we, They Inaustrial law - rules cf roemisteres wganization - erection = imdied ob}igari08on sor to nze furxwis or resouces of orgaun:.aticon to suprert one ecncidat2 eyeinet anvine. ~- whather invertisge on unten yournal OF a Osid advert occmeat foc one camiadote broach es amplicd objication =" whevher opligaciew to take action to ensure "oguality"™ botween cendidstec ond tnat wecl candidate knew of righbk to plac: adveltisemene - Postet Reyulations reguit.ng that adverticemenc be endorsej as "Sevploment to 'Bluepranc'™ - whether distribution to i.srbecs by hand of Jeafiet so enaurs:d is a use of resources of ordanizatton - use of oruanizers and shop stewards te distribute election leaflet - whether breach of implied obligation - whethec 1977 amending Act renoved discretionary power to refuse to meke order - Uoncijiaticn and Arbrtrritror Act 1904 5.141] VALENTINE ve. BUTCHER AND OTUBRS (Ve. Me. Loof Leel) Coriun: Keer J. Plece: Nelbourne Date: 20 Macch 1981 IN HE FEDERAL COURT OF AUSURADIN VICTOPLB DISTRICT REGISTRY INDUSTRIAL DIVISION BETWUEN: AND: JUDGE MAKING ORDER: KEELY J. WHERE MADE: Melbourne DATE OF ORDE?: ORDER OF THE COURT THAT: 1. The interim ord made ers March 1981 be rescinded. 2. The respondents Georges Hardiman, Geoff Whitehead and perform and observe the rules of V. No. J of 1981 ee eee iN THE MATYLR of the Conct:iation and Arbitration Act 1904 DONNA MARIA VALENTINE Applicant GEORGE BUTCHER, NORMAN | BILE HARDINAN and GROVE WHITCHEAD (personnaliy and as representing all of the persons listed in a leaflet purporting to be a supplement to "Blueprint", Federal Newspaper of the Association of Draighting Supervisory and Technical Employees, Felruery 1981 and ARTHUR GRE'G HARDING, Respondrnts 20 March 1981 ex parte by Smithers J. Butcher, Norman Harding, Bilt Bd ™yrhur Greig are directed the Asgeciztion of Dre ughliret 2. Sapervisory and Technical Employees by refraining by themselves, their servants or agents, fron using the property, resources, machinery or staff of the said organization to support, promote, or defeat candidates or influence voters in the current election being conducted within the organization for the position of federal assistant secretary. 3. The rule to show cause 18 otherwise discharged. 4. Each party Shali have liberty to apply. IN THE FEDMRAL COURT UF AUSTRALIA , ) VICTORIA DISTRICT REGISTRY ) V. No. 1 of 198) ) ) INDUSTRIAL DIVISION IN THE NATTER cf tne Conciliation cnd Arbitration Act 1904 BETWEEN: DONNA MARTA VALENTINE Applicant AND: GEORGE BUTCHER, NOR.AN IARDING, BILL HARDINAN and GEOF" WHITEHEAD (personnally and as representing all of the persons listed 3n a leaflet purporting to be a supplement to "Blueprint", Federal Newspaper of the Association of raughting Supervisory and Technical Employees, lebruary 1981 and ARTHUR GREIG Respondents REASONS FOR JUDGMEN'T 20 March 1981 KEELY J. On 3 March 1981 the applicant obtained from Smithers Jd. a rule ordering the respondents to show cause on 12 March 1981 vhy certain orders should not be made under s.141 of the Conciliation and Arbitration Act 1904 (the Act). His Honour also made ex parte interim orders which included tne following terms: "lL. Yhat until the hearing and determination o3 the Rule to Show Cause herein or further order the Respondents and cach of them, and all the persons whose nameS appear in the said leaflet perform and obseive the rules of the association of dranghting Supervisory and Technical Employees by refraining by themselves, their servants or agents, trom publishing, circulating or distributing to members of the said organization or otherwise the leaflet purporting to be a supplement to 'Bliveprint' Federal Newspaper of the Association of Draughtin4 Supervisory and Technical Employees, February ysl. 2. That until the hearing and determination of the Rule to Show Cause herein or further order that the Respondents and each of them and ail of the persons whose names appear in the said leaflet perform and observe the rules of the Association of Draughting Supervisory and Technical Employees py refraining by themselves their servants or agetuts, from using the property, resources, machinery or staff of the said organization to support, promote, or defeat candidates or influence vcterg in the current election being conducted within the organization for the position of Federal Assistart Secretary. The application relates to an election for the office of federal assistant secretary of the Association of Draughsing Supervisory and Technical Employees (the association), - sometimes referred to as ADSTE. The ballot in the elec..ion opened on 2 March 1981 and 1s to close on 2 April 1981. Two nominations have been received for the position. The candiietes are Arthur Greig, the fifthnamed respondent, wi'o 18 at rvrirent the federal assistant secretary, and the applicant, who is a member of the association and 1s the secretary of the A..T. branch of the association. As to the other respondents, Goorg: Butcher is the federal secretary of the association and editor ge of its newSpaper "Blucprint", Mormen Harding 1s feccral prestdent, Bill Hardiman is a fedoral councillor for Victcria and an industrial officer ci the assocration and Gooff Whitcnead 18 secretary of the Victorian branch of the association. Because of the urgency of the matter Mr Peter Gray of counsel on behalf of the epplicant and Mr Brian Lawrence of counsel on behalf of the five respordents agreed that the Court should make a final determination in the matter instead of confining itself to determining an application in respect of the interim ord?rs. In hec supporting affidavit the applicant deposed that: "... shortly after the 2nd day of February 1981, I sought from the Federal Secretary of the Organization, the abovenamed Respondent George