Re Industrial Relations Act 1988 v Ronald Healey of An Inquiry Into An Election In the South Australian Branch of the Australian Workers' Union [1992] FCA 10; (1992) 40 IR 110 (15 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: INDUSTRIAL RELATIONS ACT 1988
And: RONALD HEALEY FOR AN INQUIRY INTO AN ELECTION IN THE SOUTH AUSTRALIAN
BRANCH OF THE AUSTRALIAN WORKERS' UNION
No. S I3 of 1991
FED No. 6
Industrial Law
[1992] FCA 10; (1992) 40 IR 110

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
INDUSTRIAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Industrial Law - Inquiry into alleged irregularities in Union election - application to terminate inquiry - whether such an application appropriate in disputed factual matters - whether Court has jurisdiction to inquire into Court-ordered election - whether reference to State Act instead of Commonwealth Act in preparation of a Statutory Declaration was a formal defect or irregularity.

HEARING

ADELAIDE
15:1:1992

Counsel for the Applicant: Mr T.D. Bourne

Solicitors for the Applicant: Messrs Stanley and Partners

Counsel for Graham John Carey and
the Australian Electoral Commission: Mr S. Marshall

Solicitors for Graham John Carey and

the Australian Electoral Commission: Australian Government Solicitor

Counsel for the Australian Workers'

Union: Mr R. McLelland

Solicitors for the Australian

Workers' Union: Messrs Finlaysons as agents for

Messrs Turner Freeman

Counsel for the Australian Workers'

Union (South Australian Branch): Mr J.R. Rau

Solicitors for the Australian Workers'

Union (South Australian Branch): Messrs Johnston Withers

Counsel for Messrs Birch, Baker,

Bates, Dermody, Broadstock, Miller,
M. O'Connor and T.K. O'Connor
(parties granted leave to appear): Mr P.N. Moloney

Solicitors for Messrs Birch, Baker,

Bates, Dermody, Broadstock, Miller,
M. O'Connor and T.K. O'Connor: Messrs Moloney and Partners

Counsel for John Anthony Symes

(a party granted leave to appear): Mr F. DiFazio

Solicitors for John Anthony Symes: Messrs Lempriere Abbott McLeod

Norman Richard Gorringe (a party: Appeared in person

granted leave to appear)

DECISION

On 22 June 1990, upon the application of Leslie Ronald Birch, a Judge of this Court ordered that an inquiry ("the first inquiry") be conducted into the election for certain of the offices in the South Australian Branch ("the Branch") of the Australian Workers' Union ("the Organisation"); the results of that election had been declared on 21 December 1989.

2. The inquiry, which commenced before Keely J. on 26 November 1990, led to his Honour making findings on 4 January and later on 28 February 1991 that certain irregularities had occurred in the conduct of the election. Those of his Honour's findings that were published on 4 January 1991 are reported in Re Birch; Re Australian Workers' Union, SA Branch (No. 1) [1991] FCA 1; (1991) 37 IR 293.

3. In his unreported reasons for judgment, which were published on 26 April 1991, his Honour concluded that the irregularities were such that, in respect of all nominees who were declared elected other than three named persons, Messrs Harris, Sneath and Sugars, "the result of the election may have been affected... by irregularities" (c.f. sub-s.223(4) of the Industrial Relations Act 1988 (Cth). I will hereafter refer to this Act as "the Act" or "the current Act" to distinguish it from its precursor, the Conciliation and Arbitration Act, (1904) (Cth) ("the old Act"). Consequential orders that were made by his Honour included a declaration that relevant elections were void and a further declaration that relevant persons had not been elected to office. In addition, the Industrial Registrar was directed to make arrangements for a new election to be held as soon as practicable after 31 July 1991. Pending the new election, the persons whose elections had been declared void were, by virtue of a further order of the Court, to "occupy those offices pending the outcome of the new election".

