Re Robert La v Federated Furnishing Trade Society of Australasia [1993] FCA 62; (1993) 113 ALR 137 (1993) 41 FCR 151 (26 February 1993)

FEDERAL COURT OF AUSTRALIA

Re: ROBERT LA
And: FEDERATED FURNISHING TRADE SOCIETY OF AUSTRALASIA
No. V I5 of 1993
FED No. 87
Number of pages - 23
Industrial Law - Practice and Procedure
[1993] FCA 62; (1993) 113 ALR 137
(1993) 41 FCR 151

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - amalgamation - application for inquiry into ballot - whether applicant a member of organisation - membership application referred to committee - membership deemed to date from receipt of application - form of application - whether in accordance with form in regulations - whether requirements mandatory - whether formal defects or irregularities.

Practice and Procedure - application for amalgamation ballot inquiry - whether in accordance with form in regulations - whether requirements mandatory - whether application set out facts relied on - whether signature of solicitors is signature of applicant - whether application set out particulars of alleged irregularities - whether accompanied by a statutory declaration - whether facts verified - whether formal defects or irregularities.

Words and Phrases - "in accordance with" - "must" - "signature of applicant" - "statutory declaration" - "proceedings" - "formal defect" - "irregularity".

Industrial Relations Act 1988 s. 253M, 253Q, 3, 218, 219, 4, 234, 347.

Industrial Relations Regulations Regs. 98, 62, 63, 65, 66, 67, 68, Form 11.

Acts Interpretation Act 1901 ss.17, 25C.

Federal Court of Australia Act 1976 s.51.

Re Applications by O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 FCR 150.

Re Power (1992) 36 FCR 133.

R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks' Union of Australia, New South Wales Branch [1950] HCA 29; (1950) 81 CLR 229.

Re Election in Administrative and Clerical Officers' Association, Commonwealth Public Service (1980) Industrial Arbitration Service Current Review, Case No. B87.

Re An Inquiry into an Election in the Amalgamated Metal Workers and Shipwrights Union; Ex parte Naqvi (1982) 59 FLR 173.

Re Application by Ferris for Inquiry into Election in Australian Workers Union (1982) 1 IR 432.

Re Healey; Re Inquiry into Election in Australian Workers Union, South Australian Branch [1992] FCA 10; (1992) 40 IR 110.

HEARING

MELBOURNE, 19 February 1993
26:2:1993

Solicitors for the applicant: Rennick Gaynor Kiddle Briggs

Counsel for the applicant: C. Fenwick

Solicitors for the Federated
Furnishing Trade Society of
Australasia and Construction,
Forestry, Mining and Energy
Union: Ryan Carlisle Thomas

Counsel for the Federated

Furnishing Trade Society of
Australasia and Construction,
Forestry, Mining and Energy
Union: A.M. North QC and S. Rothman

Solicitors for Operative

Painters and Decorators Union
and Victorian State Building
Trades Union: Slater and Gordon

Counsel for Operative Painters

and Decorators Union and
Victorian State Building Trades
Union: A.M. North QC and M. Hickey

DECISION

GRAY J. The Federated Furnishing Trade Society of Australasia ("the Society") is an organisation of employees, registered pursuant to the Industrial Relations Act 1988 ("the Act"). Pursuant to Division 7 of Part IX of the Act, a ballot of the members of the Society has been conducted, with respect to a proposed amalgamation of the Society with the Construction, Forestry, Mining and Energy Union, the Operative Painters and Decorators Union of Australia and the Victorian State Building Trades Union. A majority of the members of the Society who voted in that ballot voted in favour of the proposed amalgamation. There were also favourable results of ballots in some of the other organisations involved in the proposed amalgamation.

2. Section 253M of the Act provides as follows:

"(1) Not later than 30 days after the result of a ballot
under this Division is declared, application may be made to
the Court, as prescribed, for an inquiry by the Court into
alleged irregularities in relation to the ballot.
(2) If the Court finds that there has been an irregularity
that may affect, or may have affected, the result of the
ballot, the Court may:
(a) if the ballot has not been completed - order that a
step in relation to the ballot be taken again; or
(b) in any other case - order that a fresh ballot be
conducted in place of the ballot in which the
irregularity happened;
and may make such further orders as it considers necessary
or desirable.
(3) The regulations may make provision with respect to the
procedure for inquiries by the Court into alleged
irregularities in relation to ballots under this Division,
and for matters relating to, or arising out of, inquiries."

