Ananda-Rajah v Crawford

BUSINESS OWNERS AND CONTRACTORS UNION INCORPORATED (A0106681E) Second Respondent

order made by: MOSHINSKY J DATE OF ORDER: 21 MAY 2022

UPON the applicants, through their counsel giving the usual undertaking as to damages,

1. Subject to further order, the first and second respondents, by their servants and agents, remove the signs referred to in the affidavit of Chris Ford affirmed 21 May 2022, being signs that purport to be authorised by "Hendrick Fourey" of "Business Owners and Contractors Union".
2. Subject to further order, Mr Evan Willis, a partner of Holding Redlich (solicitors), and any other solicitor at Holding Redlich authorised by Mr Willis to do so, and any officer of the Australian Electoral Commission, are authorised to remove the signs referred to in paragraph 1.
3. The applicants take all reasonable steps to bring these orders to the attention of the first and second respondents as soon as possible.
4. There be liberty to apply.
5. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On Saturday, 21 May 2022, which was the day of a federal election, the applicants, Dr Michelle Ananda-Rajah, Mr Samuel Rae and Mr Robert Mitchell, who were Australian Labor Party candidates in the election, made an urgent application for an interim injunction to have removed certain signs (or posters) that had been erected in the electoral divisions (electorates) in which they were standing for election, namely Higgins, Hawke and McEwen. At the conclusion of the hearing, which was conducted on an ex parte basis, I granted the injunction and made other orders, and stated that I would provide my reasons later. These are my reasons for making the orders.

Background 2 The background to the application is set out in an affidavit of Mr Chris Ford, the State Secretary of the Victorian Branch of the Australian Labor Party, dated 21 May 2022. 3 It appears that late on Friday, 20 May or early on Saturday, 21 May, certain signs were erected in the electorates of Higgins, Hawke and McEwen. The sign in the Higgins electorate was in a bright green colour and contained the following main text: FOR OUR FUTURE PUT LABOR LAST FOR OUR FUTURE 4 The signs in the Hawke and McEwen electorates also included the words: PUT LABOR LAST 5 The signs in all three electorates purported to have been authorised by "Hendrick Fourey" of an organisation called the "Business Owners and Contractors Union" with the address 14 Monterey Road, Dandenong. The authorisations were in a very small font. 6 Mr Ford stated in his affidavit that he had conducted a search of the Commonwealth Electoral Roll and, based on that search, did not believe that a person named Hendrick Fourey was on the Roll. Mr Ford also conducted a search on Google for the name Hendrick Fourey and the search returned no exact matches for that name. On the basis of these searches, Mr Ford stated that he did not believe that a natural person named Hendrick Fourey exists. 7 As noted above, the address on the authorisation is 14 Monterey Road, Dandenong. Mr Ford conducted a Google Maps search of this address. Mr Ford stated in his affidavit that, based on that search, he believes that 14 Monterey Road, Dandenong is a large industrial estate at which multiple businesses are located, and that, according to the Google Maps search, none of the businesses is the Business Owners and Contractors Union. 8 Mr Ford conducted a search on a Victorian government website (consumer.vic.gov.au) for the "Business Owners and Contractors Union". This indicated that there is an incorporated association called the Business Owners and Contractors Union Inc. The solicitors acting for the applicants obtained a copy of the "extract" for this association, a copy of which is annexed to Mr Ford's affidavit. This shows that the registered address of the association is 50c Heatherhill Road, Frankston, Victoria and that the secretary is Mr Peter Crawford. Mr Crawford and the association are the respondents to the present application. 9 On the morning of 21 May 2022, Mr Evan Willis, a partner of Holding Redlich, the solicitors acting for the applicants, sent by email a letter to the Australian Electoral Commission (AEC) about the signs in the three electorates. A copy of the letter was also sent to Mr Crawford at an email address at an accounting firm (which shared the same address as the incorporated association). A copy of the letter is annexed to Mr Ford's affidavit. 10 The letter attached photographs of the signs. The letter stated that the green colour of the sign in Higgins was objectively similar to that typically used by the Greens. The letter stated that similar photos had been posted to Twitter by the Australian Greens confirming that the signs were not authorised or in any way endorsed by the Greens. The letter contended that the signs were in breach of s 321D of the Commonwealth Electoral Act 1918 (Cth), which relates to authorisation of electoral matter (set out below). The letter provided detailed reasons why it was contended that the signs breached s 321D. The letter stated that the applicants were concerned that the signs were designed to mislead voters in Higgins, McEwen and Hawke and were not authorised in accordance with the Commonwealth Electoral Act.

