Re Amalgamated Metal Workers and Shipwrights Union v Graham John Carey and Selby Gordon Hastings [1981] FCA 109; (1981) 54 FLR 387 SA (7 August 1981)

FEDERAL COURT OF AUSTRALIA

Re: THE AMALGAMATED METAL WORKERS AND SHIPWRIGHTS UNION
And: GRAHAM JOHN CAREY and SELBY GORDON HASTINGS [1981] FCA 109; (1981) 54 FLR 387
SA No. 8 of 1981
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial law - registered organization of employees - election - industrial registrar previously directed by court to arrange for a new election - application for orders that appointed returning officer alter steps re new election - whether court has jurisdiction under s.165 and s.166 - Conciliation and Arbitration Act 1904 ss.159(3), 165(3)(d), 166

Conciliation and Arbitration - Registered organization - Officially conducted election ballot - Alleged irregularities in conduct of ballot - Jurisdiction of Federal Court in respect thereof - Conciliation and Arbitration Act 1904 (Cth), ss. 159 (3), 165 (3) (d), 166. After an inquiry under Pt IX of the Conciliation and Arbitration Act 1904 into an election for an office in the applicant organization an order was made for the holding of an officially conducted ballot under s. 165 thereof. After the commencement of that ballot the applicant sought orders requiring the returning officer to alter the procedure for the conduct of that ballot.

Held, that the court had no power to make the orders sought under ss. 165 or 166 of the Conciliation and Arbitration Act 1904 in respect of the new election. The Act manifested a clear intention that the court was not to have jurisdiction to hear any application alleging an irregularity in the conduct of an election under s. 165A held pursuant to an order made by the court under s. 165.

Re Election for Offices in the Australasian Meat Industry Employees' Union, Queensland Branch, unreported (Federal Court of Australia, J. B. Sweeney J., 23rd March, 1979), followed.

HEARING

Melbourne, 1981, July 30-31; August 7. 7:8:1981
APPLICATION.

The facts appear from the headnote and judgment.

E. Johnston Q.C. and P. McCusker, for the applicant.

B. Debelle and K. L. Kelly, for the respondent Carey.

K. L. Kelly, for the respondent Hastings.

R. O. Ward and S. H. Lindsay, for Naqvi.

J. Hughes (a candidate and member of the applicant organization), in person.
Cur. adv. vult.

Solicitors for the applicant: Johnston, Withers, McCusker & Co.

Solicitors for the respondents Carey and Hastings: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for Naqvi: Neild & Co.
T. J. GINNANE

ORDER

1. The application is dismissed.

2. The order made by the court on 2 July 1981, directing the respondents to refrain from taking any further steps in the election for the position of Assistant State Secretary of the South Australian Branch of the Amalgamated Metal Workers and Shipwrights Union, is discharged.

3. Liberty to apply as to costs is reserved to all parties.

Orders accordingly.

DECISION

On 6 August 1980 one Leonard George Lean was declared elected to the position of Assistant State Secretary of the Amalgamated Metal Workers and Shipwrights Union (the union). On 17 December 1980 application was made by Mr S. Naqvi under s.159 of the Conciliation and Arbitration Act 1904 (the Act) to the Industrial Registrar for an inquiry by the court into that election. The Industrial Registrar granted the application and referred the matter to the court. Notice of the reference was given to the applicant, the union and Mr Lean.

On 26 March 1981 J. B. Sweeney J. made the following orders:

"Having found that an irregularity has occurred in or in connexion with an election for the office of Assistant State Secretary of the South Australian Branch of the Amalgamated Metal Workers and Shipwrights Union, The Court orders that : -

1. The election of Leonard George Lean to the said office be declared void.

2. The Industrial Registrar be directed to make arrangements for a new election to be held for the said office.

3. Until the new election has taken place for the said office, Leonard George Lean may continue to act in such office.

4. The exhibits may be handed out by the District Registrar to the party tendering them."

On 16 April 1981 the respondent Hastings as Industrial Registrar notified the union that he had made arrangements with the Chief Australian Electoral Officer that a new election for the position of Assistant State Branch Secretary of the South Australian Branch of the union (the new election) be conducted by the respondent Graham John Carey, an officer of the Australian Electoral Office, Adelaide.

