Construction, Forestry, Mining and Energy Union v Kavanagh
[2008] WASC 146
•10 JULY 2008
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION -v- KAVANAGH [2008] WASC 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 146 | |
| 16/07/2008 | |||
| Case No: | CIV:1799/2008 | 10 JULY 2008 | |
| Coram: | EM HEENAN J | 10/07/08 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application for interlocutory injunction dismissed | ||
| A | |||
| PDF Version |
| Parties: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS DARREN KAVANAGH SEAN ANTHONY McKAY CHRISTINE MARIE NICHOLAS PRINT 'N' POST PTY LTD |
Catchwords: | Injunctions Confidential information Industrial unions Membership list Access by union member and former employee Whether membership list confidential Imminent union elections Emerging election campaign Former employee candidate in forthcoming election Opposition by existing office bearers to member's candidature No threat to integrity of elections No prospect of pecuniary harm to unions Difference in interests between union and its existing officers in relation to forthcoming elections Possibility of collateral interest by existing officers Alleged privacy of individual members No harm to interests of plaintiffs alleged Discretion Interlocutory injunction refused alleged constitutional right to communicate Judiciary Act notices under s 78B |
Legislation: | Corporations Act 2001 (Cth) Industrial Relations Act 1979 (WA) Judiciary Act 1903 (Cth) Workplace Relations Act 1996 (Cth) |
Case References: | Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 Australian Federation of Air Pilots v Hamilton Island Enterprises Pty Ltd (No 2) (1989) 32 I.R. 46 Australian Liquor, Hospitality and Miscellaneous Workers Union - Re Appeal Against Decision And Direction Issued By Deputy Industrial Registrar [2002] AIRC 403 Cameron v Australian Workers' Union (1959) 2 FLR 45 Castlemaine Toooheys Ltd v South Australia (1986) 161 CLR 148 Consolidated Paper Industries Pty Ltd v Matthews [2004] WASC 161 Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Nelson v Nelson (1995) 184 CLR 538 Robb v Green [1895] 2 Q.B. 315 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 Tripp v Australasian Society of Engineers (1953) 78 CAR 149 Wright v Gasweld Pty Ltd (1991) 2 NSWLR 317 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Plaintiff
AND
DARREN KAVANAGH
First Defendant
SEAN ANTHONY McKAY
Second Defendant
CHRISTINE MARIE NICHOLAS
Third Defendant
PRINT 'N' POST PTY LTD
Fourth Defendant
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Catchwords:
Injunctions - Confidential information - Industrial unions - Membership list - Access by union member and former employee - Whether membership list confidential - Imminent union elections - Emerging election campaign - Former employee candidate in forthcoming election - Opposition by existing office bearers to member's candidature - No threat to integrity of elections - No prospect of pecuniary harm to unions - Difference in interests between union and its existing officers in relation to forthcoming elections - Possibility of collateral interest by existing officers - Alleged privacy of individual members - No harm to interests of plaintiffs alleged - Discretion - Interlocutory injunction refused - alleged constitutional right to communicate - Judiciary Act notices under s 78B
Legislation:
Corporations Act 2001 (Cth)
Industrial Relations Act 1979 (WA)
Judiciary Act 1903 (Cth)
Workplace Relations Act 1996 (Cth)
Result:
Application for interlocutory injunction dismissed
Category: A
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Representation:
Counsel:
First Plaintiff : Mr G R Hancy
Second Plaintiff : Mr G R Hancy
First Defendant : Mr P G Laskaris
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Solicitors:
First Plaintiff : Slater & Gordon
Second Plaintiff : Slater & Gordon
First Defendant : Leask & Co
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
Australian Federation of Air Pilots v Hamilton Island Enterprises Pty Ltd (No 2) (1989) 32 I.R. 46
Australian Liquor, Hospitality and Miscellaneous Workers Union - Re Appeal Against Decision And Direction Issued By Deputy Industrial Registrar [2002] AIRC 403
Cameron v Australian Workers' Union (1959) 2 FLR 45
Castlemaine Toooheys Ltd v South Australia (1986) 161 CLR 148
Consolidated Paper Industries Pty Ltd v Matthews [2004] WASC 161
Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1
Nelson v Nelson (1995) 184 CLR 538
Robb v Green [1895] 2 Q.B. 315
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Tripp v Australasian Society of Engineers (1953) 78 CAR 149
Wright v Gasweld Pty Ltd (1991) 2 NSWLR 317
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1 EM HEENAN J: The plaintiffs commenced this action by a generally indorsed writ of summons issued on 3 July 2008 by which they sought a permanent injunction to restrain each defendant personally, or by his, her or its employees or agents or otherwise, from using, copying or disclosing to any third party all or any part of the information about the plaintiffs' members contained in a Microsoft Excel file 'Names List.xls' or any copy of that file ('the Data'). The endorsement of claim also sought an order requiring each defendant to deliver up to the plaintiff all electronic files and paper documents in each defendant's possession or power which contained all or any part of the data or which embodied that data or which were produced by using that data. No claim for damages, compensation or other pecuniary relief was included in the endorsed claim. The plaintiffs claim to be entitled to the specified relief by reason of an alleged breach of contract and/or alleged breach of fiduciary duty by the first defendant and, against the other defendants, by reason of alleged use or misuse, or the risk of misuse, of the plaintiffs' confidential information.