Under s.253Q(2), a designated presidential member of the Australian Industrial Relations Commission is obliged to fix a day on which the amalgamation is to take effect. The fixing of such a day is delayed until any application to the Court under s.253M has been disposed of and the result of any fresh ballot ordered by the Court has been declared.

3. In accordance with s.17(q) of the Acts Interpretation Act 1901, the word "prescribed" in s.253M of the Act means prescribed by the Act or by regulations made under the Act. The relevant prescription is to be found in reg. 98 of the Industrial Relations Regulations, which provides as follows:

"(1) An application to the Court under subsection 253M(1)
of the Act for an inquiry must be:
(a) in accordance with Form 11; and
(aa) made by a member of the organisation whose members
were eligible to vote in the ballot; and
(b) accompanied by a statutory declaration verifying the
facts set out in the application.
(2) For the purposes of this Division, an inquiry is taken
to have been instituted when an application is lodged in
accordance with subregulation (1).

It is also necessary to set out what appears in Form 11 in the Schedule to the Regulations:

FORM 11
Industrial Relations Act 1988
APPLICATION FOR INQUIRY RELATING TO A BALLOT
In relation to an inquiry relating to a ballot of the
members of (name of organisation):
I, (full name of applicant) of (address of applicant), being
a member of the (name of organisation) hereby apply for an
inquiry by the Federal Court of Australia into the following
irregularities that, I allege, have occurred in or in
relation to the ballot specified in this application. I
rely on the facts stated in this application.
PARTICULARS OF BALLOT
Ballot of the members of (name of organisation) in respect
of the proposed amalgamation of that organisation with (name
of organisation or each organisation with which amalgamation
is proposed).
or
Ballot of the members of (name of organisation) on the
question whether, if the proposed amalgamation of that
organisation with (name of other organisation concerned in
the amalgamation) does not take place, they approve the
amalgamation of (name of first-mentioned organisation) with
the other organisations concerned in the amalgamation whose
members give a like approval.
*The ballot is uncompleted.
*The ballot was completed on (date).
PARTICULARS OF ALLEGED IRREGULARITIES
(Set out in numbered paragraphs particulars of
alleged irregularity or irregularities)
FACTS RELIED ON
(Set out in numbered paragraphs the facts relied on in
support of the application)
Dated 19 .
..........................
Signature of applicant

4. On 20th January 1993, which was the thirtieth day after the completion of the ballot, the applicant's solicitors tendered to the Victoria District Registry of the Court a document which, so far as is relevant, was in the following form:

"IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA REGISTRY
INDUSTRIAL DIVISION
No. VI 5 of 1993
IN THE MATTER of the Industrial
Relations Act 1988
IN THE MATTER of an application
for an Inquiry relating to a
ballot of the Federated
Furnishing Trade Society of
Australasia as to the
amalgamation of that body with
the Construction Forestry Mining
and Energy Union.
APPLICATION FOR INQUIRY RELATING TO A BALLOT
In relation to an inquiry relating to a ballot of the
members of the Federated Furnishing Trade Society of
Australasia:
1. I, ROBERT LA of 8 Charlotte Street, Yarraville in the
State of Victoria, being a member of the Federated
Furnishing Trade Society of Australasia hereby apply
for an inquiry by the Federal Court of Australia into
the following irregularities that, I allege, have
occurred in relation to the ballot specified in this
application. I rely on the facts stated in this
application.
PARTICULARS OF BALLOT
Ballot of the members of the Federated Furnishing Trade
Society of Australasia in respect of the proposed
amalgamation of the organisation with the Construction
Forestry Mining and Energy Union, Operative Painters and
Decorators Union and the Victorian State Building Trades
Union.
The ballot was completed on 21st December, 1992.
PARTICULARS OF ALLEGED IRREGULARITIES
1. There has been a breach of the rules of the
organisation in relation to the ballot.
2. There has been an act or omission by means of which
the full and free recording of votes by all persons
entitled to record votes and by no other persons has
been prevented hindered.
3. There has been an act or omission by means of which
the correct ascertainment or declaration of the
results of the voting has been prevented or hindered.
FACTS RELIED ON
1. Persons who were not financial members of the
Operative Painters and Decorators Union in accordance
with the Rules thereof received a ballot paper for the
purpose of voting in the ballot for the amalgamation.
2. Persons who were financial members in accordance with
the Rules of the Operative Painters and Decorators
Union and were entitled to receive a ballot paper for
the purpose of voting in the ballot for the
amalgamation did not receive such ballot and/or were
not sent such ballot paper for the purpose of voting
in the ballot for the amalgamation.
3. The numbers of persons involved in receiving ballot
papers irregularly or irregularly not receiving ballot
papers in such that the result of the ballot may have
been affected.
DATED this 20th day of January, 1993.
(signed)
................................
RENNICK GAYNOR KIDDLE BRIGGS
Solicitors for the Applicant"

