William Curteis & Co Pty Limited, in the matter of an application for an inquiry relating to an election for offices in the Australian Hotels Association, New South Wales Branch [2003] FCA 927

FEDERAL COURT OF AUSTRALIA

William Curteis & Co Pty Limited, in the matter of an application for an inquiry relating to an election for offices in the Australian Hotels Association, New South Wales Branch [2003] FCA 927 WORKPLACE RELATIONS – elections - inquiry under s 218 of Workplace Relations Act 1996 (Cth) - inquiry into irregularity in election of delegates to Council of Australian Hotels Association, Leichhardt/Glebe and Wagga & District sub-branches – whether the election of delegates to Council of Australian Hotels Association, Leichhardt/Glebe sub-branch should be declared void. Workplace Relations Act 1996 (Cth) Sch 1B Workplace Relations and Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (Cth) Items 35 and 37 of Sch 1

Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1 referred to Re Churchill [2001] FCA 469; (2001) 109 FCR 104 referred to Prezbel Pty Limited v Australian Electoral Commission [2003] FCA 242 cited WILLIAM CURTEIS & CO PTY LIMITED v AUSTRALIAN ELECTORAL COMMISSION N 106 of 2003 BRANSON J 4 SEPTEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 106 of 2003

BETWEEN: WILLIAM CURTEIS & CO PTY LIMITED

APPLICANT

AND: AUSTRALIAN ELECTORAL COMMISSION

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 4 SEPTEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The election by the members of the Leichhardt‑Glebe sub-branch of the Australian Hotels Association, New South Wales Branch ('the Association') of delegates to the Council of the Association be declared to be void. 2. The Industrial Registrar be directed to make arrangements for a new election by members of the Leichhardt‑Glebe sub-branch of the Association of delegates to the Council of the Association. 3. The operation of the Rules of the Association be modified for the purpose only of enabling the new election referred to in paragraph 2 hereof to be held by removing, for the purpose of the new election only, the requirement of r 30.1(a) that nominations be called 'prior to 15 October in the year prior to the Election Year'. 4. The inquiry be otherwise terminated.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 106 of 2003

BETWEEN: WILLIAM CURTEIS & CO PTY LIMITED

APPLICANT

AND: AUSTRALIAN ELECTORAL COMMISSION

RESPONDENT

JUDGE: BRANSON J

DATE: 4 SEPTEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

introduction 1 On 24 March 2003 I published reasons for judgment which set out my views as to the proper interpretation of r 30.1(g) of the registered rules ('the Rules') of the Australian Hotels Association, New South Wales Branch ('the Association') (see Prezbel Pty Limited v Australian Electoral Commission [2003] FCA 242). It was hoped that the publication of the above reasons for judgment would render it unnecessary to continue this inquiry. Unfortunately that has not proved to be the case. These reasons for judgment should be read together with those earlier published. 2 The alleged irregularity upon which this application for an inquiry was based was an alleged irregularity concerning Paul Francis Taylor McGirr ('Mr McGirr'). Mr McGirr's nomination as a candidate for election in respect of the Mudgee sub-branch of the Association was rejected on the basis that only persons who were members or representatives of members as at 14 October 2002, the date when notice of the election was given, were eligible to be candidates for election. It was contended by the applicant that: '[t]he construction of the Rules of the Organisation applied by the AEC [ie Australian Electoral Commission] requiring that a candidate for election as a Delegate to a sub-branch should have been a member or nominated representative of a member as at 14 October 2002 was contrary to the true construction of the Rules of the Organization.'

By my earlier reasons for judgment I rejected the above contention.

3 The applicant now contends that, having regard to my earlier reasons for judgment, irregularities occurred in respect to the election for Delegate from the Leichhardt/Glebe sub‑branch and the Wagga and District sub‑branch. I accept that it is open to the applicant to advance that contention. Once an inquiry has been properly commenced, the Court may inquire into any irregularity disclosed by the evidence (Re Churchill [2001] FCA 469; (2001) 109 FCR 104 per Finkelstein J at [7] and the cases there cited).

background facts 4 On 24 September 2002 a Deputy Industrial Registrar ('the Registrar') indicated that he was satisfied that an election was required to be held under the Rules and he made arrangements for the conduct of the election by the Australian Electoral Commission (s 214 of the Workplace Relations Act 1996 (Cth) ('the WRA')). On the same day, Roy Hill ('Mr Hill') of the Australian Electoral Commission was nominated to conduct the election. 5 On 3 October 2002 Mr Hill proposed the following timetable for the election of delegate to the Council of the Association: 'Nominations open: 14 October 2002 Nominations close: 4 November 2002 at 12 Noon Ballot opens: 26 November 2002 Ballot closes: 10 December 2002 at 10:00am.'