2 Also on 3 July 2008 the plaintiffs issued a chamber summons seeking interlocutory orders in the nature of injunctions against each of the defendants, again based on an alleged breach of contract or fiduciary duty by the first defendant and, as against him and against the other defendants, for the protection of the plaintiffs' alleged confidential information. This chamber summons sought:
(a) an order restraining each defendant and the grant of an injunction restraining each of them from using, copying or disclosing to any third party any or all of part of the data;
(b) an order for each defendant to deliver up to the plaintiff all electronic files and paper documents that contain all or any part of the data or which were produced by using the data;
(c) an order that each defendant should file and serve an affidavit identifying and listing all documents, including electronic records, containing any part of the data
. disclosing the identities of all persons to whom that defendant has provided or given access to the data;
. identifying and listing all documents disclosing the identities of all persons to whom that defendant has provided or given access to the data.
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- defendant were represented by counsel. The second and third defendants appeared in person. The fourth defendant, a corporation, did not file any appearance or seek to be heard by counsel but the third defendant, one of its directors, sought leave to appear on behalf of that company. By reason of O 12 r 1(2) of the Rules of the Supreme Court, I refused such leave with the consequence that the fourth defendant was not, therefore, heard or represented on this application.
4 After an extended hearing, which included examination of a series of affidavits, yet to be identified, and detailed submissions, including written submissions from the plaintiffs and the first defendant, I dismissed the application for injunctions and other interlocutory relief and, at the time, indicated that I would amplify the brief oral reasons then given for that decision by more detailed written reasons later.
5 The reasons which I gave at the time were that I was not satisfied that there was the likelihood of any genuine loss or prejudice to the plaintiffs or to interests which they are responsible to protect by declining interlocutory relief on this application. I was not satisfied that the interests or purposes which would be advanced if an injunction were to be granted were legitimate interests of the plaintiffs as distinct from collateral and personal interests of office bearers whose positions are likely to be contested in imminent elections for both unions. These are my more detailed reasons for that decision.
6 Each of the plaintiffs is an incorporated industrial organisation - a union - of which the first defendant is a member and was, until recently, an employee. The first plaintiff is a branch of a Federal union registered under the provisions of the Workplace Relations Act 1996 (Cth). The second plaintiff is a State union registered under the provisions of the Industrial Relations Act 1979 (WA).
7 Under this legislation and under their rules, each of the plaintiffs' unions is obliged to maintain a list of members. In certain circumstances members, and indeed others, have a right to inspect, or apply for inspection of, the membership list. The details of access to the membership list vary, slightly, under the Commonwealth legislation and the State legislation and are more ample once an election for office bearers of the particular union has been called.
8 The present controversy arises in a situation when elections for office bearers of both the plaintiff unions are imminent but have not yet been formally called. I was informed, and it is not a matter of controversy, that
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- elections for the Federal branch of the union are expected to be called in September 2008 and that elections for the State union are expected to be called in or about October 2008. Such elections, when called, will be conducted and supervised by the Commonwealth electoral office in the case of the branch of the Federal union, and by the State electoral office in the case of the State union under the Workplace Relations Act and under the Industrial Relations Act respectively. This is to ensure the integrity of the electoral process and the fair and proper conduct of the ballots and their returns.
9 Notwithstanding that neither election has yet been formally called, it is clear that campaigns for the elections have already effectively begun and that both unions are definitely in pre-election mode.
10 The first defendant has publicly announced that he proposes to stand for election for the position of secretary of both unions and, by doing so, to oppose Mr Kevin Reynolds, the existing secretary of both unions, who has held that position for many years. Other existing office bearers of both unions, apparently, all support the re-election of Mr Reynolds for those pivotal positions and, with him, have joined in opposing the proposed candidature of the first defendant. The first defendant, Mr Kavanagh, has indicated that he is associated with a number of other members of the union who are intended candidates in the forthcoming elections for election to other offices within the unions. The first defendant, therefore, is the most prominent of a 'new breed' of candidates who are seeking to displace the existing office bearers of the union and are campaigning under the slogan 'Reform The CFMEU'. Unsurprisingly, the existing office bearers challenge the suitability of Mr Kavanagh, and his proposed associates, their motives and abilities to hold office in the union and the ensuing rivalry between the two camps in the lead-up to the elections forms a significant background to the present application.
11 Until 20 June 2008, shortly after he announced his intended candidature, Mr Kavanagh was employed as a safety adviser by both plaintiffs and worked closely with Mr Reynolds, the other office bearers and staff at the union offices. On 20 June 2008 Mr Kavanagh was dismissed from his employment by Mr Reynolds. Allegation and counter-allegation about the reasons for his dismissal have been exchanged and are circulating within the union membership but it is no part of my function to scrutinise or review those allegations.
12 The confidential information, or the 'data', which is the subject matter of this present litigation, and which these interlocutory orders are
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- being sought to protect, constitutes nothing more or less than a recent list of the names and addresses of the membership of both plaintiffs - a list in electronic format running to some 8,700 or so names. These are the members who should be entitled to vote at the forthcoming elections and whose support and allegiance both the existing office bearers of the unions, Mr Kavanagh and his associates on the other hand, wish to secure.
13 It quickly became apparent during the course of this hearing that the only use of the 'data' which the plaintiffs allege was threatened by the defendants was use by, or on behalf of, Mr Kavanagh to canvass members of the union to support his candidature, and the candidatures of his colleagues, at the forthcoming elections. There was no allegation, nor on the evidence could there have been any allegation, that the 'Data' might be used for the purposes, or disclosed to interests, which might be harmful to the two plaintiff unions themselves. This is an immediate contrast between the situation which arises in the present case and the situation which commonly arises in a more commercial setting, when the disclosure of an employer's confidential information, often customer lists, or sensitive trade information, may be used improperly to advantage a competitor or competitors whose conduct then may damage or diminish the interests of the proprietor of the confidential information in trade or commerce or in some other way to its pecuniary disadvantage.