5. Also lodged at the Victoria District Registry of the Court on 20th January 1993 was a document bearing headings similar to those of the purported application, and otherwise in the following form:

STATUTORY DECLARATION
I, SEAN CHRISTOPHER MILLARD of 530 Little Collins Street,
Melbourne in the State of Victoria, Solicitor, do solemnly
and sincerely declare as follows:
1. I am a Solicitor in the sole and permanent employ of
Messrs Rennick Gaynor Kiddle Briggs, Solicitors for
the Applicant herein. Subject to the supervision of
my Principals I have care and control of this action
on behalf of the Applicant.
2. The Applicant is a member of the Federated Furniture
Trade Society of Australasia.
3. The Applicant has authorised the filing of an
application on his behalf for an inquiry relating to a
ballot for approval of the amalgamation between the
aforesaid Federated Furniture Trade Society of
Australasia and the Construction Forestry Mining and
Energy Union and the Operative Painters and Decorators
Union and the Victorian State Building Trades Union.
4. The facts set out in the application referred to above
are, to the best of my instructions and knowledge and
belief, true and correct.
AND I MAKE this solemn declaration by virtue of the Evidence
Act 1958, and subject to the penalties provided by that Act
for the making of false statements in statutory
declarations, conscientiously believing the statements
contained in this declaration in every particular.
DECLARED at Melbourne )
in the State of Victoria )
on the 20th day of )
January, 1993. )
Before Me:

There appear two signatures, one apparently that of Mr. Millard the other that of George Xavier Lopez, a solicitor.

6. By notice of motion, filed on 15th February 1993, the Society sought, among other orders, an order that the proceeding be dismissed. The motion was based on two broad grounds. One was the proposition that, on the day on which the document was lodged in the registry, Mr. Robert La, who is named as the applicant, was not a member of the Society, as required by reg. 98(1)(aa). The second ground was based on the failure of the document lodged to comply with the requirements of reg. 98 and form 11 in a number of respects.

7. With respect to the question whether Mr. La was a member of the Society, the undisputed facts are as follows. On 20th January 1993, the day on which his application was lodged, Mr. La completed a form of application for membership of the Society. He set out his name and gave as his address 16 Hamilton Street, Footscray. It will be noted that this address was different from that which Mr. La gave in the document he lodged at the district registry of the Court. There was provision on the form of application for membership for applicants to give information as to "Factory" and "Transferred from". Mr. La did not provide any information on these parts of the form. Mr. La appears to have lodged his application for membership, together with a sum of money sufficient to cover the entrance fee, at the office of the Victorian branch of the Society.

8. Such an application for membership is required by rule 6(A)(a) of the rules of the Society, which also obliges a person desiring to become a member to deliver the application or cause it to be delivered to the secretary of the branch of the Society which the applicant seeks to join. Rule 6(A) thereafter provides relevantly as follows:

"(c) If unaware of any reason why the applicant should not
be admitted to membership the Secretary shall accept
the application and fee and the applicant shall become
a member on and from the date upon which the
application form and entrance fee (except in the case
of members of the Furnishing Trade Society of New
South Wales) were received by the Secretary.
(d) If the Secretary be doubtful as to the admission to
membership of any applicant for membership he may
refer the application to the Committee of Management
of the Branch and the Committee shall investigate the
matter and decide whether the applicant be admitted or
otherwise and its decision on the matter shall be final.
If the applicant be admitted he shall be deemed to
have become a member on and from the date upon which
the application was received by the Secretary."

9. Because of the absence of any information as to where or in what capacity Mr. La was employed, the secretary of the Victorian branch of the Society was doubtful as to the admission to membership of the applicant. He therefore referred the application to the next meeting of the committee of management of the Victorian branch of the Society, which was to be held on 9th February 1993. He also forwarded to Mr. La at the address given in his application for membership, by certified mail, a letter dated 25th January 1993. The letter stated that the branch secretary was doubtful as to whether it was appropriate to admit Mr. La to membership and intended to refer his application to the committee of management of the branch on 9th February. It requested advice prior to that meeting of the name and address of an employer of Mr. La and the nature of his employment, including his employment classification.

