Re Inquiry into election in Australian Federated Union of Locomotive Enginemen, Victorian Division v. Ex Parte Emmett, John Maxwell [1978] FCA 49

On 17th April 1978 John Maxwell Emmett (the applicant) applied under Section 159 of the Conciliation and Arbitration Act 1904 (the Act) for an inquiry by the Court into irregularities claimed to have occurred in or in connection with an election for two offices in the Victorian Division of the Australian Federated Union of Locomotive Engincmen (the Union), an organisation of employees registered under the Act of which organisation the applicant was a member at all material times.

On 4th May 1978 the Industrial Registrar granted the application and referred the matter to the Court for determination by it under s. 165 of the Act. At the hearing Mr Nathan of counsel appeared for the applicant and Mr Bland of counsel appeared for Neil C. Bouker, the

Returning Officer. Service of the documents was effected

upon those candidates who were declered successful in the

election for the two offices, bul there was ne eppearenee

The claimed trregularities related Lo the office of

Central Branch Chairman of the Victorian Division of the

Union and the office of Central Brunch Comittee Menler

'Please make nomination form clearly legible and signed properly.

Nomination forms available from BRANCI] SECRETARY of LOCO HALL.

Nominations close on November 12th, 1977 and must be mailed to -

The evidence established the following facts, inter alia:

l. The applicant on 7th November 1977 at North Melbourne

Post Office posted three-stamped envelopes addressed

Each of the three envelopes contained a separate nomination form, one for the position of Central Branch Chairman, the second for the position of Centra] Branch Committee Member and the third for

at the North Melbourne Post Office on Monday, 14th November 1977 and at that time the box contained, inter alia, the envelope containing the nomination

by the applicant for the position of Bi-ennial Conference Delegate, but not the two envelopes containing the other two nominations by the applicant. On Wednesday, 16th November 1977 the Returning Officer in the company of the applicant and others requested an employee of the Postal Commission to examine Post Office Box No. 65 from the inside of the Post Office. The employee did as requested and found in Box No. 65 four envelopes including the two envelcpes addressed and posted by the applicant and containing his nomination forms in respect of the positions of Central Branch Chairman and Central Branch Committee Member

One of the four envelopes found in Box No. 65 on Wednesday, 16th November 1977 contained a nomination form by W. Winton, That envelope (the Winton nomination envelope) although properly addressed tu

the Returning Officer, had been wrongly placed in a

Box reserved for the normal mail of the Union. An employee of the Union handed the Winton nomination envelope to the Returning Officer who on 10th November 1977 went to the North Melbourne Post Office and handed the envelope to one Peter Frawlcy, a postal clerk, and reminded him of the instruction he had previously given that all mail addressed to the Returning Officer was to be put in Box 65,

The Returning Officer subsequently made enquiries both

from Peter Frawley and the Post Master, but was unable

to obtain any explanation as to how the Winton nomination

envelope, which the Returning Officer had personully handed to Peter Frawley on 10th November 1977 with an express instruction that it be put in Box 65, nevertheless was not in that Box on Monday, 14th November 1977, but was in the Box on Wednesday, 16th November 1977.

The Returning Officer obtained certain legal advice and, acting in accordance with that advice, accepted

the Winton nomination but refused to accept the two

nominations by the applicavt ou the ground that tiry

were not contained in Pust Office Box No. 65 when be

Evidence was given as to other nominations aud as to other matters including the applicant's allegation of an irregularity consisting of "permitting or allowing acces< to the Post Office Box by persons othcr than Lhe Keturning Officer", However, in view of the decision which I have reached I do not find it neccessary to deal with those

Although both the Post Master and the posta] clerk gave evidence before the Court no satisfactory explanation was given as to how two of the three nominations posted by the applicant at the same time were (like the Winton nomination envelope) not in Box No. 65 on Monday, 14th

November but were in that Box on Wednesday, 16th November

On the last day of the hearing Mr Nathan limited the application to one for an order in respect of the position of Central Branch Chairman, stating that he sought no order in relation to the Branch Committee. Accordingly, the main question falling for determination in this proceeding is whether the refusal by the Returning Officer Lo accept the nomination by the applicant for Central Branch Chairman was

an "irregularity" within the meaning of S. 4 of the Act.

Both counsel agreed that Part VA' of the Concrliacien and Arbitration Regulations wade under Lhe Act (Regulat:ons 146AA - 146AT inclusive) applied to the clection the subject of the inquiry.

"(1) The Returning Officer shall determinc the times und dates of the commaencencent and close of the period for lodging nominations of candidates for election for an office ...

(2) The Returning Officer shall determine the place for lodging nominations of candidates for election."

"(3) A person is not eligible for clection unless the nomination of the person as a candidate for election is lodged at the place determined by the Returning Officer under sub-regulation 146AG (2) and within the period for lodging nominatious under sub-regulation 146AC (1), or under sub- regulation (2), whichever is applicable."

The notice calling for nominations issued by the Returning Officer which I have set out earlier contained (inter alia) the following:

"Nominations close on November 12th, 1977 and must be mailed to -

Returning Officer, Box 65, NORTH MEI BOURNF.. 3051" Mr Bland contended that that portion of the notice on 1ts true construction notified "the place for lodging nominations"

(within the meaning of Regulation 146AC) determined by the

Returning Officer as being "Box 65, North Melbourne 3051".