On 29 April 1981 Mr Carey notified the union of certain steps that he had taken in relation to calling for nominations for the new election. As suggested by counsel for the parties it is convenient to refer to the procedure resulting from those steps as "the first method". By letter dated 21 May 1981 Mr Carey notified the union that, following upon what he described as "legal and administrative advice", he had decided to "accept the advice and . . . change the nomination procedure outlined in my previous letter". He then set out a new procedure which it is convenient to call "the second method".

On 30 June 1981 the union filed an application which, as amended by leave at the hearing, sought the following orders:
"On the grounds appearing in the accompanying Affidavit the Applicant seeks the following Orders: -

1. Further to the Order of the late Mr. Justice Sweeney made the 26th day of May, 1981 in Action No. 17 of 1980 where inter alia he ordered the Industrial Registrar to make arrangements for a new election to be held for the position of Assistant State Secretary of the Applicant's South Australian Branch:

An Order pursuant to Section 165 (3)(d) of the Conciliation and Arbitration Act 1904 as amended incidental or supplementary to or consequential upon the previous Order, that the Respondents and each of them: -

(a) Abandon and/or cease the further conduct of the present steps for the election for the position of Assistant State Secretary of the Applicant's South Australian Branch.

(b) Commence afresh the arrangements for an election for the position of Assistant State Secretary of the Applicant's South Australian Branch.

(c) Conduct any further election for the position of Assistant State Secretary of the Applicant's South Australian Branch otherwise than in accordance with the provisions of Part VAA of the Conciliation and Arbitration Regulations in force under the Conciliation and Arbitration Act 1904 as amended.

(d) Conduct any further election for the position of Assistant State Secretary of the Applicant's South Australian Branch in accordance with the Rules of the Applicant and subject to the Conciliation and Arbitration Act 1904 as amended.

(e) Conduct any further election for the position of Assistant State Secretary of the Applicant's South Australian Branch other than in accordance with the directions in the letter of the returning officer dated 29 April 1981 to Mr Tumbers, acting State secretary (i.e. the first method).

2. In addition or in the alternative an Order pursuant to Section 166(1) of the Conciliation and Arbitration Act 1904 as amended.

(a) Granting an injunction restraining the Respondents and each of them from the further conduct of the said election for the position of Assistant State Secretary of the Applicant's South Australian Branch presently in progress.

(b) Granting a mandatory injunction directing the Respondents to commence afresh arrangements for an election for the position of Assistant State Secretary of the Applicant's South Australian Branch.

(c) Granting a mandatory injunction directing the further election for the position of Assistant State Secretary of the Applicant's South Australian Branch to be conducted otherwise than in accordance with the provisions of Part VAA of the Conciliation and Arbitration Act 1904 as amended.

(d) Granting a mandatory injunction directing the further election for the position of Assistant State Secretary of the Applicant's South Australian Branch to be conducted in accordance with the Rules of the Applicant and subject to the Conciliation and Arbitration Act 1904 as amended.

(e) Conduct any further election for the position of Assistant State Secretary of the Applicant's South Australian Branch other than in accordance with the directions in the letter of the returning officer dated 29 April 1981 to Mr Tumbers, acting State secretary (i.e. the first method).

3. Such further and other Orders as to this Court seems fit and proper."
I observe parenthetically that the words "other than" in paragraphs 1(e) and 2(e) above - which paragraphs were added by the amendment made at the hearing - are puzzling having regard to the other paragraphs in the application and the submissions put in support of it. However, having regard to the course which these proceedings took, it is not necessary to consider that aspect further.

On 2 July 1981 the court fixed 30 July 1981 as the date of hearing and gave certain directions as to, inter alia, the giving of notice of the hearing to certain persons. Further, after being informed that the respondents offered no objection to the application for interlocutory relief being granted, the court made an order directing the respondents to refrain from taking any further steps in the new election prior to the hearing or until further order.

