Freda Bogar v George Campbell & Brian Fraser [1995] IRCA 622

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5148 of 1995 B E T W E E N : FREDA BOGAR Applicant AND GEORGE CAMPBELL First Respondent AND BRIAN FRASER Second Respondent JUDGE: North J PLACE: Melbourne DATE: 23 November 1995 REASONS FOR JUDGMENT THE PROCEEDINGS At midday on 9 October 1995 the applicant applied to Justice Gray under s.209 of the Industrial Relations Act 1988 ("the Act") for a rule to show cause why orders should not be made, including an order: "That the Respondents and each of them perform and observe the Rules of the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union by refraining from publishing and distributing the journal described as 'AMWU The FOOD and CONFECTIONERY WORKER' referred to in the Affidavit of Freda Bogar and exhibited at 'FB33' of her Affidavit sworn the 9th day of October 1995, and filed in proceedings, being VI 3671/95." The applicant also sought interim orders in the same terms pending the final determination of the proceedings. As the matter was urgent and the Court, differently constituted, was available on the following day, the application was adjourned until 10 October 1995 without the application for a rule to show cause being concluded. Interim orders in the terms sought were made. When the application came on for further hearing on 10 October 1995, I was told that the parties agreed, in the urgent circumstances of the matter, to proceed not only with the application for the rule to show cause but also with the hearing for final determination. This meant that, while the applicant's evidence in chief was in affidavit form, the respondents' evidence in chief was given orally by the first respondent. Both the applicant and the first respondent were cross-examined. The hearing continued on 11 October 1995. Evidence was given that the journal published by the Union and called the "AMWU The Food & Confectionery Worker" ("the journal") was reprinted and ready for immediate distribution. In these circumstances, counsel for the applicant indicated near to the end of the hearing that the applicant would be content with an order that: "The Respondents perform and observe the rules of the organisation by refraining from distributing the Food & Confectionery Worker journal to the members of the Victorian region of the Food & Confectionery Division of the Union without the inclusion of the Applicant's letter in reply". At the same time, a draft letter in reply was handed to the Court. At the conclusion of the hearing, I made further interim orders in a more limited form than the previous interim orders. The mail-out of the October edition of the journal was to contain the quarterly membership card of each member and delay in receipt of the membership card was likely to cause disadvantage to some members. Consequently, it was important to determine the proceedings promptly. Therefore, on 13 October 1995, I made orders refusing the application and indicated that the reasons for judgment would be published afterwards. The reasons are now given. THE FACTS The applicant is the Federal Secretary of the Food & Confectionery Division of the Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union ("the Union"), an organisation of employees registered under the Act. She is a candidate for the office of Victorian Regional President of the Food & Confectionery Division of the Union. Pursuant to orders made by Justice Ryan in proceedings VI 1697 of 1995, no further steps are to be taken in the conduct of that election pending the outcome of those proceedings. At the time the orders were made nominations had closed but the ballot had not commenced. It was common ground that the principles concerning the use of Union resources for electioneering applied during this period. The Union publishes two journals which have a newspaper format. Each journal is distributed quarterly, although at different times. One journal is sent to all members of the Union in the same form, the other journal is sent to all members of the Union but the form differs in respect of the members of each separate division of the Union. The particular journal with which this case is concerned is directed to the members of the Food & Confectionery Division of the Union. The first respondent is the National Secretary of the Union and the second respondent is the National President of the Union. The case has been conducted on the basis that the respondents are responsible under the rules of the Union for causing the journal to be published and distributed. On or about 25 September 1995, the applicant received an advance copy of the journal. It contained, inter alia, three letters to the editor, one from Gail Andreske, one from Paul Matthews, and another from Rob Goyen. The letters occupied approximately three-fifths of one of the eight pages of the journal. The Matthews letter was placed below the Andreske letter, and the Goyen letter was placed below the Matthews letter. Above the Andreske letter were the headlines "Letters to the Editor" and "Shop stewards angry over Freda 'no show'". The applicant contacted her solicitors, Slater & Gordon, and instructed them to seek an undertaking from the solicitors for the Union, Taylor & Scott, that the Andreske letter not be permitted to be published, inter alia, on the ground that it