14 In the present case the submissions by the plaintiff are that the possible misuse of the confidential information by Mr Kavanagh and the other defendants may, in a number of possible ways, diminish or damage the integrity of the forthcoming electoral processes and, in particular, jeopardise the interests of the individual members of the union in maintaining the privacy of their membership and personal details. Through their counsel, the plaintiffs also submitted that the office bearers of the union have a responsibility on behalf of the unions to take steps, where reasonably practicable to do so, to enforce the rules of the unions, the relevant industrial legislation and regulations to preserve the use of membership only for those occasions where it is lawfully permitted, and that this application was being pursued to advance those purposes. They did not suggest, indeed, they disclaimed any suggestion, that the particular apprehended misuse of this confidential information might cause any pecuniary loss to either plaintiff.
Evidence
15 The evidence on this application consisted entirely of affidavits. No application was made to adduce oral evidence, nor was leave sought to
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- cross-examine any of the deponents. For the plaintiffs an affidavit of Mr Kevin Noel Reynolds, the secretary of the plaintiffs, sworn on 3 July 2008, was read. The plaintiffs also relied upon the affidavit of Mr Darren Perera, sworn on 3 July 2008, the affidavit of Ms Peta Arnold, affirmed on 2 July 2008, the affidavit of Mr Robert Mitchell, sworn on 2 July 2008, and an affidavit of Mr Toby Carl Borgeest, affirmed on 3 July 2008. For the defendants reliance was placed on an affidavit of Mr Darren Kavanagh, the first defendant, affirmed on 8 July 2008, an affidavit of Mr Douglas Charles Heath, affirmed on 8 July 2008, an affidavit of Mr David Simpson, affirmed on 8 July, and an affidavit of Mr Robert Patrick Hearne, affirmed on 8 July 2008, all together with various annexures.
16 Mr Reynolds deposed to how the first plaintiff is an organisation registered under the provisions of the Workplace Relations Act and how he is the divisional branch secretary of the Western Australian divisional branch of that union. The State branch of that union is controlled and directed by the Divisional Branch Management Committee, commonly known as 'the Executive' or 'State Executive'. Positions within that branch, including membership of the executive and the offices of the divisional branch secretary and the two divisional branch assistant secretary positions are subject to election every four years. The elections for those branch offices (amongst others) are due to be held in about October 2008. At present a date for the calling of nominations and a ballot for elections, if necessary, had not been set but, in due course, would be established by a returning officer appointed by a Deputy Industrial Registrar of the Australian Industrial Relations Commission.
17 In addition, Mr Reynolds is a member and an elected official of the second plaintiff and occupies the position of State secretary. The second plaintiff is an organisation registered under the provisions of the Industrial Relations Act. Various offices within the second plaintiff, including membership of its governing committee, and the office of State secretary, are subject to election every four years. The elections for those offices, and others, are due to be held between August and October 2008. A returning officer of the State Electoral Commission is responsible to open nominations for those positions in late August, nominations are to close in early September, ballot papers are to be distributed in late September, and the ballot is due to close on 16 October 2008.
18 Although the first and second plaintiffs are distinct corporations and registered under different legislation the administrative arrangements for them in this State are conducted concurrently in the sense that there is one office, one register of members, one set of administration. The first
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- plaintiff has a Western Australian divisional branch which maintains a data base for its registration in this State.
19 Under the Workplace Relations Act the first plaintiff is obliged to file annual returns and financial statements in the Australian Industrial Registry which include a statement of the number of financial members of the branch at that date but it is not required to file a copy of the membership register with the Australian Industrial Registry.
20 The second plaintiff, under the Industrial Relations Act 1979, is required to deliver to the Registrar of the Western Australian Industrial Relations Commission, each year, a copy of its audited financial statements. It is not required to file copies of its membership register with the Registrar and does not do so.
21 According to Mr Reynolds, the first defendant was employed as an occupational health and safety adviser of the first plaintiff since October 2002 and is a member of both unions and, as such, is eligible to stand for election to various offices of either or both unions. Some time in early May 2008 the first defendant made public announcements of his intention to stand as a candidate for elections to become secretary of the CFMEU. That led Mr Reynolds to request Mr Kavanagh to attend a meeting with him and another union officer and employee. In effect, Reynolds told Kavanagh at this meeting that he was not to advertise or canvass support for the forthcoming election during working time or on union sites or with union facilities and must submit to a degree of supervision then specified to ensure that those instructions were obeyed.
22 On Friday 20 June 2008, Reynolds, or members of his staff, came into possession of a letter, evidently posted to most union members, which contained a leaflet promoting Mr Kavanagh and his campaign to run for office in the union. Further inquiries suggested that, somehow, Kavanagh had obtained a copy of the unions' membership list. Certain documents, photographs and safety bulletins were then discovered to be missing from the unions' computer drive. The leaflet contained in the letter received by Reynolds, and other union members, is a typical campaign leaflet for a candidate in an election identifying the first defendant and promoting his claim for an election and outlining his plan to 'Renew The CFMEU'. Reynolds accused Kavanagh of taking or obtaining the membership list but he denied this.
23 A meeting of the executive of the unions was convened for 3 pm on 20 June 2008 and Kavanagh was summoned to attend but he did not
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- attend and attempts to reach him by telephone were unsuccessful. The meeting proceeded in Kavanagh's absence and the union executive decided to terminate Kavanagh's employment, to report the suspected theft of the information contained in the membership list to the police, and to instruct its solicitors to seek an injunction restraining the first defendant from further use of the union's membership mailing list and obliging him to return union property.
24 Shortly afterwards, after the meeting had concluded, Kavanagh arrived at the union office. He was told by Reynolds that his employment had been terminated and was asked to hand over his computer, hard drive, mobile telephone and right of entry permits. He was also obliged to return the union car which had been allocated for his use. He handed over the computer and other documents and left the car in the yard.
