Cook, Ex parte; Re Justice Moore & Ors S122/1995 [1996] HCATrans 116 (14 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S122 of 1995

In the matter of -

An application for a Writ of Certiorari and a Writ of Mandamus and against THE HONOURABLE JUSTICE MOORE

First Respondent

ALAN JARMAN

Second Respondent

COMMUNICATION WORKERS UNION OF AUSTRALIA

Third Respondent

AUSTRALIAN ELECTORAL COMMISSION

Fourth Respondent

Ex parte -

QUENTIN REDVERS COOK

Prosecutor

BRENNAN CJ

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 MARCH 1996, AT 10.18 AM

(Continued from 13/3/96)

Copyright in the High Court of Australia

_______________________

BRENNAN CJ: Do I understand that you are going to go next, Mr Rothman?

MR ROTHMAN: I am, your Honour. The Court will have received, yesterday, on the remitter, the outline of submissions, which includes the outline in relation to what I will call the, with some irony, the substantive point, that is the point on the merits, and your Honours will see that paragraphs 1 and 2 deal essentially with the points that arise in relation to the error of his Honour Justice Moore. His Honour Justice Moore, and the underlying question before the Court on the merits of the application, relates essentially to the finding of his Honour as to what was the subject of the inquiry, and your Honours yesterday asked my learned friend Mr King: the election to what office did the inquiry relate? It is necessary, in my respectful submission, to look at a number of documents. Can I take the Court to appeal book 22, which - - -

KIRBY J: What is your primary submission to which the evidence you are now taking us - - -?

MR ROTHMAN: The primary submission is contained in paragraph 2. It is that the notice of motion had to be understood as seeking an extension of the inquiry so that the inquiry looked at not only the 1994 election, but the 1995 election.

GAUDRON J: Which had not been held.

MR ROTHMAN: But nor had the 1994 election when the inquiry was established. The 1994 election had been called, that is, nominations had been called, and was in the process of being conducted, the election having commenced when nominations were called, when the 1994 inquiry, that is my clients' inquiry, was instigated. That is not unusual; the Act specifically allows for an election inquiry to be initiated before the election is completed.

BRENNAN CJ: You ask this Court to come to a conclusion as to the scope which should be attributed to the notice of motion, different from the scope which his Honour expressed in his reasons for decision.

MR ROTHMAN: Yes, your Honour.

BRENNAN CJ: On what basis?

MR ROTHMAN: Your Honour, what occurred with the notice of motion was that there was a preliminary objection taken to the power of the Court to make the orders in the notice of motion. It was done in the General Steel's principle and the court held it did not have power, that is the court below held it did not have power, on the basis that the inquiry that was before it, that is the inquiry instituted by my client, related to the 1994 election and what was sought were orders in relation to the 1995 election. What the court did - - -

BRENNAN CJ: We know what the court did. On what basis do you suggest that there was an application for an inquiry into the 1995 election?

MR ROTHMAN: On the basis, your Honour, that the orders that are sought could only be understood, that is the orders in the notice of motion, as seeking orders in relation to the 1995 election and thereby extending the scope of the inquiry that was currently before his Honour.

BRENNAN CJ: That is nonsense, with respect. How on earth do you spell that out from anything that is before us?

MR ROTHMAN: Your Honour, only from the terms of the notice of motion itself. I can put it no higher than I put it.

BRENNAN CJ: Well his Honour certainly did not understand them that way. Was this argument put before him?

MR ROTHMAN: On my reading of the transcript, no, your Honour.

BRENNAN CJ: So that the argument was not put before him, the notice of motion did not express it, you say it was implied, and you come here and ask us to find that his Honour was wrong. That is a very brave submission, Mr Rothman.

MR ROTHMAN: Yes, your Honour.

KIRBY J: Would you like to direct our attention to any particular part of the notice of motion from which you say the implication is to be derived?

MR ROTHMAN: If your Honours look at paragraphs 1 and 2 of the notice of motion.

KIRBY J: Where is that, what page?

MR ROTHMAN: Application book page 22. We say that it is clearly orders sought in relation to the 1995 election and must be understood as seeking to extend the inquiry to the 1995 election.