The timetable proposed by Mr Hill was adopted.

6 On 4 November 2002, Lee Jones ('Mr Jones') was appointed to replace Mr Hill as the returning officer for the election to be held under the Rules. 7 A list of the nominations for delegates to Council received by noon on 4 November 2002 was prepared. The validity of the nominations had not at that time been checked. In respect of the Leichhardt/Glebe sub‑branch the list shows that the following candidates had been nominated for two vacancies:

McGirr Paul Francis Taylor Murphy Shaughn Thornett Maureen Susan Ward Scott

In respect of the Wagga & District sub‑branch the list shows that two candidates had been nominated for two vacancies. The nominees were:

Crouch Brendan Gurr Patrick

8 By letter dated 6 November 2002 Mr Jones sought information from the Chief Executive officer of the Association ('the CEO') concerning membership of the Association. The CEO by letter dated 7 November 2002 responded to the letter from Mr Jones providing him with information and expressing concern as to the eligibility of some persons nominated to take part in the election. In respect of the Leichhardt/Glebe sub‑branch the only concern expressed by the CEO was that Mr McGirr was unfinancial as at 14 October 2002 and did not pay the membership subscription until 25 October 2002. It is agreed (see [15] below) that the membership subscription paid on 25 October 2002 to which the CEO referred in his letter did not relate to Mr McGirr personally. The CEO expressed no concerns in respect of the Wagga & District sub‑branch. 9 Mr Jones accepted the nomination of Mr McGirr in respect of the Leichhardt/Glebe sub‑branch election. 10 By letter dated 12 November 2002 Mr Jones gave notice to Brendan James Crouch ('Mr Crouch') that it appeared that his nomination in respect of the Wagga & District sub‑branch was defective. By letter dated 13 November 2002 Phillip Ryan ('Mr Ryan'), the Membership Co-ordinator of the Association, advised Mr Jones that Mr Crouch was the nominated representative for the Farmers Home Hotel, Wagga Wagga. By letter dated 15 November 2002 Mr Ryan advised Mr Jones that the Association's records of the nominated representatives of three hotels, including the Farmers Home Hotel, Wagga Wagga and the Toxteth Hotel, Glebe, were incorrect as at 14 October 2002. The letter confirmed that Mr Crouch was the nominated representative of the Farmers Home Hotel, Wagga Wagga prior to 14 October 2002, and that Mr Murphy was the nominated representative of the Toxteth Hotel, Glebe prior to 14 October 2002. 11 A ballot was conducted in respect of the Leichhardt/Glebe sub‑branch. The result of the ballot was:

Candidate Votes Murphy Shaughn 17 Ward Scott 12 McGirr Paul Francis Taylor 5 Thornett Maureen Susan 16

On 10 December 2002 Shaughn Murphy ('Mr Murphy') and Maureen Susan Thornett ('Ms Thornett') were declared elected.

12 On 20 November 2002 Mr Jones declared Mr Crouch and Patrick Gurr ('Mr Gurr') elected unopposed as the delegate to Council for the Wagga & District sub‑branch.

