ORGANISATION OF EMPLOYEES - Election of office bearers - Inquiry into irregularities - Application by application for order terminating inquiry - Unlikelihood that alleged irregularities would have affected result of the elections - Information on this matter apparent only through discovery process - Application for certificate that applicant acted reasonably in applying for the inquiry.
Industrial Relations Act 1988, ss.342 and 343.
ANTHONY CARNEY v DENNIS MATTHEWS & ORS
No. NI. 109 of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 27 MARCH 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 109 OF 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: ANTHONY CARNEY
Applicant
AND: DENNIS MATTHEWS
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 27 MARCH 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
1. The election inquiry be terminated forthwith.
AND THE COURT CERTIFIES THAT:
2. The applicant Anthony Carney acted reasonably in applying for an inquiry into the elections to the offices set out in his Application filed on 3 December 1993.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI. 109 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
BETWEEN: ANTHONY CARNEY
Applicant
AND: DENNIS MATTHEWS
Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 27 MARCH 1995
EXTEMPORE REASONS FOR JUDGMENT
WILCOX CJ: The matter before me today is an inquiry into alleged election irregularities, the subject offices being in the Construction, Forestry, elections to which were declared on 8 June 1993. The applicant, Anthony Carney, is a member of the union. He named as respondent, Dennis Matthews, the successful candidate for the position of Divisional Branch Secretary. Subsequently, the other persons declared elected were added as respondents, and counsel have appeared for them all.
The matter has been in the list on a number of occasions since the application was filed on 3 December 1993. There have been debates about access to documents said to be relevant to the inquiry and I have made a number of orders, the effect of which has been to require the organisation and its officers to provide documents, including the ballot papers, for inspection by those representing the applicant. A considerable amount of material has been filed pursuant to directions made by me, some of it in the form of affidavits and some of it in the form of proofs of evidence.
When the matter was called this morning, counsel for the applicant indicated that their client was disposed to invite the Court to terminate the inquiry but was concerned about the question whether or not the Court would be prepared to issue a certificate under s.343(1) of the Industrial Relations Act 1988. That subsection provides that:
"(1) Where a person has applied for an inquiry into an election but the Court does not find that the irregularity happened, the Court may certify for the purposes of this Division that the person acted reasonably in applying."
The practical significance of obtaining a certificate is that it operates as a qualification for an application to the Minister under s.342(1) of the Act that the Commonwealth provide financial assistance to the applicant.
Where an applicant puts before the Court that the case, on the facts known to the applicant, had sufficient merit to justify the seeking of an election inquiry; but, nonetheless, it is reasonable for the Court to terminate the inquiry without pursuing the allegations exhaustively to the point of making findings, the person walks a fine line. If there is no substance in the allegations at all, the Court ought not grant a certificate under s.343(1). On the other hand, if there is sufficient reason for thinking that there was an irregularity that may have affected the election, then it would seem incorrect for the Court to terminate the inquiry without making findings, notwithstanding the attitude of the applicant. However, cases will arise, and I think this is one of them, where there was material of such a nature as to cause legitimate initial concern to a member of an organisation but where, through the process of discovery which attends an inquiry, it becomes clear that any irregularity was unlikely to have affected the election result.
In the present case, it appears that there was a deal of discussion about the conduct of the election. The filed affidavits and proofs of evidence retail the content of conversations in certain hotels when allegations of irregularities were made. They might have been simply scuttlebutt. On the other hand, Mr Carney acted not unreasonably in attributing some credence to what was said; particularly as he heard it from more than one source. The information he obtained was hearsay; in some cases, apparently, even double or triple hearsay. Nonetheless, it was of such a nature as to cause a member to think that something irregular may have occurred.
The conversations that Mr Carney heard related mainly to allegations of multiple voting, the filling in of blank ballot papers by persons who were not entitled to do so. There is also material in the filed evidence which suggests that, on some building sites, what were called "job voting days" were organised; the members of the union being encouraged to bring to the site the ballot papers they had received by post at home. The material suggests that some members did so and ballots were completed in the presence of other union members or officers; the secrecy to which the voter was entitled being thus foregone. According to the allegations, on some, at least, of these occasions the ballots were returned directly to the union office rather than posted to the Returning Officer. I emphasise that the matters just mentioned are allegations. They are denied, and the Court has not yet undertaken such an inquiry as to enable it to say whether or not those events did in fact take place and, if so, to what extent.
