FEDERAL COURT OF AUSTRALIA

Reid, in the matter of an application for an inquiry relating to elections for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2007] FCA 417

INDUSTRIAL LAW – registered organisation – election – nomination – whether valid – each applicant nominated for multiple offices in elections – rule prohibiting nominations in any election for more than one office – whether rule applies to concurrent elections for multiple offices – whether nominations subsequent to nomination received first in time invalid – whether all multiple nominations invalid – whether nomination received last in time brought about implied surrender of prior nominations – principle of surrender by implication – whether returning officers had power to decline to accept withdrawals of nominations – whether withdrawal of subsequent nominations could revive invalid nomination received first in time  

WORDS AND PHRASES – “election”

Federal Court of Australia Act 1976 (Cth) s 21(1)

Workplace Relations Act 1996 (Cth) Sch 1 ss 142(1)(c), 143(1)(c), 143(5), 189(3), 193(1)(b)(i), 200, 206(4)(c), 206(5), 324, 325(1), 329

Rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union rr 4.6, 5.5

Re Thomas and South Australian Branch of the Australian Workers’ Union (unreported, Federal Court of Australia, Keely J, 11 June 1992) considered

Campbell v Bogar (unreported, Full Court of the Industrial Relations Court of Australia, Ryan, Moore and North JJ, 3 July 1996) considered

Re Bogar and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division (unreported, Federal Court of Australia, North J, 28 August 1998) considered

Egan v Maher [No. 2] (1978) 35 FLR 252 followed

Mellor v Horn (1988) 25 IR 157 followed

Johnson v Beitseen (1989) 41 IR 395 followed

Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218 followed

Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 cited

Tropical Traders Ltd v Goonan (1964) 111 CLR 41 cited

Sargent v ASL Developments Ltd (1974) 131 CLR 634 cited

Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988) cited

Hickson v Australian Electoral Commission (1997) 76 IR 127 cited

Australian Electoral Commission v Hickson (1997) 76 IR 399 cited

Re Wall; Re inquiry relating to an election for an office in the Ansett Pilots Association [2000] FCA 1568 (2000) 102 IR 379 cited

IN THE MATTER of an application by JAMES MAIN REID for an inquiry relating to elections for offices in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

VID173 OF 2007

IN THE MATTER of an application by PAUL WISNIEWSKI for an inquiry relating to elections for offices in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

VID174 OF 2007

IN THE MATTER of an application by MICHAEL JOSEPH NICOLAIDES for an inquiry relating to elections for offices in the AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, VICTORIAN BRANCH

VID190 OF 2007

GRAY J

23 march 2007

MELBOURNE

THE COURT DECLARES THAT:

1.         The following irregularities have happened in the elections for the following offices in
            the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
            (‘the Union’):

(a)        the acceptance by the returning officer, Michael Pryor, of the nomination of James Main Reid for the office of State Secretary, Victoria was in breach of the rules of the Union;

(b)        the acceptance by the returning officer, Michael Pryor, of the nomination of Paul Wisniewski for the office of State Secretary, Victoria was in breach of the rules of the Union;

(c)        the rejection by the returning officer, Brian Peisley, of the nomination of James Main Reid for the office of National Secretary was in breach of the rules of the Union; and

(d)        the rejection by the returning officer, Brian Peisley, of the nomination of Ray Campbell for the office of National Secretary was in breach of the rules of the Union.

2.         The acceptance by the returning officer, Michael Pryor, of the nomination of James
            Main Reid for the office of State Secretary, Victoria is void and of no effect.

3.         The acceptance by the returning officer, Michael Pryor, of the nomination of Paul
            Wisniewski for the office of State Secretary, Victoria is void and of no effect.

4.         The rejection by the returning officer, Brian Peisley, of the nomination of James Main
            Reid for the office of National Secretary is void and of no effect.

5.         The rejection by the returning officer, Brian Peisley, of the nomination of Ray
            Campbell for the office of National Secretary is void and of no effect.

6.         On 22 or 23 February 2007, Ray Campbell withdrew his nomination for the office of
            National Secretary in accordance with the rules of the Union.

7.         The declaration of the result of the election for the office of National Secretary, made
            on 28 February 2007, is void and of no effect.

THE COURT ORDERS THAT:

8.         The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of State Secretary, Victoria on the
            basis that:

(a)        Paul Wisniewski is not a candidate for that office; and

(b)        James Main Reid is not a candidate for that office.

9.         The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of National Secretary on the basis that:

(a)        James Main Reid is a candidate for that office; and

(b)        Ray Campbell is not a candidate for that office.

10.       Liberty to apply be reserved, on 48 hours’ notice in writing to each other party.

11.       Otherwise, the inquiry be terminated.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT DECLARES THAT:

1.         The following irregularities have happened in the elections for the following offices in
            the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
            (‘the Union’):

(a)        the acceptance by the returning officer, Michael Pryor, of the nomination of Paul Wisniewski for the office of State Secretary, Victoria was in breach of the rules of the Union;

(b)        the rejection by the returning officer, Michael Pryor, of the nomination of Paul Wisniewski for the office of Assistant State Secretary (Metals and Engineering Members), Victoria was in breach of the rules of the Union;

(c)        the acceptance by the returning officer, Michael Pryor, of the nomination of James Main Reid for the office of State Secretary, Victoria was in breach of the rules of the Union;

(d)        the rejection by the returning officer, Brian Peisley, of the nomination of James Main Reid for the office of National Secretary was in breach of the rules of the Union;

(e)        the acceptance by the returning officer, Michael Pryor, of the nomination of Doug McMinimee for the office of Assistant State Secretary (Metals and Engineering Members), Victoria was in breach of the rules of the Union;

(f)         the rejection by the returning officer, Brian Peisley, of the nomination of Doug McMinimee for the office of Assistant National Secretary (Metals and Engineering Members) was in breach of the rules of the Union; and

(g)        the rejection by the returning officer, Brian Peisley, of the nomination of Ray Campbell for the office of National Secretary was in breach of the rules of the Union.

