Re An Application By Dannie Richard Davidson of An Inquiry Into An Election of An Office In the Musicians' Union of Australia, Newcastle Branch [1990] FCA 129; 22 FCR 449 31 IR 102 (27 April 1990)

FEDERAL COURT OF AUSTRALIA

Re: In the matter of an application by DANNIE RICHARD DAVIDSON for an
inquiry into an election for an office in the MUSICIANS' UNION OF
AUSTRALIA, NEWCASTLE BRANCH
No. N I33 of 1989
FED No. 164
Industrial Law
[1990] FCA 129; 22 FCR 449
31 IR 102

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
Wilcox J.(1)

CATCHWORDS

Industrial Law - Election Inquiry - Election for Branch Secretary of registered organisation - Circular letter published by Branch President at the time of the opening of the ballot - Circular, critical of applicant, printed and mailed at Union expense - Whether publication of circular constituted a breach of the Rules of the organisation - Whether publication an "irregularity" - Inclusion on electoral roll of various categories of persons - Contentions as to their entitlement to vote.

Industrial Relations Act 1988 ss.218-226

HEARING

SYDNEY
27:4:1990

Counsel for the Applicant: Mr W.R. Haylen

Solicitors for the Applicant: Messrs Geoffrey Edwards and Co.

Counsel for the Musicians Union
of Australia and Mr Ward: Mr J. Fernon

Solicitors for the Musicians' Union

of Australia and Mr Ward: Messrs A.J. Macken and Co.

Counsel for the intervenors,

Messrs Finlay and Crawford: Mr P. Dunstan

Solicitors for the intervenors,

Messrs Finlay and Crawford: Messrs Whitelaw McDonald

ORDER

1. The further hearing of the matter be adjourned until Tuesday 15 May 1990 at 9.30am.
2. Upon that occasion counsel for the applicant bring in short minutes of proposed orders.

DECISION

Application has been made to the Court for an inquiry into an election for the office of Secretary of the Newcastle Branch of the Musicians' Union of Australia. The applicant, Dannie Richard Davidson, was an unsuccessful candidate for that office, being defeated by the incumbent Secretary, Milton Clarence Ward by a margin of only six votes : 142 votes to 136. The election was held in conjunction with the regular biennial elections for other Branch offices : those of President, Vice-Presidents, Treasurer, Committee Members and Trustees. The Secretary, though, is elected for a four-year term.

2. Two competing "tickets" contested the elections. Mr Davidson's team was successful in capturing all positions other than the Secretaryship. The returning officer who conducted the election was Terry Healy, an officer of the Australian Electoral Commission. No criticism has been - or, on the evidence, could be - made of the manner in which he carried out his duties.

3. Although a number of complaints were set out in the Application, counsel for Mr Davidson ultimately advanced only two grounds for his contention that the election for Secretary had miscarried. The first ground concerned the distribution to Branch members, at Branch expense, of a circular letter concerning Mr Davidson at about the time the ballot opened. The second concerned the eligibility of some persons whose names were included upon the lists of electors sent by Mr Ward to Mr Healy.
The distribution of the circular

4. Nominations for the elections opened on 20 December 1988. On the eve of that event, the Branch held its quarterly general meeting at the Newcastle Leagues Club. According to the minutes, 27 members were present. At least in part, it was an acrimonious meeting. Mr Davidson made some allegations of misconduct against Mr Ward. Mr Ward denied the allegations and called on Mr Davidson to retract. According to the minutes, Mr Davidson declined to do so and left the meeting.

5. Nominations closed on 20 January 1989. At about that time, the Branch President, Warren Ure, received a letter from a member, Gilbert Mouatt, complaining of some remarks Mr Davidson and another person allegedly made on 23 December 1988 in the course of canvassing for support in the elections. These remarks were said to have included allegations against Mr Ward. The writer of the letter said that he found the remarks "offensive and unbecoming of a Musicians' Union member".

