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Federal Court of Australia |
COURT
IN THE FEDERAL COURT OF AUSTRALIACATCHWORDS
Industrial law - Conciliation and Arbitration Act 1904 - registered organizations - application of funds and resources in publishing material allegedly supporting one candidate during an election - duty of Union Officials to exercise powers conferred upon them by the rules bona fide for the purposes for which the power is conferred - tests regarding application of Union resources while elections pending - prohibition upon use of resources to support a candidate - exercise of power to inform members of matters of interest - breadth of order Court can make pursuant to s.141 of the Act - perpetual injunctions.Conciliation and Arbitration Act 1904 - s.141.
Industrial Law - Registered organisations - Application of funds and resources in publishing material supporting particular candidates - Whether implied rule that funds will not be so employed except fairly - Duty of officials to exercise power bona fide for the purposes for which the power is conferred - Form of orders - Conciliation and Arbitration Act 1904 (Cth), s. 141. Held (per Evatt and Northrop JJ.): (1) The members of a committee and officers of an organisation are bound to exercise the powers conferred upon them bona fide for the purpose for which the power was conferred and a failure to so do will render the member or officer amenable to orders pursuant to s. 141(1G) of the Conciliation and Arbitration Act 1904 that they perform and observe the rules of the organisation.
(2) The election of officers within an organisation must be conducted fairly having regard to the interests of all members and all candidates. Fairness requires that the officers exercising power within an organisation shall not exercise that power to authorise the use of resources of the organisation to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election for offices within the organisation. If during the conduct of an election, officers of an organisation expend the resources of the organisation on conduct which tends to support or promote a candidate or a group of candidates at that election, directions may be given under s. 141(1G) of the Act that they perform and observe the rules of the organisation by refraining from so expending the resources of the organisation.
(3) It is doubtful whether the expression of opinion in Holmes v. Riordan (1956) 86 C.A.R. 180 that "the resources of an organisation may be used to publish material adverse to a candidate to rebut attacks made by that candidate" is correct.
R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 C.L.R. 141; Ascot Investments Pty Ltd v. Harper [1981] HCA 1; (1981) 148 C.L.R. 337; Russell Kinsela Pty Ltd (in liq.) v. Kinsela (1983) 2 N.S.W.L.R. 452; Short v. Wellings (1951) 72 C.A.R. 84; Lyons v. Deegan [1978] FCA 22; (1978) 35 F.L.R. 430; Kanan v. Hawkins unreported (Federal Court of Australia, Sweeney J., 14 September 1979); Valentine v. Butcher [1981] FCA 30; (1981) 51 F.L.R. 127; Re Penhallurick (1983) 51 A.L.R. 589; Howard Smith Ltd v. Ampol Petroleum Ltd (1974) A.C. 821; B.P. Refinery Pty Ltd v. Hastings Shire Council (1977) 52 A.L.J.R. 20; Gordon v. Carroll (1975) 27 F.L.R. 129; Dugmore v. Porter (1982) 3 I.R. 418; Jansen v. Slater (1974) 24 F.L.R. 279; Lynch v. Waters (1967) 11 F.L.R. 116; Magner v. Fowler (1979) 46 F.L.R. 78; Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (1908) 6 C.L.R. 309; Burwood Cinema Ltd v. Australian Theatrical and Amusements Employees' Association [1925] HCA 7; (1925) 35 C.L.R. 528; Australian Workers' Union v. Coles (1917) V.L.R. 332; Williams v. Hursey [1959] HCA 51; (1959) 103 C.L.R. 30; Hay v. Australasian Institute of Marine Engineers [1906] HCA 31; (1906) 3 C.L.R. 1002; Duane v. Granrott (1982) V.R. 767; Stevens v. Keogh [1946] HCA 16; (1946) 72 C.L.R. 1; Allen v. Townsend [1977] FCA 10; (1977) 31 F.L.R. 431; Ascot Investments Pty Ltd v. Harper [1981] HCA 1; (1981) 148 C.L.R. 337; Re Australasian Postal Telecommunications Union; Ex parte Wilson [1979] FCA 107; (1979) 28 A.L.R. 330; Stephenson v. Dowdell unreported (Federal Court of Australia, Sweeney J., 19 June 1980), referred to.
(4) (Per Gray J.) Where an act is outside the true extent of the power conferred by the rules of an organisation, because an implied limitation has been exceeded, it will often not be possible to point to any specific provision, and the court will order or direct the performance of the rules as a whole.
(5) (Per Gray J.) Consideration of the principles by reference to which express powers contained in the rules of a union are limited by implication.
HEARING
Sydney, 1984, June 14, 15; July 30, 31; October 5. 5:10:1984Appeal from judgment and orders of Beaumont J.
D.M. Ryan Q.C. and J. Shaw, for the applicant.
J. Trew Q.C. and J. McCarthy, for the respondent.
R. Kenzie, for the members of the Australian Council of Trade Unions
(appeared as amicus curiae)
Cur. adv. vult.Solicitors for the applicants: Turner Freeman.
Solicitors for the respondents: Branicki Milder & Co.
G.F.V.
ORDER
1. The Appeal be dismissed.(No. 11)2. The Appeal be allowed and the orders made by the Court on 30 March 1984 be set aside.(No. 14)
3. The rule nisi be discharged insofar as it relates to the orders made on 30 March 1984.(No. 14)
Orders accordingly.
DECISION
With the consent of the parties these two appeals were heard together. In fact both appeals arise from the one proceeding in the Federal Court of Australia, namely matter N.S.W. No. 1 of 1984, and all issues between the parties raised by the two appeals could have been determined in the one appeal. The facts giving rise to the appeals are somewhat complex but can be stated shortly. Michael Patrick Jess (hereinafter called "the applicant") is a member of the
Amalgamated Metals Foundry and Shipwrights' Union (hereinafter
called "the
Union"), an organization of employees under the Conciliation and Arbitration
Act 1904 ("the Act"). In the latter part
of the year 1983 and the early part
of the year 1984 elections under the rules of the Union were being conducted
for the three positions
within the Union of:
(a) State President, Queensland Branch;The ballots, being postal ballots, for the elections to those positions opened on 23 January 1984 and were to close on 17 February 1984. Mitch Ciechanowski and Bryant Burns were the candidates for the position of State President, Queensland Branch. Charles Bali and Robert Adamson were the candidates for the position of National Organiser, Division 4. In January 1984, typical electioneering pamphlets were distributed among members eligible to vote in the three elections on behalf of each of Bali, Ciechanowski and Adamson. Burns and Adamson were the holders of the positions for which the elections were being held. A bitter campaign was being conducted between those members of the Union, including Burns and Adamson, and the majority of the existing officers of the Union on the one hand, and those members of the Union, including Bali and Ciechanowski, who were conducting the campaign as a reform group. Roderick Kelly, another member of the Union, was a member of that reform group. The electioneering pamphlets reflected the bitterness of the electoral campaign, being highly commendatory of the candidate being supported and being highly derogatory of the opposing candidate. The applicant makes no complaint about those electioneering pamphlets which appear to have been paid for from funds other than funds of the Union.
(b) Regional Delegate to National Conference;
(c) National Organiser, Division 4.
From time to time the Union publishes and distributes various publications including "The Metalworker", a tabloid newspaper which is posted to each member and which is published eleven times a year, "The A.M.F.S.U. Quarterly Journal", which is posted to certain Union officials for distribution to members at various places within the structures of the Union, and a "National Newsletter" which is published from time to time on an irregular basis. Each of these publications is published by the National Council of the Union. Copies of the National Newsletter normally have endorsed on them that the newsletter is authorized by the Union's National Council. A National Newsletter dated 24 January 1984 was published by the National Council. Endorsed on it was a statement "Authorized by Dick Scott, National President". On one view, the contents of that newsletter tended to support or promote the group of candidates in the three elections who were being supported by the majority of the officers of the Union and sought to defeat the candidates contesting the elections, including Bali and Ciechanowski, being candidates being supported by the reform group. That issue of the National Newsletter was published and posted to members of the Union entitled to vote at the three elections by the use of resources, including money and manpower, of the Union itself. A similar National Newsletter dated 25 January 1984 having a similar tendency, was published and distributed amongst members of the Union entitled to vote at the elections.
On 2 February 1984 the applicant made an ex parte application to the Court for orders under s.141 of the Act. The appellants were named as respondents to a rule nisi sought under 0.4 r.15 of the Rules of Court. Hereinafter the appellants are called "the respondents". Each of the respondents is a member of the Union and thus under an obligation to perform or observe the rules of the Union. Each of the respondents is an officer of the Union and either severally or jointly have power, under the Rules of the Union, to publish and distribute the National Newsletter and the other publications of the Union and to expend the resources of the Union for that purpose. Under sub-section 141(1G) of the Act, the applicant sought orders that each of the respondents perform or observe the rules of the Union by refraining from using or permitting any other person from using the Union's property, funds or resources to support or promote a candidate or group of candidates or to defeat a candidate or group of candidates in the ballots for the three positions set out above, and in particular an order in similar form was sought with respect to the publication and distribution of any newspaper, newsletter, pamphlet or similar publication having the same tendency. In addition, an order was sought that the respondent Scott, and such other of the respondents who had authorized the publication and distribution of the two National Newsletters dated 24 and 25 January 1984 respectively, be ordered to repay to the Union the costs incurred by the Union in publishing and distributing those two newsletters. For the purposes of the appeals, the last order sought may be ignored since the hearing of the application seeking that order has not been held and to that extent the application has been adjourned sine die. The Court granted the ex parte application and a rule nisi was issued calling upon the respondents to show cause at twelve noon on 3 February 1984 why the orders set out in the rule nisi should not be made.
