Application By: TCN Channel Nine Pty Limited in Connection with a Matter Between: Anthony Carney v Denis Mathews and Construction, Forestry, Mining and Energy Union
[1995] IRCA 662
•20 December 1995
INDUSTRIAL LAW - ELECTION INQUIRY - Use of discovered documents.
PRACTICE AND PROCEDURE - Application for leave to use discovered documents for purposes of a television program - Documents intended to provide backdrop to comments about alleged election irregularities - Circumstances under which documents came into applicant's hands - Nature of intended program - Nature and fairness of earlier program - Whether Court should order applicant to deliver documents to Australian Electoral Commission - Costs.
APPLICATION BY: TCN CHANNEL NINE PTY LIMITED IN CONNECTION WITH A MATTER BETWEEN: ANTHONY CARNEY v DENIS MATHEWS and CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
NO. NI.109 of 1994
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 20 DECEMBER 1995
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.109 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
APPLICATION BY: TCN CHANNEL NINE PTY LIMITED
IN CONNECTION WITH A MATTER
BETWEEN: ANTHONY CARNEY
Applicant
AND:DENIS MATHEWS
First Respondent
and
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 16 NOVEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The orders sought by the Notice of Motion of TCN Channel Nine Pty Limited filed on 7 November 1995 be refused.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.109 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
APPLICATION BY: TCN CHANNEL NINE PTY LIMITED
IN CONNECTION WITH A MATTER
BETWEEN: ANTHONY CARNEY
Applicant
AND:DENIS MATHEWS
First Respondent
and
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 20 DECEMBER 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
Within seven days of this day, TCN Channel Nine Pty Limited:
(a)deliver to the Australian Electoral Commission all documents that are in its possession, or the possession of any of its servants or agents, that were delivered to it by Anthony Carney, being documents produced to him during the course of discovery in the election inquiry in this matter, and all copies of any such documents;
(b)wipe any videotape footage of any such document.
TCN Channel Nine Pty Limited pay the costs incurred by each of the Construction, Forestry, Mining and Energy Union and the Australian Electoral Commission in connection with the Notice of Motion filed on 7 November 1995, the said costs to be calculated according to the scale of costs of the Federal Court of Australia.
Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI.109 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)
APPLICATION BY: TCN CHANNEL NINE PTY LIMITED
IN CONNECTION WITH A MATTER
BETWEEN: ANTHONY CARNEY
Applicant
AND:DENIS MATHEWS
First Respondent
and
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Second Respondent
CORAM: WILCOX CJ
PLACE: SYDNEY
DATE: 20 DECEMBER 1995
REASONS FOR JUDGMENT
WILCOX CJ: On 16 November 1995, I heard an application by TCN Channel Nine Pty Limited ("TCN" or "Channel 9") seeking the leave of the Court for it to use certain documents for the purposes of a television program "A Current Affair". The relevant documents were produced on discovery during the course of an earlier proceeding in the Court, an application by one Anthony Carney for an inquiry into alleged irregularities in elections for positions within the Construction, Forestry, Mining and Energy Union ("CFMEU"). TCN was represented by Mr B McClintock of counsel. The application was resisted by counsel for CFMEU, Mr S Crawshaw, and counsel for the Australian Electoral Commission ("AEC"), Mr P Roberts. At the conclusion of the hearing, I ordered that the application be refused and I said I would publish my reasons later. Mr Roberts and Mr Crawshaw then each applied for an order that TCN pay their clients' costs. After hearing short argument on those applications, I said I would deal with them when giving my reasons for refusing the application to use the documents. Mr Roberts also sought an order directing TCN to deliver up to his client all material held by it that was produced for inspection to Mr Carney, or his representative, on any examination held pursuant to s.228 of the Industrial Relations Act 1988 or as part of the process of discovery of documents in the election inquiry. No previous notice of that application had been given. So I directed that submissions in regard to it be put in writing. I said I would deal with that application, also, when giving my reasons.
Conduct that causes concern
On its face, the application to use the documents is merely a technical matter. Ordinarily, it would be possible to dispose of it simply and briefly. But the evidence discloses courses of conduct by two parties that excite considerable concern: first, the conduct of Mr Carney, in relation to confidential information that came into his hands only because he was a litigant in the Court; and, second, the conduct of TCN. The conduct of TCN that causes concern was not performed in the capacity of a litigant in the Court. The concern arises because of TCN's status as a major media organisation and purveyor of information about public affairs and because its conduct raises questions about its integrity and the professionalism and ethics of some of its staff. Mr McClintock suggested these matters are not the business of the Court. I do not agree. It is not possible to evaluate the application for leave to use the discovered documents without considering how they will be used. And the best guide to that is to note what has already happened. But I prefer to put the Court's entitlement to record, and comment about, TCN's conduct on a broader basis. The media have an enormous influence over public attitudes to, and decisions about, public issues. The integrity of media organs, and the standards observed by journalists working on public affairs programs, are matters of public importance. Here the relevant facts are clear and undisputed. I would be remiss to pass them by.
The election inquiry: preliminaries
Mr Carney's application for an election inquiry was filed on 3 December 1993 in the Federal Court of Australia, the Court that then had jurisdiction over union election inquiries. Mr Carney alleged that irregularities had occurred in connection with elections for positions in the New South Wales branch of the Building Unions' Division of CFMEU that were held in May 1993 and declared on 8 June 1993. The positions were Divisional Branch Secretary, two Divisional Branch Assistant Secretaries, Divisional Conference delegates, Divisional Branch Management Committee Members and Zone Councillors. Mr Carney supplied particulars of the alleged irregularities. He alleged that conduct on behalf of candidates prevented, or hindered, "the full and free recording of votes by all persons entitled to vote and by other persons" in that supporters of one team of candidates, without the authority of the AEC returning officer, took ballot boxes onto job sites, for the purpose of conducting "job votes" and collected unfilled ballot papers from persons entitled to vote and took them away. He also said that union officers prevented, or hindered, the returning officer from ensuring that votes were recorded only by persons entitled to vote by supplying to the returning officer, as persons entitled to vote, the names of persons who were not financial members of the union at the relevant date. In particular, he said, votes were recorded in the names of deceased persons. Mr Carney also claimed that ballot papers bearing forged signatures on the outer envelopes were returned to the returning officer and that "members of the union were offered honorary life membership and other benefits calculated to induce them to vote for one team of candidates in the election".