6. Mr Ure discussed the letter with Mr Ward. Mr Mouatt was a candidate for the position of Committee member on the "ticket" led by Mr Ure and Mr Ward. His partisan position might reasonably have made them cautious, and impressed upon them the need to give Mr Davidson an opportunity to put his version of the matter. However, without reference to Mr Davidson they decided to distribute a circular letter to members about the complaint. The letter was printed and mailed to all members of the Branch, at the expense of the Branch and at about the time when the ballot opened on 21 February 1989.

7. It is not necessary to set out the contents of the letter in full. It commenced by referring to the report made by Mr Mouatt, who was identified only as "a member", of allegations made to him by another "member" about the Committee and Secretary. The letter went on:

"The member concerned is Mr Dannie Robert
Davidson and members should be aware that
these allegations are being made privately and
not to the face of the persons whose character
Mr Davidson attacked and that Mr Davidson has
refused the opportunity offered to him to make
good the allegations or to retract them."

The letter went on to refer to an investigation of the affairs of the Branch conducted during the previous year by Alan Nash, the Federal President of the Union. Extracts from Mr Nash's report were quoted. The letter proceeded:

"Despite the findings of the inquiry ordered by
Federal Conference and carried out by the
Federal President, Mr Davidson continued to
make private allegations against your
Committee and your officers, which allegations
are malicious and false and clearly intended
to injure the good name of the office holders
of the Newcastle Branch."

The letter then referred to contacts between solicitors acting for the Branch and solicitors acting for Mr Davidson before concluding:

"We hope the action we have taken will prevent
this whispering campaign, but if this conduct
is going to be repeated the person responsible
has been informed that he will wear the
consequences.
"The Committee of Management of a Branch such
as ours devote many hours of unpaid work to
the service of their fellow professionals.
They conduct the Union business in accordance
with registered Rules and under the
supervision of an Auditor who reports to all
members on the administration of the Branch
every year.
"We believe it goes far beyond what is fair
and acceptable for false allegations to be
made in private to members when the person
concerned knows full well that his allegations
have been found to be completely without
substance. We leave it to the fair mindedness
of our members to draw their own conclusions
as to the motivation for this course of action."

The letter was signed "Warren Ure for the Committee of Management".

8. Although there may have been some informal consultation with members of the Branch Committee, the Committee did not prospectively authorise the sending of the letter. However, the sending of the letter was discussed at the Committee meeting of 13 March 1989. No formal resolution was adopted, but the minutes of the meeting contain this note : "The Committee feels that D Davidson's outburst at December 1988 General Meeting and his continued accusations against the Secretary and Committee must be stopped."

9. The accuracy of the allegations made at the quarterly general meeting by Mr Davidson against Mr Ward and the other members of the Branch Committee who then held office is not a matter which arises in the present proceeding. Nor is it material to determine whether Mr Davidson did in fact say the things Mr Mouatt attributed to him, and, if so, whether his statements were justified. The only significance of these matters is that they provide the background to an action which, according to the applicant, constituted an irregularity in the conduct of the election. That action was the distribution to members of Mr Ure's letter at Branch expense. I emphasise the words "at Branch expense". The applicant does not dispute the entitlement of Mr Ure and Mr Ward, or either of them, to publish material critical of him at their own expense. Nor does he challenge their right to use Branch resources to report to members the result of Mr Nash's investigation. But his counsel says that the circular letter was an electioneering document, that it was a breach of the Rules of the union to use union funds for issuing such a document, and that this breach constitutes an 'irregularity' in the conduct of the election.

10. I do not think that there is much scope for argument about the first two propositions. Mr Ure did not give evidence in defence of the publication. Whatever the merits of the dispute between Mr Davidson and Mr Ward, the circular letter had no purpose other than to undermine Mr Davidson's challenge to Mr Ward's position as Secretary. Its timing was significant. Mr Nash's investigation had been completed some eight months earlier, so the document can hardly be regarded as a report on that investigation. In any case there were only brief quotations from that report. If Mr Ure and Mr Ward thought that Mr Davidson had breached the rules of the union, the proper course would have been to institute disciplinary action under the Rules. The merits of the dispute could then have been investigated and appropriate orders made. Rule 74 of the Rules confers on each Branch Committee the duty of investigating charges against a member, with power to impose a fine or to suspend or expel a member. (In fact, a special Branch meeting was held after the election, on 13 April 1989, to consider Mr Mouatt's complaint against Mr Davidson. Another member admitted to making some of the statements Mr Mouatt attributed to Mr Davidson and the meeting thereupon resolved to dismiss the complaint.) The sending of the circular was justified by counsel upon the basis that the members were entitled to have accurate information about the merits of the ongoing dispute between Mr Ward and Mr Davidson. But, if that was the purpose, it would have been better served by a document to which Mr Davidson had the opportunity of contributing.