BRENNAN CJ: Is No. NI 594 of 1994 the matter which was instituted by Mr Battese?

MR ROTHMAN: It is the election inquiry instituted by my client, Mr Battese, yes, your Honour.

BRENNAN CJ: That was the 1994 election?

MR ROTHMAN: Yes, your Honour.

BRENNAN CJ: And the paragraph 1 asks:

That the current office holders.....remain in office until a final determination has been made in this matter -

That is the 1994 election identified on the face of the document.

MR ROTHMAN: Yes, your Honour. Can I just put it to you, your Honour, this way, and I put it no higher and that is essentially the only way in which I put it. If the notice of motion had expressly said that the inquiry be extended into the 1995 election because the same irregularities occur, your Honour will see the affidavit which supported the notice of motion was that the same irregularities, not the same kind of irregularities but the same irregularities occurred and are occurring in the 1995 election as occurred in the 1994 election.

KIRBY J: But you have a right to make an application in respect of the 1995 election which sets in train the specific procedure which is focussed on that election.

MR ROTHMAN: We do, but we also have the right - - -

KIRBY J: Then why is that not the correct way in which the Act is meant to operate? It is a serious matter first to have an election inquiry and second to contemplate removing from office people who have, on the face of things, been properly elected; thirdly, one would not want to encourage a sort of general inquisition beyond that which is necessary for the particular election which is the subject of the inquiry. Otherwise, these very lengthy proceedings which are, as I think we can take notice, always closely fought, because of the interests and passions involved would just never finish.

MR ROTHMAN: Your Honour, can I say two things. Firstly, it is a correct procedure to institute separate proceedings, but it is also a correct procedure to file a notice of motion for the purpose of identifying a matter which falls within the same substratum of facts and - - -

KIRBY J: But you did not do that. It is not spelt out on page 22.

MR ROTHMAN: No, it is not, your Honour. I concede that.

KIRBY J: If you do not do that, how can you come along here and criticise Justice Moore for saying, "Whatever you might have done and could have done, you didn't do it." You are coming to the High Court of Australia asking us to issue one of the prerogative writs.

MR ROTHMAN: Your Honour, I did not file the notice of motion.

KIRBY J: You are coming here to support it.

MR ROTHMAN: I do not criticise his Honour Justice Moore in the way in which your Honour suggests I criticise him. I merely say that given the General Steel's principle that was applicable to a preliminary objection to the notice of motion that his Honour ought to have considered what was essentially the underlying question in the notice of motion, which was the extension of the inquiry to the 1995 elections and that is all I say, with respect.

BRENNAN CJ: You have said it.

MR ROTHMAN: If your Honour pleases, otherwise the submissions speak for themselves, if the Court pleases.

BRENNAN CJ: Mr Haylen.

MR HAYLEN: If the Court pleases, yesterday afternoon we took steps to have our outline delivered to your Honours through the Registry. Do your Honours have the outline?

BRENNAN CJ: The new outline.

KIRBY J: I think it did come up and I have got it.

MR HAYLEN: We have further copies if it is convenient to hand up some fresh copies.

BRENNAN CJ: Yes, Mr Haylen.

KIRBY J: Yes, we have it and we have read it.

MR HAYLEN: Yes, thank you, your Honours. Can I begin by saying that the argument that was put yesterday by Mr King for the prosecutor moves on what we would submit is the narrow point that the sectional representatives in this Union are members of the committee of management and he relies upon the definition of a committee of management in the Industrial Relations Act 1988 for that categorisation.