Butcher, advice as to whether candidates for office would be entitled to put their respective points of view in the organization's federai newspaper, Blueprint, prior to the conduct of the ballot. ..." The applicant received from Mr Butcher a reply which, omitting formal parts, was in the following terms: " 19th February, 1981 Dear Donna, Election for Office of Fedora] Ass: scent Secretary The Electoral Officet has coufirmed that an election for the office of Federal Assistant Secrotary will be held. The ballot will open on Maren gna and vlose on April 2nd. The The control of the election wrll be totally in contLrois of Mt. Small of the Australian Blectoral Office. I have decided, after consultation with our ledal adviser and the Electoral Office, to give the candidates for office, space in the fortncoming issue of Blueprint to put their cas? to all menhers ef the Union. The materlal will be limited to 3006 - 350 words and it will be given equal space and treatment. The material published will be as presented by the candidates with the provision that any breaches of the laws relating to defamation and libel wiiJ cf course have to be observed by myself as Fditer. The policies of the Union will also be a facter. Any other election material which either of the candiaates might wish to distribute to the membership 1s their own affair. The preparation and distribution of any such material must not he a cost on the Union's finances or resources. That includes stationery, printing, telephone etc. The same conditions will apply to other matcrial which individuals or groups might wish to distribute. The material for publication 1s wanted as soon as possible to ensure that the publication of the Feb.tuety issue of Blueprint is not unduly delayed. A singse column photograph of the candidates will be included in Blueprint if both agree. This letter is in confirmation of verbal advice given to yourself on February 9th, 1981. I seek your co-operation in ensuring an early supply of your message and that no undue problens wil] arise as a result of this offer to you. Yours faithfully, (signed) GEO. BUTCHER FSDERAL SECRETARY" February 13981 issue of "Blueprint" contains material and a 5. photograph presented by each of the two candidates but has not been sent out to the membership generally for !:easons wnicn wiilt later appear. Early in February 1981 Mr Whitehead, the fourthnamed respondent, called together a group of people "for the purposes of supporting Mr Greig's re-election" as federal assistant secretary. That group, called the "Re-elect Arthur Greig, Federal Assistant Secretary, ADSTE Campaign Committee" (the campaign committee) first met on the evening of 10 February 1981. Following upon discussion at that meetiny Mr Whiteheed on 16 February 1981 prepared a hand written draft of a leaflet headed "Re-elect Arthur Greig Federal Assistant Secretary ADSTE" (the leaflet) and took it to the second meeting of the campaign committee on the evening of 17 February 1981. The respondent Mr Butcher did not attend any of 1tsS meetings. On 17 February 1981 before the meeting Mr Whitehead, as convenox of the campaign committee, wrote to the editor of "Blueprint" a letter which, omittiny formal parts, was in the following terms: . "RE-ELECT ARTHUR GREIG, FEDERAL ASSISTANT SECRETARY ADSTE CAMPAIGN COMMITTEE Jyth. February, 1981, Deac Sir, 6. RE: Supplement to 'Blueprint', February 198] Issue I understand that it 1s possible to circulate advertising material, relevant co ADSTE members, as an inserted supplement to 'Bloieprint'. On behalf of the 'Campaign Committee For the Re-election of Arthur Creig, Federal Assistant Secretary', I seek your agreement to circulate to ADSTE members, the attached 'saflct as a suvplement to the February, 1981 issue of 'Blueprint'. Of course, all costs associated with such circalation will be born by the above Committee. It would be appreciated 1f you could advise ine of your decision and, if in the affirmative, the details of costs, etc., at your earlies- convenience. Could you please send your reply to me at the address below. Yours sincerely, (signed) G.N. WHITEHEAD" Mr Butcher replied in terms which, omitting formal parts, as follows: " 27th February, 1981 Dear Sir, I now officially acknowledge your letter of 17th February and wish to confirm my verbal advice given to you on Friday 20th February. l. After seeking legal advice, I agree to your proposition. As Editor the acceptance of material for insertion in Blueprint is my responsibility. 2. The leaflet must contain a printed notification that it is a Supplement to Blueprint February 1981. were EL ee ml net 7. 3. The approximate cost of having the ileeflet inserted 1S $350.00 an3 the final ameunt will be subject of invoice notification. 4. It will be your responsibility to ensure that the supply of the leaflet for inserticn is delivered to Industriel Printing and Publicity Company in Dover Strect, Richmond. 5. Further, it will be yeur responsibility to ensure that the delivery of th- leaflets be achieved no latet ther 12 noon on Tuesday February 24th, to obviate any delay in printing. A delivery later tnen thar dace will mean that it won't be inserted. 6. No charge on Association Funds ius to he incurred in the prodvction and delivery of the leaflet to the Printer. 7. All costs associatcd with the aasertion and any additional delivery charges cteused by the insertion in Blueprint will ne charged to you as Convenor of the Comnittee. 8. That a copy of the leaflet is to be made available for my perusal prior to my approvel being finalised. Yours faithfully, Geo. Butcher Editor - Blueprint" The leaflet inserted in copies of the February 1981 issuc of "Blueprint" is in the following form: "Re-elect ARTHUR GREIC FEDERAL ASSISTANT SECRETARY (photograph) ADSTE We, the undersigned Ofricers and Officials of ADSTE, have Known and worr)d with ARTHUR GRIEIG foe many years and have great respect for his leadership qualities, deaicatton anda abilities. We wholeheartedly endorse Arthuec & re-election as Federal Assistant CSecretacy of ADSTE, We cail upon all mombers to cast a vote for ARTHUR GREIG to ensure that he 1s re-elected to continue to work for the betterment of ali members of the Association. Vote xX ARTHUR GREIG Ballot for Federal Assistant Secretary Opens Monday, March 2nd, 1981 : Closes Thuisaay, April 2nd, 1981 Norman Harding, Federal President George Butcher, Federal Secrexary Graham Harris, Federal Vice-President Bill Hardiman, Federal Councillor Victoria (Industrial Officer) Noel Trent, Federal Counczllor Victorie Charlie Pandolfo, Federal Councillor Victoria (President) Jack Frost, Federal Councillor Sth. Australia (President) Peter Harrison, Federal Councillor 9'Jand (President) Ken Philp, Federal Councillor Q'land Ted Oliver, Federal Industrial Officer Joe Nieuwenhuizen, Federal Industrial Officer Colin Meikle, Secretary South Australia B111 Sinnott, Industrial Officer Sth. Australia Ted Turner, Industrial Officer, Sth. Australia Geoff Whitehead, Secretary Victoria Bill Brisbane, Industrial Gfticer, Victoria Judith Bornstein, Industrial Officer, Victoria Ne1l Robertson, Industrial Officer, Victoria Geoff Larkin, Industrial Officer, Victoria Jim Bonding, Secretary, Queensland Bob Warwick, Vice-President, Victoria Lindsay Dyer, Treasurer, Victoria Bob Millett, Assistant Sccretary, Victoria Eric McAra, Vice-President, South Australia Peter Dewhurst, Treasurer, South Australia Frank Cook, Geelong Sub-Branch Peter Mansell, Bendigo Sub-P:ranch President DON'T LET APATHY BE THE WINNER! ALL MEMBERS TO VOTE, AND VOTE EARLY Preparation and circulation of this leaflet financed by the above veople. Supplement to 'Blueprint', Federal Neéewspaver of ADSTE, February 1981." The leaflet inciudes a picture cf Mr Greig and the wording 1s printed in black type on yellow paper. Election material in support of the applicant was distributed to members of the Victorian branch in February and March 1981. Copies of one such pamphlet were handed to members at the annual general meeting of the branch hy one David Lambert, the federal industrial officer of the association. That pamphlet contained "endorsements" of the applicant by three persons currently holding office respectively as A.C.T. branch president, A.C.T. branch treasurer and a federal councillor. {ft also contained similar endorsements ky four other persons who had previously held office. The February 1981 issue of "Blueprint" with the leaflet inserted in it had not been distribut:d to the membership generally at the time when Smithers J. made the ex parte interim orders set out above. fThe distribution of the 21,280 copies of February 1981 "Blueprint", which have been printed and into which copies of the leaflet have been inserted, has been withheld pending the determinarion or these proceedings. 10. The campaign committee had 35,u00 copies of the leaflet printed. Of those 22,000 copies were delivered to Industrial Printing and Publicity Co. Ltd for insertion in the February 1981 issue of "Blueprint". Approximately 9,000 copies of the leaflet were mailed-to members of the association on 25 and 26 February 1981. Of the remaining 4,000 copies of the leaflet 1,000 were sent to South Australia and 3,000 were distributed in Victoria. On 13 March 1981 Mr sutcher wrote to Mr Whitehead in terms which, omitting formal parts, were as follows: . 13th March, 1981. Dear Georf, re: Insertion of Leaflet in Blueprint I attach a copy of invoice 17719 just received from Industrial Printing and Publicity Company. I would appreciate receiving from the Committee a cheque drawn in favour o£ Industrial Printing and Publicity, for $319.00 to cover the cost of inserting the A. Greig election leaflet into the February 1ssue of Blueprint. Any additional cost incurred by R.L. Polks during wrapping or posting of the Blueprint as a result of the insertion will be advised when known. Yours faithfully, (signed) GEO. BUTCHER FEDERAI, SECRETARY" The enclosed invoice, dated 27 February 1981, included a charge li. for an amount of $319.00 for "inserting election leatliet". The campaign committee opened a hank account on i18 February 1931. The total amount collected up to 15 March was $2,946 and payments had heen mad@ for accounts totalling $2,627 including $2,000 for postage, $378 for printing of the leaflet and $42 for photocopying the electoral roll. Mr Whitehead gave evidence that the campaign committee is in a position to pay the amount of $319 to Industrial Printing and Publicity Company Limited to cover the cost of inserting the leaflet in the February issue of "Blueprint". He stated that the leaflet is the only document that the campaign committee has been associated with prodicing and explained that the campaign costs have been underwritten by Mr Greig and the signatorics to the leaflet. On the evidence it is clear that the acceptance of the leaflet for insertion in "Blueprint" will not result ain the association having to pay any additional costs, i.e. any costs over and above the normal cost of producing and distributing "Blueprint". The evidence showed thet the cost of posting "Blueprint" with the leaflet inserted would be no more than the cost of posting it witheut the leaflet. In final address Mr Gray put three submissions in support of the applicant's case for the making of an order that tne respondents refrain from distributing copies of the February 12. 