The matter came before me, as a Judge of the Federal Court, on 21 December 1993. I directed that notice of the application be given to all the people declared elected and that the affidavits on which Mr Carney proposed to rely be filed and served by 8 February. I stood the matter over for further directions on 11 February 1994.
Some affidavits were filed before 11 February but, on that day, I was informed that the applicant wished to have inspection of certain records. With the consent of CFMEU, I directed that it give inspection of the desired documents by 4 March and that, by 11 March, the applicant "file and serve a summary of claims specifying precisely what allegations of irregularities will be pressed at the hearing and identifying the evidentiary material to be relied on in relation to each allegation". I stood the matter over till 17 March.
The summary of claims was not filed. On 17 March, counsel for Mr Carney said his client needed access to more documents. Despite objection by the solicitor for CFMEU, because of the considerable work that would be involved in complying with the request, I ordered that, within three weeks, he give Mr Carney's solicitor a list of the financial members of the New South Wales branch of the Building Unions' Division of CFMEU as at 31 March 1993, the membership admission cards of all people who returned ballot papers for the May 1993 elections, the dues payment history to 31 March 1993 of all those people and the list of life memberships conferred by CFMEU between 1 October 1992 and 31 March 1993. The significance of 31 March 1993 is that the membership roll used for the elections was supposed to be made up as at that day. I further directed that, within two weeks of production of these documents, Mr Carney serve his summary of claims.
Two principles underlay the directions I made on 17 March 1994. They are both of cardinal importance. The first arises out of the fact that Mr Carney alleged serious misconduct. It is important that people accused of serious misconduct, whether in a criminal or civil case, are given sufficient particulars of the allegations to enable them to prepare whatever defence they may have. On the other hand, there is usually a significant imbalance between the position of a union member challenging the conduct of those who control a union and those resisting the claim. The challenger rarely has possession of, or ready access to, all the documents relevant to the challenge, whereas incumbent officials (whether regularly elected or not) usually have unimpeded access to them. If justice is to be provided, it is essential that the information imbalance concerning documents be rectified by generous discovery orders, even at the price of imposing a substantial work burden on the organisation and its officials.
Two weeks after these directions were made, on 30 March 1994, this Court was established. The matter was automatically transferred from the Federal Court to this Court: see s.64 of the Industrial Relations Reform Act 1993.
The case came before me on 27 April. I was told that the discovery process was still under way; Mr Carney and two supporters were spending a long time in CFMEU's office inspecting documents. Although I was concerned about the lengthening delay, I acceded to Mr Carney's request to stand the matter over again, to 10 June. However, before that day the matter was listed by request of Mr Carney's solicitor and an additional order was made concerning documents. I extended the closing dates for Mr Carney's affidavits to 17 June and directed that the respondent's affidavits be filed and served by 8 July. The respondents, at that time, were CFMEU and all the people whose election was challenged.
Mr Carney did not comply with my direction. On 19 July 1994, the solicitors for CFMEU filed a Notice of Motion seeking an order, pursuant to s.223(5) of the Act, that the inquiry be terminated. Mr Carney responded with a Notice of Motion asking for a variation of my direction that the inquiry proceed by way of affidavit evidence. I heard both motions on 18 August. Mr Carney was represented by Mr F L Wright QC and Mr D M Mendelssohn. They said they were instructed that their client and his solicitors were having difficulty in persuading some potential witnesses to make affidavits, but these people would give oral evidence. They also told me of delays in obtaining evidence from a handwriting expert. I declined to terminate the inquiry. I directed that the expert evidence be filed by 16 September 1994 along with "all evidence that can be put on affidavit". I suggested that, where any witness declined to make an affidavit, the solicitors should supply an outline of the evidence they thought the witness would give, if called to give oral evidence.
At the next directions hearing, on 19 September, Mr Carney's evidence was still incomplete. But it was said that it would be complete by 31 October so I extended time till that date and amended the directions about the respondents' affidavits. I also directed that the original ballot papers be delivered to Mr Christopher Anderson, a handwriting expert retained by Mr Carney, so that he could examine them in his own time in his own laboratory. Mr Anderson gave undertakings as to the care and return of the ballot papers. I have no reason to doubt he honoured them.
The election inquiry: the hearing
The inquiry was eventually fixed for hearing in the week commencing 27 March 1995, the whole week being kept available. Shortly before that date, on 10 March, Mr Carney filed an amended application in which he repeated the allegations made in his original application filed 15 months earlier, this apparently being done with the benefit of the extensive inspection of documents and gathering of evidence that had occurred in the meantime. Accordingly, it came as a surprise when, on 27 March, senior counsel for Mr Carney, Mr Wright QC indicated that, subject to one matter "it may not be appropriate for the Court to continue with the inquiry". The one matter had nothing to do with the question whether irregularities had occurred in the election. Mr Wright was concerned to obtain a certificate under s.343(1) of the Industrial Relations Act that Mr Carney had "acted reasonably in applying" for the inquiry. Such a certificate is a condition precedent to an applicant obtaining payment of his or her costs of the inquiry by the Commonwealth government: see s.342(2)(e) of the Act.
Mr Wright went on to refer to the evidence concerning possible irregularities. Mr Anderson had identified a total of 437 votes, spread over four separate ballots, which had "the hallmarks of being written by the one and the same person". The highest number of votes in any one ballot was 159, this being the ballot for Divisional Branch delegates to Divisional Conference. Mr Anderson did not suggest that all 159 votes were completed by the same person. There were 24 different groups of which 20 involved less than 10 votes, many only two or three. Although it is a matter that excites suspicion, the fact that a single person has filled in more than one ballot paper in a union election is not necessarily an indication of fraud. A voter, or a number of voters, might ask a friend or workmate who is more confident about completing documents to complete the ballot for him, or all of them.
Mr Wright pointed out that none of the successful candidates had been elected by a margin as small as 159 votes. In the ballot for Divisional Branch delegates, 2,171 votes separated the least supported elected candidate and the most supported unelected candidate. The margins were even greater for most other positions. For example, in the case of Branch Secretary, the margin was 2,376 votes; for the Assistant Branch Secretaries, 2,374 votes.