25 The resolution of the executive committee of 20 June 2008 passed to terminate Kavanagh's employment, stated that he was being summarily terminated for serious misconduct, including his removal of the confidential mailing list of members from the CFMEU data base for his own use in circumstances where he was not authorised to do so or, alternatively, that he made use of the confidential mailing list of members removed by someone else who was not authorised to do so for his own purposes in circumstances where he must be taken to know that this removal was unauthorised. The resolution recorded that the matter was one of serious embarrassment for the unions and had the potential to undermine members' confidence in the unions' ability to protect private information held on behalf of members.
26 The affidavit of Mr Darren Perera describes the operation of the unions' computerised data base, explains the details of permitted access to this by employees and officers of the union, together with the details of certain email messages to or from Mr Kavanagh's email address. Further details of access permitted by union employees or officers to the unions' computerised data base are contained in the affidavit of Ms Peta Arnold together with descriptions of passwords and levels of access to certain areas of the data base with increasing layers of security. Ms Arnold compared a mailing list which had been provided to her by Mr Rob Mitchell with the union data base and, after making a series of comparisons, reached the conclusion that the mailing list was a copy of some of the information on the union data base. Ms Arnold concluded that the mailing list contained a list of persons who were recorded as being financial members of the unions as at some time in about February or March of 2008.
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27 Mr Mitchell's affidavit describes a series of inquiries which he made on behalf of the unions about the source and distribution of the Kavanagh election leaflet which led him to identify the second, third defendant and the fourth defendant as being involved in the conduct of commercial mailing of materials. On further inquiries Mr Mitchell was told by the third defendant that her company had been involved in the mailout and the circulation of 'Renew The CFMEU' but had subsequently been very surprised at allegations that the membership list had been stolen. From information provided to Mr Mitchell by the third defendant he concluded that Mr Kavanagh had been involved in securing the engagement of the second, third and fourth defendants for the mailout.
28 The affidavit of Mr Borgeest annexes correspondence between the unions' solicitors and Mr Kavanagh and others, including the second defendant and the fourth defendant, and replies from solicitors for Mr Kavanagh. This included demands made on behalf of the unions for the return of the membership list and assurances that it would not be used or misused and replies which were, to say the least, equivocal or non-responsive.
29 By his affidavit of 8 July 2008 Mr Kavanagh annexes copies of the rules of the first plaintiff and of the second plaintiff. He deposes to the fact that he is a member of both unions and has the qualifications under the rules to run for the position of WA divisional branch secretary of the first plaintiff and for the position of secretary of the second plaintiff.
30 According to Mr Kavanagh, nominations for the position of the WA divisional branch secretary of the first plaintiff are due to open on 31 August 2008 and close on 19 September 2008, with a ballot to be held for that position between 2 and 16 November 2008 (rule 38(q) of the first plaintiff's rules). Similarly, Mr Kavanagh deposes to the fact that nominations for the position of State secretary of the second plaintiff are due to open on 21 August 2008 and close on 4 September 2008. He says that the ballot for that position is to be a period of not less than 21 days and not more than 28 days and a count of the ballot papers must be completed by 30 October 2008 (rule 23(18) State rules).
31 Further, Mr Kavanagh confirms that he was summarily dismissed from his job as an occupational health and safety adviser of the first plaintiff on 20 June 2008 and says that he did not remove or copy the membership list from the union's IBM AS/400 data base. Kavanagh has annexed to his affidavit copies of a number of media reports and newspaper web site pages relating to his announced intention to run
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- against Mr Reynolds in the forthcoming elections and contends that this has become a matter of public notice and interest.
32 In particular, Mr Kavanagh asserts that a list of members of the first plaintiff and the second plaintiff used by a union member for the purposes of communicating with members of the union during an election year in the context of the forthcoming ballot does not constitute a use or a misuse of confidential information. He then goes on to depose to a series of matters and annexes further materials relied upon for the contention that Mr Reynolds and other existing office bearers of the union are actively campaigning for re-election and have been doing so since 23 June 2008 using either the resources or opportunities arising from their positions as office bearers in the union to do so.
33 The first defendant also relies upon the affidavits of Mr Robert Hearne, Mr David Simpson and Mr Douglas Heath to support the first defendant's contentions that a variety of pamphlets, promotional material and leaflets promoting re-election of the 'Kevin Reynolds Team' have been posted on union work sites or distributed to union members in recent times. Further details of promotional activities by or on behalf of the 'Reynolds team' are described in the affidavits of Simpson and Heath.
34 With full realisation that no final or conclusive findings of fact can or should be made merely on affidavit evidence without cross-examination at this early stage of this action, but having regard to the obligation of the plaintiffs to establish an evidentiary basis for a prima facie case or an arguable case for interlocutory relief, and to an evidential onus upon the first defendant to raise, on an arguable basis, reasons to exercise the discretion to decline relief which, otherwise, might be granted at an interlocutory level, I am prepared to make the following provisional findings.
35 There is a high degree of probability that electronic data comprising the first and second plaintiffs' membership register as it stood in about March 2008 was copied and removed from the plaintiffs' data bases without the knowledge or approval of the union executive and in circumstances where it is probable that the union executive would have refused permission to allow such information to be taken or copied. By means which are still rather obscure and which, in any event, need not be determined for present purposes, copies of that data ultimately came into the hands or control of the first defendant, Mr Kavanagh or those associated with him in his desire to challenge the existing office bearers of the union at the next elections. Consequent upon receiving that data,
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- Kavanagh, or those associated with him, arranged with the second, third and fourth defendants to undertake the usual commercial function of arranging mailouts to prepare and distribute to members of the first and second plaintiffs, the Kavanagh leaflet promoting his candidature for the forthcoming elections. There is nothing to suggest that any of the second, third or fourth defendants was in any way aware that the source data comprising the membership list was, or may have been, unlawfully obtained from the plaintiffs or that the performance of the mailout may have involved the misuse of confidential information.