At the hearing Mr Johnston Q.C. appeared with Mr McCusker for the applicant union, Mr Debelle with Mr K. Kelly for the respondent Carey, and Mr R. O. Ward with Mr S. H. Lindsay for Mr S. Naqvi, who was granted leave to appear in these proceedings. Mr K. Kelly also appeared for the respondent Hastings and stated that he had instructions to abide by the order of the court. Mr J. Hughes, one of the candidates who had been served with notice of the proceedings, was granted leave to appear and stated that he wanted the application dismissed and to have the new election held as soon as possible. All parties agreed that the matter should be decided as quickly as possible and as a result these reasons for judgment are somewhat less detailed than would otherwise be the case.

Before the hearing the applicant union and the respondents were notified that the court wished to hear argument as to whether it had jurisdiction in the matter. As Griffith C.J. said in Federated Engine Drivers & Firemen's Association of Australasia v. Broken Hill Pty Co. Ltd [1911] HCA 31; (1911) 12 C.L.R. 398 at p.415 " . . . the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense". That dictum was applied in The King v. Blakeley and others; Ex parte the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] HCA 40; (1950) 82 C.L.R. 54 by Latham C.J. (at p.70) and by Fullagar J. (at pp.90-91).

Mr Debelle and Mr Ward both submitted that the court had no jurisdiction to make the orders sought by the union. Mr Johnston argued that the court had jurisdiction to grant the application and make the orders sought under s.165(3)(d) and s.166. He submitted that Part IX of the Act:
" . . . provided a code which sets out to do two things: firstly, to legislate in certain ways for certain provisions, which clearly enough the legislature hopes will tend against the occurrence of irregularities in the first place, and secondly, a very full and detailed code for dealing with an enquiry into the question of irregularity and a code to deal with all the problems which may arise out of a finding of irregularity.

. . . and the court has been given jurisdiction and power to deal with those problems and obviously some of them cannot be dealt with as part of the enquiry. Some would need to be dealt with before the enquiry gets under way and some after it has been completed.

In my submission, the legislature has made it quite clear that this court has a most flexible and wide-ranging jurisdiction."
He submitted that the court had jurisdiction to deal with alleged irregularities in an election held pursuant to an order of the court under s.165. In his submission it is not correct to construe the sections in such a way that the court's powers are dependent upon an inquiry held under s.159. I accept Mr Johnston's submission that Part IX confers upon the court powers which may be exercised before the hearing (ss.162, 162A, 163) and at the hearing (s.165) as well as powers which may be exercised after the completion of a hearing leading to the court's decision that an irregularity has occurred and declaring the election to be void (s.165(3)(d) and s.166).

However, in my opinion the Act manifests a clear intention that the court shall not have jurisdiction to hear any application alleging an irregularity in the conduct of an election under s.165A held pursuant to an order made by the court under s.165. The new election which is under consideration in these proceedings is such an election as a result of the order made by J. B. Sweeney J. on 26 March 1981 under s.165. Section 159(3) of the Act provides as follows:
"(3) Except as provided by sub-section (4), this section does not apply to or in relation to an election conducted under section 165A, an election in or in connexion with which a step is taken under that section or an election conducted under section 170."
In addition a person conducting an election under s.165A is expressly empowered by s.170A "notwithstanding anything contained in the rules of the organization or branch, (to) take such action and give such directions as he considers necessary in order to ensure that no irregularities occur in or in connexion with the election or to remedy any procedural defects in those rules which appear to him to exist".

Section 141(5) and (9) furnish a further indication that the legislative intention is that proceedings can not be taken in the court in respect of an election conducted pursuant to an order of the court under s.165(3)(c). They provide that:
"(5) An order shall not be made under this section that would have the effect of treating as invalid an officially conducted ballot or a step in such a ballot.

. . .

(9) In this section, 'officially conducted ballot' means an election conducted under section 170 or an election the whole or a part of which was conducted in pursuance of an order of the Court under paragraph (c) of sub-section (3) of section 165."

Accordingly, in my opinion the Act does not confer jurisdiction upon the court to make the orders sought under s.165 in respect of the new election. In any event, in my opinion the orders sought are not orders "incidental or supplementary to, or consequential upon, any order" made by J. B. Sweeney J. on 26 March 1981.