2.         The acceptance by the returning officer, Michael Pryor, of the nomination of Paul
            Wisniewski for the office of State Secretary, Victoria is void and of no effect.

3.         The rejection by the returning officer, Michael Pryor, of the nomination of Paul
            Wisniewski for the office of Assistant State Secretary (Metals and Engineering
            Members), Victoria is void and of no effect.

4.         The acceptance by the returning officer, Michael Pryor, of the nomination of James
            Main Reid for the office of State Secretary, Victoria is void and of no effect.

5.         The rejection by the returning officer, Brian Peisley, of the nomination of James Main
            Reid for the office of National Secretary is void and of no effect.

6.         The acceptance by the returning officer, Michael Pryor, of the nomination of Doug
            McMinimee for the office of Assistant State Secretary (Metals and Engineering
            Members), Victoria is void and of no effect.

7.         The rejection by the returning officer, Brian Peisley, of the nomination of Doug
            McMinimee for the office of Assistant National Secretary (Metals and Engineering
            Members) is void and of no effect.

8.         The rejection by the returning officer, Brian Peisley, of the nomination of Ray
            Campbell for the office of National Secretary is void and of no effect.

9.         On 22 or 23 February 2007, Ray Campbell withdrew his nomination for the office of
            National Secretary in accordance with the rules of the Union.

10.       The declaration of the result of the election for the office of National Secretary, made
            on 28 February 2007, is void and of no effect.

11.       The declaration of the result of the election for the office of Assistant National
            Secretary (Metals and Engineering Members), made on 28 February 2007, is void and
            of no effect.

THE COURT ORDERS THAT:

12.       The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of State Secretary, Victoria on the
            basis that:

(a)        Paul Wisniewski is not a candidate for that office; and

(b)        James Main Reid is not a candidate for that office.

13.       The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of Assistant State Secretary (Metals
            and Engineering Members), Victoria on the basis that:

(a)        Paul Wisniewski is a candidate for that office; and

(b)        Doug McMinimee is not a candidate for that office.

14.       The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of National Secretary on the basis that:

(a)        James Main Reid is a candidate for that office; and

(b)        Ray Campbell is not a candidate for that office.

15.       The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of Assistant National Secretary
            (Metals and Engineering Members) on the basis that Doug McMinimee is a candidate
            for that office.

16.       Liberty to apply be reserved, on 48 hours’ notice in writing to each other party.

17.       Otherwise, the inquiry be terminated.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT DECLARES THAT:

1.         The following irregularities have happened in the elections for the following offices in
            the Victorian Branch of the Automotive, Food, Metals, Engineering, Printing and
            Kindred Industries Union (‘the Union’):

(a)        the acceptance by the returning officer, Michael Pryor, of the nomination of Paul Wisniewski for the office of State Secretary, Victoria was in breach of the rules of the Union;

(b)        the acceptance by the returning officer, Michael Pryor, of the nomination of James Main Reid for the office of State Secretary, Victoria was in breach of the rules of the Union;

(c)        the rejection by the returning officer, Michael Pryor, of the nomination of Paul Wisniewski for the office of Assistant State Secretary (Metals and Engineering Members), Victoria was in breach of the rules of the Union;

(d)        the acceptance by the returning officer, Michael Pryor, of the nomination of Doug McMinimee for the office of Assistant State Secretary (Metals and Engineering Members), Victoria was in breach of the rules of the Union; and

(e)        the acceptance by the returning officer, Michael Pryor, of the nomination of Ray Campbell for the office of Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria was in breach of the rules of the Union.

2.         The acceptance by the returning officer, Michael Pryor, of the nomination of Paul
            Wisniewski for the office of State Secretary, Victoria is void and of no effect.

3.         The acceptance by the returning officer, Michael Pryor, of the nomination of James
            Main Reid for the office of State Secretary, Victoria is void and of no effect.

4.         The rejection by the returning officer, Michael Pryor, of the nomination of Paul
            Wisniewski for the office of Assistant State Secretary (Metals and Engineering
            Members), Victoria is void and of no effect.

5.         The acceptance by the returning officer, Michael Pryor, of the nomination of Doug
            McMinimee for the office of Assistant State Secretary (Metals and Engineering
            Members), Victoria is void and of no effect.

6.         The acceptance by the returning officer, Michael Pryor, of the nomination of Ray
            Campbell for the office of Regional Secretary/Assistant State Secretary, Food and
            Confectionery Division, Victoria is void and of no effect.

THE COURT ORDERS THAT:

7.         The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of State Secretary, Victoria on the
            basis that:

(a)        Paul Wisniewski is not a candidate for that office; and

(b)        James Main Reid is not a candidate for that office.

8.         The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of Assistant State Secretary (Metals
            and Engineering Members), Victoria on the basis that:

(a)        Paul Wisniewski is a candidate for that office; and

(b)        Doug McMinimee is not a candidate for that office.

9.         The Industrial Registrar make arrangements for the returning officers to take the
            uncompleted steps in the election for the office of Regional Secretary/Assistant State
            Secretary, Food and Confectionery Division, Victoria on the basis that Ray Campbell
            is not a candidate for that office.

10.       Liberty to apply be reserved, on 48 hours’ notice in writing to each other party.

11.       Otherwise, the inquiry be terminated.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The nature of the proceedings

1                     The rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (‘the Union’) contain a rule designated as r 5.5, which provides (subject to exceptions not relevant to these proceedings) that:

‘no member shall be entitled to nominate in any election for more than one position which would entitle the successful candidate to sit on the National Conference.’