Mr Wright then mentioned three other categories of potential irregularity: voting by non-financial members, voting by persons who were no longer members of the union and persons being given life membership. He pointed to evidence by Gerald McDonald, one of the persons who assisted Mr Carney in the task of inspecting CFMEU's records, that suggested that there were about 2,200 non-financial members at 31 March 1993, of whom 152 had voted. Mr McDonald also claimed that votes had been cast by, or in the name of, 218 former members. He also listed about 800 life members, of whom 535 had voted; although the relevance of this category is hard to understand as these people were members anyway, and thus entitled to vote. As will be apparent, even if Mr McDonald's evidence was fully accepted, there were still not nearly enough irregular votes to affect the result of any ballot. Mr Wright recognised this in saying "it would be difficult to see how the Court could make orders overturning the ballot". He said the practical approach "now that all the material is on or available" was to terminate the inquiry.
In responding, Mr S Rothman, who appeared with Ms C Loukas for the respondents, said "there is no evidence of any irregularity whatsoever and we make that absolutely clear".
I acceded to the application made by Mr Wright. I terminated the inquiry and gave his client a certificate under s.343(1). In doing so, I commented:
"cases will arise, and I think this is one of them, where there was material of such a nature as to cause legitimate initial concern to a member of an organisation but where, through the process of discovery which attends an inquiry, it becomes clear that any irregularity was unlikely to have affected the election result."
Because the point seems to have escaped Mr Carney and Channel 9, it is important that I emphasise that I made no finding of election irregularity. All the allegations of irregularity, including the handwriting evidence, were in dispute. Because of the attitude taken by Mr Carney, this dispute was never resolved. My certificate was intended to convey no more than it said: Mr Carney "acted reasonably in applying for an inquiry into the elections". It said nothing about the correctness of the allegations themselves. This was never determined.
The television program: antecedents
It might have been expected that the termination of the inquiry would have marked the end of Mr Carney's criticisms of the election result. Mr Carney having assured the Court through senior counsel, after access to all relevant union records, that the available evidence (if accepted) could not affect any election result, others might reasonably expect him to accept that the people who were declared elected by the returning officer were in fact properly elected; or at least to refrain from public suggestions to the contrary. Not so.
On 13 September 1995, Channel 9 ran a segment about CFMEU on "A Current Affair". It dealt with a number of matters, not including union elections. The program produced a stiff remonstrance from Andrew Ferguson, CFMEU's New South Wales Secretary, to the responsible journalist, Mike Munro. Mr Ferguson listed 17 respects in which, he claimed, there had been a breach of a promise given to the union or the program was inaccurate or unfair. It is not my function to evaluate these criticisms. I only comment that a letter like this would cause concern to a journalist adhering to the profession's proclaimed ethical principles. Such a journalist would wish to investigate whether the complaints were justified; and, if so, how the defects in conduct and content came about.
If Mr Munro investigated Mr Ferguson's complaints, he did not tell Mr Ferguson about it. This was not because he was unwilling to contact the union. He was prepared to do this when it suited him. On 12 October, Mr Munro telephoned the union office and left a message with a secretary requesting information about the names of "dead members" who voted in the 1993 election. Apparently, by that time, Mr Carney had contacted "A Current Affair". The Divisional Branch President, Peter McClelland, telephoned Mr Munro in response to his request. Mr Munro repeated it to him. Later that day Mr McClelland faxed a letter that read:
"I refer to our conversation this morning.
I tried ringing you again but you had gone out.
In order for us to respond to you fully could you please fax the names of the alleged 'dead members' on the union 1993 electoral roll who voted and a copy of the transcript/decision from which you were reading."
Mr Munro telephoned Mr McClelland in response to this letter and told him he would not be providing any names. He suggested that the union should look for the names on its electoral roll.
During the following week, the union received telephone calls from several members complaining that they had been contacted by people associated with "A Current Affair" who suggested that the signature on their union membership application card did not match the signature on their 1993 ballot envelope and that someone voted in their name in that election. The union officers who dealt with these calls inferred that people associated with "A Current Affair" had copies of documents made available to Mr Carney in connection with the election inquiry. The union reported the position to the AEC.
On 20 October, Mr Ferguson faxed a letter to David Leckie, Managing Director of TCN, complaining of the lack of response to his letter to Mr Munro of 14 September and to a later letter, of 18 September, from Mr Ferguson to Neil Mooney, the Executive Producer of the program, amplifying some of the complaints and requesting a meeting to discuss them. The letter to Mr Leckie also mentioned some other matters, including what was said to be Mr Munro's rude and unreasonable response to the union's request for information about the dead people who allegedly voted. Mr Ferguson asked for a meeting to discuss the issues but Mr Leckie did not respond.
On the evening of the same day, Friday, 20 October, Channel 9 telecast a program advertisement for a future edition of "A Current Affair". The advertisement referred to CFMEU as "the rort ridden union where even dead people vote". It referred to a member, Thomas Aitchison, who had voted, using the words "that will now make him 125 years old". These words were spoken over a shot of an extract from what appeared to be an alphabetical membership roll. The extract included the details: "BW000091 B471 Aitchison Thomas 225 Lyons Road Five Dock * Last known address". The advertisement also foreshadowed other stories critical of CFMEU.
At about 1pm the following day, Mr Ferguson faxed a letter to Mr Leckie complaining of this advertisement. He said:
"The allegations about the 1993 union elections which A Current Affair is relying upon have come from Tony Carney. At the time of approaching A Current Affair he was both an industrial advocate for an anti-union labour hire agency and Secretary of a rival construction union. Carney's allegations must therefore be looked at with some scepticism and thoroughly investigated and checked.
Further, Carney had previously pursued in the Federal Court of Australia an unsuccessful election challenge in respect to the 1993 union elections. In that challenge he made the same allegations he is apparently now making to A Current Affair. During the 18 months of those proceedings he was never able to come up with evidence to substantiate his often wild allegations. He often temporarily thought he had discovered evidence but it always turned out to be based on a misreading or misunderstanding of our records or other material.
Carney ultimately withdraw [sic] the case on the first day of what was meant to be a one week hearing, without seeking any finding from the court of an irregularity in the conduct of the election. He conceded through his counsel that the outcome of the election would not be effected [sic] even if all of his allegations were accepted as accurate. In order to get a cost certificate to help him to get his legal costs paid by the government his counsel argued that he was reasonable to make the original application but that once he had the opportunity to examine the documentation it was clear that there was no purpose in wasting everybody's time by continuing with the case.
We request that Channel 9 immediately cease the current advertisements for A Current Affair on the further reports on this union and suspend those reports from being put to air until the complaints contained in this letter and our previous letters have been fully and properly dealt with." (Original Emphasis)
Mr Ferguson concluded by giving a telephone number at which he could be contacted over the weekend. He sent copies of this letter to four senior Channel 9 program staff, Mr Mooney, John Stephens (Program Director), Peter Meakin (Director of News/Current Affairs) and Barry Cowling (Director of Promotions).