4. Pursuant to the orders of Keely J., Graham John Carey, the returning officer conducting the new election, called for nominations by 21 August 1991 for the offices in the branch of the Organisation that were vacant. The present applicant, Ronald Healey, duly nominated for the positions of Branch Executive Committeeman and Delegate to the 1992 Annual Convention. However, on 4 October 1991, he was advised by Mr Carey that his nominations had been rejected; the ground of rejection in each case was said to be that he "had not been a continuously financial member of the Australian Workers' Union for a period of not less than twelve months immediately preceding 21st day of August 1991".

5. In response to that rejection, Mr Healey filed an application in this Court on 10 October 1991 seeking an inquiry with respect to the new election; he claimed that he was a member of the Organisation and that irregularities existed, not only as a consequence of his own rejection, but also as a consequence of the acceptance by the returning officer of numerous nominations from eleven named persons for the positions of Branch President, Branch Vice-President, Branch Secretary, Branch Executive Councillor, Branch Organisers and Delegates to the 1992 Annual Convention. In respect of each of those eleven persons, Mr Healey claimed that he and she was not eligible for nomination for election to the relevant office or offices because he and she "had not been a continuously financial member (of the Organisation) for a period of not less than 12 months immediately preceding the opening date for nominations...".

6. At a directions hearing that was held on 11 October 1991, the Court ordered that Graham John Carey and the Australian Electoral Commission be named as respondents to Mr Healey's application; the Court also ordered that copies of the application and all other relevant papers be served on them and on the eleven persons to whom reference has already been made. Meanwhile, Mr Carey and the Commission were restrained from taking any further steps in the new election for the time being. The matter was next before the Court on 23 October 1991. On that date, orders were made pursuant to sub-s.222(1) of the Act granting the Organisation and the State Branch leave to appear at the inquiry; in addition, Mr Moloney of counsel, announced that he appeared on behalf of Leslie Ronald Birch (who had nominated for the position of Branch Secretary in the new election but whose nomination had not been challenged by Mr Healey) and on behalf of seven of the eleven persons whose nominations had been challenged; he sought and obtained orders granting Mr Birch and each of those seven persons leave to appear. An eighth person, Norman Richard Gorringe attended Court personally and was given leave to appear and on a subsequent hearing on 13 November 1991 Mr DiFazio of counsel sought and obtained leave for a ninth person, John Anthony Symes, to appear. The remaining two persons, M/s McMahon and Mr Yerrell, (each of whom were served with copies of the application and the other relevant papers) did not appear and have not, so far, taken any part in the matter.

7. On 20 November 1991, a separate application in action SI No.4 of 1991 was filed in this Court; the applicant, John Rajan Thomas, also sought an inquiry into the new election. Mr Thomas claimed that he was then and had been continuously a member of the Organisation since approximately 1973; he also claimed that he was then currently employed as a Branch Organiser in South Australia with the Organisation, a position that he had held since 26 May 1986, and that the returning officer had accepted his nomination for the office of Branch Organiser in the new election. The alleged irregularities upon which Mr Thomas based his application for an inquiry related to some, but not all, of the persons and some, but not all, of the offices that were covered in Mr Healey's application; for example, Mr Thomas challenged Mr Birch's right to nominate for Branch Secretary and other positions - Mr Healey did not. In all, Mr Thomas has challenged the nominations of seven persons, only two of whom, Messrs Baker and Miller, were challenged by Mr Healey. Even then, the grounds of challenge differ in the two applications as do the offices in respect of which the challenges have been made. Nevertheless, as the two applications both related to the new election, it seemed appropriate to grant Mr Thomas leave to appear in Mr Healey's application. An order in those terms was therefore made on 25 November 1991.

8. Earlier, on 20 November 1991, a notice of motion had been filed on behalf of eight of the parties who had been given leave to appear ("the Birch group"); in it they sought an order pursuant to sub-s.223(5) of the Act terminating the inquiry or, alternatively, an order terminating it insofar as it related to the Birch group and Mr Symes. At about the same time Mr Symes filed a notice of motion seeking orders in similar terms and Mr Gorringe filed a document in which he said that he supported the application for orders terminating the inquiry.

