Western Newspapers Pty Limited v Warren
[1994] IRCA 117
•02 December 1994
CATCHWORDS
COURTS - whether Chief Industrial Magistrate is a court of competent jurisdiction for purposes of federal law
INDUSTRIAL LAW - meaning of awards - meaning of obscure provision - relevance of history of awards - whether words are surplusage - meaning of definition
Industrial Relations Act 1988, s 177A, "court of competent jurisdiction"
Cockle v Isaksen (1957) 99 CLR 155
New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173
Taylor v The Gordon Frost Organisation Pty Ltd (1991) 52 IR
401
The Commonwealth v Hospital Contribution Fund of Australia
(1982) 150 CLR 49
Harris v Caladine (1991) 172 CLR 84
Leeth v The Commonwealth (1992) 174 CLR 455
Short v FW Hercus Pty Ltd (1993) 40 FCR 511
Codelfa Construction Pty Ltd v State Rail Authority of NSW
(1982) 149 CLR 337
Beckworth v The Queen (1976) 135 CLR 569
Re Strand Music Hall Co Ltd [1865] 35 Beave 153
S.A Maritime et Commercial of Geneva v Anglo Iranian Oil Co
Ltd (1954) 1 WLR 492
N.G.L Properties Pty Ltd v Harlington Pty Ltd (1979) VR 92
Re O'Brien (1975) 1 NZLR 688
Stewart v Woorabinda Aboriginal Council, 17 March 1993,
unreported Federal Court, Drummond J
Hungry Jacks Pty Ltd v Wilkins (1991) 71 WAIG 1751
No. NI 115 of 1994
WESTERN NEWSPAPERS PTY LIMITED & anor v CHRISTOPHER WARREN
MOORE J
SYDNEY
2 DECEMBER 1994
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 115 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: WESTERN NEWSPAPERS PTY LIMITED
First Applicant
DANIEL BROS & CO PTY LIMITED
(In liquidation)
Second Applicant
AND: CHRISTOPHER WARREN
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 2 December 1994
ORDER OF THE COURT
THE COURT ORDERS THAT:
The appeal is adjourned to enable the parties to bring in short minutes of orders to give effect to the reasons for judgment.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) No. NI 115 of 1994
)
NEW SOUTH WALES DISTRICT REGISTRY )
BETWEEN: WESTERN NEWSPAPERS PTY LIMITED
First Applicant
DANIEL BROS & CO PTY LIMITED
(In liquidation)
Second Applicant
AND: CHRISTOPHER WARREN
Respondent
JUDGE: Moore J
PLACE: Sydney
DATE: 2 December 1994
REASONS FOR JUDGMENT
On 29 March 1994 an appeal was lodged by Western Newspapers Pty Ltd ("Western Newspapers") and Daniel Bros & Co Pty Ltd (in liquidation) ("Daniel Bros") under s56 of the Industrial Relations Act 1988 ("the Act") against a judgment of 8 March 1994 of the Chief Industrial Magistrate in New South Wales, Miller C.I.M..
Notwithstanding the repeal of s56 by the Industrial Relations Reform Act 1993 ("the Reform Act"), the appeal can be dealt with by the Industrial Relations Court of Australia: see s64 of the Reform Act. The respondent is the Joint Federal Secretary of the Media Entertainment and Arts Alliance which arose from the amalgamation of a number of unions including the Australian Journalists Association ("AJA").
The judgment of Miller C.I.M. concerned proceedings instituted by the respondent under s178 of the Act alleging that the applicants had breached the terms of an award or awards, namely the Journalists' (Regional Daily Newspapers) Award 1982 and successors to that award made in 1989 and 1991 though the award made in 1989 was, in fact, a comprehensive variation of the award made in 1982. The alleged breach was the failure to pay Mr Oberg, an employee of initially Daniel Bros and later Western Newspapers, the entire salary said to be due to him under those awards. In this judgment I refer to the relevant award as the Daily Award preceded by the year of its making unless the context requires a fuller description or permits a more limited one. The Journalists' (Regional Daily Newspapers) Award 1982 becomes the 1982 Daily Award. Similarly I refer to other related awards such as the Journalists' (Provincial Non-Daily Newspapers) Award 1982 as the 1982 non-Daily Award.
Section 56 permitted an appeal to the Federal Court of Australia from "a judgment of a State court". In the present case Miller C.I.M. determined the question of liability for the alleged breaches but did not go on to determine the amounts of any underpayment or what penalties should be imposed. The applicants submitted that the determination of liability by his Worship constituted a judgment for the purposes of s56 and referred to Ah Toy v Registrar of Companies (1985) 10 FCR 280, Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 and Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90. However no issue was raised by the respondent concerning the competency of the appeal and I am prepared to deal with it on the basis that the judgment of Miller C.I.M. is a judgment for the purposes of s56. The submission that it was a judgment was one of substance: compare Cockle v Isaksen (1957) 99 CLR 155 at 161.
Further there was no issue about the nature of the appeal and both parties accepted that the appeal raises, in substance, an issue of construction of the relevant awards and their application to the circumstances apparent from the evidence.
The facts
The facts giving rise to the proceedings before Miller C.I.M. were, in the main, uncontentious. They concerned three general areas. The first was the nature of the publishing activities of Daniel Bros and later Western Newspapers, the second was the nature and history of the employment of Mr Oberg, and the third was the history of the relevant awards. Certain facts were agreed and were firstly:
Mr Leon Oberg was employed by Daniel Brothers & Co Pty Limited from 3 July 1985 to 30 June 1989.
Mr Leon Oberg was employed by the company variously known as Western Newspapers Limited and Western Newspapers Pty Limited from 1 July 1989 to the present time. The Company's name was Western Newspapers Limited until 11 May 1992 and Western Newspapers Pty Limited from 12 May 1992.
From 3 July 1985 to the present time Mr Leon Oberg has been employed as the editor of Town and Country Magazine.
On 1 July 1989 there was a transmission from Daniel Brothers & Co Pty Limited to Western Newspapers Limited of the business of publishing the following publications:
Goulburn Post;
Highlands Post;
Town and Country Magazine; and
Saturday Post.