2                     Elections for a large number of offices in the Union are in the process of being conducted.  Several candidates have lodged nominations for more than one office, each of which would entitle the successful candidate to sit on the Union’s National Conference.  The returning officers have accepted the nomination of each of those candidates that was lodged first in time and have rejected the later nomination (or, in one case, nominations) of each of those candidates on the basis that they are invalid, because of r 5.5.  The returning officers did not treat the nominations as being defective, and did not give each of the candidates concerned a seven-day period in which to remedy the defects.  In addition, some of the candidates sent to the returning officers withdrawals of one or more of their nominations, in an effort to validate their preferred nominations.  When they made their decision that the first nominations in time should prevail, the returning officers refused to accept the withdrawals of the first in time nominations.  These reasons for judgment concern the issues arising from the conduct of the elections in this manner. 

The facts

3                     The Union is an organisation of employees, registered pursuant to the statutory provisions now found in Sch 1 to the Workplace Relations Act 1996 (Cth) (‘the WR Act’).  In accordance with those provisions, its elections are being conducted by the Australian Electoral Commission.  An officer of that Commission, Brian Peisley, who is based in Sydney, is the returning officer for the elections for the Union’s national offices.  Michael Pryor, another officer of the Australian Electoral Commission, based in Melbourne, is the returning officer for the elections for the offices in the Victorian Branch of the Union.  Because of the timetable of the elections and the need to coordinate elections in various State branches with the elections for national officers, it has been necessary to conduct these proceedings, and to resolve them, with some expedition.  I gave orders on Friday, 16 March 2007, to enable ballot papers to be printed, but reserved my reasons for judgment.  These reasons for judgment are the reasons for which I made those orders.

4                     Before the Court are three applications for inquiries into some of the elections, instituted pursuant to s 200 of Sch 1 to the WR Act by three members of the Union.  The applicant in proceeding no VID 173 of 2007 is James Main Reid.  Mr Reid’s nomination for the office of State Secretary, Victoria was received by Mr Pryor at 3.00 pm on 31 January 2007, and his nomination for National Secretary was received by Mr Peisley at 3.45 pm on 31 January 2007.  Mr Reid’s application is for an inquiry into the elections for the offices of State Secretary, Victoria and National Secretary.  The applicant in proceeding no VID 174 of 2007 is Paul Wisniewski.  Mr Wisniewski was nominated for four positions.  His nomination for State Secretary, Victoria was received by Mr Pryor at 2.18 pm on 16 January 2007; his nomination for National Secretary was received by Mr Peisley at 9.55 am on 31 January 2007; his nomination for Assistant National Secretary (Metals and Engineering Members) was received by Mr Peisley at 2.24 pm on 4 February 2007; and his nomination for Assistant State Secretary (Metals and Engineering Members), Victoria was received by Mr Pryor at 3.11 pm on 4 February 2007.  Mr Wisniewski’s application is for an inquiry into the elections for those four offices.  The applicant in the third proceeding, no VID 190 of 2007, Michael Joseph Nicolaides, is not a candidate for any of the relevant offices.  His application seeks inquiries into the elections for: State Secretary, Victoria; Assistant State Secretary (Metals and Engineering Members), Victoria; and Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria.  Mr Nicolaides alleges that irregularities have happened in relation to the nominations of two persons.  Doug McMinimee was nominated for Assistant State Secretary (Metals and Engineering Members), Victoria and for Assistant National Secretary (Metals and Engineering Members).  Mr Pryor received the former nomination at 1.30 pm on 4 February 2007 and Mr Peisley the latter at 2.24 pm on the same day.  Ray Campbell was nominated for Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria and for National Secretary.  Mr Pryor received the former nomination at 8.47 am on 16 January 2007 and Mr Peisley received the latter at 2.27 pm on 4 February 2007.

5                     The closing time for nominations was 12.00 noon on 5 February 2007.  Shortly afterwards, some candidates wrote letters to the returning officers, drawing their attention to r 5.5, of which the returning officers had not been aware.  The returning officers resolved to seek legal advice.  While the returning officers were awaiting legal advice, the candidates who had been nominated for offices caught by r 5.5 also received information to the effect that there might be problems with their nominations as a consequence of r 5.5.  On 23 February 2007, Mr Pryor received a letter from Mr Reid, withdrawing his nomination for State Secretary, Victoria; two letters from Mr Wisniewski, withdrawing his nomination for State Secretary, Victoria and his nomination for Assistant National Secretary (Metals and Engineering Members); a letter from Mr McMinimee, withdrawing his nomination for Assistant State Secretary (Metals and Engineering Members), Victoria; and a letter from Mr Campbell, withdrawing his nomination for National Secretary.  Mr Pryor forwarded to Mr Peisley by facsimile transmission the letters from Mr Wisniewski and Mr Reid on the same day.

6                     After receiving and considering legal advice, the returning officers contacted Mr Wisniewski and Mr McMinimee and indicated that, if those candidates so desired, the returning officers would not accept the withdrawals of their first in time nominations, on the basis that the returning officers had formed the view that the first in time nominations were the only valid ones.  Mr Peisley advised Mr Campbell that he would reject his nomination for National Secretary, and that Mr Pryor would accept his nomination for Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria.