There are also suggestions in the filed material that some people who were not financial members of the union, or members at all, were sent ballot papers. There was also a question raised about the issue of some honorary life memberships immediately prior to the election. It is not at all clear whether the people who received honorary life memberships, and there seems to be no doubt that some people were so honoured, were people already entitled to vote or whether the conferring of the honorary life memberships gave them a voting entitlement they would not otherwise have possessed.
In short, there are a number of questions raised by the filed material. Mr Rothman, on behalf of the respondents, has emphasised that all of these allegations are strenuously denied by his clients, and he has referred to the fact that they have put their denials in the form of affidavits. Accordingly, I emphasise that I am talking about allegations and not found facts.
The reason why counsel for the applicant submits that the election inquiry ought to be terminated is that, as a result of the lengthy investigation process which has been undertaken in preparation for the inquiry, the applicant and his legal advisers are satisfied that, even if the allegations of irregularity were established to the satisfaction of the Court, it is highly unlikely that the Court would make an order setting aside the result of any of the ballots. The reason for this is that s.223(4) of the Act provides that the Court shall not declare an election to be void, or declare a person not to be elected, unless the Court is of the opinion that, having regard to the irregularity found and any circumstances giving rise to a likelihood that similar irregularities may have happened or may happen, the result of the election may have been affected or may be affected by irregularities. In other words, although the Court may come to the conclusion that there has been an irregularity and has power to make a declaration to that effect, the poll is not affected unless the Court is satisfied that that irregularity or those irregularities may have affected the result. It seems to me that the applicant and his advisers are correct in reaching the conclusion that it is highly unlikely that they would overcome the hurdle presented to them by this subsection. It is a feature of the subject elections, in respect of each of the disputed offices, that there was a considerable margin between the lowest scoring elected person and the highest scoring unelected person. The lowest margin seems to be of the order of 1100 votes. In respect of most offices, including the senior offices of Secretary and Assistant secretaries, the margins are well over 2000. When one adds the number of votes which may have been affected by the various categories of irregularity suggested by the applicant, it is extremely difficult to see that, even if they were established, they would affect any of the offices. Probably the strongest element in the applicant's case is the allegation of multiple voting. This is supported, as to one of the ballots, by some expert evidence which itself is subject to challenge; but the significant point is that it shows that a maximum of 159 votes are suspect on this score. As I understand the expert evidence, it is not suggested that one person filled in 159 votes. The evidence only suggests that 159 votes are in a category where more than one ballot was completed by one person. Many of them are cases where only two or three ballots seem to have been completed by one person. A situation like that is not necessarily an irregularity. A member may legitimately ask a friend or relative to fill in a ballot for him, that other person also being an elector. Having regard to that fact, and the circumstance that in relation to the other allegations it is extremely hard to put numbers to them, I think it is unlikely that the Court would reach the conclusion that is required in order to enable it to set aside the elections.
I think that the applicant has acted responsibly in pointing out the situation to the Court at this stage. Five days have been set aside for this inquiry. It would have been unfortunate to occupy that time if no useful purpose could be achieved.
I am prepared to accede to both the applications put to me. I terminate the inquiry forthwith. I certify pursuant to s.343(1) of the Industrial Relations Act that the applicant Anthony Carney acted reasonably in applying for an inquiry into the elections to the offices set out in this Application filed on 3 December 1993.
I certify that this and the preceding six (6) pages
are a true copy of the Reasons for Judgment
of his Honour Chief Justice Wilcox.
Associate:
Dated: 27 March 1995
APPEARANCES
Counsel for the Applicant: F L Wright QC and D M Mendelssohn
Solicitor for the Applicant: Derek Zabow & Company
Counsel for the Respondent: S C Rothman and C T Loukas
Solicitor for the Respondent: Taylor & Scott
Date of hearing: 27 March 1995
