August 2012, he having earlier made the $650 cash contribution to the Westpac Merredin Branch account of the Union on 6 December 2010 to deal with his contribution position.
3. A further question for the returning officer was whether, in terms of Rule 38(a)(i)(B) the applicant was able to demonstrate "continuous membership" of the Union during the period immediately preceding the calling of nominations for the three years provided for by Rule 38(a)(vi). On the face of it he could, because, by virtue of Rule 6(2) in the second paragraph, first sentence, he was deemed to be financial immediately upon payment of all arrears that were then outstanding.
4. The critical question for the returning officer, however, concerned the further requirement of Rule 38(a)(i)(B) that the applicant "has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)".
220 As to the last requirement, the returning officer formed the view that the quoted words in the Rule meant that the applicant was not in a position to nominate for the positions set out in his nomination forms. Indeed, on the face of it, the applicant, not having been financial following the failure to pay the contribution due as at 1 April 2010, and only having become financial again following the payment of the arrears on 6 December 2010, fell foul of this last requirement notwithstanding he was otherwise deemed financial under Rule 6(2).
221 The applicant's contention is that when one properly construes the meaning of the expression "and has not been unfinancial at any time during that period", it is necessary to do so bearing in mind that Rule 6(2) deems a member to be financial once they have paid their arrears. He thus contends that there is some disconformity between Rule 38(a)(i)(B) in this regard and Rule 6(2).
222 In my view, however, it is necessary when construing this relevant qualification requirement of Rule 38(a)(i)(B) to regard the whole of the relevant qualifying expression, namely:
and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial).
When this is done it is, in my view, plain beyond serious doubt that the expression "has not been unfinancial at any time during that period" (the relevant period here being the three years preceding the calling of nominations) is not to be construed on the basis that a person who has paid their arrears and been deemed financial under Rule 6(2) is not affected by this qualification requirement, because the words in parenthesis - "(irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)" - expressly deals with the Rule 6(2) deeming provision. Rightly or wrongly, these Rules only allow a financial member who has not been unfinancial at any time during the relevant preceding period to nominate for election to office.
223 In other words, it is expressly provided for, by Rule 38, that a member, who may be financial in all other respects, is nonetheless unable to nominate for a position because at a point during the relevant preceding period they had been unfinancial.
224 This may be considered by some to be an unfair qualification on the right of a financial member to nominate, but that presently is not to the point. There may of course be a range of reasons why members of an organisation may think that such a disqualification to the right to nominate is advisable. For example, it might be thought that persons who have not been financial at material times should not have the privilege of standing for office. Such a rule might also be thought to encourage the timely payment of contributions.
225 In this case the applicant believes that this Rule, in its current form, was made as a result of an amendment following his 2008 election challenge, and were made for precisely this eventuality - namely, his possible future desire to nominate for positions in the Union. As to those considerations there is no relevant material before me. For example, this consideration does not suggest any relevant breach of the Rules of the organisation or branch of the organisation that are involved, to which para (a) of the definition of "irregularity" relates. Nor do these considerations appear to involve any act or omission by means of which the full and free recording of votes by all persons entitled to record votes and by no other persons or a correct ascertainment or declaration of the results of the voting is or is attempted to be prevented or hindered, for the purposes of para (b) of the definition. Nor can I see in these considerations, any possible contravention of s 190 of the FWRO Act, to which para (c) of the definition relates, which provision makes it an offence for an organisation or branch to use or allow to be used its property or resources to help a candidate against another candidate in an election under Pt 2 of Ch 7 of the Act for an office or other position.
226 The applicant, as noted above, complains, however, that the Union or persons on behalf of the Union or particular officials said or did things that prevented him from being able to satisfy the nomination qualification in Rule 38(a)(i)(B), because, as he alleges, when his step-son, Mr Daley, contacted the Union office to deal with payment of the dues in about March 2010 (while the applicant was incarcerated in Bali, Indonesia), the person he spoke to refused to engage with him. I will return to the detail of this allegation shortly.
