Valentine v Butcher

[1981] FCA 33

Re: DONNA MARIA VALENTINE
And: GEORGE BUTCHER, NORMAN HARDING, BILL HARDIMAN and GEOFF WHITEHEAD
(personnally and as representing all of the persons listed in a leaflet
purporting to be a supplement to "Blueprint", Federal Newspaper of the
Association of Draughting Supervisory and Technical Employees, February 1981
and ARTHUR GREIG (1981) 51 FLR 127
No. V1 of 1981
Industrial law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Keely J.(1)

CATCHWORDS

Industrial law - rules of registered organization - election - implied obligation not to use funds or resources of organization to support one candidate against another - whether insertion in union journal of a paid advertisement for one candidate breaches implied obligation - whether obligation to take action to ensure "equality" between candidates and that each candidate knows of right to place advertisement - Postal Regulations requiring that advertisement be endorsed as "Supplement to 'Blueprint'" - whether distribution to members by hand of leaflet so endorsed is a use of resources of organization - use of organizers and shop stewards to distribute election leaflet - whether breach of implied obligation - whether 1977 amending Act removed discretionary power to refuse to make order - Conciliation and Arbitration Act 1904 s.141

Conciliation and Arbitration - Rules of registered organization - Election - Implied obligation in rules that funds and resources of organization not to be used to advantage one candidate against another - Whether insertion in union newspaper of paid supplement breaches obligation - Whether union official has obligation to inform each candidate of his right to advertise in union newspaper to ensure "equality" between candidates - Whether use of organizers to distribute supplement by hand is breach of implied obligation - Whether discretion to make orders - Conciliation and Arbitration Act 1904 (Cth), s. 141.

HEADNOTE

The applicant was a candidate for the office of federal assistant secretary of the Association of Draughting Supervisory and Technical Employees. The only other candidate in the election was the present federal assistant secretary, being the fifth respondent. Acommittee to re-elect the federal assistant secretary was organized and it proposed to pay for the insertion of a leaflet as an election supplement on behalf of the fifth respondent in the association newspaper Blueprint. Previously the applicant had been informed by the association secretary and editor of Blueprint, being the first respondent, that each candidate in the election was to be given space in the February 1981 issue for the inclusion of election material but was not informed that in addition, paid advertisements or supplements in Blueprint from each candidate would be accepted. The applicant sought an order directing the federal assistant secretary and all the association members listed on his re-election leaflet to perform and observe the rules of the association by refraining from having that leaflet included and distributed with the February issue of Blueprint on the basis that this was impliedly prohibited by the rules. The applicant stated that some copies of the leaflet were to be hand distributed by organizers of the association which she alleged was also impliedly prohibited by the rules. On 3rd March, 1981, the court made an ex parte interim order, inter alia, preventing the distribution of the February issue of Blueprint.

Held: (1) The principle implied in the rules prohibiting the use of the resources of a registered organization in support of one candidate is a principle that the use of such resources are not to be granted to one candidate and denied to another but does not apply where those resources are in fact equally available to all candidates.

Kanan v. Hawkins unreported (Federal Court of Australia, J. B. Sweeney, J., 14th September, 1979); Short v. Wellings (1951), 72 CAR 84, followed.

Re Australian Postal and Telecommunications Union (1980) L.B. Co.'s Indus. Arb. Serv., Current Review, p 9; Lyons v. Deegan (1978), 35 FLR 430, referred to.

(2) The principle does not extend in such a way that the rules require office holders to take such positive steps to ensure that each candidate knows precisely his rights in respect of advertising in the organization journal although the principle does require office holders to refrain from misleading candidates and would doubtless extend to requiring office holders to take remedial action if a candidate had been misled.

(3) The principle does not operate to require office holders to take the initiative and offer the resources of an organization to candidates in an election.

(4) The use of organizers or area representatives to distribute one candidate's leaflet is conduct which is impliedly prohibited by the rules.

Kanan v. Hawkins unreported (Federal Court of Australia, J. B. Sweeney J., 14th September, 1979); Short v. Wellings (1951), 72 CAR 84, followed.

(5) It is possible that had Parliament intended to remove the court's discretion to make orders under s. 141 by reason of the 1977 amendment to the section it would have expressed its intention more clearly in the amending Act, although the court expressly refrained from deciding the question.

R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945), 70 CLR 141; R. v. Spicer; Ex parte Foster (1958), 100 CLR 163; Williamson v. Federated Marine Stewards and Pantrymen's Association of Australasia (1949), 65 CAR 418; Mayell v. Waters (1967), 11 FLR 316; Chapman v. Sear (1931), 30 CAR 165; Wilson v. Heydon (1944), 53 CAR 482; Miller v. Building Workers Industrial Union of Australia (1947), 59 CAR 836; Woodward v. Scott (1947), 59 CAR 918; McLeish v. Faure (1979), 40 FLR 462; R. v. Forbes; Ex parte Bevan (1972), 127 CLR 1, referred to.

HEARING

Melbourne, 1981, March 12, 16-18, 20. #DATE 20:3:1981

ORDER NISI.

P. R. A. Gray, for the applicant.

B. D. Lawrence, for the respondent.

Cur. adv. vult.