1981 "Blueprint" containing copies of the lecflet to worbare of the assocliatiun - see paragraph 2 of the rule to Shew cause. First, 1t was sald that federal executive had adopted ly resolution at its meeting on 14 November 1980 a repore from the association's propaganda and publicity committee which Laciudaed the following recommendation: "It is recommended to Federal Executive that no further commitments for Blueprint advertisemencs from paid agencies be entered into in 1981, and when all current commitments to Blueprint advertisements expire, no further advertiscment appear in Blueprint from paid agencies." He submitted that federal executive had power under the registered rules of the association (the rules) and in particular under rule 22(a) and (b) and rule 19(a). (b) and {)) to make such an authoritative decision as to advertisements. In his submission the firstnamed respondent, Mr Butcher, was bound by the rules to give effect to that resolution of the federal executive in exercising his function under rule 29(m) of the rules to "edit and publish any journal of the association and distribute the sare to members and branches". . This submission raises the question of the meaning of the recommendaticn edopted hy the federal executive on 14 Novenber 1980. I accept Mr Gray's submission that evidence as to the 1974 federal conference does not assist the respondents in any way. 1 also accept has submission that the meaning of tne words "from paid agencies" in the recommendation 18 to be ascertained 12. wiltnont reference to the evidence as to what Mr Butcher or other members of the propaganda and publtcity committee - or cther members of the federal executive - considered the words meant. The Court must interpret the recommendation in the light of the ordinary and natural meaning of the words, I am unable to accept his submission, however, that "the resolution is designed to prehibit paid advertisements emanating otherwise than officially within the organization". In my opinion that does not give sufficient weight to the words "from paid agencies". I accept Mr Lawrence's submission that the decision that, after current commitments expire, "Blucprint" contain no further advertisements "from paid agencies" meant no further "advertisements from advcrtising agents who are paid agency fees or commission". JI have reached that conclusion as a matter of interpretation of the words used. However, if 1t be necesssary to have regard to the purpose sought to be achieved by the recommendation, then the evidence shows that the proposal arose out of complaints by members that "Blueprint" contained too many advertisements. It 1s probable that the purpose of che recommendation was tq substantially reduce the number of advertisements rather than "to prohibit paid advertisements emanating otherwise than officially within the organization" as argued by Mr Gray. A purpose of subctantial reduction in numbers of advertisements would not support the interpretation advanced by Mr Gray but would be consistent with the interpretation put forward vy Mr Lawrence. I do not regard Mr 1A, Butcher's letter of 19 January 1941 to Shirvin International Advertising as casting doubt upon tnat interpretation. Accerdingly, I am unable to uphold the first way in which Mc Cray put his case as I have not accepted his interps3tation of the words "from paid agencies" upon which it is dependent. Secondly, Mr Gray submitted that rule 29(m), which casts upon the federal secretary the duty to "edit and publish" the journal "Blueprint" and "distribute the same to iembers and branches", carries with it an implied term that he would cirry out those duties as editor "for purposes that ars properly purposes of the organization and ... not for the purpose of supporting the candidature of one candidate in an clection or damaging the ceuse of the opposite candidate". The third way in which the case was put by Mr Gray was that the acceptance of the leaflet as an insert to be distributed with the February 1981 issue of """Blueprini." constituted "a use of the property and funds and expenditure of funds of the organization for a purpose which was not the ordinary purpose of ... the organization, but rather was for an extraordinary purpose, and that such expenditure or use or resources is impliedly prohibited by the rules ...". The normal distribution of "Blueprint" involved an expenditure of tne funds of -Fhe assocsalion (e.q- the cost of 15. printing, wrapping and pcsting). Mr Gray submitted chat the purpose of the expenditure of these funds became u different purpose, once the leaflet was inserted in "Bluoprint". He argued that the funds were no longer being spent Just for the aistribution of"Blueprint" but for the distribution of 1 and of an election teaflet and accordingly were being expended fo) an extraordinary purpose —- one which 1s impliedly pronibirei ky the rules. In this submisssion Mr Gray was referring to the objective propose of the expenditure and not to the subjective purpose of one or more of the respondents. In reply, however, Mr Gray referred to Mr Butcher's failure to remove the copies of the leaflet from "Blueprinc"™ with a view to distributing "Blueprint" after the making of the interim order without waiting on the result of these proceedings. He suggested that the Court should infer that Mr Butcher had a "subjective purpose" in accepting the leaflet as an insert. Io am not prepared to draw that inference having regard to the cost and other difficulties chat would have teen involved in removing the 21,280 copies of the leaflet. It 1s convenient to take together the second and third ways in which the case 1s put as they botn depend u»von a contention that certain conduct is impliedly prohibited by the rules. Mr Gray relicd upon the judgment of J. B. Sweeney J. in Kanan v. M. A. Hawkins and Noel Battese (delivered 14 Septeirnper 1979 - not yet reported) which applicd a decision of the 16. Conmonwealtn