Cains v Jenkins

[1979] FCA 145

CATCHWORDS

Registered organisation - removol from office of branch secretary by committee - refusal to allow agent of branch secretary to be present - actual bias or reasonable apprehension of bias - whether denial of natural justice - Conciliation and Arbitration Act s.141

CAINS v. JENKINS & ORS

V. No. 25 of 1979

Coram: J. B. Sweeney, St John & Keely JJ.

Place: Sydney

Date: 20 December 1979

I N THE FEDERAL COURT OF AUSTRALIA

--	)
1
VICTORIAN D I S T R I C T REGISTRY	) V. No. 25 of 1 9 7 9
)

INDUSTRIAL	D I V I S I O N	)
BETWEEN :	DAVID JAMES CAINS	A p p e l l a n t
and
R e s p o n d e n t s

ORDER

JUDGES MAKING ORDER:  J . B . S w e e n e y , S t . John & K e e l y JJ.

DATE O F ORDER: 20 D e c e m b e r , 1 9 7 9

WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:	A p p e a l be dismissed.

%

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIAN DISTRICT REGISTRY	) )
INDUSTRIAL DIVISION	1

IN THE MATTER OF The Conclllation and Arbitration Act 1904

BETWEEN :

DAVID JAMES CAINS

Appellant

- AND :

'\
Respondents

J. B. SWEENEY J. ST. JOt l f i J.

An application by the claimant for a rule nlsi, pursuant to
Section 141 of the Conciliation and Arbitration Act 1904
(The Act), that the respondents perform or observe the rules

of the Victorian branch of a registered organization, namely
the Federated Confectioners' Association, by treating as null

and void the resolutions of the committee of management

(the committee) of that branch, at a meeting held on *

11 April, 1979, was discharged by Northrop J. on 26 June, 1979.

Those resolutions dismissed the appellant from his former office of Branch Secretary after he was found gullty of certain charges against him. Against such discharge an appeal by the claimant is brought to this Court. Denlal of natural justice by the committee was alleged before the learned Trial Judge.

Before consideration of the grounds of appeal it is convenient to summarize the relevant facts. The terminology of the criminal law seems to have been imported into this area, and,

for the sake of convenience,we use it. An election for offlce

bearers except those of Secretary and President was held in
late 1978. The appellant distributed election material in
different languages, including English, in which he urged

members of the branch "to keep Communist influence and

interference from other Unlons out of thls Union" by placlng

a cross agalnst the names of four of eight candidates for

election to the committee of management. The four names for

whom a vote was not recommended included Messrs Gempton and

Pannagopoulos who were in fact elected to office subsequently

/

in December, 1978. Before the ballot was completed the then

committee passed a resolution calling upon the appellant to

withdraw "the allegations of Communist ~nfluence", to

publicly apologize to every member and expressing condemnation
of the appellant's "attempts to dlvide the membership".

Of the respondents Pannagopoulos. Jenkins. Prizziero

(the Assistant Secretary), Gempton and Skidmore were members

of the committee passing such resolution.

#

On 30 November, 1978, three separate charges in writlng were

laid against the appellant. Briefly stated, the first alleged

that the appellant had convened on 4 May, 1978 a special
meeting of the committee without the approval of the President,
and failed to notify certaln members of the comrnlttee of the
meeting, which was alleged also to be unconstltutlcnal. The
members present were alleged to have been paid attend,tncc n,uney
and expenses, presumably by the appellant. This charge was

signed by five persons including the respondents Jenklns,

Davis, Pannagopoulos and Bissiotis. The second charge alleged

that the appellant signed an industrial agreement with

Cadbury-Schweppes Limited without consultation and/or approval

of the committee, and signed the same without the signature or

approval of the Branch President. Thls second charge was

signed by persons including the respondents Pannagopoulos,

Gempton, Birch and Bissiotis.	The third charge alleged failure
to obey the instructions of the committee, the particulars of

which were that at a meeting called to discuss the electlon material above referred to, the appellant walked out of the meeting despite requests to remain.