Solicitors for the applicant: Holding Redlich & Co.

Solicitors for the respondent: Maurice Blackburn & Co.

J. ISLES

ORDER

1. The interim orders made ex parte by Smithers J. on 2 March 1981 be rescinded.

2. The respondents George Butcher, Norman Harding, Bill Hardiman, Geoff Whitehead and Arthur Greig are directed to perform and observe the rules of the Association of Draughting Supervisory and Technical Employees by refraining by themselves, their servants or agents, from using the property, resources, machinery or staff of the said organization to support, promote, or defeat candidates or influence voters in the current election being conducted within the organization for the position of federal assistant secretary.

3. The rule to show cause is otherwise discharged.

4. Each party shall have liberty to apply.

Orders accordingly.

JUDGE1

On 3 March 1981 the applicant obtained from Smithers J. a rule ordering the respondents to show cause on 12 March 1981 why certain orders should not be made under s.141 of the Conciliation and Arbitration Act 1904 (the Act). His Honour also made ex parte interim orders which included the following terms:

"1. That until the hearing and determination of the Rule to Show Cause herein or further order the Respondents and each of them, and all the persons whose names appear in the said leaflet perform and observe the rules of the association of draughting Supervisory and Technical Employees by refraining by themselves, their servants or agents, from publishing, circulating or distributing to members of the said organization or otherwise the leaflet purporting to be a supplement to 'Blueprint' Federal Newspaper of the Association of Draughting Supervisory and Technical Employees, February 1981.

1. That until the hearing and determination of the Rule to Show Cause herein or further order that the Respondents and each of them and all of the persons whose names appear in the said leaflet perform and observe the rules of the Association of Draughting Supervisory and Technical Employees by refraining by themselves their servants or agents, from using the property, resources, machinery or staff of the said organization to support, promote, or defeat candidates or influence voters in the current election being conducted within the organization for the position of Federal Assistant Secretary.

. . . "

The application relates to an election for the office of federal assistant secretary of the Association of Draughting Supervisory and Technical Employees (the association) - sometimes referred to as ADSTE. The ballot in the election opened on 2 March 1981 and is to close on 2 April 1981. Two nominations have been received for the position. The candidates are Arthur Greig, the fifthnamed respondent, who is at present the federal assistant secretary, and the applicant, who is a member of the association and is the secretary of the A.C.T. branch of the association. As to the other respondents, George Butcher is the federal secretary of the association and editor of its newspaper "Blueprint", Norman Harding is federal president, Bill Hardiman is a federal councillor for Victoria and an industrial officer of the association and Geoff Whitehead is secretary of the Victorian branch of the association.

Because of the urgency of the matter Mr Peter Gray of counsel on behalf of the applicant and Mr Brian Lawrence of counsel on behalf of the five respondents agreed that the Court should make a final determination in the matter instead of confining itself to determining an application in respect of the interim orders.

In her supporting affidavit the applicant deposed that:
". . . shortly after the 2nd day of February 1981, I sought from the Federal Secretary of the organization, the abovenamed Respondent George Butcher, advice as to whether candidates for office would be entitled to put their respective points of view in the organization's federal newspaper, Blueprint, prior to the conduct of the ballot. . . . "
The applicant received from Mr Butcher a reply which, omitting formal parts, was in the following terms:
" 19th February, 1981

Dear Donna,

Election for Office of Federal Assistant Secretary The Electoral Officer has confirmed that an election for the office of Federal Assistant Secretary will be held. The ballot will open on March 2nd and close on April 2nd.

The control of the election will be totally in control of Mr. Small of the Australian Electoral Office.

I have decided, after consultation with our legal adviser and the Electoral Office, to give the candidates for office, space in the forthcoming issue of Blueprint to put their case to all members of the Union.

The material will be limited to 300 - 350 words and it will be given equal space and treatment.

The material published will be as presented by the candidates with the provision that any breaches of the laws relating to defamation and libel will of course have to be observed by myself as Editor. The policies of the Union will also be a factor.

Any other election material which either of the candidates might wish to distribute to the membership is their own affair. The preparation and distribution of any such material must not be a cost on the Union's finances or resources. That includes stationery, printing, telephone etc.

The same conditions will apply to other material which individuals or groups might wish to distribute.

The material for publication is wanted as soon as possible to ensure that the publication of the February issue of Blueprint is not unduly delayed.

A single column photograph of the candidates will be included in Blueprint if both agree.

This letter is in confirmation of verbal advice given to yourself on February 9th, 1981.

I seek your co-operation in ensuring an early supply of your message and that no undue problems will arise as a result of this offer to you.

Yours faithfully,

(signed)
GEO. BUTCHER
FEDERAL SECRETARY"
The February 1981 issue of "Blueprint" contains material and a photograph presented by each of the two candidates but has not been sent out to the membership generally for reasons which will later appear.

