Re Inquiry into election in Australian Federated Union of Locomotive Enginemen, Victorian Division v. Ex Parte Emmett, John Maxwell [1978] FCA 49

Re Inquiry into election in Australian Federated Union of Locomotive Enginemen, Victorian Division v. Ex Parte Emmett, John Maxwell [1978] FCA 49

The notice requiring nominations to be mailed to the Returning Officer at Box 65 was properly construed as determining any official mail receptacle as the place for lodging nominations, so the applicant lodged his nomination for Central Branch Chairman when he posted it on 7 November 1977. Alternatively, if the notice purported to determine Box 65 as the place for lodging nominations, it failed to comply with Regulation 146AC because candidates could not directly lodge nominations there but had to depend on postal employees. The refusal to accept the applicant's nomination was therefore an irregularity, and the result of the election may have been affected. The applicant's delay was not...

Jurisdiction
Australia
Judgment Date
23 June 1978
Procedural Posture
Application Under Section 159 of the Conciliation and Arbitration Act 1904 for an Inquiry Into Claimed Irregularities in a Union Election / Referred by the Industrial Registrar to the Court Under S. 165 of the Act; Reasons for Judgment on Whether an Irregularity Occurred and Whether a Fresh Election Should Be Ordered
Outcome
Irregularity found; the Court decided that the proper course was to make an order for the holding of a fresh election.
Legal Topics
["returning Officer's Duty to Determine Place for Lodging Nominations" 'lodging Nominations by Post' 'p.o. Box as Place for Lodging Nominations' 'election Irregularity' 'fresh Election' 'delay']
['industrial Law' 'trade Union Election Law'] ["returning Officer's Duty to Determine Place for Lodging Nominations" 'lodging Nominations by Post' 'p.o. Box as Place for Lodging Nominations' 'election Irregularity' 'fresh Election' 'delay']

Case Brief

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Procedural Posture

Application Under Section 159 of the Conciliation and Arbitration Act 1904 for an Inquiry Into Claimed Irregularities in a Union Election / Referred by the Industrial Registrar to the Court Under S. 165 of the Act; Reasons for Judgment on Whether an Irregularity Occurred and Whether a Fresh Election Should Be Ordered

Legal Issues

  1. 1 ["Whether the Returning Officer's notice requiring nominations to be mailed to Box 65 determined the place for lodging nominations as Box 65 or as any official mail receptacle." "Whether the applicant's nomination for Central Branch Chairman was lodged at the place determined by the Returning Officer and within the nomination period." "Whether refusal to accept the applicant's nomination was an irregularity within the meaning of s. 4 of the Conciliation and Arbitration Act 1904." 'Whether any delay by the applicant justified refusing an order for a fresh election.']

Ratio Decidendi

The notice requiring nominations to be mailed to the Returning Officer at Box 65 was properly construed as determining any official mail receptacle as the place for lodging nominations, so the applicant lodged his nomination for Central Branch Chairman when he posted it on 7 November 1977. Alternatively, if the notice purported to determine Box 65 as the place for lodging nominations, it failed to comply with Regulation 146AC because candidates could not directly lodge nominations there but had to depend on postal employees. The refusal to accept the applicant's nomination was therefore an irregularity, and the result of the election may have been affected. The applicant's delay was not...

Court Disposition

Irregularity found; the Court decided that the proper course was to make an order for the holding of a fresh election.

Orders

  • ['An order is to be made for the holding of a fresh election for the position of Central Branch Chairman.' 'The form of the order was left open to discussion after delivery of judgment.']