At an annual general meeting held in December, 1978 and then to the appellant dated 6 February, 1979 and thls summons was signed by the Branch President, the respondent Jenkins, who travelled especially from a conference in Albury to Melbourne for

adjourned, the new committee on 31 January, 1979 resolved that
the appellant was not flt to hold office of Branch Secretary
and was accordingly dismissed in accordance with Rule 40 of
the Branch Rules. All the respondents except IIammerlund voted
for the resolution. The Industrial Relations Burcau intervened
and at a meeting of the committee on 6 February, 1975, the
resolution dlsmisslng the appellant from office was resclndcd
and suspension, pending the hearing of charges, was substituted.

that purpose. The appellant was summoned to attend a meetlng on

6 March, 1979 to show cause why he should not be removed from

the position of Branch Secretary. The grounds were ten in
number and grounds 1, 2 and 3 were simllar in content to the

three charges above described except that ground 3 inc1uclcd:-

"that you continued an act of gross misbehaviour when
you authorized and published and distributed a
document maklng mischievious, untrue and devisl.~c :?ic)

statements about members".

This, of course, was a reference to the electlon material.

Branch Rule 40 complles with Section 133 (1) (f) of the Act and is in the following terms:-

"REMOVAL FROM OFFICE

40.	(a)	any officer or member of the Committee of Management
The Committee of Management may remove from offlce which the person concerned has been summoned in wri.ting to show cause why he/she should not be so removed. Provided that such person shall not be removed from office unless he/she has been found guilty of misapproprlatlon of the funds of the Association, a substantial breach of these rules, or gross misbehaviour or gross neglect of duty, or has ceased, according to these rules, to be eligible to hold the office.
(b)	A person summoned to show cause pursuant to sub-
rule (a) of this rule shall be glven at least
14 days' notlce of the time and place of the
meeting of the Committee of Management to which he is summoned, and the notice summoning such person shall also specify the ground or grounds upon which it is proposed to consider such removal. The Committee of Management may proceed to hear and determine a matter under this rule
notwithstanding the absence of the person summoned
if due notice of the hearing has been given in accordance with this rule."

On 19 March, 1979, a Judge of this Court, on the application of th.
appellant made orders that the respondents treat as null and
void and of no legal effect the resolutions set out and

passed by the committee on 31 January, 1979 and 6 February, 1979.

The Court ordered also that the respondents not proceed to hear

and determine the charges in the summons dated 6 February, 1979

before 10 April, 1979. The committee met at 9.30 a-m. on

10 April, 1979, all the respondents being present except Hill

and Hammerlund. The appellant, accompanied by Mr Romanin, then

an articled law clerk but now a barrister and solicitor, identified hlmself and said that he was an agent for the

clamant and was present to represent the claimant. Hls rlght
to remain during the meeting wae questioned by some members,

and, when put to the vote, the meeting resolved that Mr Romanln

be not allowed to remain. Before leavlng, Mr Romanin was

permitted to read a prepared statement slgned by the appellant

in which he, the appellant, objected to the respondents Frlzziero,

Jenkins, Davis, Skldmore, Chalon, Pannagopoulos, Gcmpton and

Bissiotis partlclpating in the meeting on the grounds that they were so prejudiced agalnst the clalmant as to be unable to give the appellant a fair hearing. Particulars of the alleged

prejudice were that they had signed one or more of the three
original charges dated 30 November, 1978, thcjr had partlclpated

in the commlttee of management meeting of 23 November, 1978,

and that the respondent Pannagopoulns had threatened to kill

the appellant because Pannagop7ulo.c belleved hc had been

described as a Communist in the election material. The
prepared statement then went on with a statement that the
appellant did not recognize the meetlng as valld or as acting

in good faith and that he dld not propose to take any part in

it. It also stated that if the appellant remalned present it
was as a witness and the members of the commlttee were suppl~ed
with a sworn statement by the appellant setting out his answer
to each of the grounds set out in the summons.

The hearing of the charges proceeded in the absence of
Mr Romanin but in the presence of the appellant. The
respondent Jenkins, who presided, read out a statement as
to the procedure to be followed in dealing with the charges.
This statement was based upon her experlznce as a memhr of
a criminal jury and certain instructlon she had recelved in
attending Clyde Cameron College. Of it the learned Trlal
Judge said "it is a remarkable statement and is to be
comended". In short,it included a statement that
Mr Frizzier0 would prosecute the charges: that wltnesses
could be called by the prosecution and could be asked questions
by the appellant: that the appellant could call wltnesses and

the prosecutor could ask them questions and further that the members of the cormnittee could ask questions. It went on to the effect that if any member of the committee was called to give evidence that member may participate in the final decxslon

but may not dlscuss hls evidence after Mr Frlzziero had left
the committee of management to deliberate on the charge. The
members were then asked to approach the matter wlth an open

mind and give every assistance to the prosecutor and the

appellant in presenting the facts so that "you can justly

deliberate on the evidence before you before making any
decision on any of the charges". A copy of the rules was
before each member and they were urged to refer to them as
necessary. Finally, members were told that the appellant was
to be given the benefit of any doubt which might exist in
members' minds "if you are not fully convinced on any point
put to you".
The respondent Jenkins asked each member of the Committee
if he or she felt disqualified from hearing and deterninlng
the charges. The respondent Birch stated that she could not
bring an open mind to the questions, left the meetinq, and
took no further part.