36 I am also satisfied, at this provisional level, that a strong arguable case can be made out by Mr Kavanagh that once his candidature for Mr Reynolds' positions in the unions had been announced he was made subject to a series of directions by Mr Reynolds and the union executive designed to circumscribe his activities, prevent him from using connections associated with his employment for his election campaign and other limitations designed to achieve that effect. Similarly, I am satisfied, at this provisional level, that Mr Reynolds and all the other present executive members of both unions have already initiated a canvassing campaign directed to members of both unions to oppose the candidature of Mr Kavanagh and to promote their own positions as office bearers both at present and for re-election. This campaign by Mr Reynolds and the existing office bearers includes criticism, quite serious criticism if it be well-founded, of Mr Kavanagh and his alleged conduct, but it is neither possible nor necessary to engage in any determination of the merits of the dispute between the rival groups which have formed the opposing sides on these issues.
37 Examples of distribution of materials by the unions, under the hand of Mr Reynolds and/or other members of the executive, or promotional materials distributed to members of both unions on behalf of the 'Reynolds Team' can be found at annexure DK5 to the affidavit of Mr Kavanagh, and annexure to the affidavit of Mr Robert Hearne, annexure DS3 to the affidavit of Mr D. Simpson, annexures DCH1, DCH2 and DCH3 to the affidavit of Mr Heath.
38 There is clearly an arguable case for an inference to be drawn that Mr Reynolds and the existing members have, since May or June, been utilising the resources of the unions to criticise Mr Kavanagh and his campaign claims and to advance their own personal interests for re-election at the forthcoming elections. I stress that these provisional findings are made on the limited and untested evidence which has been submitted on this application and that, in due course, if a trial is to be
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- conducted, further evidence adduced or explanations given, the final findings of fact may not coincide with these provisional findings. All I can do at present is record that, on this preliminary basis, I am satisfied that the materials display an arguable basis for the findings described.
Rights of access to unions' membership list
39 As already described, no current list of the union members is maintained at the Australian Industrial Registry under the Commonwealth Workplace Relations Act 1996 nor at the Western Australian Industrial Relations Commission under the Industrial Relations Act, although, for the Federal union, it must file an annual return including a statement of the number of financial members in the branch but not a copy of the register.
40 In his affidavit Mr Reynolds deposes to his belief that members of the unions desire and expect that their names and addresses and membership of the unions should be kept confidential and used only for union and associated purposes. This is because of his belief and experience that it is not uncommon that the disclosure of the fact that a person is a member of a union will result in some form of discrimination, disadvantage or prejudice. Generally, it is expected that the identity of union members will be kept confidential between the members of the union and its officers. No particular attempt was made by Mr Kavanagh to controvert any of those contentions but, through his counsel, he submitted that use of the membership list by him and his associates solely for the purposes of advancing their nascent electoral campaigns does not, and will not, involve any jeopardy of disclosure to interests which might be hostile to individual members or which might result in prejudice. The plaintiffs replied by contending that there is no guarantee that the use or distribution of the membership list will be kept within these bounds but do not point to any particular threat or apprehension that those limits would probably be exceeded.
41 Although the rules of the Federal branch of the union contain provision for a register of members to be kept (rules 12 and 44) no similar specific provision appears to be contained in the rules of the second plaintiff. Neither the plaintiffs nor the first defendant sought to rely on any particular provision, or group of provisions, in the rules of either of the plaintiffs to support or establish the claim for confidentiality or limited access.
42 In relation to the first plaintiff, that is, the branch of the Federal union, Mr Kavanagh presently has a statutory right to request the
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- Australian Industrial Registrar to authorise him to inspect the current membership list of the union - Workplace Relations Act sch 1 s 235(1) and also a similar right to request the Australian Industrial Registrar to give a direction to the first plaintiff to deliver a current membership list to the registrar for inspection by him - Workplace Relations Act sch 1 s 236(1). Once nominations are called for elected positions in the first plaintiff, the first defendant will have a statutory right to an up-to-date list of members (Industrial Arbitration (Union Elections) Regulations 1980 (WA) reg 12(4)) - see also Workplace Relations (Registration and Accountability of Organisations) Regulations 2003 reg 131(4)).
43 That unrestricted or unsupervised access to a register of members is not contemplated by the Act or regulations seems to have been acknowledged in a series of authorities: Australian Federation of Air Pilots v Hamilton Island Enterprises Pty Ltd (No 2) (1989) 32 I.R. 46 and Australian Liquor, Hospitality and Miscellaneous Workers Union - Re Appeal Against Decision And Direction Issued By Deputy Industrial Registrar [2002] AIRC 403.
44 In the former case Moore DP, when speaking of s 268 of the Workplace Relations Act said that two things emerged from an examination of the legislative history of the section:
The first is that the express requirement to provide the Registrar with copies of the register of members coupled with a right to inspect was introduced into the Act when the Act was amended, for the first time, to provide for secret ballots of members and that significant amendments to those requirements have been made in conjunction with amendments concerning secret ballots of members. The second is that, to varying degrees, the inspection of the register of members or copies of it has been the subject of authorisation by the Registrar and has thereby been limited.