Then the argument goes that when he makes the application under section 221(1)(c), because the 1994 full-time officers were on the committee of management, by definition of the rules and the application of a definition of committee of management in the Act, the 1995 sectional representatives were also the committee of management, and that is where he seeks to make, under section 221(1)(c), the connection with an office to which the inquiry relates. Can I take your Honours very briefly to two other sections - and we will have to come back to section 4 - perhaps I should start with section 4 and the definition of "committee of management" relied upon by my learned friend Mr King. That definition is that:

in relation to an organisation, association or branch of an organisation -

and it is a branch that is relevant here -

means the group of body of persons (however described) that manages the affairs of the organisation -

So, it is a group concept. Secondly, can I then take your Honours to section 195 of the Act which deals with the rules of an organisation and makes general provision for what the rules should contain. In section 195(1)(b), the rules of an organisation are to:

provide for:

(1) the powers and duties of the committees of the organisation and its branches -

And then, in subsection (4) "committee" is further defined:

in relation to an organisation or branch of an organisation, means a collective body of the organisation or branch that has powers of the kind mentioned in paragraph (b) of the definition of "office" -

So, committee of management then sends us back to the definition of office in section 4(1), and "office", in section 4(1) is defined in (b), "in relation to an organisation" as:

the office of a voting member of a collective body of the organisation or branch, being a collective body that has -

certain powers there defined.

So, it is clear, by the time one works one's way through the definitions, that "office", even on a committee of management, is the office of a voting member. It is not the collective body, and a fundamental error in the argument put by the prosecutor is, he treats the collective body as being up for election in 1994. He treats that as the election to which the office relates.

One cannot do that, simply because the scheme of the Act as we have set out in our outline is directed to making specific allegations about irregularities in relation to offices for election. And I have said in a compendious way in our outline, if you would look at sections 218 through to 224, that approach is clear. Section 218 by which an application for inquiry may be made, allows a person who has been a member of the organisation to claim that there has been an irregularity in relation to an election for an office, not for a collective, but for an office. There may be several offices. But that is the beginning. Section 218 - the complaint has to be about an:

irregularity in relation to an election for an office in the organisation or a branch.

KIRBY J: What do you say is the inference from that? That if, therefore, you are seeking an inquiry, you have to spell out the office in respect of which you are seeking.

MR HAYLEN: Exactly. And it is picked up all the way through the following provisions, your Honour. When you institute the inquiry under section 219, the Court has to be satisfied - - -

KIRBY J: What was the policy behind this, do you say?

MR HAYLEN: The policy behind it, your Honour, is to make the applicant choose, and elect if you like, what offices are being challenged and to specify what irregularities are being claimed in relation - - -

KIRBY J: What is the reason for having to do that, apart from the general desirability of specificity in pleading and in -

MR HAYLEN: Your Honour, I would think that the broad public policy reason behind it would be rather than having to call into question a whole election, when a number of positions are up for election, it makes the applicant focus upon the election in which the irregularity is alleged.

KIRBY J: You could get a case where all offices were identified, and sometimes do.

MR HAYLEN: You might get that case, in which case you specify the whole of the election. But if you have 44 committee of management positions and one assistant secretary and the only irregularity that is alleged is in relation to the assistant secretary, that is the office you specify, that is the election that the Act makes you specify, and that is what the inquiry is thereafter about. And all the orders that the court can make are in relation to that specified office.

KIRBY J: What do you say of Mr King's argument that the words "an office to which the inquiry relates" is broader than an office which is the subject of the inquiry.

MR HAYLEN: With respect, that is incorrect; that his Honour's analysis was correct that once - - -

KIRBY J: There is another phrase in the statute which was referred to by Mr King which could have been used but was not, and some suggestion was made that this differentiates this phrase and indicates that it is supposed to be broad.

MR HAYLEN: Yes. Your Honour, it is always a difficult submission that the legislature could have chosen different language. It did not, but nothing of substance flows from it here. Once one sees this scheme that we have set out in the outline, for instance in section 220, a court can authorise certain actions to be taken by the Industrial Registrar which is all about the election. He can go and take election documents that are defined, which are ballot papers, and envelopes or lists relevant to the election.

So the inquiry that started under this part of the Act is into a specified election and the documents I handed up yesterday as well as being the election that was particularised by Mr Battese - and I should just say a few words about that. He specified, as he was required to do - and I will come to the regulation in a moment - what officers he claimed there was an irregularity in relation to in this election. The first three nominated were national officers which he subsequently did not press. The next four were branch full-time officers in the New South Wales Postal and Telecommunications Branch of the organisation. It did not specify sectional representatives and it did not specify the committee of management and, indeed, could not.

