Case: Egan v Maher [No. 2] (1978) 35 FLR 252
Outcome: followed
The 'last in time' argument is novel. It has not been considered expressly by any court previously. It is based on the principle of surrender by implication. That principle has been applied as the doctrine of incompatible offices in cases such as Egan v Maher [No. 2] (1978) 35 FLR 252 at 263, Mellor v Horn (1988) 25 IR 157 at 159 161 and Johnson v Beitseen (1989) 41 IR 395 at 412 413. In Re Cholosznecki; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2006] FCA 452 (2006) 151 IR 218, the principle of implied surrender was applied in determining that a member of an organisation had surrendered her membership of one of its branches by applying to become, and being accepted and treated as, a member of another branch, where membership of more than one branch was expressly prohibited by the rules. The principle operates by implication of law, rather than by implied intention. The intention is imputed to a person, as a result of the assumption of a second position incompatible with the first, to relinquish the first position. The principle is subject to the express provisions of the rules, but not easily displaced by them, because it has been held to apply even where there were express, mandatory provisions about resignation. The principle of implied surrender is analysed in Cholosznecki at [29] [34]. In the present case, counsel for Mr Reid and Mr Wisniewski contended that r 5.5 does nothing more than to bring forward the operation of the doctrine of incompatible offices to the stage where nominations for offices occur. He argued that, just as the assumption of a second office, incompatible with one already held, is taken to be an implied resignation of the first office, so the lodging of a second nomination, incompatible with one already lodged, is taken to be the implied withdrawal of the first nomination. 20 Having considered the arguments and the available authorities, I am of the view that the 'last in time' argument is correct. The doctrine of incompatible offices is but an example of the broader principle of surrender by implication. This was made clear by Willes J in the case to which the doctrine of incompatible offices has been traced, Iron Ship Coating Co Ltd v Blunt (1868) LR 3 CP 484 at 488. The principle itself is related to the common law doctrine of election between inconsistent rights. This relationship was explored in the judgment of Northrop J (with whom Evatt J agreed) in Egan at 263 264, where his Honour referred to Tropical Traders Ltd v Goonan [1964] HCA 20 ; (1964) 111 CLR 41 and Sargent v ASL Developments Ltd [1974] HCA 40 ; (1974) 131 CLR 634. In Tropical Traders at 55, Kitto J (with whom Taylor and Menzies JJ agreed) said: 'not that election is a matter of intention. It is an effect which the law annexes to conduct which would be justifiable only if an election had been made one way or the other'. This view was followed by Stephen J in Sargent at 646. Also in Sargent , at 656, Mason J said: 'in some instances election may take place as a matter of conscious choice with knowledge of the existence of the alternative right and in other cases it may occur when the law attributes the character of an election to the conduct of a party.' 22 It is no answer to this line of argument to say that, at the time when it arrives, the later nomination is invalid because of the former. As Northrop J (Evatt J agreeing, Smithers J dissenting on this point) made clear in Egan at 262, the inconsistent assumption of rights does not have to be valid in order to constitute an implied surrender of the original right. In that case, the holder of the office of National Assistant Secretary of an organisation accepted appointment to the office of National Secretary-Treasurer, on the assumption that there was a vacancy in the latter office. The Court held that in law there was no vacancy in the office of National Secretary-Treasurer, but the officer concerned was nonetheless taken to have resigned impliedly from his position as National Assistant Secretary. In any event, in a case such as the present, there is no particular ground for holding that a second or subsequent nomination is invalid. When it is received, all that can be said is that there have been two acts of the candidate which cannot stand together, because of the operation of r 5.5. As a logical proposition, it is equally open to say that the second nomination invalidates the first as it is to say that the first nomination invalidates the second. I have come to the conclusion that the principle of implied surrender requires that the law take the view that it is the first nomination that is surrendered impliedly by the lodging of the second. The first becomes invalid, not the second. The adoption of such a proposition does not offend on policy grounds. Policy is blind to the relative importance of the two or more positions for which nominations have been received, and to the personalities of those who have been nominated. No greater inconvenience is caused to a returning officer who must determine, at the date of closure of nominations, which of the nominations is the one that can be treated as valid. 'Last in time' is a simple rule to apply.