227 What should be said at this point, however, is that the applicant also alleges that subsequent to 1 April 2010, after his return to Australia, he endeavoured on other occasions to make payment of the relevant contribution as at 1 April 2010 to representatives of the Union, such as Mr Hudston, who would not accept it. The point needs to be made, however, that if at such a later point, it had been received, it would simply have been the payment of arrears. While the acceptance of the payment at that point would then have made the applicant financial under the deeming provision in Rule 6(2), his position would have been no different from what it subsequently came to be when he says he paid $650 cash into the Union's account at the Westpac Branch in Merredin on 6 December 2010. In other words, the disqualification against the right to nominate expressly provided for in Rule 38(a)(i)(B) would still have applied.
228 Thus, the critical question is whether steps were taken to prevent the applicant from becoming financial in a timely way prior to 1 April 2010, as he alleges in his originating application. If there are reasonable grounds for the making of this allegation, then it might be contended by the applicant that an irregularity, as defined, can be pointed to in that such a fact would suggest a breach of the implied obligation of the Union to accept the contribution of a person entitled to be a member of the Union. At all material times in March 2010, the applicant had been accepted as a member of the Union and his earlier contributions had been received and there is no question of him not having been financial at those earlier times.
229 In my view, if it could be established that there was any deliberate strategy undertaken by or on behalf of the Union or an elected officer, such as the Secretary, at all material times, to prevent the applicant being financial as of 1 April 2010, then there would be evidence that suggests a breach of the Rules of the Union in relation to the payment of contributions. What then is the evidence of any such deliberate strategy or to prevent the applicant being financial as at 1 April 2010?
230 On the material before the Court there is a paucity of direct evidence. The Secretary of the Union at material times, Mr Reynolds, expressly denies giving any such instruction to prevent anyone on behalf of the Union, including staff, from taking the 1 April 2010 contribution from the applicant. While the applicant, in effect, says "Well he would say that wouldn't he?", the fact remains that there is nothing to suggest any such instruction was given by Mr Reynolds, unless from all the circumstances of the case laid out in the materials before the Court, there is something to support a reasonable inference that this may have occurred, an inference that goes beyond speculation, an inference that has some reasonable foundation in the facts.
231 All the persons who apparently worked in the Union office at the time say that they were not given any such instruction and there was nothing ever done by them to prevent the applicant becoming financial as at 1 April 2010.
232 Mr Hudston, albeit that the events concerning him were after 1 April 2010, admits that he did not receive a cash contribution of $650 from the applicant near Merredin, but explains that this was because he did not carry a receipt book and did not receive such sums of money. He denies that he acted as he did by reason of any instruction, express or implied as I would understand it, not to allow the applicant to become financial. It was entirely by reason of practical consideration that he declined to take the dues.
233 Again, the applicant says of the staff members and Mr Hudston that their evidence may not withstand further inquiry and cross-examination.
234 But from the Court's perspective based on this evidence there is little, or indeed nothing much else, to enable the Court reasonably to think that an irregularity in the nature of the breach of the Rules of the type identified above, has occurred. To so find on this evidence would be entirely speculative and not built on a sound factual foundation, being the test propounded by the authorities cited by the Union, such as Re Post.
235 The two particular pieces of evidence that the applicant necessarily points to, from which he says a positive finding can be made or from which inferences can be drawn are, first, what his step-son, Mr Daley, states in the statutory declaration he made on 2 October 2012, and secondly, the evidence of how the Union actually handled and accounted for his contributions of $650 paid on 6 December 2010 and the unusual ledger and journal entries made by the Union in relation to his membership.
236 Dealing firstly with Mr Daley's statutory declaration, it seems to me that it is appropriate on an application made under s 200 for the Court to have regard to any materials that are reliable. As explained in Mcjannett No 1, the process by which an inquiry is instituted under s 201 does not involve a formal "proceeding". It is not an occasion for the calling of witnesses and documents by subpoena. Nonetheless, I have permitted the respondents joined by the applicant to put on affidavit material. Rather, the Court considers materials brought forward in order to decide whether there are "reasonable grounds" for instituting an inquiry. The materials that might lead to the Court being satisfied that there are reasonable grounds may not be materials or information that necessarily satisfy the rules of evidence laid down by the Evidence Act. Into this category fall the statutory declaration apparently made by Mr Daley. He has not made an affidavit in this proceeding. His statutory declaration has been annexed to the affidavit made by the applicant, which is filed. It was earlier given to the returning officer. The applicant says that Mr Daley could make an affidavit, and indeed he could call other people to make affidavits that would verify that what he says in his statutory declaration is something he told them about at earlier times.
