Elliott, Robert v Armstrong, J

[1997] FCA 702

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)   VG 389 of 1997
)
GENERAL DIVISION	)

BETWEEN:	ROBERT ELLIOTT Applicant
AND:	J. ARMSTRONG, G. GILLS, C. NADER, P. ELLISON, J. JENSZ, D. GILLESPIE, F. CARROL, M. GORGAL, R. McCUBBIN, S. McCORMACK, R. VAN AREND, D. GRIGOR, J. KENNIESON, F. LANCASTER and V. FAHEY Respondents

JUDGE:	RYAN J
PLACE:	MELBOURNE
DATE:	28 JULY 1997

REASONS FOR JUDGMENT

This is the first directions hearing and first return of a rule which I granted on 17 July 1997 calling on the respondents who are members of the Committee of Management of the Victorian No. 1 Branch of the Health Services Union of Australia (“the Union”) to show cause why the respondents should not be ordered to perform and observe the rules of the Union:

(a)by refraining from publishing or distributing to members of the Union or from causing to be so published or distributed using the property, funds or resources of the Union, any literature or other form of publication which supports or promotes or which seeks to defeat any person or group of persons who have nominated for an office in the elections currently being held for six specified offices in the Victorian No. 1 Branch of the Union, and

(b)by refraining from using or permitting any person to use the Union’s property, funds or resources to support or promote or defeat any person or group of persons who have been nominated as candidates in the elections for the same six offices.

On 17 July 1997, I made an interim order requiring the respondents to refrain until 4.15 pm today or further order from the conduct specified in para (a) of the rule nisi.  I find it unnecessary to consider whether the issue of the newsletter “Pinpoint” published on 20 June 1997 contains electioneering material of a kind which contravenes the principles which have been enunciated in, for example, Scott v Jess (1984) 3 FCR 263 and Tanner v Maynes (1985) 63 ALR 197.

I am prepared to accept for the purposes of this analysis that it was appropriate in the interests of the members of the Victorian No.1 Branch of the Union to inform them of the progress of the civil proceedings against Mr Jackson and what has been perceived by the respondents or some of them as undue or unjustified interference by the Federal officials of the Union in those proceedings.  However, that information has been given in the issue of “Pinpoint” published on 20 June 1997.  Since then the election has clearly commenced in the sense that the ballot opened on 25 July 1997 and is to close on 15 August 1997.  there is unchallenged evidence that the newsletter Pinpoint is usually published quarterly, yet, in the context of an earlier abortive election in the same Branch, three issues of that newsletter were published in the space of three months.

In those circumstances, I consider that there is an appreciable risk that, without an order of this Court, a further publication before the completion of the election adverting to the proceedings against Mr Jackson might amount to the furtherance of a campaign against him and those standing on the same ticket in contravention of the fourth principle in Scott v Jess.  If an urgent need arises for the respondents to communicate with members about those matters or other matters relating to persons who are contesting the election for purposes unrelated to the pending election, application can be made urgently to me pursuant to the liberty to apply which I propose to reserve.

Attention was drawn by Mr Borenstein for the respondents to material, some of which on its face appears to have been prepared using the resources of the Federal Office of the Union, which has also been distributed to members during what is indisputably the period of the current election.  That material is exculpatory of Mr Jackson and contains a formal apology to him in terms which may reasonably be regarded as tending to advantage him in the election.  Included in at least one envelope containing the two documents to which I have just referred is another document, unashamedly electioneering in character, tending to disparage Mr Nader, another candidate in the election and a member of the ticket opposed to Mr Jackson’s team.  The extent of the distribution of that material to members has not been the subject of any evidence.

That countervailing material was pointed to by Mr Borenstein as indicating a lack of clean hands on the part of the present applicant, Mr Elliott, of a kind which should disentitle him to the continuation of the interim relief to which I have referred. However, as I indicated in the course of discussion with counsel, I do not consider that the doctrine of clean hands or other principles which have been applied in the exercise of equitable discretions in inter partes litigation involving individual litigants have the same force when considering whether or not to grant or continue interim relief in an application under s. 209 of the Workplace Relations Act.  In a context like the present that section requires the Court to frame orders to further the proper performance of the rules in the interests of the conduct of an appropriately fair and even-handed election.  If the conduct of officials other than the respondents is contended to be inimical to the achievement of that objective, appropriate orders should be sought against those other officials.

In these circumstances I shall extend the interim order granted on 17 July 1997 to 4.15 pm on 15 August 1997 or further order.  As earlier indicated I reserve liberty to any party to apply to myself on not less than 24 hours’ notice in writing to the other parties.  I shall adjourn the directions hearing in this matter to a date to be fixed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of the Honourable Justice Ryan

Associate:

Dated:            28 July 1997

Counsel for the Applicant:	Mr R W Hinkley
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Mr H Borenstein
Solicitor for the Respondent:	Holding Redlich
Date of Hearing:	28 July 1997
Date of Judgment:	28 July 1997