11. As to the second proposition, it is now well established that normally it will not be a proper exercise of the powers conferred by the rules of an organisation upon its officers for those officers to expend the funds, or apply the resources, of the organisation in the support of, or in opposition to, a candidate for office within the organisation, when those funds or resources are, or would be, denied to the opposing candidate or candidates: see Re Australian Postal and Telecommunication Union; ex parte Wilson [1979] FCA 107; (1979) 28 ALR 330; Re Penhallurick (1983) 51 ALR 589; Scott v Jess [1984] FCA 289; (1984) 3 FCR 263; Tanner v Maynes [1985] FCA 487; (1985) 7 FCR 432; Darroch v Tanner (1987) 16 FCR 368. This principle may be subject to some qualifications - see Jess v Scott (1986) 14 IR 341 at pp 344-345 - but they are not presently material. The use of union funds for the printing and mailing of Mr Ure's circular letter was a clear breach of the rules of the organisation.

12. There have been some differences of judicial opinion upon the question whether such a breach could constitute an 'irregularity' within the definition contained in s.4(1) of the Conciliation and Arbitration Act 1904 viz:

"'Irregularity', in relation to an election or
ballot, includes a breach of the rules of an
organization or of a branch of an
organization, and any act, omission or other
means whereby the full and free recording of
votes by all persons entitled to record votes,
and by no other persons, or a correct
ascertainment or declaration of the results of
the voting is, or is attempted to be,
prevented or hindered."

13. In Wilson, Sheppard J held that the use of union funds for electioneering purposes did not fall within the definition. The reason was that his Honour construed the definition as applying the concluding words, referring to "full and free recording of votes", to both of the subjects stated after the word "includes"; that is, to a breach of the rules of the organisation as well as to an "act, omission or other means whereby" etc.

14. Fitzgerald J, in Penhallurick, drew upon certain decisions of Northrop J in construing the definition in another way. He confined the qualification regarding "free and full recording of votes" to the second subject. In his view it did not qualify the reference to a breach of the rules. It was enough to enquire whether the proved breach of the rules was a breach "in relation to an election or ballot".

15. The meaning of the phrase "in relation to an election or ballot" was considered by the High Court of Australia in The Queen v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351. That case did not involve an alleged breach of the rules of an organisation; the electioneering material had been distributed at the expense of candidates or their supporters, not at the expense of the organisation. And there was no suggestion of any attempt to prevent or hinder a correct ascertainment or declaration of the results of the voting. The complaint was that material published by, or on behalf of, a successful candidate was misleading. Gibbs CJ, with whom all the other members of the Court agreed on this aspect of the case, identified the issue at pp 365-366:

"The question therefore is whether the acts
alleged to have been done by or on behalf of
Mr Bali were acts 'whereby the full and free
recording of votes by all persons entitled to
record votes, and by no other persons ... is,
or is attempted to be, prevented or hindered'."

His Honour went on to hold that the making of a misleading statement which tended to affect the formation of a judgment by an elector about the candidate for whom he would vote was not such an act.

16. In Marsh, none of the members of the High Court discussed the question whether the distribution of material supporting or opposing a particular candidate or candidates, at union expense and in breach of the rules of the organisation, could constitute an 'irregularity'. It was not material for them to do so. Of course, if Sheppard J's construction of the statutory definition were correct, Marsh would have supplied the answer to that question also, since the concluding words of the definition would qualify the reference to breach of the rules. But, on the construction favoured by Fitzgerald J, that question was left open by Marsh.

