FEDERAL COURT OF AUSTRALIA Verner v Johnston (No 2) [2000] FCA 631 JOHN VERNER v CRAIG JOHNSTON, DARREN NELSON, VINCE THEUMA, PAUL WISNIEWSKI, STEVE DARGAVEL, GARY ROBB, VICTOR JOSE, LINDA POPE, TERRY BRADLEY, DEBBIE QUARRELL, and MARK LIGHT V164 of 2000 RYAN J MELBOURNE 5 MAY 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V164 of 2000 BETWEEN: JOHN VERNER Applicant AND: CRAIG JOHNSTON First Respondent DARREN NELSON Second Respondent VINCE THEUMA Third Respondent PAUL WISNIEWSKI Fourth Respondent STEVE DARGAVEL Fifth Respondent GARY ROBB Sixth Respondent VICTOR JOSE Seventh Respondent LINDA POPE Eighth Respondent TERRY BRADLEY Ninth Respondent DEBBIE QUARRELL Tenth Respondent MARK LIGHT Eleventh Respondent JUDGE: RYAN J DATE OF ORDER: 5 MAY 2000 WHERE MADE: MELBOURNE ORDER UPON the respondents by their solicitors undertaking: From the giving of this undertaking until 4.15 pm on 10 May, 2000 or further order to refrain from distributing the unofficial March 2000 Award Book as identified in Exhibit "JS1" to the affidavit of John Speight affirmed the 4th day of May 2000: THE COURT ORDERS THAT: 1. The motion on notice dated 4 May 2000 be dismissed. 2. The applicant have leave to issue a further notice of motion seeking orders that each of the respondents perform and observe the rules of the Australian Manufacturing Workers' Union ("AMWU") by giving effect to and complying with the decisions of the AMWU National Council by refraining from publishing or distributing or authorising the sale of advertising to be placed in any publication which incorporates the Metal, Engineering and Associated Industries Award 1998 or the text of the trade manual published on behalf of the AMWU by Union Publicity Service Pty Ltd, or such other order as he may be advised; 3. Mark Light be added as a respondent to the proceedings; 4. Any notice of motion taken out pursuant to paragraph 2 of this order be set down for hearing not before 11.00 am on Wednesday 10 May 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V164 OF 2000 BETWEEN: JOHN VERNER Applicant AND: CRAIG JOHNSTON First Respondent DARREN NELSON Second Respondent VINCE THEUMA Third Respondent PAUL WISNIEWSKI Fourth Respondent STEVE DARGAVEL Fifth Respondent GARY ROBB Sixth Respondent VICTOR JOSE Seventh Respondent LINDA POPE Eighth Respondent TERRY BRADLEY Ninth Respondent DEBBIE QUARRELL Tenth Respondent MARK LIGHT Eleventh Respondent JUDGE: RYAN J DATE: 5 MAY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 I shall deal first with the notice of motion dated 4 May 2000, which is presently before the Court and the only proceeding before the Court on notice to the respondents in the proceedings. 2 I am not satisfied that there has been a breach of the undertaking given to the Court by Mr Bell QC on behalf of the respondents. That undertaking was given late on the afternoon of Friday, 28 April and was to refrain "from using the membership list other than the list provided by the Australian Electoral Commission." The evidence before the Court of the receipt on Monday, 1 May and Tuesday, 2 May of envelopes addressed in a way suggestive of use of a list of members other than that provided by the Australian Electoral Commission does not establish with the high degree of persuasiveness required to make out a contempt of Court that there has been a breach of the undertaking. There is no evidence of the receipt after 2 May of envelopes addressed inconsistently with the roll provided by the Australian Electoral Commission. 3 The undertaking was accepted by the applicant, Mr Verner, as averting the need for any of the relief which he was seeking on 28 April in respect of an AMWU membership list. I therefore consider it an inappropriate exercise of the court's discretion to make an order in terms of either paragraph of the motion on notice dated 4 May 2000. Paragraph 2 of that notice sought an order: "That the respondents give to Mr Roe any copies of the AMWU membership list held by them, whether held on computer disk or otherwise, by close of business on [no date inserted] May 2000. 4 I am not satisfied that any provision of the Rules of the Union gives Mr Roe, who is the Victorian State Secretary of the Union, sole or exclusive custody of any list of members other than that provided by the Australian Electoral Commission. For these reasons the motion on notice dated 4 May 2000 is dismissed. 5 An application to seek further relief, despite the presence of Mr Niall of Counsel for the respondents who were served with the motion on notice to which I have just referred, has been made on an ex parte basis. As indicated in the course of discussion with Counsel, I am prepared to give leave to the applicant to issue a further motion on notice to further that application by seeking an order that: Each of the respondents perform and observe the Rules of the Union by giving effect to and complying with the decisions of the Union's National Council by refraining from publishing or distributing or authorising the sale of advertising to be placed in any publication which incorporates the Metal Engineering and Associated Industries Award 1998 or the text of the trade manual published on behalf of the AMWU by Union Publicity Service Pty Ltd. 6 There will be leave to the applicant to add to that notice of motion any other appropriate claim for relief which he may be advised. I shall further order that Mark Light be added as a respondent to this proceeding. 7 The respondents having given, by their solicitors, an undertaking to refrain from distributing the disputed material, and the same solicitors having indicated their instructions to act for Mr Light, the only further order will be to adjourn consideration of any notice of motion issued pursuant to leave just reserved until 11.00 am on 10 May 2000. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 5 May 2000 Counsel for the Applicant: Mr M D Murphy Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr R M Niall Solicitor for the Respondent: Howie and Maher Date of Hearing: 5 May 2000 Date of Judgment: 5 May 2000