Early in February 1981 Mr Whitehead, the fourthnamed respondent, called together a group of people "for the purposes of supporting Mr Greig's re-election" as federal assistant secretary. That group, called the "Re-elect Arthur Greig, Federal Assistant Secretary, ADSTE Campaign Committee" (the campaign committee) first met on the evening of 10 February 1981. Following upon discussion at the meeting Mr Whitehead on 16 February 1981 prepared a hand written draft of a leaflet headed "Re-elect Arthur Greig Federal Assistant Secretary ADSTE" (the leaflet) and took it to the second meeting of the campaign committee on the evening of 17 February 1981. The respondent Mr Butcher did not attend any of its meetings.

On 17 February 1981 before the meeting Mr Whitehead, as convenor of the campaign committee, wrote to the editor of "Blueprint" a letter which, omitting formal parts, was in the following terms:

"RE-ELECT ARTHUR GREIG, FEDERAL ASSISTANT SECRETARY ADSTE

CAMPAIGN COMMITTEE

17th. February, 1981,

Dear Sir,

RE: Supplement to 'Blueprint', February 1981 Issue

I understand that it is possible to circulate advertising material, relevant to ADSTE members, as an inserted supplement to 'Blueprint'.

On behalf of the 'Campaign Committee For the Re-election of Arthur Greig, Federal Assistant Secretary', I seek your agreement to circulate to ADSTE members, the attached leaflet as a supplement to the February, 1981 issue of 'Blueprint'.

Of course, all costs associated with such circulation will be born by the above Committee.

It would be appreciated if you could advise me of your decision and, if in the affirmative, the details of costs, etc., at your earliest convenience.

Could you please send your reply to me at the address below.

Yours sincerely,

(signed)

G.N. WHITEHEAD"

Mr Butcher replied in terms which, omitting formal parts, were as follows:

" 27th February, 1981

Dear Sir,

I now officially acknowledge your letter of 17th February and wish to confirm my verbal advice given to you on Friday 20th February.

1. After seeking legal advice, I agree to your proposition. As Editor the acceptance of material for insertion in Blueprint is my responsibility.

1. The leaflet must contain a printed notification that it is a Supplement to Blueprint February 1981.

1. The approximate cost of having the leaflet inserted is $350.00 and the final amount will be subject of invoice notification.

1. It will be your responsibility to ensure that the supply of the leaflet for insertion is delivered to Industrial Printing and Publicity Company in Dover Street, Richmond.

1. Further, it will be your responsibility to ensure that the delivery of the leaflets be achieved no later than 12 noon on Tuesday February 24th, to obviate any delay in printing. A delivery later than that date will mean that it won't be inserted.

1. No charge on Association Funds is to be incurred in the production and delivery of the leaflet to the Printer.

1. All costs associated with the insertion and any additional delivery charges caused by the insertion in Blueprint will be charged to you as Convenor of the Committee.

1. That a copy of the leaflet is to be made available for my perusal prior to my approval being finalised.

Yours faithfully,

Geo. Butcher

Editor - Blueprint"

The leaflet inserted in copies of the February 1981 issue of "Blueprint" is in the following form:

"Re-elect

ARTHUR GREIG

FEDERAL ASSISTANT SECRETARY (photograph)

ADSTE

We, the undersigned Officers and Officials of ADSTE, have known and worked with ARTHUR GREIG for many years and have great respect for his leadership qualities, dedication and abilities.

We wholeheartedly endorse Arthur's re-election as Federal Assistant Secretary of ADSTE.

We call upon all members to cast a vote for ARTHUR GREIG to ensure that he is re-elected to continue to work for the betterment of all members of the Association.

Vote X ARTHUR GREIG

Ballot for Federal Assistant Secretary

Opens Monday, March 2nd, 1981 : Closes Thursday, April 2nd, 1981

--------------------------------------------------

Norman Harding, Federal President

George Butcher, Federal Secretary

Graham Harris, Federal Vice-President

Bill Hardiman, Federal Councillor Victoria (Industrial Officer)

Noel Trent, Federal Councillor Victoria

Charlie Pandolfo, Federal Councillor Victoria (President)

Jack Frost, Federal Councillor Sth. Australia (President)

Peter Harrison, Federal Councillor Q'land (President)

Ken Philp, Federal Councillor Q'land

Ted Oliver, Federal Industrial Officer

Joe Nieuwenhuizen, Federal Industrial Officer

Colin Meikle, Secretary South Australia

Bill Sinnott, Industrial Officer Sth. Australia

Ted Turner, Industrial Officer, Sth. Australia

Geoff Whitehead, Secretary Victoria

Bill Brisbane, Industrial Officer, Victoria

Judith Bornstein, Industrial Officer, Victoria

Neil Robertson, Industrial Officer, Victoria

Geoff Larkin, Industrial Officer, Victoria

Jim Bonding, Secretary, Queensland

Bob Warwick, Vice-President, Victoria

Lindsay Dyer, Treasurer, Victoria

Bob Millett, Assistant Secretary, Victoria

Eric McAra, Vice-President, South Australia

Peter Dewhurst, Treasurer, South Australia

Frank Cook, Geelong Sub-Branch

Peter Mansell, Bendigo Sub-Branch President

--------------------------------------------------

DON'T LET APATHY BE THE WINNER]

ALL MEMBERS TO VOTE, AND VOTE EARLY

--------------------------------------------------

Preparation and circulation of this leaflet financed by the above people.