constituted electioneering material. No complaint was made about the Matthews or Goyen letters. The applicant's solicitors contacted the Union's solicitors on 26 September 1995 by phone and sought an undertaking by 1 pm on that day that the letter would not be published. They said that if such an undertaking were not given an urgent application would be made to this Court seeking an injunction restraining the publication of the journal. On the same day, the Union's solicitors responded in an urgent facsimile by undertaking, on behalf of the Union, that: "1. The Union will not distribute the publication any further than it had been at approximately 12.00 noon today pending discussions between Mr Campbell and those persons contracted by the Union responsible for its distribution. Mr Campbell will hold discussions as to what can be done in connection with the letter complained of. 2. Following those discussions between Mr Campbell and the contracted distributors we will contact you again on behalf of our client advising of any decision as to the distribution of the publication in the light of those discussions." The facsimile confirmed that oral undertakings had been given to the applicant's counsel at 12.30 pm on the same day. By a further facsimile, apparently sent at 5.08 pm on the same day, the solicitors for the Union wrote: "Mr Campbell has discussed the publication with those whom the Union contracts for its printing and distribution. He has determined that the publication will be reprinted and the reprinted version distributed to all members of the Division with the letter from Ms Gail Andreske on page 6 being deleted in its entirety. We are further instructed that Mr Campbell has given instructions for this decision to be implemented immediately and urgently." The applicant had no communication with the respondents about the journal on the following day, 27 September 1995. On 27, 28 and 29 September 1995, both the applicant and the first respondent attended the ACTU Congress held in Melbourne. On 28 September 1995 the applicant caused a facsimile in the following terms to be sent to the first respondent: "The recent Food and Confectionery Worker publication had misleading and damaging information to myself which in my view was designed to influence opinions in the forthcoming Food and Confectionery Division's elections. Please confirm to me within 48 hours of the date of this letter that I will be given the opportunity to contribute to the journal and also that I will be given an opportunity to respond in this journal to the allegations. It is my view that using the union journal for the purpose of electionering [sic] does not do the union any credit." This letter was sent to the Sydney office of the first respondent. The applicant knew that the first respondent was at the ACTU Congress on 27, 28 and 29 September 1995. She was aware when she had the facsimile sent to his office that he was not personally there to receive the letter. The journal was reprinted on 28 September 1995. No further correspondence occurred between the applicant and the respondents on the issue. The next relevant event was the commencement of these proceedings eleven days later on 9 October 1995. The applicant's initial complaint had been directed to the Andreske letter. Prior to the hearing of this application she had not specified what other part or parts of the journal were objectionable. At the hearing the complaint was directed to the Matthews and Goyen letters, which read respectively as follows: "As a shop steward and member of the Divisional Council, I wish to express my concerns about our Federal Secretary, Freda Bogar. Early on in her election campaign Bogar used the slogan 'A professional approach controlled by members'. Well, it seems to me that the union is being controlled through the courts. There are now several writs against a number of high ranking officials which have come from Bogar. Early in her campaign Bogar made allegations against former Federal secretary Tom Ryan. These were investigated by the Major Fraud Group of the Victorian Police and were unsubstantiated. More recently at a Federal Divisional Conference Bogar took it upon herself to vote on only one motion. From what I can gather that motion was directly related to her position. What kind of leadership is Bogar showing to her members? The only leadership our Division is getting is through the courts. On August 1 this year a number of shop stewards from all around the state travelled to Launceston to hear Bogar debate the issues. But on arrival we found Bogar had not turned up. We still have no explanation from our Federal Secretary as to why she has acted the way she has. It seems to me Bogar is out of her depth. The only way she can conduct discussions is through her lawyers and through the courts. What kind of a way is this to run a Division? My advice to Bogar is that if you can't stand the heat, and you are not going to put the best interests of the members forward when requested, then get out of the kitchen. Paul Matthews, Shop steward, McCain's Foods, Smithton, Tas." "I write on behalf of myself and my fellow shop stewards about our disappointment with our Federal Secretary Freda Bogar for not turning up to our arranged meeting with regard to the rule changes within the union, held at Launceston on August 1. Most of us had to take time off from our employment. Buses were hired to deliver us from all around the state. The officials of our Division were out of the system for a day. All of these expenses, lost wages and bus hire were met by the union - our members' fees wasted again. I can't say the day was totally wasted as National Secretary George Campbell was present and gave a full explanation of the rules of the union and why changes had to be made to accommodate our ever growing union. I'm sure all shop stewards were glad to have the opportunity to meet George. But why weren't they able to meet Bogar? After all, that was the purpose of the meeting. If Freda had some problems with the rule changes I and the other shop stewards present would like to have known what they were. Maybe there is something there to affect our Division in the future, but if Freda couldn't afford us her presence at the meeting this is something we will never know. So on my behalf and the other stewards could you please convey to Bogar that we don't like to waste our time and our members' money if she can't attend meetings arranged on her behalf. Rob Goyen, Shop steward, Cadbury-Schweppes, Claremont, Tas." THE ISSUES The applicant, represented by Mr Borenstein of counsel with Mr Stuckey of counsel, argued that the Matthews and Goyen letters were electioneering material and that the publication in the journal was a breach of the implication in the rules of the Union prohibiting the use of Union resources for electioneering. The respondents, represented by Mr Haylen QC with Mr Wallace of counsel, argued that the letters were not electioneering material. Alternatively, they argued, if the letters were electioneering material, the implied prohibition only applied if the use of Union resources was permitted to one party and denied to another. They contended that the use of resources had not been denied to the applicant. The applicant responded by contending that she had been denied the use of the Union resources. I will deal with the issues in turn. Were the Matthews and Goyen letters electioneering material? The Matthews letter expresses a strong view that the applicant had not shown leadership of the Division. It also complains that the applicant failed to attend a meeting in Launceston without explanation. The Goyen letter also complains about the failure to attend the Launceston meeting. The complaints about the failure to attend the Launceston meeting are allegations of fact, while the criticism of the applicant's leadership is an expression of opinion of the behaviour and capacity of the applicant as a Union official. In Scott v Jess (1984) 3 FCR 263 at 290, Gray J observed: "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." I agree with this observation. The expression of opinion by Matthews amounts to electioneering. In the context of his letter, the allegations of fact are raised in support of the opinion and should not be seen separately. The Goyen letter amounts to electioneering because, while alone it is no more than a series of factual allegations, its placement underneath the Matthews letter and its reference to part of the same subject matter, namely the Launceston meeting, links it to the expression of opinion by Matthews against the applicant. The respondents argued that Matthews' opinion was directed to the capacity of the applicant to fulfil the role of Federal Secretary, that the election was for Regional President, and the expression of opinion about the former did not reflect on the applicant's capacities for election to the latter. In my view, a voter in the election would be likely to take into account, adversely to the applicant, in her candidature for election as Regional President, an allegation that she lacked leadership qualities in her existing role as Federal Secretary. Matthews' criticism is directed generally to her leadership qualities. It is not expressed to be limited to the particular office which the applicant then held. For instance, he asks, "What kind of leadership is Bogar showing to her members?" Given the contents of the correspondence, the number of letters on the subject and their proximity to each other, the Matthews and Goyen letters together amount to electioneering. In these circumstances, the absence of direct references to the election or to the opposing candidate do not deny the letters the character of electioneering material. Was the applicant denied an opportunity available to others? Keely J stated the applicable principle in Valentine v Butcher (1981) 51 FLR 127 at 138-9 as follows:- "In my view the principle prohibiting the use of the resources of a registered organisation in support of one candidate is a principle that the use of such resources is not 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 CAR 84, as applied by this Court (JB Sweeney J) in Kanan's case (unreported) (Federal Court of Australia, JB Sweeney J 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 organisation'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 organisation 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'." This statement was adopted by Evatt and Northrop JJ in Scott v Jess at 271, and the same principle, although slightly differently formulated, was adopted by Gray J at 287. The formulation by Gray J was approved in Tanner v Maynes and Others (1985) 7 FCR 432 by Evatt and Northrop JJ at 440-1, and so far as is relevant for the present case, by Keely J at 454-5. In Valentine v Butcher both candidates for the office of Federal Assistant Secretary of the Association of Drafting Supervisory and Technical Employees had been told by the editor of the Association newspaper that they would have equal limited space in the newspaper for publication of election material. A committee was formed to support the re-election of the incumbent Federal Assistant Secretary. It asked for, and was granted, permission to send out at its cost a supplement with the newspaper endorsing the incumbent. The applicant had not been told that she could also have a supplement in her favour included on the same terms. The Court refused to order that the editor refrain from distributing the newspaper with the supplement. It was held that the respondents were not obliged to advise the applicant that she could have a supplement included. This conclusion was the result of applying the stated principle to the facts, and amounted to a finding that there was no denial of an opportunity to the applicant which was available to the other candidate in all the circumstances. The circumstances included the equal opportunity to both candidates at no cost to include electioneering material in the newspaper. What will amount to a denial of the opportunity available to another or others will depend on the facts of each case. In applying the principle there may be situations in which a candidate is denied an opportunity available to others by reason of the failure of an editor to advise of the contents of an article proposed to be published against the interests of the candidate. I do not take the decision in Valentine v Butcher to stand against this proposition. If it does so, I would respectfully disagree with that aspect of the judgment. The aim in each case is to determine whether there has been a relevant denial of opportunity. The situations which arise are various and it would be too broad to hold that a denial of opportunity could never arise where a candidate was kept in ignorance of an opportunity known to the opposing candidate to use the resources of the union for electioneering. Such an approach would not accord with the "concept of fair play" in the conduct of elections which underlies the principle: Scott v Jess, at 272. In the present case the applicant knew from her experience in the Union that the letters to the editor columns were open for her to respond to criticisms. It could properly have been said that the applicant had been denied an equal opportunity for use of Union resources in electioneering had she not been made aware of the contents of letters to the editor columns before publication when those letters contained electioneering material adverse to her. Had she not learned of the letters I would have held that she was denied an equal opportunity for the use of the Union resources because those responsible for production of the journal had not told her of their intention to publish the letters and the contents of them. Unlike Valentine v Butcher there had been no equal space given to the candidates in the journal for the purposes of electioneering. However, in the circumstances of this case the applicant was not denied an equal opportunity to use the resources of the Union for the purposes of electioneering. On 25 September 1995 she received a pre-publication copy of the journal. By the morning of the following day she had instructed solicitors who had spoken by phone with the solicitors for the Union in relation to the contents of page 6 of the journal. By an urgent facsimile to the solicitors for the applicant, the solicitors for the Union advised that: "although the publication is printed, at this stage it has apparently not been distributed throughout the membership of the Division". The Union undertook not to distribute the journal until the first respondent had discussed the matter with the contracted distributors and advised the applicant's solicitors of the outcome of that discussion. Later on the same day the solicitors for the Union sent a facsimile to the solicitors for the applicant including the following:- "Mr Campbell has discussed the publication with those whom the Union contracts for its printing and distribution. He has determined that the publication will be reprinted and the reprinted version distributed to all members of the Division with the letter from Ms Gail Andreske on page 6 being deleted in its entirety. We are further instructed that Mr Campbell has given instructions for this decision to be implemented immediately and urgently." In cross examination the applicant agreed that she knew there was an urgency about the situation as a result of the second facsimile from the solicitors for the Union. The journal was reprinted on 28 September 1995. On that day the applicant had a letter sent by facsimile to the first respondent at his Sydney office complaining about "misleading and damaging information to myself" and seeking an opportunity to respond. This letter was not sent between solicitors as was previous correspondence on the issue. The complaint was entirely general with no particular item in the publication being identified as objectionable. Both the applicant and the first respondent attended the ACTU Congress in Melbourne which was in progress on 27, 28 and 29 September 1995. The applicant did not take the opportunity to raise the matter with the first respondent and, when asked why, she responded:- "There's no reason, but I was comfortable with the view that I have sent him the fax and his office had received it." (Transcript page 48, lines 22-23). Of course there was an opportunity to raise the matter directly with the first respondent on 27 September 1995 - the day on which the applicant dictated the letter of complaint which was sent by facsimile to him on the 28 September 1995. The applicant's letter dated 28 September 1995 gave the first respondent 48 hours to respond. On that day the applicant had contemplated taking legal proceedings to obtain a right of reply, yet these proceedings were not commenced until 9 October 1995. The applicant raised two arguments against a finding that she had been given equal opportunity to use the Union resources for electioneering. First, she contended that her time to respond was limited to 25, 26 and 27 September 1995 while the authors of the letters to the editor had not been so limited. The question of equality of opportunity cannot be approached in a narrow or formalistic way. The question is whether the contenders had equal access to Union resources as a matter of substance. In my view the applicant had sufficient time between 25 and 28 September 1995 to determine whether she should seek to reply to the letters, to formulate such a reply, and forward it to the respondents. She had not formulated a reply when she gave evidence on the subject at about 2.30 pm on 10 October 1995. A reply was produced and given to counsel for the respondents on 11 October 1995 between about 11.00 am, when the Court asked for a formulation of the proposed amended rule to show cause, and 1.00 pm. The reply was a straightforward document. The time from 25 to 27 September 1995 was not so short as to amount to a denial of equal access to Union resources. Second, the applicant contended that in Valentine v Butcher the Court left open the possibility that there could be a denial of equal access if a candidate had been misled as to an opportunity to use Union resources for electioneering and there had been no positive action to correct the misapprehension. See also Buchanek v Jones & Ors (1989) 29 IR 332 at 334-5. The applicant gave evidence that she had been led to believe that the Federal Executive of the Division would receive a copy of the proposed journal before publication. Then she would have had an opportunity to respond to its contents before publication. There is nothing in this argument because, although the Federal Executive was not given a pre-publication copy of the journal, the applicant was. She was therefore in no worse position than if her misapprehension had been corrected. I am satisfied on the evidence as a whole that if the applicant had identified her complaints about the Goyen and Matthews letters to the respondents on 25, 26 or 27 September 1995 she would have been given an opportunity to respond to them in the journal then about to be reprinted. That evidence included evidence that it was the policy of the Union to publish letters relevant to articles in the current edition of the journal, evidence of the conduct of the Union in removing the Andreske letter very promptly after the complaint, inter alia, about electioneering, and the demeanour and testimony of the first respondent, which indicated that he would have made a genuine attempt to accord equal treatment to candidates. In the course of the proceedings, Mr Haylen told me that he was instructed by the first respondent that the first respondent would direct that a response to the Matthews and Goyen letters be published in the next edition of the Divisional journal. Further on the last day of the hearing, when the applicant formulated the text of a response to the letters of Matthews and Goyen for publication by way of an insert into the current edition of the journal, counsel for the respondents gave a strong indication to the Court that the very text would be published as a letter to the editor if the applicant so desired in the Union journal to be published in November 1995 or in the Divisional journal to be published at the start of January 1996. This indication supports the conclusion that the respondents would have published a response from the applicant in the letters to the editor column to the Matthews and Goyen letters if she had asked before the journal was printed for a second time. DISCRETION Some argument was directed to the question whether the Court has a general discretion to refuse orders under s.209 where a breach of the Rules is found. There was also argument as to whether any such discretion, or the discretion under s.209(3), should be exercised in this case. Given the conclusions I have reached on the other issues, it is not necessary to determine these issues. I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment of his Honour Justice North. Associate: Dated: 23 November 1995 Solicitors for the applicant: Slater & Gordon Counsel for the applicant: Mr H Borenstein & Mr S Stuckey Solicitors for the respondents: Taylor & Scott Counsel for the respondents: Mr W Haylen QC & Mr J Wallace Date of hearing: 10 & 11 October 1995 Date orders made: 13 October 1995 Date reasons given: 23 November 1995