The application for an interim injunction 11 At about 11.00 am on 21 May 2022, the applicants provided to my chambers an originating application. The affidavit of Mr Ford was provided at about 11.20 am, and the hearing commenced a short time after that. By the originating application, the applicants sought the following orders: 1. A declaration that the signs referred to in the affidavit of Chris Ford contravene section 321D of the Commonwealth Electoral Act 1918 (Cth). 2. An injunction directing the First and Second Respondents to instruct the persons that erected the electoral signs referred to in the affidavit of Chris Ford to remove the signs. 3. An injunction authorising Chris Ford, or a person under Chris Ford's authority, to remove the signs referred to in the affidavit of Chris Ford. 12 The applicants were represented by senior and junior counsel at the hearing. There was no appearance for the respondents, and it was not clear whether they had notice of the hearing. In these circumstances, the application proceeded on an ex parte basis. 13 At the hearing, the applicants made an oral application for interim orders to the effect of paragraphs 2 and 3 of the originating application, set out above.

The key legislative provisions 14 Part XXA of the Commonwealth Electoral Act (comprising ss 321B to 321H) deals with authorisation of electoral matter. 15 The objects of Pt XXA of the Commonwealth Electoral Act are set out in s 321C. The objects include promoting free and informed voting at elections by enhancing (among other things): (a) the transparency of the electoral system, by allowing voters to know who is communicating electoral matter; (b) the accountability of those persons participating in public debate relating to electoral matter, by making those persons responsible for their communications; and (c) the traceability of communications of electoral matter, by ensuring that obligations imposed by this Part in relation to those communications can be enforced. 16 The key relevant provision for present purposes is s 321D, which provides in part: 321D Authorisation of certain electoral matter (1) This section applies in relation to electoral matter that is communicated to a person if: … (b) both of the following apply: (i) the matter forms part of a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card; (ii) the content of the matter was approved by a person (the notifying entity); or … Notifying particulars (5) The notifying entity must ensure that the particulars set out in the following table, and any other particulars determined under subsection (7) for the purposes of this subsection, are notified in accordance with any requirements determined under that subsection. Required particulars Item If … the following particulars are required … … 5 the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by an entity that is not a disclosure entity or a natural person (a) the name of the entity; (b) the address of the entity … 7 the communication is a sticker, fridge magnet, leaflet, flyer, pamphlet, notice, poster or how-to-vote card authorised by a natural person who is not a disclosure entity (a) the name of the person; (b) the address of the person …

… Civil penalty: 120 penalty units. 17 The expression "electoral matter", which is used in s 321D, is defined in s 4AA of the Commonwealth Electoral Act. 18 The word "address", which is used in items 5 and 7 of s 321D, is defined in s 321B as follows: address of a natural person or entity means: (a) for a natural person - a full street address and suburb or locality at which the person can be contacted; or (b) for an entity: (i) if the entity has a principal office - a full street address and suburb or locality of the office; or (ii) if the entity does not have a principal office, but does have premises - a full street address and suburb or locality of the premises; or (iii) in the case of any other entity that authorised the communication of electoral matter - a full street address and suburb or locality at which the natural person who was responsible for giving effect to the authorisation can be contacted. 19 Section 321D(7)(b) provides that the Electoral Commissioner may, by legislative instrument, determine requirements or particulars for the purposes of (among other things) s 321D(5). At the hearing, the applicants relied on the Commonwealth Electoral (Authorisation of Voter Communication) Determination 2021 (Cth), in particular, cl 11. It is not necessary for present purposes to set this out. 20 Section 383 of the Commonwealth Electoral Act, which is contained in Pt XXIII (Miscellaneous), provides in part: 383 Injunctions Restraining injunctions (1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted, constitutes or would constitute a contravention of, or an offence against, this Act or any other law of the Commonwealth in its application to elections, the Federal Court of Australia (the Federal Court) may, on the application of: (a) in a case where the conduct relates to an election - a candidate in the election; or (b) in any case - the Electoral Commission; grant an injunction restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Federal Court it is desirable to do so, requiring that person to do any act or thing. … Interim injunctions (3) Where an application is made to the Federal Court for an injunction under subsection (1), (2A), (2B), (2C) or (2D), the Federal Court may, if in the opinion of the Federal Court it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in subsection (1), or restraining the carriage service provider or broadcaster as referred to in subsection (2A), (2B), (2C) or (2D), pending the determination of the application. … (6) Where an application is made to the Federal Court for the grant of an injunction under subsection (1) or (2) requiring a person to do a particular act or thing, the power of the Federal Court to grant the injunction may be exercised: (a) if the Federal Court is satisfied that the person has refused or failed to do that act or thing - whether or not it appears to the Federal Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or (b) if it appears to the Federal Court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing - whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing. No undertakings as to damages (7) Where the Electoral Commission makes an application to the Federal Court for the grant of an injunction under this section, the Federal Court shall not require the Electoral Commission or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages. This section does not limit other powers of the Federal Court (10) The powers conferred on the Federal Court under this section are in addition to, and not in derogation of, any other powers of the Federal Court, whether conferred by this Act or otherwise.