Supplement to 'Blueprint', Federal Newspaper of ADSTE, February 1981."

The leaflet includes a picture of Mr Greig and the wording is printed in black type on yellow paper.

Election material in support of the applicant was distributed to members of the Victorian branch in February and March 1981. Copies of one such pamphlet were handed to members at the annual general meeting of the branch by one David Lambert, the federal industrial officer of the association. That pamphlet contained "endorsements" of the applicant by three persons currently holding office respectively as A.C.T. branch president, A.C.T. branch treasurer and a federal councillor. It also contained similar endorsements by four other persons who had previously held office.

The February 1981 issue of "Blueprint" with the leaflet inserted in it had not been distributed to the membership generally at the time when Smithers J. made the ex parte interim orders set out above. The distribution of the 21,280 copies of February 1981 "Blueprint", which have been printed and into which copies of the leaflet have been inserted, has been withheld pending the determination of these proceedings.

The campaign committee had 35,000 copies of the leaflet printed. Of those 22,000 copies were delivered to Industrial Printing and Publicity Co. Ltd for insertion in the February 1981 issue of "Blueprint". Approximately 9,000 copies of the leaflet were mailed to members of the association on 25 and 26 February 1981. Of the remaining 4,000 copies of the leaflet 1,000 were sent to South Australia and 3,000 were distributed in Victoria.

On 13 March 1981 Mr Butcher wrote to Mr Whitehead in terms which, omitting formal parts, were as follows:
" 13th March, 1981.

Dear Geoff,

re: Insertion of Leaflet in Blueprint

I attach a copy of invoice 17719 just received from Industrial Printing and Publicity Company.

I would appreciate receiving from the Committee a cheque drawn in favour of Industrial Printing and Publicity, for $319.00 to cover the cost of inserting the A. Greig election leaflet into the February issue of Blueprint.

Any additional cost incurred by R.L. Polks during wrapping or posting of the Blueprint as a result of the insertion will be advised when known.

Yours faithfully,

(signed)
GEO. BUTCHER
FEDERAL SECRETARY"
The enclosed invoice, dated 27 February 1981, included a charge for an amount of $319.00 for "Inserting election leaflet".

The campaign committee opened a bank account on 18 February 1981. The total amount collected up to 15 March was $2,946 and payments had been made for accounts totalling $2,627 including $2,000 for postage, $378 for printing of the leaflet and $42 for photocopying the electoral roll. Mr Whitehead gave evidence that the campaign committee is in a position to pay the amount of $319 to Industrial Printing and Publicity Company Limited to cover the cost of inserting the leaflet in the February issue of "Blueprint". He stated that the leaflet is the only document that the campaign committee has been associated with producing and explained that the campaign costs have been underwritten by Mr Greig and the signatories to the leaflet.

On the evidence it is clear that the acceptance of the leaflet for insertion in "Blueprint" will not result in the association having to pay any additional costs, i.e. any costs over and above the normal cost of producing and distributing "Blueprint". The evidence showed that the cost of posting "Blueprint" with the leaflet inserted would be no more than the cost of posting it without the leaflet.

In final address Mr Gray put three submissions in support of the applicant's case for the making of an order that the respondents refrain from distributing copies of the February 1981 "Blueprint" containing copies of the leaflet to members of the association - see paragraph 2 of the rule to show cause. First, it was said that federal executive had adopted by resolution at its meeting on 14 November 1980 a report from the association's propaganda and publicity committee which included the following recommendation:
"It is recommended to Federal Executive that no further commitments for Blueprint advertisements from paid agencies be entered into in 1981, and when all current commitments to Blueprint advertisements expire, no further advertisement appear in Blueprint from paid agencies."

He submitted that federal executive had power under the registered rules of the association (the rules) and in particular under rule 22(a) and (b) and rule 19(a), (b) and (1) to make such an authoritative decision as to advertisements. In his submission the firstnamed respondent, Mr Butcher, was bound by the rules to give effect to that resolution of the federal executive in exercising his function under rule 29(m) of the rules to "edit and publish any journal of the association and distribute the same to members and branches".

This submission raises the question of the meaning of the recommendation adopted by the federal executive on 14 November 1980. I accept Mr Gray's submission that evidence as to the 1974 federal conference does not assist the respondents in any way. I also accept his submission that the meaning of the words "from paid agencies" in the recommendation is to be ascertained without reference to the evidence as to what Mr Butcher or other members of the propaganda and publicity committee - or other members of the federal executive - considered the words meant. The Court must interpret the recommendation in the light of the ordinary and natural meaning of the words.

I am unable to accept his submission, however, that "the resolution is designed to prohibit paid advertisements emanating otherwise than officially within the organization". In my opinion that does not give sufficient weight to the words "from paid agencies". I accept Mr Lawrence's submission that the decision that, after current commitments expire, "Blueprint" contain no further advertisements "from paid agencies" meant no further "advertisements from advertising agents who are paid agency fees or commission". I have reached that conclusion as a matter of interpretation of the words used. However, if it be necessary to have regard to the purpose sought to be achieved by the recommendation, then the evidence shows that the proposal arose out of complaints by members that "Blueprint" contained too many advertisements. It is probable that the purpose of the recommendation was to substantially reduce the number of advertisements rather than "to prohibit paid advertisements emanating otherwise than officially within the organization" as argued by Mr Gray. A purpose of substantial reduction in numbers of advertisements would not support the interpretation advanced by Mr Gray but would be consistent with the interpretation put forward by Mr Lawrence. I do not regard Mr Butcher's letter of 19 January 1981 to Shirwin International Advertising as casting doubt upon that interpretation.