17. The problem of construction of the statutory definition was resolved by the High Court in Re Collins; Ex parte Hockings (1989) 63 ALJR 606. The Court unanimously adopted the construction favoured by Fitzgerald J: that, in the case of a rule breach, it was not necessary to find a prevention or hindrance of the full and free recording of votes. Nonetheless, the Court reached the opposite conclusion from that of Fitzgerald J, holding that a breach of the rules in connection with electioneering was not an "irregularity", within the meaning of the Conciliation and Arbitration Act.

18. Three separate judgments were delivered in Hockings: those of Brennan and Deane JJ; of Toohey and McHugh JJ; and of Gaudron J. All of their Honours were of the opinion that the word "election", in the phrase "in relation to an election", should be read in such a manner as to exclude activities involved in electioneering. They thereby essentially confined the word to the machinery processes and formal steps involved in an election. The primary reason for that reading, developed in the judgment of Gaudron J at p 609, was that any wider interpretation would threaten the secrecy of the ballot box.

19. I confess to some difficulty with this reason. As Gaudron J herself noted, the critical provision in the Conciliation and Arbitration Act was s.165(4) whereby the Court was enjoined from declaring invalid an election, or a step taken in an election, "unless the Court is of opinion that ... the result of the election may have been affected, or may be affected, by irregularities" (my emphasis). This sub-section did not require a positive finding that the result of the election was, or will be, affected by the irregularity. It was enough for affectation to be a real possibility. Ordinarily, it would not be necessary to call evidence from electors in order to establish that possibility. The possibility, as distinct from the fact, of affectation may appear from the nature, content and timing of the publication, allied perhaps to consideration of the winning margin. In the present case, for example, who could doubt the possibility that the letter regarding Mr Davidson, which was sent by Mr Ure to all members of the Branch at the very time the ballot opened, may have affected the result? The letter would have had to influence the attitude of only seven electors - even less if the effect was to cause an elector to switch votes rather than to change a decision whether to vote at all.

20. I understand the need to safeguard the secrecy of the ballot. It would be undesirable for evidence to be led at election inquiries as to the manner in which individuals voted. But this objective could have been achieved by holding such evidence to be inadmissible on public policy grounds. As Toohey and McHugh JJ recognised, in the last paragraph of their reasons, even Hockings does not exclude the possibility of such evidence being tendered in other factual contexts. For example, an attempt may be made to counter evidence that ballot papers were supplied to unentitled persons by calling those persons to prove that they did not in fact use those ballots or that they did not vote for the successful candidate.

21. The other reason which found favour in Hockings, was expressed in this way by Toohey and McHugh JJ at p 607:

"Conduct which constitutes a breach of the
rules of an organisation but which goes no
further than supporting the candidature of
members of a particular team amounts to an
irregularity but it does not give rise to an
irregularity in or in connection with an
election because it does not involve a
departure from some rule, practice or
principle governing the conduct of the
election."

22. The content of this sentence seems to be derived from a passage in the judgment of Gibbs CJ in Marsh, quoted at p 606 by Brennan and Deane JJ. But in Marsh there was no rule breach. Gibbs CJ was concerned with the ordinary, dictionary meaning of the word "irregularity"; see pp 367-368. So he looked for a departure from a relevant rule, practice or principle. But, where there is a rule breach, nothing in the s.4(1) definition requires that there be a departure from a rule, practice or principle governing the conduct of an election. It is enough that the breach was "in relation to" the election or ballot. "In relation to" is an expression of wide and general import which should not be read down in the absence of some compelling reason: see per Mason J in Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at p 629 and The Queen v Murphy [1985] HCA 50; (1985) 158 CLR 596 at p 611. I would have thought that a breach of the rules involving use of the resources of an organisation to canvass support for, or opposition to, a particular candidate or candidates in a current election was a breach "in relation to" that election.