In 1994 there was no election for sectional representatives and in our outline we have tested it this way: if in 1994, there being no election for sectional representatives until 1995, how could the court make any order in relation to sectional representatives in the 1994 inquiry? They were not even subject to election and that analysis further reflects the scheme of the Act and the requirement to focus upon particular officers and particular elections. Now, regulation 62 was also handed up with that document and I just draw your Honours' attention to it and there are some footnotes - this is from the Butterworths Practice. Regulation 62 sets a time limit up to six months after the election is declared for an application under section 218 and in clause (2) of the regulation says:

An application referred to in subregulation (1) shall be in accordance with Form 4 and shall be accompanied by a statutory declaration made by the applicant verifying the facts set out in the application.

I do not read the footnotes to your Honours but you can see from the bottom of the page and going over the page there are number of cases under the previous Act which describe that procedure as being mandatory. An inquiry that is not instituted in accordance with the regulation and in accordance with Form 4, which is the third document in the bundle, will not be regarded as a properly instituted inquiry.

KIRBY J: What is the reasoning behind that?

MR HAYLEN: It is the same reasoning that I went to earlier, your Honour, because Form 4, which Mr Battese's application complied with, specified particular positions in the branch and none other. So that is the election and when the prosecutor here came before his Honour Justice Moore and sought the orders in relation to another group of people not specified in the application, they were not within the terms of section 221(1)(c) dealing with an office to which the inquiry relates. The inquiry just did not relate to the positions of sectional representatives.

I do not read the following sections of the Act, but that theme continues through those sections, making orders in relation to what was commenced by the applicant in accordance with section 218 and the regulations.

In the application book at page 138 there is another matter which is worth briefly mentioning and that is an affidavit of Mr Pasfield - I do not read it to the Court - but in essence it sets this out: one of the positions that was up for election in 1994 was that of the Assistant Secretary. Mr Natour won that position in the 1994 election. During the course of the inquiry he passed away. The election inquiry was still continuing before His Honour Justice Moore. The Electoral Commission proposed to conduct an election to fill the casual vacancy and Mr Battese filed a new inquiry in relation to that office, in short saying that it was, amongst other things, wrong to conduct an election for a casual vacancy when there was still an issue as to the invalidity of filling the office in the first place.

That application went before the Chief Justice Justice Wilcox, who stayed that election and referred the matter to Justice Moore at the same time as he was hearing the 1994 election inquiry. His Honour ultimately has stood it down until he finishes the 1994 inquiry. So it demonstrates in a practical way, the way in which, if there was some irregularity about the 1995 election, it could have been kept in contact with the 1994 election, the desires of the prosecutor could not have been diminished in any way, but the requirements of the Act would have been complied with.

The other matter that we raise in relation to the notice of motion is that it is now a futility. In terms the notice of motion says, stop the present election in 1995 for sectional representatives and keep in office those who have been elected to that position or who hold that position because of the amalgamated rules, until this election inquiry, the 1994 election inquiry, is concluded. Having failed on the notice of motion and having taken no other step in relation to that election which was declared in August 1995, it is now impossible to make the orders. The election cannot be stayed because it has been held and declared. The previous office holders cannot be held in office because new office bearers have been elected and declared elected and have taken their office.

KIRBY J: You say it cannot be because it is more than six months. Is that the point?

MR HAYLEN: And it is now more than six months as well, your Honour, yes, and these matters were raised in the proceedings before Justice Gummow as alternatives available.

KIRBY J: That was last September.

MR HAYLEN: Last September.

KIRBY J: So that you say that as a matter of discretion, had the matter been signalled and had there been a real desire to have an inquiry, that could have been pursued by a separate inquiry application.

MR HAYLEN: Yes.

KIRBY J: Of course the applicant comes to us and says, "We are entitled to have it in this inquiry by reason of the statute."

MR HAYLEN: Indeed, your Honour.

KIRBY J: However, we have got the submissions on the discretionary matters.

MR HAYLEN: You have. There was in Mr Rothman's outline a reference to section 430 but he did not address on that and I do not know if I need trouble the Court with it.

BRENNAN CJ: I do not think so.

KIRBY J: Section 430, is it?