Having received no reply from anybody, Mr Ferguson telephoned Channel 9 at about 3pm and asked to speak to someone in senior management. He was told that nobody was available. After he outlined the urgency of the situation, the person who took the call said she would try to contact Mr Meakin and give him a message to call Mr Ferguson. He did not do so.
At about 7pm that evening, 21 October, Daniel Reiss, the CFMEU Legal Officer, faxed a further letter to Mr Leckie:
"We refer to our letter of today's date as faxed to you at approximately 1.00pm.
We note that as of 6.00 p.m. we have not received a response and that Channel 9 has continued to put to air the 'A Current Affair' advertisement the subject of our complaint.
We note that in the advertisement the voice-over refers to 'the rort riddled union where even dead people vote'. As we pointed out in our previous letter, this issue has not been investigated properly by Mr Munro or A Current Affair.
The advertisement shows and refers to a copy of the electoral role [sic] as used and provided by the Australian Electoral Commission which conducted the 1993 union elections. That role shows all members eligible to vote. Those who did vote are indicated by the crossed off number on the furthest left hand column. This was done by the AEC as a vote was received in each name. The member highlighted by Channel 9, Thomas Aitchison, does not have his number crossed out and hence no vote was received or recorded by the AEC against his name (a copy of relevant section of the role is attached).
Clearly Thomas Aitchison would have died some time ago. Obviously the union was never informed of his death and he has remained on our membership list and therefore also the electoral role. As a life member he would not have had to pay dues so the failure to pay dues would not have arisen to alert us of his demise. Even the state and federal electoral roles would contain the names of many dead people whose death has not yet been conveyed to the proper electoral authorities.
The above information would also have been known by Mr Carney. He and/or Channel 9 has concealed the true position. It is a further indication of the unprofessional and malicious approach being displayed by Mr Munro and A Current Affair towards this union.
The other aspects of the advertised story are also seriously flawed. We would be happy to provide you with the relevant information on a later occasion.
We again request that Channel 9 immediately cease the current advertisements for A Current Affair on the further reports on this union and suspend those reports from being put to air until the complaints contained in this letter and our previous letters have been fully dealt with". (Original emphasis)
Mr Reiss closed by repeating Mr Ferguson's telephone number. Attached to the letter was an extract from the union's roll. The names of persons who voted at the 1993 election were marked. The extract included the name "Thomas Aitchison" but it was not marked in such a way as to indicate that anyone had voted in this name. Copies of Mr Reiss's letter were sent to the four executives who received the earlier letter.
There was no response to Mr Reiss' letter. In the meantime, TCN continued to screen the advertisement, with its claim about dead people (and, in particular, Mr Aitchison) voting. On the following Monday morning, Mr Ferguson faxed a further letter to Mr Leckie, with copies to Messrs Mooney, Stephens, Meakin and Cowling, repeating his request that Channel 9 immediately cease to use the advertisement until the union's complaint had been dealt with. This letter finally achieved a response. At about 11.15am Mr Reiss received a call from TCN's in-house solicitor, Kendall Odgers, to say that the advertisement would not be screened again, but the program itself would go ahead on an unspecified day that week. Mr Odgers said he would send a written response to the union's letter shortly.
Mr Reiss immediately wrote again to Mr Leckie. He said:
"We have (at approx. 11.15 am) been informed by Channel 9's in-house solicitor Kendal Ogers [sic] that we shall soon be receiving a written response.
Mr Ogers has informed us that the advertisement for the program will not be shown again. However, in discussions with him it has been made clear that Channel 9 intends to continue with the program itself. We find this extraordinary in the circumstances.
We have also been informed by Mr Ogers that he has simply relied upon instructions from Mr Munro and A Current Affair itself. As we conveyed to Mr Ogers, this is in our view far from adequate. We have written to you, Mr Leckie, as we believe that senior management must have a direct involvement in dealing with our concerns, particularly given the circumstances of the September 'A Current Affair' program and the failure of Mr Munro and 'A Current Affair' to respond to our earlier written complaints directly to them.
We again request that Channel 9 immediately suspend the reports from being put to air until the complaints contained in our previous letters have been fully and properly dealt with and our requested meeting with you has occurred."(Original emphasis)
This letter had an unexpected result. At about 12.30pm, Mr Odgers phoned Mr Reiss and told him he must have misunderstood him, that the advertisement would continue to be televised. Mr Reiss responded with a fax expressing "grave disappointment" at this "clarification". He went on:
"As you appear to be the person who is currently investigating the matter, could you please fax to us immediately the names of all dead persons, aside from Mr Aitchison, whom Channel 9 allege had votes recorded against their names in the union election.
We still request that Channel 9 immediately cease the advertisements and that it suspend the reports from being put to air until the complaints contained in our previous letters have been fully and properly dealt with and our requested meeting with senior management has occurred.
We await your urgent response." (Original emphasis)
At about 1.35pm that day, Mr Odgers faxed a letter to Mr Ferguson in which he responded to some of the matters raised by him on 14 and 18 September. The letter included this paragraph:
"5.Nine notes the comments in your two letters of 21 October regarding the Court proceedings. Nine however maintains that it is entirely appropriate for 'A Current Affair' to investigate and comment upon irregularities in the CFMEU election which were the subject of the Court proceedings given that:
(a)Mr Carney withdrew his proceedings for financial reasons; and
(b)it is clear that ballot papers were filled out in the election on behalf of dead union members. In particular, 'A Current Affair' is very confident that a ballot paper was filled out in the name of Thomas Aitchison."
Mr Odgers did not give any further particulars about dead voters. Nor did he disclose the source of his confidence about Mr Aitchison. The letter ended:
"8.I am now able to confirm that Nine is not prepared to cease the current advertisements for 'A Current Affair' or to suspend any report which it may be preparing in respect of the CFMEU."
Later that afternoon, the union received a fax from Neil Kean, State Director, Industrial Elections, of AEC. The fax read:
"RE THOMAS AITCHISON
A CHECK OF THE MARK-BACK ROLL REVEALS THAT THE ABOVE PERSON DID NOT VOTE IN THE ELECTION OF OFFICES IN MAY 1993."