Accordingly, I am unable to uphold the first way in which Mr Gray put his case as I have not accepted his interpretation of the words "from paid agencies" upon which it is dependent.

Secondly, Mr Gray submitted that rule 29(m), which casts upon the federal secretary the duty to "edit and publish" the journal "Blueprint" and "distribute the same to members and branches", carries with it an implied term that he would carry out those duties as editor "for purposes that are properly purposes of the organization and . . . not for the purpose of supporting the candidature of one candidate in an election or damaging the cause of the opposite candidate".

The third way in which the case was put by Mr Gray was that the acceptance of the leaflet as an insert to be distributed with the February 1981 issue of "Blueprint" constituted "a use of the property and funds and expenditure of funds of the organization for a purpose which was not the ordinary purpose of . . . the organization, but rather was for an extraordinary purpose, and that such expenditure or use of resources is impliedly prohibited by the rules . . . ".

The normal distribution of "Blueprint" involved an expenditure of the funds of the association (e.g. the cost of printing, wrapping and posting). Mr Gray submitted that the purpose of the expenditure of those funds became a different purpose, once the leaflet was inserted in "Blueprint". He argued that the funds were no longer being spent just for the distribution of "Blueprint" but for the distribution of it and of an election leaflet and accordingly were being expended for an extraordinary purpose - one which is impliedly prohibited by the rules. In this submission Mr Gray was referring to the objective propose of the expenditure and not to the subjective purpose of one or more of the respondents.

In reply, however, Mr Gray referred to Mr Butcher's failure to remove the copies of the leaflet from "Blueprint" with a view to distributing "Blueprint" after the making of the interim order without waiting on the result of these proceedings. He suggested that the Court should infer that Mr Butcher had a "subjective purpose" in accepting the leaflet as an insert. I am not prepared to draw that inference having regard to the cost and other difficulties that would have been involved in removing the 21,280 copies of the leaflet.

It is convenient to take together the second and third ways in which the case is put as they both depend upon a contention that certain conduct is impliedly prohibited by the rules. Mr Gray relied upon the judgment of J. B. Sweeney J. in Kanan v. M. A. Hawkins and Noel Battese (delivered 14 September 1979 - not yet reported) which applied a decision of the Commonwealth Court of Conciliation and Arbitration in Short v. Wellings (1951) 72 C.A.R. 84, citing with approval the following passage from that decision (at p.87):
"The branch rules provide for the election of officers and members of its Committee of Management. Although there is no specific rule against the use of the resources and funds of the organization for the support of particular candidates at any such election, to use the property and resources of the branch for such a purpose would deny the right of such candidates as were not to be supported by the organization, its Committee of Management, its several authorities, its resources or funds, to the freedom and equality in their candidature to which the election rules imply they are entitled. The funds and resources of the organization belong as much to them and their supporters as to their opponents and theirs."
He also relied upon the judgment of Sheppard J. in Re Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 A.L.R. 330. In considering whether the ratio in the latter judgment supports Mr Gray's argument in this case, it must be borne in mind that the facts in that case were strongly in favour of the applicant - both as to the intention of the letter writer and also as to the use of union funds. As Sheppard J. said (at p.335):
"So judged what Slater wrote in his open letter was designed positively to disadvantage some of the candidates in the election and thus inferentially to advantage others. I should add that the fact that it was enclosed with a newsletter which urged a fair vote, makes no difference to my conclusion in that regard.

The open letter was produced with money provided from union funds. That is so, at least to the extent of $998, which was the cost of printing it."
Mr Gray sought to rely on the next two sentences which read:
"There may be a question as to the amounts incurred for mailing and postage, bearing in mind that the offending document was despatched with a union newsletter. I do not need to decide that question, although I am inclined to the view that the whole of the expenditure was improperly incurred."
In my view that passage does not assist the present applicant because (a) His Honour expressly declined to decide the question, and (b) neither counsel before me was able to clarify from the report what was the expenditure to which His Honour was referring in the words "the whole of the expenditure".

Mr Gray also relied upon the judgment of this Court (Smithers, J. B. Sweeney and Evatt JJ.) in Lyons v. Deegan and others (1978) 35 F.L.R. 430. As J. B. Sweeney J. said in Kanan's case (supra), statements in that judgment are "not dissimilar" from the passage quoted from Short v. Wellings (supra) but in my view those statements do not put the present applicant in a stronger position than if reliance were placed only on Short v. Wellings and Kanan's case (supra). In any event Lyons v. Deegan (supra) differs from the present case in that it related to the duties of a returning officer and to the inclusion of material with a ballot paper in a referendum. Further, the applicant there had a much stronger case on the facts because, as the Full Court found (at p.442) the document there enclosed with the ballot papers "distorts the question actually submitted for the vote and could cause gross misunderstanding of the effect of a vote". Nor do I consider that Mr Gray's argument derives any greater support from the judgment of Dunphy J. in Holmes v. Riordan and Martin (1956) 86 C.A.R. 180 at pp.196-198. Accordingly, in my view the applicant's argument on this branch of the case stands or falls on the principle enunciated in Short v. Wellings (supra) as applied in Kanan's case (supra).