MR HAYLEN: Section 430 is the powers of the Industrial Relations Court in relation to associated matters. It is similar to the accrued jurisdiction associated matters power available to the Federal Court.

KIRBY J: I do not think Mr King relied on that point.

MR HAYLEN: And it was not relied upon by Mr King at all and it was not put below.

BRENNAN CJ: You need not trouble yourself.

MR HAYLEN: Apart from what I have just put to the Court, they are the submissions and the submissions are adequately set out in our written outline.

KIRBY J: There was one matter raised before Justice Gummow and it is in the transcript, the argument there relating to costs. Apparently there is some special provision in the Industrial Relations Act that deals with that. Does that apply to proceedings in this Court?

MR HAYLEN: Your Honour, I think it does and if there was an application for costs - - -

KIRBY J: In an earlier matter I saw and not granted, I think; is that correct? The case was referred to in the transcript before Justice Gummow. Was it Cook or, no, that is this matter.

MR HAYLEN: No. It might have been - - -

KIRBY J: Anyway, what is the provision of the Act?

MR HAYLEN: It is section 347. There is no costa unless it can be claimed that a matter is unreasonably brought, or vexatiously brought.

BRENNAN CJ: Can we take it that, if you succeed, you are not seeking an order for costs?

MR HAYLEN: Your Honour, we say this application was unreasonably brought.

GAUDRON J: Because of the time matter, or - - -?

MR HAYLEN: Because of the available alternative adequate remedies and because of the time and because those available alternative remedies were drawn to attention as late as September last year.

GAUDRON J: That being the reference to the Full Court.

KIRBY J: Mr King relied on - I have not read it, but some document where some departmental officer is said to have said that this is an important issue that needed to be clarified.

MR HAYLEN: Apparently somebody in the Department of Industrial Relations thought it was an interesting matter and of some importance. Your Honour, just on the analysis that we have conducted, we respectfully suggest neither of those are accurate descriptions.

KIRBY J: Yes, but it is the policy of Parliament, pretty clearly, that it is a fairly strong case where you are permitted to - what is the practice is the Industrial Relations Court itself; can you tell us that?

MR HAYLEN: I think I would have to say, your Honour, that costs are rare, but it is not a jurisdiction where the costs are withheld on every occasion, but - - -

KIRBY J: What do we make of the fact that, in the course of raising this matter, what was undoubtedly an interesting and important question arose concerning the remitter power of the Court.

MR HAYLEN: I suppose, your Honour, or the Court, could make an order in relation to this part of the matter.

KIRBY J: Can we make an order against you on the basis that apparently you - that is assuming that the remitter is rejected.

MR HAYLEN: No, your Honour. I think that is the effect of 347 - - -

KIRBY J: You are now there begging in aid 347, are you?

MR HAYLEN: Yes. I have always had to put 347 squarely before the Court because it does govern the ability to - - -

KIRBY J: So you say as to that part of it no order for costs can be made, but as to the substantive matter, you ask for costs under the exception.

MR HAYLEN: Yes, that is so, your Honour.

KIRBY J: Can I ask, reading the transcript before Justice Gummow, I was not entirely clear whether - you did not raise the remitter, I think that was raised by his Honour, and you originally took a rather neutral stand but then you actually gained enthusiasm as the matter proceeded. Is that a fair representation of your client's position?

MR HAYLEN: It is, your Honour. There were two occasions before Justice Gummow, and the organisation as it had done before Justice Moore was anxious to have the election result declared - to have some result of the inquiry. And it formed the view, not unreasonably, that it would be likely to have a quicker hearing, on remitter, than if the matter went to this Court, and supported in the end, the remitter. It was a practical approach that was the basis for that stance taken, your Honour.

BRENNAN CJ: How can it be said that the proceedings in this Court were commenced, or instituted, vexatiously, without reasonable cause when they were instituted pursuant to an order by Justice Gummow?

MR HAYLEN: Your Honour, he expressly reserved the question of cost. I raised that with his Honour.

BRENNAN CJ: You mean, made the order without prejudice?

MR HAYLEN: Yes. We do not say it is vexacious without reasonable cause, your Honour.

