FEDERAL COURT OF AUSTRALIA

Mcjannett v Bulloch [2012] FCA 1233

Mcjannett v Bulloch [2012] FCA 1233

CORRIGENDUM

1.    Date of hearing be amended to read: 1 November 2012 and Determined on the papers.

2.    Counsel for the second respondent be amended to read: Mr RC Kenzie QC with Mr TJ Dixon.

Associate:

Dated:    8 November 2012

THE COURT ORDERS THAT:

1.    The substituted originating application for inquiry filed 2 November 2012 be dismissed.

2.    The originating application for interim orders filed 2 November 2012 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

application for inquiry under FWRO Act

1    The Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) according to the long title to the Act is an Act relating to registered organisations, and for other purposes.

2    Section 5 sets out the Parliament’s intention in enacting the Act, which includes the consideration, set out in s 5(2), that relations within workplaces will be enhanced and adverse effects will be reduced if associations of employers and employees are required to meet the standards set out in the Act.

3    Those standards, by reference to s 5(3):

(a)    ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)    encourage members to participate in the affairs of organisations to which they belong; and

(c)    encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)    provide for the democratic functioning and control of organisations; and

(e)    facilitate the registration of a diverse range of employer and employee organisations.

4    An “organisation” is defined by s 6 to mean an organisation registered under the FWRO Act. In this case it is not in contest that the second respondent (CFMEU or Union) is an organisation as defined and that the applicant is a member of the WA Divisional Branch of the Union. It is also not in dispute that the Rules of the Construction, Forestry, Mining and Energy Union, Construction and General Division and Construction and General Divisional Branches (Rules) are relevant to this matter.

5    Chapter 7 of the FWRO Act deals with the matter of “Democratic control” and the conduct of elections for office and other positions. Part 3 of Ch 7 deals with inquiries into elections for office.

6    By s 200(1) it is provided:

When member of organisation may apply for inquiry

(1)    If a person who is, or within the preceding period of 12 months has been, a member of an organisation claims that there has been an irregularity in relation to an election for an office in the organisation or a branch of the organisation, the person may make an application for an inquiry by the Federal Court into the matter.

7    The meaning of the word “irregularity” is provided in s 6 as follows:

irregularity, in relation to an election or ballot, includes:

(a)    a breach of the rules of an organisation or branch of an organisation; and

(b)     an act or omission by means of which:

(i)     the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii)     a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered; and

(c)    a contravention of section 190.

8    Section 201 then deals specifically with the instituting of an inquiry and provides as follows:

Where:

(a)    an application for an inquiry has been lodged with the Federal Court under section 200; and

(b)    the Court is satisfied that there are reasonable grounds for the application;

the Court must fix a time and place for conducting the inquiry, and may give such directions as it considers necessary to ensure that all persons who are or may be justly entitled to appear at the inquiry are notified of the time and place fixed and, where the Court fixes a time and place, the inquiry is taken to have been instituted.

9    Section 204 enables interim orders to be made by the Court where an inquiry into an election has been instituted. Section 204 provides as follows:

(1)     Where an inquiry into an election has been instituted, the Federal Court may make one or more of the following orders:

(a)     an order that no further steps are to be taken in the conduct of the election or in carrying into effect the result of the election;

(b)     an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates may act, or continue to act, in the office;

(c)     an order that a person who has assumed an office, has continued to act in an office, or claims to occupy an office, to which the inquiry relates must not act in the office;

(d)     an order that a person who holds, or last held before the election, an office to which the inquiry relates may act, or continue to act, in the office;

(e)     where it considers that an order under paragraph (b) or (d) would not be practicable, would be prejudicial to the efficient conduct of the affairs of the organisation or would be inappropriate having regard to the nature of the inquiry, an order that a member of the organisation or another person specified in the order may act in an office to which the inquiry relates;

(f)         an order incidental or supplementary to an order under this subsection;

(g)     an order varying or discharging an order under this subsection.

(2)    Where the Court orders that a person may act, or continue to act, in an office, the person is, while the order remains in force and in spite of anything in the rules of the organisation or a branch of the organisation, to be taken to hold the office.

(3)    An order under this section continues in force, unless expressed to operate for a shorter period or sooner discharged, until the completion of:

(a)    the proceeding concerned in the Court in relation to the election; and

(b)    all matters ordered by the Court (otherwise than under this section) in the proceeding.

10    In this matter, the applicant has filed, in accordance with the Federal Court Rules 2011 (Cth) (Federal Court Rules), a form 85 application for an inquiry pursuant to s 200, and a form 86 application for interim orders pursuant to s 204, including an order that no further steps are to be taken in the conduct of an election or in carrying into effect the results of an election currently underway in relation to the WA Divisional Branch of the Union and being carried out under the auspices of the Australian Electoral Commission (AEC) by the first respondent as returning officer (Mr Bulloch or returning officer).

11    While, as explained in more detail below, some positions in the current election process have already been declared by the returning officer, the positions of Assistant Secretary and Organisers are contested. The returning officer currently proposes to send out the ballot papers for the purposes of these contested positions on Friday 9 November 2012 and soon to begin printing the necessary papers.

12    In these circumstances, the question of the interim orders that the applicant seeks is urgent, and the matter was programmed for hearing, when it first came before the Court last Thursday, 1 November 2012, on this basis.

13    When the matter came on, on 1 November 2012, the applicant, after hearing submissions made on behalf of the Union (as an interested person) (as to which states see Re Mcjannett [2009] FCA 996; (2009) 178 FCR 448 (Mcjannett No 1)) indicated that he wished to file a substituted application in the matter and a substituted affidavit and no longer to rely on the Form 5 originating application and his affidavit in support of it that was then before the Court. In effect, the applicant elected to do these things because it was not clear whether he was seeking rulings concerning the meaning and effect of the Rules of the Union or was making an application for an inquiry under Pt 3 of Ch 7 of the FWRO Act. He indicated that it was the latter course that he wished to take. He sought and was granted the indulgence of filing substitute documents to that effect.

14    The Court then made programming orders that enabled the applicant to file a substituted originating application and an application for interim orders, a fresh affidavit in support and for the returning officer and the Union to put on any affidavit material and for all parties to file written submissions. The orders then made indicated that once the final responsive submissions of the Union were filed by 10.00am Wednesday 7 November 2012, the decision of the Court would be reserved and delivered as soon as possible in relation to the claim for interim orders.

issues for determination

15    It is apparent from the brief account of Court’s jurisdiction or power to make interim orders of the type the applicant seeks, provided above, that interim orders cannot be made unless an inquiry into an election has been instituted. An inquiry into an election cannot be instituted, or will not be instituted, unless the Court, under s 201, is satisfied that there are reasonable grounds for the application for an inquiry and proceeds to fix a time and place for conducting the inquiry and gives such further directions as it considers necessary to that end. Thus, two issues arise on the application of the applicant for interim orders under s 204:

(1)    whether the Court is satisfied that there are reasonable grounds for the application for an inquiry, so that it makes orders that results in an inquiry into the relevant election being instituted; and

(2)    if so, whether it is appropriate to make any interim orders to the effect sought by the applicant to halt the conduct of the currently proposed election in relation to the contested positions of Assistant Secretary and Organisers.

APPLICATIONs for inquiry and INTERIM ORDERs

16    By the substituted originating application made under Rule 34.07(5) of the Federal Court Rules and form 85, filed 2 November 2012, the applicant applies under s 200 of the FWRO Act for an inquiry into alleged irregularities that the applicant claims have occurred in relation to an election for the offices of Secretary and President of the Union C & G Division, WA Divisional Branch, which was declared by the returning officer on 8 October 2012.

17    The applicant alleges the following irregularities:

1.    the Union actively and deliberately refused a payment of the applicant’s subscriptions on three occasions in 2010 for the purpose of causing a defect in his 2012 election nomination.

2.    the returning officer overlooked the applicant’s evidence that the Union both refused payment of the applicant’s contributions and fudged the applicant’s financial membership records before making his final determination to reject the nominations.

18    The applicant also filed on 2 November 2012 an application for interim orders under s 204 of the FWRO Act in accordance with Rule 34.08(1) of the Federal Court Rules and form 86. By the application for interim orders, the applicant claims the following interlocutory relief:

1.    an order under s 204(1) halting the election process due to commence on 12 November 2012;

2.    an order under s 329(1) of the Commonwealth Electoral Act 1918 (Cth) restricting election advertising by or on behalf of all candidates in the election to only the policy statements sent with the ballot papers by the AEC.

19    As noted above, the power of the Court to make interim orders depends on the Court first deciding whether it is satisfied that there are reasonable grounds for the application for the inquiry, as provided for by s 201(b) of the FWRO Act.

whether there are reasonable grounds for the application for an inquiry – the applicant’s case

20    The applicant supports his originating application for an inquiry and the application for interim orders by his affidavit, filed 2 November 2012.

21    By [3]-[31] of his affidavit, the applicant states as follows:

Background to nominations.

3.    I nominated for the positions of Secretary and Assistant Secretary in the 2012 election ballot for the CFMEU WA branch. I subsequently received a letter from the returning officer dated 25 September 2012 which had attached to it copies of the union ledger relating to my financial membership. The letter notified me that my nominations had been deemed defective due to a new rule amendment which is rule 38(a)(i)(B). Attached to this affidavit and marked annexure RM1 is a copy of the letter and union ledger.

4.    In the letter at RM1 it is claimed by the returning officer that I did not pay the March 2010 subscription until 17 August 2010. This assertion is not correct.

5.    Rule 38(a)(i)(B) was inserted into the rules on 16 February 2010 but I was not aware of this until I read the letter at RM1. The news of this rule immediately shed light on why the union had been refusing to accept my membership payments for an extended period.

6.    I am aware that several candidates in the 2008 CFMEU election had made late payments of subscriptions immediately prior to the election but were deemed to be continuously financial by the returning officer due to his interpretation of a paragraph in rule 6.

7.    Following the letter from Simon Bulloch at RM1 I advised him over the phone that I had proof the union actively refused to accept payment of my subscriptions and that the union ledger was fudged after which I provided Mr. Bulloch with argument and material evidence supporting why I thought the nominations should be allowed. I provided by email an unsworn copy of an affidavit sworn on 7 April 2011 which I had previously filed in the WAIRC in another matter. Paragraph 7 of that affidavit states – On or about the 1st. December 2010 l was employed at the construction of the Collgar Wind Farm near Merredin in the wheatbelt when CFMEU official Mark Hudston refused to accept payment of my union dues. When I contacted the union office by phone later that same day, after a lengthy delay I was told I had to apply to the executive to retain my membership. I then deposited the funds directly into the union's bank account and contacted the office via email and requested a receipt. No response was received initially from this request.

8.    Amongst the material I supplied the returning officer in response to his rejection of my nomination were 2 Statutory declarations which are attached to my original affidavit in this matter at annexure ‘D’. Attached to this affidavit and marked annexure RM2 is the statutory declaration sworn by Joshua Daley describing how the union refused to accept payment of my subscriptions from him in the second week of March 2010.

Background to union activity relating to the Applicant.

9.    I was detained in Bali Indonesia by authorities between 28 December 2009 and 30 May 2010 during which time my step son took control of my financial affairs. During the second week of March 2010 I telephoned my Step Son and requested he locate the bill from the union and pay my subscription. Joshua contacted me a short time later and disclosed that there appeared to be no bill amongst my mail. I then instructed Joshua to telephone the union office and pay the bill via credit card. Joshua told me the following day that when he contacted the union office they refused to allow him to pay the account.

10.    During or about the first week of June 2010 I telephoned the union office myself from my home in Perth and attempted to pay the March subscription but was told I have to apply to the executive to keep my membership. When I asked the receptionist to supply details or grounds for the refusal the call was terminated from the other end.

11.    In August 2010 I again did not receive a bill from the union. I was hired by Southern Cross Crane Hire in August 2010 and on 10 August 2010 I was inducted to work at the Collgar Wind Farm construction site where my employer was contracted to Catcon Pty Ltd.

12.    During or about the last week of August 2010 I was accused by an industrial relations consultant named Ross smith of attempting to bring the CFMEU on site. Mr. Smith told me that the CFMEU had used my name on a right of entry application to get on site. I rebutted Ross Smith's allegations and explained to him that the union were in fact refusing payment of my subscriptions so his allegations were preposterous. I verily believe Smith repeated the allegations to my employer Craig Lawson around that time.

13.    Attached to this affidavit and marked annexure RM3 is a letter from the returning officer which claims I was unfinancial until 11 November 2010 which is a change from his earlier claim of 17 August 2010. No details explaining the changed position was supplied in the letter.

14.    On the union ledger at RM1 there is an unusual entry on 17 august 2010 where the union have brought my account up to date despite them not accepting any payments from me. This is the date the returning officer initially claimed I had paid the arrears from march in his letter at RM1. I pointed this anomaly out to the returning officer in my correspondence to him and after making inquiries he later claimed in a letter dated 10 October 2012 that the union had expelled me on that date and adjusted the ledger so as to no longer show a debit. If this is true then the union expelled me without notification and in contravention to the rules and statute legislation in their desperation to do whatever they could to prevent my nomination in the 2012 ballot.

15.    On 24 November 2010 I encountered Mark Hudston from the CFMEU at the Collgar Wind Farm and attempted to hand him $650.00 in cash in front of Joshua Daley and other witnesses. Mr. Hudston refused to take the money and claimed all union officials had been instructed by Kevin Reynolds not to accept payment of my dues and that the executive wanted to meet with me about some issues.