Mr Leon Oberg has been a financial member of the Australian Journalists' Association, then a registered organisation under the Act and a financial member of its successor, the Media Entertainment and Arts Alliance, a registered organisation under the Act from 3 July 1985 to date."
and secondly:
In the period from 3 July 1985 to the present time, Mr Leon Oberg has been paid in accordance with the Journalists' (Provincial Non-Daily Newspapers) Award from time to time in force, under protest from his union on his behalf since January 1990.
Persons employed in relation to Goulburn Post are paid in accordance with the Journalists (Regional Daily Newspapers) Award.
On 12 May 1992, Western Newspapers Limited changed its name to Western Newspapers Pty Limited.
In the period 3 July 1985 to the present time, Mr Leon Oberg had sole editorial responsibility for Town and Country Magazine.
In the period 3 July 1985 to the present time, Town and Country Magazine has been published once each week for 50 weeks each year.
Every copy of Town and Country Magazine distributed each week is identical, irrespective of the publication in which it is inserted for distribution.
The Australian Journalists' Association wrote a letter dated 30 March 1982 to Mr Deputy President Keogh of the Australian Conciliation and Arbitration Commission.
8.1In the period 3 July 1985 to the present time, Town and Country Magazine has been distributed by way of insert in certain publications. A list of those publications, the frequency with which they are published and the edition in which Town and Country Magazine is inserted are listed below:
Title of Publication in which Town and Country Magazine is inserted
Frequency with which that publication is published
Edition of that publications in which Town and Country Magazine is inserted
Goulburn Post
Six days per week
Tuesday
Highlands Post
Bi-Weekly
Friday
Tallaganda Times
Weekly
Wednesday
Yass Tribune
Bi-Weekly
Wednesday
Camden Crier
Weekly
Tuesday
Picton News
Weekly
Thursday
Milton Ulladulla Express
Bi-Weekly
Friday
Shoalhaven & Nowra News
Bi-Weekly
Wednesday
Bega News
Bi-Weekly
Friday
Eden Magnet
Bi-Weekly
Thursday
Narooma News
Weekly
Wednesday
Moruya Examine
Bi-Weekly
Wednesday
Bateman's Bay Post
Bi-Weekly
Wednesday
Cooma Monaro Express
Tri-Weekly
Thursday
Bombala Times
Weekly
Wednesday
Crookwell Gazette
Bi-Weekly
Tuesday
8.2Relatively recently Town & Country Magazine has begun to be distributed on each Friday in the Summit Sun which is published weekly.
Both Chris Warren and Walter Pearson are officers of the organisation whose member is affected and are so authorised under its rules and have been so authorised to sue on behalf of the organisation and its member."
The Goulburn Post is, for present purposes, a regional daily newspaper and was accepted as such by both the applicants and the respondent notwithstanding that it is not published on every day of the week. I will consider some of the evidence in more detail as I consider the issues raised. Both the applicants and the respondent referred extensively to historical and other material to support their construction of the relevant awards and neither suggested that any of it might not be relied to for that purpose with, perhaps, one exception which I refer to later.
The issues
The first issue is whether the Chief Industrial Magistrate had jurisdiction to hear and determine the proceedings brought under s178. The second is whether the employment of the editor of the Town and Country Magazine, Mr Oberg, was employment to which the terms of the 1982, 1989 and 1991 Daily Awards applied. This raises the question of whether the magazine is an Associated paper as that expression is defined in those awards and whether, in any event, these Daily Awards apply to the employment of journalists employed in the publication of any paper or journal which is not a regional daily newspaper.
The jurisdiction of the Chief Industrial Magistrate
The first issue concerns the character of the forum in which the proceedings under s178 were commenced. Section 178(1) empowers a court of competent jurisdiction to impose a penalty when a term of an award has been breached and by necessary implication invests that court with jurisdiction to hear and determine an application alleging its breach. The expression "court of competent jurisdiction" in s178 is relevantly defined in s177A as a "Local Court" or a "magistrate's court" which, in turn, is defined in s4 in the following way:
"'magistrate's court' means:
(a)a court constituted by a police, stipendiary or special magistrate;
(b)a court constituted by an industrial magistrate who is also a police, stipendiary or special magistrate; or
(c)in Tasmania - a Court of Requests;"
The Chief Industrial Magistrate is appointed under s735 of the Industrial Relations Act 1991 (NSW) ("the NSW Act") which enables a Magistrate to be appointed as an Industrial Magistrate who in turn might be appointed the Chief Industrial Magistrate. From this point I will refer only to the office of the Chief Industrial Magistrate though provisions I discuss also apply to Industrial Magistrates. Subsection 736(1) identifies the jurisdiction of the Chief Industrial Magistrate by identifying in a list, the Acts, including the NSW Act, which confer jurisdiction and it refers, at the conclusion of the list, to "Any other Act which provides that proceedings under that Act may be dealt with by an Industrial Magistrate". Subsection 736(2) provides:
"The Chief Industrial Magistrate or other Industrial Magistrate constitutes a Local Court when exercising that jurisdiction."
The applicants submitted that to the extent that s736(2) deems the Chief Industrial Magistrate to be a Local Court, it does so for a limited purpose, namely exercising jurisdiction under New South Wales laws. The reference in s736(1) to "Any other Act" is to laws made by the Parliament of New South Wales: see ss65 and 66 of the Interpretation Act 1987 (NSW). They submitted that the NSW Act does not otherwise constitute a court composed of a Chief Industrial Magistrate and this can be illustrated by comparing ss735 and 736 with s288 of the NSW Act which establishes an institution, the Industrial Court of New South Wales, comprised of judges appointed to it. Reference was also made to similar effect to ss6, 7 and 12 of the Local Courts Act 1982 (NSW) which both establish local courts and provides for the appointment of magistrates. The applicants referred to the dissenting judgment of Mahoney JA in New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173.
The respondent referred to a decision of the Chief Industrial Magistrate in Taylor v The Gordon Frost Organisation Pty Ltd (1991) 52 IR 401 which concerns generally the same issue I am considering though was decided before the enactment of the NSW Act. The respondent submitted the Chief Industrial Magistrate is a Local Court or magistrate's court for the purposes of s177A.