9. As the grounds upon which the orders for termination were sought overlapped in part, I have re-arranged the sequence in which they were argued and consolidated some of them. They may be summarised broadly as follows:- first, it was claimed that the allegation advanced by Mr Healey, to the effect that the eleven persons were not financial members of the Organisation - and had not been so for the relevant period of not less than twelve months - was contrary to the evidence advanced by certain of those persons. Additionally, relying on s.256 of the Act, it was claimed, in respect of two of these persons, Messrs Baker and Dermody, that they were each a member of the Organisation "by virtue of the fact in each case that they were elected to offices in the Organization more than 4 years before the opening date for nominations in the election". There is no substance in this last-mentioned claim. Insofar as s.256 provides that in certain circumstances an election "shall be taken to have been done in compliance with the rules of the organization..." after the end of four years from the election, the section is merely validating what might otherwise have been an invalid election; the section says nothing of membership and it can not be construed as validating an invalid grant of membership or of deeming an ineligible person to be a member of the Organisation.

10. Secondly, it was claimed that Mr Healey did not have locus standi to make the application in that he was not a member of the Organisation. Another ground separately raised the question of Mr Healey's membership of the Organisation but that can be absorbed with and considered as part of the second ground; it did however represent an added dimension to the question of his membership by referring to the agreement between the Organisation and the State registered union (the Australian Workers' Union South Australian Branch) that had been executed in pursuance of the provisions contained in s.202 of the Act. That agreement, which for convenience can be called "the s.202 agreement", was registered in the Industrial Registry on 17 May 1991.

11. The third ground raised an assortment of issues, including issue estoppel, res judicata and abuse of process; in effect, the claim was that Keely J. had made a finding during the course of the first inquiry that certain persons, one of whom was Mr Healey, were "not eligible to become and or (sic) remain a member of the organisation...". Hence it was claimed that such a finding precluded Mr Healey from making and prosecuting his current application. The fourth ground raised the question of the jurisdiction of this Court to consider the application; it claimed that the Court has no jurisdiction to conduct an inquiry into an election where, as is the case here, the election has been ordered by the Court pursuant to sub-paragraph 223(3)(c)(ii) of the Act. Finally, it was claimed, as the fifth ground for terminating the inquiry, that Mr Healey's application was a nullity in that it had not been accompanied by a statutory declaration in the form required by Regulation 62 of the Regulations made pursuant to the Act.

12. I turn then to consider the various grounds that were advanced in support of the applications for orders of termination.
1. The membership in the Organisation of the challenged persons.

13. Nine of the eleven individuals whose nominations have been challenged by Mr Healey have filed affidavits in which each has deposed to his work history and union membership. It will be sufficient, for the purposes of these reasons, to refer to one at random - the affidavit of Robert Edward Bates sworn on 7 November 1991. Mr Bates claimed that he was then and had been, continuously, a member of the Organisation since about March 1982. He also claimed in his affidavit that he was then and had been, continuously, an employee of the City of Munno Para since October 1981. Initially his work was spraying noxious weeds, but after about twelve months his duties became more general and included mowing lawns, driving trucks, sweeping roads and clearing storm damage.

14. On behalf of Mr Bates it might be argued that when he allegedly joined the union he was an employee "engaged in the destruction of... noxious weeds and vegetation" and thus was covered by the terms of Rule 6 of the Organisation's Rules; that is the Rule that sets out the circumstances of eligibility for full membership of the Organisation. On the other hand, it was advanced in Mr Healey's interests that a more appropriate description of Mr Bates and his work would be that of "council worker"; should that be the case, then arguably, such an employee would not be eligible for membership of the Organisation for, so it was said, eligibility did not extend to a "council worker". Each of the eleven persons is, according to Mr Healey, a "council worker".

