WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PRESIDENT

CITATION : 2009 WAIRC 01282

FINAL WRITTEN SUBMISSIONS RECEIVED: thursday, 19 november 2009

DELIVERED : thursday, 3 december 2009

FILE NO. : PRES 5 OF 2009

APPLICANT

-v-

Kevin Reynolds, Secretary - The Construction Forestry Mining & Energy Union of Workers

FIRST RESPONDENT

ian botterill returning officer wa electoral commission

SECOND RESPONDENT

-and-

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

INTERVENER

CatchWords:

Industrial Law (WA) – Substantive Application for Election Inquiry under s66(2)(e) of the Industrial Relations Act 1979 (WA) –  Application for summary dismissal under s27(1)(a) of the Industrial Relations Act 1979 (WA) –  Whether applicant asserting he is not a member of an organisation – Whether non-members voted in election – Whether application seeks to re-litigate issues previously decided – Scope of inquiry – Applicability of Anshun estoppel to election inquiries –Application for summary dismissal of the application allowed – Substantive application dismissed

Legislation:

Industrial Relations Act 1979 (WA): s7; s27(1)(a); s27(1)(a)(ii); s66(1)(a); s66(2); s66(2)(e); s66(2)(f); s71; s73(12)(a)

Result:

Application for summary dismissal of the application allowed; substantive application dismissed

Representation:

Counsel:

Applicant:  In person

First Respondent No appearance

Second Respondent No appearance

Intervener:  Mr R Kenzie QC, by leave

Solicitors:

Intervener:  Slater & Gordon Lawyers

Case(s) referred to in reasons:

Appeal by United Firefighters’ Union of Australia (2009) 181 IR

Application by Transport Workers’ Union of New South Wales for A Determination of the Question of an Invalidity under s288 of the Industrial Relations Act 1996 [2008] NSWIRComm 35

Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951

Australian Education Union v Lawler (2008) 169 FCR 327

Bailey v Krantz (1984) 13 IR 326

DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16

Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 109 FCR 447

Mcjannett v Reynolds (2009) 89 WAIG 633

Macchia v The Public Trustee [2008] WASCA 241

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Quall v Northern Territory [2009] FCA 18

R v Holmes, Ex parte Public Service Association of New South Wales (1977) 140 CLR 63

Re Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, Victorian Branch (2000) 99 IR 224

Re Australasian Meat Industry Employees’ Union (WA Branch); Ex Parte Ferguson (1986) 67 ALR 491

Re Election for Office in  Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245

Rogers v The Queen (1994) 181 CLR 251

Spalla v St George Finance Ltd (No 6) [2004] FCA 1699

Stacey v Civil Service Association of WA (Inc) (2007) 87 WAIG 1229

Stuart v Sanderson (2001) 175 ALR 681

Thompson v Reynolds (2009) 184 IR 186; (2009) 89 WAIG 287

West v Jackson McDonald [2001] WASC 198

Western Australian Principals’ Federation v State School Teachers’ Union of Western Australia (Inc) (2008) 88 WAIG 1812

Case(s) also cited:

Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287

Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd (1985)160 CLR 226

Egan v Maher (1978) 35 FLR 197

Hunter v Chief Constable of the West Midlands Police (1982) AC 529

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34

Johnson v Gore Wood &Co [2002] 2 AC 1

Kuligowsky v Metrobus (2004) 220 CLR 363

Leary v Australian Builders’ Labourers’ Federation (1961) 2 FLR 342

Leveridge v Shop Distributive and Allied Employees’ Association (1977) FLR 385

McParland v The Construction, Forestry, Mining and Energy Union of Workers (2002) 82 WAIG 2894

Mcjannett, in the matter of an application for an inquiry in relation to an election for offices in the Construction, Forestry, Mining and Energy Union, Western Australian Branch (No 2) [2009] FCA 1015

Miller v University of New South Wales (2002) 200 ALR 565

Pearce v The Queen (1998) 194 CLR 610

PNJ v R (2009) 83 ALJR 384

R  v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368

Re Collins; Ex parte Hockings (1989) 167 CLR 522

Re Keely; ex Parte Kingham (1995) 1 IRCR 311

Rebenta Pty Ltd v Wise [2009] NSWCA 212 (24 July 2009)

Robe River Iron Associates v Federated Engine Drivers and Firemen’s Union of Workers’ of Western Australia (1987) 67 WAIG 315

Robertson v Civil Service Association of Western Australia Inc  (2003) 83 WAIG 3938

Seamen’s Union of Australia v Matthews (1957) 96 CLR 529

Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285

Walton v Gardiner (1993) 177 CLR 378

Reasons for Decision

RITTER AP:

Introduction

1          The substantive application in this proceeding seeks an inquiry into an election for offices in the intervener; which I will refer to as the CFMEUW.  The application is made pursuant to s66(1)(a) and s66(2)(e) of the Industrial Relations Act 1979 (WA) (the Act).  The election was held earlier this year because of orders I made in Thompson v Reynolds (2009) 184 IR 186; (2009) 89 WAIG 287.  The election was conducted by the second respondent.  The applicant unsuccessfully stood for the position of assistant secretary. 

2          As I will set out later there has been, in the proceeding to date, some variation in the basis of the applicant’s claim.  Essentially however, he asserts that there has been an “irregularity” in connection with the election.  This is because the electoral roll included people who ought not to have been electors, as they had not been properly enrolled as members of the CFMEUW.  Accordingly people did vote, or at least may have voted, in the election when they were not entitled to do so.

Section 66 of the Act

3          Section 66(1)(a) of the Act permits a member or past member of an organisation, registered under the Act, to make an application for an order under the section.  Section 66(2)(e) gives the President of the Commission the jurisdiction to “inquire into any election for an office in the organisation if it is alleged that there has been an irregularity in connection with that election”.  It is that jurisdiction which the applicant seeks to invoke, on the basis of being a member of the CFMEUW.  It is not in question that the CFMEUW is an organisation registered under the Act.  Section 66(2)(e) and s66(2)(f) of the Act give the President broad powers to deal with any established irregularity.  Irregularity is defined in s7 of the Act in the following way:

“irregularity, in relation to an election for an office, includes a breach of the rules of an organisation, and any act, omission, or other means by which the full and free recording of votes, by persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered; …”

4          I will later say something more about the meaning of irregularity in the present context.

Summary Dismissal Application

5          The present application to be determined is one filed by the CFMEUW on 15 September 2009, for the summary dismissal of the substantive application.  The CFMEUW seeks to persuade the Commission to exercise its powers under s27(1)(a) of the Act to dismiss the substantive application because an inquiry is “not necessary or desirable in the public interest” (s27(1)(a)(ii)) or for “any other reason” (s27(1)(a)(iv)).

6          The summary dismissal application was filed after the applicant had, as directed, filed affidavits in support of the substantive application.  At a directions hearing on 16 September 2009, orders were made for the filing and service of submissions in support of, or against, the summary dismissal application.  These were complied with and the hearing of the summary dismissal application took place on 23 October 2009.

7          The summary dismissal application is supported by the first respondent who has adopted the submissions made by the CFMEUW.  Counsel for the first respondent, with my assent, did not appear at the hearing.  The second respondent, understandably and appropriately, has not taken a position on the summary dismissal application.  Again, counsel for the second respondent did not appear at the hearing. 

Grounds of the Summary Dismissal Application

8          In summary, the CFMEUW relies upon three grounds to support the summary dismissal application.  They are:

(a) The argument of the applicant in the substantive application, if accepted, leads to the conclusion that he is not a member of the CFMEUW.  At the same time however he makes this application under s66(1)(a) of the Act on the basis that he is a member of the CFMEUW.  It is submitted that the applicant should not be allowed to “approbate and reprobate”.  Accordingly the application should be dismissed.

(b) The application involves an attack on the findings I made in Thompson v Reynolds.  Accordingly, it is an abuse of process to seek to re-litigate the issues there decided.

(c) As an alternative to (b), it is argued that the application is an abuse of process of the type described by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.  This is usually referred to as Anshun estoppel.  The CFMEUW asserts that, if the matters which the applicant now wishes to argue were not decided in Thompson v Reynolds, it was unreasonable of him not to have then raised them.  Accordingly the applicant should not now be permitted to proceed with the substantive application.  The applicant applied to become a party in Thompson v Reynolds, but after that application was stood over during most of the course of that proceeding, it was ultimately dismissed with the consent of the applicant.  I will later set out additional details of this.

9          A theme central to both (a) and (b) above is that an inquiry is unnecessary and pointless, as the applicant’s claim does not assert any irregularity not dealt with in Thompson v Reynolds. 

The Substantive Application, Evidence and Information

10       The proceeding was commenced by the filing of an application under s66 of the Act on 29 June 2009.  The grounds of the application were set out in an attached schedule 1.  I will later refer to the detail of schedule 1.  After directions hearings a substituted application was filed on 8 September 2009.  That application also relied upon what was described as an “attached schedule 1”.  There was however no schedule 1 attached to the substituted application.  It was accepted that the applicant still sought to rely upon schedule 1 as attached to the original application. 

11       In the present application, the applicant relies upon the following documents, evidence and information:

(a) Schedule 1.