10. Nothing was heard from Mr. La prior to the meeting of the branch committee of management. That meeting instructed the branch secretary to send a further letter to Mr. La. The branch secretary did so, by letter dated 11th February 1993. This letter was forwarded both to the address given in the application for membership and to the address given in the document lodged in the Victoria District Registry of the Court. The letter dated 11th February set out a lengthy resolution of the branch committee of management, which recited the history of the manner in which Mr. La's application for membership had been dealt with, and resolved to refer it to the meeting of the branch committee of management on 10th March 1993. The letter also conveyed an invitation from the branch committee of management to Mr. La to attend the meeting on 10th March and to present such evidence of eligibility as he may wish.

11. Copies of the letters dated 25th January and 11th February were also forwarded by the solicitors for the Society to the solicitors named in the document lodged at the registry of the Court. This was done by facsimile transmission on 12th February 1993, together with a letter seeking information.

12. Counsel for Mr. La obtained the leave of the Court on the hearing of the motion to file in Court an affidavit sworn by Mr. La on 18th February 1993, setting out his employment history. It is unnecessary for me to consider the evidence in that affidavit.

13. It was not suggested by anyone that reg. 98(1)(aa) was anything other than a proper exercise of the power to prescribe the conditions under which an application under s.253M of the Act might be made. The question whether a person is a member of an organisation for the purposes of reg. 98(1)(aa) is to be determined by looking at the dealings between that person and the organisation in the light of the provisions of the rules of the organisation which relate to membership. In the ordinary case, rule 6(A)(c) of the rules of the Society operates to make a person a member of the Society on the date on which his or her application form and entrance fee are received by the secretary of the branch which the person seeks to join. In the present case, no attempt was made to suggest that the secretary of the Victorian branch received Mr. La's application form and the money paid by him on any day other than the day on which they were received in the branch office. It is possible for a branch secretary to receive an application form and entrance fee by means of an agent, and it is likely that this would be what occurs in the case of most people joining the Society. If the secretary had been unaware of any reason why Mr. La should not be admitted to membership, there can be no doubt that Mr. La would have become a member on 20th January 1993.

14. Counsel for the Society argued that rule 6(A)(d) produced a different result in relation to Mr. La. He was a person as to whose admission to membership the secretary was doubtful. The steps laid down in the rule had to be followed. The branch committee of management might ultimately be satisfied on proper evidence that Mr. La was entitled to be admitted to membership and might so decide. In that event, Mr. La will be deemed to have become a member on and from the date on which the application was received by the secretary, i.e. 20th January 1993. Counsel for the Society argued that the last sentence of rule 6(A)(d) constitutes a true deeming provision, i.e. it requires a state of affairs to be treated as something which it was not. The argument was that it simply could not be known whether Mr. La was or was not a member on 20th January, even if the branch committee of management should decide at a later time that he was eligible.

15. In my view, the intent of the rules is that everyone who joins the Society should become a member on the day on which his or her application was received by the relevant branch secretary. No-one should be disadvantaged by the secretary's being in a state of doubt as to his or her admission. If and when such doubt is resolved, membership will be on the same terms as if the doubt had not existed. If this view involves the word "deemed" bearing a meaning different from its ordinary meaning, then I am satisfied that the context in which it appears requires that it bear such meaning.

16. The question whether Mr. La was a member of the Society on 20th January 1993 cannot therefore be answered by reference to the rules of the Society until at least 10th March, when the branch committee of management meets to consider what evidence (if any) Mr. La places before it. If the branch committee of management decides to admit the applicant, however, he will have been a member on 20th January. Regulation 98(1)(aa) will therefore have been satisfied in relation to his application lodged on that date. For these reasons, it is not possible to accede to the Society's motion to dismiss the application on the ground that Mr. La was not a member. The motion, so far as it is based on that ground, must be adjourned until after 10th March.

17. The second ground on which the Society's motion is based involves allegations of failure to comply with reg. 98 in a number of respects. In the first place, it was said that, even if Mr. La be a member of the Society, there was no application "made by a member", because the signature on the document lodged was not that of Mr. La. In other respects, however, the document does disclose that Mr. La is intended to be the applicant in an application made under s.253M of the Act. It is unnecessary for him to sign the document personally in order to answer the description of "the applicant", as distinct from to comply with some specific requirement that he sign personally.