16.    On 25 November 2010 I sent an email to Ian Frazer of the Australian Building Construction Commission who was handling a complaint of mine about other matters. In the email to Mr. Frazer I mention the encounter with Mark Hudston the previous day. Attached to this affidavit and marked Annexure RM4 is a copy of the email described here. The email is partly obliterated due to unrelated confidential information.

17.    During the week following 24 November 2010 I telephoned the union office and without disclosing my name told the receptionist I was wishing to set up weekly deductions and requested the union bank account details. The receptionist did disclose the bank account details and gave instructions what to put in the reference box when I set up the direct debit. I was compelled to do this due to the extensive efforts the union was engaging in to refuse payment of my subscriptions.

18.    On 6 December 2010 I drove to a bank in Merredin near the Collgar Wind farm and deposited $650.00 directly into the union bank account. Shortly after this I sent the union an email from their website requesting they offer up a receipt and current ticket or a written explanation why they were repeatedly refusing to accept my money and not sending me any accounts.

19.    On the union ledger at RM1 there are two entries dated 6 December 2010. The first entry creates an amount outstanding of $650.00 which effectively reverses the earlier credit on 17 August 2010 of $325.00, the second entry on 6 December 2010 shows the $650.00 cash deposit I made at a bank in Merredin.

20.    There is a further anomaly with the union ledger shown at RM1 in that there is no debit shown for the subscription due on 1 October 2010 which corroborates that the union were not sending me any accounts in their quest to have me run afoul of rule 38(a)(i(B).

21.    When I returned home to Perth from the Collgar Wind Farm on or about 20 December 2010 there were 3 letters from the union all dated 6 December 2010. One letter was a tax invoice from the union containing the ticket for the period 1 October 2010 to 31 March 2011 however there were no entries next to the 3 headings at the bottom of the invoice titled- 'Receipt Date, Receipt No. & Total paid which is not consistent with any other invoices received previously.

22.    The second document dated 6 December 2010 was a letter from the CFMEUW signed by the President threatening to expel me from the union for alleged ‘gross ongoing misconduct’ and quoting rule 35(2)(d) of the State union rules.

23.    The third letter dated 6 December was an identical letter only this time on a Federal union letterhead signed by the President and quoting the same State union rule.

24.    I sent a request to the union for further and better particulars to their vexatious allegations via fax, email and registered post on 20 December 2010. At the time of swearing this affidavit no response has ever been received from the union to the request and no appointment to front the executive or answer to any charges has ever been made.

25.    There was no lawful basis for the President to threaten me with State union rules on a federal union letterhead at 6 December 2010 and this again shows the unions utter desperation to invoke anything that would prevent me from nominating in the 2012 ballot because to invoke the Federal union rule 53 disciplinary action must be taken within 1 month of the alleged offence. The vexatious allegations dredged up in the letters dated 6 December 2010 were almost a year old and even if they were carried on to a hearing would have been proved to be false allegations.

26.    Attached to this affidavit and marked RM5 are the 3 letters received from the union dated 6 December 2010. And my response to the union dated 20 December 2010.

27.    There is a further anomaly in the union ledger at RM1 where the subscription paid by myself on 31 March 2011 was not processed until 4 April 2011. It is open to suggest the union were again stalling my payment in order to fall down on rule 38(a)(i)(B) until I sent an email to the union lawyer Simon Millman copied to the National Secretary Dave Noonan on 3 Apri1 2011. After the email to Mr. Millman on 3 April 2011 the union apparently abandoned their attempt to stall the payment. Attached to this affidavit and marked RM6 is a copy of the email dated 3 April 2011.

Returning officer relying on hearsay, fudged records, not investigating late payments.

28.    Attached to this affidavit and marked annexure RM7 is a letter from Simon Bulloch dated 10 October 2012. The second dot point in the letter claims that the union received an EFT payment from me on 12 November 2010 and almost a month later adjusted the ledger to accommodate a payment of $650.00. This claim is not consistent with any record produced to date or my own records and recollection of the events. The $650.00 was paid by branch deposit at Merredin on 6 December 2010 with the same bundle of cash Mark Hudston refused to accept a week or two earlier.

29.    The letter at RM7 goes on to quote a part of rule 6 but fails to quote the part of rule 6 which was applied in the 2008 election to get several candidates qualified. The letter also avoids any mention of rule 38(a)(i)(A) which also calls up rule 6 and only mentions rule 39(a)(i)(B). The letter also corroborates that no precedence had been applied to this election by the AEC which is a failure on their part because rule 6 has not been amended since the 2008 election.

30.    Attached to this affidavit and marked Annexure RM8 is an email exchange between the Applicant and the returning officer regarding the fudged union ledger and changing dates of the alleged 2010 payment. In the closing email on 11 October 2012 the Returning officer states ‘I do not intend to seek the records you request.’ Apart from the fact I requested the record the Returning officer had a duty to obtain it and discover the true date upon which my payment was received by the union. Up to this point the Returning officer had only supplied what are obviously fictitious accounts in the union ledger and a verbal statement from the union claiming an EFT transaction took place on 12 November 2010.

Further witness testimonies.

31.    After leaving court on 1 November 2012 I contacted my former employee to see if he had any recollection of the events at Collgar Wind Farm involving Mark Hudston. As it turns out he does and attached to this affidavit and marked Annexure RM9 is a copy of the relevant email exchange between myself and Craig Lawson yesterday. Mr. Lawson is willing to go on affidavit along with two other witnesses I have contacted who are Paul H. and David L. both of whom have good recollections of me disclosing to them in 2010 that the union were refusing my payments.

22    The applicant also relies on the statutory declaration of Mr Joshua Shaun Daley, which was first provided to the returning officer and has also been attached to and referred to in the affidavit of the applicant filed on 2 November 2012 in the Court, which relevantly states as follows:

1.    I am a member of the CFMEU and the Step Son of Robert Mcjannett.

2.    When Robert Mcjannett was detained by authorities in Bali between 28 December 2009 and 30 May 2010 I attended to all of his financial affairs back home in Australia and regularly took instructions from Robert over the phone in relation to bill payments and so on. These bill payments included transferring almost $70000.00 cash through my ANZ account to a Bali lawyer in several transactions on behalf of Robert for his legal defence and tending to periodic bills such as phone accounts, credit cards and union dues.

3.    During the second week of March 2010 Robert called me by telephone from Bali and requested I Bpay his union dues to the CFMEU. I know it was about the second week of March because I remember Robert saying it was due in about a fortnight. When I checked Robert’s mail I could not find a bill from the union for the account due at the end of March 2010.

4.    When I subsequently informed Robert that I could not find the bill amongst his mail he requested that I telephone the union office and offer to pay the bill via credit card over the phone. When I subsequently telephoned the union office that same day to pay the bill I was told the union would not accept payment of Robert’s account and the receptionist refused to give any reason why before terminating the call mid conversation.

5.    I recall one day when I was employed by Catcon Pty Ltd at the Collgar Wind Farm and working with Robert in about November 2010 Mark Hudston from the CFMEU came to site and had a discussion with Robert and myself. I saw Robert try to hand Mark Hudston $650.00 cash but Mr. Hudston refused to take the money and I heard him say that all union officials had been instructed by Kevin Reynolds not to accept any payments from Robert.

6.    I remember a time which I think was during the first week of December 2010 when I listened to Robert calling the CFMEU office from the Collgar Wind Farm site and asked for bank account details to commence weekly deductions. I recall shortly after this event I accompanied Robert to a branch meeting in Merredin near the Collgar Wind Farm where he then deposited $650.00 into a bank account.

7.    I recall a number of times at the Collgar Wind Farm when Robert was being accused by Ross Smith of inviting the CFMEU onto the site. I could never understand how Ross Smith could be making this accusation when Robert appeared to be arguing with the CFMEU about his membership and other matters and was not participating in any obvious union activity on site.

23    The applicant submits that based on this evidence, the Court should be satisfied that there are reasonable grounds for the application.

24    The applicant notes that the word “irregularity” is defined by s 6 of the FWRO Act as follows:

irregularity, in relation to an election or ballot, includes:

(a)    a breach of the rules of an organisation or branch of an organisation; and

(b)     an act or omission by means of which:

(i)     the full and free recording of votes by all persons entitled to record votes and by no other persons; or

(ii)     a correct ascertainment or declaration of the results of the voting;

is, or is attempted to be, prevented or hindered; and

(d)    a contravention of section 190.

25    The applicant submits that the evidence discloses there has been a breach of the rules of a branch of the CFMEU as well as contraventions of s 190 of the FWRO Act. His submission, in response to those of the Union, are set out in detail below.

26    At the hearing on 1 November 2012, the applicant indicated he wished to contend that the acts of refusal by Union staff or officials to take his subscription payments involved contravention of this requirement. The argument he wished to put as I understood it was that because the Union staff or officials who so refused him were employed by the Union and paid out of their financial resources, then it followed that their conduct in refusing to accept his dues necessarily involved the use of the Union’s resources. Further, that in so acting, the Union staff or officials, on behalf of the Union, were helping a candidate (being other candidates who had nominated for the positions that the applicant wished to nominate for) against another candidate (being him); in an election under Pt 2 of the FWRO Act for an office or other position. I should say that there is little sustain this submission and I note it is not now pressed on the substituted application.

the Union’s case in opposition to both applications

27    The Union notes that there are no “respondents” to an application to an inquiry under s 200 but that the Court is able to hear from interested parties, as it has on a number of occasions: Re McJannett; Re Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015; (2009) 188 IR 156 at [38] (Mcjannett No 2); Mcjannett No 1; Gray, in the matter of an application for an inquiry relating to an election for an office in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Services Union of Australia, Electrical, Energy and Services Division [2012] FCA 1165 at [25]. In opposing the application for an inquiry, as an interested party, the Union has put on a number of affidavits.

28    The affidavit of Linda Pallot, accounts officer and general administrator of the Union, who has been employed by the Union for approximately 15 years and has held the accounts officer and general administrator position for approximately five years, says that she mainly deals with the processing of accounts, processing direct debits of members and reconciliation of the Union’s bank accounts. In her work she works with Tammy Hall, a receptionist, and Emma Griffiths, a membership officer. However, Emma Griffiths left her position in May 2010 and was replaced by Michelle Kavanagh. The office manager, Peta Arnold, provides instructions to that group.

29    Ms Pallot says that until August 2011 the Union’s billing system was processed by a computer program called the AS400. It then changed to a national system called iSeries.

30    When the AS400 system operated a member who was already entered on the membership could pay for their membership by:

(1)    BPAY;

(2)    credit card;

(3)    EFT;

(4)    cheque or money order (mailed in or delivered); or

(5)    cash at the office or onsite with an organiser.

31    Ms Pallot says the Union membership term begins on 1 April and 1 October every year. Once members are entered onto the system the Union posts out a reminder invoice, with the Union’s BPAY details on it. A person can use the BPAY details on a previous bill to pay their membership fees even if the reference number has changed. That means if you have a bill from 2009, you could use the BPAY references from that point to pay your membership fee in 2011.

32    Ms Pallot also says a member can also make a direct deposit into the Union account, using the Union BSB and account number. If they put their name and membership number in the description the Union knows who has made the payment.

33    Ms Pallot says once a member is on the system they receive a reminder invoice approximately six weeks before they are due and these are usually sent out around mid-February and mid-August. There is no reminder for the office staff to send out the invoice, it is just general knowledge that it needs to be done. These are generated automatically from the names on the membership register. She says there is no reason why the applicant would not have received one of these in February 2010.

34    Ms Pallot says that with the AS400 system, the membership officer responsible simply selects the “option” on the system to bill the members. The system is automatically linked with the details of the members and when the option is chosen, every member who is not resigned or deleted will automatically be debited the coming terms membership fee on that date by the system.

35    She says the system will then automatically generate invoices to all “eligible” people who have been debited. An eligible person to receive a reminder invoice is anyone who has been debited by the system, is not on a direct debit or payroll deduction scheme and who has not been flagged in the system as not having a current mailing address. A membership officer prints the invoices from the generated list and arranges for them to be posted.

36    She says they flag people on the system as not having a current mailing address if they have sent correspondence and it has been returned, but as long as you are an eligible person an invoice will be printed off and automatically placed in an envelope. It is not possible to prevent this happening, unless the member’s mailing address is flagged as not current or they are on direct debit or payroll deduction.

37    So far as the applicant’s membership history is concerned, Ms Pallot says she is aware he was involved in some way in the 2008 election but is not exactly sure of what his involvement was, but that there were court proceedings. She does not recall ever having a conversation with him on the telephone or in person in 2010 or at any other time.

38    Ms Pallot says she has read [9], [10] and [17] of the applicant’s affidavit, dated 2 November 2012, and also has read [4] of Mr Daley’s statutory declaration dated 2 October 2012. She says she did not ever take a call from Mr Daley requesting to pay the applicant’s fees in 2010. She does not recall ever speaking with the applicant directly about paying his Union fees in 2010. She was never given any direction by Ms Arnold or anyone else in the Union to not take a payment for his membership. She has never been given any instruction not to accept a member’s payment.

39    As to Annexure RM1 of the applicant’s affidavit, she says she is familiar with the documents entitled “membership inquiry” and “cumulative statement”. They are an exact copy of what she has when she pulls up his membership information from Union records. They are standard documents the administrative staff looks up when they need information on a member. On the cumulative statement there is a column titled “Recpt_Dt” which stands for Receipt Date. These dates signify when there was any movement on a member’s account.

40    Ms Pallot says the first date on that cumulative statement is 17/08/09, under the column “Type” it states this is a Debit. Under the column “Amount” it says $310. This date signifies the date that the applicant and all other members were automatically debited the 1 October fee by the AS400 system. If the applicant had a current mailing address the system would have automatically printed out his invoice and put it in an envelope. He would then be left with a “Balance” of -$310.