The application insofar as it seeks to prevent the distribution of "Blueprint" with the leaflet as an insert, necessarily asks the Court to accept those cases as establishing a principle that the rules of the association impliedly require existing office holders to take action to ensure "equality" between candidates for any office - at least as far as possible. Such an implication under the association's rules, in Mr Gray's submission, required the respondent Butcher, as editor of "Blueprint", to either refuse to accept the leaflet as an advertisement to be inserted in "Blueprint" or to take positive steps to ensure "equality" between the applicant and Mr Gray as candidates. Those positive steps included informing the applicant of her right to insert in "Blueprint" a paid advertisement relating to the election and offering her the same facility as that granted at the request of the campaign committee. Mr Gray submitted that, although it was not necessary for him to go so far because of the facts in this case, there is an implication in the rules that the duty imposed on the editor of "Blueprint" required him to go further than merely informing the applicant of her right: it would have been his duty to refuse to insert in "Blueprint" the leaflet prepared by the campaign committee if, upon making enquiries from the present applicant, he had discovered that she would be unable at that time to take advantage of the opportunity to insert a paid advertisement in "Blueprint", for example, because she had already planned her election campaign in a different way and it was too late for her to make the necessary change.

In my view the principle prohibiting the use of the resources of a registered organization in support of one candidate is a principle that the use of such resources is not to be granted to one candidate and denied to another. It seems to me that an important part of the principle enunciated by the Commonwealth Court of Conciliation and Arbitration in Short v. Wellings and others (supra), as applied by this Court (J. B. Sweeney J.) in Kanan's case (supra), is that those resources must not be used to defeat a candidate. In my view the implied prohibition upon the use of the organization's resources does not apply where those resources are in fact equally available to all candidates.

The prohibition is upon the use of the resources or funds of an organization to support one candidate in an election in circumstances where they have been denied or will be denied to another candidate. As it is expressed in Short v. Wellings (supra) such a denial (given that the resources "belong" to both sides in the election) in a "campaign for his defeat" is "a denial of that fundamental right" to "stand for election" to a "democratically and freely elected body of executive and administrative officers".

I accept Mr Butcher's evidence that if he had received a request from the applicant or a committee on her behalf for the publication of a supplement in similar form to the leaflet, he would have treated the request in the same way as he treated the request by Mr Greig's campaign committee and that any such supplement relating to the applicant's candidature would have been published. Perhaps I should add that it was not suggested that the February 1981 "Blueprint" (apart from the leaflet) was in any way directed against the applicant or designed to help Mr Greig in his campaign against her.

In my opinion the principle does not extend in such a way that the rules impliedly require existing office holders to take positive steps to ensure that each candidate knows precisely what his or her rights are in respect of advertising in the journal of the organization concerned. However, assuming that the principle operates to require those office holders to refrain from misleading one of the candidates as to those rights, doubtless it would extend to requiring them to take the necessary remedial action if they had in fact misled one of the candidates.

In my opinion the principle does not operate in such a way that the rules impliedly impose a duty upon the existing office holders to take the initiative and offer the resources to other candidates. In other words, the principle is that the rules impliedly prohibit existing office holders from taking certain action or engaging in certain conduct. It does not extend to requiring them to take positive steps to ensure that all candidates have the same knowledge, for example, as to the right to advertise in the journal, unless those candidates have been misled by some action of an existing office holder - as distinct from being merely under a misapprehension which is not due to any such misleading action.

Mr Gray submitted that Mr Butcher's action in accepting the campaign committee's leaflet as an advertising insert for "Blueprint" necessarily conflicted with his letter of 10 February 1981 to the applicant (set out earlier) and constituted a change from the position there outlined. The applicant had requested "advice as to whether candidates for office would be entitled to put their respective points of view in the organization's federal newspaper, Blueprint, prior to the conduct of the ballot". Mr Gray submitted that that request was a request to be told "what can I do, what is available to me" in "Blueprint" in general and, further that the words used included a request for information as to whether she could place an advertisement insert in "Blueprint".

I am unable to so interpret the applicant's request. In my view it was simply an enquiry as to whether she and any other candidate would be entitled to put their respective points of view in "Blueprint". It did not in terms or by implication enquire as to the possibility of an advertisement in respect of the election. It made no enquiry as to charges for advertisements and no offer to pay for any advertisement. The applicant's enquiry was answered by Mr Butcher's letter of 10 February 1981, by informing her of the right of candidates to have published in "Blueprint" an article, limited to 300 - 350 words, and a photograph.