18. Attention was then directed to the requirement that an application must be "in accordance with" form 11. Some argument took place on the meaning of the phrase "in accordance with". Counsel for Mr. La referred to the definition of "accordance" in the Shorter Oxford Dictionary. He contended that "accordance" in reg. 98(1)(a) means "harmony". In my view, the alternative meaning, "conformity", is more appropriate. The notion of a document being in conformity with a form is easier to grasp than the notion of the document and the form being in harmony. Alternatively, disconformity is easier to recognise than disharmony. In my view, "in accordance with" in reg. 98(1)(a) means in complete agreement with.

19. Reference was also made to s.25C of the Acts Interpretation Act 1901, under which, unless a contrary intention appears, strict compliance with a form prescribed by an Act is not required and substantial compliance is sufficient. Counsel for the Society pointed to a number of aspects of the regulations which lead to the conclusion that a contrary intention does appear. The most important is the use of the word "must" in reg. 98. This can be contrasted with the use of the word "shall" in reg. 62(2) of the Industrial Relations Regulations, which provides for the form of an application under s.218 of the Act for an inquiry into an election for an office in an organisation. The word "must" is clearly intended to carry a mandatory requirement. Of importance also is the fact that an application under s.253M delays the determination by the designated presidential member of the day on which the amalgamation is to take effect. Thus, an amalgamation, a matter of such importance that s.3(j) of the Act makes it an object of the Act to encourage and facilitate it, may be held up by the unilateral act of lodging an application under s.253M. All manner of interests can be affected, before there can be an opportunity for the Court to determine whether allegations made in such an inquiry have any substance. No power exists in the Court, comparable with that found in s.219 of the Act, to reject an application for an inquiry which shows no reasonable grounds. There is, therefore, every reason why strictness in complying with reg. 98, and in adhering to form 11, should be required.

20. Counsel for the Society suggested that the document lodged on 20th January was not in accordance with form 11 in that it did not set out the facts relied on in support of the application. A brief examination of what appears under the heading "Facts Relied On" in the document reveals that what is there set out is totally irrelevant to an allegation of irregularity in a ballot of the members of the Society. The allegations made relate to the receipt of ballot papers by persons who were not financial members of the Operative Painters and Decorators Union and the non-receipt of ballot papers by persons who were financial members of that Union. When the document lodged on 20th January is compared with a similar document lodged on the same day in matter no. VI 6 of 1993, it is apparent that the solicitors who lodged both such documents transposed the second pages of them. Thus, allegations relating to the Society appear under the heading "Facts Relied On" in the document lodged in matter no. VI 6 of 1993, which purports to be an application for an inquiry relating to a ballot of members of the Operative Painters and Decorators Union. The explanation of how the document in the present case came to be in its form is not relevant to the question whether it complies with reg. 98. In my view, the document is plainly not in accordance with form 11. If what is set out under the heading "Facts Relied On" bears no relationship to the allegations made elsewhere in the document, it is as if nothing at all appeared under that heading.

21. The second respect in which non-compliance with the form is alleged is that the document does not bear the signature of the applicant. Form 11 contains a dotted line, beneath which appear the words "Signature of applicant". This is plainly what the form requires. If a person is to delay the taking effect of an amalgamation by a unilateral step, that person is required to take responsibility directly for the allegations made in taking that step. The document lodged on 20th January bears a signature which does not purport to be that of the applicant, and is different from the signature which appeared on his application for membership of the Society. The words in the signature on the document filed in the registry of the Court are decipherable as "Rennick Gaynor Kiddle Briggs". Lest there be any doubt, that firm name appears immediately under the signature, followed by the words "Solicitors for the Applicant".

22. In my view, signature by solicitors acting on behalf of a person wishing to make an application for an inquiry under s.253M of the Act is insufficient to satisfy reg. 98. Form 11 commences with a statement in the first person. It is plainly intended that the applicant complete the statement personally by signature. There are specific provisions in regs. 63(3), 65, 66, 67 and 68 of the Industrial Relations Regulations, for the signature of documents by one person on behalf of another. Those provisions relate to amalgamations of organisations. They emphasise the requirement that the application the subject of reg. 98 is intended to be a personal one. It is unnecessary to discuss cases of applicants physically unable to sign, or of signature by procuration. It is sufficient to say that, in the present case, the signature purporting to be that of the solicitors for the applicant is insufficient to satisfy the requirement in reg. 98(1)(a) that the application be in accordance with form 11.