237 As to the latter proposition, it may be said usually to be irrelevant how many persons can be called to corroborate the fact that a person has told a number of people what he now states is true. The critical question is whether, in the circumstances, there is sufficient in what Mr Daley would apparently say to any inquiry, based on what is in his statutory declaration, especially when taken with all the other facts and materials currently before the Court, for the Court to consider there is a reasonable basis to consider whether: (1) what Mr Daley says is so; (2) that staff members who have said they did not speak to him or give any such advice along the lines alleged either have addressed some other issue or are perhaps mistaken; and (3) if there is any reasonable basis for thinking that what has been described by Mr Daley could be linked to any deliberate strategy which had been conveyed to staff members to prevent the applicant from becoming financial prior to 1 April 2010.
238 Without relevant context, I am simply unable to make much of what is said by Mr Daley to have occurred. What Mr Daley states in [3] and [4] of his statutory declaration is that he recalls the applicant telling him by telephone from Bali that the Union dues needed to be paid in about a fortnight, thus he places the telephone conversation with the applicant in mid-March 2010. He checked the applicant's mail but could not find any bill from the Union for an account due at the end of March. He told the applicant this and the applicant asked him to telephone the Union office "and offer to pay the bill via credit card over the phone". He says he subsequently telephoned the Union office that same day to pay the bill and "was told the union would not accept payment of Robert's account and the receptionist refused to give any reason why before terminating the call mid conversation". Members of staff have gone on oath in their affidavits to deny speaking to Mr Daley or someone in such terms.
239 I do not think that what is said in prospect by Mr Daley provides reasonable grounds for the instituting an inquiry. Assuming for present purposes that Mr Daley telephoned the Union office, it is quite unclear as to who, if anyone, he spoke to. The evidence from Ms Pallot is that amongst others in the office there is a receptionist. As to exactly what the conversation was and the details of it, the substance of it is not relayed in Mr Daley's statutory declaration. He simply says he "telephoned the union office that same day to pay the bill". It may be surmised perhaps that he said he wanted pay the bill of the applicant and to pay it by credit card, but this requires some surmising. Even if one surmises that, it is not clear from evidence that such a specific request - to pay the applicant's dues - was rejected. All that is stated, without it being stated to be the words used or words to that effect is that "I was told the union would not accept payment of Robert's account". One must again surmise that there was a specific discussion about the payment of the applicant's dues, not just some general discussion about payment of dues of a member over the telephone using a credit card. The subsequent statement by Mr Daley that "the receptionist refused to give any reason why before terminating the call mid-conversation" creates perhaps a suggestion that the telephone discussion was rudely interrupted. The tenor of the conversation is laid out in [4] of the statutory declaration is that, once the person in the office who took the call was aware that it was the applicant's account that was being discussed that produced a negative response.
240 On its own the difficulty with this evidence is that, even if one were to accept the tenor of the conversation implied by [4] of the statutory declaration, there is no other evidence from around that time, prior to 1 April 2010, to suggest that a member of staff, apparently the receptionist taking an unsolicited call from Mr Daley, and apparently not passing the telephone to any other person in the office, would have rejected a request to pay the dues by credit card because, in effect, the applicant's name was on some black list in the Union office.
241 As I say, I do not consider that on the basis of what is contained in Mr Daley's statutory declaration there are reasonable grounds for instituting an inquiry.
242 The next question is whether what Mr Daley has said can be given any greater significance when put in context with any other demonstrable events.
243 As to the journal entries made in August 2010, to which Ms Pallot refers, one is left with the distinct impression that the applicant was, at that time, a person who must have been known, at least by reputation to members of staff in the office.