The Registrar has historically and continues to determine who may or who may not inspect the register of members. The Registrar is defined to include Deputy Industrial Registrars. The Registrar is invested with a discretionary power to authorise or to refuse to authorise the inspection of that register. Like any discretionary power given by statute, if there are no express limits placed on the exercise of the discretion it must be treated as limited by the scope and object of the statute conferring power and cannot be exercised with a view to achieving objects outside the purpose for which the discretion is conferred.
45 His Honour then went on to examine examples when access to a register of members may be necessary or appropriate, such as to determine respondency to an award (s 149(f)) or to conduct ballots of
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- members for elections (s 210) or other ballots and for varying other purposes.
46 The second of the cases just cited relates to an appeal by a union against a decision of an Industrial Registrar granting access to a membership list. The appeal succeeded essentially on the ground that the Registrar had failed to notify the union and give it an opportunity to make submissions as to why disclosure ought not be permitted before inspection was actually allowed. Accordingly, the decision recognised the potential for circumstances to exist which might militate against the discretionary power of inspection being exercised. This, together with the other factors relied upon by the plaintiffs, seems to me to provide a basis for concluding that, to an extent at least, the right of inspection of a membership register is limited and, therefore, that its contents bear a confidential status of a restricted kind. However, the rights of inspection and disclosure are not absolute either in relation to the time for inspection or the persons who may inspect.
47 Without in any way attempting a comprehensive analysis of when and how these restrictions apply it seems that a member of a union seeking inspection for purposes associated with union activities, and in that I include assessing prospects for a forthcoming election, would have strong grounds to engage the exercise of the discretionary power to inspect by the Industrial Registrar before an election is called. Similarly, when nominations are opened the claim of such a person or potential candidate to inspection would be even stronger but the access to the register and the right to inspect it remains under a degree of supervision.
48 The position in relation to the register of members of the second plaintiff, the State union, is similar but not identical. Under s 63(1) the second plaintiff is obliged to keep a register of its members showing the name and residential address of each member and details of the financial status of each member in respect of his membership. Under s 63(2) the second plaintiff is obliged to file with the Industrial Registrar once in each year, at a time to be prescribed, a copy of certain records but not of the entire register of members. The documents so filed with the Registrar (not including the membership register) are to be made available for inspection at the office of the Registrar as prescribed, s 63(6), and by s 63(7) the register of members (kept by the second plaintiff itself) shall be made available by the organisation for inspection by such persons as are authorised by the Registrar at such times as are appointed by him at the office of the organisation.
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49 Counsel for the plaintiffs explained further that upon an election being called the second plaintiff must provide the Industrial Registrar with an up-to-date list of the names and addresses of the members and that that is accessible from the Industrial Registrar, not from the union, by members of the union and other persons with a legitimate interest.
50 Again this suggests that a limited and supervised right of access to the second plaintiff's membership list is provided by the statutory scheme and the consequence of that is that there is a degree of confidentiality, to an extent limited in time and purpose and subject to the discretion of the Industrial Registrar, which relates to the membership list.
51 No attempt was made by the plaintiffs on this application, presumably because it was believed unnecessary, to make out or suggest facts or circumstances which might induce an Industrial Registrar to exercise the discretion to refuse access to this membership list if application were made by Mr Kavanagh under the statutory schemes for access. Tacitly, the position of the plaintiffs was that while an avenue existed by which lawful access to the membership list under supervised conditions might quite possibly have been achieved by Mr Kavanagh, the access to and possession of the membership lists of which the plaintiffs complain was not sought by these means and was only obtained by use of information unlawfully obtained. Clearly, this casts a cloud over the propriety of the actions of the first defendant in obtaining and using information from the plaintiffs' data but it does not, of itself, mean that the restricted and limited nature of the confidentiality applying to this data has been infringed or that the plaintiffs may suffer harm from the disclosure or its use. That very much depends upon the purpose to which the data has been put by the first defendant or to which it might be put by him.
52 In reaching any conclusions of this kind it must, of course, be appreciated that had Mr Kavanagh sought access to the membership list pursuant to the statutory schemes of access he would probably have been successful, although his access to the membership list might well have been delayed, and delayed significantly, in the setting of the emerging election campaign.
Asserted right to communicate
53 As a separate and independent ground for resisting the plaintiffs' claims and for submitting that no interlocutory relief by way of injunction or otherwise ought be granted, counsel for the first defendant submitted that because of the importance of the unions' membership lists for the effective conduct of a union election campaign, the first defendant
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- enjoyed the benefit of an implied right to freedom of political communication. Counsel relied upon observations about such a right in a quite different context in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. As the submission went, this implied right to freedom of political communication extended into a right of access to materials, such as the unions' membership list, in order to render effective the first defendant's participation in the public and political life of the organisation of the unions' elections. This, therefore, overrode common law and equitable principles, such as the protection of confidential information, or the enforcement of fiduciary obligations, when those principles came into conflict with the implied right. Counsel for the first defendant cited a passage in the judgment of Mason CJ, Toohey and Gaudron JJ at 121 in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 which described the phrase 'political discussion' as:
Includes discussion of the conduct policies, or fitness for office of government, political parties, public bodies, public officers and those seeking public office [and] also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders…
55 It is not necessary for me to deal with this submission to resolve the present application and, in view of its importance and the very limited submissions on the subject received in the time available, I will certainly not do so. If the issue ever does require resolution it appears to me that before the court could address it it would be necessary for the parties to give notice of the cause to the attorneys-general of the Commonwealth, and of the States and Territories, under the provisions of s 78B of the Judiciary Act 1903 (Cth) because this matter involves, or may involve, a matter arising under the Constitution or involving its interpretation. At present I can and should proceed to resolve this application for urgent interlocutory relief pursuant to s 78B(2)(c) and (5) of the Judiciary Act without attempting to resolve this submission.
