Derek Graham Nicholson v D J Mighell and others [1995] IRCA 563

Derek Graham Nicholson v D J Mighell and others [1995] IRCA 563

Messrs Main and Gray ceased to hold office when Messrs Mighell and Marshall were declared elected on 29 August 1995, because that declaration was operative until rendered void by the Court on 18 September 1995. Section 221(1)(c) empowered the Court to make a holding over order after the irregularities were found. Applying the preferable course of acting on the last expression of the voters' will, and with support from the State Council and the organisation, Messrs Mighell and Marshall should act in the offices pending the declaration of the results of the new elections.

Jurisdiction
Australia
Judgment Date
13 October 1995
Procedural Posture
Industrial Law Election Inquiry Concerning a Registered Organisation / Reasons for Judgment on Holding Over Orders After Elections Were Declared Void and New Elections Ordered
Outcome
Holding over order made for Dean Jonathan Mighell and Gavin Mark Marshall until declaration of the results of the new elections; liberty to apply reserved.
Legal Topics
['registered Organisations' 'election Inquiry' 'election Irregularities' 'construction of Union Rules' 'holding Over Orders' 'jurisdiction Under S221 of the Industrial Relations Act 1988']
['industrial Law'] ['registered Organisations' 'election Inquiry' 'election Irregularities' 'construction of Union Rules' 'holding Over Orders' 'jurisdiction Under S221 of the Industrial Relations Act 1988']

Case Brief

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Procedural Posture

Industrial Law Election Inquiry Concerning a Registered Organisation / Reasons for Judgment on Holding Over Orders After Elections Were Declared Void and New Elections Ordered

Legal Issues

  1. 1 ["Whether the organisation's rules meant Messrs Main and Gray continued to hold the offices of Branch Secretary and Branch Assistant Secretary after the 1995 election was declared void." 'Whether the Court had power under s221(1)(c) of the Industrial Relations Act 1988 to make a holding over order after finding an irregularity and ordering new elections.' 'Which persons should act in the offices of Branch Secretary and Branch Assistant Secretary pending declaration of the results of the new elections.']

Ratio Decidendi

Messrs Main and Gray ceased to hold office when Messrs Mighell and Marshall were declared elected on 29 August 1995, because that declaration was operative until rendered void by the Court on 18 September 1995. Section 221(1)(c) empowered the Court to make a holding over order after the irregularities were found. Applying the preferable course of acting on the last expression of the voters' will, and with support from the State Council and the organisation, Messrs Mighell and Marshall should act in the offices pending the declaration of the results of the new elections.

Court Disposition

Holding over order made for Dean Jonathan Mighell and Gavin Mark Marshall until declaration of the results of the new elections; liberty to apply reserved.

Orders

  • ['Until the declaration of the result of the election to be conducted for the offices of Branch Secretary and Branch Assistant Secretary in the Victorian Branch of the Electrical Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia...