Birch, L.R. v Dunnery, J

[1989] FCA 755

JUDGMENT No. ........ ........ ..- 755 , , , X9

IN THE FEDERAL COURT OF AUSTRALIA )

1

SOUTH AUSTRALIA DISTRICT REGISTRY ) NO. S1 13 of 1989

1

INDUSTRIAL DIVISION	1
B E T W E E N : LESLIE RONALD BIRCH

Applicant

- and -

,A?%/ Respondent

CORAM: VON DOUSSA 3 .
15 NOVEMBER 1989

It is not feasible in the time that is available today to give you a full set of reasons for the order I propose to make. I shall however give short reasons. The application is for an interlocutory injunction, in terms similar to that claimed in the order to show cause granted under s.209 of the Industrial Relations Act 1988, to restrain the respondent from continuing to use and authorising others to use electioneering material which contains, in particular, a statement that it is an Official Ticket authorised by the Branch Secretary.

in the affirmative, the court must then consider where the

On an application of this kind, the function of the court is to consider first, whether there is on the merits as disclosed by the information before the court, a serious question to be tried. In the event that the court answers that question

balance of convenience lies to determine whether a restraining
order ought be made pending trial or whether it ought not.

On the merits, I am by no means convinced that there is a serious question to be tried in the legal sense. The jurisdiction of the court under s.209 is in relation to the performance of rules. It is conceded by the applicants that there is no express rule that has been offended by the alleged conduct of the respondent. The contention is that a rule of some kind should be implied to the effect that a Branch Secretary shall not use the status of his office or the authority of his office to give an endorsement, either to himself or to others, at an election.

General notions of fair play would incline one to the view that something of that kind ought be found in the rules but, as I have said, there is no such express provision. The authorities, whilst not denying the possibility that a rule may be implied, are certainly against the liberal implication of

rules. I refer in particular to Darroch v. Tanner (1987) 74

A.L.R. 559 where the #case upon which the applicant primarily

relies, Scott v. Jess (1984) 3 F.C.R. 263, is discussed.	See in
particular Darroch v. Tanner at pp.567-8.

As I say, I am not convinced that there is a serious question to be tried, whether a rule of the kind suggested by the applicants is to be implied. However, I put that to one side and come to the question of the balance of convenience. I do not think the applicant has established that the balance of convenience in the instant case favours making a restraining order. It is conceded by the applicant that the practice of there being an official ticket is long standing. Insofar as one is able to take judicial notice of the fact, perhaps from reading other cases, the concept of there being a team of people that has some degree of endorsement by the sitting officers of a Union is not oncommon.

The dispute between the rival factions in the South Australian Branch of this Union is one of long standing. I need not recite the various decisions which concern the dispute between the two factions. In my view it must have been, or at least should have been, apparent to the applicant and his supporters that there would be an official ticket and that to a greater or lesser extent, it was likely to receive endorsement from, among others, the respondent. In those circumstances if there were to be some complaint about the existing office holders, including the respondent, using their office to further their chances in the election, some action should have been taken sooner than it was.

In my view, this very late application, after the majority of the information has already been sent out and when the final "how to vote" cards have been printed and someone has been contracted to send them out, is simply too late. The damage, to use Mr Heywood-Smlthts expression, if there is any, has been done. Admittedly, there is one further how to vote card still to be sent out, but those to whom it is proposed to send it have already received one.

Although the document which remains to be sent is headed Official Ticket Authorised by the Branch Secretary, the words "Official Ticket" do not have the prominence which they carried on the earlier fly sheets, nor does the how to vote card show the official address of the Union next to the party, namely, John Dunnery, who is shown as the authorising officer.

In my view, the application for interlocutory relief should be rejected and I dismiss that aspect of the notice of motion.

I certify that this and
the 3 preceding pages are
a true copy of the Reasons

for Decision of Mr Justice

von Doussa.	,
Associate: &	~4-