7                     The returning officers rejected both nominations of Mr Reid on the basis that he already held yet another office entitling him to sit on the National Conference.  Mr Peisley advised Mr Reid to this effect by telephone.  In consequence of discussions between the Court, counsel for Mr Reid and counsel for the returning officers on the first return of proceeding no VID173 of 2007 on 6 March 2007, the returning officers have now accepted that the decisions to reject the nominations of Mr Reid on this basis amounted to irregularities in the conduct of the respective elections for the offices of State Secretary, Victoria and National Secretary.  They have rescinded the decisions to reject both Mr Reid’s nominations.  Instead, they have decided to accept the first in time nomination of Mr Reid, for the office of State Secretary, Victoria, and to reject his nomination for National Secretary on the basis that it is invalid because of the earlier nomination for State Secretary, Victoria.  No party to these proceedings has taken objection to the rescission of the decisions of the returning officers to reject both nominations of Mr Reid on the basis that he already held an office entitling him to sit on the National Conference.  It appears to me to be clear that r 5.5 does not disentitle Mr Reid to be nominated in the current elections for an office entitling him to sit on the National Conference on that basis.  If he should succeed in being elected to such a position, on taking office in that position Mr Reid would be taken to have resigned from the office he already holds that entitles him to sit on the National Conference.  This would be an application of the doctrine of incompatible offices, discussed further in [19] below.  If r 5.5 did have the effect of preventing Mr Reid from nominating in the current elections for any office that would entitle him to sit on the National Conference if he were elected to it, on the basis that he already holds such an office, it is very likely that the rule would be found to contravene s 142(1)(c) of Sch 1 to the WR Act.  The rule would be held to impose on members conditions, obligations or restrictions that would be oppressive, unreasonable or unjust.  A decision to this effect has been made by the Industrial Registrar, in refusing to certify an amendment to the Union’s rules that would have inserted a rule expressly having the effect of disentitling anyone holding an office entitling them to sit on the National Conference from nominating for another such office without resigning the office already held.

8                     As the returning officers have rescinded their decisions to reject both nominations of Mr Reid on the ground that he already holds an office entitling him to sit on the National Conference, those rejection decisions need not concern me further in these proceedings.  I am only concerned with the decisions to reject Mr Reid’s nomination for National Secretary, and to accept his nomination for State Secretary, Victoria, on the basis that the nomination Mr Pryor accepted was lodged first in time, and he decided not to accept its withdrawal by Mr Reid.  Consistently with the returning officers’ view that the nominations lodged first in time were the only valid ones, and with their decisions not to accept the withdrawals of those nominations, the returning officers rejected the nominations of Mr Wisniewski for all the offices for which he was nominated, except State Secretary, Victoria.  Mr Peisley rejected the nomination of Mr McMinimee for Assistant National Secretary (Metals and Engineering Members) and Mr Pryor accepted his nomination for Assistant State Secretary (Metals and Engineering Members), Victoria.  Mr Pryor also accepted the nomination of Mr Campbell for the office of Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria, and Mr Peisley rejected his nomination for National Secretary.  Because the nomination of Mr Campbell for National Secretary was rejected on the basis that his other nomination was lodged first, Mr Peisley apparently did not find it necessary to consider whether to accept the withdrawal of the nomination for National Secretary, which he received on 23 February 2007.

9                     In consequence of the returning officers’ decisions, Mr Peisley took the view that there was only one candidate for each of the offices of National Secretary and Assistant National Secretary (Metals and Engineering Members).  Each of those candidates was declared elected.  The returning officers began making preparations to conduct the necessary ballots for other offices.  The ballot papers were due to be printed on 9 March 2007, but the returning officers postponed this step until 16 March 2007, pending resolution of these proceedings.

The effect of rule 5.5

10                  Although it uses the word ‘election’ in the singular, it seems very clear that r 5.5 is intended to apply to cases in which elections for a number of different offices within the Union are conducted concurrently, a practice which is apparently common in the Union.  Because of the use in the media of the word ‘election’ to refer to a general election, ie the concurrent conduct of elections in various constituencies to return members to Parliament, the word ‘election’ has come to be used as signifying the concurrent conduct of a number of elections for different positions.  Counsel for Mr Reid and Mr Wisniewski attempted to argue that r 5.5 was applicable only to those elections in which more than one position is available (of which state organisers in a particular State branch may be an example).  Such a construction would certainly give r 5.5 some work to do, but it would deprive the rule of the effect it is obviously intended to have.  The rule is clearly designed to facilitate the conduct of concurrent elections for a range of offices in the Union.  If members were able to nominate for, and potentially to be elected to, more than one office entitling them to sit on the National Conference, further elections would be necessary to fill the vacancies created by each of those members either choosing the one position he or she would occupy, or by the operation of some legal principle, such as the doctrine of incompatible offices, imposing that choice on them.  Plainly, as a deliberative body, the National Conference could not have a person exercising more than one vote in its deliberations.  Once it is understood that this is the purpose of r 5.5, effect can be given to it without undue strain on the language, by construing the word ‘election’ as applicable to the concurrent conduct of elections for various offices. 

11                  Three competing contentions were advanced as to the effect of r 5.5.  As I have said, the returning officers adopted the ‘first in time’ view, namely that it is the first nomination received from a person that is effective, all subsequent nominations being rendered ineffective by the lodging of the first nomination.  Counsel for the Union and counsel for Mr Nicolaides (who also appeared by leave for various other candidates for the relevant offices, including those declared elected unopposed to the offices to which I have referred in [9]) contended for a ‘nothing valid’ position, namely that if there were multiple nominations of one person for offices caught by r 5.5, none of those nominations could be valid.  By way of amendment to their applications, made at the hearing of the inquiries on 14 March 2007, Mr Reid and Mr Wisniewski argued for a ‘last in time’ position, namely that by lodging a second or subsequent nomination, necessarily inconsistent with the first because of r 5.5, the candidate was taken to have elected to have treated the earlier nomination as withdrawn, in favour of the second or subsequent.  The consequence of this view, according to counsel for Mr Reid and Mr Wisniewski, was that Mr Reid should be treated as a candidate for the office of National Secretary, and Mr Wisniewski as a candidate for Assistant State Secretary (Metals and Engineering Members), Victoria, on the basis that their earlier nominations had been withdrawn or surrendered impliedly by the lodging of the later nominations.  It is necessary to examine each of these contentions, for the purpose of determining which is correct, as they appear to exhaust the logical possibilities for the effect of r 5.5.