23. On the subject of the form of the document lodged on 20th January, it might also be said, although it was not argued, that there is a failure to conform with form 11 in that there are not supplied particulars of an alleged irregularity or alleged irregularities. What appears under the heading "Particulars of Alleged Irregularities" is simply a repetition of the elements of the definition of "irregularity" in s.4(1) of the Act. Whether that definition is appropriate with respect to an amalgamation ballot might be a question, having regard to the special definition of "irregularity", for the purposes of Division 7 of Part IX of the Act, in s.234. More importantly, however, the word "particulars" connotes a requirement that there be some particularity. An allegation that there has been a breach of the rules of an organisation, without designating the rule concerned and stating the manner in which a breach of it is alleged to have occurred, does not amount to giving particulars. Similarly, a reference to an act or omission, without specifying the nature of the act or omission, does not amount to particulars. In my view, the document filed on behalf of Mr. La fails to comply with reg. 98(1)(a) in this respect also.

24. Attention was then directed to the requirement of reg. 98(1)(b), that an application be accompanied by a statutory declaration verifying the facts set out in the application. Counsel for the Society suggested that the statutory declaration lodged in the registry of the Court on 20th January 1993 fails to comply with reg. 98(1)(b) in two ways. The first is that it is not a "statutory declaration", within the meaning of that term as used in the regulation. The second is that, because of the form of paragraph 4, it does not verify the facts set out in the application.

25. The first criticism is based on the reasoning in the judgment reported as Re Applications by O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 FCR 150, at pp 151-155, in which I held that a declaration made under the Oaths Act 1867-1981 (Qld.) was not a statutory declaration, for the purposes of s.159(2)(b) of the Conciliation and Arbitration Act 1904. That section required that an application for an inquiry into an election in an organisation be accompanied by a statutory declaration. I need not set out that reasoning again. My attention has been drawn to Re Power [1992] FCA 109; (1992) 35 FCR 133, at pp 140-142, in which Lee J. reached the contrary conclusion. I have considered carefully what his Honour said in that case, but remain convinced as to the correctness of my reasoning in O'Dowd. In particular, I remain convinced that the phrase "any Act" in s.27(c) of the Acts Interpretation Act 1901 can only mean any Act of the Parliament of the Commonwealth. Otherwise, my reasoning is strengthened by the amendment made on 12th December 1991 to s.8 of the Statutory Declarations Act 1959. The statutory declaration filed in the present case was not in the form required by that Act, although the variation from that form was technical, involving a reference to the Evidence Act 1958 (Vic.), instead of to the Statutory Declarations Act 1959. The want of form caused the statutory declaration to fail to be a statutory declaration within the mandatory requirement of reg. 98(1)(b).

26. The other defect suggested by counsel for the Society was of greater importance. The requirement of reg. 98(1)(b) is that the facts set out in an application be verified. This means that there must be a statutory declaration by some person capable of swearing and in fact swearing as to the truth of them. It may be true, as Lee J. held in Re Power, at p 138, that "a declaration of conscientious belief in the truth of an asserted fact would meet the requirement". In the present case, however, Mr. Millard has not declared unambiguously his conscientious belief in the truth of the facts. He has only declared them to be true to the best of his instructions and knowledge and belief. This may amount to no more than a declaration that his client has instructed him that certain facts are true. Such a declaration is inadequate to verify the facts. Again, it must be remembered that the filing of an application under s.253M of the Act delays the finalisation of an amalgamation between organisations. Such delay should not occur unless someone is prepared to declare that he or she has, at least, a conscientious belief in the truth of what is stated in the application. The declarant need not be the applicant, a requirement which attaches to a statutory declaration verifying an application for an inquiry under s.218 of the Act. See reg. 62(2) of the Industrial Relations Regulations. It is conceivable that, in the case of an inquiry into an amalgamation ballot, more than one statutory declaration might be filed, with each declarant verifying some aspect of the facts stated in the application. All must be verified by statutory declaration. In the present case, it may be that all the facts in the application (irrelevant though they be) have not been verified by Mr. Millard.

