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Australian Workers' Union v Bowen (No 2)

Australian Workers' Union v Bowen (No 2)

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Case Copied 6 December 1948 77 min read

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77 CLR 601

AUSTRALIAN WORKERS' UNION AND

APPELLANTS; OTHERS

BOWEN AND OTHERS

RESPONDENTS. [No. 2.] Voluntary Association-Trade union- Members-Expulsion from union by executive

committee--Charges formulated and prosecuted" by secretary-Secretary member of executive committee-Bias-Domestic tribunal-Bona fides-Natural justice -Appeal to supreme tribunal of union-Effect-Jurisdiction of the Court- Commonwealth Conciliation and Arbitration Act 1904-1946 (No. 13 of 1904- No. 14 of 1946), SS. 58d, 58E, 60.*

In cases involving consideration of the findings of a domestic tribunal of a voluntary association, the duty of a court is to determine whether the tribunal has observed the rules of the association and complied with the rules of natural justice; a court has no jurisdiction to review the findings of the tribunal only for the purposes of examining their correctness.

So held by the whole Court. The secretary of a union was entitled by its rules to sit as a member of the union's executive council. Acting on behalf of the council, the secretary, who had been actively engaged in a controversy with certain members, presented to the council, as a " prosecutor," certain charges against those members as a result of which they were expelled from the union. As a member of the council, the secretary took an active part in the hearing of the charges.

Held by Rich, Starke and Dixon JJ. (Latham C.J. and Williams J. dissent- ing) that the secretary was shown to be the prosecutor and also to be a * The Commonwealth Conciliation and Arbitration Act 1904-1946 has been amended by Act No. 10 of 1947. By this amendment SS. 58D, 58E and 60 have been re-numbered SS. 80, 81 and 83 respectively: see Act No. 10 of 1947, S. 27 and Third Schedule.

77 CLR 602

person invincibly biassed against the accused as a result of his participation in the controversy, and that therefore it was not in accordance with the principles of natural justice that he should act as a member of the tribunal and the proceedings of the council were therefore vitiated. By Latham C.J. In this case the rules of the union entitled the secretary to act on the tribunal and as the case before the Court of Arbitration was not fought on the question of bias it should not be decided on that question upon appeal. By Williams J. [No. 2].

By the rules all members of the council were both prosecutors and judges and the controversy between the secretary and the respondents was not sufficient to place him in a different category from the other members of

Subsequent to the determination of the council the expelled members appealed to the annual convention of the union. Under the rules the conven- tion had complete authority over expulsions. The convention confirmed the

Held, by Latham C.J., Rich, Starke and Dixon JJ., that no ground having been shown for treating the decision of the convention as void, it gave fresh authority to the expulsions, and the expelled members were no longer entitled to complain that the decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1948] HCA 35
Decision Date: 6 December 1948

CaseChat Overview and Summary

The case of *Australian Workers' Union v Bowen (No 2)* concerned an appeal to the High Court of Australia from a decision of the Commonwealth Court of Conciliation and Arbitration. The applicants, who were members of the Australian Workers' Union (AWU), sought to restrain the union and its executive council from proceeding with their expulsion from the union. The grounds for their application included allegations of mala fide expulsion, arbitrary dismissal of appeals, and denial of natural justice.

The legal issues before the High Court were whether the expulsion proceedings conducted by the AWU's Executive Council were valid, and whether the principles of natural justice and bona fides had been observed. Specifically, the court had to consider whether the participation of the union's General Secretary, who had acted as a prosecutor of the charges, in the deliberations of the Executive Council vitiated the expulsion decision. The court also had to determine the effect of a subsequent appeal to the union's annual convention on the validity of the expulsion.

A majority of the High Court (Rich, Starke, and Dixon JJ.) held that the General Secretary's dual role as prosecutor and member of the tribunal demonstrated an invincible bias, thereby vitiating the proceedings and rendering the expulsion invalid according to the principles of natural justice. However, Latham C.J. and Williams J. dissented, with Latham C.J. arguing that the case was not fought on the issue of bias and Williams J. suggesting that the rules inherently made all council members prosecutors and judges. Crucially, the court also considered the appeal to the annual convention. A majority of the High Court (Latham C.J., Rich, Starke, and Dixon JJ.) found that the convention, having the ultimate authority over expulsions, had confirmed the expulsions. As no grounds were shown to treat the convention's decision as void, it provided fresh authority to the expulsions, and the expelled members could no longer complain about the initial council decision violating natural justice.

Orders