Mr Johnston submitted that s.166 conferred "an additional jurisdiction to s.165". However, the power conferred on the court by s.166 is to make "orders for injunctions (including mandatory injunctions) as it thinks necessary for the effectual exercise of its powers and functions and the enforcement of its orders under this Part" (i.e. Part IX). I accept the argument advanced by both Mr Debelle and Mr Ward that no question now remains as to the enforcement of the orders made by J. B. Sweeney J. on 26 March 1981. Nothing remains to be done under any of those orders and accordingly injunctions cannot be granted under s.166 for "the enforcement of its orders under this Part". For the same reasons injunctions cannot be granted "for the effectual exercise" of the court's "powers and functions".

I was referred by Mr Debelle to an ex tempore judgment of J. B. Sweeney J. given on 23 March 1979 (Matter Q. No. 3 of 1977) in Re an election for offices in the Australasian Meat Industry Employees Union, Queensland Branch. As that is an unreported judgment I shall quote in full his Honour's reasons for judgment, given after setting out the facts and the history of the litigation, as recorded in the transcript:
"That order was made, the election was held and a claim is now made that irregularities occurred in the election. However before I can consider them I must satisfy myself that I have jurisdiction to make some sort of order.

The Act provides and has provided for some years that elections conducted by the Australian Electoral Officer are not able to be challenged under section 159 or part 9 of the Act. In addition they are not able to be challenged under section 141 of the Act. They are in terms excluded from the operation of both sections.

Mr Bennett who appears for the applicant has based his assertion of jurisdiction on two grounds: firstly he relied on section 166 of the Act but it is abundantly clear that that section only allows orders for injunctions and the like to be made for the effectual exercise of the court's powers and functions under part 9 of the Act. Part 9 of the Act requires action to be commenced by an inquiry under section 159 and as I have said there can be no inquiry into an election conducted by the electoral officer. Section 166 then has no possible application. The other matter relied on was that there had been a reservation of liberty to apply in the order which I made in this matter. However, reservation of liberty to apply quite clearly does not confer jurisdiction on the court which the act says it has not got. When that order for liberty to apply was made I indicated that its purpose was to allow matters to be brought quickly before the court in regard to orders which had been made as to persons who should occupy particular positions. It was not intended to allow a complete fresh application to be made and quite clearly that cannot be done.

Now I have invited reference to authority to show that the reservation of liberty to apply goes further than that but I have been referred to none. I am aware of quite a body of English authority to the contrary effect and I have no doubt that I have no jurisdiction with regard to or reserved to me under that reservation of liberty to apply.

In those circumstances the short position is that the court has no jurisdiction to make further of (sic) the orders asked. I will therefore discharge the order made by the interlocutory order made by Mr Justice Lockhart and I will dismiss these two applications."

It will be noted that J. B. Sweeney J. there rejected the submission based upon the fact that the court ordering the new election had reserved liberty to apply - an argument not open on the facts to the applicant union in the present case. His Honour's decision that the court had no jurisdiction under s.166 is equally applicable in the present case and I reject Mr Johnston's submission that I should refuse to follow that decision. I was not referred by counsel to any authority suggesting that the court has jurisdiction, nor have my researches revealed any such authority. Having regard to the conclusions which I have expressed, it is not necessary to refer to various other submissions that were advanced.

For the foregoing reasons, I have come to the conclusion that the court has no power to make any of the orders sought.

At the conclusion of the argument as to jurisdiction Mr Hughes applied for an order that the applicant pay his expenses incurred in attending the hearing. Mr Johnston opposed the application and submitted that, because of the provisions of s.197A of the Act, the court had no power to make such an order. Section 197A provides that:
"A party to -

. . .

(b) a proceeding . . . before the Court . . .

. . .

shall not be ordered to pay any costs incurred by any other party to that proceeding except where the party against whom the order is made instituted the proceeding vexatiously or without reasonable cause."

Mr Debelle made it clear that his client was not seeking costs and asked that the question of costs should not be permitted to delay the court's judgment as to its jurisdiction. Mr Ward submitted that it was premature to raise the question of costs at this stage and asked that the court not consider that question until after it had decided the question of jurisdiction.

In my view the proper course to follow in the circumstances is that suggested by Mr Ward and accordingly liberty to apply as to costs is reserved to all parties.

The application is dismissed and the order of the court made on 2 July 1981, directing the respondents to refrain from taking any further steps in the new election, is discharged.