Mr Reiss immediately faxed a copy of that document to Mr Odgers with a covering letter that included the following:
"In respect to paragraph 5, you refer to 'irregularities' when the court found none. You mean alleged irregularities. Further:
(a)Mr Carney could hardly seriously claim that he ceased the action due to financial reasons. He had the backing of a large number of people to assist him financially. Further, you don't run an 18 month application which includes many lengthy directions hearings and difficult interlocutory steps only to pull out on the first day of a 5 day hearing for financial reasons. Further again, Carney's counsel clearly put on record the reasons for the application being withdrawn - see our letter of 21 October, 1995 and the transcript for those proceedings.
(b)Your assertion that a vote was recorded in the name of Aitchison is contrary to the documents both you and Carney have in your possession ... Further, you have not sought any confirmation for this serious wild allegation from the Australian Electoral Commission. See attached a response we have just received from the AEC. What other names do you have in respect to this allegation?" [Original emphasis.]
He closed by repeating his request for cessation of the advertisement.
Channel 9 took no notice of Mr Reiss' letter or the memo from the AEC. Despite the fact that it now had documentary evidence from an independent government source that what it was saying about Mr Aitchison was not true, Channel 9 continued to tell the public about "125 year old Thomas Aitchison" voting in the 1993 union elections. Despite the fact that Channel 9 had no other example of "dead" voting, it continued to refer to CFMEU as "the rort ridden union where even dead people vote". This was done in a promotional advertisement shown several times each day to audiences that must have totalled millions of people.
Mr Reiss wrote two further letters on the following day, 24 October. In the second of them, he suggested Channel 9 and Mr Carney were in contempt of court in respect of the use of the documents. He enclosed copies of correspondence concerning documents that had been exchanged between the solicitors during the course of the election inquiry. That correspondence included a letter dated 23 March 1994 in which Mr Carney's solicitors, Derrick Zabow & Co, said:
"We request that you forward to us a print out of financial members as at 31 March 1993 upon the same basis that we hold the voters roll, that is to say that same be used for litigation only and that is [sic] contents remain confidential. The undertaking is again extended to Messrs Carney and McDonald."
On the same day, Mr McClelland faxed a letter to Mr Leckie saying:
"We have received some brief and extremely disappointing responses for [sic] Mr Odgers. For example, Channel 9 has been airing for the past several days advertisements for 'A Current Affair' referring to us as 'the rort ridden union where even dead people vote'. The name of Thomas Aitchison is then shown on the screen. Despite Channel 9 being provided by us with a letter the Australian Electoral Commission (who conducted the ballot) stating that no vote was recorded against that person's name, the advertisement continued to run and your counsel continued to try and justify that action.
We believe that our current complaints are very seriously [sic] and deserve a better and fairer response.
Could you, or your nominee from senior management, please personally respond to our request that Channel 9 immediately cease the current advertisements for A Current Affair and suspend the reports from being put to air until we have the opportunity to meet with you or senior nominee and discuss our concerns." (Original emphasis)
At 4.21pm that day, Mr Odgers sent a further fax to Mr Reiss in which he said:
"3.In regard to the various comments made by you in respect of Thomas Aitchison, you may have noted that the promo for the 'A Current Affair' program regarding the CFMEU now refers to dead people being 'eligible' to vote, rather than having voted. I assume this addresses your concerns in respect of this issue.
4.I note your comments regarding documents obtained by Mr Carney during the Court proceedings. Nine will of course ensure that the program regarding the CFMEU does not include any references to documents which would place Nine in contempt of court."
Mr Reiss thought this insufficient. Mr Aitchison's name was shown on the roll with an address that was marked "last known address". This indicated that mail had been returned from that address. So, as he understood the position, AEC would not have sent ballot papers to the address. He responded immediately:
"3.This is a significant alteration but it is far from sufficient. An apology must also be put to air which overcomes the grossly false information conveyed repeatedly over a number of days, including during high rating periods. We presume that in addition to the broadcast apologies, a written apology will be forthcoming from Mr Munro and Channel 9 management.
The allegation should never have gone to air in the first place and was maliciously or reckless [sic] used. It occurred despite our repeated complaints, which were made prior to its first airing.
That gross error/distortion is just one of many in the previous story and what we envisage will occur in the current stories. That, together with the information in our previous letters should be more than enough to make it clear to Channel 9 management that Mr Carney and Mr Munro are acting inappropriately and that the program should not be aired at least until the [sic] our requested course of action is finalised. You should also have been alerted to serious problems by the fact that Mr Munro has been giving you inaccurate instructions (i.e. that he not [sic] refused our request to provide us with the names of the alleged dead people who voted).
Further, as pointed out to you by phone this afternoon, once the allegation about dead people voting has been clarified, the issue of dead people being on the role is a non-issue. There are currently dead people names on the Federal and State electoral role. That is a simply administrative issue of no great significance.
Any further allegations about the union elections should not be repeated without thorough checking, particularly in the light of the long proceedings before the Federal Court which involved Mr Carney.
4.Channel 9 has already taken action which could constitute a breach. We assume this was caused by your inadvisable reliance on Mr Carney and insufficient checking of the story. We note your undertaking in respect to future actions."
Mr Reiss enclosed a copy of Section 4, "News and Current Affairs Programs", of the Commercial Television Industry Code of Practice (August 1993). He marked aspects of the stated Objective of that Section:
"4.1This Section is intended to ensure that:
4.1.1news and current affairs programs are presented accurately and fairly;
...
4.1.4news is presented impartially;"
He also marked paras. 4.3.1 and 4.3.8 which read:
"4.3In broadcasting news and current affairs programs, licensees:
4.3.1must present factual material accurately and represent viewpoints fairly, having regard to the circumstances at the time of preparing and broadcasting the program;
...
4.3.8must make reasonable efforts to correct significant errors of fact at the earliest opportunity."
The television program
On the evening of 24 October, "A Current Affair" included another segment on CFMEU. It opened with a reference from Ray Martin, the presenter, in the program summary, to "the union where rules don't count, where even dead men get a chance to vote". In the body of the program, Mr Martin commenced the relevant story with the words:
"Six weeks ago this program started investigating the activities of the most powerful union in Australia's building industry, the CFMEU. We began with complaints of intimidation on building sites, stand-over tactics that were supposed to have disappeared from the industry after a Royal Commission just a few years ago. We proved that little has changed. Well, tonight Mike Munro has more startling revelations from a man so disgusted with the union that he has turned whistle blower."