Mr Gray placed considerable reliance upon the terms of the letter of 10 February 1981 and in particular upon the following paragraph:
"Any other election material which either of the candidates might wish to distribute to the membership is their own affair. The preparation and distribution of any such material must not be a cost on the Union's finances or resources. That includes stationery, printing, telephone etc."
In his final address he submitted that that paragraph was saying "you cannot distribute any other election material through 'Blueprint'" and that as to "any other election material . . . Blueprint will not help you with that".

I am unable to accept the latter submission. In my view the paragraph quoted did no more than tell the applicant (as did a similar letter to Mr Greig) that:

1. The publication in "Blueprint" of the article and photograph is the only assistance costing the association money (the cost of printing) that either candidate would get in presenting views to the members;

2. The distribution of any other election material is purely a matter for the candidate - it "must not be a cost on the Union's finances or resources".

It may be noted in passing that the applicant did not give evidence that she regarded Mr Butcher's acceptance of the leaflet (as an insert) as "conflicting" with his letter of 10 February 1981 - and apparently she did not make any such complaint to him at the time.

As a matter of objective interpretation of the words used in the letter of 10 February 1981, in my opinion they do not convey to the reader that the candidates would not be allowed to have a paid advertisement as a supplement to "Blueprint". As to any subjective intent Mr Butcher said in cross examination that when asked by the applicant early in February as to whether she could make some use of Blueprint for her campaign he did not direct his mind to the question of a supplement to "Blueprint". This may be an appropriate place to add that in these proceedings there was no conflict of evidence. Nor did I observe anything in the demeanour of the applicant or of any of the three respondents who gave evidence to cause me to disbelieve any of the evidence given.

The applicant not having been misled, in my opinion the acceptance of the leaflet as an insert in "Blueprint" did not constitute a breach of a duty implied under the rules. Accordingly, I dismiss the application for an order in respect of the distribution to members of the February 1981 issue of "Blueprint" containing the leaflet as an insert.

Mr Gray did not dispute the respondent's contention and evidence that the leaflet was required by Postal Regulations to have printed on it (as it has) the words "Supplement to 'Blueprint', Federal Newspaper of ADSTE, February 1981" if it were to be an insert in "Blueprint". Nevertheless, he submitted that the principle in Short v. Wellings (supra) and Kanan's case (supra) entitles the applicant to an order under s.141 directing the respondents to refrain from circulating or distributing to the members the leaflet in its present form, i.e. including the words "Supplement to 'Blueprint', Federal Newspaper of ADSTE, February 1981". On the evidence there appears to be little likelihood of such a distribution taking place: it would have been a different matter if an order had been made in the applicant's favour as to the distribution of the February 1981 "Blueprint" containing the leaflet as 21,280 copies of the leaflet might then have been available for distribution in some other way.

However, once it is decided that the leaflet may, without breach of implied rules, be distributed as an insert in "Blueprint" and that, for that purpose the words in question are required by the Postal Regulations, in my view the distribution of additional copies of the leaflets cannot be said to be a breach of the duty impliedly imposed upon the respondents by reason of the principle in Short v. Wellings (supra) and Kanan's case (supra). In my view the campaign committee having had additional copies of the leaflet printed, the distribution of them cannot be said to fall within the prohibited use of the resources of the association within the principle merely by reason of the words describing the leaflet as a supplement to "Blueprint". I accept Mr Lawrence's argument that members would not treat those words (as distinct from the message on the leaflet) as meaning that the leaflet had some extra official weight which should influence their minds in considering how to vote - particularly as the terms of the leaflet strongly suggest that it is not an official publication by saying "Preparation and circulation of this leaflet financed by the above people".

I turn lastly to paragraph 3 of the rule to show cause which is in the following terms:
"3. That the Respondents and each of them and all of the persons whose names appear in the said leaflet perform and observe the rules of the Association of Draughting Supervisory and Technical Employees by refraining by themselves their servants or agents, from using the property, resources, machinery or staff of the said organization to support, promote, or defeat candidates or influence voters in the current election being conducted within the organization for the position of Federal Assistant Secretary."

Although I have decided in the respondents' favour as to the distribution of "Blueprint" including the leaflet as an insert, there is evidence that the respondents have used the resources of the association to assist the candidature of Mr Greig and accordingly to disadvantage the applicant in her attempt to persuade the members to elect her to the office of federal assistant secretary.

Asked in cross examination as to who handed out the copies of the leaflet, Mr Whitehead gave the following evidence:
In Victoria, they would have been handed to reps who came in to get them or to other people sending them out - - - taking them out, I mean.

They would have been taken out, I suppose, by organisers on their rounds and so forth?---I imagine they would have.

And distributed whilst they were carrying out their duties as organisers?---I would have thought so, yes.

And you raised no objection to that in your capacity as Victoria secretary?---Providing it does not interfere with their work, none at all.

It is a pretty good network for handing out things personally, you must admit must you not, if you have got all the organisers working for you?---I do not know whether it is good or bad. You know, it is a system that you could use.

Yes?---I imagine the other candidate could as well."
The word "reps" refers to "area representatives" who carry out the functions performed by shop stewards in other unions.

In my opinion the use of either organizers or area representatives to distribute the leaflet to members is conduct which is impliedly prohibited by the rules for the reasons given in Short v. Wellings (supra) and Kanan's case (supra). The evidence is not clear as to the extent to which such conduct occurred.

