Scarlett, Neville v Cahill, J

[1998] FCA 449

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 137 of 1998

BETWEEN:	NEVILLE SCARLETT Applicant
AND:	J CAHILL, G RENNIE, B BARKER, J BLYTHE, D CAMERON, J SPEIGHT, F BOGAR, N MARSHALL, P BASTIAN, J SHARP-COLLETT, R KEATING, S WALSH, D OLIVER, M NICOLAIDES, J ROE, E SNELL, P JOHNSTON, J ROYLE, M MCGILL, D HARRISON, G ADAMS, D GOODGER, I JONES, D SMITH, J CORSETTI AND B HENDERSON Respondents

JUDGE:	RYAN J
DATE:	16 APRIL 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

On 8 April 1998, Marshall J granted a rule nisi returnable in the first instance today calling on the respondents who are members of the Automotive, food, Metal, Engineering, Printing and Kindred Industries Union (“the Union”) to show cause why the following orders should not be made:

1.That the first, third and fourth to twenty sixth respondents perform and observe the Rules of the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (“the Union”) by treating as null and void their decision of 2 March 1998 to place the second respondent on delegation in the graphics arts area of New South Wales.

2.That the respondents perform and observe the Rules of the Union by refraining from using or permitting any other person to use the Union’s property, funds or resources to support and/or promote and/or oppose candidates in the election for offices in the “Printing Division” of the Union currently being conducted by the Australian Electoral Commission (“the election”).

3.That the second and fourth respondents perform and observe the Rules of that Union by refraining from urging or persuading members of the Union during ordinary working hours to support and/or oppose any candidates in the election.

IT IS FURTHER ORDERED:

That until 4.30pm on 16 April 1998 or further Order:

1.That the second respondent perform and observe the Rules of the Union by refraining from urging or persuading members of the Union during ordinary working hours to support or promote and/or oppose any candidates in the election to the exclusion of other candidates.

There is now before the Court conflicting evidence as to whether the second respondent, Mr Rennie, has, whilst on delegation as some form of temporary organiser for the Union, engaged in electioneering on behalf of two candidates in the election, Mr Cahill and Mr Barker.  There is also a suggestion in the evidence, strongly and comprehensively denied by those respondents who have sworn affidavits, that Mr Rennie’s appointment on delegation to foster a campaign against “award stripping” was merely a cloak to enable him to campaign for Mr Cahill and Mr Barker.

Each of the deponents who have sworn affidavits on behalf of the respondents, although having travelled from New South Wales, has made himself available for cross-examination.  For reasons which have been satisfactorily explained by Mr Staindl of Counsel for the applicant, only one deponent of an affidavit filed on behalf of the applicant is available today for cross-examination.  In those circumstances I declined to allow cross-examination today of only some of the deponents. 

I accept that the following observations of Gray J in Buchanek v Jones (1989) 34 IR 102 at 103-104 as applied by Marshall J in Marshall v Mayne & Ors (unreported, 25 July 1995) are apposite in the present circumstances:

Elections are in progress for the offices of general secretary/treasurer, organiser and organiser/administrator in the branch. Nominations were called on 27 September and closed on 18 October.  Two candidates were nominated for each position.  A ballot is due to open on 16 November and to close on 9.00 am on 7 December 1989.

This timetable exposes a problem which besets applications of this kind.  The orders sought, if granted, would apply only to the period during which the elections are being conducted. There is no real chance of a final hearing taking place, much less of a final determination of the proceeding, before 7 December when the ballot closes.  This conclusion is reinforced by the proposals of the parties as to a timetable for the filing of further affidavits, which would require at least four weeks to elapse before the interlocutory steps were completed.  In effect the grant of further interim orders will give the applicant final relief.  It is unlikely that the question of his entitlement to true final relief will ever be decided. A final hearing after 7 December would not seem to be a sensible use of the Court’s time, or of the money of the parties, or perhaps the taxpayer.  For this reason it seems to me that the Court should scrutinise very carefully the application for interim orders.