(b) An affidavit of the applicant sworn on 9 August 2009.  (The applicant’s first affidavit).

(c) An affidavit of the applicant sworn on 7 September 2009.  (The applicant’s second affidavit).

(d) An affidavit of the applicant sworn on 12 October 2009.  (The applicant’s third affidavit).

(e) An affidavit of Mr Terrence McParland sworn on 15 September 2009. 

(f) An affidavit of Mr Paul Schultz sworn on 15 September 2009.

(g) An affidavit of Mr Joshua Daley sworn on 7 September 2009.

(h) An affidavit of Mr Stuart Robey sworn on 1 October 2009.

12       The CFMEUW relies upon:

(a) Seventeen attachments to its Outline of Submissions for Summary Dismissal dated 30 September 2009.  It is unnecessary to separately list these attachments, although some will be later referred to. 

(b) Two attachments to its Outline of Submissions in Response to the Applicant’s Submissions, dated 20 October 2009.  Again it is unnecessary to list these attachments.

(c) Five documents which were tabled during the hearing of the summary dismissal application on 23 October 2009.  These were:

(i) An extract of the transcript in Thompson v Reynolds about CFMEUW membership application forms and cards.

(ii) A Schedule of Admissions made by the CFMEUW in Thompson v Reynolds. 

(iii) A document which was marked JJM9 and formed part of exhibit 4 in Thompson v Reynolds.  The part of the document which is relied upon is headed “Application for CFMEU membership”.  This is a form addressed to the CFMEUW and the “CFMEU: Construction, Forestry, Mining and Energy Union”.  This organisation, it is agreed, is the Construction, Forestry, Mining and Energy Union, Construction and General Division, Western Australian Divisional Branch, which is the state branch of a federally registered organisation.  I will refer to this organisation as “the CFMEU”.  (More detail about the CFMEU is provided in my reasons in Thompson v Reynolds).  I will refer to the form as “the joint application form”.

(iv) The Outline of Submissions of the CFMEUW in Thompson v Reynolds, dated 11 December 2008.

(v) A copy of the application for membership cards of the applicant, Mr Schultz, Mr Daley and Mr Robey.  The contents of these cards will be later described.

13       The applicant and the CFMEUW both provided detailed outlines of submissions which were elaborated on at the hearing.

Additional Submissions

14       The five documents tabled by the CFMEUW at the hearing of the summary dismissal application were only received by the applicant at that hearing.  Accordingly, on the first working day after the hearing, the applicant wrote to my associate seeking the opportunity to make additional submissions about these documents.  At my direction, my associate then corresponded about this issue with the CFMEUW and the applicant.  The outcome was that on 30 October 2009 I made an order permitting the applicant to file and serve additional written submissions about the documents by 4:00pm on 6 November 2009, with the CFMEUW having seven days after that to reply.  (I will refer to these as additional submissions).  That order was complied with.

Ballot Papers and Materials

15       Although the Election Report by the Western Australian Electoral Commission for the 2009 CFMEUW “General Election” dated 19 June 2009 was attached to the Outline of Submissions of the CFMEUW, the ballot papers for the election were not.  Accordingly, after the hearing my associate requested that the second respondent provide to the Commission, the other parties and the CFMEUW, the following documents which were sent to electors:

(a) Ballot papers.

(b) Ballot paper envelopes and declarations.

(c) Reply paid envelopes.

16       These documents were provided and the parties and the CFMEUW were given the opportunity to make submissions about them.  The applicant and the CFMEUW did so.

17       The Election Report at [7] said that these documents were mailed to electors on 22 May 2009.  I will later describe their contents.

The Elections

18       The 2009 CFMEUW Election Report disclosed that the only offices where the number of nominations was greater than the number of vacant positions, and therefore an election was required, were those of secretary and assistant secretary ([5]).  There were two nominations received for the office of secretary and three nominations for the two assistant secretary vacancies.  The first respondent and Mr Peter Bruce were the nominees for secretary.  Mr Graham Pallot, Mr Joe McDonald and the applicant were the nominees for assistant secretary.

19       The certified electoral roll was provided by the first respondent to the second respondent on 30 March 2009 ([6]).  There were 9,958 members ([6]).  Ballot papers were duly returned by electors and placed into a ballot box.  The ballot box was opened on 19 June 2009.  A total of 3,212 voting papers were returned with declarations completed.  This gave a “participation rate” of 32.25% of members ([9], [14]).  The result of the count of formal votes for secretary was: the first respondent – 2,529; Mr Bruce – 575.  The result of the count of formal votes for assistant secretary was: Mr Pallot – 2,750; Mr McDonald – 2,468; the applicant – 662 ([12]).  Accordingly, the first respondent, Mr Pallot and Mr McDonald respectively were declared elected ([13] and Appendix 4 to the Election Report).

20       As described in Thompson v Reynolds at [4]–[5], elections for offices in the CFMEU took place in 2008, with the results being declared on 21 November 2008.

Determining the Summary Dismissal Application

21       I proceed on the basis that the power to summarily dismiss an application under s27(1)(a) of the Act should not be exercised other than in a clear case.  This is because an applicant should not be lightly prevented from fully litigating the claims made in his or her application. 

22       In order to determine the summary dismissal application it is necessary to consider the basis of the applicant’s claim that there has been an irregularity in connection with the election.  As mentioned earlier and described fully below, this has not been consistent throughout the proceedings. 

The Substituted Application

23       In the substituted application, the applicant asserted that there was “abundant evidence indicating there are less than 200 bona fide members of the CFMEUW and ballot papers were sent to over 9,000 persons.  Members on the electoral roll were substituted from another union”.  The application then referred to schedule 1 and the applicant’s first affidavit. 

Schedule 1

24       Schedule 1 said that the election had concluded on 19 June 2009.  The applicant said that after noticing some possible irregularities in connection with the compilation of the union membership roll, he read the reasons for decision in Thompson v Reynolds.  The applicant said he “formed the opinion that the CFMEUW has no legal basis for existence”.  The applicant said the CFMEUW had “very few and possibly zero bona fide members enrolled in accordance with the union rules”.  The schedule said the CFMEUW had not been “collecting joining applications, joining fees or subscriptions in accordance with the act [sic] and union rules but instead has been attempting to substitute those with members [sic] records from a separate union operating and registered in a separate jurisdiction”.  This is clearly a reference to the CFMEU.  The schedule said that the evidence adduced in Thompson v Reynolds “strenuously suggests the CFMEUW has no members but instead has been used as a vehicle to hide or cloak approximately $25 million worth of assets obtained from previous members of now de-registered unions”.  The schedule concluded that there was “no legal basis to conduct elections for officers of the CFMEUW as the union has less than 200 members …”.  (That is a reference to s73(12)(a) of the Act which, in combination with s53, obliges the Full Bench to cancel the registration of an organisation with less than 200 members).

The Applicant’s First Affidavit

25       In the applicant’s first affidavit he explained that he moved to Western Australia from Queensland in September 2004.  He then transferred his membership of the “Federal CFMEU to the Western Australian branch and was issued a ticket in the name of the CFMEU Construction & General Division Western Australian Divisional Branch”.  The applicant said he was not informed that he was becoming a member of two unions and had not been charged a joining fee, six monthly subscriptions, or issued with a receipt or ticket by the CFMEUW at any time between 2004 and 2009.  The applicant said he had maintained his membership of the CFMEU since 2004. 

26       The applicant deposed that he had been a shop steward of the CFMEU and had conducted business under that “banner” and not the CFMEUW.  The applicant asserted he was not aware that the CFMEUW existed until nominations for the election of offices were called in 2008.  (That election was halted by an order I made during the course of the proceedings in Thompson v Reynolds and then superseded by the election which was ordered in determining that inquiry).

27       The applicant said that in “recent times” he had interviewed approximately 100 “CFMEU C & G division WA Divisional Branch members” whose names had appeared on the CFMEUW electoral roll.  He said he did not find a member that understood he or she was joining two unions when he or she had joined the CFMEU.  The applicant asserted that none of these “members” had “applied to join the CFMEUW in accordance with the rules nor were any of them charged joining fees, subscriptions, or issued a ticket in the name of the CFMEUW”.  The applicant named eight people he had interviewed on these issues, including Mr Schultz and Mr Robey.  He also named eight “former union members” that he had interviewed, including Mr McParland and Mr Daley.  The applicant did not say if he had been informed as to whether any of the “approximately … 100 … CFMEU members” had received ballot papers and voted in the 2009 CFMEUW election.

28       The applicant’s first affidavit then referred in detail to the reasons in Thompson v Reynolds.  It is unnecessary to set that out.

29       The applicant asserted that as no certificate had been issued under s71 of the Act for the CFMEU and CFMEUW, that “the CFMEUW is and was obligated to operate as a totally separate organisation and in accordance with its rules”.  The applicant said there was “no available evidence that shows any member has filled out a joining application in the form of the schedule attached to the [CFMEUW] union rules.  It follows therefore that there are no members of the CFMEUW”.  The schedule is referred to in rule 10(1) of the rules of the CFMEUW.  Rule 10(1) provides that a “candidate for membership of the Union shall forward or cause to be forwarded to the Secretary of the Union the entrance fee together with an application on the form prescribed for that purpose in the Schedule hereto stating the full name and address of the candidate and bearing the signature of the candidate and that of a witness to the candidate’s signature”.  The schedule to the rules is in the following form:

“THE SCHEDULE

APPLICATION BY CANDIDATE FOR MEMBERSHIP

I ............................................................................................

of ..........................................................................................