15. To arrive at the correct answer to these competing interpretations it would be necessary to investigate - in more detail than the limited investigations to date - the particular duties that each of these eleven persons have performed so that their work classifications could be assessed and then compared with the eligibility provisions of Rule 6. This type of dispute warrants more than general assertions in affidavits; the matter warrants oral evidence. In particular, the opposing factions should be available for cross-examination. The necessary factual inquiries about each of these eleven persons has not yet been made. No proper appreciation has been made of their work classifications at the time when they respectively claimed that they joined the union; such tasks can only properly be undertaken in a substantive, as distinct from preliminary, hearing such as this.

16. In coming to the conclusion that it would not be appropriate to attempt a resolution of these disputed allegations at this stage, I have not overlooked the power in sub-s.223(5) of the Act to terminate an inquiry. That sub-section had no counter-part in the old Act. It was obviously introduced to overcome difficulties of the type identified by Gray J. in Re Application by Prichard: Re Federated Clerks' Union of Australia (SA Branch) (1985) 12 FCR 66 where his Honour said:

"The withdrawal of a moving party from a Court proceeding
normally results in the swift termination of that
proceeding. When the Court is conducting an inquiry under
Pt IX of the Act, however, such swift termination cannot
follow. The court is obliged by s 165(1) of the Act to
'inquire into and determine the question whether any
irregularity has occurred in or in connection with the
election, and such further questions concerning the conduct
and results of the election as the court thinks necessary'." (p 71)

17. The power to terminate can now be utilised to overcome this type of difficulty; it can also be used to deal peremptorily with cases that are clearly undeserving. But an application to terminate is to be likened to an application for summary relief. Where there are, or there are likely to be, contentious issues of fact it is not appropriate to attempt to deal with such issues on affidavit evidence. In the long run, it will invariably be quicker to allow the matter to proceed to a proper conclusion. An application to terminate, like an application for summary relief, can become a most unsatisfactory procedure when an attempt is made to use it for the resolution of complex factual issues; indeed it may not even be suitable for complex questions of law. King C.J. (with whom Millhouse and O'Loughlin JJ. agreed) warned, in the strongest terms, about the misuse of a Summons for Immediate Relief in Wicklow Enterprises Pty. Ltd. v Doysal Pty. Ltd. (1985) 124 LSJS 225. His remarks are apposite to these proceedings:-

"I pause to observe that this case illustrates how
unsatisfactory a vehicle the Summons for Immediate Relief is
for the resolution of substantial disputes as to the facts
and even as to issues of law requiring extensive argument
and consideration. The Summons for Immediate Relief is a
convenient vehicle for disposing expeditiously of cases in
which there is not substantial dispute or in which the
nature of the dispute is such that it can be resolved
readily and speedily in Chambers. An attempt to determine
by means of the Summons for Immediate Relief issues of fact
and law requiring substantial hearing time produces
mischiefs which are well illustrated by the course which the
present case took." (p 226)

18. In the present case justice could only be achieved by giving to each of the nine persons who have refuted Mr Healey's assertion the opportunity of leading such evidence as they considered appropriate; that was done. But to complete the exercise it would be necessary for each such party to be available for cross-examination so that his assertions could be challenged. That would have been an intolerable excursion into the limited time available to deal with an interlocutory matter such as this.
2. Mr Healey's Membership

19. What then of Mr Healey's right to bring this application? Was he entitled to claim that he was a member of the Organisation and that he had been so for the required twelve month period. If there are grounds for holding that he was, or might have been, a member on 10 October 1991 that would be sufficient to justify him making his application on that date and challenging the nominations of the eleven persons. But to challenge the rejection of his own nomination by the returning officer it would be necessary, according to one argument, for Mr Healey to establish, not only that he was a member of the Organisation on 21 August 1991, the closing date for nominations, but also that he had been such a member for the continuous preceding twelve months.

