FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Reid [2007] FCA 533  

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION  v JAMES MAIN REID, PAUL WISNIEWSKI & MICHAEL JOSEPH NICOLAIDES AND MICHAEL PRYOR & BRIAN PEISLEY

VID243 OF 2007

JESSUP J

13 APRIL 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed. 

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

REASONS FOR JUDGMENT

1                     On 16 March 2007 Gray J made orders, and on 23 March 2007 his Honour provided reasons for those orders, in an inquiry relating to elections for offices in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (‘the union’): see [2007] FCA 417.  The union now seeks leave, pursuant to s 342 of Schedule 1 to the Workplace Relations Act 1996 (Cth), to appeal from his Honour’s orders.  It has joined as respondents to its application the applicant below, James Main Reid, two of the other parties to the proceeding below, Paul Wisniewski and Michael Joseph Nicolaides, and the returning officers in relation to the elections in question.  Mr Reid and Mr Wisniewski were represented by Mr Niall, and opposed the application for leave.  Mr Nicolaides was represented by Ms Knowles, and supported the application for leave.  The returning officers were represented by Mr Barker, and filed an affidavit as to the practicalities of completing the elections, but made no submission on the substance of the matters before the court. 

2                     As explained in the reasons of Gray J, the issue which lead to the inquiry arose because, in a round of elections for offices in the union currently in progress, in a number of cases the returning officers have received nominations by particular members for more than one office.  The issue arises because rule 5.5 of the Rules of the union provides that, subject to certain presently irrelevant exceptions, “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.”  It is common ground that the operation of this provision has been activated in the circumstances of the present elections.  The dispute which was dealt with by his Honour concerns the construction of the provision, and specifically the practical consequences of a member of the union lodging, or purporting to lodge, a nomination for more than one position which would entitle him or her, if successful, to sit on the National Conference of the union. 

3                     As his Honour pointed out, there are three possible constructions of rule 5.5 in presently relevant respects.  First, it might be that the rule permits the first nomination in point of time to stand, and renders any subsequent nomination invalid (the “first in time” position).  Secondly, the rule may so operate that every nomination subsequent to the first effectively supplants every previous nomination, such that the most recent nomination should be regarded as the only valid one (the “last in time” position).  Thirdly, the rule may operate such that, whenever a candidate lodges, or has lodged, a nomination for more than one position which would entitle him or her to sit on the National Conference, all such nominations are thereby rendered invalid (the “nothing valid” position). 

4                     Gray J decided that the “last in time” position represented the correct construction of rule 5.5.  His Honour recognised that such a construction of the rule, or of any equivalent rules elsewhere, had not previously been adopted, or even suggested.  However, he considered what appears, with respect, to have been the full range of relevant authorities, and concluded that the particular question which he was obliged to determine had not been squarely confronted previously, and that there was nothing in the cases which would stand in the way of his adopting the construction which he took to be correct. 

5                     Before his Honour and again before me, the union contended for the “nothing valid” position.  The parties represented by Ms Knowles supported the union’s submission.  The parties represented by Mr Niall supported his Honour’s judgment.  No party contended primarily for the “first in time” position, but Ms Knowles would advance that position in the alternative to her preferred position (“nothing valid”), and, according to his Honour’s reasons, it was the position which the returning officers (after taking advice), took to be correct and by reference to which they proposed to conduct the elections before the making of his Honour’s orders. 

6                     I consider first the approach which I should take to the question of the grant of leave under s 342 of Schedule 1.  The matter was dealt with by Mansfield J in Larner v Curry (1998) 86 IR 117.  His Honour referred to the judgment of Foster J in Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Fohmsbee (1998) 80 IR 102 as having identified the following questions which should be asked on an occasion such as this:

(a)                Whether the decision in respect of which the leave to appeal was sought was attended with sufficient doubt or complexity, that is, whether there was some reasonably arguable point on the proposed appeal to warrant the granting of leave? and

(b)               Whether the issue in respect of which the leave to appeal was sought was of sufficient importance to warrant the grant of leave. 

Having set out those questions, Mansfield J continued:

Those considerations will commonly be relevant, but the discretion under s421 is unrestricted in its terms. It would be erroneous to identify and enumerate a list of matters which must exist before leave to appeal is given. In theory the category of relevant considerations can never be closed. Neither can it be said that any one or more factors must exist before the leave is given.

However, his Honour went on (at 118) to agree with Foster J that it would generally be appropriate to have regard to the nature of the issues sought to be raised so as to determine whether they had a general significance beyond the particular parties, and whether, in respect of those issues, there was some reasonably arguable matter to be addressed. 

