Neil v Neil & Australian Railways Union

[1988] TASSC 94

Serial No B26/1988

List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Neil v Neil & Australian Railways Union [1988] TASSC 94; B26/1988

PARTIES:  BROWN
  v
  NEIL & AUSTRALIAN RAILWAYS UNION

FILE NO/S:  432/1985
DELIVERED ON:  26 July 1988
JUDGMENT OF:  Nettlefold J

Judgment Number:  26/1988
Number of paragraphs:  25

Serial No B26/1988

List "B"

File No 432/1985

BROWN v NEIL & AUSTRALIAN RAILWAYS UNION

REASONS FOR JUDGMENT  NETTLEFOLD J

26 July 1988

1. The plaintiff is and at all relevant times was the Tasmanian Branch President of the Australian Workers' Union and the Northern Organizer for that Union.

1. The first–named defendant is and at all relevant times was employed by the second defendant as Secretary of the Tasmanian Branch.

1. The defendants admit that the first–named defendant was acting in the course of his employment with the second–named defendant.

1. On the 6 March 1985 the defendants published of and concerning the plaintiff in a document entitled "Australian Railways Union – Tasmanian Branch – Newsletter" bearing date 6 March 1985 the following words:–

"AWU

Interesting to see D Brown leaving AN Head Office Launceston after a discussion with Management without taking job delegates with him on 19.1.1985. This is how the workers get sold out.

.....................

Written & Authorised by WR Neil,

Branch Secretary,

ARU (Tasmanian Branch),

Trades Hall,

Launceston."

1. The words referred and were understood to refer to the plaintiff.

1. The defendants printed about 250 copies of the newsletter and circulated about 240 copies. The copies were distributed to Sub–Branch Secretaries, Branch Councillors, Shop Stewards and other representatives of the ARU at various locations. It was delivered to most railway stations in the State. The newsletter was a means of keeping the members of the ARU informed about the activities of the Union and matters affecting it. At the relevant time the Union had about 550 members. It is likely that at some railway stations persons who were not members of the ARU saw the relevant newsletter. And it is possible that persons not members of the ARU were shown copies of it by members of the ARU.

1. The witness Mr James Henry Devlin is the southern organizer for the AWU. Before taking up that position he was a guard employed by Australian National Railways. He has been a member of the AWU. a little over four years. Mr Devlin saw the newsletter at the East Tamar Junction railway yard. It was on the table with other newsletters. He picked up a copy of the newsletter at Western Junction Railway Station where it was on a table and available to employees of Australian National Railways. There were members of several different Unions employed by Australian [N]ational Railways including the National Union of Railway Workers of Australia, the ARU and the AWU. Presumably, employees who were members of Unions other than the ARU would have access to the newsletter at railway stations where it was in a room used by railway employees.

1. At the relevant time there was tension between three of the unions which were serving employees of Australian National Railways, the National Union of Railway Workers of Australia, the ARU. and the AWU. In 1984 some members of the National Union of Railway Workers of Australia approached the AWU in the hope of being admitted as members of that Union. At that time there were about 150 members of the National Union of Railway Workers of Australia working for Australian National Railways in Tasmania. That request to the AWU gave rise to a legal question which, in these proceedings, was described as whether the AWU had "constitutional coverage" to receive these persons as new members and act on their behalf. There was litigation on the question. At first instance the AWU failed. But it succeeded on appeal. About 130 members of the National Union of Railway Workers of Australia resigned from that Union and joined the AWU. About 20 – 30 members of the ARU also joined the AWU. It is clear that the AWU actively sought new members from the other two Unions. The AWU is a large Union with about 4,500 members in Tasmania. The first defendant said that the activities of the AWU in approaching and signing members of his Union rankled with him. This is the atmosphere which prevailed when the offending item was published. That this controversy was a very active one at the relevant time is apparent from the following item in the same newsletter:–

"AWU

AN Tasmania has been advised by the ARU that they should discontinue Payroll deductions for the AWU forthwith and that no officer of AN should recognised (sic) any representation that the AWU makes. Relevant parts of Commissioner Cross' decision are:–

DECISION

DECISION – THE TRAFFIC OPERATING, WORKSHOPS AND MISCELLANEOUS GRADES (AUSTRALIAN NATIONAL RAILWAYS) AWARD, 1978

Having considered at length all of the submissions and material before the Commission in this matter, I believe that, at the change in the structure of the Commonwealth to the Australian National Railways, there was an accepted understanding of all the organisations involved that there would be no encroaching outside the boundaries where they currently held award coverage and the status quo then in existence would remain.