The procedure outlined by the respondent Jenklns was
followed and after the prosecutor had presented his materlal
on each charge the applicant was asked whether he had anythlng

to say. He invariably replied "no comment" but on the second

day did make some comment. The appellant was glven every
opportunity to present his defence. On the afternoon of

10 April, 1979, the respondent Gempton stated that the mcetlng

was a mockery because of the appellant's refusal to participate

and stated that he was going to tell his members that the

claimant was guilty and then left the meeting. He took no

further part in the hearing. The meeting was resumed on the
morning of 11 Aprll and at about 2.30 p.m. the hearing of the
charges was completed and the claimant and the respondent

Frizziero left the meeting. The remaining members of the

committee considered each charge separately, and, under the

direction of the respondent Jenkins the members looked at the
relevant branch rule, the material presented to them by the
prosecutor and the answers contained in the statement

distributed by the appellant. Wher. discussion had ceased,

the respondent Jenkins asked each memb~r in turn to state his

or her decision. After each ground in the summons had been
finally considered a decision was taken as to whether or not

to remove from offlce. The committee did not consider whether

to impose any other penalty or to impose no penalty at all. informed of the results of the adjudication. On a number of grounds the appellant had been found guilty and dlsmlssed from

office. On others, including grounds relied upon prevlously,

he was found not guilty.

At the hearing before Northrop J. each of the nine respondents who adjudicated was called to give evidence and was cross- examined as to prejudice against the appellant and whether or not the hearlng was approached wlth an open mlnd. Hls Honour

was satisfied that each of the nine respondents "to the

extent of his or her capabilities did consider the charges
and did participate in the deliberations in the manner
described by the respondent Jenkins in her preliminary remarks
and thereafter under her careful guldance . . .". His Honour
found specifically that the appellant had not established that

the members of the Committee who heard and determined the

charges against the appellant were so blased as to vitlate
the decisions made.	A submission,that the tlme for determining
whether blas exlsted or not was at thc time the me~tlng	commenced,

was rejected and His Honour expressed the vlew that the vrhole

of the proceedings m u t be considered. As to a subnussion

that answers given to cross-examination of the committee
members indicated that a "reverse onus" may have been applied
by some. His Honour stated that it introduced "a degree of
subtleness which is undesirable in matters of this kind". Taking
the analogy of a jury which could not be cross-examlned Hls

Honour said "the particular thought process of individual members of the committee should not be allowed to h used to

challenge decisions made which have been arrived at b,~	applylng
procedures which are fair and reasonable".

As to a submission that natural justice Mas denied in falling to allow Mr Romanin to represent the appellant, His Honour polnted

out that the appellant held offlce whlch placed him in an

advantageous position with respect to other members of the

Committe~. In other words His IIonour took the view that the

appelaant in the proceedings was well able to look after himself
and that the refusal to allow representation did not invalidate
the decisions.

In view of the arguments formulated by Counsel for the appellant it is desirable to make some general observations as to the application of rules requiring adherence to the principles of natural justice by tribunals generally. Flrstly, there is a different approach, depending upon whether the trlbunal hearing

the charges is statutory or consensual in origln.	In broad
terms a more stringent test is applled to the former than to
the latter.	To the statutory trlbunal the law apnllcs a test

based on the appearance of fairness: a reasonable susplclon of

unfairness generated in an assumed i~~fnrm~d	observer is su4ficlent
to nullify the proceedings.	In the case of the consensual

tribunal the reallty is considered: the questlon is whether

in all the circumstances natural )usticc was done. There are

of course differing standards of natural justice to be applied

In the case of different types of each type of tribunal.

The relevant authorities on thls field of the law have been

usefully reviewed, and, in our view, accurately expounded in

the New South Wales Court of Appeal in Maloney v New South

Wales N a h a l Coursinq Association Limited (1972)l N.S.W.L.R. 161

In the leadlng judgment Glass J.A. illustrates the difference of

approach to a consensual tribunal by quotin~ Dlxon J. ln

Australian Workers Unlon v. Bowen (No.2) 77 C.L.R. 6Ol at pages

628. 630 and 631 of that report. Those passages are as follows:

"It is important to keep steadlly in mlnd that we are

dealing wlth a domestlc forum actlnq under rules

resting upon a consensual basls.