At the same time as granting the rule nisi, the Court made an interim order under sub-section 141(2) of the Act requiring each of the respondents to perform and observe the rules of the Union in relation to the publishing and distribution of documents tending to have the effect referred to above with respect to the three elections. The interim order was to remain in force until the end of 3 February 1984 or until further order.
On the return of the rule nisi on 3 February 1984 the applicant relied upon a further National Newsletter dated 5 December 1983, which was stated to be authorized by the National Council and having a tendency to affect the election similar to the other two newsletters already referred to. At the hearing, the respondents, without conceding liability, consented to the continuation of the interim order until further order. Under normal circumstances it would have been expected that the interim orders would cease to have effect after 17 February 1984, being the date the ballots closed. Thereafter, the only unresolved matter arising from the rule nisi was the application for the refund of the monies expended. The hearing of the rule nisi was then adjourned to 23 February 1984.
On 23 February 1984, the applicant was granted leave to amend the rule nisi
to include claims for orders seeking the repayment of
money to the Union with
respect to the three National Newsletters already mentioned and an issue of
the "The Metalworker" dated 1
February 1984. The rule nisi in so far as it
seeks other orders has not yet been heard and may be ignored for the purposes
of this
appeal. More importantly, the applicant was granted leave to amend the
rule nisi to include claims for orders similar to those contained
in the
interim order, but with respect to elections to the following positions within
the Union, namely:
(a) National Secretary;It is important to note that the elections for those positions were to be held later in the year 1984, but at the time leave was granted none of those elections had commenced.
(b) National Organisers;
(c) State Secretary, Queensland Branch;
(d) Assistant Secretary, Tasmanian Branch;
(e) State Secretary, Western Australian Branch.
On 23 February 1984, the respondents moved the Court for orders under 0.20 r.2 of the Rules of Court that the rule nisi be discharged on the ground that it disclosed no reasonable cause of action. Submissions were limited to the ground relating to publication of material which had a tendency to affect elections within the Union. The submissions can be described as relating to the jurisdiction question. On 2 March 1984 the Court made an order declaring that the Court had jurisdiction to entertain the application under s.141 of the Act and refused the motion for summary dismissal of the proceedings. Appeal N.S.W. No.11 of 1984 is an appeal from those orders. That appeal was filed on 16 March 1984.
Despite the appeal which had been filed on the jurisdiction question, the
rule nisi came on for further hearing on 20 March 1984.
On that hearing, which
extended over several days, it was apparent that the nature of the proceedings
had changed completely from
those which were the subject of the rule nisi as
originally obtained. The hearing, which commenced on 20 March 1984, related to
the
five elections which had not commenced. Orders were being sought with
respect to those five elections. An affidavit by Roderick Kelly
was relied
upon by the applicant. In that affidavit, Kelly said:
"I will be submitting my nomination as a candidate for the positionThe affidavit identified a number of issues of "The Metalworker", "The A.M.E.S.U. Quarterly Journal", and "The Newsletter", which were exhibited to the affidavit and covered the period from July 1981 to November 1983. Material in those publications could be said to be detrimental to the interests of Kelly and other persons within the reform group. The applicant relied also on an affidavit by Emanuel Lockley relating to events which occurred in March 1984 in relation to the State Conference of the Tasmanian Branch and the publication of a report made to that conference which could be said to be detrimental to the interests of persons within the reform group. At the same time it is fair to say that the material complained of in the publications and in the report of the State Conference were matters of general interest to members of the Union and appropriate to be made the subject of publication to members of the Union.
of National Secretary of the Organisation, elections for which are
due to (be) held later this year. I expect that nominations for
that position will open early in May and close in early June 1984.
I will be standing in that election."
The deponents of the affidavits filed on behalf of the applicant were not
cross-examined. The respondents called no evidence as
to the nature of the
relief sought by the applicant is illustrated by two paragraphs of the
affidavit of Kelly. Those paragraphs
are in the nature of pleadings but they
are set out:
"13. I fear that unless restrained by this Honourable Court therelief to a form contained in a document which was handed to the Court. On 30 March 1984 the Court made orders in the form sought by the applicant. Those orders are set out in full:
Respondents will continue to publish articles in Union publications
which attack me and other candidates who are likely to be
contesting ballots for positions of National Secretary, two
National Organisers, Queensland State Secretary and Assistant
Secretary, Tasmanian Branch. Elections for these positions will be
held between May and August, 1984. In addition, an election for the
position of Western Australian Branch Secretary must under the
Rules of the Organisation be held prior to December 1984. In my
capacity as National Convener of the 'Reform Group' of the
Organisation I know that members of the 'Reform Group' will be
contesting each of the above positions.
14. I fear that unless restrained by this Honourable Court the
property, funds and resources of the Organisation will be expended
in seeking to promote or defeat a candidate or groups of candidates
in the forthcoming Union elections by the printing and distribution
of publications containing articles or comment similar to those
found in the aforementioned Exhibits."
During the course of the hearing the applicant sought to amend his claim for
"1. The Respondents and each of them perform and observe the RulesAppeal N.S.W. No. 14 of 1984 is the appeal from that order.
of the AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION ('the
Organisation') by refraining from publishing or distributing to
members of the Organisation or causing to be so published or
distributed out of the property, funds or resources of the
Organisation any newspaper, newsletter, pamphlet or similar
publication which supports or promotes or tends to support or
promote or which seeks to defeat any person or group of persons who
have informed the Organisation in writing that he or they intend to
nominate in ballots for the following offices and positions in the
Organisation:-
(a) National Secretary;
(b) National Organisers;
(c) State Secretary, Queensland Branch;
(d) Assistant Secretary, Tasmanian Branch;
(e) State Secretary, Western Australia Branch,
or which seeks to influence members of the Organisation in relation
to voting in the said ballots.
2. The Respondents and each of them perform and observe the Rules
of the Organisation by refraining from using or permitting any
person from using the Organisation's property, funds or resources
to support or promote a candidate or group of candidates or to
defeat any person or group of persons who have informed the
Organisation in writing that he or they intend to nominate in
ballots for the offices and positions referred to in Order 1. or to
influence voters voting or likely to vote in ballots for such
offices.
3. From the date upon which nominations are called for the offices
referred to in Orders 1. and 2. above, the Respondents and each of
them perform and observe the Rules of the AMALGAMATED METALS
FOUNDRY AND SHIPWRIGHTS UNION ('the Organisation') by refraining
from publishing or distributing to members of the Organisation or
causing to be so published or distributed out of the property,
funds or resources of the Organisation any newspaper, newsletter,
pamphlet or similar publication which supports or promotes or tends
to support or promote any candidate or group of candidates
nominating for such offices or which seeks or tends to defeat a
candidate or group of candidates or which seeks or tends to
influence voters voting or likely to vote in ballots for such
offices.
4. The Respondents and each of them perform and observe the Rules
of the Organisation by refraining from using or permitting any
person from using the Organisation's property, funds or resources
to support or promote a candidate or group of candidates or to
defeat a candidate or group of candidates or to influence voters in
the said ballots referred to in Order 1."
On the hearing of the appeals two main issues were raised; first, the jurisdiction question, namely whether the Court had jurisdiction to make the order on 30 March 1984, and secondly, if so, was the order made in a form which was within the power of the Court to make? The second question essentially raised issues as to the inappropriateness of the order made.
It is necessary to consider first the jurisdiction question, ignoring for that purpose the particular objections to the form of the order made.
The jurisdiction of the Court to hear applications of this kind is contained
in s.141 of the Act. Sub-sections (1), (1G) and (1H)
are set out:
"141.(1) A member of an organization may apply to the Court fordirections for the performance or observance of any of the rules" of the Union. The nature of the directions that can be given are many and varied and are to be moulded to ensure the performance or observance of the rules. A consideration of the judgments in R. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 C.L.R. 141 illustrates the wide nature of the jurisdiction and powers conferred by s.141 in its earlier form. A reference to the many decisions of the Commonwealth Court of Conciliation and Arbitration, the Australian Industrial Court and this Court likewise illustrates the wide nature of the directions that may be given under sub-section 141(1G). One aspect of the jurisdiction and power is illustrated in Allen v. Townsend [1977] FCA 10; (1977) 31 F.L.R. 431 per Evatt and Northrop JJ. at pp.483-9. That passage should be read in full. In summary, the principles therein stated may be set out briefly. Officers of an organization are under a duty to exercise powers conferred upon them by the rules of the organization bona fide for the purposes for which the powers are conferred. That is a statement of principle having general application to officers of organizations. It is but one aspect of a general principle having application far wider than to officers of organizations. As recently as 1981, in Ascot Investments Pty. Ltd. v. Harper [1981] HCA 1; (1981) 148 C.L.R. 337 at pp.348-9, Gibbs J., as he then was, in speaking of directors of a company, said:
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) 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."