KIRBY J: You did not raise this point before his Honour; you just asked his Honour to reserve the question of costs generally and his Honour did that, that is a normal thing to do, but you did not ask his Honour to dismiss the application on the basis that it - - -

MR HAYLEN: Yes, we did; we asked his Honour to dismiss the application.

KIRBY J: On the basis that it was vexacious or brought without reasonable cause?

MR HAYLEN: Yes, and an adequate alternate remedy available and available immediately to the prosecutor.

BRENNAN CJ: Yes.

MR HAYLEN: Thank you, your Honours.

BRENNAN CJ: Mr King.

MR KING: Your Honour, leaving to one side the question of the merits of this application, on the issue of power my friend Mr Haylen's argument is encapsulated at paragraph 10 of his outline, and it is this: that the only offices in respect of which an inquiry that is under way and which the court has said is reasonably commenced, as it did in this case under section 219, the only offices which may be the subject of the inquiry are the very offices specified in the application itself. In my respectful submission, there is both a textual argument that answers that proposition and a contextual argument. As to the textual, the bare fact is that the words mentioned in section 221(1) are not the office the subject of the inquiry, but:

an office to which the inquiry relates.

My friend's answer to the query from the Court about that matter was that one ignored the words and looked at the scheme or overall context of the legislation and its purpose but, with respect, the words are there and they do have a meaning and, in my respectful submission, they have a meaning wider than the office the subject of the inquiry.

BRENNAN CJ: But Mr King, if I might say so, I still do not understand that you are able to bring yourself within whatever width you put on that word, except by saying that the honorary officers were members with the full-time officers of a committee of management.

MR KING: It can be put in three different ways, your Honour: it is my submission that so long as there is either a direct or indirect relationship between the office, which is the subject of the notice of motion for interim relief and the office which is specified in the application, then that is a sufficient connection to empower the Court, subject of course to the merits, to consider the application.

Let me give an example which I mentioned yesterday. Let us assume there is an election into all of the branch organisers. It is said that there is a slush fund that they have utilised improperly for the purpose of their election. There are eight of them, seven cannot be found and cannot be served; one can be. It is being suggested by Mr Haylen, if he is correct, and it is somewhat odd, with respect, that the organisation should take that stance, that notwithstanding that the seven other officers cannot be found and cannot be served, yet there is no power on an interim basis to either put in place a caretaker, as is provided by subsection (1)(d) or to impact in some other way on an interim basis until inquiry is concluded in relation to the office of organizer.

BRENNAN CJ: If the inquiry is into the election of the eight officers, where would the inhibition be?

MR KING: The inhibition, your Honour, would be in relation to inquiring into other officers other than that which is referred to in relation to the office holders specified in the application.

BRENNAN CJ: But if the application specifies all eight then the problem does not arise.

MR KING: Let me take another example. We would submit that is a direct relationship. Let us assume that there is a concurrent office, an ex officio situation, where on the analysis accepted by his Honour of the Union rules in this case the full-time branch officers hold the office of member of the committee of management ex officio by virtue of their election as a full-time branch officer. It is clear, in my respectful submission, there is an indirect relationship between the committee or the ex officio position and the full-time position specified in the application such as to give rise to a power to consider the position of those office holders pending the outcome of the inquiry.

BRENNAN CJ: You mean of other office holders.

MR KING: Of other office holders, yes.

BRENNAN CJ: That is just the situation that arises here.

MR KING: That is if the analysis of the rules of his Honour is correct, but we would submit that even if that analysis is correct there is an indirect relationship, depending on whether one considers the ex officio office indirectly related or directly related to the full-time officer.

BRENNAN CJ: I do not want to delay you because you have already put the argument but I would like to understand clearly that the only relationship in fact - forget the law for the moment - the only relationship in fact upon which you rely is the common membership of the committee of management.

MR KING: That is the relationship that we rely upon here because - - -

BRENNAN CJ: That is all right.