20. There are two distinct issues to be considered. First, there was Mr Healey's general assertion that he was and had been a member of the Organisation since 1966. That assertion flew in the face of one of the findings made by Keely J. in the first inquiry. In his unreported reasons that were published on 26 April, 1991 his Honour said:

"Paragraph (b) of the fifth alleged irregularity was
expressed as follows:
'(b) One candidate namely R. Healy was not
eligible to be nominated in that he was
ineligible to become a member, because at the
time that he purported to become a member he was
not employed in any industry or calling
described in rule 6.'
The correct spelling of that candidate's name is Healey - see GJC
27. I find that an irregularity occurred in that Mr R. Healey,
who was an unsuccessful candidate for the office of Branch
Organiser, was not eligible to be nominated for that office. That
finding is based upon the evidence that, at the time of his
purported admission, he was employed as a hand setter.
Accordingly, he had not been validly admitted as a member of the
Union; for the reasons given earlier in dealing with the first
irregularity, he was not eligible to become a member of the Union."

21. It may be assumed, for present purposes, that the person referred to by Keely J. as "Mr R. Healey" is the applicant in these proceedings. Despite the unequivocal nature of this finding, Mr Healey has asserted that he remains entitled to prosecute his current application. In support of his claim he made the following points; he was not a party to the first inquiry nor did he give evidence before it. In the earlier election, he had been an unsuccessful candidate; hence his interest in the first inquiry was not the same as if he had been a successful candidate whose election was the subject of challenge. There was also a suggestion that, even if the relevant papers had been served on him (which curiously, was first conceded and then not admitted) Mr Healey would not necessarily have realised that he and the classification of his employment would be under scrutiny in the inquiry. The relevant irregularity in the first inquiry, so far as it might have had application to Mr Healey was said to be -

"Persons other than those entitled to vote, namely
Brickworker members of the Organisation, were granted a vote
and did vote in the election thus preventing or hindering a
correct ascertainment of the results of the voting in the election."

Apparently the application in the first inquiry did not refer to him by name. Thus said Mr Healey, any finding that Keely J. made in the first inquiry about him or his status was not binding upon him because he had not given evidence in that inquiry or been a party to it. (For the purposes of these reasons, I have assumed, without the benefit of evidence, that "hand setter" is a more specific job description for an aspect of the general work of a Brickworker).

22. For reasons which I have already canvassed, it would be inappropriate for me to engage in a fact finding exercise at this stage. Mr Healey and those advising him, no doubt have now had the opportunity of assessing the quality of the evidence upon which Keely J. based his finding; they would know whether it will be within their power to advance additional evidence which would justifiably bring about a different finding; they would also know that s.347 of the Act allows for an order for costs against a party who institutes proceedings without reasonable cause. At this very early stage, I feel compelled to conclude that any doubts should be resolved in Mr Healey's favour so that he may have the opportunity of placing what he considers to be all relevant material before the Court.

23. The second issue relative to the question of Mr Healey's membership is the s.202 agreement. Sub-section (1) of that section states:-

"The rules of an organisation of employees may authorise the
organisation to enter into agreements, in the prescribed
form, with State registered unions to the effect that
members of the State registered union concerned who are
ineligible State members are eligible to become members of
the organisation under the agreement."

24. Sub-section 202(2) proceeds to provide that the relevant agreement will come into force when a copy is lodged in the Industrial Registry and the Industrial Registrar enters its particulars in the appropriate registry. Sub-section 202(6) defines "ineligible State members" in relation to an organisation as meaning:

"...the members of a State registered union who, under the
eligibility rules of the organisation, are not eligible to
be members of the organisation."

Were it not for the provisions of sub-s.(4) and (5) of s.202, the provisions of the section thus far quoted would suggest that "ineligible State members" merely become eligible to become members of the Federal organisation as a consequence of a s.202 agreement. However sub-s.(4) provides:-

"Where a person who became a member of an organisation under
an agreement entered into under rules made under subsection
(1) later becomes eligible for membership of the
organisation under its eligibility rules, the organisation
is not entitled to represent the industrial interests of the
person until a record of the person's eligibility is entered
in the register kept under paragraph 268(1)(a)."