HEREBY APPLY to become a member of The Construction, Forestry, Mining and Energy Union of Workers, an Organisation of Employees registered under the Industrial Relations Act (WA) 1979.

DATED the ..... day of ................, 20……

Date of receipt by Secretary: the ..... day of ................,

20……

Signature of Secretary .........................................................

Signature of Applicant .........................................................

Signature of Witness ..........................................................”

30       In a later paragraph of the affidavit the applicant asserted there were “no records of members of the CFMEUW just as there are no members of the CFMEUW”.  The applicant said that a bank account of the CFMEUW had been set up in 2001 but membership subscriptions had not been paid into the account “in recent years”.  The applicant contended that it followed from this that there were “no members of the CFMEUW in accordance with its rules”.  That assertion was repeated in subsequent paragraphs of the affidavit. 

31       Other assertions made in the first affidavit are not relevant.  Some of these involved aspersions against the first respondent. 

32       The applicant deposed that the “onus” was on the CFMEUW administration to ensure that all new members were fully aware that they were also joining the CFMEUW in addition to the CFMEU and that they had filled in a “formal joining application whilst charging them a joining fee and six monthly subscriptions”.  The applicant said that “[b]y and large this has not occurred as the evidence clearly shows very few if any, members have been recruited into the CFMEUW in accordance with the rules”.  The applicant also referred to a practice of waiving joining fees by some union organisers.  The applicant said there was nothing in the CFMEUW or CFMEU rules which authorised this and “those that did pay joining fees understood they were joining one union”.  The applicant also asserted that the entire membership of the CFMEU had been “transposed onto” the CFMEUW union roll with “scant regard to the rules of the CFMEUW …”.  The applicant then repeated that there were “in fact no members of the CFMEUW or certainly less than 200 members”. 

33       The applicant described and annexed correspondence with the CFMEUW and its solicitors about obtaining access to the books and register of members of the CFMEUW under rule 33 of its rules.  Access to the books was later granted and this was referred to in the applicant’s second affidavit.

The Applicant’s Second Affidavit

34       At the commencement of the second affidavit the applicant said he could not “ascertain if [he was] a member of the CFMEUW”.  The applicant then repeated some of his evidence about interviewing members of the CFMEU about membership of both the CFMEU and CFMEUW.  The applicant asserted that he had not been charged a joining fee or issued a receipt by the CFMEUW and “91 members” he interviewed had said the same thing.  The applicant also asserted the “91 members” had informed him that they had not received union tickets from the CFMEUW.  The applicant did not say whether these “91 members” had received ballot papers and voted in the 2009 CFMEUW election.

35       The applicant said that on 26 August 2009 he attended at the registered office of the CFMEUW to inspect the records which he had requested.  The applicant was provided with a “sample box of about 200 cards and a copy of the 2008 financial statement for the union”. 

36       The applicant said that he observed three variations of the card.  Firstly, there were green cards with application details on one side and blank on the other.  Secondly, there were green cards with the same application details on the front but also “eftpos and credit card payment details on the back”.  Thirdly, there were green cards with a “black and white photocopy of the same application format glued down over the original card”.  The applicant asserted that none of the cards contained the wording of the schedule to the rules of the CFMEUW.  The applicant did not say in this affidavit whether the cards contained the same or similar wording to the joint application form.

37       The applicant also said that he took six cards from the box and checked the names against a print out of the 2009 electoral roll that he had in his possession.  None of these six people were on the roll.  The applicant also referred to an offer by the solicitor for the CFMEUW to inspect computer records.  With assistance, the applicant said that he checked three names and only one of those appeared on the 2009 electoral roll.

38       The applicant asserted he was not shown any records of the nature that he had requested in his letter to the union dated 14 July 2009, pursuant to rule 33 of the CFMEUW rules.  In summary the letter requested, for all members:

(a) Receipts and banking records of the CFMEUW showing the payment of joining fees in accordance with rule 10.

(b) Receipts and banking records showing the payment of half yearly contributions at the date of joining in accordance with rule 10.

(c) Approved membership applications in accordance with rule 10 and the schedule.

(d) The register of members showing bona fide financial members of the CFMEUW.

39       The applicant said in his second affidavit that it followed that “there are no records and no members of the CFMEUW”.  It was again asserted that the members and finances of the CFMEUW had been substituted from the CFMEU.

The Applicant’s Third Affidavit

40       The applicant’s third affidavit was filed together with his Outline of Submissions.  In it he asserted he was a “member of the CFMEUW by way of substitution of my records from the [CFMEU] into the records of the CFMEUW”.

41       The applicant attached to his affidavit a copy of two posters.  The applicant noted that both posters only mentioned the CFMEU and showed that the “union [was] trading as the Federal Union only”.  A letter from the first respondent to the applicant dated 11 July 2008, on CFMEU letterhead, was also attached.  The applicant also attached a copy of a letter on CFMEUW letterhead, dated 12 March 2008, written by the first respondent in his capacity as secretary of the CFMEUW.  The applicant said that in the letter the first respondent was “controversially using a Federal union record to obtain State union transitional registration”.  The letter was addressed to the Registrar of the Australian Industrial Relations Commission and enclosed the CFMEUW’s application for transitional registration in accordance with “Schedule 10, section (2)” of the then Workplace Relations Act 1996 (Cth).

42       The applicant also referred to a copy of a letter written by the first respondent to a member, whose name had been blanked out, dated 10 February 2009.  The letter was on CFMEUW letterhead from the first respondent in his capacity as secretary.  That letter was written as a consequence of the orders I made in Thompson v Reynolds.  The applicant asserted the letter was “the only known written correspondence between the CFMEUW and its Rank & File members between 2001 and 26 August 2009”. 

Affidavit of Mr McParland

43       Mr McParland said he was a former paid official of the Western Australian Builders’ Labourers’, Painters’ and Plasterers’ Union of Workers (BLPPU).  The relevance of the BLPPU to the formation of the CFMEUW is set out in the reasons in Thompson v Reynolds at [105]-[109].  Mr McParland said that whilst an organiser with the BLPPU he joined up new members as if they were joining one union and did not distinguish between state and federal unions.  He said he could only recall the union being run as one entity by the first respondent. 

44       It is appropriate to note at this point that as the evidence of Mr McParland is about the BLPPU I do not think it relevant to determining whether an inquiry should be held into the 2009 CFMEUW election.

Affidavit of Mr Schultz

45       Mr Schultz deposed that he had joined the CFMEU in 2000 when he attended its former office in Perth.  He said he believed he was joining just one union and was issued a ticket in the name of the CFMEU.  He said that every ticket sent to him since then had been issued by the CFMEU.  Attached to his affidavit was a copy of the schedule to the rules of the CFMEUW.  Mr Schultz said he had not to his knowledge filled out “this application form or any similar form”.  Mr Schultz said he was not told he was joining two unions and did not know he was a member of two unions until the “recent elections”.  He said he did not understand how he could become a member of a union without his signature or authorisation.  He also said that he had not heard of the CFMEUW and had not been issued a ticket, receipt or any other material in the name of the CFMEUW, apart from the recent ballot forms sent by the second respondent and a letter from the CFMEUW recently advising of a rule change. 

46       Mr Schultz did not say whether he voted in the 2009 CFMEUW election.

Affidavit of Mr Daley

47       Mr Daley deposed that he was an unfinancial member of the CFMEU.  He said that when he joined the CFMEU he did not pay a joining fee.  He was told this was a “common practice to entice members to join the union”. 

48       Mr Daley said that he had been shown a joining application form for the CFMEUW by the applicant.  Mr Daley said that he had not seen this application form before and had not signed “a form like this before”.  (Although the application form was not attached to the affidavit of Mr Daley, I infer that the form was in accordance with the schedule to the rules.  In their submissions, neither the applicant nor the CFMEUW contended otherwise.) 

49       Mr Daley said he had not been issued a receipt or union ticket in the name of the CFMEUW.  He understood that he had joined one union and was not told he was joining two unions.  He said that he had not seen any evidence of belonging to two unions. 

50       Mr Daly did not say whether he received a ballot paper or voted in the 2009 CFMEUW election.  If he was an “unfinancial member” of the CFMEU however, as he deposed, he would not have received ballot papers.

Affidavit of Mr Robey

51       The affidavit of Mr Robey contained similar information.  He said that he joined the CFMEU in 2002.  He believed he was joining just one union and was issued with a ticket in the name of the CFMEU.  All tickets subsequently sent to him had been issued by the CFMEU.  Mr Robey said that he had been shown by the applicant an application form to join the CFMEUW.  (Again I infer that the form was in accordance with the schedule to the rules).  Mr Robey said he had not, to his knowledge, filled out that application form or any similar form.  Mr Robey asserted that he was not told he was joining two unions and did not know he was a member of two unions until the “recent elections”.  He said he did not understand how he could become a member of a union without his signature or authorisation.  Mr Robey deposed that until recently he had not heard of the CFMEUW or been issued with a ticket, receipt or other material in the name of the CFMEUW, apart from the recent ballot forms sent by the second respondent and a recent letter from the CFMEUW advising of a rule change.