Court of Conciliation anc Arbitratson sn Short v. Wellings (1951) 72 C.A.R. 4, citing with approval the Follovwirg passage from that decision (at [~.87): "The branch rules provide for the election of officers and memoers of 1tS Cummittee of Management. Although theic is no specific rule against the use of the resources and funds cf the Organization for the surpore of patticular candidates at any such election, to use the property and resources cf the branch for such a purpose would deny the right of such candidates as were not to be supported by the organization, ts Committee of Management, its severa] authorities, its resources or funds, to the freedom and equality in their candidature to which the election rules imply they are entitled. The funds and resources of the organization belong as much to them and their supporters as to their opponents and theirs." He also relied upon the judgment of Sheppard J. in ke Australian Postal and Telecommunications Union; Ex parte Wilson (1979) 28 A.L.R. 330. In considering whether the ratio in the latter judgment supports Mr Gray's argume.t in this case, it must be borne in mind that the facts in that case were strongly in favour of the applicant ~ both as to the intention of the letter writer and -lso as to the use of union funds. As Shcppard J. sald (at p.335): "So judged what Slater wrote in his open letter was designed positively to disadventage some of the candidates in the election and thus inferentially to advantage others. 1 should add that tne facc that it was enclosed with a newsletter which urqed a fair vote, makes no difference to my conclusion in that regard. The open letter was produced with money provided from union funds. That is so, at least to the er 17. extent of $998, which was the cost of printirg it." Mr Gray sought to rely on the next two sentences which read: "There may be a question as to the amounts incurred for mailing and postage, bearing in mind that the offending decument was despatched with a union newsletter. I do not need to decide that question, although I am inclined to the view that the whole of the expenditure was improperly incurred." In my view that passage does not assist the present applicant because (a) His Honour expressly declined to decide the question, and (b) neither counsel before me was able to clarify fron the report what was the expenditure to which His Honour was referring in the words "the whole of the expenditure". Mc Gray also relied upon the judgment of this Court (Smithers, J. B. Sweeney and Evatt JJ.) in Lyons v. Deegan and others (1978) 35 F.L.R. 430. As J. B. Sweeney J. said in Kanan's case (supra), statements in that judgment are "not dissimilar" from the passage quoted from Short v. Weljings (supra) but in my view those statements do not put the present applicant in a stronger position than if reliance were placed only on Short _v. Wellings and Kanan's case (supra). In any event Lyons v. Deegan (supra) differs from the present case in that it related to the duties of a returning officer and to the inclusion of material with a ballot paper in a referendum. Further, the applicant there had a much stronger case on the facts because, as the Full Court found (at p.442) the document 18. there enclosed with the baljot papcrs "distorts the question actually snbmitted for the vote and could cause gross misunderstanding of the effect of 2a vote". Nor do I consider that Mr Gray's argument derives any greater support from the judgment cf Dunphy J, in Holmes v. Riordan and Martin (1956) 86 C.A.R. 180 at pp.196-198. Accordingly, in my view tho applicant's argument on this branch of the case stands or falls on the principle enunciated in Short v. Wellings (supra) as applied in Ranan's case (supra). The application insofar as it seeks to prevent the distribution of "Blueprint" with the leaflet as an insert, necessarily asks the Court to accept those cases as establishing a principle that the rules of the asscciation impliedly require existing office holders to take action to ensure ""eguajity' between candidates for any office - at least as far as possible. Such an implication under the association's rules, in Mr Gray's submission, required the respondent Butcher, as editor of "Blueprint", to either refuse to accept the leaflet as an advertisement to be inserted in "Blueprint" or to take positive steps to ensure "equality" between the applicant and Mr Gray as candidates. Those positive steps included informing tne applicant of her right to insert in "Blueprint" a paid advertisement relating to the election and offering her the same facility as that granted at the request of the campaign committee. Mr Gray submitted that, although 1% was not necessary for him to go so far hecause of the facts in this 19. case, there 1s an implication in the rules that the duty imposed on the editor of "Blueprint" required him to go furtnec than merely informing the applicant of her right: 1t would have been his duty to refuse to insert in "Blueprint" the leaflet yrepared by the campaign committee if, upon making enquiries trom the present applicaut, he had discovered that she would be unable at that time to take advantage of the opportunity to insert a paid advertisement i2un "Blueprint", for example, because she had already planned her election campaign in a different way and 1t was too late for her to make the necessary change. In my view the principle prohibiting the use of the resources of a registered organization in support of one candidate is a principle that the use of such resources 1s not to be granted to one candidate and denied to another. Tt seems _to me that an important part of the principle enunciated by the Commonwealth Court of Conciliation and Arbitration in Short v. Wellings and others (supra), as applied by