"The last matter relled upon as invalidating the dec~sions
1s of a more serious kind. It is that the Executlve
and Dougherty were both prosecutors and ludges and

animated by such lntenslty of feeling that they were

disqualified by blas. So far as thls contention is

based upon the fact that the Executlve Council promoted
the charges and that they were vitally concerned in

the controversy not only as members of the union but

as office-bearers whose authority had been resisted.	there is in my opinlon no substance in it. The reason
lies in the constltutlon of the unlon. In chooslng as a doncstlc forum a governing body and Jn authorl~ing it to make lnqulrles and lnvestlqatlons of such a k ~ n d
the rules necessarily bring about, LZ they do not

*

actually contemplate, such a situation. Domestic
tribunals are often constituted of persons who Tay. or

even must, have taken some part in the matters concerning
which they are called upon to exercise thelr quasi-

judicial function. Nor do I think that it has been shown

secretary, was disqualified by any interest or specif~c ground of bias attaching to h4m or to them all. But	that any particular member, putting aside the general different position.
"It is not in accordance with the principles of natural justice to have present as a member of the tribunal a
person who has promoted the charge and supports it as the prosecutor or one who 1s invlnclbly blasscd against the accused as a result of his participation in the controversy, and this was the case with Dougherty. If a person disqualified by such considerations slts with the tribunal and takes part in the decision, that is enough to vitiate it: Dickason v. Edwards."

Northrop J. expressed some concern as to the difficulty of

applying the phrase "invincibly biassed" in applying Bowen's
case to the facts before him.	"Invincible" must in the

circumstances mean a bias that is incapable of belng remedied
by reason or argument during the period up to the maklng of
the tribunal's decision. It could not mean that bias that was

impossible of eradication at any tlme durlng the holder's

1ifetime.as that would be irrelevant to the decision in

Bowen's case. In our vlew it is sufficient if the flnding

is that, on the probabilities, the bias continued at least

until the adjudication is made.

In many cases bias is inferred from previous conduct or a history of a relationship between contestants. Had not Northrop J. heard evidence from all the committee who deliberated he may have inferred such bias from prevlous

conduct. In our view he certainly was not precluded frcm

finding that bias did not influence the decision of the cornittee heard all the partlcipanto,and had before hlm extremely full minutes of the meeting.

It remains to deal with the arguments put for the appellant.

Counsel for the appellant put to the Court various arguments in which he selected a certain fact or facts from declded

cases and sought thereby to produce a general proposition of
lnw that natural justlce had been denied when those facts

existed and in this process ignored other relevant facts which

contributed to the ruling that natural justice had been denied.
For example Cleworth v. Barrow (1978) 20 F.L.R.	359 was relied

upon as establishing the principle that invincible bias
"includes the concept of prejudgment and a prior hcarlng of
exactly the matters concerned at which a judgment of those

facts is made as amounting to invincible bias and therefore

disqualification". Cleworth's case was a declslon after a

first instance hcarlng in whlch the relevant facts were that
pursuant to a rule allowing resolutions to be made by the

committee signing a resolution in terms without a formal
meeting, three members signed a resolution supporting the
suspension of the federal secretary and in that sense had
pre-judged the issue of his guilt without hearing the federal
secretary. At a subsequent meeting when the secretary was
heard, the suspension resolution was confirmed and a
suspension of three months imposed. A careful reading of the
joint reasons for judgment makes it perfectly clear that the
Court felt there was a prima facle case of bias within the
terms of Bowen's case made out against three members of the

Tribunal because of their pre-judgment. At the hearlng those

three members gave no-evidc~ce aL all to displace such a

prima facie case except that one of them swore an affidavit

which dld not touch on that issue. In the absence of any

evidence to the contrary the Court concluded that the continuation

of the bias evidenced by slgnlng the resolutions wlthout hearlng

the secretary was an inference properly to be drawn. In other

words Cleworth's case establishes no new principle; it is an

application of the principles in Bowen's case to the facts

.

before that Court.