His Honour then went on to make some general observations about parallels between tests for the grant of interlocutory injunctions in ordinary civil litigation and the making of interim orders under industrial legislation.  He continued:

It seems to me that the present case is one in which the mere establishment of a serious question to be tried or the mere balance of convenience ought not to lead to an interim order.  The respondents had little opportunity to bring forward evidence.  They are faced with evidence which is, to a large extent, hearsay.  Although admissible on an interlocutory application, this evidence should be scrutinised, to ensure that what is effectively final relief is not granted on too slight an occasion.

However, in that case his Honour went on to continue the original interim orders in a modified form saying at 110:

In my view, these circumstances make out a sufficient case for interim orders. To the extent that the balance of convenience may be relevant, it is apparent that the protection of the rights of the candidates against whom the leaflet was directed, and who are opposed to those for whom the stickers were distributed, far outweighs any inconvenience in being called on to obey the law.  Indeed, if interim orders were not made, irreparable harm may be done, as the Court lacks the power to require persons to reimburse funds spent outside the powers given by the rules.  See Darroch v Tanner (1987) 21 IR 284.

Similar considerations, although applicable to quite different alleged facts, have led me, after giving the matter the degree of scrutiny indicated by the first passage from his Honour’s judgment which I have just cited, to continue, until further order, the interim order made by Marshall J but in a slightly modified form.  In deciding to take that course, I should not be taken at all to have rejected Mr Rennie’s insistence that he has at all times been scrupulous in his adherence to Mr Cahill’s instruction to refrain from electioneering.  Nor have I been unmindful of the criticisms directed by Mr Pearce of Counsel for the respondents to less than satisfactory aspects of the affidavit of Mr Simonea which contains the direct allegations of electioneering by Mr Rennie.

However, as I have already indicated, it has not been possible to test by cross-examination the affidavits on either side and it is inappropriate that I express a concluded view or preference for any particular version of the facts.  I further indicate that I am not prepared to assume that any other respondent would seek to instigate or connive at any breach by Mr Rennie of the interim order as I am prepared to extend it.  Nor, of course, do I assume that Mr Rennie himself would commit any such breach.

Reference was made by Mr Pearce to the possibility of any form of interim order exposing Mr Rennie to proceedings of contempt arising out of an inadvertent remark which might be made and be capable of interpretation as supporting a candidate or deprecating the candidature of another person in the election.  However, I consider that the Court, if its contempt powers were invoked in those circumstances, would, as always, scrutinise the circumstances and the extent of the alleged contempt very carefully before visiting any criminal sanction on Mr Rennie.  Accordingly, there will be no interim order directed to any other respondent.  I shall continue until further order the interim order granted by Marshall J which will be in these terms:

• That until 19 May 1998 or further order the second respondent perform and observe the Rules of the Union by refraining during working hours while on delegation for the Union from urging or persuading members of the Union to support, promote or vote for or against any candidate in the election.

It may be, as I have indicated, and as Gray J apparently contemplated in Buchanek v Jones, that the order which I have just pronounced will be tantamount to final relief in this matter.  But should any party wish to seek final relief in the true sense, I shall adjourn the directions hearing to a date to be fixed and reserve liberty to any party to apply on not less than 48 hours notice in writing to the other parties.  Should the matter proceed it seems to me that serious consideration would need to be given as to whether it should not be transferred to the New South Wales Registry of the Court since most of the witnesses involved seem to be resident in New South Wales.  A strong argument could be made for that course, but, in the circumstances, I say nothing more about that at the present.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            16 April 1998

Counsel for the Applicant:	Mr D Staindl
Solicitor for the Applicant:	Maurice Blackburn & Co
Counsel for Respondents: J Cahill, G Rennie, J Blythe, D Cameron, P Bastian, D Oliver, M Nicolaides, D Harrison and J Corsetti	Mr J H Pearce
Solicitor for Respondents: J Cahill, G Rennie, J Blythe, D Cameron, P Bastian, D Oliver, M Nicolaides, D Harrison and J Corsetti	Taylor & Scott
Date of Hearing:	16 April 1998
Date of Judgment:	16 April 1998