this Court (J. B. Sweeney J.) in Kanan's case (supra), 1S that those resources must not be used to defeat a candidate. in my view the impjied 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 cand*date in an election in circumstances where they have been denzed or will be denied to ee pe 20. another candidate. As it is expressed in Short v. Wellings (supra) such a denial (given that the resources "helong" to both sides in the election) in a "campaign for his defeat" 1s "a denial of that fundamental right" to "stand for election" to a "demcecratically and freely elected body of executive and administrative officers". I accept Mr Butcher's evidence that if he had received a request from the applicant or a committee on her behalf for the publication of a supplement in similar form to the leaflet, he would have treated the request in the same way as he treated the request by Mr Greig's campaign committee and that any such supplement relating to the applicant's candidature would have been puhlished. Perhaps I should add that 1t was not suggested that the February 1981 "Blueprint" (apart from the leaflet) was in any way directed against the applicant or designed to help Mr Greig un his campaign against her. In my opinion the principle does not extend in such a way that the rules impliedly require existing office holders to t-ke positive steps to ensure that each candidate knows precisely what his or her rights are in respect of advertising in the journal of the organization concerned. However, assuming that the principle operates to require those office holders to refrain from misleading one of the candidates as to those rights, doubtless it would exiend to requiring them to take the necessary remedial action if they had in Lact misled one of the 21. candidates. In my opinion the principle does not operate 1n such a way that the rules impliedly impose a duty upon the existing office holders to take the initiative and offec the resources to other candidates. In other words, the principle is that the rules impliedly prohibit existing office holders from taking certain action or engaging in certain conduct. Tt does not extend to requiring them to take positive steps to ensure that all candidates have the same knowledge, for example, as to the right to advertise in the journal, unless those candidates have been misled by some action of an existing office holder - as distinct from being merely undor a miSapprehension which is not due to any such misleading action. Mr Gray submitted that Mr Butcher's action in accepting the campaign committee's leaflet as an advertising insert for "Blueprint" necessarily conflicted with his letter of 10 February 1981 to the applicant (set out earlier) and constituted a change frum the position there outlined. The applicant had requested "advice as to whether candidates for office would be entitled to put their respective points of view i1n the organization's federal newspaper, Blueprint, prior to the conduct of the ballot". Mr Gray submitted that that requcst was a reguest to be told "what can I do, what 1S available to me" in "Blueprint" in general and, further that the words used jncluded a request for information as to whether she could place an 2?. advertisement insert in "Blueprint". I am unable to so interpret the applicant's request. In my view it wasS simply an enquiry as to whether she and any other candidate would be entitled to put their respective points of view in "Blueprint". It did not in terms or by implication enguire as to the possibility of an advertisement in respect of the election. It made no enquiry as to charges for advertisements and no offer to pay for any advertisement. The applicant's enquiry waS answered by Mr Butcher's letter of 10 February 1981, by informing her of the right of candidates to have published in "Blueprint" an article, limited to 300 - 350 words, and a photograph. Mr Gray placed considerable reliance upon the terms of the letter of 10 February 1981 and in particular upon the following paragraph: "Any other election material which either of the candidates might wish to distribute to the INembership is their own affair. The preparation and distribution of any such material must not be a cost on the Union's finances or resources. That includes stationery, printing, telephone etc." In his final address he submitted that that paragrceph was saying "you cannot distribute any other election material through "Blueprint'" and that as to "any other election material ... Blueprint will not help you with that". ere 23. I am unable to accept the latter cubmission. In my view the paragraph quoted d.d no mole than teli the applicant (as did a Similar letter to Mr Greig) that: l. The publication in ""Biuveprint" of the article and photograph 1s the only assistance costing the association money (the cost of printing) that cither candidate would get in presenting views to the members; 2. The distribution of any other election material is purely a maiter for the candidate ~ it "must not be a cost on the Union's finances or resources". It may be noted in passing that the applicant did not give evidence that she regarded Mr Butcher's acceptence of the leaflet (as an insert) as "conflicting" with his letter of 10 February 1981 - and apparently she did not make any such complaint to him at the time. As a matter of objeclive interpretation of the words used in the letter of .10 February 1981, in my opinior they do not convey to the reader that the candidates would not be allowed to have a paid advertisement aS a supplement to "Blueprint". As to any subjective intent Mr Butcher said in cross examination that when asked by the applicant early in February as to whether she could inake some use of Blueprint for her campaign he did not direct his mina to the