23. Whatever criticisms may validly be made of the reasoning in Hockings, the decision is binding upon me. It must be applied in this case, with the consequence that the first ground relied upon by the applicant must be rejected. As it happens, because of the view I take about the second ground, this does not affect the overall result of this inquiry. But, looking at the matter more widely, the position after Hockings is highly unsatisfactory. Unfortunately, as the cases show, the use of union resources by incumbent officers for electioneering purposes is not uncommon. Until recently, judging by the cases, there appear to have been two perceptions about the law which would have tended to inhibit such conduct: first, that it would constitute an "irregularity" leading to the likelihood of the election being invalidated; and, second, that those who authorised invalid expenditure could be called upon to make good the expenditure from their own pockets. The latter belief, which underlay the protracted Jess -v- Scott litigation, was held to be erroneous in Darroch -v- Tanner. That decision was based on the Conciliation and Arbitration Act but it would seem that the position is the same under the Industrial Relations Act. The argument for recovery orders, under the Conciliation and Arbitration Act, depended on the power conferred on the Court under s.141(1G) of that Act to "give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules". That formula has been retained in the Industrial Relations Act; see s.209(9).

24. The decision in Hockings applied to the definition of "irregularity" contained in the Conciliation and Arbitration Act. That definition is substantially reproduced in s.4(1) of the Industrial Relations Act, but with clearer punctuation which puts beyond doubt the construction adopted by the High Court. In the result, there is now no legal sanction against the use of union funds for electioneering purposes. In the absence of an amendment to the Industrial Relations Act to provide some effective sanction, it may confidently be predicted that this conduct will become increasingly common.
The persons permitted to vote

25. For the purposes of the election Mr Ward supplied Mr Healy with an initial roll of electors and three supplementary rolls. Those rolls contained the names of six groups of people who, according to the applicant, were not entitled to vote. As it appears that Mr Healy sent ballot papers to all those included on any of the rolls, it is necessary to determine the eligibility to vote of each of those groups of people. I will deal with them in the order adopted in counsels' submissions.

26. Exhibit J comprises the ledger cards relating to 73 persons who paid their subscription for the first quarter of 1989 after 28 January 1989 but before the close of the ballot on 14 March 1989. The argument that none of these people was entitled to vote depends upon r.73B(c) of the Rules of the organisation:

"(c) A member to be entitled to nominate a
candidate, or to be a candidate or to vote
shall be a financial member, that is, he shall
have paid all contributions, fines, levies,
dues or other liabilities to the Union for the
quarter in which such election is to be held
and every member who is shown in the records
at the Branch Office as being financial to the
end of such quarter shall be deemed to be
financial for the purposes of this Rule."

27. Counsel for the applicant points out that the reference to a member nominating a candidate, or becoming a candidate, is a reference to an event which must occur not later than the date of closure of nominations: in this case, 20 January 1989. Accordingly, counsel argues, in its application to this election, para.(c) must be read as speaking of a time not later than 20 January. As the same language is used in reference to entitlement to vote, counsel says, the same date should be implied for all three actions; accordingly, only those persons who were financial members at the date of the closure of nominations were entitled to vote.

28. I do not agree with this approach. It seems to me that para. (c) must be read in an ambulatory manner. A person who seeks to nominate another member as a candidate must be a financial member for the current quarter when he or she makes the nomination. A member who accepts nomination must then be a financial member of the union for the current quarter. If, for example, a particular nomination was lodged on 10 January 1989, the validity of that nomination would depend upon the financial status of the nominator and candidate on that day, not on 20 January. In the same way, as it seems to me, para.(c) requires merely that an elector be a financial member at the time of the vote; in practical terms, the time at which he or she is supplied with a ballot paper.

29. Counsel advanced an alternative argument in connection with the people referred to in ex.J: that electors had to be financial by 28 January 1989. This alternative argument depends on r.9(e) which states: "Any member whose subscription for the current quarter is not paid on the 28th day of the quarter will be deemed unfinancial within the Branch.". But this sub-rule does not prevent a member reversing his or her unfinancial condition by paying the outstanding subscription after that day. In any event, I think that there is substance in the contention that r.73B(c) sets out its own definition of financiality for election purposes.

30. The second group of people whose voting entitlement is challenged is a group referred to in ex.K. This group contains 50 people who have been referred to as "on suspense".