41    She says the next receipt date listed is 25/11/09. Under the column “Procs-Dt” it says 25/11/09. Under the column “Type” it states this a receipt (RECPT) and under the column “Recpt No” it says 248590. The “Amount” is $310CR, leaving a “Balance” of $0.00. This shows that a payment of $310 was made and processed on 25 November 2009. She is unable to ascertain by looking at the document how the payment was made.

42    The next receipt date listed is 24/02/10. Under the column “Type” it states this is a Debit. Under the column “Amount” it says $325.00. This date signifies the date that the applicant and all other members were automatically debited the 1 April membership fee by the AS400 system. If the applicant had a current mailing address the system would have automatically printed out his invoice and put it in an envelope. He is then left with a “Balance” of -$325.00.

43    The next date is 17/08/10. Under the column “Type” it states that is a journal (JRNL) entry. This term is used to adjust a member’s fee, which can be done for resignations, waiving fees, balancing direct debits and deleting a member. Basically it means an individual is altering the member’s account balance without an actual payment to apply against it. This is often used to bring a member’s balance to $0.00, in order to resign them out or delete them as you cannot make some movements on a membership unless they have a $0.00 balance. Under the column “Amount” the applicant has been credited $325.00CR. This brings his balance to $0.00. Ms Pallot says she does not recall being the individual who made this entry.

44    Ms Pallot notes the next receipt date is 06/12/10. Under the column “Type” it states this is also a journal (JRNL) entry. Under the column “Amount” it says 650.00. This signifies that someone has manually debited the amount of 650, leaving the applicant with a negative balance of $650 which would equate to the $325 owed for the past 1 April term and the upcoming 1 October term.

45    The next receipt date is also called 06/12/10. Under the column “Type” it is called DEDN which stands for deduction. Under the column “Amount” it says 650.00CR. This signifies that a payment of $650.00 has been made and the applicant’s balance is now $0.00.

46    Ms Pallot says she can recall being responsible for both of these December entries. Her job requires her to check the CFMEU bank account every day. On 12 November 2010, she became aware that there was a $640 deposit called “DEPOSIT Robert Mcjannett 616293”. Ms Pallot attaches to her affidavit as LP1 a copy of the CFMEU cheque account showing the deposit on 12 November 2010.

47    Ms Pallot says that when she became aware of this deposit on 12 November 2010 by the applicant she approached Ms Arnold and made her aware of the deposit. She did this as she knew by looking at the applicant’s membership information that a journal entry had been made in August 2010 which put him at a balance of $0.00, even though he had not paid for the last 1 April term, which usually put someone in the negative.

48    On or around 6 December 2010 she was told by Ms Arnold to put a journal entry in the applicant’s account putting his balance in -$650 and then crediting him $640. She accidently credited him with $650 instead. She told Ms Arnold who later told her that they would waive the additional $10 and that he could remain at a balance of $0.00 rather than be in the negative.

49    The Union also relies on an affidavit of Peta Arnold, the office manager at the Union who says she has held the position for approximately 27 years. Her role is to oversee and manage the Union’s office and its administrative staff. She takes her instructions from Mick Buchan, the Union secretary, since approximately January 2012. Before that she took instructions from Kevin Reynolds, the then secretary.

50    The administrative staff from 1 January 2010 until 28 May 2010 were Linda Pallot, the accounts officer, Tammy Hall, the receptionist and Emma Griffiths, the membership officer.

51    Ms Arnold says the only people who could have taken membership payment enquiries in the period to April 2010 were her, Ms Pallot, Ms Hall, Ms Kavanagh or Ms Griffiths. Ms Griffiths left the Union on 28 May 2010 and was replaced by Ms Kavanagh on 28 September 2010.

52    She says that while the Union has a membership officer, it is the responsibility of all administrative staff, including herself to join up new members or take payments if they are available to do so.

53    She says she has read [9], [10] and [17] of the applicant’s affidavit of 2 November 2012 and has also read [4] of Mr Daley’s statutory declaration dated 2 October 2012.

54    Ms Arnold says she did not ever take any such phone calls described from Mr Daley to pay the applicant’s membership.

55    She says she has never at any time been directed by Mr Reynolds, or anyone else in the Union, not to accept a member’s membership fee.

56    The Union also relies on an affidavit of Tammy Hall, the receptionist at the Union.

57    She says that she did not ever refuse to take a payment from Mr Daley for the applicant’s membership fees.

58    She also says she has never at any time in her employment with the Union been told to refuse a payment for a member.

59    The Union also relies on the affidavit of Kevin Noel Reynolds, the previous Secretary of the Union from 1972 until he retired at the end of 2011.

60    Mr Reynolds says that he is aware that the applicant has applied for an enquiry. He says he is aware that the applicant alleges that an employee of the CFMEU refused his step-son’s payment of the applicant’s membership dues in March 2010.

61    Mr Reynolds says he never gave an instruction to any employee of the Union to refuse payment of the applicant’s Union dues.

62    The Union also relies on an affidavit of Mark Hudston, an elected organiser with the Union for 23 years.

63    Mr Hudston says he is also aware that the applicant has applied to the Court for an inquiry and for orders stopping the election process. He confirms he is a candidate for one of the two positions of Assistant Secretary in the current election and makes his affidavit in support of the Union.

64    His view is that the election for the positions of Assistant Secretary and organisers should go ahead as planned and if stopped will cause a great degree of confusion for the Union and stress for individuals, including him.

65    He confirms that he took annual leave from 2 October 2012 until 15 October 2012 and then commenced long service leave on 16 October 2012 and will remain on such leave until 30 November 2012. If the election is postponed he would delay taking further long service leave and go back to work. That would not work well for the Union because there would be a great degree of animosity between himself and Mr McDonald and Mr Pallot.

66    Like Mr Pallot and Mr McDonald, he says that he has invested a lot of his own money and time in the election and the sooner it is held the better.

67    Mr Hudston denies that he ever took steps to deliberately refuse membership payments from the applicant. He says nobody ever gave him a direction not to accept the applicant’s membership dues. He recalls the applicant offered him cash on 12 November 2010 to cover his outstanding membership dues at Collgar Wind Farm near Merredin, Western Australia. He did not have a receipt book with him at the time the cash was offered. He told the applicant to “pay electronically, by credit card or through the Bank” or words to that effect and he left it at that. He gave the same advice to all members who tried to pay him directly that day, as he has done at other times when he did not have the receipt book on him.

68    Mr Hudston states that he believes the applicant paid his outstanding membership dues through the bank later that same day.

69    The Union also relies on the affidavit by Graham Pallot, the Assistant Secretary of the Union, who has held the position for approximately eight years. He is also running for the position of Assistant Secretary in the forthcoming election.

70    Mr Pallot says that Joseph McDonald is also running to maintain his position and that Mark Hudston, an organiser with the Union is also running for the position. There are only two Assistant Secretary positions so someone will obviously miss out.

71    Mr Pallot says he is running on the “Buchan Ticket” with Mr McDonald. As far as he is aware by looking at Mr Hudston's campaign materials so far Mr Hudston is running by himself on his own ticket.

72    Mr Pallot says he knows Mr Hudston has chosen to take long service leave from Mick Buchan, the Union Secretary, and has not been in the office since September 2012.

73    Mr Pallot says that if the election was to be halted it would have a negative effect on both the Union and him and he would rather the election proceed.

74    He says that if the election was delayed Mr Hudston would have to return to work. He thinks this would be very disruptive for the Union office if candidates running against each other were forced to work with each other. He says it would be difficult for him to work closely with Mr Hudston.

75    Mr Pallot also says a halt in the election process would mean an uncertain future for the Union and its members until a result was announced.

76    He also says he does not use Union resources to campaign, so he is outlaying his own money to support the campaign. The longer the campaign continues, the longer he will have keep contributing his own money.

77    Mr Pallot also states that he knows from the industrial staff and announcements by Mr Buchan that there is only Mr Hudston, himself and Mr McDonald running for the contested position of Assistant Secretary. If no one else is running for that position, he is of the opinion that the election for those positions should go ahead to bring certainty as soon as possible for the Union members and the candidates.

78    The Union also relies on an affidavit of Joseph McDonald, the Assistant Secretary of the Union. He says that he has held this position for approximately 12 years.

79    Mr McDonald says that he is running in the 2012 CFMEU election to keep his position as an Assistant Secretary of the Union. There are two Assistant Secretary positions to be filled and he confirms Mr Pallot’s evidence that there are three people running: himself, Mr Pallot and Mr Hudston. He says Mr Pallot and he are running on the same ticket and Mr Hudston is not.

80    He says Mr Hudston announced he would be running for the position for Assistant Secretary in approximately early to mid September 2012 and he has not spoken with him personally since. He is aware through the Union Secretary, Mick Buchan, however, that he chose to take long service leave and has not been present in the office since he went on long service leave.

81    He also knows from the Union industrial staff and Mr Buchan that the applicant has applied for an election inquiry and has also asked to halt the election process for the position of Assistant Secretary. He understands that the Assistant Secretary position is the only contested position in the election and all others have been declared.

82    Mr McDonald says that as Assistant Secretary he thinks halting the election will have a negative effect on the Union and personally him as a candidate. Mr Hudston will have to return to work. He thinks it is best that he stays away until the election outcome is announced. He says that since Mr Hudston announced his candidacy as a dissident ticket there has been bad blood between him and other people working at the Union, including himself and Mr Pallot. If he was required to return to work, they would all have to work closely together and the efficient running of the Union would be affected.

83    Mr McDonald in these respects confirms the evidence of Mr Pallot. Mr McDonald also says that since Mr Hudston announced his candidacy, Mr Pallot and he had been campaigning under the “Buchan ticket” and have sent out various flyers, spent a lot of time campaigning. Contested elections are stressful from his family and himself.

84    As a candidate he does not use Union resources, but his own personal savings. This is a big financial burden for him. If the election is halted it is going to prolong the stress for him and his family and put him under greater financial strain. It is, therefore, in the best interest of himself and the Union for the election to go ahead as quickly as possible.

85    Mr McDonald says that if the applicant is found to be entitled to run as either Secretary or Assistant Secretary, although far from ideal, then it would be less of a burden to have a separate election for those positions only at a later date.

86    The Union also relies on the affidavit of Shannon Nora Walker, an in-house solicitor with the Union for approximately three years.

87    Ms Walker annexes a number of documents relevant to the application as follows:

    Annexure SNW1, being a copy of the applicant’s tax invoice statement from the Union advising his membership fees for 1 October 2009 were due for renewal by 30 September 2009, this document forming part of the applicant’s original supporting affidavit, filed 19 October 2012 as Annexure D (which affidavit has been superseded by that of 2 November 2012). It formed part of Annexure E to the statutory declaration that was Annexure D. She says the annexure shows that the BPAY details of the Union are present on the invoice.

    Annexure SNW2A is a decision of the delegate of the General Manager of Fair Work Australia, dated 15 December 2011 concerning the alteration of the Union rules including Rule 38.

    Annexure SNW2B is a decision of the delegate of the General Manger of Fair Work Australia, dated 16 February 2010 concerning the alternation of the Union rules including Rule 38. She says the registrar certified the relevant rules changes on the basis that “the alterations comply with and are not contrary to” the Fair Work Act 2009 (Cth).

    Annexure SNW2, being a copy of the Rules of the Union.

    Annexure SNW3, being a decision of the delegate of the General Manager of Fair Work Australia dated 17 July 2012, which provides for the arrangement of the conduct of an election under s 189(3) of the FWRO Act.

    Annexure SNW4, being a copy of the election notice, dated 31 August 2012.

    Annexure SNW5, being a letter from Simon Bulloch, the first respondent, of the Australian Electoral Commission (AEC) to Mick Buchan, WA Divisional Branch Secretary, listing the accepted nominations for the Union election, dated 5 October 2012.

    Annexure SNW6, being a letter from Mr Bulloch to Mr Buchan attaching the declaration of uncontested offices, dated 8 October 2012.

    Annexure SNW7, being a letter from Mr Bulloch to Mr Buchan notifying the results of the draw to determine in which order candidates would appear on the ballot for contested positions, dated 10 October 2012.

    Annexure SNW8, being a copy of Annexure B to the applicant’s affidavit of 19 October 2012, being a letter from Mr Bulloch to the applicant accepting his withdrawal of nomination for Divisional Branch Assistant Secretary, Construction & General Division.

    Annexure SNW9, being the adopted affidavit of Emma Griffiths, which was read over the phone to her line by line who agreed with the contents and indicated she was prepared to swear it. Ms Griffiths was in Bullsbrook and unable at short notice to sign the affidavit.

88    The Union notes that the substituted application relies on two broad claimed irregularities:

1.    that the Union actively and deliberately refused payment of the applicant’s subscriptions on 3 occasions in 2010 for the purpose of causing a defect in his 2012 election nomination and;

2.    that the returning officer overlooked the applicant’s evidence that the Union both refused payment of the applicant’s contributions and “fudged” the applicant’s financial membership records before making his final determination to reject the nominations.

89    By reference to authority, the Union says that the Court will not be satisfied that there are reasonable grounds for an inquiry under s 200, if the allegations of fact relied upon do not at least offer good grounds for suspicion that there has been such an irregularity and that the Court will not entertain an application of a speculative nature, based upon the applicant’s opinion that there has been irregularity without some substantial factual foundation: Re Post; Re Election for Offices in Transport Workers Union of Australia, Western Australia Branch (1992) 40 IR 162 (Re Post) at 166-168; Becker, in the matter of an application for an inquiry in relation to an election for offices in the Australian Education Union, Queensland Branch [2004] FCA 1534 (Re Becker) at [9]-[10]; Mcjannett No 1 at [51]-[52].