Under sub-section 141(1G) of the Act, the Court has power to "give
"The directors are bound to exercise their discretion bona fideSee also Russell Kinsela Pty. Ltd.(In Liq.) v. Kinsela (1983) 2 N.S.W.L.R. 452, and the many cases referred to in that judgement.
in what they consider to be in the interests of the company, and
not for any collateral purpose, but subject to that qualification
their discretion is absolute and uncontrolled: In re Smith &
Fawcett Ltd ((1942) Ch. 304, at pp.306-308); Charles Forte
Investments Ltd v. Amanda ((1964) Ch. 240, at pp.252-254, 260-261);
Australian Metropolitan Life Assurance Co. Ltd v. Ure ((1923) [1923] HCA 29; 33
C.L.R. 199, at pp. 205-206, 217-220, 223). This rule is an
application of the general principles governing the exercise by
directors of their powers; those principles are discussed in Ngurli
Ltd. v. McCann ((1954) [1953] HCA 39; 90 C.L.R. 425, at pp.438-440). The cases
cited establish that the onus of proving that the directors in
refusing registration did not act in good faith in what they
considered to be in the interests of the company lies on those who
challenge their decision."
It follows, therefore, that if the members of a committee of an organization, or if an officer of an organization, resolved to exercise a power conferred upon them by the rules of the organization otherwise than bona fide for the purpose for which the power was conferred, a member of the organization would be entitled to obtain an order under sub-section 141(1G) of the Act. The normal form of directions given by that order would be that the respondents to those proceedings perform and observe the rules of the organization by treating the resolution so made as being void and of no effect. If necessary, similar directions would be given with respect to any actions taken or to be taken pursuant to the void resolution.
Over the years, the Commonwealth Court of Conciliation and Arbitration, the
Australian Industrial Court and this Court have applied
another general
principle. The general principle is illustrated by Short v. Wellings (1951) 72
C.A.R. 84, although in reality that
case is based on the principles enunciated
in Allen v. Townsend above. In Short v. Wellings, an election to offices
within an organization
was about to be conducted. Before the election
commenced, a special meeting of the members of the branch of the organization
involved
resolved to direct the resources of the branch to the promotion and
support of the candidature for office of a group of nominees
chosen or to be
chosen to stand for election. The complainant obtained a rule nisi calling
upon named officers of the organization,
being some of the members of the
branch, to show cause why orders should not be made that they perform and
observe the rules of the
organization by treating the resolution as of no
force and effect and by refraining from giving effect to the resolution and by
refraining
from using the resources of the organization for the purposes of
the resolution. In defence, the respondents to that proceeding contended
that
the resolution was in furtherance of an object of the organization, as
contained in its rules. In rejecting that contention
and in making the orders
absolute, the Commonwealth Court of Conciliation and Arbitration comprising
Kelly C.J., Foster and Kirby
JJ. said at pp.87-8:
"It must be plain that the objects of the organization can onlyresolution was directed specifically to the expenditure of resources of the organization to support particular candidates at that election. The principle has application to ballots in an election and also to supporting a particular view in a ballot taken pursuant to a plebiscite of members. The principle has been applied, for example, in Holmes v. Riordan (1956) 86 C.A.R. 180, Lyons v. Deegan [1978] FCA 22; (1978) 35 F.L.R. 430, Kanan v. Hawkins, 14 September 1979, Federal Court of Australia, J.B. Sweeney J., unreported, and Valentine v. Butcher [1981] FCA 30; (1981) 51 F.L.R. 127. In each of those cases application had been made under s.141 of the Act or the predecessor of that section. In Valentine v. Butcher, Keely J. stated the principle at pp.138-9 as follows:
be carried out in accordance with its rules. The branch in repect
of its affairs is further limited, in the attainment of the objects
of the organization by it, by the branch rules. 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. It cannot be denied that the
provisions of the Act and the regulations are directed to the end
of having the management and control of the affairs and
transactions of an organization reposed in a democratically and
freely elected body of executive and administrative officers. So
far as the organization is concerned every member, qualified under
its rules, has the right to stand for election to an office. To
allow the resources of the organization to be used in a campaign
for his defeat could be a denial of that fundamental right. It
would enable the existing executive, in whose hands the resources
of the organization lie, to use those resources to defeat all
opposition to, or criticism of, its will. It could result in a
complete tyranny and a permanent denial of the democratic nature of
the organization, which the Act and the regulations are calculated
to ensure."
That principle was stated with respect to a pending election, but there the
"In my view the principle prohibiting the use of the resources of aunder Part IX of the Act. In Re Penhallurick (1983) 51 A.L.R. 589, Fitzgerald J. was conducting an inquiry into an election in the Transport Workers' Union of Australia. At p.595 he relied upon the principle that:
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 (1951) 72 C.A.R.
84, as applied by this Court (J.B. Sweeney J.) in Kanan's case
(Unreported - F.C.A., 14 September 1979), 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 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'."
The principle has been applied in proceedings being an election inquiry
". . . even in the absence of an express provision in anHis Honour held that a contravention of that principle, although not coming within the extended definition of irregularity contained in s.4 of the Act, nevertheless could constitute an irregularity within the meaning of that word, and if that irregularity may have affected the result of the election (see sub-section 165(4)), the Court would be justified in declaring that election void; see sub-section 165(3).
organization's rules, there is an implicit prohibition 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."
The reference to the objects of the Act as set out in s.2, and the detailed provisions contained in the Act and the Conciliation and Arbitration Regulations relating to the election of officers within an organization makes it clear that those elections must be conducted fairly, having regard to the interests of all members and of all candidates. Implicit in that concept of fair play is the principle that the officers exercising power within an organization shall not exercise that power to authorize the use of the resources of the organization to support or promote a candidate or a group of candidates or to seek to defeat a candidate or a group of candidates during the conduct of an election to offices within the organization. In the present case it is not necessary to determine what are the limits of the conduct of an election. For present purposes it is sufficient to say that the election commences at least at the closing of nominations for candidates for the election and continues at least until the close of the ballot for that election. If during the conduct of an election, officers of an organization expend the resources of the organization on conduct which tends to support or promote a candidate or a group of candidates at that election, directions may be given under sub-section 141(1G) of the Act that they perform and observe the rules of the organization by refraining from so expending the resources of the organization. Of necessity, the rules cannot provide for that type of expenditure, any specific rule purporting to authorize that type of expenditure being, in all probability, in contravention of sub-section 140(1) of the Act; cf. Dugmore v. Porter (1983) 3 I.R. 418, and on appeal 'Porter v. Dugmore, 2 April 1984, unreported.
It follows, therefore, although it is not necessary to decide, that in all probability the interim orders made herein on 2 January 1984 and 3 January 1984 were made correctly. The order made on 30 March 1984, however, calls for further consideration since the conduct complained of by the applicant did not take place while the elections were being conducted.
It cannot be doubted that officers of an organization have a power to inform members of matters of interest to the organization and its members and for that purpose to expend the resources of the organization. It is for the officers of the organization to determine what matters of interest may be the subject of such information, the nature of that information and the amount of the resources of the organization to be expended. Eventually, it is for the members of the organization to exercise control over the officers as provided in the rules. At times the information published may be contentious and may seem to be favouring one group within the organization and disadvantaging a competing group. If a member can prove that the publication of that information was not made by the officers bona fide for the purpose of the power conferred upon those officers, orders under sub-section 141(1G) of the Act may be made directing the officers to observe and perform the rules of the organization by refraining from expending the resources of the organization for the publication of that information. Likewise, if officers constituting a committee of the organization resolved to expend resources of the organization for purposes which are not permitted by the rules of the organization, similar orders may be made; see for example Short v. Wellings above.
In the present case the applicant relied upon material published by the
respondents, or some of them, at the expense of the Union
over the period July
1981 to February 1984 and contended that the respondents or some of them would
continue to publish, at the expense
of the Union, similar material detrimental
to the reform group during elections to be conducted later in the year 1984.
In his reasons
for judgment the learned trial judge said:
"It is not appropriate that I reproduce or even attempt tofollows:
summarise such a volume of material. But, in order to understand
the applicant's claim, reference should be made to the text of some
of the more recent publications.
The National Newsletter dated 5 December 1983 reads, so far as material as
Workers must have Unions they can rely onrespondents at the expense of the Union in the context of an election for offices within the Union. He characterized actions by the respondents as being conducted with a view to influencing the outcome of the election with the object of advancing the prospects of one group of candidates at the expense of the opposing faction. In other words, he relied upon a principle similar to that set out in Allen v. Townsend above, but in the absence of any particular resolution entered into by a committee of the Union. He based his findings on publications instead of conduct engaged in while an election was being held.
LIES AND SLANDER ARE NOT LEADERSHIP
A campaign is being waged to denigrate the role of the AMFSU in the
working out of the economic Accord between the Labor Government and
the Unions. Since Labor's victory in the March Election the focus
of the Union's work has shifted from the purely industrial area to
the political stage. We are seeking to obtain by working with the
Labor Government what, under the Fraser Government, we could
achieve only by stopping work and walking out the gate.
AMFSU Officials played a big part in drawing up the Accord with
leading ALP figures before the last Federal Election.
. . .
DESTRUCTIVE ELEMENTS
One would think that all members genuinely interested in getting
the most from our Union's work would aim for the maximum possible
unity in action. However it seems that a few are hell bent on
trying to destroy our unity.
They spend all their time throwing muck at the Union's leadership.
Recent events have provided clues as to why they should do this.<
As revealed in the June 1983 Metal Worker, a leading light in the
Queensland Liberal Party has been touting for signatures on a
petition against the Union leadership. This Liberal Leader - not a
member of the AMFSU - said it was necessary to change our Union
leadership in order to help the Hawke Government.
