Re Federated Liquor & Allied Industries Employees Union of Australia Ex parte Elton, B.R. [1985] FCA 369

It us not satisfied that there is at present reasonable ground for the application made by Brian Raymond Elton.

to the Court of the said application be terminated.

lement and entry of orders is dealt with in Order 36

RE: FEDERATED LIQUOR AND ALLIED INDUSTRIES BUPLOYEES' UNION OF AUSTRALIA

In this matter, I have before me an avplication for an

inquiry under s.159 of the Conciliation and Arbitration Act 1904

made by Mr Brian Raymond Elton. Mr Llton made the application to the Registrar in accordance with the requirements of s.159(2) and the Registrar referred the matter to the Court as required by s.159(4) a). The Registrar had no choice in the matter because the election was one conducted under s.170 of the Act and was

When the matter first came before the Court on 15 July, Mr Carberry appeared for Mr Elton and Mr Raymund Smith appeared Cor a Mr Brailey. Me Smith explained that his appearance was prompted by the fact that Spender J. on 4 July directed that

advice of the application be given to him, amongst others, and it

appears that that in turn was as a result of solicitors for Mr Brearley having weitten to the Registrar on 12 June 1985 suggesting that 21rregularities had occurred, additional to those

complained of by Mr Elton. Me Smith drew my attention to the

decision of Gray J. in the matter of an application by Michael Anthony Prichard for an inquiry into an election in the South Austr lian branch of the Federated Clerks' Union of Australia, a decision in which was given on 2 April 1985. Mr Smith arqued on 15 July, and has again arqued today, 'that his Honour's decision produces the result that, once an inquiry is instituted at the instance of Mr Elton, it must be pursued and that I cannot, at

The macter was adjourned until tcday when Mr Shar appeared for Mr Elton and Mr Raymund Smith appeared, as before, on behalr of Mr Brailey. Mr Shaw has drawn my attention to the fact that, recently, there was argued hefore the Full High Court a question as to the constitutional validity of Part IX of the

Act in the case of The Queen v. Gray, ex parte Bali. Mr Shaw

told me that the matter was not completely argued, counsel on behalf of the prosecutor only having been heard. in view of that intimation, and because of my own doubts about the matter, I have been seriously concerned as to whether I should follow che course of requiring notice to be given to Attocneys-General. However,

Me Shaw said today that Mr Elton, who had applied for and got a reference to the Court, no longer wished to proceed with the matter. In fact he succeeded in the election and so his lack of interest is understandable. Me Smith said TI could not terminate an inquiry for the reason just mentioned - that is, that the proper construction of the statute, in accordance with

the decision of Gray J. in the Prichard case, 16 such as to

preclude me from taking that course. Mt Smith was also good enough to inform me that his client, Mr Brailey, has prepared an application alleging irregularities, and that 1t is shortly to be lodged under s.159(2). Assuming that occurs, and I have no

reason toa doubt it, then the matter will be back before the Court

Mr Shaw has challenged the correctness of the decision of Gray J. 1n the Prichard case and has urged upon me the view that the mere presence of the word "any" in s.165(1) is a slender foundation upon which the build the notion that the Court has vested 1n it an inquisitorial power. Section 165(1) reads as

"At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning fhe conduct and results of the election as the

Gray d. has, I think, taken the view that the Court's function is

to look for irregularities. He expressed this, for example, by

saying at p.9 of his reasons in the Prichard case:-

withdrawn, therefore, the court is placed in the difficult position of conducting an inquisition

without having the resources to do so properly. Tt 1s obliged to pursue and to make findings upon possible irregularities even 1f thase irregularities could not possibly have affected the result of the election ..."

I have. during the time of the adjournment, had a look

at the matter and have formed some tentative views about it. Section 159(1), which is the basis of the wnole procedure, reads

"Where amember of an organization, or a person who, within the preceding period of 12 months, has been a member of an organization claims that there has been an irregularity un or in connection with an election for an office in the organization, or in a branch of the organization, he may lodge an application for an inquiry by the Court into the matter."

The words "the matter" appear to me to be a reference back to the

"... that there has been an irregularity in or in connection with an eleccrion for an office ..."

One would think that, if the application for an inquiry by the Court "into the matter" were successful, the inquiry would be

The further dealing with the application is governed by s.159(4)(a), as I have already mentioned. It requires that the Registrar, in such a case as this, refer the application to tne Court and "thereupon an inquiry shall be deemed to have been instituted". It seems to me at least arguable that the

expression "an inquiry" is used in s.159(4)(a}) in the same sense

as that in which it is used in s.159(1); that is, an inquiry into

"the matter", being the claim that there has been an

irregularity" in s.165(1) 15 capable of meaning "any irregularity of the kind alleged". The other possible view 1s that 1t means "any irregularity at all whether alleged or othertase". It must be conceded, in my view, that the latter is the more natural

meaning, although the former construction seems to me to be open.