52       Mr Robey did not say whether he voted in the 2009 CFMEUW election.

The Applicant’s Written Submissions – Basis of Application and Evidence

53       In his Outline of Submissions opposing the summary dismissal application, the applicant made the following assertions about the basis of his claim and the evidence:

(a) The application for an inquiry is not based upon the allegation that the CFMEUW has no members.  Instead, the assertion is that there are probably less than 200 bona fides members of the union.  Accordingly there were “several thousand persons on the electoral roll who [had] no right to be there or … the CFMEUW had no right to place them on the roll”.

(b) The applicant and “possibly several thousand others have apparently become members of the CFMEUW unlawfully …”.

(c) The CFMEUW has made the applicant and approximately 10,000 other persons members, by and large, without their knowledge or authorisation. 

(d) The acceptance of the applicant’s nomination for office in the 2008 (non completed) election and 2009 election proves he is or was a member of the CFMEUW “despite allegations that it is all illegitimate”.

(e) The issues raised in the present proceeding were not determined in Thompson v Reynolds.

(f) In particular, Thompson v Reynolds did not decide that the CFMEUW was authorised to ignore rule 10 of its rules in enrolling members.

(g) The question of whether the CFMEUW has any members was not squarely an issue in Thompson v Reynolds.

(h) At the inspection of documents by the applicant, no records were produced of members filling in a joint application form to join both the CFMEU and the CFMEUW.

(i) It is now a “known fact that by and large the persons appearing on the CFMEUW membership roll were not even made aware they were joining the CFMEUW and most deny knowing the existence of the union despite being alleged members of it”.  During the course of previous proceedings, insufficient facts were available to make an application in the form of the present application.  That situation has changed due to the recent availability of the evidence relied upon by the applicant.

(j) The applicant was not a party in Thompson v Reynolds, did not adduce any evidence or cross-examine any witnesses.  Although he indicated a willingness for Thompson v Reynolds to proceed to conclusion, that does not determine that the present application is proceeding on the same basis. 

(k) The present application is proceeding on a different basis, with different evidence and as such the issues in the application were not determined in Thompson v Reynolds. 

(l) The applicant “was either not so aggrieved at these earlier times as to warrant an application or possessed insufficient evidence to bring the matter on”.

(m) “There was a period between the calling of nominations in 2008 and the completion of the 2009 election when the applicant assumed (albeit not without suspicions to the contrary) that he must have become a member of the CFMEUW by some lawful means such as a certificate under s71 [of the Act] or an authorising signature on a joining application which indicated the name of the union and the jurisdiction under which it operates.”

(n) A person cannot lawfully become a member of an organisation without “applying in writing to become a member and being alerted as to the existence of the rules of the organisation”.

Summary of Applicant’s Position Before the Hearing

54       From what is set out above it is clear that the applicant’s claim that there were no, or not many, members of the CFMEUW was based on assertions about the non-completion by purported members of an application form in accordance with the schedule to the rules and a lack of awareness that they were, or intention to become, a member of the CFMEUW.  This is apparent from the contents of the affidavits.  It is also supported by the type of records which the applicant sought to inspect, as set out in his letter dated 14 July 2009. 

55       As I will describe, the basis of the applicant’s claim changed during the course of the hearing.

Applicant’s First Submission at the Hearing

56       At the hearing the CFMEUW made submissions about what was decided in Thompson v Reynolds.  This included, correctly as set out below, that I had there determined that a person could become a member of the CFMEUW by the signing and submission of the joint application form.  It was submitted that this issue should not be re-litigated.

57       After this submission was made, the applicant responded to the point.  He submitted that what he relied on was not that a person could not become a member by the submission of the joint application form, but that the joint application form had not been filled in by a majority of members (T15).  The applicant submitted the joint application form “doesn’t exist” and even if it did, it would not be legitimate because it did not outline the jurisdiction in which the CFMEUW operates and “point out the separate union rules” (T15).  The applicant supported this contention by quoting from the affidavits of Mr Schultz, Mr Robey and Mr Daley, where they said in effect they did not fill in a form in terms of the schedule to the rules, or know they were members of the CFMEUW.  I note here that the affidavits did not mention whether the deponents had signed the joint application form.

58       The applicant said that “this matter is calling up the [CFMEUW] to provide corroborating evidence as to the enrolment of” its members (T17).  The applicant reiterated his assertion that the majority of “members” thought they were joining one organisation and it was not pointed out to them that they were also joining a different and separate organisation (T18).

59       Counsel for the CFMEUW then responded to this submission, before continuing with his other submissions.  It was during this response that counsel tabled the membership cards I earlier mentioned.

The Tabled Application Cards

60       As I have said, the CFMEUW tabled the application for membership cards of the applicant, Mr Schultz, Mr Daley and Mr Robey.  The application cards of the applicant, Mr Daley and Mr Robey were dated 6 April 2005, 26 June 2008 and 1 April 2004 respectively.  They are, like the joint application form, addressed to both the CFMEUW and the CFMEU.  Also, like the joint application form these cards thereafter referred to membership of a “union” singular and not plural.  Additionally, the membership cards like the joint application form have spaces for the insertion of an applicant’s name, address and contact details, trades, date of birth, prior membership of the “union”, currency of a “green card” or “safety awareness training” ticket, employer’s name, site, acknowledgement that no threats or the like were made to the person to become a member of the union, joining date and signature.  There is also a section to be completed by apprentice members.  Unlike the joint application form, the cards do not contain a “direct debit request”.  This is not problematic for the membership of the applicant, Mr Daley, Mr Robey, or anyone else, because as I discussed in Thompson v Reynolds, the rules of the CFMEUW do not permit the payment of membership contributions by direct debit instalments. 

61       The application card of Mr Schulz was addressed to “the Western Australian Builders’ Labourers’, Painters’ and Plasterers’ Union of Workers, Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers’ Union”.  The card is dated 11 April 2000.  As this card is not addressed to the CFMEU or CFMEUW I do not think it is relevant to the determination of the summary dismissal application.

62       In his additional submissions, the applicant said that the form of the cards of himself, Mr Daly and Mr Robey were typical of the cards he had inspected on 26 August 2009.  He also reiterated that apart from the heading the cards referred to a “union” singular.  He also attached examples of the “union” tickets of himself and Mr Schultz which were only in the name of the CFMEU.  Tickets of Mr McParland were also attached.  These were for other organisations related to the CFMEU, but issued before the commencement of the CFMEUW in 2001.  (See Thompson v Reynolds at [109]).  Accordingly I do not think they are relevant to the present application.

The Applicant’s Submissions at the Hearing after the Tabling of the Application Cards

63       When making submissions after the tabling of the application cards, the applicant’s position was refined again.

64       The refinement was, in effect, that a person signing the joint application form (or card) could not properly join the CFMEUW without knowing of that organisation, consenting and agreeing to becoming a member of it and being “pointed” to its rules.  The applicant argued that Mr Daley, Mr Schultz and Mr Robey were examples of people where these criteria were not satisfied.

65       The applicant said the issue was that members were not informed they were joining two organisations and still believed they were members of one organisation (T42-43).  It was argued that members had not had it pointed out to them that they were joining separate unions with separate jurisdictions and rules (T43).  The applicant said:

“What I’m running now is an argument that not only was rule 10 not complied with, but the members themselves do not approve of any of this.  The members do not approve of their details being transferred from one union into another without their signature or approval and without their knowledge …”  (T43)

66       The applicant also said the CFMEUW could have, but did not, rely on the joint application cards to counter his claims at the beginning of the proceeding (T44).  I then tried to clarify what the case of the applicant was.  I asked whether he was saying that “people who have been enrolled as members in the election are not members because they haven’t signed a form [sic] in the schedule to the rules.”  The applicant said “no” and then elaborated:

“… to answer your question.  I’m saying they’re not members because they were never informed that they were members and there is an onus upon the Union to inform the persons that they are joining a state registered union that is separate and a different organisation to the federal registered union and it has a separate set of rules and advise them where they can get the rules.”  (T44)

67       The applicant also said the signing of a card in the form of those tabled was insufficient to comply with this (T45).  He later argued that the Commission should enquire into the membership of all of the approximately 10,000 purported members of the CFMEUW (T49).  The applicant also said he was not a member of the CFMEUW by way of having “agreed to become a member” (T50).

68       The applicant submitted the present issues were not decided in Thompson v Reynolds as “one of the issues raised is that members don’t know that they’ve been joined to the union” (T56).

69       I take what the applicant said, as summarised in the last five paragraphs, as being that upon which he ultimately sought to base his claim that there should be an election inquiry.

The Applicant’s Prior Conduct

70       I now turn to consider the applicant’s involvement in Thompson v Reynolds and other s66 applications.  This was comprehensively summarised in the Outline of Submissions of the CFMEUW, supported in some instances by attachments.  The following is relevant:

(a) PRES 2 of 2008

71       This application was filed on 29 August 2008.  The applicant there described himself as “member CFMEUW” [sic].  Amongst other things the applicant sought an interlocutory order, because of an alleged breach of rule 23 about the election of the executive and organisers, to postpone the closing of nominations for the CFMEUW election then scheduled to be held.  That application was not successful.  The substantive application was discontinued by the applicant through his then solicitors on or about 8 September 2008. 