The definition in s177A of court of competent jurisdiction includes, when read with the definition of magistrate's court, a court constituted by an industrial magistrate who is also a stipendiary magistrate. The Chief Industrial Magistrate is an industrial magistrate for the purposes of that definition and is also a stipendiary magistrate having regard to s735(1) of the NSW Act and s12(3) of the Local Courts Act 1982. The office of Chief Industrial Magistrate is also, by operation of s736(2) of the NSW Act, a Local Court when exercising jurisdiction under the Acts identified in s736(1).
The source of the Commonwealth Parliament's power to confer federal jurisdiction on a state court is s77(iii) of the Constitution which speaks of "(i)nvesting any court of a State with federal jurisdiction". In The Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 the High Court determined that "court of a State", for the purposes of s77(iii) of the Constitution and s39(2) of the Judiciary Act 1903 meant the court as an institution and not the persons who composed it in circumstances where there was an issue about whether a Master of the Supreme Court of New South Wales was part of a state court when s25 of the Supreme Court Act 1970 (NSW) indicated that the Court was composed of the Judges appointed by the Governor. In the present case s736(2) has the effect of creating a court comprised of the holder of the office of Chief Industrial Magistrate. The definition of magistrate's court in s4 of the Act relates to a court established under state law for the purposes of state law as does the reference in s177A to a Local Court. Plainly those provisions are intended to operate on a court so established and it is presently immaterial that it is, for the purposes of the state law, established as a court for specified purposes. When the Commonwealth Parliament invests a state court with federal jurisdiction it takes the court as it finds it: see Harris v Caladine (1991) 172 CLR 84 at 92 per Mason CJ and Dean J, at 107 per Brennan J, at 117 per Dawson J, at 138 per Toohey J, at 143 per Gaudron J and at 158 per McHugh J: see also Leeth v The Commonwealth (1992) 174 CLR 455 at 469.
The applicants relied on the judgment of Mahoney J in Muirhead, supra and referred to the following at 212:
"There may, no doubt, be cases in which an individual is invested with judicial functions and he is invested in such a way that, for purposes of contempt he is a court. Form is not the final determinate in this regard. But if, as I have said, the contempt power is designed exclusively to protect courts, the matter in which the individual or body is structured is relevant. In the present case, as I have said, the legislature took the course of investing individuals with powers rather than of creating a body or institution."
As is apparent from that passage, the Court of Appeal was considering whether a Commissioner appointed under the Workers Compensation Act 1987 (NSW) was a court for the purposes of the law of contempt. I do not see that decision as of any real assistance in the present case which concerns what is intended by the provisions of s177A of the Act having regard to the provisions of the NSW Act and s736(2) in particular.
Moreover there is nothing I discern in the nature of the office of Chief Industrial Magistrate which comprises the court that would suggest that its status as a court conferred by s736(2) does not reflect the character of the office. It is clear from s736(3) that the procedures of the Chief Industrial Magistrate are generally to be those regulating Local Courts. In Taylor, supra, Miller C.I.M. concluded that the "essential function of the work performed by the industrial magistrate is judicial in character" and that the reference to a "court" in s178 was to a person or body exercising judicial power. At that time the definition presently in s177A was found in s178. I have not made an exhaustive analysis of the jurisdiction of the Chief Industrial Magistrate under the Acts listed in s736(1). However such analysis as I have made shows that the jurisdiction is typically to determine applications for penalties or for the recovery of entitlements under, for example, the Long Service Leave Act 1955 or the Annual Holidays Act 1944. The recovery and enforcement powers exercised by the Chief Industrial Magistrate under ss92 and 93 of the Industrial Arbitration Act 1940 concerning awards and referred to in Taylor, supra, are now found in ss151 and 156 of the NSW Act and continue to form part of the jurisdiction of the Chief Industrial Magistrate.
What appears to me to be the nature of the jurisdiction of the Chief Industrial Magistrate accords with the conclusion reached as a result of the comprehensive consideration by the Chief Industrial Magistrate of his jurisdiction in Taylor, supra. While the immediate source of the jurisdiction has altered since then as a result of the enactment of the NSW Act, much of the detailed analysis by his Worship remains compelling as does the conclusion that the essential function of the work performed by the industrial magistrate is judicial in character.
Having regard to s736 of the NSW Act, and the nature of the jurisdiction of the Chief Industrial Magistrate, his Worship sat as a court of competent jurisdiction as defined in s177A when determining the matter the subject of this appeal.
The issue of construction arising in relation to the most recent Journalists (Regional Daily Newspapers) Award
The second issue raised in the appeal is whether the succession of awards applying to regional daily newspapers made between 1982 and 1991 applied to the employment of Mr Oberg. If not, whether the succession of awards applying to regional non-daily newspapers made in that period applied. This involves the construction of the relevant awards.
I take the most recent award, the Journalists (Regional Daily Newspapers) Award 1991 ("the 1991 Daily Award"), to illustrate the issue of construction that is raised. Clause 4 of the 1991 Daily Award is entitled "Scope and Parties Bound" and relevantly provides:
"4 - SCOPE AND PARTIES BOUND
(a)Subject to the provisions of clause 5 hereof, this award shall be binding upon the employers named in schedule A and The Australian Journalists Association and its officers and members in the Commonwealth of Australia in respect of all work to be done by members of the said Association (hereinafter called "members"), for the said employers (hereinafter called employers") in the various engagements in the industry of journalism in its literary, artistic and photographic branches and/or the gathering, writing or preparing of news matter or news commentaries which they have gathered, written or prepared."
Clause 3 provides:
"This award rescinds and replaces the Journalists' (Regional Daily Newspapers) Award 1989 made on 11 September 1989 in respect of regional daily newspapers but no right, obligation or liability accrued or incurred under any such previous award or agreement shall be affected hereby."
Clause 8 is entitled "Definitions" and contains a number of definitions including the following:
"'Associated paper' means a newspaper or journal published by an employer and not issued daily."
The expression Associated paper does not appear at any other point in the award. The applicants contended that this award has no application to an employee who is not engaged in the publication of a regional daily newspaper and the Town and Country Magazine is not such a publication. The respondent contended that the Town and Country Magazine is an Associated paper, as defined, and the award is intended to apply to employees engaged in the publication of an Associated paper. The applicants submitted that even if the award does apply to Associated papers, the Town and Country Magazine is not such a paper. The award provides no clear unambiguous indication of its scope and it is necessary to consider its present terms having regard to its antecedents beginning in 1946.