Mr Nathan contended on the other han'? that "Lhe place for lodging nominations" was any recepticle for wal provided by the postal authcrities (which T shall cal) official marl receptacle).

No doubt the Returnin; Officer intended Bux 65 Lo be the place at which nominations should in the normal course of events arrive. However, I consider that the notice amounted to a notification that "the place for lodging" nominations determined by the Returning Officer was any official mail receptacle. Mr Bland submitted that this view involves reading the words "the place" as meaning "the place or places", and that the words should not be so read. However, in my view there is nothing in the wording of the Regulation or its surrounding context to run counter to an interpretation that the singular includes the plural.

The Returning Officer's notice directed that nominations "must be mailed" and thercfore required any intending candidate to mail his nomination by enclosing it in a properly addressed and stamped envelope and then depositing or placing that envelope containing the nomination in any official mail receptacle. I consider that the notice was a notification that the Returning Officer had determined that any official

mail receptacle should be the place at which nominations

On the view which Ll hye just cxpressed the wrradctron of the applicant for the office of Ceptral Branch Chieti nian was lodged at the place for lodging nominations detcrained by the Returning Officer and was so lodged on 7th Novenber 1977.

If the view which I have eapressed that the Returning Officer determined that any official mail receptacle should be the place at which nominations should be lodged, be not correct and the words used in the notice notificd intending candidates that "the place for lodging nominations" determined by the Returning Officer was Box 65, then in my view the Returning Officer failed to detemnine the "place for lodging nominations" as required by Regulation 146AC, I base that view on the fact that Box 65 was not a place at which nominations could he directly lodged by the intending candidate either personally or by an agent selected by him. Instead, the intending candidate wou]d be necessarily dependent upon employces of the postal authorities in order to bring about a lodging of his nomination in Box 65.

3. To place, deposit." In my view, the meaning of the words "determine the place for lodging nominations" in Regulation 146AC is that the

Returning Officer shall determine a place at which it is

possible for «my intending candicute - eithes per oeilly or by his agent - Lo physically lodge (1.¢. pleee or deposit) an envelope containing his nomination. Mr Bland conceded - rightly in my view - that if the Returning, Officer's notice, properly construed, meant that the "place for lodging" there determined by the Returning Officer was "Rox 65, North Melbourne", then that place was not a place at which any intending candidate could physically lodge Lhe nowination, All that such an intending candidate could do would be to properly address and stamp an envelope containing his nomination form and deposit it in an official mail receptacle provided by the postal authorities.

In my opinion, the purpose of Regulations J46AC and 146AD in requiring that the Returning Officer "shall determine the place for lodging nominations" and then give notice ina newspaper setting out "the place for lodging nominations" and "inviting nominations" 1s to ensure that those wishing to become candidates will know exactly what they have to do in order to lodge a nomination. I consider that Regulation 146AC, properly construed in the context of Part VAA of the Kegulations and the relevant sections of the Act, intends that the place so determined by the Returning Officer shall be a place at which intending candidates can perform the physical action of directly lodging, i.e. depositing or placing, their nominations

For the reasons whith I have giveu, L determine that an irregularity has occurred, namety the velusal te accel

the nomination by the applicant for the postition vf Cantral Branch Chairman. I am of the opinion that, havin; regard le the aurregularzly found, the restuJe of the electio: may have been affectcd by the irrepularity. Counsel for Lhe Returning Officer did not argue to the contrary on this aspect and tn my view no such argument could have been put.

It was argued by Mr Bland that if the Court rejected his primary submission and held that an irregularity within the meaning of the Act had occurred, Lhe Court hada discretion as to whether to make an order for a fresh election where the applicant had been guilty of undue delav

in the matter as Mr Bland contcnded was the position in this

case. He relied upon the decision of Dunphy J. in Re Postal

Workers' Union: ex parte Lowe (1957) 1 P.1.R. 235 and also

cited R. v. Spicer; ex parte Toster (195%) 100 C.L.R. 163 at

p. 168 - a passage where the High Court, dealing with S, 141 of the Act, said:

discretion in this matter and may refvse to make an order

by reason of undue delay by an applicant, the question is

whether in this particular case there has been a delay of such a length as to warrant refusing an order where the existence of an irregulacity has been established ond the result of the election miy have becn affected. That question must depend upon the particular fects, imcluaing the Lev,sth of and the reasons for the delay.

The applicant was vigorously cross-examined by Mr Bland as to his failure to iniliate these procecdings at an carlier point of time. The applicant clained that he was warting for some action within Lhe Union as the' result of an inquiry by a sub-committee which met on or about 28th December 1977 - before which sub-committee the applicant had appeared. 'The applicant told the Court that he had "hcard" that the sub- committee was to "report back to the committee of managenent". Apparently it did not in fact report back and ultimately in late March 1978, the applicant gave instructions for the issue of these proceedings.

In all the circumstances including the relative shortness of the delay and the fact that Mr Bland was not able to point to any prejudice by reason of the delay, I have decided that the proper course is to make an order for the holding of a fresh election. The parties agreed at the conclusion of the hearing that the form of the order should be open to