12                  The ‘first in time’ view is said to find some support in Re Thomas and South Australian Branch of the Australian Workers’ Union (unreported, Federal Court of Australia, Keely J, 11 June 1992).  The relevant rule of the organisation there in question was r 74(g).  It provided that no member should be eligible to nominate for or hold at any one time more than one salaried office.  There was also a provision that candidates, with the consent of their nominators, might withdraw their nominations for any positions.  In the course of his reasons for judgment, Keely J said:

‘I am not prepared to accept the applicant’s submission that each of the nominations lodged (i.e. before any withdrawals) was necessarily contrary to r.74(g).  However I accept that each of any multiple nominations was contrary to r.74(g) if those multiple nominations were either lodged by the candidate at the same time or lodged in such a way that the returning officer is unable to determine which one (if any) was lodged first; in each of those two sets of circumstances I accept that all of the nominations so lodged are contrary to r.74(g).’

13                  His Honour then rejected the submission that a candidate could lodge as many nominations as he or she liked provided that sufficient of them were withdrawn to comply with the substantive part of r 74(g) by the time the returning officer considered the final nominations, after the period for nominations had closed.  His Honour took the view that the submission flew in the face of the plain meaning of r 74(g), the purpose of which was to prevent multiple nominations.  In his Honour’s view, the provision of the rules of the organisation permitting candidates to withdraw their nominations was not intended to give a candidate who had lodged multiple nominations in breach of r 74(g) an opportunity to overcome the effect of the breach by withdrawing one or some.

14                  In the paragraph I have quoted from Thomas, it is not clear that Keely J was of the view that, if it were possible for the returning officer to determine which of a candidate’s nominations had been lodged first in time, then the first in time should prevail.  All that his Honour said was that, only if nominations were lodged simultaneously, or it was impossible to determine which of them had been lodged first, could it be said that all were invalid.  It is true that there is some attraction in the simplicity of the reasoning that it is only the existence of the nomination that is first in time that brings about any conflict between a rule such as r 5.5 and any nomination subsequently received by a returning officer.  This reasoning suggests that the second nomination does not invalidate the first, but it is the presence of the first that causes the second to be invalid.  It is not necessarily reasoning that is supported by authority.

15                  Counsel for the Union, whose submissions on this point were adopted by counsel for Mr Nicolaides and other candidates for whom she also appeared by leave, suggested that the ‘nothing valid’ contention found support in two authorities.  In Campbell v Bogar (unreported, Full Court of the Industrial Relations Court of Australia, Ryan, Moore and North JJ, 3 July 1996), the Court referred to what is in effect the current r 5.5 of the Union’s rules, which was then numbered as r 3(7).  The Court’s examination of this rule was in the context of transitional rules that were designed to facilitate the amalgamation of earlier registered organisations to become the Union.  At issue was the question whether the office of Federal Secretary, Food and Confectionery Division, was a full-time office.  The Court’s examination of r 3(7) was in the context of determining this question.  In the course of setting out its reasoning as to the relationship between provisions of a transitional rule and provisions that were of more permanent duration, the Court said: “the combined effect of r 3(7) [and other provisions of rule 3] is to prohibit a person nominating for the office of both Regional Secretary and Assistant National Secretary Food and Confectionery Division.”  This was simply a statement of the effect of r 3(7), in conjunction with other provisions of the Union’s rules.  The Court did not deal at all with the consequences of a person nominating for more than one office, in contravention of r 3(7). 

16                  Counsel for the Union also argued that the ‘nothing valid’ view drew support from the judgment of North J in Re Bogar and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Food and Confectionery Division (unreported, Federal Court of Australia, North J, 28 August 1998).  In that case, his Honour dealt with the provisions of what appear by then to have become r 3(8) of the rules of the Union, which were the same as the relevant provisions of the current r 5.5.  It appeared that one candidate had been nominated for both Tasmanian Regional Secretary and Federal Secretary of the Food and Confectionery Division of the Union.  The candidate had been declared elected unopposed as Tasmanian Regional Secretary.  The inquiry before North J was solely into the election for the office of Federal Secretary of the Food and Confectionery Division.  The question was whether the candidate’s nomination for that office should have been accepted.  In the course of his reasons for judgment, North J referred to the judgment of the Full Court of the Industrial Relations Court of Australia in the earlier Bogar case, quoting substantial passages, including the passage I have quoted above.  His Honour went on to say:

‘The decision of the Full Court is clear authority that r 3(8) prohibits a person nominating for the offices of Federal Secretary of the Division and Regional Secretary of the Division outside the transitional period.’

17                  North J then held that the nomination of the relevant candidate for the position of Federal Secretary of the Food and Confectionery Division had been accepted in breach of r 3(8), and that this was an irregularity in the election.  His Honour does not appear to have made any finding as to the order in which the two nominations had been received by the returning officer.  It is not clear that the conclusion was based either on the assumption that the ‘first in time’ view should prevail, or that the ‘nothing valid’ view was correct.  His Honour did not attempt to deal with the question of the validity of the candidate’s election to the position of Tasmanian Regional Secretary.  In other words, what his Honour said simply restated the effect of what is now r 5.5, but did not deal in any way with the consequences of a contravention of that rule, other than to hold that the acceptance of the one nomination relevant to the proceeding before him amounted to an irregularity.  The result is explicable on the basis that it was unclear whether there was any difference in the time of lodging of the two nominations but, having been declared elected as Tasmanian Regional Secretary, the candidate must have been taken to have elected to treat the nomination for that office as valid, which necessitated that the nomination for Federal Secretary of the Food and Confectionery Division was invalid.

