Verner v Johnston

[2000] FCA 447

FEDERAL COURT OF AUSTRALIA

Verner v Johnston [2000] FCA 447

JOHN VERNER v CRAIG JOHNSTON, DARREN NELSON, VINCE THEUMA, PAUL WISNIEWSKI, STEVE DARGAVEL, GARY ROBB, VICTOR JOSE and LINDA POPE

V164 of 2000

RYAN J
MELBOURNE
6 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V164 of 2000

BETWEEN:

JOHN VERNER
APPLICANT

AND:

CRAIG JOHNSTON
FIRST RESPONDENT

DARREN NELSON
SECOND RESPONDENT

VINCE THEUMA
THIRD RESPONDENT

PAUL WISNIEWSKI
FOURTH RESPONDENT

STEVE DARGAVEL
FIFTH RESPONDENT

GARY ROBB
SIXTH RESPONDENT

VICTOR JOSE
SEVENTH RESPONDENT

LINDA POPE
EIGHTH RESPONDENT

JUDGE:

RYAN J

DATE OF ORDER:

6 APRIL 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.   Terry Bradley and Debbie Quarrell be joined as ninth and tenth respondents in these proceedings.

2.   Each of the ninth and tenth respondents be restrained until the directions hearing in this matter on 9 June, 2000 from publishing, distributing or displaying any material containing the “unofficial AMWU Eureka Southern Cross” symbol with or without the words “Putting workers first” referred to in paragraph 9 of Mr Verner’s affidavit of 19 March, 2000 and contained in exhibit “JPV-5”.

3.   Each of the ninth and tenth respondents give to Mr Roe any material under his or her control containing the “unofficial AMWU Eureka Southern Cross” symbol with or without the words “Putting workers first” referred to in paragraph 9 of Mr Verner’s affidavit of 19 March, 2000 and contained in exhibit “JPV-5” which is union property.

4.   Each of the ninth and tenth respondents give to Mr Roe any copies of the “1999 Trade Manual referred to in the affidavit of Mr Dodd and exhibited as “SWD-8” of which either of them becomes aware of and over which he or she has control;

5.   A copy of this order, the order of the Court made on 24 March, 2000 and each affidavit and the exhibits thereto (other than “JPV-1”) filed on behalf of the applicant be served personally on the ninth respondent.

6.   A copy of this order together with a copy of the order of the Court made on 24 March, 2000 and of each affidavit and the exhibits thereto (other than “JPV-1”) filed on behalf of the Applicant be served on the tenth respondent by leaving it in an envelope addressed to “Debbie Quarrell” at the office of the AMWU at 43A Robinson Street, Dandenong, Victoria.

7.   Upon the first to eighth respondents by their solicitors undertaking:

“until the Directions Hearing in this matter on 9 June 2000:

1.not to publish, distribute or display any material containing the “unofficial AMWU Eureka Southern Cross” symbol with or without the words “Putting Workers First” referred to in paragraph 9 of Mr Verner’s Affidavit of 19 March, 2000 and contained in exhibit “JPV5”.

2.to give Mr Roe any such material under their direction and control which is union property,  and

3.to give to Mr Roe any such material, including copies of which they become aware and over which they have control of the 1999 trade manual referred to in the affidavit of Mr Dodd and exhibited “SWD-8”;

liberty be reserved to any party to apply on not less than 24 hours notice in writing to the other parties and the motion on notice dated 4 April 2000 be otherwise dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V164 of 2000

BETWEEN:

JOHN VERNER
APPLICANT

AND:

CRAIG JOHNSTON
FIRST RESPONDENT

DARREN NELSON
SECOND RESPONDENT

VINCE THEUMA
THIRDRESPONDENT

PAUL WISNIEWSKI
FOURTH RESPONDENT

STEVE DARGAVEL
FIFTH RESPONDENT

GARY ROBB
SIXTH RESPONDENT

VICTOR JOSE
SEVENTH RESPONDENT

LINDA POPE
EIGHTH RESPONDENT

JUDGE:	RYAN J
DATE:	6 APRIL 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a motion on notice by the applicant dated 4 April 2000 seeking further interlocutory relief in this action which, in a substantive sense, is for orders requiring the respondents to perform and to observe the rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, which is generally known, and to which I shall refer, as “the AMWU”. 