90    The Union also notes authority that emphasises that the causing of an inquiry into an election is “serious matter”: Re Jarman; Ex parte Cook (No 2) [1996] HCA 7; (1996) 136 ALR 233 at [17] (Kirby J); Mcjannett No 1; Mcjannett No 2; Re Killesteyn (application for an inquiry in relation to an election for offices in the Australian Salaried Medical Officers’ Federation (Qld)) [2009] FCA 1311; (2010) 261 ALR 730 (Re Killesteyn).

91    The Union says that in the circumstances of this case the applicant:

(1)    Has not identified “an irregularity in relation to an election for an office in the organisation” where he relies upon evidence which post-dates 1 April 2010. That being the date he became unfinancial and therefore ineligible to nominate for the Offices of Secretary or President, where Rule 32(b) provides that “contributions shall be due and payable in advance as from the 1st day in April and the 1st day in October respectively in any year…”.

(2)    In relation to the pre-1 April 2010 allegations, they rely upon accusations of a “speculative nature” and not “upon some substantial factual foundation”. The applicant was “detained in Bali Indonesia between 28 December 2009 and 30 May 2010”, as stated by the applicant in his affidavit. The evidence that payment was refused in March 2010 appears only in a statutory declaration of the applicant’s step-son annexed to the applicant’s affidavit. However, even if the evidence were accepted, the applicant was left with a number of means of making payment – including the method which he ultimately utilised. Thus, it was always possible to pay electronically.

(3)    To invoke the jurisdiction of the Court to conduct an inquiry is a serious matter. The applicant wishes to stop the current election process. The chronology of events shows that the applicant was put on notice that there was an issue with his nomination on about 25 September 2012. On 5 October 2012, the returning officer rejected his nominations for office after giving him an opportunity to respond in accordance with Rule 38(g). He then waited two weeks before filing his application.

92    The Union says it is not responsible for the decision not to accept the applicant’s nomination. That was a decision of the returning officer based on a construction of the Rules. The Unions submits the Rules are clear and a nominee for the office of Secretary and President must have been continuously financial for three years prior to nominating. The applicant accepts on his evidence that he fell into a period of unfinanciality during the time he was detained in Bali.

93    The Union says by operation of sub-rules 38(a)(i)(B) and 38(a)(iv) of the Rules of the Divisional Branch, a nomination for Divisional Branch Secretary or Divisional Branch President will be invalid if the nominee was not “continuously” financial for 3 years preceding the calling of nominations, “irrespective of whether any outstanding contributions are subsequently repaid”. The Union notes that from the evidence nominations were called in accordance with Rule 38(c) on 31 August 2012.

94    The Union then notes that sub-rule 6(2) is to the effect that a member who has failed to pay contributions on or before the due date is unfinancial. Sub-rule 32(b) provides that contributions are due in advance on 1 April and 1 October each year.

95    The applicant, therefore, did not make any payment in relation to the period beginning 1 April 2010 on or before that date. He only made such a payment, at the earliest, on 12 November 2010 (according to Ms Pallot), or according to him on 6 December 2010.

96    The result is that he was unfinancial from 1 April 2010 and therefore ineligible to nominate for the offices of Secretary or President. The subsequent payment on 12 November 2010 did not cure that position for the purposes of sub-rule 38(a)(i)(B).

97    The Union submits it is sufficient for the Court to be satisfied there are no reasonable grounds for an irregularity that affected the applicant’s financial status from 1 April 2010. If he cannot satisfy the Court otherwise, no subsequent alleged irregularity could change his ineligibility to nominate.

98    In that respect the Union notes that the applicant alleges only that:

(1)    a statement of contributions for the period beginning 1 April 2010 could not be found in his mail; and

(2)    a Union receptionist refused his step-son’s alleged attempt to pay such contributions.

99    The Union submits the evidence concerning what happened when he tried to pay at a later date is irrelevant as he was already unfinancial under the Rules by 1 April 2010.

100    In relation to the applicant’s allegation that he did not receive a statement of his contributions relating to the period beginning 1 April 2010, the Union contends:

(1)    The evidence is not that he did not receive it. Only that such a statement could not be found by his step-son.

(2)    The evidence is that such a statement was posted, having regard to Ms Pallot.

(3)    In any event, sub-rule 32(a) relevantly provides:

In no case shall the failure of the member to receive a notice entitle the member to be considered financial other than provided for in this Rule.

101    Thus, it is submitted on behalf of the Union, that it is always incumbent on a member to stay financial. In this case, there were many methods under the Rules that could have utilised to stay financial.

102    The Union notes the authority of Re Bailey; Re Transport Workers’ Union of Australia (Victorian Branch) (1997) 79 IR 1 (Re Bailey) where Gray J considered whether the removal of unfinancial members from the computer records of the organisation constituted an irregularity. The rules were such that unless they remedied their unfinancial status prior to the closing time for nominations on 29 November 1994, they would not have been entitled to vote. Their lack of financial status would have been remedied by the payment of arrears of contributions. If that had occurred, entitlement to vote would have followed. Justice Gray said, at 7-8:

There was, however, no obligation to be found in the rules of the union, or arising otherwise, to send an account to an unfinancial member in respect of the contributions for 1994. Conversely, the failure to send accounts to these members whose unfinanciality extended over three years or more did not deprive any of them of the opportunity to vote. They were deprived of the right to vote by the operation of r 21 because they were unfinancial. It was open to any of them to remedy that situation, as I have said. There is no evidence that any sought to do so. In these circumstances, the removal of the names from the computerised membership records could not amount to an irregularity in relation to the subject elections. I therefore terminated the inquiry with respect to this alleged irregularity on the first day of the hearing.

103    The Union submits it follows that the applicant, being a member since 2005, could and should have:

(1)    Utilised the many methods available to make payment required under the Rules. The Union accepts payments via cash, cheque, money order, eftpos and credit card, direct debit or payroll deductions, as explained in the affidavit of Ms Pallot.

(2)    Otherwise taken steps to remedy the situation before nominations closed under Rule 32(i) dealing with “cancellation/waiver of contributions etc”.

104    In relation to the applicant’s allegation that a Union receptionist refused his step-son’s alleged attempt to pay his contributions in March 2010, the Union contends:

(1)    There is direct evidence from Ms Arnold, Ms Pallot, Ms Hall and Ms Griffiths, all of whom were the relevant office staff at material times, that they did not receive such a call in or around March 2010 (or at all) let alone refuse payment of any contributions;

(2)    There is direct evidence from the former Secretary, Mr Reynolds, that there was no direction to any Union employee in March 2010 to refuse payment of the applicant’s contributions.

105    The Union says the evidence relied upon by the applicant is in any event unsworn heresay upon heresay and is not material that provides a “substantial factual foundation” for the purpose of instituting an inquiry.

106    Notwithstanding these matters, the Union submits it remains the fact that the applicant could have paid as he ultimately did in November 2010, electronically. There is no explanation from him or his step-son as to why:

(1)    Only one attempt at payment appears to have been made in March (before he became unfinancial on 1 April 2010).

(2)    Monies could not have been mailed in.

(3)    The direct payment could not have been made into the bank account.

(4)    The applicant had not arranged payroll deductions or a direct debit facility.

107    The Union submits that the following evidentiary matters arising from the applicant’s own materials provide strong reasons why the Court would not be sufficiently satisfied to institute an inquiry, or to make interim orders, in the event an inquiry were instituted:

(1)    The applicant relies heavily on evidence ([15] in Annexure RM2 of his affidavit) that he sought to pay his subscription to a Union organiser in November or December 2010. The Union submits this is completely irrelevant as he was already unfinancial by that stage and so did not satisfy the requirements of Rule 38(a)(i)(B) of 3 years continuous membership.

(2)    The height of the applicant’s case is that his step-son made a telephone call in or about March 2010 and attempted to pay the applicant’s outstanding subscription. This evidence is entirely objectionable and, notwithstanding s 75 of the Evidence Act 1995 (Cth) (Evidence Act), the Court should treat this evidence extremely cautiously.

(3)     The evidence of the alleged March telephone call by the step-son would not, in any event, satisfy the Court to grant the application sought, because:

(a)    It is clear from the evidence that the applicant was able to make telephone calls from his incarceration; he has not sought to explain why he could not ring the Union directly.

(b)    Other than a single attempt identified by the step-son to make a call, there is no evidence for example of an attempt to attend the offices with payment, to write correspondence, or to do what the applicant ultimately did in November or December 2010, that is, arrange to have the money paid directly into the Union’s bank account. No reasons are advanced as to why this could not be achieved by the applicant or his step-son – or why the applicant waited until November or December 2010 to do this.

(c)    Membership contributions may be paid in a multitude of ways. The Union accepts payments via cash, cheque, money order, eftpos and credit card, direct debit or payroll deductions and he could have utilised these methods.

(d)    The applicant was aware of the BPAY details of the Union prior to 1 April 2010 and there is no explanation as to why he or his step-son did not utilise that facility and pay electronically at the time.

(e)    The notion that the applicant was reliant on somebody from the Union having to accept the payment should be rejected and does not accord with either the Rules or the applicant’s own evidence.

(f)    The applicant did not apply to the Union for a cancellation or waiver of his period of unfinanciality under Rule 32(i).

(g)    Based on the applicant’s own materials:

(i)    The applicant was put on notice that there was an issue with his nomination on or about 25 September 2012.

(ii)    On 5 October 2012, the returning officer rejected the applicant’s nominations for offices after giving him an opportunity to respond in accordance with Rule 38(g).

(iii)    The applicant waited exactly two weeks before filing his application.

108    The Union says that if, notwithstanding these submissions to the effect that the alleged refusal in June 2010 is irrelevant because the applicant was already unfinancial and ineligible at that stage and the Court takes the allegation into account:

(1)    There is direct evidence from each of the employees of the Union that might have taken such a call that they did not receive such a call in June 2010 let alone refuse payment of any contributions.

(2)    There is direct evidence from the then Secretary of the Union that there was no direction to any Union employee in June 2010 to refuse payment of the applicant’s contributions.

109    The Union further says that if, notwithstanding the above submissions to the effect that the alleged refusal was irrelevant and the Court takes the allegation into account:

(1)    There is direct evidence from Mr Hudston that he did not refuse payment of the applicant’s contributions.

110    The Union then notes that if the Court does not find that there are reasonable grounds for causing an inquiry then there is no power in the Court to make interim orders under s 204.

111    The Union, having referred to the usual rules that govern the grant of an interlocutory injunction (such as Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [19]) notes that it may be open to question whether these necessarily limit the statutory grant of power relating to interim orders under s 204. However, it submits that there is no doubt that a court would not exercise the statutory power unless persuaded that to do so was in the interests of justice and would therefore be likely to have regard to whether there is a serious question to be tried and the balance of convenience on the grant of any interim order halting an election.

112    On behalf of the Union it submitted that the likelihood of success of establishing an irregularity for the purposes of an inquiry is not strong. As to the issue of balance of convenience, there would be considerable prejudice likely to be suffered by other interested parties, as explained in the evidence of Mr Pallot, Mr McDonald and Mr Hudston.

113    The Union notes that the applicant seeks interim orders that would involve the halting of the election process currently under way, which includes the mailing out of ballots for an election in relation to the two Assistant Secretary and five Divisional Branch Delegates to Divisional Conference (or Organisers) positions, none of which is being contested by the applicant. Rather, the applicant wishes to contest positions that have already been declared.

114    The Union submits the candidates for the positions of Assistant Secretary and Organisers are obviously capable of being affected by any order or interim order made in the election. For example, candidates, who are required to use their own resources during a campaign, have been campaigning since the close of nominations.

115    Here, the applicant did nothing for “exactly two weeks” before filing his application seeking interlocutory relief. If the applicant had acted with some haste once his nomination was rejected, then the cost and expense incurred by the candidates would have been mitigated. There is also that evidence that Mr Hudston is on leave from his employment and any prolonging of that situation may affect the efficient working of the Union.

116    The Union further submits that irrespective of whether the applicant is entitled to nominate for two positions of Secretary and President (notwithstanding Rule 38(a)(ii)-(iv)) there is currently no election on foot under Rule 39(h) for the positions the applicant has sought to contest. They have been declared. That is relevant to the issue of any interim orders. Although on one view it may be desirable that election for offices occur simultaneously, “by-elections” under the Rules are contemplated in circumstances where vacancies arise. Accordingly, if the applicant is ultimately successful following any election inquiry, and if the Court is minded to order a new election for offices, then that does not give rise to an unusual circumstance.

117    The Union submits that, if contrary to this submission, an inquiry is instituted and the Court is disposed to grant a form of interim relief, then the position of the Union is that, on balance, it would be preferable (if necessary) to have a separate election for the offices involving the applicant only without disturbing the current timetable.

The returning officer’s evidence

118    The returning officer, Mr Bulloch, has appeared by counsel and has put on an affidavit. He has held his position as Manager, Election Services Section for Western Australia since February 2008. Since commencing employment with AEC in 2006 he has been involved with or conducted as a returning officer at least 223 industrial and commercial elections for Western Australia and the Northern Territory.

119    Mr Bulloch confirms that the AEC is currently conducting the election for the offices in the Union in a number of divisional branches in Australia. He was appointed the Divisional Branch Returning Officer for the Union election in Western Australia on 17 July 2012. He then commenced taking the necessary steps for the conduct of the election in accordance with, amongst other things, the FWRO Act and the Rules of the Union.

120    Mr Bulloch states that on 15 August 2012 he was told by the AEC receptionist that a gentleman who identified himself as “Neil” was at reception requesting information regarding the Union election. When he attended at reception he saw the man who had identified himself as “Neil” standing near the elevators about to leave. He knew the man to be the applicant, Mr Mcjannett.