31. Under the heading "Exemption of Dues", r.12 provides: "Branch Committees may of (sic, presumably 'if') unforeseen circumstances warrant such action upon the written application of a member, relieve him of liabilities to the union". This rule has apparently been interpreted over the years, at least in the Newcastle Branch, as warranting the Branch Committee granting to particular members the status of being on "suspension of dues", but with those members' entitlements remaining intact. The ledger cards which are included in ex.K suggest that separate decisions to this effect were made in respect of each of the 50 individuals in this group. The evidence does not disclose the existence or content of any written applications. Nor does it include any Branch Committee minute applying r.12 or identifying the relevant "liabilities to the union". But, judging by the ledger cards, the decision seems to have been treated as applying both to existing and future liabilities. Such a reading of r.12 would mean that a person may indefinitely enjoy the benefits of membership without incurring any financial obligations whatever. There is no provision, either in r.12 or elsewhere in the Rules, for the termination by the Branch Committee of such a position.

32. I think that the course taken in the Newcastle Branch reflects a misreading of r.12. The rules of the organisation provide for associate members. By r.7 a member who ceases to be actively engaged as a professional musician may make application to the Branch Committee to become an associate member. An associate member may not vote on any matter or participate in a ballot or election, but may attend general meetings of the Branch and speak, with the permission of the meeting. Notwithstanding this limited right, an associate member must pay such subscription as may from time to time be fixed by the Branch.

33. In the face of r.7, it appears to me unlikely that the drafters of the Rules envisaged a situation in which members who demonstrated they suffered "unforeseen circumstances" could thereupon enjoy all the privileges of membership - including the right to stand for elected office in the organisation - whilst paying no subscription whatever. I think that words much clearer than those contained in r.12 would be necessary to justify such a reading.

34. In my opinion, r.12 merely authorises a Branch Committee to write off an existing liability by a member to the organisation. The reference to "unforeseen circumstances" is significant. It is a reference which is appropriate to an existing liability, incurred before the happening of circumstances which are now known but which were not foreseen when the liability was incurred. An obvious example is an accident or illness which makes it impossible for a member to work, and so to discharge dues previously accrued.

35. To apply r.12 prospectively is to ignore the reference to "unforeseen circumstances". As the ledger cards show, requests have often been made for suspension of dues because of an anticipated future inability to work. But, in relation to the incurring of those liabilities, the relevant circumstances are foreseen. The very reason for the request is that the member foresees circumstances making it difficult for him or her to meet the future liabilities.

36. It is not difficult to understand the desire of the Branch Committee, to relieve deserving members from their liability for existing and future subscriptions without severing their association with the organisation. Upon proper material being put before the Branch Committee, there is no reason why r.12 should not be used to relieve such a member from existing liabilities. As to the future, the Branch Committee could use r.7 to admit the person to associate membership, preserving the link with the organisation, if the Branch Committee so chose, at nominal cost to the member. But I do not think that the Branch Committee has ever been entitled to put members in the position of being entitled to vote without any liability for dues. The applicant's claim in respect of these 50 persons should be upheld. They were incorrectly included on the rolls.

37. Given that Mr Ward's winning margin was only six votes, a finding that 50 people were wrongly allowed to vote leads inevitably to the conclusion that the result of the election may have been affected by an irregularity. Consequently, I need not descend into detail regarding the other complaints. But it is clear that the problems do not stop with the people granted exemption under r.12. The third group consists of 23 people who were in arrears at 3 December 1988 and who had not paid off those arrears at 28 January. For the reasons I have already expressed, I regard this date as unimportant but, according to the ledger cards, only three of these people cleared their outstanding liabilities by the closure of the ballot. So the other 20 people - or perhaps a couple less as there is an ambiguity in some of the cards - still owed liabilities which dated back to 1988 or earlier. They appear to have been unfinancial for the relevant quarter and, therefore, ineligible to vote.

38. Next, complaint is made concerning 30 people who applied to join the organisation between 19 December 1988 and 3 March 1989. They each paid the appropriate subscription fee but it is said that their applications were not processed in accordance with the Rules. Rule 5(1) requires applicants for membership to complete, sign and lodge with the Branch Secretary two copies of an application form. Rule 5(2) provides:

"(2) All applications for membership shall be
dealt with by the committee of the branch to
which the application is made and the
application for membership may be accepted or
rejected as the committee thinks just."