18                  It can be seen that the ‘nothing valid’ argument gains no real support from either Bogar judgment.  Each did nothing more than state the effect of what is now r 5.5.  No conclusion can be drawn that, in all circumstances, every nomination received for an office to which r 5.5 applies will be invalid.  The contention, put by counsel for the Union, that the Union has organised its affairs on the basis of this interpretation, which has become settled, cannot be accepted.  It is an unattractive contention, because rules of organisations ought to be construed in favour of eligibility to stand for election, if that be possible.  This approach is consonant with all of the learning relating to the participation by members in the conduct of the affairs of an organisation, and the democratic control of organisations, both ends to which the legislation aspires in its terms.  There is no particular reason why every one of multiple nominations should be treated as invalid, in circumstances in which it is possible to identify one that would be the cause of the others being in contravention of r 5.5.  If anything, at least where the order in which nominations have been lodged can be determined, the ‘nothing valid’ argument is inconsistent with the assumption that appears to have underlain what Keely J said in Thomas, and the result in the second Bogar case. 

19                  The ‘last in time’ argument is novel.  It has not been considered expressly by any court previously.  It is based on the principle of surrender by implication.  That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 – 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 – 413.  In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules.  The principle operates by implication of law, rather than by implied intention.  The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position.  The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation.  The principle of implied surrender is analysed in Cholosznecki at [29] – [34].  In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur.  He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination. 

20                  Having considered the arguments and the available authorities, I am of the view that the ‘last in time’ argument is correct.  The doctrine of incompatible offices is but an example of the broader principle of surrender by implication.  This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488.  The principle itself is related to the common law doctrine of election between inconsistent rights.  This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 – 264, where his Honour referred to Tropical Traders Ltd v Goonan (1964) 111 CLR 41 and Sargent v ASL Developments Ltd (1974) 131 CLR 634.  In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said:

‘not that election is a matter of intention.  It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other’.

This view was followed by Stephen J in Sargent at 646.  Also in Sargent, at 656, Mason J said:

‘in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.’

21                  There is therefore no reason not to apply the principle of implied surrender and, to the extent necessary, its related principles about election between inconsistent rights, beyond the acquisition of another office, or of membership of another branch, to matters such as the lodging of nominations in circumstances where two or more nominations cannot stand alongside each other, because of the existence of a rule such as r 5.5.  Indeed, such an extension could provide the key to the situation to which Keely J alluded in Thomas, namely that multiple nominations arrive at the same time, or in circumstances in which it is impossible for the returning officer to determine which arrived first.  In such cases, the returning officer might require the candidate concerned to elect expressly as to which of the nominations he or she wished to retain.  In cases such as the present, when it is possible to determine in which order the nominations were lodged, the law attaches to the lodging of a later nomination the consequence that the candidate concerned can no longer rely on the former.  The later nomination is an implied withdrawal of the earlier nomination, not by way of implied intention to withdraw, but by way of imputed intention to withdraw.

22                  It is no answer to this line of argument to say that, at the time when it arrives, the later nomination is invalid because of the former.  As Northrop J (Evatt J agreeing, Smithers J dissenting on this point) made clear in Egan at 262, the inconsistent assumption of rights does not have to be valid in order to constitute an implied surrender of the original right.  In that case, the holder of the office of National Assistant Secretary of an organisation accepted appointment to the office of National Secretary-Treasurer, on the assumption that there was a vacancy in the latter office.  The Court held that in law there was no vacancy in the office of National Secretary-Treasurer, but the officer concerned was nonetheless taken to have resigned impliedly from his position as National Assistant Secretary.  In any event, in a case such as the present, there is no particular ground for holding that a second or subsequent nomination is invalid.  When it is received, all that can be said is that there have been two acts of the candidate which cannot stand together, because of the operation of r 5.5.  As a logical proposition, it is equally open to say that the second nomination invalidates the first as it is to say that the first nomination invalidates the second.  I have come to the conclusion that the principle of implied surrender requires that the law take the view that it is the first nomination that is surrendered impliedly by the lodging of the second.  The first becomes invalid, not the second.  The adoption of such a proposition does not offend on policy grounds.  Policy is blind to the relative importance of the two or more positions for which nominations have been received, and to the personalities of those who have been nominated.  No greater inconvenience is caused to a returning officer who must determine, at the date of closure of nominations, which of the nominations is the one that can be treated as valid.  ‘Last in time’ is a simple rule to apply.

23                  Keely J in Thomas did not consider any of these issues.  His Honour’s reasoning is sparse, to the point where it is not even possible to assume that his Honour did adopt the ‘first in time’ option, from the fact that his Honour made reference to the problem of simultaneous receipt of nominations, or receipt of nominations in circumstances in which it is unclear in which order they have been received.  In my view, if it had been necessary, his Honour might well have taken the view that the principle of implied surrender operated, so that the last nomination received would prevail, and that the problem of simultaneous nominations would be resolved by applying the doctrine of election between inconsistent rights.  As I have said, the result in the second Bogar case is explicable on the basis that North J was dealing only with one of the two nominations, there was no evidence of the timing of the two nominations, and the case may simply have been one of the candidate’s election between inconsistent rights.  No authority stands in the way of the adoption of the ‘last in time’ view.  The authorities to which I have referred about previous applications of the principle of implied surrender support the argument that it applies to a situation such as that of multiple nominations, when only one can be valid.  I accept that argument.  It remains to apply the principle to the facts of the case.

The application of rule 5.5

24                  The adoption of the view that the last nomination received from each of the relevant candidates is taken to involve an implied withdrawal of all of the previous inconsistent nominations leads to the conclusion that the elections should proceed on the basis that: Mr Reid is a candidate for National Secretary, but not for State Secretary, Victoria; Mr Wisniewski is a candidate for Assistant State Secretary (Metals and Engineering Members), Victoria but not for any of the other three positions for which he was nominated; and Mr McMinimee is a candidate for Assistant National Secretary (Metals and Engineering Members) and not for Assistant State Secretary (Metals and Engineering Members), Victoria.  But for one further factual matter, Mr Campbell would have to be treated as a candidate for National Secretary, but not for Regional Secretary/Assistant State Secretary, Food and Confectionary Division, Victoria.