The development of the Regional Daily Awards
The first award to apply only to journalists and related employees working on provincial daily newspapers was made in 1946 (57 CAR 939) ("the 1946 Daily Award").
The award preceding the 1946 Daily Award had been made in 1939 (40 CAR 631) and applied not only to provincial daily newspapers but newspapers published less frequently. This award was divided into three divisions, two of which applied to newspapers published in Newcastle (one division for journalists and the other for artists and photographers) and another division of more general application. The two divisions applying to journalists contained definitions of "morning paper" and "evening paper" which were defined as "a morning daily newspaper" and "evening daily newspaper" respectively. The clauses specifying wages for journalists did so by specifying different rates of pay which depended upon the town or, in some instances, the publication involved as well as whether, in some instances, it was a morning or evening newspaper.
The 1946 Daily Award contained a definition of Associated paper in clause 1 - "Application and Definitions". That definition was in identical terms to the definition appearing in the 1991 Daily Award. Clause 1 also defined morning and evening papers in the following way:
"(a)"Morning paper" means a morning daily newspaper.
(b)"Evening paper" means an evening daily newspaper."
The 1946 Daily Award contained both a definition of Associated paper and the following clause:
"EVENING AND ASSOCIATED PAPERS
(a) The minimum weekly rates of payment to a classified member employed on an Associated paper, except where otherwise specifically directed shall be-
(i)Morning paper rates as prescribed in clause 2 of this Division for a member whose duty requires him to work after 8 p.m. on three or more nights a week.
(ii)Evening paper rates as prescribed in clause 2 of this Division for a member whose duty does not require him to work after 8 p.m. on three or more nights a week.
(b) If the regular duty of a member solely employed on an evening paper requires him to work after 8 p.m. on three or more nights a week, he shall be paid at morning paper rates as prescribed in clause 2 of this Division."
This clause not only identified a means of determining the rates to be paid to employees employed on an Associated paper, but did so by reference to when an employee might be required to work in the evening. That requirement was also identified as a factor which altered the rate of pay for an employee working on an evening paper, that is, a daily paper.
The clause "Application and Definitions" contained definitions and, in addition, a provision that limited the operation of the award as it applied to editors and another provision that required wages to be paid weekly. It was not simply a definitions clause. The preamble to the 1946 Daily Award was, in essence, a scope clause and it provided:
"All work to be done by members of the Australian Journalists Association (hereinafter called members) for the respondents (hereinafter called the employers) in the various employments in the industry of journalism shall be carried on and performed in the Commonwealth of Australia at the minimum rates of payment and within the hours of employment and upon the other terms and conditions set out in the schedule hereunder as applicable to each of such employments until the end of the last pay period in June, 1951. The rates of pay as herein prescribed shall apply on and from the beginning of the first pay period to commence in July, 1946, and all other terms and conditions on and from the beginning of the first pay period to commence in September, 1946 except where otherwise specifically provided."
An award was made in 1951 (73 CAR 249), substantially by agreement, which superseded the 1946 Daily Award and the 1951 Daily Award perpetuated the definition of Associated paper and a clause prescribing the rates for employees employed on an Associated paper of the type found in the 1946 Daily Award. Morning and evening papers were defined in the following way:
"(a)"Morning paper" means a morning daily newspaper published on at least five days a week.
(b)"Evening paper" means an evening daily newspaper published on at least five days a week."
The next award was made in 1956 (84 CAR 561). The 1956 Daily Award repeated the definition of Associated paper but it no longer contained a provision which dealt with the rates of pay for employees employed on an Associated paper. In a clause of general application it provided rates of pay for "members employed on newspapers published in the following cities or towns". A list of groups of towns followed and a rate of pay prescribed for that group. The prescription of rates was by reference to whether the employee was engaged in publishing a morning and evening newspapers. The rescission and scope clauses of the 1956 Daily Award provided:
"RESCISSION OF AWARDS AND AGREEMENTS
This award rescinds all previous awards under the Conciliation and Arbitration Act 1904-1955 in respect of provincial daily newspapers and all agreements under the said Act in respect of provincial daily newspapers between the parties to this award, but no right, obligation or liability accrued or incurred under any such previous award or agreement shall be affected hereby.
SCOPE AND PARTIES BOUND
Subject to the provisions of clause 5 hereof, this award shall be binding upon the employers named in the schedule hereto and upon The Australian Journalists Association and its officers and members in the Commonwealth of Australia in respect of all work to be done by members of the said Association thereinafter called 'members') for the said employers (hereinafter called 'employers') in the various engagements in the industry of journalism in its literary, artistic and photographic branches and/or the gathering, writing or preparing news matter or news commentaries which they have gathered, written or prepared."
It is to be noted that the rescission clause speaks of rescinding awards "in respect of provincial daily newspapers" though plainly the previous award, the 1951 Daily Award, applied not only to employees in provincial daily newspapers but also to employees on Associated papers. Morning and evening papers were defined in the following way:
"(b)"Morning paper" means a morning newspaper published on five or more days per week.
(c)"Evening paper" means an evening newspaper published on five or more days per week."
The general pattern reflected in the 1956 Daily Award continued thereafter (further awards were made in 1959, 1965 and 1970) and was found in the 1982, 1989 and 1991 Daily Awards which are the awards said by the respondent to apply to Mr Oberg's employment. However the 1982 Daily Award was the last in which the definitions of morning and evening newspapers were found. They were omitted in the definitions clause in the 1989 Daily Award. That general pattern was a scope clause lacking any precision, a definition of Associated paper but no other reference in the text of the award indicating what application, if any, it has to journalists engaged on the publication of Associated papers. I will return to consider the 1946, 1951 and 1956 Daily Awards in more detail shortly.
The concurrent development of the Provincial Non-Daily Award
I have already referred to the 1939 award which applied to provincial newspapers whether daily or not.
During 1946 two logs of claims were served by the AJA which gave rise to two disputes. One finding of dispute recorded by the Court of Conciliation and Arbitration referred to employees "employed in or in connexion with the provincial (other than daily newspapers) section of the industry" and the other to employees in "the provincial daily newspaper section of the industry". From the latter dispute arose the 1946 Daily Award which I have already discussed. It was based on a log of claims that contained a definition of Associated paper and a claim that members employed on Associated papers be paid morning or evening paper rates depending on when the member might be required to work in the evening.