consideration

Leichhardt/Glebe sub‑branch 13 The written submissions of the applicant that were filed, with leave, after the publication of my earlier reasons for judgment, contain the following paragraphs: '5. In conflict with the ruling of the Court in these proceedings the following irregularities occurred with respect to the election for Delegates from the Leichhardt/Glebe sub-branch: (a) Paul Francis Taylor McGirr was included as a candidate, although as at 14 October 2002 he was neither a financial member, nor a nominated representative of a member of that sub‑branch; (b) Shaughn Murphy was included as a candidate, although according to the records of the AHA as at 14 October 2002, he had nominated Sonia [sic] Murphy as his representative of that sub‑branch, which disentitled him to be a candidate himself. 6. There were four candidates for two positions as Delegates to the Council from the Leichhardt/Glebe sub‑branch. This was a contested office …. The result was as follows: Murphy, Shaughn 17 votes Ward, Scott 12 votes McGirr, Paul Francis Taylor 5 votes Thornett, Maureen Susan 16 votes Total 25 votes … 9. The consequences of the inclusion of Messrs McGirr and Murphy in the ballot for the two positions as delegates to the Council from the Leichhardt/Glebe sub‑branch was clearly significant. In truth, Messrs McGirr and Murphy were ineligible to vote and the position ought to be corrected by declaring the eligible candidates Mr Ward and Ms Thornett as the delegates for that sub‑branch. Alternatively, directions for a new election for the delegates from that sub‑branch should be made.' 14 I should record that Mr McGirr is the Chairman and Governing Director of the applicant. 15 For Mr McGirr to be eligible to be nominated as a delegate to Council it was necessary for him to be a financial member of the Association or a nominated representative of a financial member of the Association (r 30.1(g)). It is agreed that Mr McGirr has not personally been a financial member of the Association at any relevant time. 16 The form by which the Association was advised that Mr McGirr was the nominated person in respect of the employer of labour at the Kauri Hotel, Glebe is dated 21 October 2002. Rule 6(c) of the Rules requires a nomination of a Representative to 'be in writing and delivered to the Registered office of the Association'. Rule 6(e) provides that '[n]o nomination of a Representative shall be valid and effective unless and until the person nominated as Representative has been approved by a resolution of the Council'. It thus seems clear that Mr McGirr could not have been validly nominated as a representative of the employer of labour at the Kauri Hotel, Glebe as at 14 October 2002. I conclude that Mr McGirr was not eligible to be nominated as a delegate to Council. 17 By letter dated 12 November 2002 Mr Jones advised Mr Murphy that it appeared that his nomination for the Office of Delegate to Council representing Leichhardt-Glebe sub-branch was defective. The letter drew attention to the apparent nomination of Ms Sonya Murphy as Mr Murphy's representative. 18 Mr Murphy, by letter dated 14 November 2002 responded to the letter from Mr Jones concerning the validity of his nomination. Mr Murphy advised Mr Jones, amongst other things, that: 'You have informed me that I had in the past nominated Sonya Murphy as my representative. This was intended to be for a finite period, however formally revoking this nomination was overlooked. I have now remedied this situation and the nomination of Sonya Murphy as my representative has been revoked.' (emphasis in original) 19 Mr Ryan is involved in the day to day administration and management of the membership records and related data of members of the Association. In respect of Mr Murphy, Mr Ryan gave affidavit evidence as follows: '17. After nominations closed on 4 November 2002 I had a telephone conversation with Mr Lee Jones, the person then acting as returning officer for the Branch elections, who advised me that he had been contacted by a number of persons, including Mr Murphy, each of whom asserted that contrary to communications Mr Jones had made to members of the Branch in reliance on the records supplied to him by the Branch, those particular persons were the nominated representatives of the respective employers of labour in certain hotels, not the persons listed on the records of the Branch. 18. I recollect that in one of the telephone conversations I had with Mr Jones during the election he advised me that if upon re‑examination of the records of the Branch in respect of the persons who had complained to Mr Jones as to errors in these records, the Branch management came to the view that the records were incorrect, that he would be prepared to accept those persons as the duly appointed nominated representatives at their respective hotels. 19. I seek leave to refer to Annexure LJ45 of the Affidavit of Mr Jones referred to previously herein and note that by letter to Mr Jones dated 15 November 2002 I inter alia advised Mr Jones that the records of the Branch as at 14 October 2002 were incorrect in respect of the employer of labour at the Toxteth Hotel, and that the nominated representative of that Hotel should be regarded as Mr Shaughn Murphy. 20. The said assertion by me as to the status of Mr Murphy in respect of the Toxteth Hotel was made for the following reasons. Following representations by Mr Murphy to me, I examined the records of the Branch in connection with the employer of labour at the Toxteth Hotel and discovered that whilst a Ms "Sonya Murphy" was recorded on the relevant file as being the nominated representative there was no primary record in existence demonstrating the fact of her appointment to that position, or the appointment of any other person as the representative of that member. Because of that discrepancy, and because Mr Murphy had clearly been acting as and been recognised by the Branch officers as a nominated representative (instanced particularly by his appointment to the Council of the Branch in June 2002 to fill a casual vacancy on the Council), I took the view that the records were incorrect and that Mr Murphy was in fact the nominated representative. Therefore I accordingly advise Mr Jones of my conclusion, as set forth in my letter a copy of which is Annexure LJ45 to the Affidavit of Mr Jones. Annexed hereto and marked with the letter "D" is a true extract from the Minutes of the June 2002 Council meeting concerning the appointment of Mr Murphy as a delegate to fill a casual vacancy.'