The former secretary of the right wing National Civic Council,
Gerald Mercer, admitted the NCC spent $140,000 on AMFSU National
Elections last year.
Mercer, speaking on ABC Radio on May 26th, said the money was spent
in support of so-called 'reform group' candidates - candidates who
didn't win even with this massive financial backing.
THE UNANSWERED QUESTION
Metal workers must ask why such enormous funds are available to
forces trying to get rid of the Union's current dedicated and
expert leadership.'
Similar comments were made in an editorial written by the first
respondent, the Union's National President, in 'The Metalworker'
dated November 1983.
The report of the State Secretary of the Tasmanian Branch dated 7
March 1984 reads, so far as material:
ATTACKS ON THE UNION
At the last Conference I made reference in my report to the attacks
on the Union. The same people who were responsible for the attacks
on the Union at the time of my last report are still continuing
those attacks and indeed were successful in Tasmania to the extent
that they secured the position of State Secretary and two State
Delegates to the National Conference.
They have also secured a position of National Organiser, they were
unsuccessful in other states where they have tried to win positions
of full-time officials and State delegates to National Conference.
With reference to their success in Tasmania, this was brought about
partly as a result of the finances the so called Reform Group has
been able to obtain from sources outside of the Union.
How many members who voted in the election would be aware that the
Reform Group has the backing of the National Civic Council, who
have an uneviable record of interference in the affairs of Trade
Unions throughout Australia.
That interference in Tasmania went to the extent that the
publications put out by the Reform Group in support of its team
contained statements not made by the candidates but dependant on
half truths and innuendo to make up for the lack of union policy
and activity of the candidates.
Finally delegates should be aware that the so called Reform Group
have already indicated that they intend to oppose Bro. Finn as
Assistant State Secretary.'
Similar comments were made by the Queensland state secretary in
address to the 1984 State Conference held on 16 and 17 February
1984.
Earlier editions of the Union publications which were tendered also
took up the theme which emerged from the passages quoted above. For
example, 'The Metalworker' for the month of June 1983 contained an
article in these terms:
'LIBERALS' BID FOR CONTROL OF AMFSU
Senior members of the Queensland Liberal Party are waging a dirty
tricks campaign against the AMFSU.
They are part of a national network of outsiders attempting to
seize control of the union.
Prominent in the campaign in Queensland is the chairman of the
Capricornia district of the Liberal Party, businessman Norman
Byrne.
Byrne, a former motor company manager, is asking metalworkers in
Rockhampton to sign a petition asking the Industrial Registrar to
stop AMFSU returning officers holding elections for 10 positions.
These elections are due in the next few months.
Byrne is not an AMFSU member.
OUTSIDERS
In the central Queensland town of Biloela three businessmen are
seeking signatures for the same petition. They also are not AMFSU
members.
Norman Byrne has a long history of opposition to trade unionism,
and is connected with the extreme right-wing National Civic
Council.
In September 1972 Byrne organised a dinner for NCC leader B.A.
Santamaria in Rockhampton. A photograph of Byrne welcoming
Santamaria to the city appeared in the Rockhampton Morning
Bulletin.
Santamaria has admitted the NCC funded 'Reform Group' candidates
led by Rod Kelly in AMFSU national elections last year.
Byrne, the Liberals and the NCC are now supporting those
masquerading as the 'AMFSU Democratic Rank and File Committee' for
the purposes of the forthcoming State elections.
The elections are for the State Presidency, held by Brian Burns,
and nine National Conference delegateships.
The 'Democratic Rank and File Committee' claims the elections will
be undemocratic and confined to members attending branch meetings
if conducted by the union's returning officers.
This is a lie.
Under union rules, these elections would be by a full and secret
postal ballot of all union members eligible to vote.
The ballot would not be held in the branches as claimed by the
'Democratic Rank and File Committee'. So much for their knowledge
of the union's rules.
Campaign Literature from the 'Democratic Rank and File Committee'
is a mixture of lies, innuendo and slander]
Its theme is that the AMFSU leadership is somehow a threat to the
federal Labor government. Union leaders, according to Norman Byrne
and Co, aim at 'stirring dissension and destroying the kind of
harmony and conciliation which the Hawke government is endeavouring
to develop'.
Metalworkers will be touched to learn that the Liberal Party and
people like Norman Byrne have had a change of heart and now support
Bob Hawke and the ALP.
The AMFSU and its leadership showed their support for the ALP by
donating $50,000 to Labor campaign funds. Bob Hawke collected the
cheque in person at a meeting of AMFSU National Council shortly
before the election. 'Bob Hawke said then that the AMFSU should be
congratulated for giving a lead to the rest of the trade union
movement in negotiations with the ALP over the economic policy
Accord.
He said: 'I applaud the remarkably constructive way in which this
union has operated.'
He added: 'If this union had not adopted such an approach on a
prices and incomes policy it is very unlikely the ALP would be
going into an election with the confidence we have.'"
The issue before the learned trial judge as stated by him was whether:
". . . the powers in question have been abused by the application
of Union resources for the advancement of one sectional interest
only rather than in the interests of members as a whole. This in
turn involves a question of fact which falls to be determined on
the documentary material tendered by the applicant."
His Honour then considered the material published as being published by the
The issue as stated above arose because of the contentions made before him on behalf of the respondents and based on Holmes v. Riordan above, and in particular from the opinion expressed by Dunphy J. at p.197, namely that during an election, resources of an organization may be used to publish material adverse to a candidate to rebut attacks made by the candidate upon the organization or its management. At the time of the hearing of the application before the learned trial judge there was no election being conducted and so the principle stated in Holmes v. Riordan did not arise for application. In any event, it is doubtful whether that statement is correct. A candidate at an election may be quite justified in attacking the management of an organization by its officers, particularly if those officers or their supporters are competing candidates at the election. It would be unfair if an attack of that kind entitled the opposing candidates to use the resources of the organization to further their own interests and to denigrate the interests of the challenging candidate. If that is to be done, it should be done at the expense of the opposing candidates or their supporters, not at the expense of the organization. However, in the present case it is not necessary to determine that issue. It is sufficient to say that it is impossible to determine in advance what conduct engaged in during an election would justify officers of an organization expending the resources of the organization to inform members of the organization of the true position relating to that election. If the question does arise, it will be a matter for the judgment of the officers concerned to determine on the facts of the particular case and in the light of the principles expressed above whether the resources of the organization should be expended for the purpose of publishing information to members of the organization.
In the present case the applicant did not attempt to rely upon any resolution of the kind existing in Short v. Wellings above. No election was being conducted. The applicant sought to rely upon what he claimed to be publication of material adverse to the interests of the reform group and that the publication of this material was likely to continue during the forthcoming elections and thus adversely affect the candidates standing on the reform group ticket. The applicant did not attempt to establish the absence of bona fides in the actions of the respondents. He did not attempt to rely upon the principles enunciated in Allen v. Townsend above. The applicant contended that the powers of the respondents must be exercised bona fide for the benefit and in the interests of members of the Union as a whole. This is a misstatement of the general principle. The trial judge found that the material which had been published by the respondents had been published with the object of advancing the prospects of one group of candidates at the expense of the opposing faction, however beneficial such a result may have been thought to be. In that context, his Honour held that the primary purpose sought to be achieved was an election result rather than the defence of an attack upon the Union, in the sense discussed in Holmes v. Riordan, above. As has been said, that was the wrong issue to be determined in the proceedings.
In our opinion the material does not support the case said to be made out under s.141 of the Act. For this reason the appeal in matter N.S.W. No. 14 of 1984 should be allowed.
At the hearing, however, counsel for the respondents made a concerted attack on the terms of the order made. Relief was granted on a quia timet basis, namely that the practice complained of by the applicant was so well entrenched in the Union publications that there was every reason to accept that unless restrained, the pattern of conduct would continue into the future, presumably during the conduct of the elections due to take place later in the year 1984. That conclusion is not necessarily open, having regard to the fact that the respondents consented to the interim orders when their attention was drawn to the breach of principle discussed earlier in these reasons. There should be no presumption that breaches will continue during the subsequent elections.
In Allen v. Townsend above, Evatt and Northrop JJ. said at p.489:v. Ampol Petroleum Ltd. (1974) A.C. 821 at p.835, has equal application to cases such as the present:
"The form of order is in the nature of a perpetual injunction
directed against future actions that may be taken by the State
executive. We refer to what Lord Wilberforce said in Howard Smith
Ltd. v. Ampol Petroleum Ltd. ((1974) A.C., at pp.834-835). In
the present case, it is impossible to define in advance exact
limits beyond which the State executive must not pass. In our
opinion, it would be most unwise to make an order in such broad and
ill-defined terms which is to operate on future facts in relation
to undefined rights, duties, powers or privileges of the commitee
of management of the Geelong sub-branch."
With necessary adaptions, the following passage taken from Howard Smith Ltd.
"To define in advance exact limits beyond which directors must notattacking the form of the order made. In all the circumstances, apart from the general observations already made, no further opinion need be expressed.
pass is, in their Lordships' view, impossible. This clearly cannot
be done by enumeration, since the variety of situations facing
directors of different types of company in different situations
cannot be anticipated. No more, in their Lordships' view, can this
be done by the use of a phrase - such as 'bona fide in the interest
of the company as a whole,' or 'for some corporate purpose.' Such
phrases, if they do anything more than restate the general
principle applicable to fiduciary powers, at best serve,
negatively, to exclude form the area of validity cases where the
directors are acting sectionally, or partially: i.e. improperly
favouring one section of the shareholders against another. Of such
cases it has been said:
'The question which arises is sometimes not a question of the
interest of the company at all, but a question of what is fair as
between different classes of shareholders. Where such a case
arises some other test than that of the 'interests of the
company' must be applied, . . . ' (Mills v. Mills[1938] HCA 4; , 60 C.L.R. 150,
164, per Latham C.J.)