question of a 24. supplement to "Blueprint". This may be an appropriate place to add that in these preceedings there was no conflict of evidenca. Nor did I observe anything in the demeanour of the applicant or of any of the three respondents who gave evidence to cause me to disbelieve any of the evidence quiven, The applicant not having been misled, in my opinion the acceptance of the leaflet as an insert in "Blueprint" did not constitute a breach of a duty implied under the rules. Accordingly, I dismiss the application for an order in respect of the distribution to members of the February 1981 issue of "Blueprint" containing the leaflet as an insert. Mr Gray did not dispute the respondent's contention and evidence that the leaflet was required by Postal Reyulations to have printed on it (as it has) the words "Supplement to 'Blueprint', Federal Newspaper of ADSTE, February 1981" if it were to be an insert in "Blueprint". Nevertheless, he submitted that the principle in Short v. Wellings (supra) and Kanan's case (supra) entitles the applicant to an order under s.141 directing the respondents to refrain from circulating or disttiputing to the members the leaflet in its present form, 1.e. including the words "Supplement to ''Blueprint', Federal Newspaper of ADSTE, February 1981". On the evidence there appears to be little likelihood of such a distribution taking place: 1t would have been a different matter if an orde: had been made in the applicant's favour as to the distribution of the February 1981 25. "Blueprint" contalnina the leaflet as 21,280 cop:2s of the leaflet might then have been availabie for distribution in some other way. However, once 1t is decided that the leaflet may, without breach of implied rules, be distributed as an insert ain "Blueprint" and that, for that purpose the words in question are required by the Postal Regulations, in my view the distributicn of additional coples of the leaflets cunnot be said to be ua breach of the duty impliedly imposed upon the respondents by reason of the principle in Short v. Wellings (supra) and Kanan's case (supra). In my view the campaign committee having had additional copies of the leaflet printed, the distribution of them cannot be said to fall within the prohibited use of the resources of the association within the principle merely by reason of the words describing the leaflet as a supplement to "Blueprint". I accept Mr Lawrence's argument that members would not treat those words (as distinct from the message on the leaflet) as meaning that the leaflet had some extra cfficial weight which should influence their minds in considering how to vote - particulerly as the terms of the leaflet strongly suqyescti that it is not an official publication by saving "Preparation and circulation of this leaflet tinanced by the above people". Tt turn lastly to paragraph 3 of the rule to show cause which 1s in the following terirs: 26. "3. That the Respondents and cacn of them ane of the persons whose nameS appear 19 tne %& leaflet perform and observe the ruics of Association of Draughting Supervisory and Technica Employees by refraining by themselves their servants or agents, from using the properry, resources, machinery or staff of the said organization to support, promote, or defeat candidates or influence voters in the current election being conducted within the o:ganization for the position of Tederal Assistant Secretery." uy t may + he Ye @ Cab Although I have decided in the respondents' favour as to the distribution of "Blueprint" including the leaflet a¢ an insert, there 1S evidence that the respondents nave used the resources of the association to assist the candidature of Mr Greig and accordingly to disadvantage the applicant ain hor attempt to persuade the members to elect her to the office of federal assistant secretary. Asked in cross examination as to who handed out the copies of the leaflet, Mr Whitehead gave the following evideuce: tn Victoria, they would have been handed to reps who came in to get them or to other people sending them out - - - taking them out, I mean. They would have been taken out, I suppose, hy Organisers on their rounds and so forth?---I imagine they would have. And distributed whilst they were carrying out their duties as organisers?---I would have thought so, yes. And you raised no objection to that in your Capacity as Victorian secretary?---Providing it does not interfere with their work, none at all. 27. It 1S a pretty good network for handing out things personally, you must admit must you not, if you have got all the organisers working for you?---T do not know whether it 1S good or bad. You know, it is a system that you could use. Yes?---I imagine the other candidate could as well." The word "reps" refers to "area representatives" who carry out the functions performed by shop stewards in other unions. In my opinion the use of either organizers or area representatives to distribute the leaflet to members is conduct which is impliedly prohibited by the rules for the reasons given in Short v. Wellings (supra) and Kanan's case (supra). The evidence is not clear as to the extent to which such conduct occurred. A question was raised as to whether the Court has a discretion to refuse to make an order if the applicant has otherwise made out her case. Mr Gray argued that s.141 of the Act, which until 1977 plainly conferred a discretion upon the Court to refuse to make an order in favour of an applicant, now, by reason of the amendments to the section in 1977, no longer confers such a discretion, The section in its earlier form included the following: "s.141(1) The Court may, upon complaint ... make an order giving directions for the performaance or observance of any of the rules cf an organization The section has been