2. On 28 March this year, Counsel for the respondents gave the following undertaking (“the undertaking”) to the Court.

   “Mr Johnston and Mr Nelson undertake, until the directions hearing in this matter on 6 June, 2000, not to publish, distribute or display any material containing the "unofficial AMWU Eureka Southern Cross" symbol referred to in paragraph 9 of Mr Verner's affidavit of 19 March, 2000 and contained in exhibit JPV-5 and to give Mr Roe [the State Secretary of the AMWU] any such material under their control which is union property and to require that the respondents do the same as has been undertaken by Mr Johnston and Mr Nelson.”

3. The applicant asserts that, since the undertaking was given, there have been distributed copies of a sticker and a trade manual in circumstances which suggest a breach of the undertaking.  Some of those allegations have been directed in particular to the fourth respondent, Mr Wisniewski, who, it is suggested, has had under his control numerous copies of the trade manual and has failed to deliver them to Mr Roe in accordance with the undertaking. 

4. Mr Wisniewski has affirmed an affidavit on 6 April deposing that he was not aware of the undertaking until 5 April.  He explains that he had a rostered day off and took one day's leave from his work as an organiser in the Metals Division of the AMWU on 3 and 4 April, and on those days assisted a Mr Dias, an unemployed metalworker, to campaign for the Workers First Group in the forthcoming election. 

5. Mr Wisniewski acknowledged that a dozen or so boxes of the trade manuals had been stored in his office in the fortnight leading up to 30 March this year.  They were subsequently removed from his office and he is unable to say what has become of them.  There is evidence that copies of the trade manual had been distributed by Mr Dias on 3 and 4 April, and on 4 April by Mr Bradley, another union member who is a candidate for election as an organiser in the Metals Division of the AMWU and who is on the Workers First ticket.

6. There is also evidence that a Ms Quarrell, an employee of the AMWU and a supporter of the Workers First faction, has been using a union-owned motor vehicle bearing the unofficial AMWU Eureka Southern Cross symbol and the slogan "Workers First".  As to that matter, the first respondent, Mr Johnston, has deposed in paragraph 7 of his affidavit: 

   “I have not spoken with Ms Quarrell for some weeks.  She is a member of the Food and Confectionary Division of the union and I have no authority over her, nor do I have any regular contact with her.  I had no knowledge that she may have been driving a vehicle with a sticker on it which apparently was the subject of the undertaking which I have given to the Court.  I believe that there are a number of cars in the union car pool which are not assigned to any particular official which may have stickers on them supporting the Workers First group.  These cars are under the direct control of Mr Roe.  Those stickers may have the unofficial AMWU Eureka Southern Cross symbol on them.  It is possible that the driver of one of the cars from the union car pool may not be a supporter of the Workers First group or indeed responsible for putting the sticker on the vehicle. “

7. The applicant has also drawn attention to the distribution on 4 April in the Workers First interest of a leaflet which is exhibit JPV19 to Mr Verner's affidavit and which I shall annex as Schedule A to these reasons.  Similar emblems or logos have also been reproduced at the foot of each side of a leaflet headed, "To All AMWU Shop Stewards and Members - National Election."  I refer in that regard to exhibit JPV21 to Mr Verner's third affidavit.  The same emblems or logos are also reproduced on a sticker, exhibit JPV20, which I shall annex as Schedule B to these reasons. 

8. I accept, necessarily without having had the benefit of cross-examination, that some publication or distribution of material, to which the undertaking was directed, has occurred inadvertently or before the effect of the undertaking had been communicated to all respondents and other persons campaigning in the same interests.  I am not disposed to grant any interlocutory injunctive relief by way of reinforcing the undertaking against the existing respondents.  However, I have been persuaded that I should add Mr Bradley and Ms Quarrell as respondents and make interlocutory orders against them effectively in the same terms as those of the undertaking unless they forthwith proffer a similar undertaking.