121    He spoke with him at the elevator. The applicant asked me to email him an election notice for the Union election, which he did soon afterwards. The following day he received an email from the applicant requesting nomination forms for the Union election and on 21 August 2012 he sent an email with the election notice and nomination form. Nominations opened on 31 August 2012.

122    Mr Bulloch’s says that on 21 September 2012 nominations were received from the applicant for the offices of Divisional Branch President, Divisional Branch Secretary, Delegate to Divisional Conference and Divisional Branch Assistant Secretary. Nominations closed at 4.00pm that day. He received these at 3.46pm.

123    On 24 September 2012, Mr Bulloch says he attended at the office of the Union to inspect the financial status records of all nominees and nominators. The membership records provided to him for the applicant included a “Cumulative Statement” which indicated the membership dues issued on 24 February 2010 for the period 1 April to 30 September 2010 were not paid by the due date, being 1 April 2010.

124    Mr Bulloch says that Rule 38(a) of the Rules provides, amongst other things, in respect of the three positions the applicant nominated himself for that any member of the Branch who is a financial member as provided for in Rule 6, at the time nominations are called and who has had continuous membership of the Divisional Branch during the period immediately preceding the calling of nominations for (3 years) and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial), may nominate.

125    Further, Rule 38(d) requires nominations to be signed by the candidate and by at least ten financial members of the Divisional Branch.

126    Rule 38(g) then provides that if a nomination is examined and found to be defective, the Divisional Branch returning officer must notify the person of the defect and give them the opportunity to remedy it, where practicable to do so, before rejecting the nomination.

127    On 25 September 2012 he then sent an email to the applicant, attaching a letter he wrote to him the same day advising him that it appeared his nominations were defective because they did not comply with Rule 38(a)(i)(B) or Rule 38(d).

128    At about 4.25pm on the same day, the applicant emailed him and then at about 5.51pm on the same day the applicant again emailed him. The next day, 26 September 2012 at about 1.26am the applicant sent yet a further email to him. Then, on 27 September 2012, he received a further email from the applicant sent at about 9.25am, to which he responded at 10.11am on the same day. He then received a further email from the applicant at about 10.30am the same day, advising of the withdrawal of his nomination for Divisional Branch Assistant Secretary.

129    On 27 September 2012, Mr Bulloch says that at about 11.57am he received another email from the applicant in relation to the requirement in Rule 38 to be financial for three continuous years. That day at about 1.25pm he received a further email in relation to this Rule. Then at about 10.09pm, another email was sent by the applicant about Rule 38.

130    In the applicant’s email to Mr Bulloch, sent 25 September 2012 at 4.25pm, the applicant, amongst other things, stated:

I am not surprised these gangsters would pull a stunt like this and the realisation of the new rule puts the last piece into the jigsaw puzzle. In March 2010, whilst I was delayed in Bali union organisor Mrk Hudston refused payment of my union dues from my Step Son, Joshua Daley. After my return to Perth Hudston again refused payment of my dues when I approached him at the Collgar Wind Farm in September 2010 and told me to call the office.

When I subsequently telephoned the union office I was told that I had to apply to the executive to retain my union membership. When I asked for an explanation it was not forthcoming. I subsequently obtained the union bank account details through another source and paid the money direct into the union bank account and demanded a receipt.

The union then responded with the attached spurious letters containing false allegations. When I requested further and better particulars by way of the attached letter they ran away. This matter has been extrapolated in the charges of rule breaches presently before the WAIRC. They obviously changed the rule for the distinct purpose to attempt to exclude myself from this election. This is clearly unfair and victimising. Hopefully you will rule that I am eligible and save having to go to the Federal court for a determination.

131    By the applicant’s email sent 25 September 2012 at 5.51pm, amongst other things:

Rule 38 was altered on 16 February 2010 predictably whilst I was in Bali. I draw your attention to the attached CFMEU letters in my previous email and the fact that on 6 December 2010 the President was content to quote a state union rule to me in a threat conveyed on a Federal union letterhead.

132    By the further email of the applicant, sent 26 September 2012 at 1.26am, he enclosed a copy of an affidavit filed in the Western Australian Industrial Relations Commission (WAIRC) proceeding FPM 6 of 2009. He also indicated that his son would be home at the end of the week and so would not be able to provide his sworn statement until Monday. He also indicated that before then he would provide further nominations to correct the three defective ones.

133    By the email sent 27 September 2012 at 9.25am, the applicant provided four further nominators and directed further comments to the “3 alleged unfinancial nominators”.

134    By the email sent 27 September 2012 at 10.11am, Mr Bulloch advised the applicant that he was advised that the office of President was neither fulltime or a paid position.

135    By the applicant’s email sent 27 September 2012 at 10.30am, the applicant withdrew his nomination for Divisional Branch Assistant Secretary but continued his nominations for Secretary and President.

136    By further email sent 27 September 2012 at 11.57am, the applicant advised Mr Bulloch that he had “just received advice on the 3 year schedule in rule 38”. He then directed argument as to the “black letter” meaning and other ways of approaching the Rule. In his view he should be “deemed to have 3 years continuous financial membership because I was a financial member according to the rules during the years of 2010; 2011; and 2012 and that is not even taking into account rule 6”.

137    By the email sent 27 September at 1.25pm, the applicant directed to Mr Bulloch a attached letter “containing argument against rule 38 amendment”. In the attached letter, amongst other propositions, the applicant advanced the view that:

If the rule 38 amendment in question, as it is published was held down to a black letter then the only members eligible to stand for election would be those who had an advance credit of no less than the equivalent of one 6 monthly subscription at the time accounts were sent to the members and entered into the ledger and it would still not be clear which part of which 3 years they are referring to…

138    By the email sent 27 September 2012 at 10.09pm, the applicant referred to the letter he had sent “yesterday” and directed some analysis to the account which was issued on 28 August 2012 and debits on the ledger on the same date. He also sought to develop argument concerning the meaning of “outstanding” as meaning “not yet dealt with”. He further stated there was no way the Rule could prevent his nomination and concluded by hoping to hear some good news from Mr Bulloch by the close of business “today”. I take this email to have been sent by the applicant on the understanding that, while sent at 10.09pm on 27 September 2012, it would not in fact be read and considered by Mr Bulloch until the next day, 28 September 2012, thus the reference to close of business “today”, and the letter of “yesterday”.

139    Then, on 2 October 2012 the applicant delivered to his office a letter addressed to him and dated 2 October 2012 in response to his letter dated 25 September 2012. By the applicant’s letter dated 2 October 2012 to Mr Bulloch, reference was made to Mr Bulloch’s letter of 25 September 2012, referring to the alleged defects in the nomination due to Rule 38. Two statutory declarations with several annexures were enclosed with his letter, one being a statutory declaration of the applicant, dated 2 October 2012, and the other being a statutory declaration of Mr Daley, the step-son of the applicant, also made 2 October 2012 and containing certain annexures.

140    Mr Bulloch says on 2 October 2012 he sent an email to the Union requesting additional information in relation to the applicant, being “member 616293” and at about 2.40pm that day he received an email from Mr Jack Nicholas of the Union in response.

141    The next day, 3 October 2012, he received a second email from Mr Nicholas correcting dates in the earlier email.

142    On 5 October 2012, Mr Bulloch says he wrote to the applicant advising him that his nominations were rejected because they did not comply with Rule 38(a)(i)(B).

143    On 5 October 2012, eligible nominations were accepted and all candidates advised accordingly that day.

144    Mr Bulloch says that at about 5.26pm on 5 October 2012, he received an email attaching a letter from the applicant dated 5 October 2012 addressed to him, in response to his earlier letter of that date.

145    On 8 October 2012, the uncontested offices were declared and all candidates advised by letter of that date, as was the Union.

146    On 10 October 2012, Mr Bulloch wrote a letter to the applicant in response to his letter of 5 October 2012.

147    On 22 October 2012, the applicant personally delivered a “Form 5 Application” commencing WAD 282/2012 to his office and then on 23 October 2012, he received an email from the applicant.

148    Then, on 25 October 2012 Mr Bulloch received an email from the applicant regarding a decision of the Federal Court relating to the Health Services Union.

149    Mr Bulloch says that at the time of making his affidavit, 5 November 2012, the following steps are scheduled to occur in relation to the Union election in accordance with the FWRO Act and the Rules:

(1)    on 7 November 2012, the roll of voters will be delivered to the printer/mailhouse;

(2)    on 7 November 2012, the printing of the addresses of eligible voters on to the declaration envelopes will occur;

(3)    on 8 November 2012, the final of the ballot paper and candidate statements will be delivered to the printers to prepare the artwork. It is anticipated this will be completed and the proof will be approved on the same day;

(4)    between 8 and 12 November 2012, the ballot papers, candidates statements and the ballot material envelopes will be printed;

(5)    on 12 November 2012, the ballot will open with the posting of the ballot papers;

(6)    on 26 November 2012, at 12 noon, the ballot will close;

(7)    on 26 November 2012, between 12.30pm and 5.00pm, the scrutiny will begin;

(8)    from 27 to 29 November 2012, the scrutiny will continue;

(9)    on 30 November 2012, the election will be declared; and

(10)    on 3 December 2012, the post election report will be completed.

applicant’s submissions in reply

150    The applicant notes that the Union highlights that the irregularities alleged in the substituted originating application are fewer than the range of allegations apparently covered by the initial originating application filed in the proceeding, that depended upon alleged breaches of s 142(1)(c), s 143(1)(c), s 166(1), s 167(1), s 172(1), s 190 or s 195(3)(a) of the FWRO Act. The applicant states:

This may very well be the case but insofar as to say there has not been breaches of those sections by the Respondents. The applicant has merely attempted to narrow down the scope of the application concerning an irregularity which turns predominantly on the fact that the union refused payment of his dues on a number of occasions as opposed to a matter of unjust or oppressive rules to give incumbent office holders an unfair advantage.

151    I understand the applicant’s submission to accept that he has narrowed the grounds in the substituted originating application. As explained above, my understanding, following the initial hearing when the question of whether the applicant was seeking to challenge the Rules as such and in the course thereof seeking an interlocutory injunction to prevent the current vote going forward, or intended to bring an application under s 200 with consequential application for interim orders under s 204 was raised. The applicant then indicated that it was the latter course that he wished to take and to that end, he proposed that the current originating application should be substituted by a new application and that a new affidavit in support of the substituted application would also be filed, along with an application for interim orders. It was understood by him that the substituted application needed to be in form of form 85 and the application for interim orders needed to be in the form of form 86.

152    As to whether the evidence the applicant has adduced relates to the period before or after 1 April 2010, the applicant says that almost all of the grounds relate to evidence that post-dates 1 April 2010.

153    As to the Union submission that while in Bali there were a number of means that the applicant could have taken to ensure payment of his dues, the applicant says that if the Union do not send an account in the mail then there is no means by which to pay the account electronically. It was not open to him to pursue other means. He then, in his written submissions, would appear to seek to give further evidence concerning having had limited access to telephones and so instructed Mr Daley to attempt other known method to pay the account, short of tracking down a Branch organiser to attempt to pay by cash.

154    The applicant also says that the Union asserts that the ultimate payment was made electronically, when in fact it was not. He says the banking records attached to the affidavit of Ms Pallot “have been obliterated to conceal the fact it was a branch deposit not an EFT transfer and no explanation has ever been supplied why the alleged payment is shown as being received on 6 December 2012 in the union ledger”.

155    As to the Union’s submission that the applicant has delayed the commencement of these proceedings and waited exactly two weeks before filing the application, the applicant says this is not true and the evidence shows he engaged in communications with the returning officer during that period in order to attempt to rectify the defect. He says he has still not seen evidence substantiating the allegation of an EFT transaction on 12 November 2010.

156    As to the Union’s submission that he accepts on his evidence that he fell into a period of unfinanciality during the time he was in Bali, the applicant says he does not accept that is so, he was forced into that position by “deliberate and calculated efforts from the union administration” who are ultimately responsible for the alleged defective nominations.

157    As to the operation of Rule 38(a)(i)(B), the applicant says it is oppressive, unjust and designed to unfairly advantage the incumbent office holders and that it also sets up a double standard because it conflicts with Rule 6(2) which provides that a member “shall be deemed to be financial immediately upon payment of all arrears outstanding”.

158    He also says that the Union has only recited the “irrelevant” part of Rule 6(2) leaving out the operative part that was applied to the 2008 election candidates rendering their nominations effective. He submits this is an outright attempt to mislead the Court and conceal the oppression and contradictions between Rule 6, Rule 382 and Rule 38. He says the undeniable facts are that a precedent was set in the 2008 election which assisted many of the “ALP sponsored Kavanagh and now the goal posts are being moved to effect an independent candidate not sponsored by a major political party”. The applicant says the Rule amendment to Rule 38(a)(i)(B) together with a 500% increase in the number of nominators required followed by forthright refusals to accept payments is a clear and underhanded attempt on the part of the Union “possibly in unison” at creating a monopoly styled quasi benevolent society and that “Democracy has been thrown out the window”.

159    The applicant says his step-son, Mr Daley, attempted to make a payment in the second week of March 2010 with a credit card and was refused.

160    In relation to the submission that the applicant was unfinancial from 1 April 2010 the applicant contends that the payment shown on the Union record as at 6 December 2010 did cure the position of unfinanciality for the purposes of Rule 6(2), as determined numerous times in the 2008 election. When the Union made adjustments to Rule 38, it was open to them to apply “the correct grammar and to amend rule 6(2) so as not to create a conflict”. However they did nothing and now wish to rely upon conflicting Rules.