(b) PRES 3-6 of 2008

72      These proceedings were those which culminated in the decision in Thompson v Reynolds.  On 17 September 2008 the applicant applied to be joined as a party to that application.  In the joinder application the applicant described himself as a “candidate in the present CFMEUW elections”.  For the reasons set out in the application for joinder, the applicant sought the opportunity to argue against the postponing of the 2008 election. 

73      There was a directions hearing of the joinder application on 22 September 2008.  At that hearing the applicant referred to himself as a “union member” and a “candidate” (T37).  From the context it is clear that these references were to the CFMEUW.  The application for joinder was adjourned to the first day of the substantive hearing of Thompson v Reynolds on 25 September 2008.  The course of the proceedings on 25 September 2008 is described in my reasons in Thompson v Reynolds at [42]-[44] and [98].  Evidence adduced on that day led to what I colloquially described as opening a “can of worms”.  (This is described in Thompson v Reynolds at [98]-[100]).  The evidence led to the broadening of the inquiries then pending.  One aspect of that evidence was the joint application form.  A list of Questions for the Inquiry and Schedule of Possible Irregularities were later settled with the assistance of the parties.  In referring to the “can of worms” I said on 25 September 2008 that there may be “no financial members” of the CFMEUW because “every payment from every member has been to and received by” the CFMEU (Thompson v Reynolds at [100]).

74      The applicant was present in court at that time and spoke about the prospect of the hearing of the then pending applications being deferred so that the inquiry could properly deal with the “can of worms”.  The applicant said that the issues involved in the “can of worms” “should be dealt with” (T125).  The applicant said that “what needs to be tested is the membership card and how many of those members actually signed a membership card …”.  The applicant also said that “the $79 question lies on the joining card of the union …” (T126).  Earlier, when addressing the “can of worms”, the applicant described himself in the following way: “Now, I’m not a legal expert, although I may be the most informed person on the issues relating to that can of worms and I may possibly be the most experienced person whose running State and Federal Union elections in this room and if not the entire State” (T125).  The application for joinder was adjourned to the following day, 26 September 2008, when additional evidence was to be given in PRES 3-6 of 2008.  At the conclusion of that day, PRES 3-6 of 2008 and the joinder application were adjourned to 30 September 2008. 

75      On 30 September 2008, after discussion with the parties, PRES 3-6 of 2008 was adjourned to 27 October 2008.  The present applicant did not make any submissions on 30 September 2008.  The applicant did not then appear at the hearing which commenced on 27 October 2008.  For the reasons described in Thompson v Reynolds at [5], [6] and [51], the applicants in PRES 3-6 of 2008 made applications on 27 November 2008 to discontinue their substantive applications.  A directions hearing on the discontinuance applications took place on 5 December 2008.  The applicant appeared at the hearing.  The applicant there agreed to the dismissal of his joinder application on the basis that the inquiry, as then framed, would proceed (T517-518).

(c) PRES 7 of 2008

76      This was an application by the applicant filed on 2 October 2008.  He sought, amongst other things, an order in the nature of an asset preservation order against the CFMEUW.  In an affidavit sworn on 8 October 2008, in support of the application, the applicant said he was a candidate for the CFMEUW elections and made the application “on behalf of the members” ([2]).  The issue of alleged destruction of documents, within that application, was resolved by the secretary of the CFMEUW providing an undertaking in the favour of the applicant.  The application adjourned sine die on 10 October 2008 and then discontinued on 16 October 2008. 

(d) PRES 2 of 2009

77      This was an application by the applicant filed on 23 February 2009.  The applicant described himself as a member of the CFMEUW.  The applicant sought an inquiry on the basis that the Western Australian Electoral Commission had unfairly assisted other candidates in the election which I had ordered in Thompson v Reynolds.  In that application, the applicant did not raise any issue as to whether the CFMEUW had any members.  The application was dismissed pursuant to s27(1) of the Act on 24 April 2009 (Mcjannett v Reynolds (2009) 89 WAIG 633). 

(e) The Applicant’s Letter

78       In its Outline of Submissions, the CFMEUW also referred to the letter which the applicant had sent to it dated 14 July 2009, about the inspection of documents pursuant to rules 32 and 33.  The CFMEUW pointed out that the basis of the request was that the applicant was a member of the CFMEUW. 

Thompson v Reynolds, the Joint Application Form and Membership

79       For the purpose of determining the summary dismissal application it is necessary to consider what was decided in Thompson v Reynolds.

80       In the Schedule of Possible Irregularities in Thompson v Reynolds, paragraph 4(a) referred to rule 10(1), “insofar as applications for membership may not be in the form prescribed for that purpose in the schedule to the rules”.  Possible irregularity 4(b) also referred to rule 10(1) “insofar as entrance fees and contributions may not have been forwarded to or receipted by the CFMEUW”.  (The Questions for the Inquiry and Schedule of Possible Irregularities in Thompson v Reynolds are set out at [54] and [56] of my reasons).

81       As later elaborated upon the CFMEUW formally admitted that its application forms were not in accordance with the schedule to the rules.  However in its Outline of Submissions in Thompson v Reynolds, the CFMEUW argued that a person could validly become a member even if they signed the joint application form and not a document in the form of the schedule to the rules.  The CFMEUW argued that the content of rule 10 was directory and facilitative.

82       The submissions referred to R v Holmes, Ex parte Public Service Association of New South Wales (1977) 140 CLR 63 at 73, where Gibbs J (with whom Stephen J agreed) said that “union” rules “should not be restrictively construed”.  It was also argued that the joint application form contained the “key information” in the form in the schedule to the rules.  It was submitted that the failure to comply strictly with rule 10, when a joint application form was signed, did not vitiate purported membership.  The CFMEUW said the rules did not “demand” that result ([22]).  It argued that to hold otherwise would be a victory for “form over substance” ([27]).

83       The CFMEUW also contended in Thompson v Reynolds that the use of the joint application form was evidence that a member intended to join both the CFMEU and the CFMEUW.

84       I accepted this submission, in that in Thompson v Reynolds at [193] I decided the joint application form was an application to join both the CFMEU and the CFMEUW.  This was despite the fact that in the body of the joint application form there is reference to only a union singular; and tickets which were issued only mentioned the CFMEU.  I noted the former in my reasons in Thompson v Reynolds at [87].  It is also apparent from my reasons that I took into account that the joint application form was not in the form of the schedule of the rules to the CFMEUW.  This was set out at [26] and [87] of my reasons.  The joint application form does however contain the name and address of the person applying to become a member, as required by the schedule.  At [210] I held that, amongst other things, what was contained in paragraphs 4(a) and 4(b) of the Schedule of Possible Irregularities did not constitute irregularities.  It was therefore at least implicit in my reasons that a person could lawfully become a member of the CFMEUW by signing the joint application form, even though that document was not in the form of the schedule to the rules of the CFMEUW.  The same necessarily applies to the cards signed by the applicant, Mr Daley, Mr Robey and others which are for all relevant purposes the same as the joint application form.

85       In its submissions in Thompson v Reynolds, the CFMEUW also cited Re Election for Office in Transport Workers Union of Australia, Western Australian Branch (1992) 40 IR 245.  There, French J at 253 cited Holmes and said the preferred approach was to construe “union” rules “not technically or narrowly but broadly and liberally”.  Consistently with this, the failure by a registered organisation to strictly comply with its rules before taking an action does not lead to the conclusion that the action is invalid, absent a statutory requirement to the contrary, unless that is the intention of the rules when considered as a whole, (Australian Education Union v Lawler (2008) 169 FCR 327 at [312]; Appeal by United Firefighters’ Union of Australia (2009) 181 IR 6 at [45]; Application by Transport Workers’ Union of New South Wales for A Determination of the Question of an Invalidity under s288 of the Industrial Relations Act 1996 [2008] NSWIRComm 35 at [13]; cf Western Australian Principals’ Federation v State School Teachers’ Union of Western Australia (Inc) (2008) 88 WAIG 1812).

86       This principle was applied in Thompson v Reynolds.  Rule 10 and the completion of the form in the schedule to the rules are about the mechanics of becoming a member.  They are not about the qualification or status of a person who may become a member.  As I have said, in Thompson v Reynolds I held that the failure to comply with these aspects of the rules did not mean a person could not validly become a member when a joint application form was completed.  Completion of the joint application form was sufficient to become a member.

87       It was my opinion that it is not the intention of the rules of the CFMEUW, considered as a whole, to prevent a person becoming a member if their application form was not precisely in accordance with the schedule.  This is particularly so in the case of the joint application form and the tabled cards, which contain the information about a prospective member required by the form in the schedule to the rules.