Mr Ryan was not cross‑examined by any party. Nor were the relevant records of the Association placed in evidence.

20 It was argued by the applicant that: 'Contrary to the assertion by Mr Ryan in his affidavit, the letter of 14 November 2002 sent by Mr Murphy to the Returning Officer … makes it clear that the revocation of Mr Murphy's appointment of Sonia [sic] Murphy as his nominated representative was "overlooked" until 14 November 2002. Plainly, as at 14 October 2002 the records of the AHA were correct in that Ms Murphy's nomination as Mr Murphy's representative was unrevoked and operative. This disentitled Mr Murphy himself to nominate as a candidate for the sub-branch of Leichhardt/Glebe.' 21 In my view, nothing in Mr Murphy's letter of 14 November 2002 necessarily contradicts the unchallenged assertion made by Mr Ryan in his affidavit that: '[t]here was no primary record in existence demonstrating the fact of her [ie Ms Murphy's] appointment to that position [ie representative of the employer of labour at the Toxteth Hotel], or the appointment of any other person as representative of that member.' 22 If Ms Murphy was not validly nominated as Mr Murphy's representative, a later purported revocation by him of an invalid appointment, could not regularise her position. I am not willing to infer, as the applicant invited me to do, that there is in existence a certified copy of a record of the Association which shows Ms Murphy as the nominated representative of Mr Murphy. Even if I were willing to infer that such a record exists, it is difficult to see how I could attribute significant evidentiary weight to a document which no party placed before the Court. 23 Having regard to Mr Ryan's unchallenged evidence that there was no primary record in existence demonstrating the appointment of any person as Mr Murphy's representative and that Mr Murphy had been, as I understand it, acting personally in matters concerning the Association, I am not satisfied that any irregularity has been demonstrated in connection with the nomination of Mr Murphy as a candidate for election. 24 In the circumstances the only irregularity that I am satisfied occurred in respect of the Leichhardt/Glebe sub‑branch election was that the nomination of Mr McGirr as a candidate for election was wrongly accepted. To be of the opinion that this irregularity may have affected the result of the election I would need to conclude that, had his nomination not been accepted, at least four of the five persons who voted for Mr McGirr might have cast their votes in favour of Scott Ward ('Mr Ward'). I accept that this might have happened in the sense that it is a real as opposed to a merely theoretical possibility (see Re Bailey; Re Transport Workers' Union of Australia (Victorian Branch) (1997) 79 IR 1 per Gray J at 22 and the cases there cited). I note, however, there is nothing before me which positively suggests that it would have been a likely outcome. 25 As Finkelstein J pointed out in Re Churchill at [8] the Court has not spoken with one voice on the issue of whether, if the Court finds that an irregularity has occurred and if it is of the opinion that the result of the election may have been effected, it must declare the election void. I agree with his Honour that it would be desirable for this issue to be considered by a Full Court. 26 I am relieved from reaching a considered view on this difficult question on this inquiry as I have concluded that this election should be declared void. An important factor which has influenced the conclusion that I have taken in this regard is that, in addition to the applicant, Mr Ward has placed submissions before the Court challenging the election. Mr Ward's assertion that he raised with the Electoral Commissioner, prior to the declaration of the poll, the ineligibility of Mr McGirr was not challenged. In my view, fairness to Mr Ward, as well as the public interest, calls for the election to be declared to be void and a new election held.