Then Mr Carney came on screen and said:
"There is a place for unions, but it's unions that are run by decent honest people."
Mr Munro came on screen and said:
"Tony Carney has been a member of building unions for twenty years. A union official for several of those, and he is fed up with the rorts and stand-over tactics now plaguing Australia's building industry."
After another comment by Mr Carney, the program turned to alleged "standover" incidents. Mr Munro brought it back to membership with the words:
"As a union official, Carney had access to the Building Divisions' documents. After seeing some documents he suspected there had been wide spread voting irregularities during the CFMEU elections of officials during the middle of 1993."
Mr Carney said:
"I was so outraged that I actually took out an action in the Federal Court that ran for approximately 18 months."
[These statements were incorrect. Mr Carney was not a CFMEU official at any time after the 1993 elections. He never had access to documents concerning those elections "as a union official". His access to those documents arose out of directions given by me after he commenced the Federal Court action.]
Mr Munro said:
"Carney ran out of money and says he was forced to abandon the case after spending $125,000. But Chief Justice Wilcox in the Federal Court found that Carney had acted reasonably concerning his allegations of election irregularities."
A voice-over then quoted from my reasons for acceding to the applications made to me in connection with the election inquiry:
"Probably the strongest element of the applicant's case is the allegation of multiple voting. This is supported as to one of the ballots plus some expert evidence which itself is subject to challenge, but the significant point is that it shows that a maximum of 159 votes are suspect on this score."
After a comment from Mr Carney "And this is the union that is purporting to go out and look after workers. It's a crime", Mr Munro referred to Mr Aitchison. He said:
"But A Current Affair has now discovered that one union member who was eligible to vote in the union election is dead. He is Thomas Aitchinson, membership no.471, from Five Dock in Sydney. If he was alive, he would be 125 years old. And yet, he is still on the CFMEU's financial membership books today."
Mr Carney then said:
"When you have to bring up 125 year old people that are dead, you know, and put them on the electoral role, you know, I don't believe that that's the correct way of proceeding with things."
It will be noted that Mr Munro referred only to Mr Aitchison being "eligible to vote" and "still on the CFMEU's financial membership books today". No doubt he had in mind the statement of AEC that nobody had voted in Mr Aitchison's name. Despite this, Channel 9 telecast Mr Carney's suggestion that people had been prepared to "bring up" Mr Aitchison (the 125 year old) and "put" him on the electoral role, a statement for which there was no warrant at all. Mr Carney's allegations were not blurted out in the course of a live interview. The interview was pre-recorded and segments were edited into the larger program.
It seems unlikely that many viewers of the program adverted to the distinction between eligibility and actual voting, especially because Mr Carney's statement was immediately followed by footage, filmed with a secret camera, showing Channel 9 people invading CFMEU's New South Wales office and inquiring about Mr Aitchison's membership status. This footage did not reveal much, except confusion. So Mr Munro let Mr Carney make the point by putting the unwarranted suggestion: "So this man is still an active member of the CFMEU?" Mr Carney replied:
"Yes. If there is a challenge they have people on their books that they can resurrect, and anybody who is challenging their authority will always lose a ballot."
The program then switched to other subjects. As with the membership issue, it was heavy on damaging assertion, light on evidence and unconcerned with balance. No attempt was made to give the union's account of the matters raised, though its position about many of them had been conveyed in correspondence. No union official was invited to appear on the program. This was bad enough. But the failure to give a right of reply was made worse by the circumstance that the program gave the impression that the union had had an opportunity to reply; and, inferentially, had no answer to the allegations. This came about because, near the end of the segment dealing with CFMEU, Mr Ferguson appeared briefly on screen, introduced by Mr Munro in voice-over as "union Secretary, Andrew Ferguson", and spoke about one matter: award provisions concerning preference of employment to union members. It was not explained to viewers that this interview had been filmed months earlier.
As might be expected, CFMEU complained to Channel 9 about the program. On the day following its screening, Mr Reiss wrote a letter. He followed this with a document setting out what he claimed to be the program's distortions. He requested an apology. On 13 November, Mr Reiss received a letter from Kevin Andromos, an in-house TCN lawyer, denying that the story was "offensive, insulting, unfair or unbalanced" or "a deliberate and malicious attack on the CFMEU", as Mr Reiss had claimed. He did not deal with the "distortions" claimed by Mr Reiss but he did say: "Nine denies that there was any lie, 'malicious' or otherwise, as to votes being recorded in the name of dead members". He refused the request for an apology and told Mr Reiss that, if he was dissatisfied with this response, he was "entitled to raise your concerns with the Australian Broadcasting Authority".
Journalistic standards
Journalists claim to practice a profession. They have adopted rules such as the Television Code of Conduct. The first objective of the section dealing with news and current affairs programs is to ensure that "news and current affairs programs are presented accurately and fairly". Even without the Code, that objective should be second nature to any journalist. Yet the manner in which Channel 9 dealt with the CFMEU story was a travesty of accuracy and fairness. I say nothing about the other allegations; full evidence concerning them is not before the Court. But it was obviously inaccurate and unfair for Channel 9 to run an advertisement referring to CFMEU as "the rort riddled union where even dead people vote". The term "rort riddled union" is an emotive description, well calculated to excite audience interest. It is also very damaging. Its use would only be justified where there is evidence of widespread and recurrent (systemic) rorting (flouting of the rules) or, at least, rorting on one occasion on a scale sufficient to affect the control or good government of the union. Despite his 15 months of investigation, with access to all relevant union documents, Mr Carney was not able to make such a case. The best he could do was to call into question some ballot papers. It would probably be possible to do this in relation to any election (union or Parliamentary) involving a substantial number of voters.
In relation to the statement that "dead people vote", apparently the only material that TCN possessed was an extract from the voting roll showing Mr Aitchison's name, with an address at Five Dock marked "last known address". If Mr Munro had bothered to check with AEC, he would have found this indicated that no ballot papers had been sent to Mr Aitchison; so in this sense he was not even "eligible" to vote. Even a cadet journalist would know to check with AEC. However, even though he failed to do this, Mr Munro was given the facts. Mr Reiss told him the position on 21 October. After that date, it must have been obvious that there was nothing in the "dead people vote" story. But Mr Munro was not prepared to allow the facts to spoil his story. And in this he was supported by his superiors, to a very high level. Even after Mr Reiss supplied a memo from AEC confirming that Mr Aitchison had not voted, and having no other evidence whatever, Channel 9 was prepared to put to air an interview with Mr Carney in which Mr Munro referred to "rorts" and "widespread voting irregularities" and a dead member being "eligible to vote" and in which Mr Carney was allowed, without any request for justification by Mr Munro, to talk about bringing up dead people and putting them on the electoral roll and officials having "people ... they can resurrect". He was allowed to close with an observation that suggested ballot-rigging on such a scale as to affect election results ("anybody who is challenging their authority will always lose a ballot"), a suggestion that, as Channel 9 knew, Mr Carney had disavowed in Court.