In their Lordships' opinion it is necessary to start with a
consideration of the power whose exercise is in question, in this
case a power to issue shares. Having ascertained, on a fair view,
the nature of this power, and having defined as can best be done in
the light of modern conditions the, or some, limits within which it
may be exercised, it is then necessary for the court, if a
particular exercise of it is challenged, to examine the substantial
purpose for which it was exercised, and to reach a conclusion
whether that purpose was proper or not. In doing so it will
necessarily give credit to the bona fide opinion of the directors,
if such is found to exist, and will respect their judgment as to
matters of management; having done this, the ultimate conclusion
has to be as to the side of a fairly broad line on which the case
falls."
There is much force in the contentions of counsel for the respondents
The two appeals have been heard together. The Court proposes to determine the substantive issues raised in matter N.S.W. No. 14 of 1984. That determination is based on the fact that the Court had jurisdiction to hear and determine the rule nisi as amended pursuant to leave granted. Accordingly, in matter N.S.W. No. 11 of 1984 the appeal should be dismissed. In matter N.S.W. No. 14 of 1984 the appeal should be allowed, the orders made in matter N.S.W. No. 1 of 1984 on 30 March 1984 should be set aside and the rule nisi therein should be discharged in so far as it sought orders in the form of the orders made on 30 March 1984.
Appeals have been brought from two judgments of a single judge of the Federal Court of Australia. Both judgments were given in one proceeding, in which orders were sought against the present Appellants pursuant to s. 141 of the Conciliation and Arbitration Act 1904 ("the Act"). The Appellants are the holders of various offices in the Amalgamated Metals Foundry and Shipwrights Union ("the Union"), an organization of employees registered pursuant to the Act. They are therefore persons under an obligation to perform or observe the rules of the Union, within the meaning of s. 141(1G) of the Act.
The first judgment was delivered on 2nd March 1984 after the learned Judge
had heard argument on a preliminary question, namely
whether the Court had
jurisdiction to proceed under s. 141, in the absence of any specific rule of
the Union prohibiting the conduct
by the Appellants of which complaint was
made. His Honour held that the Court had jurisdiction. The matter then
proceeded to trial.
The second judgment was given on 30th March 1984. On that
date, the learned Judge made the following order:
"1. The Respondents and each of them perform and observe theThis order was in the form finally settled on by counsel for the Applicant, Michael Patrick Jess, in the course of the trial. To understand the form of the order, it is necessary to examine the facts and the history of the proceeding before the learned Judge.
Rules of the AMALGAMATED METALS FOUNDRY AND SHIPWRIGHTS UNION ("the
Organisation") by refraining from publishing or distributing to
members of the Organisation or causing to be so published or
distributed out of the property, funds or resources of the
Organisation any newspaper, newsletter, pamphlet or similar
publication which supports or promotes or tends to support or
promote or which seeks to defeat any person or group of persons who
have informed the Organisation in writing that he or they intend to
nominate in ballots for the following offices and positions in the
Organisation:-
(a) National Secretary;
(b) National Organisers;
(c) State Secretary, Queensland Branch;
(d) Assistant Secretary, Tasmanian Branch;
(e) State Secretary, Western Australia Branch,
or which seeks to influence members of the Organisation in relation
to voting in the said ballots.
2. The Respondents and each of them perform and observe the Rules
of the Organisation by refraining from using or permitting any
person from using the Organisation's property, funds or resources
to support or promote a candidate or group of candidates or to
defeat any person or group of persons who have informed the
Organisation in writing that he or they intend to nominate in
ballots for the offices and positions referred to in Order 1. or to
influence voters voting or likely to vote in ballots for such
offices.
3. From the date upon which nominations are called for the
offices referred to in Orders 1. and 2. above, the Respondents and
each of them perform and observe the Rules of the AMALGAMATED
METALS FOUNDRY AND SHIPWRIGHTS UNION ("the Organisation") by
refraining from publishing or distributing to members of the
Organisation or causing to be so published or distributed out of
the property, funds or resources of the Organisation any newspaper,
newsletter, pamphlet or similar publication which supports or
promotes or tends to support or promote any candidate or group of
candidates nominating for such offices or which seeks or tends to
defeat a candidate or group of candidates or which seeks or tends
to influence voters or likely to vote in ballots for such offices.
4. The Respondents and each of them perform and observe the Rules
of the Organisation by refraining from using or permitting any
person from using the Organisation's property, funds or resources
to support or promote a candidate or group of candidates or to
defeat a candidate or group of candidates or to influence voters in
the said ballots referred to in Order 1."
The proceeding was commenced by Rule to Show Cause granted on 2nd February 1984. At that time, there were in progress elections for certain offices within the Union. The period during which nominations could be lodged had opened on 15th August 1983 for the position of Queensland State President, and for nine positions as Regional Conference Delegates from Queensland. On 19th September 1983, the nomination period opened for the office of National Organizer - Division 4. In respect of all of these positions, a ballot had opened on 23rd January 1984, and was due to close on 17th February 1984.
As was the case with several elections within the Union in recent years, these elections were contested by candidates who styled themselves as members of a "Rank-and-File Reform Group". This group has apparently set itself to challenge the previously elected leadership of the Union wherever possible. In the election for State President, Queensland Branch, the contest was between the incumbent and a member of the reform group. In the election for National Organizer-Division 4, a reform group member and an Acting National Organizer were the candidates. Electioneering material published on behalf of the reform group candidates showed photographs of reform group members in close proximity to the Prime Minister, Mr. Hawke. One such photograph showed the reform group candidate for National Organizer-Division 4 shaking hands with Mr. Hawke. The tenor of the material was to suggest that the previously elected leadership of the Union was communist or communist controlled, and antagonistic to Mr. Hawke, and the Labor government, whereas the reform group was concerned to work closely with the government.
Apparently in response to this material, there were published and distributed at the expense of the Union various national newsletters. The tenor of these was to suggest that the use by reform group candidates of photos of Mr. Hawke involved deception, and to emphasize that neither Mr. Hawke nor the Australian Labor Party endorsed or favoured candidates in trade union elections. There were also published in these national newsletters statements by Mr. Hawke and Mr. Kelty, the Secretary of the Australian Council of Trade Unions, praising the Union for its attitude to and co-operation with the policies of the Australian Labor Party.
When the Rule to Show Cause was granted, on 2nd February 1984, specific
complaint was made of two such national newsletters. On
that day, the learned
judge made an interim order, no notice of the proceeding having been given to
the Appellants, restraining them
in certain respects. On the following day,
when the matter was returnable before the learned judge, the Appellants
consented to the
continuation of that order. The order was in the following
terms:
"1. Until further Order the Respondents and each of them performobserve the Rules of the Organisation by refraining from using or permitting any other person from using the Organisation's property, funds and resources to support or promote a candidate or group of candidates or to defeat a candidate or group of candidates in ballots for the following offices and positions of the Organisation:-
and observe the Rules of the AMALGAMATED METALS FOUNDRY AND
SHIPWRIGHTS UNION ("the Organisation") by refraining from
publishing or distributing to members of the Organisation or
causing to be so published or distributed out of the property,
funds and resources of the Organisation any newspaper, newsletter,
pamphlet or similar publication which supports or promotes or tends
to support or promote a candidate or group of candidates or which
seeks to defeat a candidate or group of candidates in ballots for
the following offices and positions of the Organisation:-
(a) State President, Queensland Branch;
(b) Regional Delegates to National Conference;
(c) National Organiser, Division 4.
2. Until further Order the Respondents and each of them perform and
(a) State President, Queensland Branch;Although this order was not expressed to be limited in terms of time, it seems to have been contemplated by all the parties, and by the learned Judge, that it would cease to have effect on 17th February 1984, when the ballots closed.
(b) Regional Delegates to National Conference;
(c) National Organiser, Division 4."
On 1st March 1984, pursuant to leave granted on 23rd February, the Rule to
Show Cause was amended. In part, the amendments made
were for the purpose of
adding claims for orders that the Appellants pay to the Union the costs of
production of three national newsletters
and one issue of the Metal Worker, a
journal of the Union. Any question of payment by any of the appellants to the
Union in respect
of any publication has been adjourned for later determination
by the Court, constituted by a single Judge. It is in no way the subject
of
either of the Appeals. The other major respect in which the Rule to Show Cause
was amended was to add the following claims:
"13. That the Respondents and each of them perform and observe the
Rules of the Organisation by refraining from publishing
or distributing to
members of the Organisation or causing to be so published or
distributed out of the property, funds or resources
of the Organisation
any newspaper, newsletter, pamphlet or similar publication which supports
or promotes or tends to
support or promote any candidate or group of
candidates or which seeks to defeat a candidate or group of candidates or
which
seeks or tends to influence voters in ballots for the following
offices and positions in the Organisation:-
(a) National Secretary;the Rules of the Organisation by refraining from using or permitting any person from using the Organisation's property, funds or resources to support or promote a candidate or group of candidates or to defeat a candidate or group of candidates or to influence voters in the ballots referred to in the preceding Order."