MR KING: Yes, of course, your Honour. I am sorry. We say that is all that is necessary to be relied upon because when one looks at rule 67 and rule 77 one sees that branch officers in this Union in this branch are all described as being persons who are members of the committee of management and when one goes to the definition, interestingly enough, of "committee of management" in section 4 to which Mr Haylen took the Court one sees the words beside "office" the words "(however described)". Now, in this case one can see the full-time branch officers who have names of president and so on are persons "(however described)" who are members of the committee of management. Therefore, one can conclude upon analysis of the rules that the full-time officers in fact hold the office of a member of the committee of management and that of course is the very same office which is held by the sectional representatives whose election we have been seeking to put off until the inquiry is concluded.

Now, your Honour, that is my analysis that I put to the court on behalf of the prosecutor of the effect of the rules. That would be a direct relationship between the office specified in the application and the office referred to in the notice of motion. But, if that is not accepted and his Honour's analysis is correct, namely, that the office of member of the committee of management, in relation to full-time officers elected in 1994, is ex officio, that is, by virtue of their election as the full-time branch officers, then that is an indirect relationship and still falls within the description of an office to which the inquiry relates, and brings in, within the ambit of the inquiry, the power to make interim orders pending the conclusion of the investigation into the election.

Your Honours, there is also perhaps another example, if I can give a third example of an indirect relationship, which would be important to give full effectuality - if that is a word - effectiveness to a judge conducting an inquiry. Under section 211 of the Act - I would ask the Court to briefly examine it - the Act confers upon members of the committee of management the express power to exempt the organisation from election rules and, in particular a power, in effect, when one follows it through, to appoint a returning officer for the election other than the Australian Electoral Commission.

BRENNAN CJ: Does this arise by way of reply?

MR KING: It does, your Honour, because it is the textual argument to which I have referred, and I am detailing it, perhaps in answer to the way in which my friend put it. The returning officer appointed by the committee of management who, it may be assumed for the purposes of this argument, are specified in the application, is an office to which the inquiry relates. So that, pending the outcome of the inquiry, the Court has power to make interim orders with respect to the conduct of the returning officer itself. And, of course, it would be absolutely critical, in the conduct of an election inquiry, that a returning officer be subject to the orders of a court.

Your Honour, that is the textual argument. I cannot take it any further. I have mentioned the cases of Dingjan. I have mentioned the case of the National Parks and Wildlife Service. Both are recent decisions of this Court on the word "relates", giving it a very wide meaning, and, of course, on the jurisdictional point, I should mention also the case which is in part B of my list of cases, the Shin Kobe Maru litigation in this Court recently, where the word "relates" was also given, in a jurisdictional context, a broad meaning.

The contextual argument that I would put in answer to what my learned friend Mr Haylen said to the Court, is this - and some understanding needs to be had of the factual matters that were mentioned in his Honour's judgment. Your Honours, at page 88 of the application book, at paragraph 7 in the affidavit of the prosecutor, at line 20, the prosecutor mentions that he did nominate for the:

part time member of the Branch Committee of Management -

And then he mentions that he:

did not feel confident in winning a position -

and did not, in effect, campaign, and seems, with respect to the numbers put in Mr Haylen's notes, to have done remarkably well in the circumstances, but the point is that he did not do so because he was concerned at the same irregularities that were the subject of the application being repeated.

At page 136 of the application book, there is the affidavit of Mr Hampson who, in fact, after the event in relation to the election of the sectional representatives, went and tested a sample of 1,000 ballot papers to see whether or not the same problem that was one of the principal irregularities mentioned in relation to the full-time offices occurred in relation to the part-time offices, and the uncontested evidence is that that did occur. The point is this, that this is a case where the core irregularity alleged is a systemic problem.

KIRBY J: That might be so, but why could you not have brought a separate application, which appears to be the scheme of the Act and which appears to have conformed to normal pleading requirements and which could save the uncertainty and difficulty that an election inquiry, already large, will blow out.

MR KING: There are two answers to that, your Honour. Firstly, it is expensive to commence fresh applications in relation to every possible office that could be infected by the same systemic irregularity - - -

KIRBY J: But you can nominate those you wish to investigate at the time of your application.

MR KING: Your Honour, this was Mr Battese's application. We were intervening to support it and we extended the range of irregularities in the way referred to in the applications book. The critical question in this inquiry was, had these irregularities occurred, and in a sense it was speculative to take up the cudgels with respect to something that had not yet been proven to adopt a broad ranging approach by bringing in every other possible office, or every other possible election.