Lest there be any misunderstanding, I make clear that I am not opposed to investigative journalism. On the contrary, I think investigative journalism is an essential element of a healthy democracy. It is the way we learn of many matters about which we ought to be informed, in order to make wise choices as citizens, voters, consumers etc. I am in favour of investigative journalism, what I am opposed to is dishonest and sloppy journalism, "investigative" or otherwise.
Again, lest there be any misunderstanding, I do not suggest that an organisation such as CFMEU should be immune from media criticism. On the contrary, trade unions play a significant role in Australian public affairs. Most of them have large memberships and exercise considerable power. If they act wrongly, they ought to be criticised. If they are taken over by corrupt or incompetent people, those people ought to be criticised, and hopefully driven from office. But this should be done by competent and honest journalism, not by unsubstantiated smears.
Freedom of speech and journalistic standards
Some people might think my criticisms excessive. They might argue that CFMEU is a large and powerful organisation capable of speaking for itself. So it is, in terms of communicating with its members and those with whom it has business dealings. It is not so easy for it to communicate with the general public; and public perception is important to the trade union movement. Some people might argue that CFMEU itself sometimes abuses its (considerable) power. That may be true. But these arguments miss the point. There is an objection to the lack of integrity and professionalism displayed by the journalists involved in this program that has nothing to do with its subject matter or the personalities involved or the rights and wrongs of the accusations that were made. Rather, it is related to an ideal of central importance to our society: freedom of discussion of matters of public importance. The importance of this ideal was recently emphasised by the High Court of Australia in four cases: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Australian Capital Television Pty Limited v Commonwealth of Australia (1992) 177 CLR 106, Theophanous v The Herald & Weekly Times Limited (1994) 182 CLR 104 and Stephens v West Australian Newspapers Limited (1994) 182 CLR 211. Many quotations could be selected from these cases. It is sufficient to take two. In Nationwide News at 72, Deane and Toohey JJ said:
"Moreover, the doctrine of representative government which the Constitution incorporates is not concerned merely with electoral processes. ... the central thesis of the doctrine is that the powers of government belong to, and are derived from the governed, that is to say, the people of the Commonwealth. The repositories of governmental power under the Constitution hold them as representatives of the people under a relationship, between representatives and represented, which is a continuing one. The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf." [Emphasis added.]
In Australian Capital Television at 139, Mason CJ pointed to the width of the mantle of freedom:
"Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion. In truth, in a representative democracy, public participation in political discussion is a central element of the political process." [Emphasis added.]
As the case names indicate, the proponents of freedom of speech in the four High Court cases were media organisations. They asserted the importance of freedom of speech and the public's right to have access to information about public affairs. Historically, the Australian media have criticised actions, including legislation and proposed legislation, that they have seen as inhibiting their ability to convey information about public affairs. The catch-cry has always been "the public's right to know".
In taking that position, media organs serve their own interests. But they also serve the public interest. For the reasons given in the four High Court cases, it is fundamental to our democracy that members of the public have wide (although not wholly unrestricted) access to information about public affairs.
Principles such as those in Section 4 of the Commercial Television Industry Code reflect an understanding that the corollary to freedom of speech is journalism that exhibits integrity and care. Freedom of speech is precious but there is no virtue in falsehood. Falsehood may lead to prejudice, ill-will and bad decisions. Fact-gathering is often difficult. It is not always easy to know what is true. In order to ensure that truth is not left unstated because of nervousness about error, publishers need latitude. Hence the approach taken in Theophanous and Stephens. But where something is known to be false, or unjustified on available information, the ideal of freedom of speech requires it be not stated. Otherwise freedom will turn into license and calls for censorship arise. Journalists who disregard principles like those set out in the Commercial Television Industry Code are not only unfair to the individuals and organisations they malign. They are unfair to themselves, their colleagues and the public. They imperil a cardinal value that they profess to support. A freedom debauched will not survive.
Decisions regarding program content may be taken by an inexperienced person who is not alive to the considerations just mentioned. That is not this case. As my narrative shows, the facts were brought to the attention of four senior program executives of Channel 9 on numerous occasions. None of them had the politeness to respond. Worse, none of them saw fit to inquire into the truth of the information being given to their television channel by people, including Mr Carney, who might reasonably be thought to have "an axe to grind". They were content to allow Mr Odgers, and later Mr Andromos, to deal with the complaints by writing lawyerly letters, defensive and uninformative, when they found time to do so.
The application to use the documents
The only evidence tendered by TCN in support of its application to use the copies of the discovered documents that were improperly retained by Mr Carney was an affidavit sworn by Paul Andrew Reidy, a solicitor employed by TCN's external solicitors, Gilbert & Tobin. Mr Reidy annexed to his affidavit numerous letters, including letters dated 9 and 13 November 1995 to his firm from the Australian Government Solicitor on behalf of AEC and a reply dated 15 November which includes the following:
"In response to your letter of 9 November 1995 we provide the following information:
(a)Our client no longer has copies of any of the materials originally provided to our client. Our client does have a copy of the original dub for a segment on the A Current Affair programme which includes vision of the envelopes. A tape of that material will be made available to the court when the matter is listed on 16 November 1995.
(b)The applicant to the proceedings, Mr Anthony Carney, provided our client with the material.
(c)Our client cannot reasonably respond to this request.
Our client's story does not purport to be an attack on the secret ballot system. It simply seeks to inform the public of voting rorts that occurred in the union election."
He did not identify the alleged rorts.
Mr Reidy's affidavit contained no reason why it was suggested that the Court should grant leave to use the material.
The only other guidance I have as to reasons for granting leave comes from a videotape that was tendered in evidence. Because nobody from Channel 9 gave evidence in support of the application, the status of this tape was left unclear. Much of the footage on the tape was telecast on 24 October, but not all. In particular, the tape included brief shots of some documents containing signatures. They appeared to be electors' declarations, on the back of envelopes used for returning completed ballot papers, and applications for membership. I gathered from what was said to me by Mr McClintock that, if leave was granted, TCN would use this footage in a further program dealing with CFMEU.
In Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 I discussed the principles applicable to an application to use material produced on discovery for a purpose extraneous to the litigation in relation to which the discovery took place. The application in that case concerned the use in another court of a witness statement prepared in connection with an earlier Federal Court proceeding. The case was argued and decided on the basis that the relevant principles are the same as those that apply in a case such as the present, where a court is asked to give leave to use, for a purpose extraneous to the original litigation, material produced on discovery in that litigation. I referred to the leading authorities in that area of law, noting a comment of Lord Oliver in Crest Homes Plc v Marks [1987] 1 A C 829 at 860:
"the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery."
I pointed out that Burchett J discussed this test in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576. He said at 578:
"If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare."
He went on:
"In my opinion, the court's duty, in an application of this kind, is to consider whether the applicant has shown some circumstance which takes the matter out of the ordinary course, according to which production of documents pursuant to an obligation to make discovery involves the implied undertaking to the court; and, if so, whether an exercise of the court's discretion in favour of the application would be in the interests of justice."
I think I should apply that approach. When it is applied, it is immediately obvious that there is no case whatever for granting the leave sought by TCN. This is not a case where discovered documents are intended to be used in another proceeding, in pursuit of a claim for the rectification of some injustice. It is not even a case where the documents are intended to be used in a serious extra-curial investigation of a matter of public importance. The momentary flashing of a handful of membership application forms and ballot declarations on the screen establishes nothing, even in relation to the selected members. The exposure of the documents is far too brief to enable a viewer to reach a conclusion about the signatures. I have watched the footage twice and I find myself quite unable to reach a conclusion about their similarity or dissimilarity.
It seems to me that the only "positive" effect of a grant of leave would be to allow Channel 9 to throw a cloak of verisimilitude over a story riddled with falsehood. But this is a positive only from Channel 9's point of view. It is not something that is in the public interest. Against that, there are two strong negatives. First, there is a privacy issue. The records contain much personal information about members. It is one thing for personal information to be given to a union at the time of joining; in the view I took, it was even tolerable for that to be made available on a confidential basis to Mr Carney and his helpers, for the purposes only of the election inquiry. It is another matter to allow it to be exhibited on public television. Second, to grant leave in this case would be to give the Court's imprimatur to conduct that can only be described as disgraceful, and perhaps to encourage others to emulate it. Mr Carney knew he was granted access to the material at my insistence and only because of the pending election inquiry. He undertook to keep it confidential. Despite this, and his concession in Court that he could not show that anyone had been irregularly elected, he took the material to Channel 9 to assist him to smear all the officials elected in 1993. And, disregarding accepted professional and ethical standards, the Channel 9 journalists helped him to do so.
Return of the discovered material
In support of his application for an order requiring Channel 9 to deliver to the AEC all material in its possession that was discovered to Mr Carney in the election inquiry, or any copy or photograph of it, Mr Roberts put the simple argument that Channel 9 should never have had this material; it ought to be returned so as to ensure it would not again be misused. Mr McClintock's submission is that this is not necessary; the only relevant material is the reproduction of some documents on the tape to which I referred. He says that, the Court having dismissed his client's application, it is aware that any broadcast of the material would constitute a breach of Mr Carney's undertaking and the order of the Court refusing leave.
It is probably not a matter of major importance whether or not I make a redelivery order. If the position is as stated by Mr McClintock, it is unlikely that there will be any further dissemination of the material. But I have no evidence of the position and I see no justification for dealing with the matter on the basis of a statement at the bar table. I think any documentary material should be delivered to AEC. If there is none, the task will be easy. As to the material on the tape, the appropriate order is that this be wiped. I will make orders to that effect.
Costs
Counsel for CFMEU and AEC both sought an order that TCN pay their clients' costs of the proceeding. The Court has a general power to award costs: see Canceri v Taylor (1994) 1 IRCR 120. But this is subject to the limitation imposed by s.347(1) of the Act:
"A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause."
Counsel for CFMEU and AEC argue that s.347(1) does not prevent an order for costs in their favour because the relevant "proceeding" was the election inquiry and TCN was not a party to the inquiry. Accordingly, they say, the Court has a general discretion and should exercise it by ordering costs against the unsuccessful applicant.
In Foxcroft v Ink Group Pty Ltd (1994) 125 ALR 677 at 681, I referred to the significance of the wording "a proceeding ... in a matter" and pointed out that, within the one matter, there may be a multiplicity of proceedings. That is the position here. The original "matter" was the application for an election inquiry. TCN's application for leave to use the discovered documents is a "proceeding" in that matter. TCN is a party to that proceeding. Accordingly, as it seems to me, I may make an order for costs against TCN only if satisfied that it brought this application vexatiously or without reasonable cause.
I do not think there is any question of the application being made vexatiously. TCN undoubtedly wished to obtain the leave it sought. However, there is a question whether it was made "without reasonable cause". As discussed in Foxcroft, I have in the past posed a practical test in considering whether a proceeding was instituted without reasonable cause: whether, "upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success". In the present case, no new facts came out at the hearing. The applicant's case for leave, such as it was, was known to the applicant and its advisers before it filed its Notice of Motion. The case was really non-existent; it came down to a wish to use video footage of the documents but not thereby commit contempt of court. No attempt was made to justify the use of the documents. No special circumstances were suggested. I think it would have been apparent to anybody conversant with the relevant law that the application had no substantial prospect of success. Consequently, it is right to say it was instituted without reasonable cause. Section 347(1) of the Act does not apply and it is appropriate, as a matter of discretion, to order TCN to pay the costs incurred by CFMEU and AEC in connection with the application. The costs should be taxed on the Federal Court scale.
I certify that this and the preceding forty-two (42) pages are a true copy of the Reasons for Judgment of
his Honour Chief Justice Wilcox.
Associate:
Dated: 20 December 1995
APPEARANCES
Counsel for TCN Channel Nine Pty Ltd: B R McClintock
Solicitor for TCN Channel Nine
Pty Ltd:Gilbert & Tobin
Counsel for Construction, Forestry,
Mining & Energy Union: S Crawshaw
Solicitor for Construction, Forestry,
Mining & Energy Union: Taylor & Scott
Counsel for Australian Electoral
Commission: P Roberts
Solicitor for Australian Electoral
Commission: Australian Government Solicitor
Date of hearing: 16 November 1995
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