R v Gray; ex parte Marsh

REASONS FOR INTERLOCUTORY JUDGMENT 1 On 19 June 2000, the applicant, Mr Saska Poposki, sought to commence two inquiries pursuant to s218 of the Workplace Relations Act 1996 (Cth) ("the Act"). On the same day, the Court made orders under s219(b) of the Act reflecting its view that there were reasonable grounds for each application. 2 In V425 of 2000, Mr Poposki sought an inquiry by the Court into his claims that there had been an irregularity in relation to an election for three offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the organisation"). The particular offices were the three positions of delegate to the Victorian State Council ("the State Council") of the organisation from the Food and Confectionery Division ("the Division"). 3 The result of the election was declared on 14 April 2000. That election was the subject of another election inquiry which was dealt with by the Court in Re Beitsen [2000] FCA 307 on 23 May 2000. The reasons for judgment in Re Beitsen should be read together with these reasons for judgment. 4 As recorded in Re Beitsen, five persons nominated for the three relevant offices. Mr Matthews, Mr Frizziero and Mr Poposki were declared elected by the returning officer. The Court declared the election of Mr Poposki to be void and ordered a new election for the single office of one delegate to the State Council from the Division. 5 The Court also ordered that the returning officer arrange for a special meeting of delegates to the Victorian State Conference of the organisation from the Division at which an election would be held to fill the vacant office of delegate to the State Council from the Division. 6 In V425 of 2000, Mr Poposki sought an inquiry into the same election that was the subject of the Court's orders in Re Beitsen. Mr Poposki contended that Mr Frizziero was not eligible to nominate for an office in that election. He alleged that Mr Frizziero was not a financial member of the organisation at the time of his nomination and that an irregularity arose as a result of the acceptance of Mr Frizziero's nomination by the returning officer. Mr Poposki sought a declaration that such an irregularity had occurred. He also sought a declaration that he, Mr Matthews and Mr Anevski were elected as delegates to the State Council. No interim relief was sought in V425 of 2000. 7 As a consequence of the Court's orders in Re Beitsen, the returning officer fixed the following timetable to fill the vacant office referred to in those orders: "Nominations open : 31 May, 2000; Nominations close : 21 June, 2000 at 12 noon; Ballot : 21 June, 2000 at 1 pm." 8 In V426 of 2000, Mr Poposki sought an inquiry into the election the subject of the Court's orders in Re Beitsen, relying on the allegations made in V425 of 2000. Mr Poposki sought interim relief in respect of that election. In its s219(b) order in V426 of 2000, the Court ordered that: "Until 4.30 pm on 22 June 2000 or further order, the returning officer, Mr N. Clapton, take no step to conduct the ballot for the vacant office, the subject of the election referred to in the application." 9 It should be noted that the application as it appears in the Court Book is not the form of the application which the Court had in mind in making its s219(b) order. In the Court file in V426 of 2000 is an amended application which refers to a single position as State Council delegate and reflects that the result of that election has not been declared. That issue was raised with counsel on the substantive hearing of the inquiries and the application in V426 of 2000 was, by consent, treated as an application in its amended form. 10 A directions hearing in each inquiry was held on 22 June 2000. At that hearing, Mr Frizziero and the organisation were each granted leave to appear as a party at the inquiries. Mr White, of counsel, appeared for the organisation on 22 June 2000. He informed the Court that there were three nominations for the office the subject of the ballot which had been stayed by the interim order made in V426 of 2000. The nominees were Mr Anevski, Mr Poposki and Ms Quarrell. I received some submissions on 22 June 2000 as to whether I should discharge the interim order in V426 of 2000. Some evidence was given by Mr Frizziero concerning his financial status in the organisation. He adopted the contents of his affidavit affirmed on 22 June 2000 which dealt with that topic. He was cross-examined by Mr Nowicki, the solicitor then appearing for Mr Poposki. Mr White called Ms McNolty who is employed by the organisation as the national data processing coordinator. Ms McNolty adopted the contents of an affidavit affirmed by her on 22 June 2000. She was asked additional questions in chief by Mr White and was cross-examined by Mr Nowicki. 11 At the conclusion of the hearing on 22 June 2000, the Court adjourned the further hearing of Mr Poposki's application for the extension of interim relief in V426 of 2000 until 26 June 2000. That hearing ultimately occurred on 27 June 2000. Mr Staindl, of counsel, appeared on that date for Mr Poposki. Mr Staindl requested the Court to grant interim relief in respect of Mr Frizziero's continued participation on State Council. I declined to entertain submissions on that issue because I did not consider the issue to be properly before the Court. The only question before the Court was whether the interim relief granted in V426 of 2000 should be extended or discharged. 12 Mr Staindl pressed for the extension of that interim relief by first seeking to demonstrate that a serious issue to be tried was raised in V426 of 2000. In addition to submissions concerning the financiality of Mr Frizziero, Mr Staindl also contended that Mr Frizziero was ineligible to nominate for office in the Union on 10 April 2000, in respect of the election for State Council delegates, because Mr Frizziero was not working within the industries covered by the organisation's eligibility rule at the time of his nomination. 