9. As I indicated in the course of discussion with Counsel, I am more troubled by the presence on Schedules A and B to these Reasons of the two stylised “Eureka” Southern Cross symbols which are reproduced as the third and fourth logos at the foot of each of those documents.  If, when the undertaking was given, the respondents implicitly reserved to themselves the right to use those symbols on campaign material, provided that use was not in conjunction with the slogan “Putting Workers First”, I consider that obligations of candour could be regarded as requiring the disclosure of that reservation at the time when the undertaking was given.  However, I make no finding about that matter or about the understanding of the respondents of the undertaking.  An undertaking has been proffered on behalf of the second respondent, Mr Nelson, not to publish, distribute or display any material containing the unofficial AMWU Eureka Southern Cross symbol with or without the words "Putting Workers First". 

10. I am therefore disposed not to frame interlocutory relief directed against Mr Nelson in respect of that matter.  However, in the absence of similar undertakings from the other respondents, I would be disposed to grant interlocutory injunctions against each of them in terms effectively the same as those of the revised undertaking which has been offered on behalf of Mr Nelson.  That revised undertaking will prevent the continued publication, distribution or display in their present form of Schedules A and B to these reasons, and also of the two-sided document which is exhibit JPV21 to Mr Verner's third affidavit.

11. As far as concerns the other three logos appearing at the foot of Schedules A and B to these reasons, which have been called “official logos”, I regard it as a question of fact to be answered in the light of the impression created by the particular electioneering material to which they are attached whether their use amounts to a use of the resources of the organisation to promote the interests of one or more candidates in the election or to defeat one or more other candidates in the same election.

12. In Saddington v Oliver (1993) 48 IR 115, Gray J, although dismissing the claim for interim orders, was able to say at page 116:

    “It is convenient for me to deal first with the second order, that relating to the union logo.  The claim for this order stems from the fact that the respondents have distributed pamphlets, supporting their election campaign and bearing two logos.  One is the official logo of the union.  The other is the official logo of an organisation which, by amalgamation, became part of the union.  There is little doubt that the appearance of the logos is intended to enhance the electoral prospects of the respondents.  The question is whether there is involved any breach of the rules which can be remedied by order against the respondents, pursuant to section 209 of the Act.”

13. In the present case I am not able to reach a similar conclusion that there is little doubt that the use of the official logos in Schedule A was intended to enhance the electoral prospects of candidates in the “Workers First” interest.  On the other hand, the size and prominence of those logos in the sticker, which is Schedule B to these reasons, and the sparseness of other text appearing on that sticker, does arguably create the impression that the use of the logos is intended to convey that the “Workers First” team has the sanction or endorsement of some official organ of the AMWU or the predecessor unions identified by the logos.  However, since the undertakings to which I have earlier referred will preclude any further distribution of either Schedule A or Schedule B in their present form, it is unnecessary at present to frame any injunctive relief or extract any undertaking in relation to the official logos.

14. Subject to any further submissions that Counsel might wish to make, I shall accept undertakings formulated in the terms indicated in the reasons which I have just given.  I shall make further orders adding Mr Bradley and Ms Quarrell as respondents in accordance with what I have just said.  If undertakings corresponding to the revised undertaking which has been offered on behalf of Mr Nelson are not forthcoming from any other respondents I shall, as I indicated, frame interlocutory relief in similar terms directed to those respondents.  There will be liberty to any party to apply on not less than twenty-four hours notice in writing to the other parties. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            6 April 2000

Counsel for the Applicant:	Mr D Murphy
Solicitor for the Applicant:	Holding Redlich
Counsel for the Respondent:	Mr P Rozen
Solicitor for the Respondent:	Howie & Maher
Date of Hearing:	6 April 2000
Date of Judgment:	6 April 2000