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Protection of confidential information
56 The plaintiffs rely on the jurisdiction of the court to grant relief against an actual or threatened misuse of the plaintiffs' confidential information whether or not the threatened misuse involves any tort, or breach of contract or some other fiduciary duty, copyright or trademark right. In support of the existence of this wide equitable jurisdiction, the plaintiffs cite the decision in Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414, 437 - 438. Further, the plaintiffs rely on the well-accepted duty of an employee to act in the best interests of his or her employer and not in his own interests; Consolidated Paper Industries Pty Ltd v Matthews [2004] WASC 161 [60], and points to the implied term in a contract of employment imposing a duty of good faith on the employee which obliges the employee not to divulge his or her employer's confidential information: Robb v Green [1895] 2 Q.B. 315, 317 and Consolidated Paper Industries Pty Ltd v Matthews.
57 The basis for the submission that the content of this membership list is confidential arises, so the plaintiffs' submit, from the following factors, namely: first, that the information is carefully guarded and protected by the plaintiffs and is not readily made available to its employees and could not, without considerable effort, be acquired by others; second, that it was made known to the plaintiffs' employees and to the first defendant, in particular, that the material was regarded as confidential; third, that the usages and practices of the trade union movement and industry generally support the assertion of confidentiality: Wright v Gasweld Pty Ltd (1991) 2 NSWLR 317, 334.
58 The plaintiffs and the first defendant accept that for interlocutory relief in the nature of an injunction to be granted the plaintiffs must show, firstly, that there is a serious question to be tried in the sense that if the evidence remains as it presently is there is a probability at the trial of the action that the plaintiff will be held entitled to relief; secondly, that the plaintiffs will suffer injury for which damages will not be an adequate compensation unless an injunction is granted; and, thirdly, the balance of convenience favours the granting of an injunction - Castlemaine Toooheys Ltd v South Australia (1986) 161 CLR 148, 153.
59 I have approached the resolution of this case according to those principles but it has to be said that there are both positive and negative countervailing factors affecting the plaintiffs' case and the first defendant's case. It is possible, but perhaps not probable, that if matters remained as they are the plaintiffs would succeed in obtaining an
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- injunction. The doubt about their prospects of success stems largely from the absence of the demonstration of the likelihood of any real or tangible damage to the plaintiffs' interests rather than to the electoral ambitions of its existing office bearers, and also because of the probability of the co-existence of a collateral purpose with any legitimate purpose which the plaintiffs may be pursuing. Neither is the balance of convenience capable of demonstrating any real advantage in the preservation of the status quo. This is because the countdown for the union elections has well and truly begun, the rival parties are already positioning themselves to advance their own campaigns and to refute or disparage their opponents' assertions. Realistically, this level of activity can be expected to increase rather than to diminish, whatever the outcome of this present application.
60 During the course of submissions counsel for the first defendant relied on a submission that the plaintiffs did not seek the present relief with 'clean hands' because, so it was submitted, the application was no more than a disguised attempt to advance the collateral self interests of the existing office bearers of the unions. As these submissions were developed, further reference was made to the authorities and principles which demonstrate that when an allegation of lack of 'clean hands' is made it is necessary to identify exactly what is the alleged contamination of the plaintiffs' claim in order to determine whether or not relief should be declined in the exercise of discretion because there may be some improper conduct which does not affect or reduce the vitality of the claim.
61 These considerations led on to the consideration of the maxim 'in pari delicto potior est conditio defendentis' which usually is invoked in contractual claims where reliance is attempted to be placed on a contract which, to a greater or lesser extent, may have been rendered illegal. Nevertheless, there is authority for the application of the in pari delicto principle in the law of equity and trusts: Nelson v Nelson (1995) 184 CLR 538. Nelson's case shows just how great is the need for care in examining these maxims because over-ready appliance of their beguiling apparent simplicity can easily lead to unacceptable results. It is not necessary to examine these principles in greater detail in the present situation because I am satisfied that they recognise areas of relevance for the application of the broad discretion which must always control whether or not equitable relief, especially interlocutory relief, ought to be granted. It is enough to say that, although these maxims may not have direct application in the present case, they illustrate the need for a careful exercise of a power to grant relief having regard to the particular conduct of the parties involved in the present dispute.
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62 I do not consider that one can properly exclude from this evaluation of discretionary factors affecting the availability of interlocutory relief, the possibility, indeed the probability on the basis of the provisional findings which I have described, that Mr Reynolds and the other existing officers of the executive may be using the advantages of incumbency arising from their existing control of the unions' affairs, to stifle the first defendant's electoral ambitions and to advance their own personal interests for re-election.
63 The interests of individual office bearers or, for that matter, the collective interests of an existing executive of an organisation before an imminent election may well diverge from the interests of the organisation itself. Their interests may be personal in the sense of desiring retention of office and the preservation of power and influence, whereas the interests of an organisation, in the course of an electoral campaign, may be no more than to allow the status quo and the administration of the organisation to continue, while a free and fair election is conducted in accordance with the rules of the organisation and any prescribed laws and regulations is conducted. An analogy can be found in the convention of the 'caretaker period' of a government once an election has been called but before the results of the ballot have been declared.
64 Accordingly, conduct, or even rules of an organisation, which unduly restrict the conduct of canvassing or self-promotion during an electoral period may be unreasonable. There are examples under earlier legislation of such restrictions being held unreasonable and ineffective. So, for example, in Cameron v Australian Workers' Union (1959) 2 FLR 45 a rule of an organisation prohibiting all forms of canvassing for elections to office was held to impose unreasonable conditions on members. Similarly, a rule of an organisation which restricted the opportunity of a candidate in an election of an organisation in fairly placing his claims to election before his fellow members and, in particular, which enabled an executive body in the organisation to determine the form of a candidate's approach to those who will be eligible to vote was considered to be oppressive: Tripp v Australasian Society of Engineers (1953) 78 CAR 149. Obviously, those decisions relate to a different period and deal with different legislative schemes but the principle which they reflect, in my respectful opinion, still holds.