(b) National Organisers;
(c) State Secretary, Queensland Branch;
(d) Assistant Secretary, Tasmanian Branch;
(e) State Secretary, Western Australia Branch.
14. An order that the Respondents and each of them perform and observe
It will be seen that these claims related to elections other than those which were current at the time when the Rule to Show Cause was granted. At the time when the amendments were made, it was anticipated that each of the elections referred to in these new claims would take place within 1984. In fact, on the hearing of the Appeals, the Court was informed by counsel for Mr. Jess that no election for State Secretary, Western Australia Branch, was expected to take place during 1984.
In the course of the hearing of the proceeding before the learned trial Judge, the Applicant, Mr. Jess, placed reliance upon a number of publications produced and distributed at the expense of the Union, in previous years and up to the time of the trial. The Applicant's case was that the continuation of publications of the same nature as those put in evidence could be expected, unless the Appellants were restrained by the Court from producing and distributing them or causing them to be produced and distributed. The publications contained material which was critical of the reform group and some of its members, and which alleged that election campaigns on behalf of reform group candidates had, in the past, been funded by the National Civic Council. Reliance was also placed upon a report made to the State Conference of the Tasmanian Branch of the Union, which contained strongly worded criticism of the reform group and certain of its members.
It is convenient to consider separately the question of the jurisdiction of
the Federal Court of Australia to make the orders ultimately
sought by the
Applicant, and then to consider the principles applicable to cases such as
this, the application of those principles
to the particular facts, and the
order which the learned Judge made.
Jurisdiction
The applicant invoked sub-sections (1), (1G) and (1H) of s. 141 of the Act
in seeking the order which was granted to him. These
provisions are in the
following terms:
"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) 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."
As has been stated earlier, the Applicant did not rely on any express provision in the rules of the Union as prohibiting the conduct of which he complained. Both before the learned Judge, and on appeal, the argument on behalf of the Applicant was directed to the proposition that the court was capable of compelling the performance or observance of "implied rules" or implied terms in the rules.
The concept of implied rules or implied terms in the rules of an organization registered under the Act is difficult, for a number of reasons. Section 132(2) requires organizations to comply with prescribed conditions. The conditions are prescribed in reg. 115 of the Conciliation and Arbitration Regulations. Particular reference is made to sub-reg. (2). Among the conditions is the requirement that an organization have rules which make provision for the matters listed in reg. 115(1)(d). In addition, various provision of Part VIII of the Act lay down subjects for which the rules of an organization must provide. Particular reference is made to ss. 133, 133A, and 133B. The content of the rules themselves is controlled to a significant degree by s. 140 of the Act. Sub-section (1) of this section contains both positive and negative requirements which bear upon the rules of an organization. Under s. 157 of the Act, a copy of the rules of an organization certified by the Industrial Registrar to be a true and correct copy is prima facie evidence of the rules of that organization. Section 188A provides for the furnishing to a member of an organization of a copy of the rules of the organization upon request and upon payment of a prescribed amount. Plainly, there are strong reasons for holding that, so far as possible, a member or any other person desiring to ascertain the content of the rules of an organization should be able to do so by reference to a certified copy or to the rule book, without having to consider whether the court might not, in some proceedings, find the existence of additional implied terms or rules.
In the course of argument, the Court was referred to the opinion of the
majority of the Privy Council in B.P. Refinery Pty. Ltd.
v. Hastings Shire
Council (1977) 52 A.L.J.R. 20, at page 26, as to the circumstances in which
courts will recognize implied terms in contracts. This passage is in the
following
terms:
"Their Lordships do not think it necessary to review exhaustively
the authorities on the implication of a term in a
contract which the
parties have not thought fit to express. In their view, for a term to be
implied, the following conditions
(which may overlap) must be satisfied:
(1)it must be reasonable and equitable; (2)it must be necessary to give
business efficacy
to the contract, so that no term will be implied if the
contract is effective without it; (3)it must be so obvious that "it
goes
without saying"; (4)it must be capable of clear expression; (5)it must not
contradict any express term of the contract."
The application of these criteria to the rules of an organization would not be
free from difficulty. In particular, the concept of
"business efficacy" is not
easily transported from the commercial area into the rules of an organization.
In addition, the difficulty
of finding something so obvious that it goes
without saying, and is not already written into the rules, whether as a matter
required
by the Act or the Regulations or otherwise, is difficult. A further
problem which may arise is that the basis of the rules of an
organization may
not be purely contractual. True it is that, before registration as an
organization is effected, there must be in
existence an association complying
with the prescribed conditions and the other provisions of the Act. The rules
of such an association
will bind its members as a contract, notionally made by
each member with each of the others. Once registration takes effect however,
the rules of an organization may be regarded as deriving some, at least, of
their force and effect from the Act. This possibility
was adverted to by
Latham C.J. in R. v. Commonwealth Court of Conciliation and Arbitration ex
parte Barrett [1945] HCA 50; (1945) 70 C.L.R. 141, at page 151, where His Honour said:
"In the present case, it is not shown that the rules of the
organization were binding upon members of a voluntary association
by
virtue of a contract before the organization became a registered
organization under the Act. But, even if it were shown
that the rules had
previously, by virtue of a contract, become binding upon the members of
the voluntary association, that fact
alone would not, after registration,
be the source of rights or duties, either in the case of original
members, or in the
case of members who joined the organization after the
registration. It is not necessary or relevant to in order to discover what
the
rules are to make any inquiry into any agreement by any of the
members. In my opinion, the rules as rules of the organization
derive
their force from the Act, and, therefore, a controversy as to the
observance or performance of the rules is a matter
arising under the
Act. A claim that the rules should be observed and performed is a claim to a
right conferred by or under the
statute. It therefore arises under the
statute."
For present purposes, it is unnecessary to debate the correctness or otherwise of this proposition, which does not seem to have been echoed in the judgments of the other members of the court in Barrett's case. The importance of the point is that the tests for the implication of terms in commercial cases do not necessarily sit easily with the rules of organizations.
The idea that implied terms can be found in the rules of organizations, and that those implied terms are capable of enforcement pursuant to s. 141 of the Act, seems to have surfaced in the decision of the Australian Industrial Court in Gordon v. Carroll (1975) 27 F.L.R. 129, especially at pages 155-156. In Dugmore v. Porter (1982) 3 I.R. 418, at pages 421-2, Northrop J. expressed doubt whether Gordon v. Carroll was authority for the proposition that the Court could give directions for the observance of an implied rule. On appeal, in Porter v. Dugmore, Federal Court of Australia constituted by Smithers, Keely and Sheppard JJ., 2nd April 1984, unreported, Smithers J. (with whom Sheppard J. concurred) expressed the view that this doubt is well founded. I agree with that view.
The difficulty of implying terms into the rules of an organization does not, however, mean that such rules are to be construed as if no implication whatever arises from them. In many respects, there are to be derived from the express terms of the rules, the terms of the Act and the Regulations, and the nature, function and purpose of the organization concerned, implications which limit what might otherwise be the extent of the express terms of the rules. The most obvious example is that powers given by the rules of organizations to inflict penalties on members are construed as being subject to the implication that such powers will not be exercised without adherence to the principles of natural justice. The implication of the requirements of natural justice is so well established that it is unnecessary to cite authority. Porter v. Dugmore, referred to above, was itself a case in which both Northrop J. and the Full Court held that there existed an implied limitation on the powers of the governing body of an organization, preventing the institution of a system requiring members of the organization to possess "OK" cards distributed by the organization, in order that those members could obtain employment. In Jansen v. Slater (1974) 24 F.L.R. 279, the Australian Industrial Court held that a power in the rules of an organization which enabled the organization to make payments to former full time officials was impliedly limited to payments which did not constitute mere gifts. No doubt, other examples of implied limitations on the powers expressed in the rules of organizations could be found.
Where such an implied limitation has been exceeded, the question arises whether an act which is outside the true extent of the power can be restrained in the exercise of the jurisdiction given by s. 141 of the Act. In some cases, it may be possible to point to a specific rule or specific rules the performance and observance of which is sought. For instance, if a member of an organization is expelled without being afforded an adequate opportunity to be heard on the question of his or her expulsion, it might be said that specific provisions of the rules entitle him or her to continue to hold membership in the absence of a valid decision terminating that membership. Where the decision does not involve expulsion, but rather a fine or a censure, this analysis may become more difficult; it may not be possible to point to any provision of the rules which, in terms, entitles the member concerned to be treated as if he or she had not been fined or censured. Nevertheless, the authorities indicate that those responsible for the decision in such a case may properly be ordered to treat it as null and void under s. 141 of the Act. See, for instance, Lynch v. Waters (1967) 11 F.L.R. 116, and Magner v. Fowler (1979) 46 F.L.R. 78.
In such cases, it is not possible to point to any specific provision of the rules the performance or observance of which is being ordered or directed. In a real sense, the Court is ordering or directing the performance and observance of the rules of the organization concerned as a whole, the impugned act being regarded as a departure from the overall scheme of such rules. At all events, the jurisdiction of the Court in such cases seems to be so well established that it is too late to attempt to overturn it. For this reason, in appearing to be based on the proposition that an applicant for relief under s. 141 will base his or her case on a specific rule or specific rules of the organization concerned, 0. 4 R. 15(5)(a) of the Federal Court Rules may proceed on a wrong assumption.
