| JUDGMENT No. .206,..7E/ EX TEMPORE JUDGMENT sewoereceasecoscoc! onececesesee IN THE FEDERAL COURT OF AUSTRALIA V. No. 25 of 1981 ) ) VICTORIA DISTRICT REGISTRY ) ) ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act 1904 BETWEEN: FRANK TROJA Applicant AND: L. MACDONALD, W. J. CURRAN, M. McPIKE and THE AUSTRAL- ASIAN MEAT INDUSTRY EMPLOYEES UNION PANO? A: ReGisray é Respondents Coram: Smithers J. i 23 October 1981 Melbourne REASONS FOR JUDGMENT With respect to the substance of this matter, it has been put very clearly and forcibly on behalf of the respondents that the statements or comments or observations contained in the union letters of 26 August 1981 and 2 October eo. ia 1981, so far as they refer to the applicant, ought to be regarded as mere comments in the course of a controversy between the union and those who are responsible for its policy in recent times and the applicant himself. BAe a es a F ; { i j t i It seems there has been some controversy, in particular, as far as the evidence seems to show, in relation to the steps that ought to be taken to cope with the very real problem of the volume of export of live sheep. It is no doubt true, that a fair discussion of the controversy and the opposing points of view in relation to it, are proper matters for discussion in a union communication to members. But it is equally clear that the existence of controversy and a desire to ventilate views cannot be used as a cloak for the use of union resources for the purpose of assisting any candidate or potential candidate at an election or influencing the electorate for or against any particular candidate. In that respect, it is only necessary to refer to all the cases which have been quoted before me which are referred to in the judgment of Sheppard J. in the Australian Postal and Telecommunications Union ex parte Wilson (1979) 28 A.L.R. at p.330. I should also of course refer to the judgment of Keely J. in Valentine v. Butcher & Ors, VI of 1981 in this Court. The relevant principle is now well established. The immediate question is whether what was published in these two union letters is to be regarded as the genuine continuation of a controversy concerning policy, or whether it is not and would be understood to be a statement influencing and intended to influence the votes of the members of the electorate. The newsletter of 26 August carried a very large Pitan donilines ana Sabie ate in 3 stn Be heading - "1981 Union Elections" - and under that there are two sets of printing which are obviously sub-headings under that main heading. That is reinforced by the fact that when the subject of union elections is departed from there is an equally large heading to deal with the new sub-matter. Namely, "the meat scandal". To my mind it is impossible to treat the statements and comments which are made under the heading - "Troja Acts Again" - right down to "the rule book under his pillow" - as anything but matter intended to influence voters in the coming election. It is said that there was at that stage no election being held, but it is clear from the document itself that an electionis in the offing and that the comments are directed to the election which is in train. The first sentence of the material under, "Troja Acts Again" is - "The anti-union behaviour of this man knows no bounds". That is not a contribution to a controversy, that is an attack upon a unionist of as harmful a nature almost as can be imagined. It is probably worse to say of a unionist he is a scab, but to say he has been guilty of anti-union behaviour must at least rank as second in offensiveness in the eyes of all unionists. Accordingly, this document itells all the members of the electorate, on the authority of the union itself, that this man is an anti-union man. It is then said why he is an anti-union man, that he sought to have petititons to have the election conducted by the electoral office of the government and that he has written to the Industrial Registrar questioning the right of members at various establishments to be represented in the committee of management. Those matters may be matters of controversy in respect of which unionists may take different views, but in this particular case those particular actions are held up as only being capable of one interpretation, namely that this man is an anti- union man, and indeed the letter says so. This letter says that these matters clearly show the incompetence and inability of this union man to understand the rules. That again is a very serious allegation to make against a man who is standing for office. If one set out to write an election pamphlet calculated to do as much harm as possible to a potential candidate, one might be hard put to do better than is done in this paragraph. So far as the document of 2 August is concerned, it is headed "Union Elections 1981" in large letters, and then sets out who the candidates are and says in respect of the office of secretary/treasurer there are two candidates, Mr. Troja and Mr. Curran. On the next page there is what might be called an article, headed "A.C.T.U. Supports the Union", it contains a statement that Mr. Troja is an anti-union person and one who is a man of no credit, whose words are useless, and who is in general taking a stand on the side of the enemies of the Union. wn . Had it been that something of that nature had occurred without any background, without any accompanying circumstances, it might have been considered perhaps an aberration, although I doubt it, a strong statement of people who were emotionally engaged. But coming in a document which primarily directs the attention of members' to the union elections of 1981, and has them thinking about it, and Mr. Troja would be by this time a candidate, those comments must be regarded as calculated to do nothing less than to remind people what was said about Mr. Troja in a previous union letter on the subject of the 1981 union elections. Accordingly, although the matter was put as strongly as possible for the respondents, I think that it is manifest that this conduct was undertaken by the persons who undertook it with the express intention, and with every possibility of achieving that intention, namely to destroy any chances that Mr. Troja might have of winning the election. There is no question in a matter like this on the balance of convenience and therefore in my opinion an order preventing the repetition of such conduct should go. It has been said that it is wrong and unfair that the order should be expressed in terms that it refers,first of all, to three people who are in the election, but the action that has been taken is very - I do not like to use adjectives which are too strong - but very strong actions taken wilfully, no doubt about that, in order to damage Mr. Troja. Although the court would do everything it can not to create any false impressions itself, insofar as these three people being at the head of the list of respondents and being sued as representing all the others, it does not seem to me in the circumstances to be anything which can be considered unjust. They have not told the court why they did it, they 'have made no attempt to explain the matter, and therefore they take full responsibility for it and therefore the order will go against the president, the secretary and the assistant secretary by name as representing all those people who shall be named, those persons being the current members of the committee of management. And I direct that service - I notice that some of the respondents are in court and therefore do not require any notice of this order, but I direct that service of the order be made at the office of the Victorian branch of the union upon some person there apparently over the age of 16 years. It has been put to me that the organization should be dismissed from the proceedings and I accede to that application. I do not accede to the application that the union should have its costs, partly because I consider that those costs are negligible and partly because I do not regard it as having been unreasonable in the circumstances of this case to proceed on the basis that the union itself might possibly have been engaged in the general proceedings relation to the elections. The difficulty is that nothing has been done by the union, or the branch, to explain how this matter came to be dealt with in the blatant way. That order will continue in the same terms until the election is concluded. Six Smithers ACB nel 19-i1- 8