88       At [191]-[196] of my reasons in Thompson v Reynolds I considered the effect of the payment of membership funds into an account operated by the CFMEU, in determining who were the financial members of the CFMEUW.  At [193] I said that from the available evidence, contributions were paid by members of the CFMEUW to representatives or employees of the CFMEU and/or the CFMEUW for the purpose of becoming a member or maintaining financial membership of both organisations.  I then described the evidence which supported that.  At [194] I referred to the evidence of the present first respondent that the payment of contributions were received as payments to both the CFMEU and the CFMEUW.  I then referred to the reasons of Gray J in Bailey v Krantz (1984) 13 IR 326 at 383-384.  I quoted from his Honour’s reasons as follows:

“A member paying one sum of money, which he or she believed was all that he or she was obliged to pay, would expect that all obligations arising under both sets of rules would be met from that sum of money, and that any further decisions made to spend that sum of money would be made in accordance with both sets of rules.”

89       At [196] I said that it was unnecessary to determine whether there had been any contravention of the rules of the CFMEUW by the depositing of contributions of members into an account held by the CFMEU.  I then said: “What is relevant is that I accept that payments made by members, deposited into the [CFMEU’s] account, were payments made and received as contributions towards financial membership of the CFMEUW”.

90       The orders which I made in Thompson v Reynolds for the conducting of an election proceeded on the basis that there were financial members of the CFMEUW.  In my reasons at [165]-[169] I described what was required for a member to be financial for the purpose of being entitled to vote under the rules of the CFMEUW.  I also ordered that the CFMEUW write to a particular category of members, there described, to advise them as to their financial status and eligibility to vote in the election. 

Irregularity

91       I reiterate that the application seeks an inquiry into an alleged irregularity in connection with the 2009 CFMEUW election.  I discussed the meaning of irregularity in Thompson v Reynolds at [200]-[208].  There is no need to repeat that discussion.

92       An assertion that people who had voted in an election for offices in an organisation were not entitled to vote, in accordance with the rules of that organisation, would be an irregularity (as defined in the Act) in connection with that election. 

93       I will now consider the grounds upon which the CFMEUW have asserted that the application should be summarily dismissed.

Approbation and Reprobation – Is There any Point to the Inquiry?

94       The first step in this ground is the argument that the logical extension of the applicant’s contentions is that he is not a member of the CFMEUW.  As can be seen from my review of the applicant’s documents, there has been some variation in his position on this point.  He has claimed that the CFMEUW has no members (schedule 1, first affidavit, second affidavit) which would therefore mean he is not a member; he does not know if he is a member (second affidavit); he has become a member by the substitution of his records from the CFMEU to the CFMEUW (third affidavit); and he is a member albeit unlawfully (Outline of Submissions).  At the hearing the applicant maintained that he was a member of the CFMEUW, albeit unlawfully because he had not agreed to become a member (T50, T51).  He said that he became aware of the existence of the CFMEUW and that he was regarded as a member of it when nominations were called for the then to be held 2008 CFMEUW elections (T50, T51).  I note however that the applicant’s response to this was to nominate for office in that election, although he submitted he did not then know that his membership of the CFMEUW was unlawful (T51).

95       It is that membership which, although the applicant asserts it is unlawful, he relies upon to support his nominations for office, capacity to apply to the Commission under s66 of the Act in past and the present proceedings, seek to join the proceedings in Thompson v Reynolds, and to request (as a member) the inspection of documents held by the CFMEUW.  At the same time however the applicant asserts that there was an election irregularity because there were people, like him, who had been made members of the CFMEUW without their knowledge, intention or consent.  The applicant is clearly, to put it colloquially, “having a bob each way”.

96       There is a logical flaw in the applicant’s argument, even if it could be otherwise accepted.  If a person could become a member of an organisation, by the “unlawful” process the applicant relies upon, such that they may nominate for election and invoke the jurisdiction under s66 of the Act, then there is no reason to think a person could not by way of the same process become a member for the purpose of voting in an election.

97       On the other hand if people had become “unlawful” members of the CFMEUW, in the circumstances the applicant relies upon, such that they could not vote, then that would also apply to him.  He could not therefore have validly nominated for office or bring the present s66 application.

98       Accordingly I accept the first step in the argument of the CFMEUW.  If the applicant’s contentions about people voting when not being entitled are accepted, this also applies to him, with the consequence that he is not a member.

99       The next step is to assert that the Commission ought not to allow the applicant to “approbate and reprobate”.  That is, he ought not to be allowed to continue with proceedings which, if his contentions are accepted, would lead to the conclusion just mentioned.

100    I also accept this contention.  It would be pointless to proceed with an inquiry under s66 of the Act in which an applicant in effect asserts that they are not a member of the subject organisation when they rely upon that membership to have standing to bring a s66 application in the first place.  If, as the applicant asserts, he has become a member of the CFMEUW unlawfully and he does not want to be, then his remedy is simple.  He can resign his membership of the CFMEUW. 

101    Additionally, I think there is a fallacy in the applicant’s case, as refined in his submissions at the hearing of the summary dismissal application.  For there to be a possible irregularity in the present proceeding there needs to be evidence of people voting in the election who were not entitled to vote.  The applicant contends, in effect, that this could have occurred because people were included on the electoral roll when they should not have been.  He argues that they should not have been because they were not members of the CFMEUW.  In turn this is based upon people being included as members without signing an application form as required by the rules and being included as a member of the CFMEUW without their knowledge, consent or agreement.  Putting the membership form issue to one side for the moment, any person who did not believe that they were or want to be a member of the CFMEUW did not need to vote in the election and could take steps to resign their purported membership.  If however, having received a ballot paper they knowingly decided to vote in the CFMEUW election, this would be an affirmation of and reliant upon their membership of that organisation.  If a person knowingly voted in the CFMEUW election that would entirely undercut any argument that they were not a member because they did not know they were, nor intended nor desired to be so.  As a result there is no possibility of an irregularity on that basis.  I do not accept that there is a reasonable possibility that a significant body of people who voted in the 2009 CFMEUW election did not realise they were members of that organisation.  There is certainly no evidence of this.

102    Furthermore, there are at least three pieces of evidence to the contrary.  Firstly, as required by the orders made in Thompson v Reynolds, the CFMEUW was obliged to send a letter to members who had paid contributions by instalments, to say that they may be unfinancial under the rules and therefore not entitled to vote.  The letter had to explain what the member was required to pay to become financial.  A sample copy of the letter was attached to the Outline of Submissions of the CFMEUW.  The letter was dated 10 February 2009 and headed “Re: 2009 Election for Offices in the Construction, Forestry, Mining and Energy Union of Workers (“CFMEUW”) (The State Union Election)”.  The letter referred to my orders, the election, the roll of voters and what the member was required to pay to become financial by the closure of the roll, given that their contributions had been paid by instalments.  The CFMEUW said in its Outline of Submissions, without objection, that a letter in this form was sent to over 500 members.  Whilst this is only approximately 5% of the membership, the people who received the letter could have been in no doubt about the existence of the CFMEUW, and that they were regarded as a member of it.

103    Secondly, as stated in the Election Report, the second respondent published an “election notice” in the West Australian newspaper on 27 March 2009.  This was in accordance with rule 23(6) of the rules of the CFMEUW.  A copy of the notice was also sent to the CFMEUW office (Election Report at [4]).  A copy of the notice was appended to the election report.  The notice was headed “CFMEU”.  Underneath this were the words “Construction, Forestry, Mining and Energy Union of Workers”.  It referred to the election of office bearers pursuant to s69(4) of the Act and called for nominations for the offices there set out.  The notice said nomination forms were to be completed in accordance with the rules of the CFMEUW and were available from the second respondent or the CFMEUW.  It contained the date by which nomination forms were to be lodged.  Finally, the notice said that if members had a new address they should so advise the CFMEUW.  The notice was issued in the name of the second respondent which was printed next to the logo of and the words “Western Australian Electoral Commission”. 

104    Thirdly, and most significantly, the ballot papers for the contested elections for secretary and assistant secretary were both headed “Construction, Forestry, Mining and Energy, Union of Workers 2009 General Election for the election of” secretary/assistant secretary.  The declaration which an elector was required to sign to validly vote was also headed “Construction, Forestry, Mining and Energy Union of Workers 2009 General Election”.  The reply paid envelope contained instructions about the placement of the ballot paper in the ballot paper envelope, the signing of the “Voter’s Declaration”, the placement of the ballot paper envelope in the reply paid envelope and then posting it.  The reply paid envelope was addressed to the “Returning Officer, Construction, Forestry, Mining and Energy Union of Workers, Western Australian Electoral Commission”. 

105    At the hearing I put to the applicant that if people voted in the 2009 CFMEUW election it could not be asserted that they did not know they were members (T46).  The applicant replied that they would not know they were members of two “separate unions” and the CFMEUW is a “state registered union under a state jurisdiction” (T46, T47).   He also submitted the ballot papers did not explain that “this is a state union”, under state jurisdiction (T47).  The same point was made in the applicant’s written submissions about the ballot paper and other documents I requested and received from the second respondent.  He submitted the ballot papers did not say the CFMEUW was a different organisation to the CFMEU and that this was a separate election to that of the CFMEU.  Despite this, I do not accept that people receiving the voting documents could be in any reasonable doubt that they were regarded as a member of the CFMEUW and were entitled to vote in the election.  These documents made no mention of the CFMEU.  Moreover they were received within approximately six months of the well publicised, high profile CFMEU election.  As I have said, if a person then voted in the 2009 CFMEUW election this was on the basis of and an affirmation of their membership of that organisation.