The withdrawal of Mr Campbell’s nomination for National Secretary

25                  On 22 February 2007, Mr Campbell sent by facsimile transmission a hand-written letter, dated ‘Thursday 22 5.23 pm’, addressed to Mr Pryor, and apparently received at 9.26 am on the following morning.  The letter simply says:

‘I wish to withdraw my nomination for the Position of NATIONAL SECRETARY of the A.M.W.U.’

It is apparently signed by Mr Campbell.  There is nothing unequivocal about it. 

26                  Mr Peisley decided that it was unnecessary to accept the withdrawal of Mr Campbell’s nomination for National Secretary, because he had already decided not to accept that nomination, on the basis that it was received second in time.  The returning officers did decide not to accept the withdrawals of nominations forwarded by Mr Reid, Mr Wisniewski and Mr McMinimee.  Their decisions were made on the basis that the withdrawals were submitted before the returning officers had received legal advice and made a decision about the validity of the second and subsequent nominations.  They were being generous to those three candidates, because of the uncertainty about the consequences of more than one nomination and the effect of r 5.5.  It is unnecessary for me to decide whether the returning officers had power not to accept the withdrawals of the nominations of those three candidates because, on the view I take, the relevant nominations ought to have been rejected in any event.  I tend to take the view that the returning officers had no power to decline to accept the withdrawals of nominations.  Counsel for the returning officers was unable to point to any possible source of such power, whether in the Union’s rules or in the WR Act.  He made reference to s 193(1)(b)(i) in Sch 1 to the WR Act, which empowers an electoral official to take such action, and give such directions, as he or she considers necessary to ensure that no irregularities occur in or in relation to an election.  The withdrawal of a nomination, even in a state of uncertainty as to whether the nomination or another nomination is invalid, does not amount to an irregularity.  The returning officers were obliged to accept any withdrawal of nomination they received, provided that it came from the candidate concerned, and to give effect to it as a withdrawal of any valid nomination.  Mr Campbell’s withdrawal of his nomination for National Secretary was effective.  At least once the withdrawal was received by Mr Peisley, Mr Campbell was no longer a candidate for the office of National Secretary.

27                  The withdrawal of his nomination for National Secretary did not lead to the result that Mr Campbell’s earlier nomination was revived.  That nomination was invalid, as a result of the application of the principle of implied surrender, at the time when his nomination for National Secretary arrived.  Having once been invalid, it could not be revived by the withdrawal of the nomination that caused its invalidity.  The consequence is that Mr Campbell is no longer a candidate for the office of Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria, or for the office of National Secretary, in the elections currently being conducted.

Other issues

28                  Having taken the view that I have as to the validity of the last in time nominations of the candidates concerned, I find it unnecessary to deal with the question whether the invalidity of the other nominations, as a consequence of the application of r 5.5, was such as to amount to a ‘defect’ for the purposes of the application of r 4.6 of the Union’s rules.  That rule is intended to conform with the requirement, now found in s 143(1)(c) of Sch 1 to the WR Act, that the rules of an organisation:

‘must provide that, if the returning officer conducting an election finds a nomination to be defective, the returning officer must, before rejecting the nomination, notify the person concerned of the defect and, where practicable, give the person the opportunity of remedying the defect within such period as is applicable under the rules, which must, where practicable, be not less than seven days after the person is notified.’

On the question of what it means for a nomination to be defective, there is a conflict of authority between Australasian Meat Industry Employees Union v Troja (unreported, Federal Court of Australia, Keely J, 19 July 1988) on the one hand and Wilcox J in Hickson v Australian Electoral Commission (1997) 76 IR 127 and the Full Court in Australian Electoral Commission v Hickson (1997) 76 IR 399 on the other.  The conflict is essentially over whether, in a case in which the flaw in a nomination is such that it could not be remedied, the nomination must nevertheless be considered defective, and the requisite notice be given.  In the present case, the returning officers considered that nothing could be done to validate the invalid nominations, and that they were therefore not defective for the purposes of r 4.6.

29                  There are difficulties about both views.  That of Keely J leads to difficult problems of definition, and possibly greater likelihood of litigation.  The views expressed in the Hickson cases appear to take little or no account of the provision in s 143(5) of Sch 1 to the WR Act, which excludes from the reference in s 143(1)(c) to a nomination being defective the situation in which the nomination is defective “because the person is not qualified to hold the office to which the nomination relates”.  In addition, Hickson concerned a nomination that was manifestly defective, in that one of the nominators turned out to be not capable of being a nominator, by reason of being unfinancial.  Such a defect is manifestly capable of correction, either by the payment of arrears of dues, or by the substitution of another financial member.  Interestingly, although Goldberg J in  Re Wall; Re inquiry relating to an election for an office in the Ansett Pilots Association [2000] FCA 1568 (2000) 102 IR 379 at [19] – [29], said that he agreed with the view of Wilcox J in Hickson, and that nothing justified drawing a distinction between a defective nomination and one that is fundamentally flawed, his Honour stated his conclusion in terms that the relevant nomination was to be considered as defective and capable of being remedied, rather than being a nullity.  In the circumstances of the present case, I do not have to decide these issues and I prefer to express no concluded view about them.