In the present case, attention was directed to certain express provisions in
the rules of the Union. These were found in rules 6,
15 and 16. To the extent
that they are relevant, they are as follows:
"RULE 61. The National Council shall be the Committee of Management of the Union and shall subject to the powers and decisions of the National Conference and these Rules, have the care, control, superintendence and management in all respects of the affairs, business,
POWERS OF NATIONAL
COUNCIL
(a) interpret the Rules and enforce the general policy as
decided by the National Conference.
(b) determine matters of policy not covered by Conference
decisions.
(c) control and conduct the business and affairs of the
Union while the National Conference is not in
session.
(d) appoint the Editor of the Union Journal and manage and
control the policy of the Journal.
(e) expend such monies as may in the opinion of the
Council be necessary.
(f) ...out the Rules, decisions and policies of the Union and impose penalties in accordance with these Rules.
(g) ...
(h) ensure that Officers and Committees of the Union carry
(i) ...officers of the Union.
(j) control and supervise the work of the National
RULE 15vested in the National Trustees as joint tenants and be held by them in trust for the members of the Union.
HOLDING OF PROPERTY AND
LEGAL PROCEEDINGS
1. All funds, investments and other property of the Union shall be
RULE 16conveyed to them as Trustees of the Union and to expend moneys without distinction between capital and income.
INVESTMENTS COMMITTEE AND
POWERS OF NATIONAL
TRUSTEES
1. The National Trustees shall have power:
(a) To receive money or other property paid, delivered or
(b) To invest, sell, exchange or otherwise dispose of investments or other property of the Union and to deal with the funds of the Union including purchase or otherwise acquiring of property out of the funds of the Union."
The real question is as to the nature of the implied limitation (if any) on
these express powers. If some relevant implied limitation
exists, the Court
has jurisdiction to direct the appropriate persons who are under an obligation
to perform or observe the rules
of the Union to treat as null and void, and to
refrain from continuing, any act which exceeds the powers given by the rules
on their
true construction.
Principles
In determining whether and to what extent the express powers contained in
the rules of the Union are limited by implication, it
is necessary to examine
a number of principles. To some extent, these principles are capable of
conflicting in certain cases. Where
such conflict occurs, it is necessary for
the Court to resolve it, having regard to the circumstances of each case. For
convenience,
the principles will be numbered to enable briefer reference to
them when their application is considered.
1. It is proper, and perhaps necessary, for an organization to communicate
with its members about the affairs of the organization
and matters which may
be of interest to the members. In the exercise of the power give by s.
51(xxxv) of the Constitution, the Parliament has chosen to set up a system of
conciliation and arbitration, which depends primarily upon the existence of
registered
organizations, to represent those whose interests will be affected
by the agreements or decisions reached as a result of the conciliation
and
arbitration process. That the Parliament chose to rest the system largely upon
registered organizations, whereas it might have
chosen other means, has been
recognized at least since Jumbunna Coal Mine, No Liability v. Victorian Coal
Miners' Association (1908) 6 C.L.R. 309; see especially the judgment of
O'Connor J. at pages 358-360. In the making of demands which give rise to
industrial disputes, which
found the jurisidiction of the Australian
Conciliation and Arbitration Commission, registered organizations act as
parties principal,
and not as agents for their members: Burwood Cinema Ltd. v.
Australian Theatrical and Amusements Employees' Association [1925] HCA 7; (1925) 35 C.L.R.
528. It is obvious that the responsibilities of an organization within the
system of conciliation and arbitration could not adequately
be carried out in
the absence of communication between those charged with the government of the
organization and its members. For
this reason, it has been held that the
publishing of a newspaper for members fell within the powers of an
organization, even in the
absence of any specific power of that nature:
Australian Workers' Union v. Coles (1917) V.L.R. 332. That decision was
expressly approved by the majority of the High Court in Williams v. Hursey
[1959] HCA 51; (1959) 103 C.L.R. 30; see page 52 in the judgment of Fullagar J., with whom
Dixon C.J. and Kitto J. concurred. For the same reason, communications between
officials of an organization and its members on matters falling within the
interests of the members would be the subject of qualified
privilege, and
hence immune from actions for defamation in the absence of malice. Compare Hay
v. Australasian Institute of Marine
Engineers [1906] HCA 31; (1906) 3 C.L.R. 1002 and Duane
v. Granrott (1982) V.R. 767. This power to publish communications to members
is generally capable of exercise whether or not an election within the
organization
is taking place or is about to take place, and whether or not the
matters published might be said to influence or be likely to influence
the
votes of members in such an election. To hold otherwise would be to restrict
unduly the operations of organizations, and to require
of them a standard of
conduct different from that commonly applicable in other democratic
institutions. In other words, it cannot
be said that those responsible for the
content of official journals of an organization must refrain from informing
members about,
for example, the results of the conciliation process, simply
because those results might reflect credit upon those officials, and
thereby
attract votes.
2. In the expenditure of the funds and the use of the resources of an
organization, its objects and powers are to be interpreted broadly,
so that
any action which can fairly and reasonably be regarded as falling within those
powers and objects will be valid. This test
emerges from Williams v. Hursey
[1959] HCA 51; (1959) 103 C.L.R. 30, at pages 57-58 in the judgment of Fullagar J., with whom
Dixon C.J. and Kitto J. concurred, and from Stevens v. Keogh [1946] HCA 16; (1946) 72 C.L.R.
1, at pages 22, 27-28 and 30. Where the decision to expend funds or use
resources is made by the members of an organization themselves,
in general
meeting, or by persons elected to conduct the affairs of the organization, the
court will be slow to hold that a particular
expenditure or use of resources
is beyond the powers given. The court does not substitute its own opinions as
to what is proper for
those of the persons making the particular decision. In
Williams v. Hursey, referred to above, it was specifically held that a
governing
body within an organization could properly take the view that all
the members of the organization should give financial support to
a particular
political party.
3. A power given to a person or persons by the rules of an organization must
be exercised in good faith and for the purpose for which
it is given, not for
some ulterior or extraneous purpose. In support of this proposition, it is
unnecessary to do more than to refer
to the joint judgment of Evatt and
Northrop JJ. in Allen v. Townsend [1977] FCA 10; (1977) 31 F.L.R. 431 at pages 483-489, and
to the cases cited in that passage, although the proposition at page 483 that
the fiduciary duty therin referred
to is owed to the members of the
organization, as distinct from the organization itself, may be questionable.
In this respect, it
is important to note that the onus of proving lack of good
faith or ulterior purpose rests upon those who seek to overturn the exercise
of a power, and not upon those who seek to uphold it. See Ascot Investments
Pty. Ltd. v. Harper [1981] HCA 1; (1981) 148 C.L.R. 337, at pages 348-349 per Gibbs J. (as
he then was), with whom Stephen, Aickin and Wilson JJ. concurred.
4. The funds and property of an organization may not validly be used to support one candidate or group of candidates in an election, or one point of view in a plebiscite, to the exclusion of another candidate or other candidates or the opposite point of view, or to campaign against a candidate or candidates in an election or a point of view in a plebiscite. This principle, or something like it, has emerged from a number of authorities, including Short v. Wellings (1951) 72 C.A.R. 84, Holmes v. Riordan (1956) 86 C.A.R. 180, Lyons v. Deegan [1978] FCA 22; (1978) 35 F.L.R. 430, Kanan v. Hawkins, Federal Court of Australia, constituted by J.B. Sweeney, 14th September 1979, unreported, Re Australian and Postal Telecommunications Union: ex parte Wilson [1979] FCA 107; (1979) 28 A.L.R. 330, Stephenson v. Dowdell, Federal Court of Australia, constituted by J.B. Sweeney J., 19th June 1980, unreported, Valentine v. Butcher [1981] FCA 30; (1981) 51 F.L.R. 127 and Re Penhallurick (1983) 51 A.L.R. 589. This principle usually operates to invalidate acts which might be said to fall within the literal terms of some power given to some person or persons by the rules of an organization. It operates, therefore, by way of implied limitation upon the express terms of such a power. For this reason, having regard to the matters to which I have referred on the question of jurisdiction, care is necessary to ensure that any implication is proper.
In some of the cases in which this principle has been referred to, it has been expressed in terms that require that the funds and resources of an organization must be used equally for the benefit of all members. See, for instance Kanan v. Hawkins, referred to above. In the present case, in his judgment of 2nd March 1984, the learned trial judge adopted this formulation of the principle. In my view, it is incorrect. There are many situations in which the governing body of an organization will quite properly expend the funds of an organization in a way which will benefit only some members, or will benefit some members more than others. Some organizations find it necessary to subsidize the expense of running small branches by payment out of funds collected from members of larger branches. In some cases, the pursuit of a claim for industrial conditions on behalf of one member or a group of members may involve a disproportionate expenditure of the organization's funds, without any real possibility of a flow on of any conditions won to other members. Depending upon the circumstances of each case, these unequal applications of funds may be perfectly proper. To require that those whose responsibility it is control the expenditure of an organization's funds treat every item of expenditure on the basis that all members are equally entitled to the funds is to go beyond the area of proper implication.
It must also be borne in mind that there is nothing intrinsically wrong with the use of the funds and resources of an organization to promote candidates in elections within the organization. For example, an organization may publish to members a journal containing the election addresses of all candidates. The principle only comes into play when there is a denial of an opportunity to some candidates which is made available to others. There may even be situations in which some use of the funds and resources of the organization to favour one candidate may be appropriate. For instance, the committee of management of a branch may take the view that the interests of the branch will be furthered by the election of a member of that branch to some Federal office. In such circumstances, the committee of management may see it as proper to campaign within the branch for the election of such a person.