Consideration 21 The Court has jurisdiction in this matter under s 383 of the Commonwealth Electoral Act and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). The Court has power to grant an interim injunction under s 383(3) of the Commonwealth Electoral Act and s 23 of the Federal Court of Australia Act 1976 (Cth). It is clear from s 383(10) that s 383 is not a code; in other words, it does not exhaustively set out the Court's powers to grant an interim injunction or to make other relevant orders. Section 23 of the Federal Court of Australia Act provides that the Court has power, in relation to matters in which it has jurisdiction, "to make orders of such kinds, including interlocutory orders, … as the Court thinks appropriate". 22 Although I am dealing with an application for an interim injunction, in the sense of an injunction that would operate until the hearing and determination of an application for an interlocutory injunction, the principles applicable to an application for an interlocutory injunction are relevant. These principles were set out by the Full Court in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 (Samsung) at [44]-[74] per Dowsett, Foster and Yates JJ, and in GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd (2013) 305 ALR 363 at [81] per Bennett, Jagot and Griffiths JJ. An applicant must establish that: (a) there is a prima facie case or a serious question to be tried, in the sense that there is a probability that at trial the applicant will be held entitled to final relief; and (b) the balance of convenience favours the grant of the injunction, in the sense that the inconvenience or injury which the applicant would suffer if the injunction were refused must outweigh the inconvenience or injury the respondent would suffer if the injunction were granted. See Samsung at [55] by reference to Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ. See also Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J, [65]-[72] per Gummow and Hayne JJ. 23 The strength of the applicant's case is not considered in isolation from the balance of convenience: Samsung at [67]. In considering where the lower risk of injustice lies, all relevant factors are to be weighed in the balance. The strength of the applicant's case and their chances of success may be a relevant matter when assessing the balance of convenience. 24 I will start by considering whether there is a prima facie case. 25 In my view, the material relied on by the applicants, albeit ex parte, presents a strong prima facie case of breach of s 321D. It seems likely that s 321D applies to the signs, in that they appear to contain "electoral matter" as defined and the elements of s 321D(1)(b) appear to be satisfied. Assuming that s 321D applies to the signs, s 321D(5) provides that the notifying entity (that is, the person who approved the content of the electoral matter: see s 321D(1)(b)) must ensure that the particulars set out in the table in that subsection are notified. The relevant items in the table appear to be items 5 and 7. Item 5 is applicable if the person who approved the signs is not a natural person. Item 7 is applicable if the person who approved the signs is a natural person. In either case, there is a strong prima facie case that the requirements are not satisfied: (a) If item 5 is applicable, there is a strong case that the signs do not correctly state the name of the entity that approved the signs. Assuming that the signs were authorised by the Business Owners and Contractors Union Inc, the name on the signs appears to be incorrect because it does not include "Incorporated" or "Inc". (b) If item 5 is applicable, there is a strong case that the address provided (14 Monterey Road, Dandenong) is not the correct or complete address of the entity. The address does not correspond to the registered address of the Business Owners and Contractors Union Inc. It is unclear whether the association has any premises at the address provided, an industrial estate. If the association does have premises at the address provided, the address does not specify where in the industrial estate the premises are located. It is therefore incomplete. (c) If item 7 is applicable, there is a strong case that the signs do not provide the name of the natural person who approved the signs. The name on the signs - Hendrick Fourey - does not appear to correspond to an actual natural person. (d) If item 7 is applicable, there is a strong case that the address provided is not the correct or complete address of the natural person, given that it is an industrial estate. 26 I turn now to consider the balance of convenience. The primary order sought is an interim mandatory injunction requiring the respondents to remove the signs. An important consideration in the present case is that granting an interim mandatory injunction for removal of the signs is tantamount to granting final relief. It is unrealistic to think that there will be sufficient time for the respondents to have notice of the order and return to Court to agitate for its discharge during the day of the election (even though the Court is available at short notice to hear such an application). 27 In my view, in the particular circumstances of this case, it is appropriate to grant an interim mandatory injunction requiring the respondents to remove the signs. For the reasons discussed above, there is a strong prima facie case that the signs breach s 321D of the Commonwealth Electoral Act. Unless an injunction is granted requiring removal of the signs, the signs will continue to be displayed during the balance of the election day, thus undermining the important public policy objects of s 321D (as expressed in s 321C). In my view, the balance of convenience strongly favours removal of the signs, notwithstanding the consideration that this is tantamount to final relief (for the reasons given above). 28 I note that an interim mandatory injunction requiring the respondents to remove the signs goes beyond the terms of s 383(3) of the Commonwealth Electoral Act, which refers to restraining a person from engaging in conduct. However, s 383(10) makes clear that the powers conferred on the Court under s 383 are in addition to, and not in derogation of, any other powers of the Court. I consider there to be power under s 23 of the Federal Court of Australia Act to make such an order. 29 Further, I consider it appropriate to make an ancillary order (under s 23 of the Federal Court of Australia Act) authorising Mr Evan Willis, the partner of Holding Redlich with the carriage of this matter, and any other solicitor at Holding Redlich authorised by him to do so, and any officer of the AEC, to remove the signs. Unless an order to this effect is made, the interim mandatory injunction is unlikely to be effective. In the course of the hearing, there was discussion with senior counsel for the applicants as to who should be authorised to take down the signs. The applicants sought authorisation for a broader category of persons to remove the signs. However, I consider it appropriate to limit the authorisation to solicitors (albeit not independent of the applicants), who are officers of the Court, and to officers of the AEC, who have relevant functions and powers under the Commonwealth Electoral Act. A solicitor or an officer of the AEC is likely to understand the scope of the order and generally to assist in the smooth execution of the order: see Microsoft Corporation v Goodview Electronics Pty Ltd (1999) 46 IPR 159; [1999] FCA 754 at [30] per Branson J (in the context of Anton Piller orders and independent solicitors). 30 In response to a question from the Court, senior counsel for the applicants obtained instructions to give, on behalf of the applicants, the usual undertaking as to damages. 31 For these reasons, I consider it appropriate to make orders that: (1) Subject to further order, the first and second respondents, by their servants and agents, remove the signs referred to in the affidavit of Chris Ford affirmed 21 May 2022, being signs that purport to be authorised by "Hendrick Fourey" of "Business Owners and Contractors Union". (2) Subject to further order, Mr Evan Willis, a partner of Holding Redlich (solicitors), and any other solicitor at Holding Redlich authorised by Mr Willis to do so, and any officer of the Australian Electoral Commission, are authorised to remove the signs referred to in paragraph 1. (3) The applicants take all reasonable steps to bring these orders to the attention of the first and second respondents as soon as possible. (4) There be liberty to apply. (5) Costs be reserved.

Conclusion 32 It was for the above reasons that I made the orders. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.