161    The applicant submits that the Court should allow the inquiry, because to do otherwise would be to completely overlook all of the applicant’s evidence and deny him an opportunity to adduce further evidence. He notes that in Asmar v Australian Electoral Commission VID829/2012 (Asmar v AEC) presently in the Victorian Registry of the Court a halt to the Health Services Union Victoria No 1 branch election has been ordered whilst the applicant obtains and files further evidence. He submits that considering both he and Mr Daley have identified several other witnesses both before and since the application was filed, it is expected the applicant will be granted the same opportunities.

162    As to the Union’s submission that he only alleged that a statement of contributions for the period beginning 1 April 2010 could not be found in his mail and a Union receptionist refused Mr Daley’s attempt to pay such contributions, the applicant says there are two other instances when the applicant refused payment of his dues, which are in June 2010 as deposed to in his affidavit and again in November 2010 as deposed in his affidavit.

163    The applicant rejects the Union submission that evidence concerning what happened when he tried to pay after 1 April 2010 is irrelevant, the applicant says the attempt to pay can itself be deemed to having paid the subscriptions particularly in circumstances where the Union “are doing everything in their power to prevent payment”. It is not irrelevant because what happened after April 2010 “shows the ongoing vendetta the union were engaged in since the 2008 elections”.

164    As to the Union’s submission concerning the applicant’s allegation that he did not receive a statement, and that his evidence only is that he could not find it even though the statement was posted, the applicant says that this does not alter the fact that it is impossible to BPAY your membership without the six monthly statement. The Union are claiming they do not have proof of the posting because it is held on some other database. He says the standard of proof that the Union did not post the two separate accounts in 2010 is on the balance of probabilities and the evidence supplied by the applicant satisfies that.

165    The applicant denies the Union’s submission that it is incumbent on the member to remain financial. He says it is not incumbent on the member to remain financial when the Union administration are refusing to accept payment. Rule 6(2) provides that payment of arrears deems a person to be financial. He submits the Union are trying to maintain two arguments. If someone pays a full term and it is accepted as payment for a full term then the member must be deemed to have always been financial for the full term otherwise only a pro rata fee should be charged. He says the Union are open to a “fraud allegation” running this argument when they are happy to accept money on the pretence that you are now deemed to be financial for the full term under Rule 6(2) until it comes to a question of standing in an election “when they now move the goal posts”. He says it follows the Union could be sued for taking the past three years subscriptions under misrepresentation. The Rules allow that a financial member is eligible to all the benefits afforded to members of the Union. But this does not apply when the incumbent officers have a desire to stifle democracy.

166    As to the decision in Re Bailey and the dicta of Gray J, the applicant reiterates that it was not open to the applicant to remedy the situation while the Union were refusing to accept payments. As to the reference by the Union to the evidence that a Union representative did not refuse to accept Mr Daley’s attempt to make payment, the applicant says the weight of evidence goes against the submissions made on the balance of probabilities and before the applicant has been given the opportunity to collect further affidavit evidence from witnesses “associated with Joshua Daley at the time of March 2010 to whom he disclosed the events surrounding the refusal to accept payment from him over the phone”. It seems the applicant would also wish to impugne the credibility of “some office staff”, having regard other proceedings in the WAIRC.

167    As to the submission made on behalf of the Union that the evidence relied on by the applicant is in any event unsworn hearsay upon hearsay and such material cannot amount to a substantial factual foundation, he submits that it can once it is corroborated by “numerous other witnesses who are available to testify”.

168    As to the submission that there a number of ways in which the dues could have been paid, the applicant says these submissions are “preposterous given that payment had been refused in March 2010”. He says that nobody in their right mind would send cash in an envelope to a “dubious union office” that were refusing payment unless they were prepared to lose the cash forever. All other avenues were thwarted by the lack of an account and the temporary unemployment of the applicant as at March 2010.

169    As to the Union’s objection to the evidence the applicant seeks to give about his step-son making a telephone call in March 2010 and this being entirely objectionable and should not be treated other than cautiously, he says that s 75 of the Evidence Act, which provides that in an interlocutory proceeding the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source, is applicable “and the source of the evidence can also be corroborated by other witnesses”.

170    As to the further submission made on behalf of the Union that the applicant could have done more from Bali and employed one of the various ways paying the dues, he states that it was not proper to call the Union directly as they had been named as a party of interest after his arrest. In this regard, [22] of the submissions of the applicant in reply again purport to give evidence not already adduced through the applicant’s earlier affidavit.

171    The applicant says in any event he did not wait until November or December and telephoned the Union office shortly after returning to Perth in June 2010 as stated in [10] of his affidavit filed 2 November 2012.

172    He also says he was not aware of the BPAY details as they were known to change from time to time. He also says he did not have an account with him in Bali and did not have means to access BPAY. Thus, he relied upon his step-son.

173    The applicant says he was totally reliant on his dues being accepted and it is ultimately a fair and reasonable proposition to do so. He submits it does not follow that because the Union produce bills with BPAY facilities, that everyone who is a member of an electronic union with no other payment facilities. Before BPAY there was only cash or credit card.

174    The applicant also rejects any submission, having regard to p 9 of the Union’s outline of submissions, that he has attempted to hide something to do with the August 2009 account. He says the account was attached to the statutory declaration at Annexure D of his affidavit sworn 19 October 2012 and the fact that it was not included in the substitute affidavit has no relevance.

175    The applicant submits he has already deposed to the fact that he was not aware of the rule change until notification from the returning officer of the alleged defect.

176    As to employees in the Union office who have may taken a telephone call, the applicant rejects the submission and says the Union has not provided any proof of who all the employees were or who might have taken such a call and if they are still employed by the Union. He implies, in any event, that what has been said in a number of the affidavits cannot necessarily be relied upon without being tested through cross-examination and other evidence.

177    The applicant also states that Mr Hudston in his affidavit admits to refusing to take a payment.

178    The applicant asserts there is ample reason for an inquiry.

179    As to the further arguments as to why there should be no halt to the election because the positions the applicant is contesting have already been declared and the like, he submits that any decision that could ultimately end up with two separate election periods for the same federal union would be landmark, historic and damaging to the democratic process. He says there is no requirement for any candidate to fund election advertising and they do so at their own risk and this factor should not be given any consideration by the Court.

180    The applicant again rejects the assertion that he did exactly nothing for two weeks. His dealings with the returning officer took this long.

181    The applicant also rejects as irrelevant the suggestions that if Mr Hudston were obliged to return to work at the Union office he and persons such as Mr Pallot and Mr McDonald would not be able to get along and the effective or efficient operation of the Union would be adversely affected.

182    Similarly he rejects the submission of the Union in effect that his right to stand in an election should be denied in favour of not confusing members with a further vote.

183    As to the renewed submission of the Union that he was not relevantly financial at material times, he says the Union deliberately refused payment of his subscriptions and he was a financial member continuously for three years prior to the close of nominations by way of the acceptance of his six by six monthly subscriptions accepted by the Union, pursuant to Rule 6(2) and the fact that it was not in dispute that he was a financial member of the Union in 2010, 2011 and 2012. He says the rule only says three years continuous financial membership and does not say “three complete and consecutive years continuous financial membership”. Nor does it say “156 complete and consecutive weeks continuous financial membership” etc.

184    As to the Union submission that he fell outside of the requirement in those Rules by reason of his detention in Bali and that there were many methods available to him to pay his dues before 1 April 2010, the applicant asserts he did not fall outside the Rules “but moreover by way of an oppressive rule being introduced during his detention followed by the union repeatedly refusing payment of his subscriptions”. He denies there were several methods open for him to effect payment. He says it was only after much duress he was compelled to make an extraordinary cash deposit at Westpac Merredin branch.

185    The applicant submits that no evidence or submission has been provided by the Union explaining the extended period between the alleged EFT transaction on 12 November 2010 and the entry on the Union ledger at 6 December 2010. He says the Court is left to surmise that the applicant was somehow pertinent to receiving the long wait for a receipt and ticket. He says what did transpire on 6 December 2010 that is not mentioned in the Union’s submissions, was “a wholesale and disgraceful botched attempt in the President’s name to expel him from the union”. He notes that the President has not made any “submissions” in the matter – being a reference, as I infer, to the putting on of an affidavit.

186    The applicant also makes a number of observations concerning the affidavits filed on behalf of the Union.

187    Amongst other things, the applicant says that the evidence of the persons who work in the office does not preclude the possibility that other people took the telephone call off his step-son.

188    He notes that Ms Pallot “touches on the fudged part of the journal” where the applicant was unlawfully removed from the register but claims she had nothing to do with it and does not know who did.

189    He also notes that she discloses that she made the office manager aware of the deposit on 12 November 2010 but then goes on at [34] to say that no instruction as to what action to take was received until almost a month later on 6 December 2010 and no logical explanation for the delay has been provided.

190    As to Ms Arnold’s claim that she had never been directed not to accept a membership fee, the applicant says this contradicts what is “now known that the Executive made a resolution on 10 august 2010 that the union refuse any further applications for membership from Robert Mcjannett”.

191    As to the affidavit of Mr Reynolds, the applicant says he is “hardly going to come out and admit he caused the defective nomination after going to all the trouble of changing several rules to make it harder for anyone to nominate”. He also challenges, or would challenge, Mr Reynold’s credibility having regard to other proceedings.

192    As to the affidavit of Mr Bulloch, the applicant, in his written submissions (and without putting on an affidavit to support such evidence) states that he has “no idea who this Neil person is”. He states that he was not intending to go to the AEC on the day in question was let off at the wrong floor by the elevator, as has happened on other occasions. He says Mr Bulloch “approach me and asked if I had summoned him and I told him I had not and was attempting to get to the WAIRC”. He says that following this they had a discussion and Mr Bulloch asked if he was going to nominate again. He disclosed that he might and Mr Bulloch “offered to send me an advance copy of the election notice”, which he subsequently received.

193    Amongst other comments in relation to Mr Bulloch’s affidavit, the applicant draws attention to page 123 of the affidavit which shows the receipt issued by the Union on 6 December 2010 with, he submits, “no details printed in the lower 3 columns”. The applicant submits that there is no other known receipt like this and no explanation for it other than the Union were “fudging the records and conspiring to default the Applicant’s financial membership”.

194    He also says that the attachment SJB14 at [2(c)] discloses the directive by the Union executive to victimise him and the document has a bank statement attached to it which contradicts the claim in Mr Bulloch’s email to the applicant of 11 October 2012, depicted at RM8 where Mr Bulloch claims “I do not intend to seek the records you request”. The applicant says it is now clear that Mr Bulloch had a record all along but was frustrating the applicant by claiming he did not have it and was not going to seek it. He submits it is open to suggest that the returning officer was also engaging in activity to frustrate his nomination.

195    As to the bank statement at SJB14, page 178 of the affidavit, the applicant says this shows his was the only transaction on that day, or even the entire page that paid a six monthly subscription. He says this corroborates his claim that he was compelled under duress by the repeated refusals to accept payments to make an extraordinary branch deposit into an account that was not normally used for six monthly subscriptions.

196    In conclusion, the applicant submits:

    It is not in dispute that Mr Hudston refused payment of his dues on a day in November 2010 at the Collgar Wind Farm.

    It is clear the returning officer could not initially understand the entries in the Union ledger supplied to him.

    It is clear the President is staying out of the argument altogether since the application was filed and one can only assume it is because he can be called upon to explain the “botched attempt to expel the Applicant from the union”.

    No explanation has been offered by any party as to the long gap between the alleged EFT transfer on 12 November 2010 and the entries upon the Union ledger of 6 December 2010.

    No interpretation has been offered by any party as to the ambiguity of Rule 6(2) and Rule 38(a)(i)(B).

    No explanation has been offered by any party as to the delay in processing the payment received on 31 March 2011.

    No explanation has been offered as to why the returning officer withheld the bank record he was being requested by the applicant to obtain.

    No explanation has been offered as to why the bank record does not show any other six monthly contributions.

    No explanation has been offered as to why the applicant was deleted from the members’ register without prior notification or an opportunity to bring his account into order and moreover, no explanation or grounds have been supplied as to why the executive voted up a resolution to prevent him from ever being a member of their Union.

197    The applicant again draws attention to Asmar v AEC and says that in the case the judge rightly ordered a halt to the entire election process even though the applicant, Asmar, was running for only one position. He submits the same should happen here.

consideration of issues

198    The essence of the applicant’s complaints encapsulated in the two irregularities alleged in the originating application for an inquiry, is that he was prevented from standing for election in the current election process of the Union for the positions of President and Secretary because of perverse actions taken by or on behalf of the Union, or those who at material times have held influential offices or are its employees, designed to prevent him from being a financial member of the Union who is able to satisfy the Rules of the Union qualifying the right of a financial member from nominating for election to an office.

199    Part of the applicant’s complaint is that following his challenges to the election process in the Union in 2008 (to which generally Mcjannett No 1 and Mcjannett No 2 and the proceedings in the WAIRC referred to therein generally relate) steps were taken by the Union or the same group of officers about whose conduct he now complains, to amend the Rules either to make it harder for him to be an office holder of the Union in the future or to preclude him from being an officer holder in the future.