Appropriate orders

30                  As a result of reaching the conclusions I have expressed as to the validity of the last in time nominations, I made declarations identifying the various irregularities that have occurred in the elections.  Those are true declarations of right, made in the exercise of the power granted to the Court by s 21(1) of the Federal Court of Australia Act 1976 (Cth), because they resolve a controversy between the parties about the validity of nominations, and lay down the basis on which the returning officers can act in the continued conduct of the elections.  The irregularities are the acceptance of the nominations of: Mr Reid for State Secretary, Victoria; Mr Wisniewski for State Secretary, Victoria; Mr McMinimee for Assistant State Secretary (Metals and Engineering Members), Victoria; and Mr Campbell for Regional Secretary/Assistant State Secretary, Food and Confectionery Division, Victoria. 

31                  Section 206(5) of Sch 1 to the WR Act provides:

‘The Court must not declare an election, or any step taken in relation to an election, to be void, or declare that a person was not elected, unless the Court is of the opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected, or may be affected, by irregularities.’

It is almost axiomatic that the continuance of an election in which a person not entitled to be a candidate is treated as a candidate, or a person entitled to be a candidate is not treated as a candidate, may affect the result of the election.  It is unnecessary to look at the question whether circumstances exist that give rise to a likelihood that similar irregularities may have happened or may happen.  The absence of the name of a proper candidate from the ballot papers, and the presence of the name of a candidate whose name should not be present on the ballot papers, have the potential to falsify the result of the election.  The former prevents those voters who would have chosen to vote in favour of the absent but entitled candidate from exercising their right to vote.  The latter is likely to cause some voters to throw away their votes on a candidate for whom they do not have a right to vote.  If a sufficient number should do so, that candidate may be elected, and the result of the election would be thereby falsified.  The only way to ensure that the result of the election is not affected is to ensure that only the names of candidates entitled to be nominated for particular offices, and the names of all candidates entitled to be nominated for particular offices, appear on the ballot papers in respect of those offices.

32                  For this reason, I have exercised the power conferred on the Court by s 206(4)(a) of Sch 1 to the WR Act to declare void various steps in the subject elections.  I have declared void the rejection of the nominations of: Mr Reid for National Secretary; Mr Wisniewski for Assistant State Secretary (Metals and Engineering Members), Victoria; Mr McMinimee for Assistant National Secretary (Metals and Engineering Members); and Mr Campbell for National Secretary.  It is not necessary to make any order in relation to the rejection of the nominations of Mr Wisniewski for the offices of National Secretary and Assistant National Secretary (Metals and Engineering Members).  On any view, the rejection of these nominations was in accordance with the Union’s rules.  Because there is properly more than one nomination for each of the offices of National Secretary and Assistant National Secretary (Metals and Engineering Members), I have also declared that the declaration of the result of the election for each of those offices is void.  Finally, I have declared that Mr Campbell withdrew his nomination for the office of National Secretary.  Because of that withdrawal, he is no longer entitled to be a candidate.  Again, this is an exercise of the power to make a declaration of right, rather than an exercise of the specific power to declare steps in an election void.  It enables the election for National Secretary to continue on a proper footing.

33                  The consequence of making the declarations that various steps already taken in the elections are void is that it is necessary to make orders pursuant to the power granted by         s 206(4)(c) of Sch 1 to the WR Act for the uncompleted steps in the elections to be taken.  I have made such orders, including orders that those steps be taken on specific bases (that named persons are, or are not, candidates for particular offices).  I have taken the power to extend to the making of such specific orders.  The orders appear in a somewhat peculiar form, in that they are by way of directions to the Industrial Registrar.  This is because the power in s 206(4)(c) is conferred on the Court in that form.  The underlying reason is that the Australian Electoral Commission, and thus the returning officers, perform their functions in relation to the elections in consequence of an arrangement made with the Australian Electoral Commission by the Industrial Registrar, in the exercise of the power conferred on the latter by s 189(3) of Sch 1 to the WR Act.  Although the Industrial Registrar is not a party to any of these proceedings, and the returning officers are, by virtue of having sought and been granted leave to appear, s 206(4)(c) proceeds on the assumption that it is necessary to make orders for further arrangements to be made by the Industrial Registrar, rather than orders that the returning officers take the uncompleted steps in the elections.

34                  I have therefore ordered that the Industrial Registrar make arrangements for the completion of the uncompleted steps in the elections by conducting a ballot for the office of National Secretary, in which Mr Reid is a candidate, but Mr Campbell is not, and conducting a ballot for the office of Assistant National Secretary (Metals and Engineering Members), in which Mr McMinimee is a candidate.  Similarly, I have made orders that will ensure that the ballot that will take place in any event for the office of Assistant State Secretary (Metals and Engineering Members), Victoria must include Mr Wisniewski as a candidate.

35                  Apart from reserving liberty to apply, the only other orders I have made are orders terminating each of the inquiries.  The orders are by no means simple, because I have taken the view that I can only make orders relating to the elections the subject of each specific proceeding.  There is therefore no single one of the three proceedings in which a complete set of the orders has been made.  In addition, there is repetition, with some identical orders being made in more than one proceeding.  Each inquiry is a separate proceeding, with a separate applicant, so that I have taken the view that each applicant is entitled to have made such orders as can be made in his inquiry (although not necessarily the orders sought by him), even though identical orders may be made in one or both of the other proceedings.  Because I have found in each inquiry that an irregularity has occurred in relation to at least some of the relevant elections, although not necessarily the irregularity that Mr Nicolaides was seeking to have me find in relation to any of the elections the subject of proceeding no VID190 of 2007, it appears that I have no power to grant a certificate that any of the applicants acted reasonably in applying.  Section 325(1) of Sch 1 to the WR Act provides for the grant of such a certificate, which is relevant to an application pursuant to s 324 of Sch 1 to the WR Act for financial assistance, in a case in which the Court does not find that an irregularity happened.  Section 329 of Sch 1 to the WR Act also precludes me from making any order for costs against any party, unless the proceeding was instituted vexatiously or without reasonable cause.  I certainly could not find that any of these three inquiries was so instituted.

Associate:

Dated:         23 March 2007