Re: IN THE MATTER of an application by GLENN WILLIAM FERGUSON for an Inquiry

into an Election in THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, WESTERN

AUSTRALIAN BRANCH

And: IN THE MATTER of a reference of such Application by the Industrial

Registrar to the Federal Court of Australia

Nos. WA5 and WA6 of 1986

Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

INDUSTRIAL DIVISION

Toohey J.

CATCHWORDS

Practice and Procedure - election inquiry under Part IX of the Conciliation and Arbitration Act - reasons for judgment delivered but judgment not entered - application by Union to re-open case to adduce further evidence - whether Court has power to re-open hearing - evidence sought to be adduced available at time of original hearing - criteria upon which power to re-open exercised - whether traditional criteria appropriate to a hearing in the nature of an inquiry - extent of evidence which may be adduced

Federal Court Rules O.1 r.10, O.35 r.7, O.36 rr.8-10, O.48

Conciliation and Arbitration Act 1904 s.164(4)

HEARING

PERTH

#DATE 31:7:1986

JUDGE1

On 10 July 1986 I handed down reasons for judgment in this inquiry, under Part IX of the Conciliation and Arbitration Act 1904 ("the Act"), into an election held by The Australasian Meat Industry Employees Union, Western Australian Branch ("the Union"), an organization registered under the provisions of the Act.

2. I found that irregularities had occurred in connection with a postal ballot conducted in August and September 1985 for a number of positions comprising the Committee of Management of the Union and also delegates. I took the view that the election may have been affected by irregularities that had occurred and the likelihood that similar irregularities may have occurred and concluded that the election should be declared void. I said that I would hear from counsel as to the precise form of orders that were appropriate, having regard to my findings and my decision to declare the election void.

3. There have been no submissions as to the orders that should be made and no orders have been extracted. Instead the Union has moved for an order that the parties be granted leave "to re-open their respective cases and adduce evidence on the issue of the likelihood of ballot papers having been issued to ineligible persons in places of employment other than the Albany, Katanning and Robb's Jetty abattoirs". The applicant opposes the motion. But he says that, if the Court is disposed to accede to the motion, he should be permitted to adduce evidence relating to the eligibility of certain persons to vote, falling outside the terms of the motion. The respondent resists this wider re-opening of the inquiry.

4. The first question that arises is whether the Court has, in the circumstances, power to re-open the inquiry. I am satisfied that the Court may do so. While there is no express power in the Act, sub-s.164(4) provides that, for the purposes of Part IX,
   
   
   
   

"(a) the procedure of the Court is, subject to this Act and the regulations, within the discretion of the Court; and

(b) 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 it thinks just".

5. Counsel for the Union submitted that para.(b) must be read disjunctively viz. that the statement that the Court is not bound to act in a formal manner is separate from the statement that it is not bound by rules of evidence. I accept this submission but have some difficulty in interpreting the opening words of the paragraph as a grant of power. Rather, I think, they are directed at the manner in which the Court conducts the inquiry. However O.1 r.10 of the Federal Court Rules reads:
   
   
   
   

"In any case where the Regulations made under the Conciliation and Arbitration Act 1904 prevail over the provisions of these Rules, it shall, to the extent that duplication would otherwise be involved, be unnecessary to comply with these Rules".

From this rule and from the existence of O.48 which contains provisions relating to a reference by the Industrial Registrar concerning an election, I infer that the Federal Court Rules apply to an inquiry under Part IX of the Act, so long as there is nothing in the Act or regulations inconsistent with those rules. In my view, there is nothing inconsistent, so far as the re-opening of a hearing is concerned.

6. A power to re-open a hearing is found in O.35 r.7 which provides that the Court "may vary or set aside a judgment or order before it has been entered". It is apparent from O.36 rr.8-10 that the entry of a judgment or order is a formal act, requiring settlement of a form by the Registrar, entry of that order on the direction of the Court or at the request of a party and, consequent upon entry, the sealing of an order by the Registrar with the seal of the Court. In my view O.35 r.7 is authority for the Court in the present case to set aside any order contemplated by the reasons for judgment, whether the rule operates directly or as a guide to the operation of para.(b) of sub-s.164(4).