27. Once it is decided that what was lodged with the registry of the Court on 20th January 1993 on behalf of the applicant fails to comply in a number of respects with the requirements of reg. 98, the question arises as to the consequences of such non-compliance. A long line of authority established that failure to comply with the mandatory requirements for an application for an inquiry into an election in an organisation under the Conciliation and Arbitration Act 1904 was fatal. See R v. Commonwealth Court of Conciliation and Arbitration; Ex parte Federated Clerks' Union of Australia, New South Wales Branch [1950] HCA 29; (1950) 81 CLR 229, Re Election in Administrative and Clerical Officers' Association, Commonwealth Public Service (1980) Industrial Arbitration Service Current Review, Case No. B87, Re An Inquiry into an Election in the Amalgamated Metal Workers and Shipwrights Union; Ex parte Naqvi (1982) 59 FLR 173, Re Application by Ferris for Inquiry into Election in Australian Workers Union (1982) 1 IR 432 and Re O'Dowd, to which I have referred already. All of those provisions dealt with a scheme under which application had to be made to the Industrial Registrar, who then referred an inquiry to the Court. In each case, it was held that a failure to comply with the requirements laid down for an application resulted in there being nothing which the registrar could validly refer to the Court. The Court could not therefore exercise any power which it had to permit defects in a proceeding to be remedied. The attempted application was a nullity.

28. The scheme of the legislation with respect to inquiries into elections in organisations is now different under the Act. Application is made directly to the Court under s.218 of the Act. In two cases, it has been held that this has resulted in the existence of a proceeding to which s.51 of the Federal Court of Australia Act 1976 applies. That section provides:

"(1) 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.
(2) The Court or a Judge may, on such conditions (if any) as the
Court or Judge thinks fit, make an order declaring that the proceeding
is not invalid by reason of a defect that it or he considers to be
formal, or by reason of an irregularity."

The two cases are Re Healey; Re Inquiry into Election in Australian Workers Union, South Australian Branch [1992] FCA 10; (1992) 40 IR 110, at pp 118-119 and Re Power, to which I have already referred, at pp 139-140. In the former case, O'Loughlin J. said, at p 118:

"Historically, the word "proceedings" has meant the
"invocation of the jurisdiction of a court by a process
other than writ": Herbert Berry Associates Ltd. v. IRC.
(1977) I WLR 1437 at 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 538-9 per Starke J.".

O'Loughlin J. went on to say that the application in Re Healey had "clearly invoked the jurisdiction of this Court; his application can and should be treated as a "proceeding". It should be noted that the word used in s.51(1) of the Federal Court of Australia Act 1976 is "proceedings" and not "proceeding", which word is defined in s.4(1) of the Act and is a crucial word in the operation of the Court's procedures.

29. What was lodged in the present case is clearly an attempt to invoke the Court's jurisdiction. It bears a heading referring to the Court. It refers to the "Victoria Registry", presumably meaning the Victoria District Registry and to the "Industrial Division". It purports to be an application of a kind permitted by s.253M of the Act. It is true that it suffers from several defects which are more than trivial. Taking the view as I do that the provisions of reg. 98 are mandatory, I cannot view those defects as being mere formal defects. Section 51 of the Federal Court of Australia Act 1976, however, saves proceedings from being invalidated by an "irregularity", as well as by a formal defect. In my view, that word is broad enough to encompass failures to comply with mandatory provisions of regulations as to form, and with such matters as failure to supply information required and lack of verification. All are matters which are capable of being rectified if the applicant is in truth able to make a case. In my view, s.51 requires that Mr. La be given that opportunity. It prevents the invalidation of his attempt to invoke the jurisdiction of the Court. No substantial injustice has been caused by the irregularities which cannot be remedied by an order of the Court. This is the case even though the applicant invokes the jurisdiction of the Court in a matter arising under the Act, and cannot have costs awarded against him unless he has instituted his proceeding vexatiously or without reasonable cause. See s.347 of the Act.

30. I cannot therefore grant the Society's motion, so far as it seeks to have the application dismissed. Because of the conclusion I have reached about the need to wait until the question whether Mr. La is a member of the Society has been resolved, it will be necessary to adjourn the motion until after 10th March 1993. If the matter is to continue, I should propose to give directions to the effect that the irregularities be remedied by the filing of an application in proper form, properly verified, within a very short time. If this is done, then I should be disposed to make an order under s.51(2) of the Federal Court of Australia Act 1976. If it is not done, then the proceeding should be dismissed. I shall hear counsel as to the precise form of the orders to be made.