7                     In Larner v Curry Mansfield J referred also to the circumstances lying behind the enactment of the legislative precursor to s 342.  Those circumstances were explained by Wilcox J in Hickson v Australian Electoral Commission (1997) 76 IR 127, 137.  Until 1996, there was no appeal from a judgment of the court in an election inquiry.  This had the result, apparently, of producing applications for prerogative relief under s 75(v) of the Constitution, founded on the basis that a Judge of the court was an officer of the Commonwealth.  Apparently to provide for some more conventional means to challenge judgments in election inquiries, but at the same time to maintain the general principle that such matters should normally be decided finally at first instance, the precursor of s 342 was enacted. 

8                     I agree, with respect, with Mansfield J that the two factors identified by Foster J in Fohmsbee would normally be within the range of circumstances relevant to the grant of leave under s 342.  I also agree with his Honour that there is nothing in the Schedule to indicate that the considerations relevant to the grant of leave should be regarded as confined to those two factors.  Given the legislative origins of s 342, I consider that the starting point would normally be a recognition that time and certainty are both central to the resolution of issues raised in election inquiries.  Notwithstanding the facility for leave available under s 342, I consider that the legislature recognises that, in the context of a union election which is in progress, there would often – perhaps usually – be little scope for the correction of every possibly erroneous decision by a Full Court. 

9                     Mr Pearce, who appeared with Mr Moore for the union, based his application for leave upon three main propositions.  First, he submitted that the judgment below was attended by sufficient doubt, or at least complexity, to warrant the granting of leave.  Secondly, he submitted that the question of the construction of rule 5.5 was of general importance across a broad range of elections in the union, and deserved the attention of a Full Court.  Thirdly, he submitted that Gray J’s decision was inconsistent with three previous judgments (in two cases, of the court, and in the third case, of the Industrial Relations Court of Australia).  He said that the need to resolve inconsistencies between the judgments of single members of the court was significant in the policy reasons lying behind the enactment of the precursor to s 342, and was a powerful consideration in favour of the grant of leave to appeal in the present case. 

10                  When dealing with Mr Pearce’s first proposition, particularly since I am sitting as a single Judge of the court, I should not attempt to determine whether Gray J was right or wrong.  That would be the function of the Full Court.  My function is only to consider whether there is sufficient doubt about his Honour’s judgment, or some complexity involved in the matter, to make it appropriate for the relevant issues to be considered on appeal.  However, when dealing with Mr Pearce’s third proposition, I consider that I am under an obligation to determine whether the alleged inconsistencies exist, or at least apparently exist.  That is because the fact of the inconsistencies – as distinct from some arguable doubt about the matter – is itself the circumstance on which Mr Pearce relies. 

11                  Having made that distinction between Mr Pearce’s first and third propositions, it must be said that it exists more in concept than in reality.  The propositions are closely aligned, since the very authorities upon which Mr Pearce relies to persuade me that there is some doubt about the correctness of his Honour’s judgment are the authorities with which he contends his Honour’s judgment is inconsistent.  Indeed, they were authorities to which, as demonstrated below, his Honour gave careful attention in his reasons.  I do not believe that I could hold in Mr Pearce’s favour on the matter of inconsistency without at the same time overreaching my proper role on the matter of sufficient doubt.  Subject to that self-imposed restraint, I propose to turn to the previous judgments upon which Mr Pearce relied, and I do so for the purposes of each of his first and third propositions. 

12                  The first judgement is Re Thomas, an unreported judgment of Keely J given on 11 June 1992.  Gray J dealt with Re Thomas as follows: 

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).’

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.

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.

Having read Re Thomas, I can, with respect, find nothing obviously wrong with the way that Gray J dealt with it.  Significantly, Re Thomas was, as Gray J pointed out, said to be authority for the “first in time” position.  That is not the position for which the union contends.  If there were a conflict between Re Thomas and the judgment below in the present case, that conflict would seem to be irrelevant to the position for which the union contends.  Put another way, I would not be inclined to regard the existence of Re Thomas as a persuasive justification for granting the union leave to appeal in the present case in order to advance an argument for the correctness of which Re Thomas is not authority. 

13                  Mr Pearce next referred to Campbell v Bogar, an unreported judgment of the Full Court of the Industrial Relations Court of Australia (VI 4720 of 1995).  That judgment was concerned with the union, and with the very rule which is now in contention (then numbered 3(7)).  Of that judgment, Gray J said:

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).

Nothing which Mr Pearce put to me has given me any reason to doubt the correctness of the above passage from the judgment of Gray J. 