106    What also needs to be taken into account is the margins in the 2009 CFMEUW elections.  The first respondent defeated Mr Bruce by 1,954 votes.  Mr McDonald, the lowest polling successful candidate for assistant secretary, received 1,806 more votes than the applicant.  Given all of the above, I cannot accept there is any reasonable prospect that there were enough voters who did not know they were, agree to or affirm and rely upon their status as members when recording their vote, to possibly change the result of the elections.

107    As to the membership form issue, that was determined in Thompson v Reynolds.  As I have said earlier, I there held that a person signing the joint application form, albeit it was not in the form of the schedule to the rules of the CFMEUW, could nevertheless become a member of that organisation as well as the CFMEU.  Based on my reasons in Thompson v Reynolds, the CFMEUW was entitled, and indeed required by those reasons, to treat people who had signed a joint application form or card as members of the CFMEUW.  Accordingly, if financial they were entitled to vote and ought to have been included on the electoral roll.

108    For all of these reasons. in my opinion the first basis in support of the summary dismissal application has been established.  I do not accept there are any good grounds to support the conducting of an inquiry.  In the terms of s27(1)(a)(ii) it is not necessary or desirable in the public interest to do so.  An order dismissing the substantive application should therefore be made.

109    It is not strictly necessary to consider the alternative bases which are relied upon in support of the summary dismissal application.  In deference to the arguments made however I will consider them.

Attempt to Re-litigate Issues Decided in Thompson v Reynolds

110    The CFMEUW submitted that an attempt to re-litigate what was decided in Thompson v Reynolds would be an abuse of process; and that where there is an abuse of process it is not in the public interest to continue with a proceeding.

111    In my opinion it would ordinarily be contrary to the public interest to re-litigate questions which had already been decided in a s66 proceeding.  I say ordinarily because I put to one side for present purposes a situation where, for example, there was credible evidence that witnesses who could have given evidence relevant to the determination of a question had been unlawfully prevented from doing so.  That is not, of course, the present situation.

112    The CFMEUW tabled its Schedule of Admissions and Outline of Submissions from Thompson v Reynolds, as described in [12](c)(ii) and (iv) above, to support its submission that the applicant was attempting to re-litigate what had already been decided.  In the Schedule of Admissions the CFMEUW formally admitted, at (a), that “[a]pplications for membership are not in the form prescribed for that purpose in the schedule to the rules”.  In his additional submissions the applicant asserted that the Schedule of Admissions as tabled was incomplete because only the narrative next to (a), (c) and (g) was reproduced and not that next to (b), (d)‑(f) and (h)-(l).  The point was also made that some words of the narrative had been scored through.  Given the applicant was not a party in Thompson v Reynolds, these concerns are understandable.  They are however unfounded.  The Schedule tabled was in the same form as that provided in Thompson v Reynolds.  There was only narrative next to (a), (c) and (g) because these were the only paragraphs of point 4 of the Schedule of Possible Irregularities, in Thompson v Reynolds, about which admissions were made.  (The Schedule of Possible Irregularities is set out in Thompson v Reynolds at [56]).  The Schedule of Admissions had lines scored through some words as it was an amended document.  The words which were scored through were those deleted from the earlier version of the document.

113    In his additional submissions at [22] the applicant directly attacked the arguments of the CFMEUW in its Outline of Submissions in Thompson v Reynolds.  He submitted that from the “ordinary meaning and interpretation of rule 10”, the failure to fill out an application in accordance with the schedule which was signed and witnessed, meant that a person could not become a member ([14]).  The applicant also argued that the joint application form did not include all the key information in the form in the schedule.  This was because in that form there was “the naming of the jurisdiction under which the union is operating” ([16]).  This is a reference to the scheduled form stating that the CFMEUW was registered under the Act.  This information is not contained in either the joint application form or card.

114    In its additional submissions the CFMEUW asserted that this direct attack by the applicant on its submissions in Thompson v Reynolds clearly showed that he was attempting to re-litigate what had there been decided.

115    As earlier set out, in Thompson v Reynolds I decided that a person signing the joint application form and paying membership contributions, believing that was all that needed to be done to join and maintain membership of both the CFMEU and the CFMEUW, was and continued to be a member of both organisations.  I did not consider in Thompson v Reynolds a situation which is agitated in the present case, of a person not intending to become a member of the CFMEUW by the signing of the joint application form and the payment of a single contribution.  Despite not deciding that issue in Thompson v Reynolds, there is in my opinion no public interest in litigating it in the present proceeding, for the reasons I have earlier outlined.  That is, there is no realistic prospect or evidence that a person who voted in the 2009 CFMEUW election did not thereby reaffirm their membership of, and show their intention to be, a member of the CFMEUW.

116    I also accept that I did not expressly consider, in Thompson v Reynolds, the validity of a signed joint application form not being witnessed, or that the joint application form did not say the CFMEUW was registered under the Act.  These points do not however change my opinion that a person could validity become a member by the signing of the joint application form.  The witnessing of a prospective member’s signature, whilst an understandable requirement of rule 10, is to large extent a technicality.  I do not think the intention of the rules is to omit a person from being a member if this requirement is not satisfied.  I have the same opinion about the joint application form not saying that the CFMEUW was registered under the Act.  Both the CFMEU and the CFMEUW are mentioned in the heading to the joint application form and cards.  It would be open for a prospective member to make an enquiry about the act of parliament under which the organisations were registered, if they wished to do so.

117    I add that my finding in Thompson v Reynolds does not mean that the CFMEUW should not require new members to fulfil the requirements of rule 10 and sign a form in accordance with the schedule.  This should have occurred in the past and should occur in the future.  Additionally, even if a joint application form was used it should not have referred in its body to a “union” singular.  This was symptomatic of the way in which the CFMEUW was wrongly not administered separately from the CFMEU.  My conclusion in Thompson v Reynolds was simply that, despite the deficiencies of the joint application form, its signing could nevertheless lead to valid membership.

118    I do not accept the applicant’s argument that before a person could become a member of the CFMEUW, the organisation needed to specifically inform them that this was a separate organisation to the CFMEU, operated in a different jurisdiction and “point” them to the rules of the CFMEUW.  There is nothing in the rules of the CFMEUW or the Act which requires this to occur.  The joint application form and the tabled cards are addressed to both the CFMEUW and the CFMEU.  New members could have sought clarification about what this meant if they so desired.  A person, when or after signing the form or card, could also have requested a copy of the rules of the CFMEUW if they wanted one.  The signing of the application form was, and could be taken by the CFMEUW to be, the manifestation of an intention to join both organisations.  This argument does not in my opinion constitute a claim that an irregularity has occurred in connection with the 2009 CFMEUW election, because people may have voted who were not entitled to.

119    I also do not accept that there should be an inquiry into the basis of membership of each of the approximately 10,000 members of the CFMEUW.  The applicant’s bald assertion, without evidence, that most would not have signed a joint application form, or similar, does not provide a good reason to have an inquiry.  It might be different if there was credible evidence that people had been placed on the electoral roll and voted when they had not signed the joint  application form or card, but there is none.  The affidavits of the applicant, Mr Schultz, Mr Daley and Mr Robey do not contain such evidence in light of the tabled application cards.  As mentioned earlier, the CFMEUW also tabled at the hearing, without objection, an extract from the transcript in Thompson v Reynolds.  This contained evidence from the first respondent (at T370 and T425) that people had become members of both the CFMEU and CFMEUW by either filling in the joint application form or a joint membership card, and paying their subscription.  There is nothing which credibly undermines this evidence and forms a good ground to have an inquiry.

120    As to the tickets issued to members only mentioning the CFMEU, this was at large in Thompson v Reynolds.  (See for example the reasons at [63] and [71]).  Again a separate ticket should have been issued in the name of the CFMEUW.  But my finding in Thompson v Reynolds, implicitly if not explicitly, was that the failure to do so did not mean the person was not a member of the CFMEUW.  There is nothing in the rules which leads to this conclusion.

The Applicant’s Additional Submissions

121    I will now address other points made by the applicant in his additional submissions.  It is not necessary to refer to general complaints or allegations of impropriety not relevant to the present application for an inquiry, as particularised.  At one point in his additional submissions the applicant referred to the general powers of the Commission in s66(2) of the Act.  It has been held however that s66(2)(e) and (f) of the Act contain a code of the circumstances in which an election inquiry will be held, and the President’s jurisdiction and powers therein.  (See Thompson v Reynolds at [200] and the authorities there cited).

122    Also, the applicant asserted there should be a full inquiry into the operation of the CFMEUW and the CFMEU as one organisation.  That would not however be an inquiry into an irregularity in connection with the 2009 CFMEUW election and therefore could not occur in the present application.  The applicant also complained about there not being a bank account of the CFMEUW or even a joint account with the CFMEU, but just an account in the name of the latter.  That issue was referred to in Thompson v Reynolds at [191].  As in that case however, the present application for an inquiry does not require determination of whether that state of affairs involved any breach of the rules of the CFMEUW.  This is because, even if a breach of the rules, it would not preclude the full and free recording of votes in the election by persons entitled to do so.  (See Thompson v Reynolds at [201]-[202]).