65 The predominant interest for the organisation, in the period leading up to and during an election, is that its members should have a fair and free opportunity to consider whether or not they wish to stand for office and, if so, to organise in a way to support their candidature without
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- disrupting the ordinary and proper functions of the organisation. For existing office bearers to block or stifle such attempts, not out of the interests of the union or in order to prevent damage or prejudice to the union, but to facilitate their own electoral interests would be, in my view, an unjustifiable and collateral purpose.
66 In the present circumstances, therefore, these considerations combine to require focus upon what prejudice, disadvantage or other harm may be caused to either or both of the plaintiffs, as distinct to the individuals who comprise their present executives, arising from the alleged improper conduct of Mr Kavanagh.
67 I have already noted that the plaintiffs do not allege that any pecuniary harm may come to the plaintiffs as a result of Mr Kavanagh's conduct, whether lawful or unlawful. However, counsel for the plaintiffs did submit that the alleged conduct of Mr Kavanagh amounts to a distortion of the proper practices of the unions' affairs and a claim to benefit from improper methods of obtaining access to the membership list and so, potentially, a source of prejudice to the conduct of the forthcoming elections. I realise that there is considerable irregularity in what has happened but I am not persuaded that any threat to the conduct of free and fair elections in accordance with the rules of the plaintiffs and the applicable laws and regulations has happened or is likely to occur. The conduct of these elections will be supervised by the respective Commonwealth and State electoral offices and there is no reason to suppose that early, and unauthorised, access by Mr Kavanagh to the membership list will prejudice the integrity of the election. However, to grant an injunction in the present circumstances while an electoral campaign is already effectively in train on behalf of Mr Reynolds and the other members of the executive would be to acknowledge that the powers of incumbency by members of the present executive may be exercised, not for the advantages of the plaintiffs as institutions, but in furtherance of the personal collateral interests of those officers.
68 Finally, the plaintiffs submitted that a cogent and justifiable purpose for the plaintiffs' securing the injunctions desired is to protect the privacy of the individual members of the unions against improper disclosure of the membership lists which may lead to their prejudice. I acknowledge that, in an appropriate case, this would be a legitimate basis to intervene and to grant interlocutory relief but I am not satisfied that this is the real or, indeed even a material, purpose behind the present application. It is a purpose which gives a veneer of justification and plausibility to the plaintiffs' claim but it does not, in my view, reflect the reality. No facts or
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- circumstances were disclosed or suggested to support a conclusion that the privacy of individual members was jeopardised or that Mr Kavanagh might publish the membership list or disclose it to interests hostile to the unions or their members. There is simply no basis for any such finding, even on a provisional basis, on the materials before me. That only leaves the interests of the existing executive to oppose Mr Kavanagh's campaign for the hearts and minds of the members of the unions who will be entitled to vote in the forthcoming elections. I am not satisfied that that reflects any real concern of genuine loss or prejudice to the plaintiffs' institutions.
69 The present application reveals a situation where the effect of preserving the status quo, which is often and usually the purpose of the grant of interlocutory injunctions or similar relief, is not neutral. This is not a case concerning the preservation and the subject matter of a dispute pending a trial or an appeal, or to prevent some irreparable damage to property or prejudice to interests for which damages might be an inadequate remedy. The present application is made against the background of a continuing dynamic which involves the jockeying by rival candidates for positions in the forthcoming elections. The elections are imminent and a de facto election campaign is under way.
70 Relief of the kind sought by the plaintiffs would handicap Mr Kavanagh considerably while leaving the present members of the executive of the plaintiffs unrestrained to conduct their electoral campaigns. Truly it may be said that Mr Kavanagh should not be permitted to derive unjustifiable advantage from access to the plaintiff's information unlawfully obtained. But the point is not whether Mr Kavanagh's actions are lawful, or whether he may ultimately be found liable, even if only for nominal damages for breach of contract, as a result of what has happened but whether there is any probability of real or serious damage being done to the interests of the plaintiffs.
71 In Meagher Gummow and Lehane's Equity Doctrines And Remedies (4th ed) [21] - [345] the authors observe:
Whilst the usual purpose of an interlocutory injunction is to preserve the status quo, sometimes the courts are not prepared to preserve it if there be thereby involved some countervailing disadvantages which more than equal the desirability of stability. For example, in England the Court of Appeal in Hubbard v Vosper [1972] Q.B. 84 dissolved an interlocutory injunction because of the plaintiff's lack of clean hands and because of the prima facie strength of the defendant's case. The truth of the matter is that no real principles can be laid down. Statutes, such as the Supreme Court Act 1970 (NSW) s 66(4), which are adaptations of s 25(8) of the
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- Judicature Act 1873 (Imp), provide that interlocutory injunctions may be granted whenever 'just or convenient'.
72 and in later passages of the text the authors developed examples of where this may properly be done.
73 In the present case, I am satisfied that there are appearances of fault both by the plaintiffs' executive and by the first defendant. There is at very least the appearance that this application may be being brought for collateral motives. Further, there is the acknowledgement that no tangible damage is likely or threatened to the interests of the plaintiffs.
74 It may be, ultimately, that Mr Kavanagh may have some liability to the plaintiffs for his alleged conduct but I am not satisfied that there is any real threat to the property or interests of the plaintiffs which should justify the grant of an interlocutory injunction at this stage. I, therefore, refuse to grant an injunction in the exercise of discretion and dismiss this application.
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