BRENNAN CJ: Mr King, we are not really interested in the facts of these matters. We are as concerned with the jurisdictional question of the interpretation of the phrase in 221(1)(c).

MR KING: I am coming to the contextual argument, your Honour. I simply give that as background. The question here was whether this was systemic and that was the basis upon which this motion was brought. Section 223(1) of the Act, which deals with the powers in relation to the inquiry, speaks firstly of:

the question whether an irregularity has happened in relation to the election -

and the words "in relation to the election" are broad - the words "in relation to" are, but then goes on and gives rise to the possibility of other matters being raised:

and such further questions concerning the conduct and results of the election as the Court considers necessary.

There are two points to be made here. Having regard to the case, that this was not just a one-off problem but systemic in this Union, and systemic having regard to the postal ballot system of voting which was the method of voting referred to in the inquiry, it became relevant, and important, to ensure that no other election, which might be infected by the same practice, would be so infected, pending the outcome of the inquiry which was before the court. Hence, that was an issue which fell within words, not just "irregularity" but "conduct" in "results of the election".

KIRBY J: But the Act still talks of in relation to "the election", the results of "the election". It is not any old election. It is the election which is the subject of the inquiry.

MR KING: Yes, of course. Now of course, your Honour, if once the inquiry is concluded and it was thought appropriate to commence a fresh application in relation to the election of the balance of the committee of management to displace them or, alternatively, to ask the court to amend the application to pursue those other persons, all of which were open, then of course that could, and indeed could still be done. So it is not academic to speak of the court making orders with respect to office holders other than those specified in the very inquiry itself or even office holders not elected because of amalgamation procedures in that very election.

BRENNAN CJ: Mr King, these are arguments which I suppose we must sit and hear you make, but they really do not assist very much in understanding the connotation of the term "in relation to an office" in section 211(1)(c) and if one looks at section 223(1), that you have just drawn our attention to, the subsection itself draws a distinction between questions of irregularity on the one hand and other questions on the other, in relation to the selfsame election.

MR KING: That is so, your Honour.

BRENNAN CJ: Draw whatever long bows you wish, but give us credit for understanding the problem that faces us.

MR KING: Yes, I am sorry, your Honour; I am sorry that I have put it in an inappropriate way. I am seeking to put what I submit is the contextual argument and, your Honour, if I can simply hand up one authority in relation to that. This is a decision of Jutte v Amalgamated Engineering Union, Australian Section (1967) 10 FLR and it is the first of a line of authorities to the same effect. The second last page of the report, which I have handed to the Court, deals with the power of the court to extend the limits of an inquiry as spelt out in the application. The short point is this: inquiry proceedings are not adversarial. It is true they are commenced in an adversarial way by an application as between persons, but the court has power to extend the inquiry into other areas as it proceeds.

That is not limited simply to other irregularities which become apparent as the evidence unfolds but also to other offices which may be affected or infected by the same conduct or malpractices referred to. That illustrates as best I can put it, your Honour, the contextual argument, namely, that if at the end of the day the inquiry is able, by virtue of its own motion, if nothing else, to extend its ambit then, therefore, any interim orders that the inquiry may make ought not to be limited to the office the subject of the inquiry but to be empowered or have jurisdiction, leaving aside the merits, to be so extended.

BRENNAN CJ: Is this the proposition, Mr King, that if there be an inquiry sought and commenced into an election on the basis of a specified irregularity and in the course of the inquiry it appears that that specified irregularity is endemic so that in relation to other elections for other office holders the same irregularity may have occurred there is a relationship between the offices of the those other office holders and the offices of the office the subject of the particular election? Is that the proposition?

MR KING: Yes, that is the proposition.

BRENNAN CJ: I see.

MR KING: Those are the matters which I wish to put in reply, if the Court pleases.

BRENNAN CJ: Thank you. The Court will consider its decision in this matter and will adjourn until 9.30 tomorrow morning in Sydney.

AT 11.14 AM THE MATTER WAS ADJOURNED