13 Mr Murphy, of counsel, appeared for the organisation on 27 June 2000. He contended that the balance of convenience favoured the discharge of the interim relief. Ms Serpell, of counsel, who appeared for Mr Frizziero, adopted Mr Murphy's submissions. Having regard to an imminent important State Council meeting, at which it was desirable that the Division be fully represented, the Court decided to discharge the interim relief in V426 of 2000. It also made orders for the filing and serving of further affidavits and contentions with a view to the inquiries being conducted on 10 July 2000. 14 At the scheduled hearing of the inquiries on 10 July 2000, Mr Staindl sought an adjournment of proceedings as a consequence of what he described as "a significant new matter which has arisen … as of Friday night". 15 On Friday 7 July 2000, Ms McNolty affirmed a further affidavit. In that affidavit Ms McNolty claimed that as at 30 June 1999, Mr Frizziero was in credit in the payment of his contributions in the sum of $141.20. Although not fully and clearly explored in the affidavit, it appears to suggest that together with cash payments made by him in November 1999 and February 2000, Mr Frizziero would have been financial on 10 April 2000 when he nominated for office. Mr Staindl desired to explore, inter alia, whether overpayments made in the past could offset what he contended were underpayments of contributions since 1 July 1999 by Mr Frizziero. Mr Staindl also referred to a third affidavit of Ms McNolty dealing with Mr Frizziero's financial status which was dated 10 July 2000 and very recently supplied to him. 16 Mr Staindl sought an adjournment "to investigate" the matters raised in Ms McNolty's second and third affidavits. The application for an adjournment was not opposed by Mr Murphy or Ms Serpell. I granted an adjournment until today. 17 At the conclusion of submissions today I was concerned that the inquiries might be determined on the basis of inadequate evidence. Given the inquisitorial nature of the proceedings, I determined that further evidence was necessary to deal with the question whether Mr Frizziero was a financial member of the Union on 10 April 2000. I will shortly give directions for the filing and serving of an affidavit or affidavits on behalf of the organisation dealing with the existence or otherwise of a resolution of National Council or National Conference which sets a special rate for union officials within the Division for membership contributions. 18 I will adjourn the inquiries subject to the filing and serving of any such affidavit or affidavits and the dealing with any issue concerning discovery in respect of those resolutions. 19 However, I am in a position to determine a second issue which arises in the inquiries, and I now do so. Mr Poposki, although not raising the issue in his original application, contended that Mr Frizziero was ineligible to nominate for the relevant office as he was not at the time engaged in an occupation covered by the organisation's eligibility rule. This matter requires resolution by the Court, notwithstanding the failure of Mr Poposki to raise it in his application. See R v Gray; ex parte Marsh (1985) 157 CLR 351 at 380, where Brennan J, as he then was, said as follows: "The jurisdiction of the Federal Court under Part IX of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") is twofold. First, the Act confers jurisdiction to conduct an inquiry and to determine whether an irregularity in or in connexion with an election has occurred - a jurisdiction which I shall call the jurisdiction to inquire: see s.165(1). Secondly, the Act confers jurisdiction to make orders of the kinds referred to in s.165(3). These two areas of jurisdiction are not simply aspects of a jurisdiction to hear and determine a claim for relief: they are different but complementary areas of jurisdiction, governed by different conditions. When a court is invested with jurisdiction to hear and determine a claim for relief, part of its jurisdiction is to hear and determine whether the facts in issue between the party seeking relief and the party opposing relief have been proved. But the jurisdiction to inquire is not a jurisdiction to hear and determine a lis inter partes and the Court is not confined to an inquiry into issues defined by the parties. Indeed, the Court itself decides who are to be the parties to the proceedings (see s.164), and the parties may vary from time to time according to the course which the inquiry takes." 20 Mr Frizziero gave evidence that at the time of his nomination for office as a State Council delegate, he was engaged in casual work at "Foods Galore" in Springvale. He had been so engaged since July - August 1999 after he had ceased (on 30 June 1999) to hold a full-time office in the organisation. Mr Frizziero said that, "I work in the kitchen, help making sandwiches in advance and so on. Sometimes I also deliver". 21 It is well established that a member of an organisation who changes her or his occupation to one which falls outside the eligibility rule of the particular organisation does not automatically cease to be a member of the organisation unless there is some provision in the rules which compels that result. See Bailey v Krantz (1985) 13 IR 339 at 381 to 382 where some of the authorities are conveniently referred to by Gray J. See also Ransley v APSA (1985) 12 IR 55 at 64 per Gray J. In Turner v The Australasian Coal and Shale Employees' Federation and Elcom Collieries Pty Ltd (1984) 6 FCR 177 at 194, a Full Court said as follows: "It has been held that a member of an organisation of employees registered in or in connection with an industry, who ceases to be employed in or in connection with that industry, does not thereby cease to be a member of the organisation unless some provision in the rules of the organisation produces that result. See Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340, at 346-348 per Keely J, with whom J B Sweeney and Deane JJ agreed on this point, Sims v Australian Institute of Marine and Power Engineers (Victorian Branch) [1980] IAS, Current Review 575, and Prichard v Krantz (No 1) (unreported, Federal Court of Australia, Smithers, Northrop and Keely JJ, 21 October 1983). Accordingly, in the present case it becomes necessary to determine whether, on the assumption that Turner had been admitted to membership of the Federation in January 1983, or on 15 August 1983, and even if it is also assumed that his contract of employment with Elcom has been terminated, there is anything in the Rules of the Federation which would prevent him remaining a member of the Federation after the termination of his employment." 