39. The evidence of Mr Ward is that, throughout the whole period during which he has been Secretary, the practice has been that applications by new members are tabled at the next meeting of the Branch Committee and the names of the persons noted in the minute book. The applications are available for scrutiny by any member of the Branch Committee, but in practice they are rarely examined. No formal resolution is passed relating to the applications.

40. This practice was apparently followed in connection with each of these 30 people. Each of their names was noted, under the heading "New Members", at a Branch Committee meeting held before the closure of the ballot; although some of them only at the meeting held on the evening immediately before the day of closure of the ballot. This was after their names had already been supplied to Mr Healy and, presumably, they had received a ballot paper. But in no case was there any decision by the Branch Committee. So it is argued that the nominations were not "dealt with" by the Committee.

41. I think that this contention is correct. The words "dealt with" import the notion of a positive act, by way of acceptance or rejection. A collective body such as a committee only "deals with" a subject by expressing some collective attitude to it. It was not enough that the applications were tabled for information. A formal resolution expressing the will of the Committee regarding the applications was necessary.

42. The consequences of this holding are significant. The practice to which I have referred has gone on for some years. It may be that a substantial number of persons have been invalidly treated as members. The deficiency is a technical one and easily encompassed in s.258 of the Industrial Relations Act. The organisation may wish to make an application under that section for an order validating the membership of a list of specified people. Any such application could include the 30 people the subject of this present complaint. But, of course, any such order would not retrospectively validate their participation in the subject election. That participation was a further irregularity.

43. The final two groups of people may be discussed together. Rule 57 provides for two special categories of memberhip: Honorary membership and Long Service Honorary memberhip. The rule relevantly provides:

"(a) Honorary membership may be conferred by a
Branch upon any member of at least 25
years' membership who is in good standing
with the Union provided that such member
is not actively engaged in the musical
profession. Should such member re-enter
the profession, his honorary membership
shall automatically be cancelled.
(b) A Branch may confer Long Service Honorary
Membership upon any member who has had at
least 40 years continuous membership and
who is in good standing with the Union.
Such Long Service Honorary Membership
shall place no restriction on a member
actively engaging as a professional musician.
(c) Before a member may have either of the
distinctions conferred on him under
sub-clauses (a) or (b) of this Rule, he
must be a member in good standing as
contained in Rule 3(g).
(d) In the case of a member conferred with
either of the distinctions under this
Rule, he shall not be required to pay any
subscriptions, subject to the conditions
set out in sub-clauses (a) and (b) of this
Rule.
(e) For the purpose of voting on any matter,
or at any election, members enjoying the
distinctions under sub-clauses (a) and (b)
of this Rule shall be deemed to be
financial and entitled to vote.
(f) ... .".

44. The term "member in good standing" is defined by r.3 to mean "one who is not in arrears with his contributions, fines, levies to the Union".

45. The complaint is that four persons, admitted to the ballot as Honorary members, were not entitled to have that status conferred upon them: in three cases because they were not at the time "in good standing" and, in the fourth case, because the member did not have the requisite 25 years of membership. Furthermore, it is said, that among 11 people who were treated as Long Service Honorary members, seven lacked good standing and four the necessary 40 years of continuous membership. Once again, there is an ambiguity on some of the ledger cards but it is clear, in the majority of cases, that these objections are sound. In those cases, there were additional irregularities. Once again, the organisation may wish to rectify the position under s.258.

46. In the result, the complaint that people were improperly admitted to the ballot, in a number exceeding the winning margin, is established. The irregularities may have affected the result. Accordingly, it is appropriate for me to declare the election void, to declare Mr Ward not to have been elected, and to order the Industrial Registrar to make arrangements for a new election. Bearing in mind the time which has elapsed, it would be desirable for the election process to start again; that is, for new nominations for Secretary to be called. For the avoidance of unnecessary disruption, the Court should authorise Mr Ward to continue to act as Secretary pending the declaration of the new election. Other orders may also be required. As requested by counsel for the applicant, I will refrain from making orders at this stage, so that counsel will have an opportunity to consider their form.

47. I stand over the further hearing of the matter until Tuesday 15 May 1990 at 9.30am. I request counsel for the applicant to bring in short minutes of proposed orders on that occasion.