//
[1979] FCA 67
General information, not legal advice.
Federal Court of Australia
1979-06-20
Swdeney J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
fe OS Claimant
~ oN
\ - and -
RECEIVES
-Z JUL 1979 AUSTRALIAN THEATRICAL AND
FES" AMUSEMENT DMPLOYEES ASSOCIATION
HIS HONOUR: I have prepared a judgment in this matter which I
will read onto the transcript. It is in these terms:
This is an application by Mr Damien Stapleton, the claimant, for an order pursuant to s.171l(c) with regard to the affairs of the Western Australian branch of the Australian Theatrical and Amusement Employees Association branch. It concerns an election in the branch of three officers on the branch executive held between the months of June and October 1978. When the matter came before me 'for directions an order was made for the service on the other branches of the association, and for an advertisement to be placed in The West Australian, the metropolitan daily newspaper, circulating in the state of Western Australia.
At this stage it was said that the elections had been uncontested but during the hearing it appeared there had been 10 nominations for eight positions on the executive and that there were, as a consequence, two defeated candidates. When this appeared the claimant proceeded to communicate with these two defeated candidates and each of them gave evidence before me that he was satisfied with and had no complaint about the conduct of the ballot. Turning to the irregularities, the rules of the organisation contain quite an elaborate and fair and suitable code for the conduct of elections, including those in branches. It is clear, however, that these rules were not adhered to. Whether these rules or any of them be treated as mandatory, requiring strict adherence, or directory, requiring only a sub- stantial adherence, I am quite satisfied that they were, in fact, neglected. There was neither substantial nor strict adherence to them.
In fact, what was done was that instead of the appointment of a returning officer according to the rules and the conduct of the ballot by him, the conduct of the ballot was handed over to the Western Australian Trades and Labor Council by a general meeting of the association. I accept the evidence given before me that the reason for this was, and was believed, that a former minister for labor had urged that unions either have their ballots conducted by the Trades and Labor Council or by an electoral officer of the Commonwealth. It was then thought that, in taking the steps they did, the meeting was acting in accordance with this injunc- tionand in a manner which would remove any possible suspicion from the ballot. However that may be, it is quite clear that what was done was in clear breach of the rules. This was not only in respect of the person conducting the ballot, but extended to such matters as the method of counting, the use of a special post office box for the return of the ballot papers and many like matters.
The evidence leads me to the belief that the ballot was fairly and honestly conducted but in complete breach of the rules. I find therefore that invalidity has occurred in the management and administration of the branch, and in the election for officers and branch executive held between the months of June and October 1978. Iamfurther satis- fied that no further service or notice of the application should be required. I am also satisfied that no substantial injustice would be done to the organisation or to any member or creditor of the organisation by making an appropriate order under s.1l7l(c). I have had the opportunity of hearing evidence by Mr Bluck, the secretary of the branch, and Mr Starr, the president of the branch, Mr Stapleton, the general secretary, and the two unsuccessful candidates previously referred to. I was impressed by these witnesses and their frankness; I am satisfied that the invalidity occurred and that those concerned acteq honestly and bona fide.
It must, however, be emphasised that there is a clear duty cast on all those concerned with a branch of an organisation to act in accordance with its rules. With some exceptions made by parliament, an organisation is left free to make such rules as it wishes. Like society generally, or any particular part of society, it is imperative that those rules, when made, be obeyed, otherwise chaos and uncertainty result and over a period it is inevitable that injustice will be done. In this particular case the consequences to the branch, after the discovery of the invalidity, could, indeed, be serious since the acts of those concerned as officers or members of the executive committee could well be completely invalid. These might extend to even matters of internal importance, investments, disciplinary matters or the like, or matters of industrial importance, such as agreements, representations to employers or employer organisations and so on. Their complete invalidity might well be disastrous.
In these circumstances I think it proper to use the special powers of the court pursuant to s.171(c). I make an order, as asked, that the elections of branch president, branch secretary and branch vice-president and of the executive committee of the branch, held between the months of June and October 1978, be validated.
HIS HONOUR: That is the order of the court, Mr Nolan. I would add that you may pick up a copy of the rules, which I think are exhibit A. That is on your undertaking to lodge a certified copy.
MR NOLAN: Yes, your Honour. HIS HONOUR: The court will now adjourn sine die.