7. In any event, O.35 r.7 is in conformity with a long line of authority. A number of cases were referred to by Starke J. in Texas Co. (Australasia) Ltd. v. Federal Commissioner of Taxation (1939-1940) 63 CLR 382 at 457 in support of his statement:
   
   
   
   

"A superior court of justice, it may be remarked, has full power to rehear or review a case until judgment is drawn up, passed, and entered".

8. A question of more concern is the delineation of criteria, according to which the Court may re-open a hearing and, of course, the ultimate question whether the facts of the present case meet those criteria.

9. In situations where a hearing has concluded but judgment has been reserved and not delivered, it has been said that fresh evidence should be admitted only when it is so material that the interests of justice require it; the evidence if believed would most probably affect the result; the evidence could not by reasonable diligence have been discovered before; and perhaps that no prejudice would ensue to the other party by reason of the introduction of the evidence so late. Watson v. Metropolitan (Perth) Passenger Transport Trust (1965) WAR 88; Murray v. Figge (1974) 4 ALR 612. Similar tests have been applied for the reception of evidence on the hearing of an appeal. Woolongong Corporation v. Cowan (1954) 93 CLR 435.

10. However there are aspects of the present matter that make the conventional tests not entirely appropriate. And, as will appear later in these reasons, the evidence which the respondent seeks to adduce is not truly fresh evidence. It is evidence that was readily available to the respondent but which it was thought unnecessary to call.

11. The authorities to which I have referred, and other similar authorities, relate to proceedings between parties; considerations such as prejudice to one party and the obvious need for there to be an end to litigation weigh heavily. An election inquiry must be initiated by a person who is a member of an organization or a person who, within the preceding twelve months, has been a member (sub-s.159(1)). But it is the Industrial Registrar who determines whether there are reasonable grounds for an inquiry and, if so satisfied, refers the matter to the Court (sub-s.160(1)). The original applicant is then cast in the role of the person seeking to establish irregularities and the organization assumes the role of defender. Nevertheless proceedings under Part IX of the Act are by way of an inquiry. The Court may give leave to persons to appear or be represented; it may order persons to appear or be represented; and the Attorney-General may intervene on behalf of the Commonwealth (s.164). Clearly there are wider interests involved than those of the applicant and the Union. There are those whose offices are under challenge (though in the ordinary case they are represented by the Union), there are the members of the Union and there is the wider public interest in the integrity of union elections. While ordinarily the limits of the inquiry will be set by the applicant and the organization, the Court is not so bound. For instance it may decide that there is an aspect of the election that neither the applicant nor the organization appears to wish to pursue but which requires investigation. Part IX of the Act gives the Court the necessary powers to achieve this result. Whether the Court will pursue an aspect of the inquiry itself will depend very much upon the circumstances of the case.

12. The point is that, once an inquiry has been instituted, it may appear to the Court that it is necessary to consider an aspect that has not been fully pursued by the parties or it may decide that further evidence is necessary in order to reach a satisfactory conclusion in regard to an aspect of the inquiry. Given the nature of an inquiry under Part IX, I am of the opinion that the conventional tests for the introduction of fresh evidence are too narrow. The prevailing consideration is that the Court reaches a satisfactory conclusion in regard to those irregularities that have been mentioned and that appear to warrant consideration. This approach is reinforced by the fact that there is no appeal to a Full Court of the Federal Court from a judgment or order of a single judge in proceedings under Part IX.