The other dispute was dealt with by the Commonwealth Court of Conciliation and Arbitration in 1947 and gave rise to an award made by consent, which had no title, concerning employees engaged in the production of provincial non-daily newspapers (59 CAR 318). In the brief judgment of Foster J, it is recorded that the agreement (which became the award) deals with provincial tri-weekly, bi-weekly and weekly newspapers. That award was succeeded by an award made in 1952 entitled the Journalists' (Provincial Non-Daily Newspapers) Award and further awards were made in 1959, 1965, 1971, 1979 (by comprehensive variation of 1971 award), 1981 (by comprehensive variation of the 1971 award), 1982 and 1991 (by comprehensive variation of the 1982 award).
The composition of and changes to the respondency to the relevant awards
The rescission clauses and scope and parties bound clauses of the Daily Award and the Non-Daily Award which applied at any particular time during the period 1946 to 1991 were in essentially the same terms. The scope and parties bound clauses recited that the award bound the employers listed in a schedule and the AJA "in the various engagements in the industry of journalism in its literary, artistic and photographic branches... (etc)" (see clause 4 of the 1991 Daily Award I set out earlier in the judgment). The rescission clauses dealt with the rescission of previous awards in the same terms save that the Daily Awards spoke of rescinding awards in respect of "regional (or provincial) daily newspapers" and the non-Daily Awards spoke of rescinding awards in respect of "provincial non-daily newspapers".
In view of the terms of the scope and parties bound clauses, the list of respondents was thought in these proceedings to assume some significance.
The list of respondents to the various awards was analysed in a number of ways. There are, in my opinion, two matters of substance that it is necessary to consider. The first concerns Daniel Bros which was, for a period, a respondent not only to the Daily Award but also the non-Daily Award. The second is the appearance of a number of other employers including Western Newspapers in the list of respondents in the Daily Award and non-Daily Award at the same point in time. I will, at this stage, simply deal with the evidence. I will later consider the significance of it.
As to the first matter, Mr Oberg gave evidence that Daniel Bros published a newspaper called the Moss Vale Post which was produced in Moss Vale. In the late seventies or early eighties it moved to Bowral and became the Wingecarribee Post and later still the Highlands Post. The 1959, 1969 and 1971 non-Daily Awards included in the list of respondents, "Moss Vale Post Pty Ltd, Moss Vale". The 1979 and 1981 non-Daily Awards included "Daniel Brothers Pty Ltd, Moss Vale" in the list of respondents. In the 1982 non-Daily Award there appears "Daniel Bros & Co Pty Ltd, Goulburn" in the list. That reference was removed as a result of a variation to the list of respondents made in 1989. The question is then whether the reference to Daniel Bros in these various awards, and in particular the reference in the Award made in 1982 (at least up until the variation of the list of respondents in 1989) signifies that it was intended that the employment of employees engaged in the production of the Town and Country Magazine, when first published in 1985 and thereafter, was regulated by the applicable non-Daily Award. "Daniel Brothers and Company Pty Limited, Goulburn" appears in the list of respondents to the 1982, 1989 and 1991 Daily Awards.
As to the second matter, the list of respondents to the 1982 Daily Award more generally contained references to a number of companies publishing regional daily newspapers. They include:
Western Newspapers Ltd, Orange;
Western Newspapers Ltd, Lithgow;
(iii) Macquarie Publications Pty Ltd, Dubbo.
The list in the 1989 Daily Award contained (i) and (iii) but not (ii). In 1986 the paper published at Lithgow, the "Lithgow Mercury", ceased to be published daily and was, from that year, published tri-weekly. The list in the 1991 Daily Award contained the reference to (i) and (iii) and not (ii).
The 1982 non-Daily Award also contained a list of companies publishing non-daily newspapers or simply referred to the newspapers themselves. They included:
(i)Macquarie Publications Pty Ltd, Dubbo;
(ii)a range of named newspapers that are part of the group of papers published by Western Newspapers Ltd.
In 1989 the list of respondents to the 1982 non-Daily Award was deleted and a new list inserted. It contained (i) and (ii) above and a reference to "Western Newspapers Ltd, Lithgow, 2790 Lithgow Mercury". This is explained by the change in the frequency of the publication of this paper in 1986. Thus it was no longer referred to in the list of respondents in the Daily Award but included in the list in the non-Daily Award. This occurred as a result of a decision of a member of the Australian Industrial Relations Commission of 16 March 1989. An altered form of the respondency list was introduced in 1989 to the non-Daily Award. It was made of two columns; one listing the employer, the other identifying a paper or papers.
The applicants tendered at first instance several schedules which show that a number of employers, such as Macquarie Publications Pty Ltd, Dubbo, are named in the list of respondents to both the Daily Award and non-Daily Awards applying at any particular time.
The construction of the 1982, 1989 and 1991 Daily Awards and the corresponding non-Daily Awards
The starting point in construing the 1982, 1989 and 1991 Daily Awards and the corresponding non-Daily Awards are the terms of the awards themselves. However their terms provide little indication of their meaning when considering whether they apply to the employment of Mr Oberg. The Daily Awards contain a definition of an expression. It appears nowhere else in the award. The intended effect of the definition is obscure. It is a legitimate aid in the construction of the Daily Awards to look at their history to see if the development of the definition casts any light on its contemporary meaning and effect. As Burchett J said in Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 517-518 when discussing the proper approach to the construction of an expression in an award:
"No one doubts you must read any expression in its context....
The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read."
The history of the Daily Awards makes plain that when the definition of Associated paper was introduced in 1946 it served a purpose by defining an expression that appeared in an operative clause of the award. It was clear that the 1946 Daily Award was to apply to employees engaged not only on the publication of provincial daily newspapers but also certain newspapers or journals which were not published daily. This was the result, not only of the definition, but the inclusion of clause 3 which prescribed the rate of pay for members employed on an Associated paper.
