Buchanek, J. v Jones, I
[1989] FCA 776
•08 NOVEMBER 1989
Re: JOHN BUCHANEK
And: IAN JONES; STEPHANIE BAILLIE; HERBERT MUENCH; MICHAEL McCORMACK; BERNARD
COMMANDEUR; SHAUN CAREY; NOEL LONG; LUCA PICCI; DESI MARTIN; DOUGLAS HARDIE;
GEORGE BOBANOVIC; DAOUD ADAM; SPIRO LAUCANARIS; GARY SHERRIFF and PETER
HEAPHY
No. V I 52 of 1989
FED No. 776
Industrial Law
29 IR 332
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Industrial Law - registered organisation - rules - performance and observance - branch elections - paid advertisement for one team of candidates in Union journal - whether necessary to inform other candidates of right to have paid advertisements in Union journal.
Industrial Relations Act 1988 s. 209.
HEARING
MELBOURNE
#DATE 8:11:1989
Counsel for the applicant: Mr. D. Staindl
Solicitors for the applicant: Maurice Blackburn & Co.
Counsel for the respondents: Mr. H. Borenstein
Solicitors for the respondents: Slater & Gordon.
JUDGE1
The applicant in this proceeding is a member of the Vehicle Builders Employees' Federation of Australia ("the Federation"), an organisation of employees registered pursuant to the Industrial Relations Act 1988 ("the Act"). By rule to show cause, which was granted on 27th October 1989, the applicant seeks orders pursuant to s.209 of the Act, that the respondents and each of them perform and observe the rules of the Federation. The orders sought relate to the use of the property resources, machinery or staff of the Federation, or its Victorian branch, to support or promote candidates in elections which are currently being conducted within the branch, or to influence voters in their selection of those candidates. The respondents are the members of the committee of management of the Victorian branch of the Federation.
Interim orders were made on 1st November 1989. They concerned specifically the question of the use by certain specified organisers of their time for the distribution of electioneering material, the urging or seeking to persuade members of the Federation to vote for or against particular candidates, and the use of the property resources, machinery or staff of the Federation for the publication or distribution of written or printed material supporting, promoting or opposing candidates calculated to influence voters.
Liberty to apply was reserved in the order made on 1st November 1989. Today the applicant has sought to avail himself of that liberty to apply. He seeks an order that a publication of the Victorian branch of the Federation known as "In Tune" be prevented or at least delayed, until such time as he is able to have published in that publication an advertisement urging members of the Federation to vote for him and for his team of candidates in the elections.
As well as having an affidavit of the applicant, I have had the benefit of an affidavit filed on behalf of the respondents by one Mary McClure. She has a background in journalism and is currently employed in the Victorian branch of the Federation with specific responsibility for its publications. It is she who has begun the publication of the newspaper entitled "In Tune". The first issue was in July or August of this year and it is planned that the newspaper be published every two months. The first edition was a four page tabloid. It was increased to an eight page tabloid in September of this year and particular attention has been given to expanding the number of languages in which articles are published because of the number of languages spoken by members of the Federation in Victoria.
For the third issue, Ms. McClure decided to put in even more languages and to increase the size of the newspaper further. For that purpose, she decided to seek out paid advertising, in order to defray the extra cost of the newspaper. She has been able to obtain some advertising for the issue which is currently in the course of publication. On Wednesday 1st November, she approached the respondent Ian Jones, who is the acting secretary/treasurer of the Victorian branch of the Federation. She told him of the various rates that would be payable for advertising in "In Tune". On the following day, Mr. Jones informed her that he would be placing an advertisement in the newspaper, at a cost of $1,000.00 to his team of candidates, who are known as the New Direction Team. Mr. Jones gave Ms. McClure the material for that advertisement, which she describes as how to vote literature for the elections. She has invoiced the New Direction Team in the sum of $1,000 for the cost of the advertisement. It is proposed to publish the advertisement clearly marked as an advertisement, delineated by a black border, and carrying at its base the statement, "This advertisement is paid for and authorised by Ian Jones on behalf of the New Direction Team."
On 2nd November, Ms. McClure attempted to speak to the applicant, because she was aware that he was the leader of another team of candidates, known as the United Vehicle Workers Team. She set aside a page for an advertisement by the applicant, which she says was in a more favourable position than that which she had allocated to Mr. Jones. She attempted to telephone the applicant at his place of work on the morning of 2nd November and left a message that he should ring back. She also made two phone calls during that day to the applicant's home. On the first occasion, at about lunch time, she spoke to the applicant's wife and left a message that it was urgent that she speak to the applicant in relation to advertising in the Federation's journal. She also told the applicant's wife the cost of advertising. She made a further attempt at 9.00 p.m. that evening and spoke to the applicant's daughter, who advised her that the applicant and his wife were out. Ms. McClure advised the applicant's daughter that it was very urgent that he should contact her. The applicant did not respond to any of these messages by telephoning Ms. McClure back. On the following morning, Friday 3rd November Ms. McClure rang the applicant's place of work at 9.00 a.m. and again at 10.00 a.m. and left messages for the applicant to telephone her. She made a further five attempts between 1.00 p.m. and 2.30 p.m. to telephone him at his home. These attempts were unsuccessful. At 2.35 p.m. on 3rd November, she again telephoned the applicant's place of work and was told that he had not come to work that day.