13. The applicant alleged that a number of irregularities had occurred in connection with the election. I found that 94 persons to whom ballot papers had been sent were ineligible to vote. The reason for their ineligibility is considered in some detail in my earlier reasons for judgment and I do not propose to repeat what is said there. It is enough, for present purposes to say that ineligibility arose in the case of workers who were paying union dues under a system of deduction and who had arrears from the first half of 1985, the election having taken place in the second half of that year. Having dealt with those cases on which the applicant had relied (being cases from abattoirs at Robb's Jetty, Katanning and Albany) I said that there was "a real possibility that ballot papers were issued to persons in other places of employment who were not eligible to vote". I instanced the Broome abattoir and referred more generally to the computer system used by the Union in preparing the electoral roll which, it seemed to me, involved a misreading of the eligibility provision of the Union's rules. In support of the motion for leave to adduce further evidence, counsel for the Union submitted that the reference to the Broome abattoir was not warranted by the material before the Court and that there was evidence justifying a contrary conclusion. But in any event, said counsel, evidence could be adduced to show that the members employed at the Broome abattoir did not pay their Union contributions by way of pay-roll deductions and that all paid contributions in advance. It could also be shown that the situations existing in the three abattoirs mentioned earlier, which had given rise to cases of ineligibility, did not exist in other work places. An affidavit to this effect was sworn by the Secretary of the Union in support of the motion. That evidence was available at the hearing but, according to counsel for the Union, it was not called because "no-one adverted to the relevance of that particular point". In truth I think that the matter was lost because of the way in which the applicant raised the question of eligibility.

14. Counsel for the applicant argued that there had been a proper airing of all matters before the Court and that it was in the interests of all concerned that the inquiry should not be re-opened. Counsel submitted that, if an election were held, there would be no injustice for the members of the Union would have a further opportunity to exercise their right to vote. There is some force in this submission but I think it overlooks the fact that the Court has drawn a conclusion as to the extent of irregularities that may not be warranted. This is a serious matter and if there is any doubt about that conclusion, it should be put to rest. Furthermore there is an important practical consequence involved. Having regard to the margins between successful and unsuccessful candidates, my finding that 94 persons who were ineligible to vote were sent ballot papers could of itself only invalidate the election for two representatives from Albany and one representative from the northern area. It would not affect the other offices concerned. It was only the broader finding as to the possibility of members employed elsewhere being ineligible to vote that led to a decision to avoid the election in its entirety.

15. The interests of justice seem to me to warrant a re-opening of the inquiry to allow the applicant and the respondent, in terms of the motion, "to re-open their respective cases and adduce evidence on the issue of the likelihood of ballot papers having been issued to ineligible persons in places of employment other than the Albany, Katanning and Robb's Jetty abattoirs".

16. Counsel for the applicant argued that, if the hearing was re-opened, the applicant should not be so confined in any additional material he wished to adduce. It was said that, since the hearing, the applicant had looked at the situation of other members at the three abattoirs in question and had found 24 additional persons to whom ballot papers had been sent but who were ineligible to vote. It was also said that there were persons who were eligible to vote but to whom ballot papers had not been sent. When the applicant first sought an inquiry into the election, he made a number of allegations, including one that persons who were eligible to vote had not received ballot papers. This allegation was abandoned when the hearing began. There was no evidence to suggest that eligible persons had not received ballot papers. In my view, it would be an unwarranted extension of the circumstances justifying a re-opening of the case to permit the applicant to call evidence on this matter. However, if the applicant is able to demonstrate that, according to the criteria expressed by the Court concerning eligibility and ineligibility, a number of persons to whom ballot papers were sent were ineligible to vote, he should be given the opportunity to adduce that evidence. It bears directly upon the issues that were before the Court at the hearing, it bears directly on the matters which the respondent seeks to clarify by its motion and it may have a direct bearing on the number of offices likely to have been affected by the irregularity.

17. I shall give counsel an opportunity to speak to the precise terms of the order that should issue but it seems to me that it should follow these lines:
    
    
    
    1. The applicant and the Union have leave to re-open their
    
    

respective cases and adduce evidence as to the likelihood of ballot papers having been issued:

(a) to ineligible persons in places of employment other than Albany, Katanning and Robb's Jetty abattoirs

(b) to ineligible persons at the Albany, Katanning and Robb's Jetty abattoirs other than those persons to whom reference was made during the original hearing of this application.

2. The applicant's solicitors give to the respondent's

solicitors and the respondent's solicitors give to the applicant's solicitors, not later than 3 clear days before the resumed hearing of the inquiry, a statement in summary form of the material upon which each proposes to rely and the import of that material.

3. The further hearing of the inquiry be adjourned to a date to

be fixed.