Mr Shaw has urged the view that one reason for adopting the construction for sthich he contends is that the duty imposed by s.165(1) 25S one imposed on the Court, and is obviously

intended to be a judicial duty. Although the notion of judicial power extends beyond a lis inter parties, ordinarily the exercise of such power relates to matters of that sort - The Queen v.

Spicer, ex parte Australian Builders' FLabourers' Federation

I. have noted that the view taken by Gray J. has the

support of two decisions of Dunphy J. One is in Re Australasian

Meat Industries Employees Union 5 F.L.R. 260, and another in

Jutte v. Amalgamated Engineering Union 10 F.L.R. 195, I have

also noted that in other proceedings in the Prichard matter, Gray J. described such an inquiry as that on which I am asked to embark as "an unusual proceeding, possibly having no parallel". His Honour''s decision in those proceedings is unreported, but was given on 26 February 1985. His Honour further described the

""... the Court has a statutory obligation under section 165(1) of the Act to inquire into and determine the question whether any irregularity has occurred in o¢ in connection with the subject

election, and certain other questions. This obligation could be discharged without the presence of the original applicant... In the

normal case the original applicant appears, and is thereby deemed to be a party by virtue of section 164(2). He or she has, however, no right to the carriage of the inquiry. The inquiry may examine issues not raised by the original applicant, and must do so 1f issues arise which fall within the obligation imposed by section 165(1) of the Act.

An inquiry under Part IX of the Act has an element of public interest, at least so far as the members

of the organization in which the subject election has taken place are concerned. This is, no doubt, the reason for the inquisitorial nature of the

I must confess I do not find the reasoning which has led to this result absolutely compelling. It 41s true that s.165(1) uses the expression "any irregularity" which is at least capable of meaning "any irregularity at all whether alleged or not". But the use of that expression, is, in my view, counter-balanced, so to speak, by the language of s.159(1), to which I have referred above. Further, I am inclined to concuc in the submission made by Mr Shaw that the fact that the whole set of the provisions is applicable to a court - that is, a body exercising judicial power

• gives rise to the presumption that the grant intended was of power to perform the sorts of functions ocdinarily undertaken by

a court, as to the nature of which I refer to S$11k Brothers Pty.

Ltd. v. State Electricitv Commission of Victoria (1943) 67 C.L.R

I have been somewhat troubled as to how to deal with the matter, and as to whether I should follow the view expressed by Gray J., whose knowledge of and experience in this area far exceed mine. On the whole, I have decided that I should not

arrive at a conclusion on that aspect, but deal with the matter

in another way in accordance with a further submission advanced by Mr Shaw. This is, that I have power to, and should, dismiss

his application under s.159(4)(b), which reads as follows:-

"The court is not required to proceed with an inquiry unless it is satisfied that there is reasonable ground for the application."

Mr Shaw argues that in the circumstances I cannot possibly be

satisfied that there 1s any reasonable ground for his

application, because the application complained of an .

irregularity which had no practical consequence. It seems to me

that there is substance in this. The expression "the application" is plainly narrower than the expression "the inquiry", and must be a reference back to the original document lodged by Mr Elton on 3 July 1985. I hold that I am not satisfied that there is reasonable ground for the application made by Mr Elton, having the advantage now of knowing that the

irregularity, the subject of the application, had no practical

consequence, since Mr Elton was elected. Putting the matter at a lower level, nothing has been placed before me which could possibly satisfy me that there is a reasonable ground for the application, Mr Smith merely arguing that I must proceed with the inquiry and take the course mentioned by Gray J. in the decisions to which I have referred. I therefore hold that I am not required to proceed "with the inquiry pursuant to the provisions of s.159(4)(b). TI am encouraged to take this course by the frank

admission of Mr Raymund Smith that it makes very littie practical difference whether Mr Elton's application is kept on foot or not,

in view of his client's intention immediately to make a similar

application. Mr Raymund Smith was unable to point to any practical disadvantage which he would incur as a result of my

terminating the Elton application on the application of Mr Shaw.

There has also been discussion on the question of costs promoted, I fear, by an inquiry made of Mr Shaw by me. Mr Raymund Smith has asked for costs of the application and says that s.168(5) implies that I may make an order for costs without being inhibited by such considerations as would arise were the matter governed by s.197A. I am of the view that it is correct, as Mr Shaw submits, that s.168(5) does not give me any power to award costs independently of s.197A, but 1s simply designed to make it clear that the earlier sub-sections of s.168 impose no implied limitation on the Court's power. I therefore hold that I am limited, 1n considering the application for costs, by s.197A, there being nothing placed before me to suggest that the proceedings by Mr Elton were instituted vexatiously or without reasonable cause. The application for costs 1s made on the basis that the very discontinuance of the proceedings shows that the

matter falls within the exception in s.197A. T am not prepared

to draw that inference, and refuse the application for costs.

The orders then which I propose to make are as follows:-

1. I declare that I am not satisfied that there 1s at present reasonable ground for the

Mr, Justice Pincus ws) wert O Ruwn od 3/ W485 Associate