substantially recast and in its present form includes the following provisions: "s.141 (1) A member of an organization may apply to the Court for an order under this section in respect of the organization. (1G) An order under this section may give directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or ohserve those rules. (1H) The Court has jurisdiction to hear and determine an application under sub-section (1) or (1E) but, before making an order under this section, the Court shall give any person against whom the order 1s sought an opportunity of being heard. There 1s much force in the argument advanced by Mr Gray and I do not regard Mr Lawrence's argument based upon s.33 of the Acts Interpretation Act 197? as being an answer to it. It may be said, in support of the continued existence of -—he discretion, that until the 1977 amendments to the section, the section had been expressly recognized by the High Court as conferring a discretionary power - see Barrett v. Opitz (1945) 70 C.L.R. 141 at p.163 per Dixon J. and R. v. Spicer and others; Ex parte Foster and others (1958) 100 C.L.R. 163 at p.168. Further, the discretion had been exercised on a number of occasions against the making of an order in favour of an 23, applicant and this had been done both by the Commonyvealth Court of Conciliation and Arbitration and by the Australian Industrial Court, e.g. because of delay in hringing the proceedings. In this connection reference may be made to the judgments in Williamson v. Federated Marine Stewards and Pantrymen's Association (1949) "65 C.A.R. 418 and in Mayell v. Waters and others (1967) 11 F.L.R. 317 at pp.322-3. Another exercise of the discretion refusing an applicant's claim occurred in Holmes v. Riordan and Martin (supra at p.198). Indeed, in the former Court Beeby J. in Chapman v. Sear and others (1931) 30 C.A.R. 165, 1n a passage cited by Dixon J. 1n Barrett v. Opitz (supra), said: "It has been held by the Court that this unusual power, vested in the Court as an ancillary power to the hearing and determination of industrial disputes, should not be exercised merely to enable parties to determine their domestic disputes, but that there must be some element of public interest in the matters in issue to justify the Court in exercising this discretionary power." A similar view was expressed by Foster J. in Carling v. Plett (1953) 80 C.A.R. 283 at p.285. It is true that judges of the Court in later cases took quite a different view of the section. For example, in Wilson v. Heydon (1944) 53 C.A.R. 482 at p.488 Kelly J. said: "In my opinion, Parlitanent intended that the power jt repose@ in tne Court should pe exercised f9 check such action, or to put an end to unauthorized 30. unaction, in all cases where the action or inaction, as the case may be, amounts to a substantial failure to perform or observe the rules of the registered body. Provided the failure he of a substantial nature, 1t is 1n other words the duty of the Court to exercizre the discretionary power conferred by the section 1n order to correct 1t." His Honour applied the same principles in Miller v. The Building Workers Industrial Union of Australia and others (1947) 59 C.A.R. 836 at p.843 and in Woodward v. Scott and others (1947) 59 C.A.R. 918 at p.926. However, Kelly J. expressly acknowledged (at p.926) that it was "a special discretionary power. The discretion implied must be exercised according to the exigencies of time and circumstances". It may be argued, that if 1t was Parliament's intention by enacting the 1977 amendments to take away such a well recognized discretion to refuse to make an order under s.141, it would have expressed that intentio1. more clearly than has been done in the section in its present form. As Mr Lawrence pointed out s.141 (1H) in conferring jurisdiction does not say that the Court shall make an order. However, the question of whether the discretion still exists has not been argued at length as it was only raised during the course of final addresses. Further, because the election the subject of these proceedings is already 1n progress, this judgment has been prepared for delivery as a Matter of urgency and there has not been the opportunity for aad 31. full consideration and reflection upon the questior of discretion. As that question is one of quite fundamental importance, in all the circumstances I consider that I should not decide the question in this case. I merely say that I agree with the Full Court in its statement in McLeish v. Faure (1979) 25 A.L.R. 403 at p.410 that "doubts may arise whether tne court has a discretion to refuse to make an order giving directions for the performance or observance of rules when a claimant otherwise makes out a case under s.141". I accept Mr Gray's submission that, having regard tv those doubts as to whether the discretion still exists, the Court should not exercise its discretion ~- assuming that it exists - 1n this case against the applicant. Accordingly, in my opinion an order should be made in the terms of paragraph 3 of the rule to show cause except for the omission of the words "and all of the persons whose names appear in the leaflet". In R. v. Forbes; Ex parte Bevan (1972) 127 C.L.R. 1 Menzies J., with whom Barwick C.J., Walsh and Stephen JJ. agreed, said (at p.7)} that such an order: "... would have been outside the power conferred upon the Court by s. 141 which in terms requires the Court as a condition of making an order under the section to give 'any person against whom an order 1S sought an opportunity of being heard'. No such opportunity was given to the applicants before the order was made." eo I ceri: precee: Roas. 7 Mr. Justice i. ry thet ag pact for oud, thrssaond any oa + oreo % —_ ~ 7 Lie "do "ley r of the fed) ners 2 va ble donou2 a —~ i pen |