A question was raised as to whether the Court has a discretion to refuse to make an order if the applicant has otherwise made out her case. Mr Gray argued that s.141 of the Act, which until 1977 plainly conferred a discretion upon the Court to refuse to make an order in favour of an applicant, now, by reason of the amendments to the section in 1977, no longer confers such a discretion. The section in its earlier form included the following:
"s.141(1) The Court may, upon complaint . . . make an order giving directions for the performance or observance of any of the rules of an organization . . . "
The section has been substantially recast and in its present form includes the following provisions:
"s.141 (1) A member of an organization may apply to the Court for an order under this section in respect of the organization.

. . .

(1G) An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.

(1H) The Court has jurisdiction to hear and determine an application under sub-section (1) or (1E) but, before making an order under this section, the Court shall give any person against whom the order is sought an opportunity of being heard.

. . . "

There is much force in the argument advanced by Mr Gray and I do not regard Mr Lawrence's argument based upon s.33 of the Acts Interpretation Act 1973 as being an answer to it. It may be said, in support of the continued existence of the discretion, that until the 1977 amendments to the section, the section had been expressly recognized by the High Court as conferring a discretionary power - see Barrett v. Opitz (1945) 70 C.L.R. 141 at p.163 per Dixon J. and R. v. Spicer and others; Ex parte Foster and others (1958) 100 C.L.R. 163 at p.168. Further, the discretion had been exercised on a number of occasions against the making of an order in favour of an applicant and this had been done both by the Commonwealth Court of Conciliation and Arbitration and by the Australian Industrial Court, e.g. because of delay in bringing the proceedings. In this connection reference may be made to the judgments in Williamson v. Federated Marine Stewards and Pantrymen's Association (1949) 65 C.A.R. 418 and in Mayell v. Waters and others (1967) 11 F.L.R. 317 at pp.322-3. Another exercise of the discretion refusing an applicant's claim occurred in Holmes v. Riordan and Martin (supra at p.198). Indeed, in the former Court Beeby J. in Chapman v. Sear and others (1931) 30 C.A.R. 165, in a passage cited by Dixon J. in Barrett v. Opitz (supra), said:
"It has been held by the Court that this unusual power, vested in the Court as an ancillary power to the hearing and determination of industrial disputes, should not be exercised merely to enable parties to determine their domestic disputes, but that there must be some element of public interest in the matters in issue to justify the Court in exercising this discretionary power."
A similar view was expressed by Foster J. in Carling v. Platt (1953) 80 C.A.R. 283 at p.285.

It is true that judges of the Court in later cases took quite a different view of the section. For example, in Wilson v. Heydon (1944) 53 C.A.R. 482 at p.488 Kelly J. said:
"In my opinion, Parliament intended that the power it reposed in the Court should be exercised to check such action, or to put an end to unauthorized inaction, in all cases where the action or inaction, as the case may be, amounts to a substantial failure to perform or observe the rules of the registered body. Provided the failure be of a substantial nature, it is in other words the duty of the Court to exercise the discretionary power conferred by the section in order to correct it."
His Honour applied the same principles in Miller v. The Building Workers Industrial Union of Australia and others (1947) 59 C.A.R. 836 at p.843 and in Woodward v. Scott and others (1947) 59 C.A.R. 918 at p.926. However, Kelly J. expressly acknowledged (at p.926) that it was "a special discretionary power. The discretion implied must be exercised according to the exigencies of time and circumstances".

It may be argued, that if it was Parliament's intention by enacting the 1977 amendments to take away such a well recognized discretion to refuse to make an order under s.141, it would have expressed that intention more clearly than has been done in the section in its present form. As Mr Lawrence pointed out s.141 (1H) in conferring jurisdiction does not say that the Court shall make an order.

However, the question of whether the discretion still exists has not been argued at length as it was only raised during the course of final addresses. Further, because the election the subject of these proceedings is already in progress, this judgment has been prepared for delivery as a matter of urgency and there has not been the opportunity for full consideration and reflection upon the question of discretion. As that question is one of quite fundamental importance, in all the circumstances I consider that I should not decide the question in this case. I merely say that I agree with the Full Court in its statement in McLeish v. Faure (1979) 25 A.L.R. 403 at p.410 that "doubts may arise whether the court has a discretion to refuse to make an order giving directions for the performance or observance of rules when a claimant otherwise makes out a case under s.141".

I accept Mr Gray's submission that, having regard to those doubts as to whether the discretion still exists, the Court should not exercise its discretion - assuming that it exists - in this case against the applicant. Accordingly, in my opinion an order should be made in the terms of paragraph 3 of the rule to show cause except for the omission of the words "and all of the persons whose names appear in the leaflet". In R. v. Forbes; Ex parte Bevan (1972) 127 C.L.R. 1 Menzies J., with whom Barwick C.J., Walsh and Stephen JJ. agreed, said (at p.7) that such an order:
". . . would have been outside the power conferred upon the Court by s. 141 which in terms requires the Court as a condition of making an order under the section to give 'any person against whom an order is sought an opportunity of being heard'. No such opportunity was given to the applicants before the order was made."