Had there been no definition of Associated paper or clause 3, the entire 1946 Daily award itself would have contained only a limited number of indicators of its scope, though fairly clear ones. The finding of dispute upon which it was based concerned "the provincial daily newspaper section of the industry". The clauses dealing with wage rates for journalists prescribed rates for journalists on either morning newspapers or evening newspapers both of which were relevantly defined as a "daily newspaper". The inclusion of the definition of Associated paper and clause 3 was consistent with the intended scope of the award being otherwise limited to employees engaged only in the publication of provincial daily newspapers. The definition of Associated paper and clause 3 expanded the area of the award's operation.
The same can be said of the 1951 Daily Award. Other than for those engaged in the publication of an Associated paper, the only rates of pay prescribed for journalists where the prescription was not clearly in relation to a daily paper (having regard to the definition of "morning paper" and "evening paper" which were papers published on at least five days a week) were the rates prescribed for employees engaged in the production of the Launceston "Examiner". However it is apparent from the decision of the Conciliation Commissioner when making the 1951 Daily Award that the Launceston Examiner was a daily paper. There continued to be definition of Associated paper and a clause, clause 6, prescribing rates for employees engaged in their publication.
This leads to the 1956 Daily Award. Its general effect was the same as the 1951 Daily Award though not its form. "Morning paper" and "evening paper" were defined as a paper published on five or more days a week as they had been in the 1951 Daily Award though the word "daily" no longer appeared in the definition. Associated paper was still defined. Rates were generally prescribed for employees who were journalists depending upon whether they were employed on the publication of a morning paper or an evening paper. There was no clause especially dealing with employees engaged in the publication of an Associated paper nor did that defined expression appear elsewhere in the award.
The obvious question that then arises is why did the 1956 Daily Award contain the definition of Associated paper but not a clause to which it related. It may be that an operative clause of the type found in clause 6 of the 1951 Daily Award prescribing rates for employees producing an Associated paper was inadvertently omitted. Alternatively it was deliberately omitted and the definition of Associated paper inadvertently included. Yet another possibility is that the inclusion of the definition and the exclusion of an operative clause was deliberate. What occurred when the 1956 Daily Award was made is, in my view, of importance in ascertaining the meaning of the more recent awards given that they may perpetuate the result intended in 1956. No satisfactory explanation is offered in these proceedings by either the applicants or the respondent as to why the definition remained in the 1956 Daily Award but the operative clause upon which it operated did not.
The 1956 Daily Award is in a form that differed significantly from the form of the 1951 Daily Award. It is possible that in rearranging the provisions of the 1951 Daily Award to meet the structure of the 1956 Daily Award the operative provision concerning employees on Associated papers was inadvertently omitted. However, this is unlikely given that it conferred benefits on a limited class of member of the AJA and it was not reinstated in later awards. Nor can its omission be explained by the fact that there had, by then, come into existence a non-Daily Award, as the 1951 Daily Award had been earlier made containing the definition of Associated paper and the operative clause, notwithstanding the existence of the 1947 non-Daily Award. Had the existence of a non-Daily Award been the justification for deleting the operative clause, then it is likely that it would have occurred when the 1951 Daily Award was made.
Similarly it is unlikely that the definition of Associated paper was inadvertently included in the 1956 Daily Award. The clause containing the definitions was altered in several respects when the 1956 Daily Award was made. A number of new definitions were added, at least to that clause, and the definitions of morning and evening paper were altered by changing the manner of referring to publication on five or more days a week and removing the word "daily". It is unlikely that the inclusion of the definition of Associated paper escaped the attention of those formulating the agreement which became the award and it is unlikely that it was included inadvertently as it was repeated in the Daily Awards made subsequently.
The definition of Associated paper appeared in a clause of the 1956 Daily Award entitled "Application and definitions". In the 1946 Daily Award it is clear that the clause with the same name served the purpose of both defining terms and, in relation to editors, limiting the application of the award. The 1946 clause also contained provisions with a substantive effect. One required wages to be paid weekly, the other required the payment of higher rates for a person acting in a higher grade. Another prohibited the reduction of rates of pay as a result of the making of the award.
The same was true of the same clause in the 1951 Daily Award, though there was no provision dealing with those acting in a higher grade. However the definition of "editor" appeared to require a person who, for a week or more, performed substantially the same duties to be treated as an editor for the purposes of the award. The same clause in the 1956 Daily Award contained, in addition to definitions, the requirement to pay wages weekly and prohibited the reduction of rates as a result of the making of the award. In the 1956 Daily Award and the awards that preceded it, it was a clause that not only defined terms, but contained operative provisions. So much is suggested by its title.
In my opinion, the likely intended effect of the inclusion of the definition of Associated paper was to affect the operation of the award, that is, its application, by signifying that it was to continue to apply to employees engaged in the publication of Associated papers as well as employees engaged in the publication of daily papers which, at this time, was a paper published on five or more days a week. It was to apply notwithstanding that the substantive clause prescribing the rates of pay for employees on Associated papers by reference to hours worked into the evening, had been removed. I should add, however, that several changes were made in the 1951 Daily Award to the clause identifying how the rates for employees engaged on Associated papers were to be calculated. I earlier set out clause 3 of the 1946 Daily Award which provided that an employee on an Associated paper working after 8pm on three or more nights a week received the morning paper rates, while those not working after 8pm in the same way received the evening paper rates. The same provision in the 1951 Daily Award was:
"EVENING AND ASSOCIATED PAPERS
6.(a)The minimum weekly rates of payment to a classified member employed on an associated paper, except where otherwise specifically directed, shall be:-
Morning paper rates as prescribed in clause 5 of this division for a member whose duty does not require him to work after 8pm on three or more nights a week.
(ii)Evening paper rates as prescribed in clause 5 of this division for a member whose duty does not require him to work after 8pm on three or more nights a week.
(b)If the regular duty of a member solely employed on an evening paper requires him to work after 8pm on three or more nights a week, he shall be paid at morning paper rates as prescribed in clause 5 of this division." (emphasis added)
Morning paper rates and evening paper rates in clause 5 are generally different. Whether by accident (which I consider more likely) or design, this clause in the 1951 Daily Award specified different rates in clause 6(a)(i) and 6(a)(ii) for the same class of employee, that is "a member whose duty does not require him to work after 8pm on three or more nights a week" who is employed on an Associated paper. The clause, compared to the equivalent clause in the 1946 Daily Award, served no purpose in prescribing the rates for employees on Associated papers if it was intended to provide different rates depending on the frequency with which the employee worked after 8pm.