22 See also Re Prichard (1985) 12 FCR 66 at 73-74 where Gray J said: "It was contended by Mr Prichard that Mr Clarke was ineligible to be nominated for the position of Branch Secretary because he was not eligible to be, and therefore could not be, a member of the branch. The provisions of r 16(1)(ii) and r 31(f) of the rules of the branch require that a candidate be a member of the branch. Rule 5 of the rules of the union provides for the making of applications for membership in the manner and subject to the conditions required by the rules of the branch to which it is made. The rules of the branch, in r 6, make provision for the procedure to be followed in making such applications. Mr Clarke made an application on the form provided on 25 March 1974; his application was accepted by the Branch Executive on the same day. He has not, at any time since, resigned his membership in accordance with r 10 of the union's rules or r 8 of the branch rules, or s 145 of the Act. Nor has his name been removed from the register of members under r 11 of the rules of the union or r 11 of the branch rules. There is no other provision in the rules which would cause Mr Clarke to cease to be a member of the union, if ever he validly became a member; in particular, there is nothing about the rules of the union or the branch rules which requires that a person who ceases to be employed in an occupation falling within the conditions of eligibility for membership of the union automatically ceases to be a member. This aspect of the rules was the subject of the judgment of the Full Court of the Federal Court of Australia, constituted by Smithers, Northrop and Keely JJ in Prichard v Krantz (unreported, SA No 5 of 1983, 21 October 1983), and of comment by Northrop J as a single judge in Prichard v Krantz (1983) 6 IR 271 at 273. Mr Prichard was the appellant in the first of these cases, and the applicant in the second. In the first of those cases, the Full Court held that Mr Prichard's own entitlement to membership of the union depended upon whether his occupation fell within r 2 of the rules of the union at the time when he became a member, and not upon whether he continued to carry on an occupation falling within the scope of that rule at all times thereafter. It is common for organisations not to have rules providing for the automatic cessation of membership by persons who cease to be employed in occupations falling within the conditions of eligibility of those organisations. Reference should be made to Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340 especially at 346-348 per Keely J; Re Federated Clerks Union of Australia (1982) 1 IR 217 especially at 218; Sims v Australasian Institute of Marine and Power Engineers (Victorian Branch) (1980) IAS Current Review, 575, and Cameron v Duncan (1965) 8 FLR 148. In each of those cases, it was held that members of the organisation concerned were entitled to retain their membership in circumstances where their occupations had changed, although they would not have been eligible to join the organisation if applying for the first time." 23 The eligibility rules of the organisation do not cover persons employed to make sandwiches in food shops and who make occasional deliveries. However, unless the rules operated to deprive Mr Frizziero of his membership upon retirement from full-time office on 30 June 1999, his membership continues, notwithstanding his change in occupation. 24 Rule 42 of the organisation's registered rules is entitled "Membership". It deals with the admission to membership of new members and contains transitional provisions dealing with membership in the organisation of persons belonging to unions which have amalgamated with the organisation. It also deals with provisional, junior and honorary members. It does not deal with cessation of membership. Rule 43(8) deals with the manner in which a member may resign from the organisation. It does not deem a member to have resigned if that person no longer works within the industries referred to in the organisation's eligibility rule. No rule can be found which has any bearing on Mr Frizziero's status as a member of the organisation. 25 The inescapable conclusion is that Mr Frizziero was not deprived of his membership when he ceased to be employed in an industry covered by the organisation's eligibility rule. He was a valid member of the organisation at the time he nominated for office. In order to nominate for the office of State Council delegate from the Division, one only needs to be a financial member of the organisation. There is no requirement to be employed or seeking employment in an industry covered by the eligibility rule or to remain so employed whilst holding office in the organisation. Compare Re McGee (1992) 41 IR 27 at 32 per Keely J in the context of rule 22 of the rules of the Transport Workers' Union of Australia. 26 Consequently, there is no merit in the additional contention of Mr Poposki that Mr Frizziero ceased to be a member of the organisation prior to his nomination for office in April 2000. I will now hear submissions on the further progress of each inquiry given the necessary additional evidence referred to earlier in these reasons and I will ultimately make an order to deal with the further progress of the inquiry. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.