Mellor, S. (inquiry into an election in Federated Liquor & Anor) [1986] FCA 467

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IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) Q6 of 1986 INDUSTRIAL DIVISION )

APPLICATION BY SHIRLEY MELLOR FOR AN INQUIRY INTO AN ELECTION IN THE FEDERATED LIQUOR AND ALLIED INDUSTRIES

EMPLOYEES UNION OF AUSTRALIA

MINUTES OF ORDER

JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 10 OCTOBER 1986 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. This matter be determined by the Court at a hearing to commence on Monday, 17 November 1986.

2. The affidavits to be relied upon be filed and served: -

(a) On behalf of J.E. Curtis, by way of supplementary material only, as soon as reasonably possible after such material becomes available to the said J.E. Curtis.

(b) On behalf of the applicant, Shirley Mellor, on or before 17 October 1986.

(c) On behalf of Messrs. Elton and Hardie on or before 31 October 1986.

2A. Oral evidence may be called at the hearing by leave only on the Court's being satisfied that special circumstances exist necessitating the giving of such leave.

2B. The persons who, to the knowledge of the said J.E. Curtis, make direct accusations relevant to the case against either or both of Messrs. Elton or Hardie be approached to make affidavits, and that such affidavits be filed as soon as possible, and if any of such persons is unwilling to make any

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affidavit, that he be subpoenaed and called at the hearing on behalf of the said J.E. Curtis.

Settlement and entry of orders is dealt with in Order 36 of the Federai Court Rules.

IN_THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) Q6 of 1986 INDUSTRIAL DIVISION )

APPLICATION BY SHIRLEY MELLOR FOR AN INQUIRY INTO AN ELECTION IN THE FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES UNION OF AUSTRALIA

PINCUS J. 10 October 1986

EX TEMPORE REASONS FOR JUDGMENT

In this matter Mr. Hanger Q.C., who appears with Mr. Diehm for Mr. Curtis, has drawn my attention to the fact that the inquiry may be somewhat embarrassed if, on the date set for hearing - which is now 17 November 1986 - it is unclear what

material is properly before the court.

Mr. Jerrard of counsel has pointed out that some of the material, and in particular the sheets, Exhibit "W", consists of conclusions as well as statements of primary fact. More importantly, Mr. Jerrard says that the answers to the circulars which constitute the large proportion of the primary facts should

not be received.

The view which I took when the matter was last before me was that a proper conclusion could be drawn from the material without the necessity of calling for the persons who have answered

circulars, and I adhere to that view.

It is, of course, open to any party to seek to call before the trial judge such oral evidence as he sees fit, but it has been my purpose to try to ensure that the matter 1s heard expeditiously and justly. Section 164(4) of the Conciliation and

Arbitration Act produces the result that the procedure of the

Court is, subject to the Act and Regulations, within the Court's

discretion and:

"the Court is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as 1t thinks just."

As I understand the attitude of Mr. Jerrard's clients, they propose to at least consider ignoring the order I made when the matter was last before me for filing of affidavits on their behalf, to attempt to conduct the matter as if it were a criminal trial by taking objection to the evidence and then, depending on the result of the objection, deciding what course they will take: whether to call evidence or not. It is not my intention to permit that to happen, and I therefore accede to Mr. Hanger Q.C.'s suggestion that I should rule now on the points raised by Mr. Jerrard, rather than leaving the whole matter to Gray J. T had initially thought it was convenient to leave Gray J. to deal with

all evidentiary points, but it turns out not to be so.

I therefore rule as follows: that the answers to the

circulars are properly received in evidence, and that under s.164(4)(b) the statements of conclusions made in the summary

sheets, Exhibit "W", need not be deleted. As to the latter, they

seem to me to be innocuous, the summary sheets are really just a

ready reference. and it 1s inconceivable to me that any judge would give any particular weight to conclusions that others might draw from the primary material, all of which has been made

avallable to the Court.

I therefore decline to strike out any of the evidence which is objected to. The orders which were made when the matter was last before me on 2 October need to be varied. Order 1 will

be deleted and replaced by the following order:

The matter be determined by the Court at a hearing to

commence on Monday, 17 November 1986.

Order 2 requires to be varied in the following fashion. 2(a) will

read:

On behalf of J.E. Curtis, by way of supplementary material only, as soon as reasonably possible after such material

becomes available to the said J.E. Curtis.

2(b), will be:

On behalf of the applicant Shirley Mellor, on or before 17 October 1986.

2(c), will be as it is. There will also be an order 2A:

Oral evidence may be called at the hearing by leave only on

the Court's being satisfied that special circumstances exist

necessitating the giving of such leave.

I will add order 2B:

That the persons who, to the knowledge of the said J.E. Curtis, make direct accusations relevant to the case against either or both of Messrs. Elton or Hardie be approached to make affidavits and that such affidavits be filed as soon as possible, and if any of such persons is unwilling to make any

affidavit, that he be subpoenaed and called at the hearing on

behalf of the said J.E. Curtis.

Order number 3 of my previous order made on 2 October 1986 is now

spent, and will be deleted. There seems to be no necessity

make a change in the subsequent orders.

* certify that this and the 3 preceding " > 95 areé a true copy of the reasons for ju! ment herein of His Honour

Mr Justice Pincus ptt igor Associate Dated /0 O-Cnleer 14 86

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