The exact basis of the principle is difficult to determine. In some respects, it is akin to the rule that a fiduciary agent must not profit from his or her trust. That rule does not, however, explain in its entirety the principle. In some cases, the person responsible for disseminating electioneering material may only profit from its dissemination by the election of other persons whom he or she wishes to be elected. In part, the principle must be taken to rest upon implication derived from the statutory framework within which an organization operates. For some time, reg.115(1) (d) (v) of the Conciliation and Arbitration Regulations has obliged organizations to have rules which make provision for the control of committees by members. Similarly, reg. 115(1) (d) (i) has required rules for the election of committees, officers and other governing bodies. More recently, the express objects of the Act have included that which is found in s. 2(f), namely to encourage the democratic control of organizations and the full participation by members in their affairs. If the rules of an organization were seen to allow those in power to use the funds and resources of the organization to retain their position of power, they would hardly be described as making provision for elections, or for the control of committees by members, and they would tend to run counter to the object found in s. 2(f).
As is the case with claims against fiduciary agents who have profited from their positions, the remedies appropriate to departures from this principle will vary. There may be cases in which a payment to the organization sufficient to cover any cost to it of the publication will be a sufficient means of dealing with the situation; the result would be the same as if electioneering material had been produced in the first place at the expense of those producing it. For present purposes, it is unnecessary to decide whether such repayment can be ordered pursuant to s. 141 of the Act, or whether it is necessary to rely upon State law, with possible access to the accrued jurisdiction of this Court. Without examination of the particular rules of an organization, it will often be impossible to say where relief should be sought. In other cases, repayment will not be a sufficient remedy. If, for instance, the benefit has been taken of a letterhead of the organization, which might be thought to influence voters more than material obviously produced on behalf of one candidate, some other remedy might be necessary. In such circumstances, a publication may be restrained under s. 141 if it is known about in advance. There may be cases in which the infringement is such as to amount to an irregularity for the purposes of Part IX of the Act, and the Court would then be entitled to order the conduct of a fresh ballot or a fresh election if the result of the election may have been affected by such an irregularity. Because of the vast variety of situations which might occur, it is impossible to lay down any guidelines as to the precise circumstances in which this principle will operate, or as to the appropriate remedy in any such circumstance. Each case will have to be dealt with as it arises.
It remains to consider the application of this principle, and those earlier
set out, to the facts of the present case, and to consider
the order made by
the learned trial Judge.
The Application of the Principles
Before the learned trial Judge, no attempt was made to prove the facts which would have been necessary if reliance were placed upon principle 3. In other words, evidence was not led to show lack of good faith or the existence of some ulterior or extraneous purpose in respect of any decision to publish the material complained of. Reference was made at the trial to some of the cases concerned with a similar principle in relation to companies and other decision making bodies (although not, apparently, to Allen v. Townsend, referred to above). On appeal, counsel for the Applicant sought to rely upon the fact that none of the Appellants had sworn an affidavit or entered the witness box as evidence of bad faith or ulterior purpose. Such an argument, however, attempts to reverse the onus of proof. In addition, there may be many reasons for failure to give evidence. Reliance was also placed upon the history of publications, the allegation being that the Appellants, through the Union's journals had consistently sought to denigrate the reform group and its members. This proposition, however, may equally be consistent with good faith on the part of the Appellants. It does demonstrate that they did not seize on a particular occasion for the purpose of electioneering. One further factor needs to be mentioned in this context. The fact that the Appellants were prepared to consent to the continuation of an interim order by the learned trial Judge, restraining them in broad terms from publishing material during the conduct of the elections which were then current, tends to show that there was no lack of good faith on the part of the Appellants.
In the absence of evidence of bad faith or ulterior purpose, the question is one of the application of principles 1, 2 and 4 to the particular circumstances. It will be seen that there is some possibility of conflict between principle 4 on the one hand, and principles 1 and 2 on the other, in a given situation. Such conflict is inevitable, and must be resolved by the Court on the particular facts of a case. Generally speaking, principle 4 will only come into operation during the actual conduct of an election, i.e. at a stage when it is known with some certainty who are the candidates contesting the election. During the period between the lodging of nominations and the close of any ballot, the operation of principles 1 and 2 will be restricted to some extent by principle 4. In short, it will not be a proper use of the funds and resources of an organization to apply them to electioneering.
In my view, notwithstanding the conduct of the elections which were in progress when the learned Judge first granted the Rule to Show Cause, it was proper for the Union to inform, or to continue to inform, its members of the attitude of the governing bodies of the Union to the Prices and Incomes Accord, to the Australian Labor Party, and to the Government and the Prime Minister. It was also proper to remind members of support which had been given by the Union to the Australian Labor Party in the preceding Federal election campaign. In like manner, officers of the Union could inform members of the attitude taken by the Australian Labor Party and Mr. Hawke to the question of supporting or endorsing candidates in elections within Unions. It was also proper, in my view, to inform members that the National Civic Council was alleged to have supported candidates in past elections within the Union; the question of outside bodies taking an interest in the results of elections within the Union could reasonably be seen as of interest to members. All of these matters fell within principle 1. Although it might be said that some or all of them could influence voters in their choice of candidates in the elections, they were nevertheless subject upon which communication to members could continue, even during the conduct of elections.
On the other hand, when statements were made in the publications of the Union, published during the conduct of elections, to the effect that the reform group or some of its members were guilty of deception, principle 4 came into operation. There is a difference between stating facts or alleged facts about a particular subject, and offering opinions which are abusive or praiseworthy about particular candidates or the groups with which they are identified. The latter amounts to electioneering. Principle 4 then overrides principle 1, during the conduct of an election.
The learned Judge does not appear to have approached the matter with this
distinction in mind. Rather, His Honour's attention seems
to have been
directed to the question whether the funds were expended in the interests of
the members as a whole. I have already
held this to be an inappropriate
criterion for determining the propriety of expenditure. In addition, His
Honour took the view that
publication was with the object of advancing the
prospect of one group of candidates at the expense of the opposing faction,
and
that this was improper. In the absence of evidence of subjective purpose,
it is difficult to see how this conclusion could be reached.
The Orders
It is clear that the orders which the learned trial Judge made went far beyond what the occasion demanded. Their effect was to deny to a very large extent the operation of principles 1 and 2. They were also too broad to justify by reference to principle 4. Even if principle 3 had been properly invoked, the orders would have to be considered as too broad, because they would operate to prevent publications whether or not they were made in good faith and for the purpose for which the power was given. There is a real danger in attempting to frame orders under s. 141 of the Act in broad and general terms, by reference to past conduct. This is particularly so when such orders would operate irrespective of the times at which elections began and ended.
A number of specific criticisms can be made of the form of the order made by the learned Judge. Paragraph 1 of that order prohibits the publishing or distribution of any newspaper, newsletter, pamphlet or similar publication which supports or promotes or tends to support or promote certain persons. In the overall conduct of the affairs of the Union, it might be very difficult for any of the Appellants to determine whether they were acting in breach of an order in these terms in publishing or distributing a particular document. In a sense, any report to the members of the Union about any industrial affairs might be regarded as tending to support certain office bearers of the Union by showing that they had discharged their duties in some way beneficial to some or all of the members. The manner of discharge of their duties by office bearers is a matter of great importance to the members, and a proper subject of communication with them. Further, paragraph 1 of the order prohibits publications which seek to defeat certain persons. The change in language from "tends to support" to "seeks to defeat" may indicate a change from an objective test to a subjective one in circumstances where there appears to be no reason for such a change. Paragraph 1 of the order is also intended to operate in relation to persons or groups of persons who have informed "the Organisation" in writing that he or they intend to nominate in ballots for certain offices. It is not clear from the order how the Union can be notified in writing, and there is no procedure laid down in the rules whereby intending candidates for future elections may notify the Union in writing of their intention to stand. The idea of a group of persons informing the Union in writing that they intend to nominate is one which lacks clarity, especially on the question whether each member of the group need be named. After the list of offices to which paragraph 1 of the order is intended to relate, the phrase "seeks to influence" recurs, raising again the question whether a subjective test is intended. Similar criticisms may be made of the other paragraphs of the order.
The single most important defect in the order is that nowhere does it contain any express time limit. On its literal terms, members of the Union could render themselves immune from criticism in the Union's publications by giving some written notice that they intended to nominate for the offices mentioned in future years. The reality was that, by the time the order was made on 30th March 1984, the occasion for making any order restraining publication with reference to the elections which were current at the time when the Rule to Show Cause was granted had passed. The occasion for making any orders with respect for future elections had not yet arisen. If it does arise, further proceedings may be brought under s. 141 with respect to specific allegations, and orders can be made in specific terms.
In the circumstances, the appeal in matter N.S.W. No. 14 of 1984 should be allowed, the order made on 30th March 1984 should be quashed, and the amended Rule to Show Cause should be discharged insofar as it sought orders restraining publications. The appeal in matter N.S.W. No. 11 of 1984 was strictly unnecessary; questions of jurisdiction could have been dealt with in the other appeal. Nevertheless, because the decision of the learned Judge on 2nd March 1984 was correct in the result, that appeal should be dismissed.
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