200    Central to the issues raised is Rule 38(a)(i)(B). It is however useful, in order to understand the present issues but also some of the communications that have passed between the applicant and the returning officer to note the terms of Rule 38(a)(i), (ii), (iii) and (iv):

(a)     (i)     Any member of the Divisional Branch who:

        (A) is a financial member of the relevant Divisional Branch as provided for in Rule 6, at the time nominations are called,

        (B) has had continuous membership of the Divisional Branch during the period immediately preceding the calling of nominations for the length of time specified in the scale in sub-rule (a)(vi) herein for the relevant offices and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial); and

        (C) was,

(i)     for not less than 9 months during the period of twelve months immediately preceding the calling of nominations employed as an employee in a trade or calling or branch thereof in or in connection with which the union is registered in the geographic area applicable to the relevant Divisional Branch, or engaged as an officer (as defined by Rule 37 herein) in the relevant Division or Divisional Branch (or in any state registered counterpart organisation thereto) or as an employee thereof after having been elected or appointed thereto; or

(ii) for not more than 3 months during the period of twelve months immediately preceding the calling of nominations, unemployed on account of illness, incapacity or inability to obtain employment

        may nominate for such positions according to that scale.

    (ii)     Provided further that no member shall be entitled to nominate for more than one full-time office.

    (iii)    Where a member nominates for more than one full-time position the Divisional Branch Returning Officer shall seek from the member an election as to which position the member wishes to contest.

    (iv)    Where no election is made by the member the Divisional Branch Returning Officer shall treat as valid only the nomination for the more senior position.

Seniority shall be determined in the following order:-

Secretary, Assistant Secretary, President, Organiser.

201     On 21 September 2012, which transpires was the last day on which a member could nominate for a position under Rule 38, the applicant nominated for three positions in the WA Divisional Branch: President, Secretary and Assistant Secretary. He subsequently withdrew his nomination for the position of Assistant Secretary.

202    The responsibilities of the returning officer, at material times, were to ensure that those members who had nominated for relevant positions met the eligibility requirements of the Rules, which included checking the following:

1.    Whether the person who has nominated is a “member of the Divisional Branch”.

2.    If so, whether the member is “a financial member of the relevant Divisional Branch as provided for in Rule 6, at the time nominations are called”.

3.    If so, whether the member has “had continuous membership of the Divisional Branch during the period immediately preceding the calling of nominations for the length of time specified in the scale and sub-Rule (a)(vi) herein for the relevant offices and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)”.

4.    Noting that the scale of continuous financial membership of the Branch necessary for members to be qualified to nominate for the positions including Divisional Branch Secretary, Divisional Branch Assistant Secretary and Division Branch President stipulated by (vi) is three years’ continuous financial membership.

203    Rule 6, referred to in Rule 38(a)(i)(A), provides for the payment of “contributions”. By Rule 6(1) the annual contribution payable by each member shall be fixed by the Divisional Executive on the basis that such contribution shall be no less than 1% of the carpenter base rate in the Building and Construction General On-Site Award 2010, or any award of Fair Work Australia replacing same, multiplied by 52, provided that the Division Executive may fix some other rate.

204    By Rule 6(2), in the first paragraph, any member who has failed to pay the entrance fee (specified in Rule 5), all contributions, levies and fines imposed in accordance with the General Division rules (in which Rule 6 appears) or the Divisional Branch rules on or before the date specified in the Divisional Branch rules, “shall be deemed to be unfinancial, and shall not be eligible, provided that the Divisional Branch rules may provide that such members or some class or classes of such members may vote in a ballot, to receive any benefits, participate in any deliberations, propose or second any new applicant member for admission, or exercise any authority or any membership rights”.

205    Rule 6(2), in the second paragraph, further states:

A member shall be deemed to be financial immediately upon payment of all arrears outstanding. Divisional Branch rules may provide that unfinancial members shall not be entitled to funeral, accident or any other benefits or to exercise any of the rights of members under Divisional Branch rules.

206    The applicant contends that there is, in a primary way, some inconsistency between Rule 38(a)(i)(B) where it provides, in parenthesis – “(irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)” – and Rule 6(2) in the second paragraph in the first sentence which deems a member to “be financial immediately upon payment of all arrears outstanding”.

207    In this case, at the material time, there is no doubt that under the Rules a member of the Union was required to pay the relevant contribution (or subscription or dues as they have been variously referred to in the affidavit materials and submissions) by 1 April 2010. As a matter of fact the contribution of the applicant that should have been paid by 1 April 2010 in order to make him a financial member of the Union at material times, was not received by the Union until either 12 November 2010, on one view of Ms Pallot’s evidence, or 6 December 2010, when the applicant says he paid the subscription by depositing $650 cash into the Union’s account with the Westpac Bank, Merredin Branch.

208    The Union sent a tax invoice to the applicant for payment of membership fees on 6 December 2010. This would appear to have been done in response to an email of the applicant says he sent to the Union’s office on 6 December 2010.

209    I will return to entries made in the Union ledger in November and December 2010 shortly which bear on the payment question.

210    It should also be noted, however, that on 6 December 2010, the Presidents of the Union’s Federal Division and WA Divisional Branch each sent a letter to the applicant, threatening to expel him from the Union for misconduct – the grounds for expulsion relating to events that had occurred in Bali, Indonesia involving the applicant as a result of which he had been made the subject of criminal proceedings in that country.

211    Subsequently, on 20 December 2010 the applicant responded to the expulsion letter rejecting the allegations made.

212    It appears that nothing further occurred in relation to the expulsion threat. The applicant is still a member of the Union.

213    Matters then moved forward in time to the latter part of this year, 2012, when Union elections including in the WA Divisional Branch were in prospect. On 17 July 2012, Mr Bulloch was appointed returning officer for the WA Divisional Branch elections.

214    On 15 August 2012, while there is some debate on the affidavit materials and other materials before the Court between Mr Bulloch and the applicant as to exactly what occurred that day, there is no dispute that the applicant and Mr Bulloch had a discussion near the reception of the AEC office in Perth as a result of which that afternoon Mr Bulloch emailed a draft election notice for the forthcoming Union election to the applicant.

215    Also not in dispute is that the next day, 16 August 2012, the applicant sent the returning officer an email request for nomination forms, which were then emailed by the returning officer to the applicant on 21 August 2012.

216    The opening day for nominations, that is to say the day that nominations were called for the purposes of Rule 38(a)(i) was 31 August 2012.

217    The closing date for nominations specified in the election notice and nomination form was 21 September 2012.

218    As noted above, the applicant lodged his nominations for the positions he nominated on the last day on 21 September 2012.

219    At the time therefore the returning officer was required to consider the eligibility for election of the persons who had nominated for positions for the purposes of the Union election and in particular considered the applicant’s nominations, the following circumstances reasonably appeared to the returning officer:

1.    That the applicant was a member of the WA Divisional Branch.

2.    That the applicant was a financial member of the Union, as provided for in Rule 6, at the time nominations were called, that is to say, on 31 August 2012, he having earlier made the $650 cash contribution to the Westpac Merredin Branch account of the Union on 6 December 2010 to deal with his contribution position.

3.    A further question for the returning officer was whether, in terms of Rule 38(a)(i)(B) the applicant was able to demonstrate “continuous membership” of the Union during the period immediately preceding the calling of nominations for the three years provided for by Rule 38(a)(vi). On the face of it he could, because, by virtue of Rule 6(2) in the second paragraph, first sentence, he was deemed to be financial immediately upon payment of all arrears that were then outstanding.

4.    The critical question for the returning officer, however, concerned the further requirement of Rule 38(a)(i)(B) that the applicant “has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)”.

220    As to the last requirement, the returning officer formed the view that the quoted words in the Rule meant that the applicant was not in a position to nominate for the positions set out in his nomination forms. Indeed, on the face of it, the applicant, not having been financial following the failure to pay the contribution due as at 1 April 2010, and only having become financial again following the payment of the arrears on 6 December 2010, fell foul of this last requirement notwithstanding he was otherwise deemed financial under Rule 6(2).

221    The applicant’s contention is that when one properly construes the meaning of the expression “and has not been unfinancial at any time during that period”, it is necessary to do so bearing in mind that Rule 6(2) deems a member to be financial once they have paid their arrears. He thus contends that there is some disconformity between Rule 38(a)(i)(B) in this regard and Rule 6(2).

222    In my view, however, it is necessary when construing this relevant qualification requirement of Rule 38(a)(i)(B) to regard the whole of the relevant qualifying expression, namely:

and has not been unfinancial at any time during that period (irrespective of whether any outstanding contributions are subsequently repaid to render the member financial).

When this is done it is, in my view, plain beyond serious doubt that the expression “has not been unfinancial at any time during that period” (the relevant period here being the three years preceding the calling of nominations) is not to be construed on the basis that a person who has paid their arrears and been deemed financial under Rule 6(2) is not affected by this qualification requirement, because the words in parenthesis – “(irrespective of whether any outstanding contributions are subsequently repaid to render the member financial)” – expressly deals with the Rule 6(2) deeming provision. Rightly or wrongly, these Rules only allow a financial member who has not been unfinancial at any time during the relevant preceding period to nominate for election to office.

223    In other words, it is expressly provided for, by Rule 38, that a member, who may be financial in all other respects, is nonetheless unable to nominate for a position because at a point during the relevant preceding period they had been unfinancial.

224    This may be considered by some to be an unfair qualification on the right of a financial member to nominate, but that presently is not to the point. There may of course be a range of reasons why members of an organisation may think that such a disqualification to the right to nominate is advisable. For example, it might be thought that persons who have not been financial at material times should not have the privilege of standing for office. Such a rule might also be thought to encourage the timely payment of contributions.

225    In this case the applicant believes that this Rule, in its current form, was made as a result of an amendment following his 2008 election challenge, and were made for precisely this eventuality – namely, his possible future desire to nominate for positions in the Union. As to those considerations there is no relevant material before me. For example, this consideration does not suggest any relevant breach of the Rules of the organisation or branch of the organisation that are involved, to which para (a) of the definition of “irregularity” relates. Nor do these considerations appear to involve any act or omission by means of which the full and free recording of votes by all persons entitled to record votes and by no other persons or a correct ascertainment or declaration of the results of the voting is or is attempted to be prevented or hindered, for the purposes of para (b) of the definition. Nor can I see in these considerations, any possible contravention of s 190 of the FWRO Act, to which para (c) of the definition relates, which provision makes it an offence for an organisation or branch to use or allow to be used its property or resources to help a candidate against another candidate in an election under Pt 2 of Ch 7 of the Act for an office or other position.

226    The applicant, as noted above, complains, however, that the Union or persons on behalf of the Union or particular officials said or did things that prevented him from being able to satisfy the nomination qualification in Rule 38(a)(i)(B), because, as he alleges, when his step-son, Mr Daley, contacted the Union office to deal with payment of the dues in about March 2010 (while the applicant was incarcerated in Bali, Indonesia), the person he spoke to refused to engage with him. I will return to the detail of this allegation shortly.

227    What should be said at this point, however, is that the applicant also alleges that subsequent to 1 April 2010, after his return to Australia, he endeavoured on other occasions to make payment of the relevant contribution as at 1 April 2010 to representatives of the Union, such as Mr Hudston, who would not accept it. The point needs to be made, however, that if at such a later point, it had been received, it would simply have been the payment of arrears. While the acceptance of the payment at that point would then have made the applicant financial under the deeming provision in Rule 6(2), his position would have been no different from what it subsequently came to be when he says he paid $650 cash into the Union’s account at the Westpac Branch in Merredin on 6 December 2010. In other words, the disqualification against the right to nominate expressly provided for in Rule 38(a)(i)(B) would still have applied.

228    Thus, the critical question is whether steps were taken to prevent the applicant from becoming financial in a timely way prior to 1 April 2010, as he alleges in his originating application. If there are reasonable grounds for the making of this allegation, then it might be contended by the applicant that an irregularity, as defined, can be pointed to in that such a fact would suggest a breach of the implied obligation of the Union to accept the contribution of a person entitled to be a member of the Union. At all material times in March 2010, the applicant had been accepted as a member of the Union and his earlier contributions had been received and there is no question of him not having been financial at those earlier times.

229    In my view, if it could be established that there was any deliberate strategy undertaken by or on behalf of the Union or an elected officer, such as the Secretary, at all material times, to prevent the applicant being financial as of 1 April 2010, then there would be evidence that suggests a breach of the Rules of the Union in relation to the payment of contributions. What then is the evidence of any such deliberate strategy or to prevent the applicant being financial as at 1 April 2010?

230    On the material before the Court there is a paucity of direct evidence. The Secretary of the Union at material times, Mr Reynolds, expressly denies giving any such instruction to prevent anyone on behalf of the Union, including staff, from taking the 1 April 2010 contribution from the applicant. While the applicant, in effect, says “Well he would say that wouldn’t he?”, the fact remains that there is nothing to suggest any such instruction was given by Mr Reynolds, unless from all the circumstances of the case laid out in the materials before the Court, there is something to support a reasonable inference that this may have occurred, an inference that goes beyond speculation, an inference that has some reasonable foundation in the facts.

231    All the persons who apparently worked in the Union office at the time say that they were not given any such instruction and there was nothing ever done by them to prevent the applicant becoming financial as at 1 April 2010.

232    Mr Hudston, albeit that the events concerning him were after 1 April 2010, admits that he did not receive a cash contribution of $650 from the applicant near Merredin, but explains that this was because he did not carry a receipt book and did not receive such sums of money. He denies that he acted as he did by reason of any instruction, express or implied as I would understand it, not to allow the applicant to become financial. It was entirely by reason of practical consideration that he declined to take the dues.

233    Again, the applicant says of the staff members and Mr Hudston that their evidence may not withstand further inquiry and cross-examination.

234    But from the Court’s perspective based on this evidence there is little, or indeed nothing much else, to enable the Court reasonably to think that an irregularity in the nature of the breach of the Rules of the type identified above, has occurred. To so find on this evidence would be entirely speculative and not built on a sound factual foundation, being the test propounded by the authorities cited by the Union, such as Re Post.