123    It was also argued by the applicant that because the CFMEUW had not, as requested, produced the “10,005 joining cards of any description”, they could not do this and there was an irregularity in connection with the compilation of the electoral roll ([15]).

124    I do not accept that the CFMEUW not providing an inspection of all of these cards is a good reason to conduct an inquiry.  They provided a sample of application cards.  The applicant accepts that these were in the form of the tabled cards which in turn are for all relevant purposes the same as the joint application form.  There is no credible evidence that the approximately 10,000 people who were included on the electoral roll did not sign a form or card of the type which I held in Thompson v Reynolds could lead to valid membership.  The applicant said I should have called for the production of the 10,005 membership cards in Thompson v Reynolds.  There was however no good reason to do so.  The CFMEUW admitted its application forms were not in the form of the schedule to the rules and were as per the joint application form or cards.  There was no evidence to suggest otherwise.  I took into account that admission in making my decision.

125    Moreover, given my reasons and orders in Thompson v Reynolds it would have been an irregularity if people who had signed a joint application form or card and were financial, were not included on the electoral roll.  This is because my reasoning in Thompson v Reynolds made it clear that as valid members they should have been.  This point was made by senior counsel for the CFMEUW (T14).

126    Mention was also made by the applicant of the evidence of non payment of joining fees by “members” of the CFMEUW.  This was a reference to the affidavit of Mr Daley.  As to Mr Daley’s evidence that he had not paid a joining fee, this could not have lead to an irregularity in connection with the election.  Mr Daley is only one member and he said he was unfinancial.  It can thus be inferred, in the absence of any evidence to the contrary, that he did not receive ballot papers.

127    Mr Daley also gave hearsay evidence about the non payment of a membership joining fee as being a “common practice”.  This general comment is an insufficient basis upon which to conduct an inquiry.  My reasons in Thompson v Reynolds set out that to vote a member needed to be financial, and what was required to have that status.  There is no cogent evidence that other than financial members voted in the 2009 CFMEUW election.

Conclusion on Attempt to Re-litigate Argument

128    In summary, I accept that the issue of whether there was an irregularity in connection with the 2009 CFMEUW election, because members did not sign a membership form in accordance with the schedule to the rules, was, in effect, decided in Thompson v Reynolds.  I there held that a person had validly joined the CFMEUW by the signing of the join application form.  The same applies to the joint application card in the form of those tabled at the hearing of the summary dismissal application, inspected by the applicant and referred to by the first respondent in his evidence in Thompson v Reynolds.  Based on my reasons and orders in Thompson v Reynolds, if the names of financial members who had joined the CFMEUW by signing the joint application form or card were not included in the electoral roll, then that would have been an irregularity; not the other way round.  As I have already said there is no realistic prospect that a person who voted in the CFMEUW election did not do so in the knowledge that they were regarded as a member of that organisation.  Having considered the arguments of the applicant, I am not satisfied that there is any good reason to re-litigate the issues decided in Thompson v Reynolds.  Accordingly I accept the second and alternative ground for the summary dismissal of the substantive application.

129    Additionally, there is no good reason to have an inquiry on the basis of the other arguments of the applicant.  This is because of their lack of substance.

Anshun Estoppel

130    This was an alternative to the second basis on which it was asserted the proceeding should be summarily dismissed.  It was contended that if the issues which the applicant now wishes to agitate were not decided in Thompson v Reynolds, then the applicant should nevertheless be prevented from litigating them now because it was unjustifiably unreasonable of him not to have sought to litigate them in those proceedings.  Accordingly, the present application constitutes an abuse of process and it is not in the public interest to proceed with it.

131    The CFMEUW cited a number of authorities which discuss the basis and elements of Anshun estoppel.  These included Anshun itself, Macchia v The Public Trustee [2008] WASCA 241, Stuart v Sanderson (2001) 175 ALR 681 at 686 and West v Jackson McDonald [2001] WASC 198 at [19]-[30].  To these authorities may be added the recent reasons of French CJ in Aon Risk Services Australia Ltd v Australian National University (2009) 83 ALJR 951 at [33]-[34], Spalla v St George Finance Ltd (No 6) [2004] FCA 1699 and DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16 per Newnes JA at [73]-[87].  In DP World, after a review of the authorities, Newnes JA said at [86]-[87]:

“[86] It is clear, however, that Anshun estoppel does not operate simply because a party is asserting a cause of action which could have been, but was not, raised in a previous proceeding in which that party was asserting a different cause of action based on substantially the same facts against the same party.  The touchstone is reasonableness; the question is whether it was unreasonable for the party asserting the cause of action in the second proceeding to have refrained from raising it in the earlier proceeding.

[87] Whether it was unreasonable not to bring the claim in the earlier proceedings depends upon an examination of all the relevant circumstances, focussing on the issue of reasonableness.  There can be no hard and fast rules.  As the High Court pointed out (602) in Anshun, a party may legitimately refrain from litigating an issue in earlier proceedings for a variety of reasons such as expense, the importance of the particular issue, and motives extraneous to the actual litigation.”

132    As described by Madgwick J in Stuart v Sanderson at 686, the Anshun principle is founded upon the need to restrain costs between parties, the avoidance of conflicting judgments, to ensure the finality of litigation, to prevent parties from gaining an advantage in the use of the court’s time, and to preserve the orderly administration of justice.  To this may be added the undue oppression of the party against whom a subsequent claim is made (Spalla at [69]-[70]).

133    It is also clear from the authorities that the Anshun principle can apply to people who were not parties in the first action, although the circumstances in which this may occur might be rare (Rogers v The Queen (1994) 181 CLR 251 at 287; Quall v Northern Territory [2009] FCA 18 at [100] and Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [83]).  This is relevant given that the applicant was not a party in Thompson v Reynolds. 

134    None of the authorities relied upon by the CFMEUW involved an election inquiry into a registered organisation in either state or federal jurisdictions.  The election inquiry jurisdiction held by the Commission is part of its supervisory role over registered organisations (Stacey v Civil Service Association of WA (Inc) (2007) 87 WAIG 1229 at [271]-[274]).  There is a public element to an election inquiry under s66 of the Act.  This was commented upon by Toohey J in Re Australasian Meat Industry Employees’ Union (WA Branch); Ex Parte Ferguson (1986) 67 ALR 491.  The context was an election inquiry under the former Conciliation and Arbitration Act 1904 (Cth) and an application to re-open to adduce additional evidence.  At 494 his Honour said that in an election inquiry “wider interests [are] involved than those of the applicant and the union”.  His Honour said there are also those whose offices are under challenge, the members and “the wider public interest in the integrity of union elections”.  With respect to the application before him Toohey J said that given the nature of an election inquiry 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” (494).  In my opinion these observations are relevant to the present issue.

135    The course of an election inquiry under s66 of the Act does not solely depend upon the conduct of the parties and the issues which they wish to raise.  Thompson v Reynolds is a good example.  There, because of the evidence which emerged, the inquiry became broader than the claims of the applicants.  An inquiry is not therefore inter partes litigation (King v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Victorian Branch (2000) 109 FCR 447 per Gyles J at [54], citing Finkelstein J in Re Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Victorian Branch (2000) 99 IR 224 at [24]-[26]; Ex Parte Ferguson at 494). 

136    Given these considerations, I have some difficulty in readily applying the Anshun principle to election inquiries under s66 of the Act.  If there was a good reason to inquire into whether there had been an irregularity in connection with an election, I do not necessarily think that the inquiry should not proceed because a party, proposed party or intervener to an earlier inquiry had unreasonably not then raised the issue.  It would in my opinion ordinarily remain the responsibility of the Commission to ensure that the election of offices in a registered organisation occurred without irregularity.

137    The application of the Anshun principle involves an evaluative judgment (Spalla at [64]-[65] and Habib at [82]).  The evaluative judgment will take into account all of the facts and circumstances, including the unreasonableness of the prior conduct, the nature of the litigation and issues sought to be litigated and the degree of oppression to the other parties to the litigation.

138    In the present case such an evaluative judgment is unnecessary because, as I have set out earlier, the application does not raise any substantive issue of an irregularity which should be considered by the Commission.

139    If I were to undertake such an evaluative judgment, I would accept that there has been some unreasonableness in the way in which the applicant has conducted himself.  The issue of whether he had become a member of the CFMEUW without his knowledge, intent and agreement could have been raised by him in Thompson v Reynolds.  As stated he was aware that issues of membership were to be considered and the importance of the terms of a membership card to that issue.  The applicant has asserted that, at that time, he did not have evidence from other “members” of the CFMEUW which he could have led.  Whilst that might be so, the applicant could have raised the issue with me and I could have made directions allowing the applicant to gather the relevant evidence.

140    As I have said however it is unnecessary and undesirable to say anything further about the applicability of the Anshun principle in the present case.

Conclusion and Minute of Order

141    For the reasons I have set out, in my opinion a clear case has been established for the summary dismissal of the application.  Accordingly the following orders should be made:

1. The application by the intervener for the summary dismissal of the application is allowed.

2. The application is dismissed.

142    To strictly comply with s35 of the Act, a minute of proposed order should issue in the above terms.  Any party or the CFMEUW who wishes to make submissions about the terms of the minute, should do so in writing within three days.