244 There is a range of evidence or materials that suggest that at least from about August 2010 the Union was beginning to treat the applicant as if he were no longer a member or in fact took steps effectively to treat him as if he were not a member. First, there is the journal entry in the cumulative statement for 17 August 2010. Following entries made, the membership details for the applicant show his account balance was altered to be $0.00. Ms Pallot in her affidavit says she does not recall being the individual who made the relevant entries. However she notes that the type of entry made is used to adjust a member's fee, which can be done for resignations, waiving fees, balancing direct debits and deleting a member. She says that basically an individual is altering the member's account balance without an actual payment to apply against it. It is often used to bring a member's balance to nil in order to "resign them out or delete them as you cannot make some movements on a membership unless they have a $0 balance".
245 The reasonable inference to be drawn from this journal entry and the evidence proffered by Ms Pallot, and the fact that there is no evidence otherwise to suggest that the applicant made any payments at all or was otherwise dealing with anyone from the Union about the state of his account at this point, that somebody within the Union intentionally took steps to move the applicant effectively to a resigned or deleted membership category.
246 The result of being put into such an effective category is that, according to Ms Pallot's other evidence, no correspondence and invoice will be generated in respect of that "former" member by the computer system thereafter. As a result, the 1 October term payment advice would not be sent out to that person thereafter. In other words, so far as the computer system was concerned, the applicant did not exist as a member.
247 This view of the journal entry made in August 2010 and its significance is confirmed by the letter of the returning officer to the applicant dated 10 October 2012, which was one of the last exchanges in the flow of correspondence between the applicant and the returning officer during September and October 2012. In the second paragraph of the returning officer's letter, he states that on 25 September 2012 he notified the applicant that his membership fee issued on 24 February 2010 "was not paid until 17 August 2010". He further states that he assumed the credit made to the membership record on 17 August 2010 "was a payment of your membership fee". The returning officer then indicated that he conducted further investigations and "on 2 October I was advised" of certain things then set out. I take it from the fuller context that the returning officer was advised of certain things by or on behalf of the Union. The things he was advised included:
CFMEU placed the applicant's membership on a "deleted member list" and that the credit of 17 August 2010 was entered to facilitate "that move".
248 There can be little doubt that the Union moved the applicant to the "deleted member list" at that point.
249 The returning officer's letter of 10 October 2012 also indicates that he was advised by or on behalf of the Union that it had received an EFT payment of $640 from the applicant on 12 November 2010 and that the journal entry then made was to facilitate the move of the applicant from the deleted member list back to the active member list. The returning officer was also apparently advised that the $640 payment was not processed until 6 December 2010. While he owed $650, as Ms Pallot states in her affidavit, the $10 short was waived.
250 The applicant is, however, adamant that he in fact paid $650 cash to the Union by depositing that money in the Union's account via the Westpac Bank's Merredin branch on 6 December 2010, and did not, by clear inference, make any payment of $640 on or about 12 November 2010. According to his evidence, the applicant unsuccessfully tried to pay Mr Hudston $650 cash on 24 November 2010 at the Collgar Wind Farm. He says Mr Hudston refused to take the money and claimed all union officials had been instructed by Kevin Reynolds not to accept payment of his dues "and that the Executive wanted to meet me about some issues".
251 While the applicant is adamant that he paid $650 cash at the Westpac Branch, Merredin, directly into the account of the Union, and did not undertake any EFT transaction and did not undertake any such transaction on 12 November 2010, only on 6 December 2010, he does not produce any receipt or the like and appears to rely otherwise on his own recollection of events. He says the $650 cash was the same bundle of cash that Mr Hudston had refused to accept a week or two earlier.
252 To make the evidence of this transaction even more confusing, a document has been produced by Ms Pallot as LP1 to her affidavit that is said to be an extract of the Westpac Community Solutions Cheque Account of the CFMEU Construction and General Division account, showing on 12 November 2010 a "DEPOSIT Robert Mcjannett 616293" for $640. Unless this document is to be ignored or some other evidence is to be given to explain its provenance or the significance of the apparent deposit by the applicant, it speaks to a payment of $640 on 12 November 2010, not a payment of $650 on 6 December 2010.