25. There is, at least, an argument that the apparent deliberate use of the words "became a member of an organisation under an agreement" as contrasted with the use of the later words "later became eligible for membership" means that upon a s.202 agreement coming into force all "ineligible State members" thereby - and without more - become members of the Organisation. Despite the interesting and opposing arguments that were advanced by counsel on this question of interpretation of s.202, it is not, in my opinion, either necessary or desirable to express a concluded view at this stage. I have come to this conclusion because Mr Bourne, counsel for Mr Healey, raised a tangential issue which may - or may not - have to be resolved. He pointed out that, although Mr Healey conceded that he had not, subsequent to 17 May 1991, completed a form of application for membership of the Organisation - if indeed, such a prerequisite to membership was necessary - there was evidence that Mr Healey had been paying his union contributions since 1976 by a Payroll Deduction Authority. As Rule 8 of the Organisation's rules states that an "application for membership" may be made by (inter alia) "the signing of a Payroll Deduction Authority", it was thereby claimed that the combination of Mr Healey's signature in 1976 and the payment to and receipt by the Organisation of deductions from his pay would constitute him a member of the Organisation.

26. Once again, contentious questions of fact have been teased out of the material that is presently before the Court. Once again, a subject has been identified that should be explored in greater detail if this inquiry is to proceed. The significance, at law, of the signing of a Payroll Deduction Authority can only properly be addressed after this matter has been examined in greater detail. This has not yet been done. When all relevant facts are before the Court, it may then be appropriate to resolve the question of the interpretation of s.202. At this stage little would be achieved by attempting a resolution in vacuo.
3. Estoppel, res judicata and abuse of process

27. Arguments advanced by Mr DiFazio on behalf of Mr Symes and the Birch group that the finding of Keely J. constituted, against Mr Healey, an issue estoppel or res judicata or abuse of process do not have any foundation. Nothing in the cases upon which he relied - Port of Melbourne Authority v Anshun Pty. Ltd. [1981] HCA 45; (1981) 36 ALR 3; Hunter v Chief Constable of West Midlands (1981) 3 All ER 727 and Taylor v Ansett Transport Industries Ltd. (1987) 18 FCR 342 - can assist him. The absence of Mr Healey as a party in the first inquiry means that issue estoppel and res judicata cannot be raised by or against him and even Hunter's case, which was an abuse of process case, insisted of the presence of the litigant in the earlier proceedings. As Lord Diplock (with whom the other Law Lords agreed) said at p 733:-

"The abuse of process which the instant case exemplifies is
the initiation of proceedings in a court of justice for the
purpose of mounting a collateral attack on a final decision
against the intending plaintiff which has been made by
another court of competent jurisdiction in previous
proceedings in which the intending plaintiff had a full
opportunity of contesting the decision in the court by which
it was made." (Emphasis added).

28. The most that can be said in favour of this general argument is that there might be a case where the findings of fact in an earlier inquiry were incontrovertible so that it would be a waste of the Court's time to allow a second inquiry to proceed. One could imagine that in such a clear-cut case the Court might well be disposed to use its discretionary power to terminate the inquiry. But those circumstances do not exist in the current application.
4. Jurisdiction

29. Next it was argued that the Court has no jurisdiction to conduct an inquiry into an election when that election has been ordered by the Court pursuant to sub-paragraph 223(3)(c)(ii) of the Act. In Amalgamated Metal Workers' and Shipwrights' Union v Carey (1981) 54 FLR 386, a case that dealt with the provisions of the old Act, it was held that in such circumstances the Court did not have the necessary jurisdiction. However, that decision resulted from an express statutory provision which, it was agreed, has not found its way into the current Act. Specifically, s.159 of the old Act dealt with applications for inquiries with respect to elections and sub-s.(3) provided that, except as elsewhere provided in the section, s.159 was not to apply "to or in relation to an election conducted under s.165A...". It may be accepted that an election conducted under s.165A of the old Act equates with the new election which is the subject of this application.