Ms McClure deposes to a requirement that she deliver the copy to the publisher by 4.30 that afternoon. She prepared a replacement story to fill the page that she had allocated for the applicant, and delivered the material to the publisher. Being concerned that the applicant had not returned her phone calls, she telephoned him at 7.30 p.m. on Friday 3rd November, and that was the first occasion on which the applicant was informed that he would have been able to have an advertisement for his team published in "In Tune". According to Ms. McClure's evidence, the applicant responded to her statement that she had been trying to contact him regarding the advertisement by saying, "It is my fault. I just thought you were someone selling something and that is why I did not ring you." In that conversation the applicant was informed that it was, at that stage, too late for him to place an advertisement, because all the material was with the publisher.
The applicant has attempted to invoke the principle of an implication in the rules of the Federation that the funds and resources of an organisation may not validly be used to support one group of candidates in an election to the exclusion of another group of candidates. In the course of argument, it emerged that some difficulty confronted the application of this principle in the present circumstances. On the evidence which is available to me, and I do hasten to say that that evidence has not been the subject of testing by cross-examination, nor has there been an opportunity for the full gathering of evidence such as might be available at a trial, the New Direction Team proposes to publish a paid advertisement in a newspaper of the Federation. In those circumstances, it cannot really be said that the funds, resources or property of the Federation are being used to support one group of candidates.
Counsel for the applicant refers to the statement of the relevant principle in my own judgment in Scott v. Jess (1984) 3 FCR 263 at p 287, a statement of the principle which was subsequently approved by the majority of the Full Court in Tanner v. Maynes (1985) 7 FCR 432, at p 441.
Counsel for the applicant also draws attention to the sentence in my judgment in Scott v. Jess at p 288 as follows:
"The principle only comes into play when there is a denial of an opportunity to some candidates which is made available to others."
He contends that, in the present circumstances, there was a denial of an opportunity to publish an advertisement in "In Tune" to the applicant, whereas that facility was made available to the respondent Jones and the New Direction Team. The question therefore arises as to what is meant by a denial of an opportunity. Counsel for the applicant says that no advertising had been published in any previous issue of "In Tune" and that no reasonable or adequate step was taken to inform the applicant that advertising was to be published to give him an opportunity to avail himself of that facility.
On the crucial question whether failure to inform someone of the availability of a facility constitutes a denial of an opportunity, much reference was made to Valentine v. Butcher (1981) 51 FLR 127. In that case, one team in an election in a registered organisation placed a leaflet in the organisation's official journal by way of an insert. A candidate opposed to that team had previously sought from the editor of that journal some indication as to the manner in which candidates' points of view might be published in the journal. A reply had been made to her but she had not been told of the possibility of inserting an extra leaflet as an insert in that journal. It was argued in that case that the principle later enunciated in Scott v. Jess had been infringed. At pp 139-140 the Court said:
"In my opinion the principle does not extend in such a way that the rules impliedly require existing office holders to take positive steps to ensure that each candidate knows precisely what his or her rights are in respect of advertising in the journal of the organization concerned. However, assuming that the principle operates to require those office holders to refrain from misleading one of the candidates as to those rights, doubtless it would extend to requiring them to take the necessary remedial action if they had in fact misled one of the candidates. In my opinion the principle does not operate in such a way that the rules impliedly impose a duty upon the existing office holders to take the initiative and offer the resources to other candidates. In other words, the principle is that the rules impliedly prohibit existing office holders from taking certain action or engaging in certain conduct. It does not extend to requiring them to take positive steps to ensure that all candidates have the same knowledge, for example, as to the right to advertise in the journal, unless those candidates have been misled by some action"
and the passage reads "for" but I think it should be "of" or "by":
"an existing office holder - as distinct from being merely under a misapprehension which is not due to any such misleading action.'
Counsel for the applicant suggests that that decision has been impliedly overruled by Scott v. Jess. In fact, Valentine v. Butcher is referred to and quoted from in the judgment of the majority in Scott v. Jess at p 271, and referred to in my judgment. Nowhere in Scott v. Jess is there the slightest indication of disapproval of Valentine v. Butcher. This being an application for an interim order, it seems to me that I should follow the authority of Valentine v. Butcher, and it is not open to me, at present, to depart from it.
On the evidence before me there had been no misleading of the applicant as to whether or not he had any opportunity to place an advertisement in "In Tune". Certainly no misleading by any existing office-holder is the subject of any evidence before me. It follows then that there was no implied obligation in the rules for anyone to make the applicant aware that he might have an advertisement published in "In Tune". The steps which were taken to inform him were, in my view, in any event, more than reasonable in the circumstances, and the fact that the message did not get through to the applicant in the appropriate form, or that he misunderstood it, would not, in my view, make those steps anything less than reasonable. I am therefore of the view that, even if there were an obligation in the rules to make the applicant aware of the opportunity, reasonable steps were taken to accomplish that end.
I am therefore of the view that the applicant does not make out any sort of a case with respect to the restraining of the publication of "In Tune", and I would not make any order with respect to that. No consideration was given by counsel for the applicant to any question of the balance of convenience and so, at present, I need say nothing about that, having reached the conclusion that, wherever the balance of convenience lies, I would not be disposed to make any order. There is not, before the court, any formal notice of motion or any such thing with respect to the order sought today, and so it does not seem to me that I should make any order other than to dismiss the applicant's oral motion. For the reasons I have given I make that order.
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