235    The two particular pieces of evidence that the applicant necessarily points to, from which he says a positive finding can be made or from which inferences can be drawn are, first, what his step-son, Mr Daley, states in the statutory declaration he made on 2 October 2012, and secondly, the evidence of how the Union actually handled and accounted for his contributions of $650 paid on 6 December 2010 and the unusual ledger and journal entries made by the Union in relation to his membership.

236    Dealing firstly with Mr Daley’s statutory declaration, it seems to me that it is appropriate on an application made under s 200 for the Court to have regard to any materials that are reliable. As explained in Mcjannett No 1, the process by which an inquiry is instituted under s 201 does not involve a formal “proceeding”. It is not an occasion for the calling of witnesses and documents by subpoena. Nonetheless, I have permitted the respondents joined by the applicant to put on affidavit material. Rather, the Court considers materials brought forward in order to decide whether there are “reasonable grounds” for instituting an inquiry. The materials that might lead to the Court being satisfied that there are reasonable grounds may not be materials or information that necessarily satisfy the rules of evidence laid down by the Evidence Act. Into this category fall the statutory declaration apparently made by Mr Daley. He has not made an affidavit in this proceeding. His statutory declaration has been annexed to the affidavit made by the applicant, which is filed. It was earlier given to the returning officer. The applicant says that Mr Daley could make an affidavit, and indeed he could call other people to make affidavits that would verify that what he says in his statutory declaration is something he told them about at earlier times.

237    As to the latter proposition, it may be said usually to be irrelevant how many persons can be called to corroborate the fact that a person has told a number of people what he now states is true. The critical question is whether, in the circumstances, there is sufficient in what Mr Daley would apparently say to any inquiry, based on what is in his statutory declaration, especially when taken with all the other facts and materials currently before the Court, for the Court to consider there is a reasonable basis to consider whether: (1) what Mr Daley says is so; (2) that staff members who have said they did not speak to him or give any such advice along the lines alleged either have addressed some other issue or are perhaps mistaken; and (3) if there is any reasonable basis for thinking that what has been described by Mr Daley could be linked to any deliberate strategy which had been conveyed to staff members to prevent the applicant from becoming financial prior to 1 April 2010.

238    Without relevant context, I am simply unable to make much of what is said by Mr Daley to have occurred. What Mr Daley states in [3] and [4] of his statutory declaration is that he recalls the applicant telling him by telephone from Bali that the Union dues needed to be paid in about a fortnight, thus he places the telephone conversation with the applicant in mid-March 2010. He checked the applicant’s mail but could not find any bill from the Union for an account due at the end of March. He told the applicant this and the applicant asked him to telephone the Union office “and offer to pay the bill via credit card over the phone”. He says he subsequently telephoned the Union office that same day to pay the bill and “was told the union would not accept payment of Robert’s account and the receptionist refused to give any reason why before terminating the call mid conversation”. Members of staff have gone on oath in their affidavits to deny speaking to Mr Daley or someone in such terms.

239    I do not think that what is said in prospect by Mr Daley provides reasonable grounds for the instituting an inquiry. Assuming for present purposes that Mr Daley telephoned the Union office, it is quite unclear as to who, if anyone, he spoke to. The evidence from Ms Pallot is that amongst others in the office there is a receptionist. As to exactly what the conversation was and the details of it, the substance of it is not relayed in Mr Daley’s statutory declaration. He simply says he “telephoned the union office that same day to pay the bill”. It may be surmised perhaps that he said he wanted pay the bill of the applicant and to pay it by credit card, but this requires some surmising. Even if one surmises that, it is not clear from evidence that such a specific request – to pay the applicant’s dues – was rejected. All that is stated, without it being stated to be the words used or words to that effect is that “I was told the union would not accept payment of Robert’s account”. One must again surmise that there was a specific discussion about the payment of the applicant’s dues, not just some general discussion about payment of dues of a member over the telephone using a credit card. The subsequent statement by Mr Daley that “the receptionist refused to give any reason why before terminating the call mid-conversation” creates perhaps a suggestion that the telephone discussion was rudely interrupted. The tenor of the conversation is laid out in [4] of the statutory declaration is that, once the person in the office who took the call was aware that it was the applicant’s account that was being discussed that produced a negative response.

240    On its own the difficulty with this evidence is that, even if one were to accept the tenor of the conversation implied by [4] of the statutory declaration, there is no other evidence from around that time, prior to 1 April 2010, to suggest that a member of staff, apparently the receptionist taking an unsolicited call from Mr Daley, and apparently not passing the telephone to any other person in the office, would have rejected a request to pay the dues by credit card because, in effect, the applicant’s name was on some black list in the Union office.

241    As I say, I do not consider that on the basis of what is contained in Mr Daley’s statutory declaration there are reasonable grounds for instituting an inquiry.

242    The next question is whether what Mr Daley has said can be given any greater significance when put in context with any other demonstrable events.

243    As to the journal entries made in August 2010, to which Ms Pallot refers, one is left with the distinct impression that the applicant was, at that time, a person who must have been known, at least by reputation to members of staff in the office.

244    There is a range of evidence or materials that suggest that at least from about August 2010 the Union was beginning to treat the applicant as if he were no longer a member or in fact took steps effectively to treat him as if he were not a member. First, there is the journal entry in the cumulative statement for 17 August 2010. Following entries made, the membership details for the applicant show his account balance was altered to be $0.00. Ms Pallot in her affidavit says she does not recall being the individual who made the relevant entries. However she notes that the type of entry made is used to adjust a member’s fee, which can be done for resignations, waiving fees, balancing direct debits and deleting a member. She says that basically an individual is altering the member’s account balance without an actual payment to apply against it. It is often used to bring a member’s balance to nil in order to “resign them out or delete them as you cannot make some movements on a membership unless they have a $0 balance”.

245    The reasonable inference to be drawn from this journal entry and the evidence proffered by Ms Pallot, and the fact that there is no evidence otherwise to suggest that the applicant made any payments at all or was otherwise dealing with anyone from the Union about the state of his account at this point, that somebody within the Union intentionally took steps to move the applicant effectively to a resigned or deleted membership category.

246    The result of being put into such an effective category is that, according to Ms Pallot’s other evidence, no correspondence and invoice will be generated in respect of that “former” member by the computer system thereafter. As a result, the 1 October term payment advice would not be sent out to that person thereafter. In other words, so far as the computer system was concerned, the applicant did not exist as a member.

247    This view of the journal entry made in August 2010 and its significance is confirmed by the letter of the returning officer to the applicant dated 10 October 2012, which was one of the last exchanges in the flow of correspondence between the applicant and the returning officer during September and October 2012. In the second paragraph of the returning officer’s letter, he states that on 25 September 2012 he notified the applicant that his membership fee issued on 24 February 2010 “was not paid until 17 August 2010”. He further states that he assumed the credit made to the membership record on 17 August 2010 “was a payment of your membership fee”. The returning officer then indicated that he conducted further investigations and “on 2 October I was advised” of certain things then set out. I take it from the fuller context that the returning officer was advised of certain things by or on behalf of the Union. The things he was advised included:

    CFMEU placed the applicant’s membership on a “deleted member list” and that the credit of 17 August 2010 was entered to facilitate “that move”.

248    There can be little doubt that the Union moved the applicant to the “deleted member list” at that point.

249    The returning officer’s letter of 10 October 2012 also indicates that he was advised by or on behalf of the Union that it had received an EFT payment of $640 from the applicant on 12 November 2010 and that the journal entry then made was to facilitate the move of the applicant from the deleted member list back to the active member list. The returning officer was also apparently advised that the $640 payment was not processed until 6 December 2010. While he owed $650, as Ms Pallot states in her affidavit, the $10 short was waived.

250    The applicant is, however, adamant that he in fact paid $650 cash to the Union by depositing that money in the Union’s account via the Westpac Bank’s Merredin branch on 6 December 2010, and did not, by clear inference, make any payment of $640 on or about 12 November 2010. According to his evidence, the applicant unsuccessfully tried to pay Mr Hudston $650 cash on 24 November 2010 at the Collgar Wind Farm. He says Mr Hudston refused to take the money and claimed all union officials had been instructed by Kevin Reynolds not to accept payment of his dues “and that the Executive wanted to meet me about some issues”.

251    While the applicant is adamant that he paid $650 cash at the Westpac Branch, Merredin, directly into the account of the Union, and did not undertake any EFT transaction and did not undertake any such transaction on 12 November 2010, only on 6 December 2010, he does not produce any receipt or the like and appears to rely otherwise on his own recollection of events. He says the $650 cash was the same bundle of cash that Mr Hudston had refused to accept a week or two earlier.

252    To make the evidence of this transaction even more confusing, a document has been produced by Ms Pallot as LP1 to her affidavit that is said to be an extract of the Westpac Community Solutions Cheque Account of the CFMEU Construction and General Division account, showing on 12 November 2010 a “DEPOSIT Robert Mcjannett 616293” for $640. Unless this document is to be ignored or some other evidence is to be given to explain its provenance or the significance of the apparent deposit by the applicant, it speaks to a payment of $640 on 12 November 2010, not a payment of $650 on 6 December 2010.

253    In the end, on these materials I am simply unable to resolve those discrepancies. Ordinarily one would give weight to the documentary evidence, if it is reliable. There is no reason to think why someone within the Union would have caused a payment of $640 on account of the applicant and there is no other suggestion that anybody else did so on behalf of the applicant. There is always the possibility, although denied by the applicant, that he in fact made the payment of $640 at some earlier time than 6 December 2010 and closer to the time of his dealing with Mr Hudston in November 2010. He has not at this point produced any of the documentary materials that he says confirm the 6 December 2010 payment.

254    What also occurred about 6 December 2010 is that the applicant received a letter of that date from the President of the CFMEU WA branch and an identical letter from the President of the CFMEU alleging breach of the Rules of the Union, by “gross misbehaviour” and referring to the fact that the applicant had recently returned to Australia “after serving a custodial sentence consequent upon you being found guilty of drug importation”. He was advised the Executive was currently giving consideration to its powers to expel him from the Union and he was invited to respond within 14 days. As noted above, the applicant did respond and nothing has become of those threats. It might be, however, that those events of around 6 December 2010 have led the applicant to confuse the time at which he made the payment to the Westpac in Merredin. Although, as I say, he is adamant that he is not confused about that.

255    The applicant in his submissions demands that the Union explain why, if they received the $640 payment on 12 November 2010, it took until 6 December 2010 for the appropriate journal entries to be placed in the ledger and his arrears to be recorded as paid.

256    The evidence put on by the Union does not fully explain the apparent delays recording the payment eventually on 6 December 2010 and sending out the tax invoice by way of receipt on that date. I would surmise, however, that the delays are to be explained, when one has regard to the chronology of events, by the decision of the two Presidents to send out the notice of expulsion letters on 6 December 2010. I would infer that in light of the payment received by the Union in mid-November 2010, and having regard to Mr Hudston’s apparent advice, according to the applicant, at about that same time that the Executive wanted to speak to him about some issues, that the issue of expulsion was then in mind of the Presidents. By 6 December 2010 they had formulated their letters and sent them out then. It would appear that about the same time the Union processed the payments and caused the applicant to once again become financial, pursuant to Rule 6. Events then awaited the outcome of the expulsion considerations, which as noted came to nothing.

257    The question in relation to all of these events that I have just recounted and commented upon is whether they, taken together or as a whole, suggest, first, that there was some communication by Mr Daley on behalf of the applicant with someone in the Union office in March 2010 and, secondly, whether at that stage one should infer that persons within the office had been instructed to prevent the applicant renewing his membership and, thus, being financial as at 1 April 2010. In my view this simply is not reasonably open. The later events are more likely to be explained, in my view, by reference to the fact that after 1 April 2010 the applicant plainly was not financial on the Union’s view of things and upon the realisation of that situation the applicant’s membership was moved to the deleted category in August 2010. In my view, there is nothing to support the reasonable inference that the plan for what occurred in August 2010 was, in effect, hatched as of March 2010.

258    There are a number of factors that I take into account in thinking this is improbable and why I consider the subsequent facts do not reasonably support such an inference. It was open to the applicant, whether by his own conduct of the necessary transactions or through his step-son, Mr Daley, to cause the payment of the Union dues by means other than that which Mr Daley says he attempted to conduct by telephoning the Union office. A copy of the current Union dues could have been acquired. The cash payment could have been made, as it subsequently was to the Union. The electronic means of payment of the account could have been pursued. The applicant’s case, in effect, is that Mr Daley, having apparently been rebuffed by the receptionist to whom he spoke in the Union’s office, simply did not pursue the matter further.

259    As I mentioned above, the scenario that the applicant paints necessarily involves all members of staff in the Union office in March 2010 having been alerted to the possibility that the applicant, or someone on the applicant’s behalf might telephone about the payment of his Union dues or with queries relating to this membership and that they had been instructed to rebuff any such inquiries and provide no cooperation in relation to the payment of the dues then payable. I see no evidence to enable this inference to be drawn.

260    In all of these circumstances, I do not consider there are reasonable grounds for instituting an inquiry, pursuant to s 201 on the grounds alleged by the applicant in his substituted originating application.

261    It follows that there is no basis for the making of any interim orders, pursuant to s 204 on the interlocutory application of the applicant for interim orders.

orders

262    The Court orders:

1.    The substituted originating application for inquiry filed 2 November 2012 be dismissed.

2.    The originating application for interim orders filed 2 November 2012 be dismissed.

263    I will hear from the respondents as to whether any other orders are considered appropriate in the circumstances, as well as from the applicant in the event that any other orders are proposed.

Associate:

Dated:    8 November 2012