30. I have concluded that the absence in the current Act of a provision such as sub-s.159(3), coupled with a literal reading of the relevant provisions of the current Act, justify the rejection of this argument. Section 218 of the current Act, simply states that a person with the requisite qualifications may make an application for an inquiry by the Court where he claims "that there has been an irregularity in relation to an election...". There is no qualification to or about the election and there is no provision that suggests that an alleged irregularity in a Court ordered election should be dealt with in a manner that is different from an alleged irregularity in an election that takes place as required by the rules of the Organisation.
5. Regulation 62 and the form of the Statutory Declaration

31. Regulation 62 of the Regulations made under the Act requires an application for an inquiry to be "accompanied by a statutory declaration made by the applicant verifying the facts set out in the application". It is common ground that the statutory declaration that was made by Mr Healey in support of his application was in a form that complied with the Oaths Act, 1936 (S.A.) whereas it should have been in the form that complied with the Statutory Declarations Act 1959 (Cth): see Acts Interpretation Act 1901 (Cth) - ss.27 and 38.

32. Sub-section 51(1) of the Federal Court of Australia Act 1976 (Cth) provides:-

"No proceedings in the Court are invalidated by a formal
defect or an irregularity, unless the Court is of opinion
that substantial injustice has been caused by the defect or
irregularity and that the injustice cannot be remedied by an
order of the Court."

33. It was not suggested that there was or could be "substantial injustice" caused to any party as a result of this mistake. However, Mr Maloney claimed that the matter presently before the Court was not a "proceeding" - it was merely an application and would not, so he argued, convert to a proceeding unless and until the Court ordered an inquiry. Hence, if this argument is correct, it would mean that s.51 could not be called in aid to cure this defect. I cannot accept such an artificial demarcation. Historically, the word "proceedings" has meant the "invocation of the jurisdiction of a court by process other than writ": Herbert Berry Associates Ltd v IRC (1977) 1 WLR 1437 at p 1446 per Lord Simon of Glaisdale: or "any application by a suitor to a Court in its civil jurisdiction for its intervention or action": Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at pp 538-9 per Starke J.

34. Mr Healey's application has clearly invoked the jurisdiction of this Court; his application can and should be treated as a "proceeding". Section 51 is therefore available so long as the error can be classified as a "formal defect or an irregularity". I have concluded that it can be so classified. I have come to that conclusion because the matter of primary importance was and is to have an applicant for an inquiry depose on oath to the truth of the facts upon which he relied. Mr Healey did this. His mistake was to refer to the inappropriate Act of Parliament. But he still swore his oath and he remained bound by it. Thus I believe that it is appropriate to classify his mistake as a "formal defect or irregularity". It would be appropriate to make an order declaring that the proceedings are not invalid by reason of a defect that the Court considers to be formal, or by reason of an irregularity.

35. Before concluding this matter it is desirable to refer briefly to the decision of Gray J. in Re O'Dowd; Re Commonwealth Bank Officers' Association (1984) 8 IR 222. In that case, his Honour held that a statutory declaration that complied with a State Act constituted a defect that could not be cured; he dismissed the application for an inquiry. However, that was a decision under the old Act and is distinguishable in that under the former legislation an application for an inquiry into an election was first made to the Industrial Registrar; thus the application was not then a judicial proceeding and did not become one until it was referred by the Registrar to the Court.

36. Dealing with s.51 of the Federal Court of Australia Act, Gray J. said at p 227:

"It may be seen that the section only applies to proceedings
in the court. In the present case, the defects were in
applications to the Registrar. On the authorities to which
I have referred, those defects deprived the Industrial
Registrar of any power to deal with the applications, and in
particular any power to refer them to the court.
Accordingly, there was no proceeding in the court. Section
51 could not operate."

37. For the reasons set out above I decline to terminate the inquiry. I direct counsel for Mr Healey to bring in short minutes of order and I reserve liberty to all parties to speak to the minutes.