Wagga and District Sub‑Branch 27 In the election for delegates from the Wagga and District sub‑branch, Mr Crouch and Mr Gurr were elected unopposed. 28 Mr Jones, a returning officer for the Australian Electoral Commission, gave affidavit evidence concerning this election as follows: '(ggg) The Wagga and District Sub‑Branch was entitled to elect two (2) Delegates to State Council. (hhh) A nomination form dated 4 November 2002 nominating Brendan James Crouch for the office of Delegate to State Council representing the Wagga and District Sub‑Branch was received by the Returning Officer. A copy of that nomination is annexed and marked "LJ 42". (iii) A Nomination form was also received for that office nominating Patrick Gurr. (jjj) On 12 November 2002 I sent Mr Crouch a defective nomination notice by facsimile transmission and pre-paid post. A copy of that notice is annexed and marked "LJ 43". (kkk) On 13 November 2002 I received a letter from the AHA NSW bearing a signature Phillip Ryan, Membership Coordinator. A copy of that letter is annexed and marked "LJ 44". (lll) On 15 November 2002 I received a further letter from the AHA NSW bearing a signature Phillip Ryan, Membership Coordinator. A copy of that letter is annexed and marked "LJ 45". (mmm) On 20 November 2002 I declared Brendan Crouch and Patrick Gurr elected unopposed.' 29 The letter annexed to Mr Jones' affidavit and marked 'LJ44' read as follows: 'I refer to our telephone conversation of yesterday regarding the nominated representative for the Farmers Home Hotel, 2 Hammond Avenue, Wagga Wagga. As discussed, I wish to confirm that Brendan Crouch is the nominated representative. 30 The letter annexed to Mr Jones' affidavit and marked 'LJ45' relevantly confirms the information conveyed by the letter marked 'LJ44'. No party sought to cross-examine Mr Jones. Nor, as is mentioned above, did any party seek to cross-examine Mr Ryan. 31 The applicant, however, places reliance on the apparent content of the records of the Association as at 14 October 2002. Even if I were willing to draw an inference as to the content of those records, the Rules do not give evidentiary weight, let alone conclusive evidentiary weight, to the records of the Association. I see no reason to conclude that the assertion made by Mr Ryan in his letter of 15 November 2002 that Mr Crouch was the nominated representative in respect of the Farmers Home Hotel, Wagga Wagga prior to 14 October 2002 was incorrect. 32 I conclude that no irregularity in respect of the Wagga and District sub‑branch election has been demonstrated.

conclusion 33 The WRA has been amended by the Workplace Relations and Legislation Amendment (Registration and Accountability of Organisations) (Consequential Provisions) Act 2002 (Cth) ('the Consequential Provisions Act'). The Consequential Provisions Act repealed certain provisions of the WRA, including Division 5 of Part IX which is concerned with inquiries into elections, and added a new Sch 1B dealing with election procedures. The operative date for the above amendments was 12 May 2003. The effect of items 35 and 37 of Sch 1 of the Consequential Provisions Act is that this inquiry was to be continued in accordance with the provisions of Division 5 of Part IX of the WRA as in force before 12 May 2003, but any fresh election ordered as a consequence of the inquiry is to be conducted in accordance with Sch 1B of the WRA as now in force. 34 For the reasons given above I find that an irregularity happened in the conduct of the election by the members of the Leichhardt‑Glebe sub‑branch of delegates to the Council of the Association. I am of the opinion that, having regard to the irregularity found, the result of the election may have been affected. I consider it appropriate that the election be declared to be void. 35 An order will be made declaring that election to be void. There will be a further order directing the Industrial Registrar to make arrangements for a new election by members of the Leichhardt‑Glebe sub-branch of delegates to the Council of the Association. Additionally it will be ordered that the operation of the Rules of the Association be modified to enable the new election to be held by removing, for the purpose of the new election only, the requirement of r 30.1(a) that nominations be called prior to 15 October in the year prior to the election year. The applicant formally sought an order that the new election be restricted to persons eligible for nomination as at 14 October 2002. No reasons were advanced in support of the restriction. I am not satisfied that the public interests calls for any limitation on the eligibility of candidates for the new election other than those imposed by the Rules. 36 I do not find that an irregularity happened in the conduct of the election by members of the Wagga and District sub-branch of delegates to the Council of the Association. No order will be made in respect of that election. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 4 September 2003

Counsel for the Applicant: Mr J M Ireland, QC

Solicitor for the Applicant: McGirr James Hall & Associates

Counsel for the Respondent: Mr J H Heard

Solicitor for the Respondent: Australian Government Solicitor

Counsel for members of the Executive Committee of the Association: Mr J Nolan

Solicitor formembers of the Executive Committee of the Association: Carroll & O'Dea

Counsel for John Thorpe: Mr J Martin

Solicitor for John Thorpe: JDK Legal

Date of Hearing: 24 June 2003 & 21 July 2003

Date of filing last written submissions: 28 July 2003

Date of Judgment: 4 September 2003