14                  Mr Pearce placed particular emphasis upon the statement by the Full Court that the combined effect of certain sub-rules in rule 3, including rule 3(7), was “to prohibit a person nominating” for the two offices which were relevant in Campbell v Bogar.  Mr Pearce submitted that, by those words, the Full Court intended to convey the idea that every nomination was prohibited, and therefore invalid.  With respect, I do not consider it at all obvious that the Full Court had such a result in mind.  If I were to consider the matter for myself, I would be inclined to reach the same conclusion as his Honour below, namely, that the Full Court in Campbell v Bogar did not deal with the consequences of a person nominating for more than one office, in contravention of rule 3(7). 

15                  The third judgment to which Mr Pearce referred was that of North J in Re Bogar, an unreported judgment given ex tempore on 28 August 1998 (VG 166 of 1998).  Of that judgment, Gray J said:

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.’

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.

Re Bogar was an inquiry in relation to an election for the office of Federal Secretary.  The candidate had been declared elected unopposed as Regional Secretary.  The judgment of North J did not deal with the problems which arise when a returning officer holds, at the same time, nominations from the same person for two or more positions each of which would entitle the nominee, if successful, to sit on the National Conference.  The judgment was not, therefore, dispositive of the issue which came before Gray J.  

16                  The correct position, I consider, is that there were three previous judgments which said something about the effect of rules equivalent to rule 5.5, and which might have provided some measure of support for an argument one way or the other.  I am not persuaded that the judgment of Gray J was, or was even arguable, inconsistent with any of them.  On none of the previous occasions did the court have presented to it a problem of the kind which was before his Honour, namely what the returning officer should do if presented with nominations for multiple positions by the one candidate at, or at about, the same time.  I do not think that his Honour was confronted with authority that, if followed would have required the present inquiry to be determined different from the way it was in his Honour’s orders of 16 March 2007.

17                  Neither am I persuaded that the reasons of Gray J are attended by sufficient doubt to warrant the matter being considered on appeal.  The concept of “sufficient” doubt assumes, of course, a predisposition against appeals, as is manifestly the case under s 342 of the Schedule.  It is impossible to dissociate considerations of sufficiency from those other discretionary matters which underlie the legislative reluctance to allow appeals from judgments in election inquiries.  I shall return to those matters later.  At this stage I confine myself to the observation that his Honour’s reasons are not obviously, or even apparently, attended by doubt.

18                  On the other hand – and turning to Mr Pearce’s second propositions – I accept that rule 5.5 is an important provision in the union’s rules, and that its potential application across the many elections held by the union from time to time is wide.  I accept that the matters decided by Gray J were, to use the words of Foster J, of some complexity.  I recognise, as urged by Mr Pearce, that Gray J took an approach to the construction of rule 5.5 which may be described as novel.  I can see the force in the union’s argument that, in the circumstances, it should not be deprived of the opportunity of obtaining the authority of the Full Court with respect to the construction of rule 5.5.  These are all considerations which tend to support the granting of leave to appeal.  However, there are considerations cutting the other way, as urged upon me by Mr Niall, and it is to those that I shall next turn.

19                  Mr Niall submitted first that the premise behind s 342 of the Schedule is that there should be finality in a judgment of the court given in an election inquiry.  There should be no prolongation of disputation about such matters.  Secondly, he submitted that an application for an inquiry under s 200 of the Schedule may be made only by a member of a registered organisation – not by the organisation itself.  Although the union had been made a party to the present inquiry (consistently with the observations of Branson and Marshall JJ in Australian Electoral Commission v Hickson (1997) 76 IR 399, 419), its interest was not to be seen as that of a protagonist in a particular contest.  Thirdly, Mr Niall said that the union’s legitimate interest in the present inquiry was to see that the election process resulted in a clear and certain outcome, and that the efficient administration of the union was not jeopardised by the inquiry or its outcome.  He submitted that the union achieved precisely such an outcome from the judgment of Gray J, and that, it should not now be heard to contend that the outcome was not what it wanted in point of substance. 