253 In the end, on these materials I am simply unable to resolve those discrepancies. Ordinarily one would give weight to the documentary evidence, if it is reliable. There is no reason to think why someone within the Union would have caused a payment of $640 on account of the applicant and there is no other suggestion that anybody else did so on behalf of the applicant. There is always the possibility, although denied by the applicant, that he in fact made the payment of $640 at some earlier time than 6 December 2010 and closer to the time of his dealing with Mr Hudston in November 2010. He has not at this point produced any of the documentary materials that he says confirm the 6 December 2010 payment.
254 What also occurred about 6 December 2010 is that the applicant received a letter of that date from the President of the CFMEU WA branch and an identical letter from the President of the CFMEU alleging breach of the Rules of the Union, by "gross misbehaviour" and referring to the fact that the applicant had recently returned to Australia "after serving a custodial sentence consequent upon you being found guilty of drug importation". He was advised the Executive was currently giving consideration to its powers to expel him from the Union and he was invited to respond within 14 days. As noted above, the applicant did respond and nothing has become of those threats. It might be, however, that those events of around 6 December 2010 have led the applicant to confuse the time at which he made the payment to the Westpac in Merredin. Although, as I say, he is adamant that he is not confused about that.
255 The applicant in his submissions demands that the Union explain why, if they received the $640 payment on 12 November 2010, it took until 6 December 2010 for the appropriate journal entries to be placed in the ledger and his arrears to be recorded as paid.
256 The evidence put on by the Union does not fully explain the apparent delays recording the payment eventually on 6 December 2010 and sending out the tax invoice by way of receipt on that date. I would surmise, however, that the delays are to be explained, when one has regard to the chronology of events, by the decision of the two Presidents to send out the notice of expulsion letters on 6 December 2010. I would infer that in light of the payment received by the Union in mid-November 2010, and having regard to Mr Hudston's apparent advice, according to the applicant, at about that same time that the Executive wanted to speak to him about some issues, that the issue of expulsion was then in mind of the Presidents. By 6 December 2010 they had formulated their letters and sent them out then. It would appear that about the same time the Union processed the payments and caused the applicant to once again become financial, pursuant to Rule 6. Events then awaited the outcome of the expulsion considerations, which as noted came to nothing.
257 The question in relation to all of these events that I have just recounted and commented upon is whether they, taken together or as a whole, suggest, first, that there was some communication by Mr Daley on behalf of the applicant with someone in the Union office in March 2010 and, secondly, whether at that stage one should infer that persons within the office had been instructed to prevent the applicant renewing his membership and, thus, being financial as at 1 April 2010. In my view this simply is not reasonably open. The later events are more likely to be explained, in my view, by reference to the fact that after 1 April 2010 the applicant plainly was not financial on the Union's view of things and upon the realisation of that situation the applicant's membership was moved to the deleted category in August 2010. In my view, there is nothing to support the reasonable inference that the plan for what occurred in August 2010 was, in effect, hatched as of March 2010.
258 There are a number of factors that I take into account in thinking this is improbable and why I consider the subsequent facts do not reasonably support such an inference. It was open to the applicant, whether by his own conduct of the necessary transactions or through his step-son, Mr Daley, to cause the payment of the Union dues by means other than that which Mr Daley says he attempted to conduct by telephoning the Union office. A copy of the current Union dues could have been acquired. The cash payment could have been made, as it subsequently was to the Union. The electronic means of payment of the account could have been pursued. The applicant's case, in effect, is that Mr Daley, having apparently been rebuffed by the receptionist to whom he spoke in the Union's office, simply did not pursue the matter further.
259 As I mentioned above, the scenario that the applicant paints necessarily involves all members of staff in the Union office in March 2010 having been alerted to the possibility that the applicant, or someone on the applicant's behalf might telephone about the payment of his Union dues or with queries relating to this membership and that they had been instructed to rebuff any such inquiries and provide no cooperation in relation to the payment of the dues then payable. I see no evidence to enable this inference to be drawn.
260 In all of these circumstances, I do not consider there are reasonable grounds for instituting an inquiry, pursuant to s 201 on the grounds alleged by the applicant in his substituted originating application.
261 It follows that there is no basis for the making of any interim orders, pursuant to s 204 on the interlocutory application of the applicant for interim orders.