Therefore I have formed the view that the membership of the AWU maintenance employees is restricted to the old Commonwealth Railways geographical areas which does not include the state of Tasmania. Accordingly having taken this view, the Commission cannot record a finding of dispute between the AWU and AN in this matter.

The AWU claims that the Decision has been set aside, this is false, the Act reads as follows in relation to decisions.

(1)       Subject to this Act, an award (including an award made on appeal) –

(a)       is final and conclusive;

(b)       shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and\

(c)       is not subject to prohibition, mandamus or injunction in any court on any account.

(2)       A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.

For your own protection you need to rejoin a responsible Union that can cover you."

1. Attached to the newsletter was a form to enable a worker to apply for membership of the ARU. and a form to enable a worker to tender his resignation from any other Union to which he may belong.

1. The first defendant was cross–examined on the question whether the statement complained of was defamatory. He agreed that an organizer should not go and negotiate with management without a delegate accompanying him. Asked "And it is a serious imputation about a Union Organizer to say that isn't it?" (the question in context refers to a union organizer going to the management without taking a job delegate), he replied "That's so, yes".

Q        Why did you say 'this is how the workers get sold out'?"

A        "That was said, that it could be assumed that people could get sold out in that way."

Q        "If you were reporting just a straight fact, as you think it is, if he had been to AN. Headquarters, why didn't you leave it at that fullstop. Why add the extra words 'this is how the workers get sold out'?"

A        "Well I suppose given the time and the period that we were going through at the time because of the frustrations and the heat on both sides one was perhaps a little angered and that's probably why I added these last two or three words that you refer to."

.....................................

Q        "If somebody said of you that you had been to management headquarters without a union delegate, you'd find that offensive wouldn't you?"

A        "Yes."

Q        "And you would be upset by it wouldn't you?"

A        "Yes, to a degree, depending on what was alleged and whatever the circumstances may be."

....................................

Q        "If it was said of you Mr Neil that you had been to Australian National Headquarters in Launceston for discussions with management without taking a job delegate you have already said that you would find that offensive to you personally as an organizer?"

A        "Yes."

.....................................

Q        "Why did you add the additional words 'this is how the workers get sold out'? What was the purpose of those words?"

A        "Well, as I said, as I told the Court before that given the heat of the disputation between the two organizations at that time people were rather agitated and I can't offer any other explanation than that."

1. Later he agreed that you could read into the item complained of a desire to keep members and get those members back who had gone over to the AWU.

Q        "But it always helps your membership drive if you can say something nasty about the other union doesn't it?"

A        "People could interpret that."

.....................................

Q        "Would you agree with this proposition that ordinary unionists would view fairly dimly the proposition that an organizer would go to management without a delegate?"

A        "Yes. I think it would be fair to say some would. I think it would be fair to say quite a few would not."

Q        "And quite a few would think that a comment that an organizer had been to management without a delegate could smack of a deal or smell of a deal?"

A        "That would be the interpretation of the people who were interested enough to follow these sorts of things, yes."

Q        "And some could construe as not being in the members' best interests to have the organizer going off and talking to management without a delegate?"

A        "Yes some would."

1. The Secretary of the AWU, Mr Butler, said that he received a copy of the offending newsletter in the post without any identification of the sender. The evidence as to when he received that copy is unclear. During cross–examination he said that was about four to six weeks "after the date I think". Mr Butler said he felt concern when he read it. He inquired of the plaintiff whether it was true and was assured that it was not true. One concerned person rang Mr Butler about the item in the newsletter. Mr Butler was able to assure that person that the allegation was not true.