It was probably the comparatively nonsensical form of clause 6 in the 1951 Daily Award that led to its abandonment in the negotiations leading to the creation of the 1956 Daily Award which was, for relevant purposes, made by consent. However, proceeding, as I am, on the basis that the exclusion of the operative clause and the inclusion of the definition were not inadvertent, the removal of the operative clause was not intended to limit the scope of the award in a way that would have been at odds with the scope of the awards made in 1946 and 1951 where each award had applied to employees engaged on an Associated paper. It is for this reason that the definition remained. I acknowledge that the pay scales in the 1956 Daily Award did not expressly provide rates for employees employed on the production of Associated papers. However the parties must have intended that the rates for evening and morning papers would be applied depending on whether the Associated paper was of an analogous type.
In my opinion, the inclusion of the definition of Associated paper in the 1956 Daily Award was intended to perpetuate the scope established by earlier awards applying to that sector of the industry so that it would apply not only to employees engaged in the publication of regional daily papers but also, as the 1946 and 1951 Daily Awards had done, to persons employed on Associated papers produced by an employer bound by the award. It is likely, therefore, that the repetition of that definition in awards made after that date including the 1982, 1989 and 1991 Daily Awards was done with the same intended effect. There may, of course, be some features of the more recent awards that suggest that this is not so. One is that the clause containing the definitions has more recently been entitled only "definitions". Its title no longer includes the word "application". However I do not see this as of great significance given that the definition itself has been continued.
Features relied upon by the applicants to show the 1982, 1989 and 1991 Daily Awards apply only to employees engaged in the publication of regional daily papers were references in the awards to the sector of the industry to which they apply, their names and the lists of respondents and I now return to consider the effect of the lists of respondents on the question of whether the Daily Awards or non-Daily Awards applied to employees employed on Associated papers. I first consider the significance of the inclusion of "Daniel Bros & Co Pty Ltd, Goulburn" in the list of respondents to the 1982 non-Daily Award, which might indicate this award was to apply to employees publishing any non-daily publication of that employer and Mr Oberg in particular.
I am satisfied it did not. The reference to "Daniel Bros Pty Ltd, Moss Vale" in the non-Daily Awards prior to 1982 was clearly a reference to employees of the company engaged in the publication of the Moss Vale newspaper. The 1982 non-Daily Award arose from a log served by the AJA. The officer responsible for preparing the log gave evidence that he ascertained the name and address of the publisher of the Wingecarribee Post, a bi-weekly, from a trade publication which contained a reference to Daniel Brothers & Co Pty Ltd, 199 Auburn Street, Goulburn. It was the substance of this reference, reflected in the log, that was later incorporated into the 1982 non-Daily Award. There was a faint suggestion by the applicants that this was evidence of the AJA's intentions which could not be relied upon in construing the award and passing reference was made to Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337. For my part, I would treat this evidence as establishing, appropriately, the source of the words that appear in the award in the way discussed by Burchett J in Short v Hercus, supra and not as evidence of the AJA's intentions. There was no evidence that at that time, 1982, Daniel Bros published in Goulburn any non-daily newspaper. It did not commence to publish the Town and Country Magazine until two years later (the 1982 non-Daily Award was actually made in October 1983).
The applicants did not point to any material that would support the conclusion that it was intended that the 1982 non-Daily Award, referred to Daniel Bros for any purpose other than to prescribe rates for its employees engaged in the production of the Wingecarribee Post. The terms of the 1982 non-daily Award might, read literally, suggest that it applied, from 1985 onwards, to employees engaged in the production of the Town and Country Magazine. However that award cannot be looked at in isolation as it is necessary to reconcile its terms with those of the 1982 Daily Award which applied at the same time and included both the reference to Associated paper and Daniel Brothers and Company Pty Limited, Goulburn in the list of respondents.
I next consider the effect of the lists of respondents more generally found in the Daily Award and corresponding non-Daily Award.
There is no obvious or entirely rational explanation for the way these lists are composed. The applicants submitted that what is clearly intended is awards applying to discrete areas of the industry. This submission is, in essence, that whatever anomalies may be apparent from the lists of respondents, the lists indicate, together with the reference in the rescission clause to provincial non-daily newspapers and the title of the award, that the relevant non-Daily Award is intended to apply to employees engaged in publishing regional non-daily papers which are published by employers identified in the list of respondents. Similarly the relevant Daily Award is intended to apply to employees engaged in publishing regional daily newspapers which are published by employers identified in the list of respondents. There is thus a comparatively simple symmetry intended by the two awards. However this approach ignores the inclusion of the expression Associated paper in the Daily Award and the circumstances in which its inclusion occurred.
The list of respondents to the Daily Awards have included employers who also publish non-daily papers and are bound by the relevant non-Daily Award. The definition of Associated paper encompasses, if read literally, any other paper published by an employer which publishes a daily paper. If the defined expression is given its literal meaning and the scope of the Daily Award treated as correspondingly wide then difficulties may arise in determining whether the non-Daily Award or the Daily Award would apply to non-daily papers published by such employers. However the word "Associated" must colour the definition and a purposive construction should be given to the definition. I will return to this question shortly and after I consider the evidence in more detail concerning the work done by Mr Oberg and the relationship between the Goulburn Post and the Town and Country Magazine.
Before commencing the analysis of the development of the Daily Awards and non-Daily Awards and the original and subsequent effect of the inclusion of the definition of Associated paper I referred to the judgment of Burchett J in Short v Hercus, supra to provide a context within which I was to make the analysis. The 1982, 1986 and 1991 Daily Awards contain words the intended effect of which is quite obscure. Looking only at each award in isolation they are words in a definition that seemingly serve no purpose. A meaning of the words emerges from reviewing the history of the awards in which they appear though it must be accepted that it is not apparent from the words themselves. Unless they are given that meaning, they are surplusage.