20                  Mr Pearce submitted that there was one respect in which the judgment of Gray J was, or might be, detrimental to the union.  He submitted that the “last in time” interpretation meant that, in a situation in which dual or multiple nominations were received, it would always be necessary for the returning officer to ascertain which was most recently received.  In cases where nominations were lodged contemporaneously or almost so, that would inevitably lead to difficulties if not disputes.  By contrast, the “nothing valid” interpretation would simplify the returning officer’s task: he or she would be obliged to reject every nomination.  I accept the legitimacy of the union’s concerns in these respects, and do not propose to deal with the present application on the footing that the union has no proper interest, or nothing more than a purely formal interest, in the substantive outcome of the inquiry conducted by Gray J.  I also consider it to be a proper function of the union to participate in a proceeding in which the construction of a significant rule is at issue, particularly in circumstances where, or where the union contends that, the rule has previously been accorded a construction different from that proposed by some or all of the parties directly involved.  However, I likewise recognise the force in Mr Niall’s third submission that the union has participated in proceedings in which the construction of rule 5.5 has been at issue, has received a result which brings certainty into the returning officers’ obligations in the current elections, and does so in a timely way.

21                  I asked Mr Pearce whether, if the union did not agree with the construction given to rule 5.5 by Gray J, it could amend that rule so that, in future elections, it precisely identified the way in which it operated.  That would have the advantage not only of enabling the union to escape the regime which has resulted from the construction given to the rule in the present case but also of permitting the union to draw its own charter, as it were.  Mr Pearce said that it was the National Conference which had the power to amend the rules of the union, that that body met biennially, but that “postal votes” could be resorted to if required.  From the tenor of Mr Pearce’s responses to my questions in this regard, I was left the impression that, if the union were minded to amend rule 5.5, that could be done without undue inconvenience.  I approach the union’s present application on the footing, therefore, that Gray J has determined how rule 5.5 operates in the context of the present elections, but that the union should not be regarded as forever confined by his Honour’s construction.  If the rule as so construed is not what the union requires, it may be amended. 

22                  In the case of three of the offices to the elections for which the inquiry before Gray J related, the successful candidates would, if the procedure contemplated by the rules is followed, assume office on 1 July 2007.  In the case of the fourth office, the successful candidate would assume office on 1 September 2007.  Clearly the date of 1 July 2007 is important.  After I reserved judgment on 12 April 2007, the union’s solicitors sent my associate correspondence which explained what would happen if the results of the present elections are not declared before 1 July 2007.  The situation is complicated to a degree, not the least by the existence, it seems, of acting appointments to some of the positions in question.  In some cases, it seems that, under the rules, if the result of the election is declared after 1 July 2007, the successful candidate would not assume office until 1 January 2008.

23                  Neither should it be supposed that only the elections involved in the present inquiry stand to be affected by any delay resulting from these proceedings.  Because of the expense involved in conducting ballots in contested elections, the present round of elections relates to many positions, those here in dispute being only some of them.  In the affidavit filed by the returning officers to which I have referred, it is said that, if a formal declaration of the result of elections arising from the ballots they are conducting is to be made in the week commencing 25 June 2007, the printing of ballot papers would need to commence on 8 May 2007.  I could not provide the parties with a guarantee that, if leave to appeal were granted, the appeal would be heard and determined on or before 7 May 2007.  Estimations of this kind inevitably involve uncertainties, but the possibility that an appeal might not be resolved in sufficient time to permit the elected officers to take up their positions on 1 July 2007, not only gives practical emphasis to Mr Niall’s submission that practical finality, rather than jurisprudential perfection, is the policy underlying the provisions of the Schedule under which election inquiries are conducted, but also constitutes a discretionary consideration to be placed on the scale in favour of refusing to grant leave to appeal.

24                  In summary, I commence with the legislative presumption in favour of finality, and ask whether the circumstances are such as would warrant the exceptional course of granting leave to appeal.  I am not persuaded that the judgment of Gray J was attended by any obvious or even apparent doubt: indeed, for what it is worth, my own view is that his Honour’s rejection of the “nothing valid” position is possibly attended by less doubt than anything else.  If I may say so with respect, his Honour’s reasons display a meticulous and comprehensive attention to every proposition upon which the union relies.  In this sense, the union has had its day in court, and has been given a result which is clear and, at least in the context of the current elections, unproblematic in its implementation.  I am not persuaded that his Honour’s reasons reveal any inconsistency with earlier authority which he ought to have followed.  Rather, it is apparent to me that his Honour, having given careful attention to the cases, decided a specific point which had not previously been addressed as such.  Neither because of an apparent doubt about the correctness of his Honour’s reasons nor because of the existence of inconsistent authorities does the present case obviously call for the attention of the Full Court.  As against that, the matters to which I adverted in the previous paragraph provide quite weighty practical considerations in favour of finality.  On that side of the ledger, those considerations strike me as giving a practical and rather obvious context to the legislative policy to which I referred. 

25                  In all of the circumstances of the present case, I am not persuaded to take the exceptional course proposed by the union of granting leave to appeal from the judgment of Gray J. 

Associate:

Dated:         13 April 2007