1. Three or four copies of the offending newsletter found their way to Mr Butler. They were posted or delivered to him by members of his Union.

1. On 3 April 1985 Mr Butler wrote to the first–named defendant complaining about the relevant newsletter and saying "We therefore ask that the Executive of the ARU and its Secretary desist from making any further statements as exampled in your circular of the 6th March 1985". Mr Butler received a long reply dated 11 April 1985. The following are some extracts from that letter:–

"I acknowledge your letter dated 3rd. April which is returned herewith as my Executive is disgusted at your obnoxious and impertinent allegation to ARU. Newsletter dated 6th March, 1985 portraying untruths.

All references made in the Newsletter have been substantiated by members of the ARU. who either heard words spoken to that which was printed or people were witnessed at locations.

................................

In conclusion I must point out that when the ARU members read circulars undated and unsigned headed 'AWU notice' with wording that is most distasteful to the ARU membership suggests to me that you are somewhat expectant of a miracle to take place in inferring that the ARU does not have the right to fight fire with fire.

Your suggestion would do nothing but harm the Union movement. Further, to get the ARU to desist from issuing any statement such as you refer to would need a written guarantee from the AWU signed by all Officials and Organisers that the AWU will not print any circulars also."

1. Mr Butler said that he found that the relevant item in the newsletter contained an inference which was a matter of concern for the members and a matter of concern for him also. It constituted a slight on Mr Brown and the AWU He found that the plaintiff was agitated about the item, concerned about it in the sense that there was no truth in it and he did not like the inference that he had sold out the workers.

1. During cross–examination there was the following exchange between cross–examining counsel and Mr Butler:–

Q        "Well, in that case, what is so wrong about an observation that Mr Brown was seen leaving AN Headquarters without a delegate with him?"

A        "Well, what is so wrong with it is it is out of another organisation's newsletter. What does that infer with the bottom statement saying 'this is how the workers get sold out'. That is what is wrong with it."

1. Mr Devlin was asked the following question "And how do you as a Unionist regard allegations that a Union Organizer has been to see management without a delegate?" He replied "Well, to workers in general that smells of a deal being done and it is something that the AWU just doesn't do." Later during cross–examination he said "If an organizer went to the office to see the manager or whatever by himself without the delegate there, as I say, it is usually viewed fairly dimly by employees. It's not a desirable thing to do."

1. The offending passage is capable of bearing a defamatory meaning and is defamatory. It contained an imputation concerning the plaintiff by which his reputation is likely to be injured. "The test according to the authorities is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense" (Capital and Counties Bank v Henty (1882) 7 AC 741 at p745). That is the test which has been applied in reaching the conclusions just stated. And, of course, there is no doubt that the allegations were false.

1. Turning to the question of damages, it is clear that there is a large subjective element. Damage to a reputation is not convertible by the use of any yardstick into a sum of money. No special damage is alleged. Therefore, the principal factors to be considered are the seriousness of the defamation, the injury to the plaintiff's feelings including aggravating factors, the extent of the publication and any mitigating factors.

1. The extent of the publication has already been indicated.

1. The plaintiff has, and deserves to have, a good reputation. The offending publication caused him some embarrassment. In evidence he said "When I found this document it was an embarrassment to me, some humiliation with it because I had to turn around and defend myself with regard to this document, bearing in mind we only recruited some of those members probably six months prior to that notice coming out". He also said that he still felt disappointed that a comment like this should be made. Of course, I accept those passages from his evidence. It is clear that the offending material caused some concern to some workers. The exact extent of that concern is impossible to gauge. But, having regard to the atmosphere of the time, and the plaintiff's standing, I consider that it is unlikely that it was great.

1. An aggravating factor is that the first defendant did not comply with a demand to publish a full and unqualified apology and withdrawal in the newsletter.

1. The plaintiff has been subjected to the trouble, concern and inconvenience of litigation.

1. The damages should be modest because the damage was modest. They are assessed in the sum of $750.

1. For these reasons there will be judgment for the plaintiff against the defendants for the sum of $750. The counterclaim is dismissed.