The construction of a document involves a search for what the framers of the document meant by the words adopted. Words are not lightly discarded as unintended verbiage whether in a statute: see Beckworth v The Queen (1976) 135 CLR 569 at 574 per Gibbs J, or a contract: see Re Strand Music Hall Co Ltd [1865] 35 Beave 153 and S.A Maritime et Commercial of Geneva v Anglo Iranian Oil Co Ltd (1954) 1 WLR 492. As Lord Romilly M.R. said in Strand Music, supra:
"The proper mode of construing any written instrument is, to give effect to every part of it, if this be possible, and not to strike out or nullify one clause in a deed, unless it be impossible to reconcile it with another and more express clause in the same deed."
but compare N.G.L Properties Pty Ltd v Harlington Pty Ltd 1979 VR 92, Re O'Brien (1975) 1 NZLR 688 and Stewart v Woorabinda Aboriginal Council, 17 March 1993, unreported Federal Court, Drummond J.
The approach of the applicants was to demonstrate that other features of the Daily Awards, including the respondency list to them, and features of the comparable non-Daily Awards, including the respondency lists to them, coupled with an intention to separately regulate discrete parts of the industry, result in the words being surplusage.
I am not satisfied this is so. The inclusion of the definition of Associated paper is intended to extend the scope of the 1982, 1989 and 1991 Daily Awards so as to render them applicable to employees engaged on the publication of an Associated paper which is published by an employer who also publishes a regional daily and is bound by the award. I should add, however, that if the relevant non-Daily Award identified the paper, said to be an Associated paper, in the relevant column in the list of respondents, different considerations would then arise. The applicants pointed to examples of papers referred to in the list of respondents introduced in 1989 to the non-Daily Award that now might be thought to be an Associated paper published by Western Newspapers. If a paper is identified in the list of respondents in the non-Daily Award and it is "associated" with a daily newspaper in the way I shortly discuss and the employer is bound by the Daily Award, then it would be necessary to consider the rules concerning the construction of inconsistent awards: see Hungry Jacks Pty Ltd v Wilkins (1991) 71 WAIG 1751 at 1754-1756 per Nicholson J, as there would clearly be a manifest inconsistency between the two awards.
Whether the Town and Country Magazine is an Associated paper
The question that now arises is whether the Town and Country Magazine is an Associated paper. The evidence of Mr Oberg dealt with the nature of his employment and the relationship between the production of the Town and Country Magazine and the Goulburn Post.
Mr Oberg commenced work with Daniel Bros in 1964 as a graphic engraver and was promoted to the position of photographer at the Goulburn Evening Post in 1965. He was invited to become the editor of the Town and Country Magazine by the general manager of the Goulburn Post. He took up the position in June 1985 and the first edition was published in July 1985. The magazine then shared the same telephone number and post office box as the Goulburn Post and has continued to do so. Until late 1992 they shared the same facsimile number. Mr Oberg's work entails photographic work and writing articles for the magazine. Other work on the magazine such as paste-up and page make up and typesetting is done by employees generally engaged on the publication of the Goulburn Post. Mr Oberg uses a desk top computer facility linked to a central computer in the composing room of the Goulburn Post. His office had been separate from that of employees engaged in the publication of the Goulburn Post but in the same building which is owned by Western Newspapers. Several other publications are made up at those premises. He uses a common dark room facility, staff amenities room and meal room. He does both photographic work and editorial work for the Goulburn Post from time to time and on occasions he is given a photographic credit in the Post. He has also done some sub-editing for the Goulburn Post. When Mr Oberg has been absent on leave his position has been filled by employees engaged in the publication of the Post at least in the early years and on other occasions by a freelance journalist.
The actual printing of the Town and Country Magazine occurs at a printery at Nowra, to which material is sent from Goulburn, and at which the 17 publications into which the Town and Country Magazine is inserted are printed. Any work Mr Oberg does for the Goulburn Post is at his discretion and some of what he would produce for that paper would also be used for the Town and Country Magazine.
Evidence was also given by Mr Thistleton who is the editor of the Goulburn Post. He viewed Mr Oberg as a colleague with whom he works cooperatively but separately. Neither is responsible for the other. They give stories to each other and refer to each others background material and swap photos. He believes that Mr Oberg contributes copy to the Goulburn Post once or twice a year. Evidence was given by Mr Findlay who had been general manager of Western Newspapers. He described the line management of the Goulburn Post and the Town and Country Magazine and indicated the editors of each separately reported to a manager who in turn was answerable to Mr Findlay.
A test of what was an Associated paper was advanced by the applicants which was to the effect that the work done by a journalist on the Associated paper has to be so closely connected to the work done by journalists on a regional daily as to be indistinguishable. That approach is one I find difficult to understand in its application. In any event the association is directed, in my opinion, to the publications themselves and not the work of individual employees engaged in their publication.
The word "associated" is defined in the Shorter Oxford Dictionary as:
"1. Joined in companionship, action or purpose, dignity or office, allied. 2. Connected in thought. 3. Combined (with); occurring in combination."
The true meaning of the expression Associated paper is determined not only from how that expression is defined in the award, namely a newspaper or journal published by an employer but not published daily, but also by reference to the expression itself. The terms of the expression colour the definition. The definition both defines terms and signifies an extension to the scope of the award. As stated in Statutory Interpretation, Bennion, 2nd edition at 414:
"Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court. As Richard Robinson said, it is impossible to cancel the ingrained emotion of a word merely by an announcement."
The definition is only satisfied if the elements in the definition are met and there is additionally some feature about the newspaper or journal that indicates that its publication is associated in some concrete and substantial way with the publication of a daily newspaper published by the same employer. That association exists in the present case and results from the combined effect of a number of factors. The nature of the association between the publication of the Goulburn Post and the Town and Country Magazine, both in terms of the shared facilities including personnel, which I have already detailed, and the co-operative arrangements between Mr Oberg and those engaged in the publication of the Goulburn Post establish, in my view, that the Town and Country Magazine is an Associated paper.
I will adjourn the appeal to enable the parties to bring in short minutes of orders to give effect to these reasons for judgment.
I certify that this and the preceding forty (40) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Date:2 December 1994
Counsel for the Applicant: Mr P. Kite
Solicitor for the Applicant: Minter Ellison Morris
Fletcher
Counsel for the Respondent: Mr F.L. Wright QC
Solicitor for the Respondent: Jones Staff & Co
Date of hearing: 8 & 9 August 1994
Date of judgment: 2 December 1994
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