Counsel for the appellant also relied on the fact that the

President Jenklns had signed the summons addressed to the

appellant settlng out the charges to be dealt with. The

President Jenkins' explanation for signing the charges was

to the effect that she thought she was the appropriate person

to do so. Because she signed the charges counsel for the

appellant argued that it was a principle of law that she
was thereby disqualified from taking part in the hearlng.
Reliance was placed on Dickason v. Edwards 10 C.L.R. 243

to support this proposition. In that case the conduct

complained of consisted of personal abuse of a Dlstrict
Chief Ranger who was entitled to, but not bound, under the
relevant rules to preside over the body which ad~udlcatcd.
At Page 252 Griffith C.J. said of 'he Chlef Ranger's positlon
"if he is not merely a formal party but in substance an

individual complaining of an offence against himself, then

I think very different considerations apply. Then it becomes

his own cause not in a technical sense but substantially.
He is a person complaining of a grievance." The learned

Chief Justice then went on to state that such circumstances

vitiated the proceedings. It is, in our view, a far cry from

the facts before Northrop J.

Counsel for the appellant also rellcd on Taylor v . Natlonal Union of Seamen (1967) 1 W.L.R. 532. That case turned upon considerations vastly different to those in the instant

case. In the forefront of the flndlng that there was a dcnlal

heard from the accuser a long statement in the plalntlff's	of natural justice was the fact that the trlbunal dellberating
absence about matters completely outside the charge agalnst him,(such as that he had Communist assoclatlons), whlch affected the minds of the deliberating body. Rocbuck v. Natlnnal Unlon of Mine Workers (1977) I.C.R. 573 was also referred to for
the same purpose. In that case the actions of the President,
whose presence on the tribunal dellbcratlng, was not necessary according to the rules, and hls conduct prlor indicated st.rong animus agalnst thc person charged. At Page 507 Judge Rubln
applled Bowen's case and at Page 589 it was emphasized that

. . ./l6

he also expressed the view that the persons charged were guilty.	in the very document in whlch the President made the cornplalnt on the facts; denial of natural justice was found or inferred from proven facts. There is no absolute rule that dcnlal must
be found when the person laying charges adjudicates. There is
no rule of law that a committee that has adjudicated guilt Gn issues cannot afford natural justice on a second hearing of the same issues: Ridqe v. Baldwin (1964) A.C. 40. There are facts which lead inevitably to the conclusion that a fair hearing has not been had: where for example the accused is left in ignorance of the complaint against hlm or he is not allowed to be heard in answer: the audi alterum partem rule.
For the appellant it was also argued that denial of representation (the exclusion of Mr Romanin), vitiated the proceedings. Lord
Denning's judgment in Pett v. Greyhound Racinq Association (1968) 2 W.L.R. 1471 at 1475 dealing with the right to representatlon of a greyhound trainer before a tribunal, the decision of whlch could result in hls licence to train being lost, stated
". . . when a man's reputation or livelihood is at stake he
not only has a right to speak by his own mouth. He also has the right to speak by counsel or solicitor". That statement was made in an appeal from interlocutory orders: when the natter
finally came before Lyell J. (Pett v. Grevhound Racinq was not applied. His Lordship referred (at Page 1237) to the fact that the Prlvy Council advlce in w e r s l t y of Ciyl-on v.
Fernando (1960) 1 W.L.R. 223 had not been cited to Lord
Denning and hls brethren. There a charge of cheating in an
examination could have led to a student's being refused to sit for further examinations. The University refused permission for the student to cross-examlne a witness whose statement in wrltlng supported the charge. Thc Judicial Committee cited Russell v. The Duk. of Norfolk (1949) 1 All E.R. 109 per Tucker L.J. at p.108: "

"There are, in my view, no words which have unlvc~sal

application to every kind of inquiry and every klnd

of domestic tribunal. The requirements of natural

justlce must depend on the clrcumstanccs of the case,

the nature of the inqulry, the rules under v~hlch the
tribunal is acting, the sublect-matter wlllch is belny

dealt wlth, and so forth."

A s recently as 1973, in Stollery v. The Greyhound Rarinq

Control Board (1973) 128 C.L.R. 509 Gibbs J., at p . 5 2 6 ,

quoted the latter sentence of that passage with approval,

prefacing it by

"The principles of natural justlce are not rlgld or
.technical.	"

At p.517 of the same report Barwlck C.J. sald

"What is required to satisfy thcsc principles no doubt

depends very largely on the matter in hand and the

!

circu~nstances in which the hearlng takcs placc."

The appellant's capacity to look after himself before the committee in the matter under appeal was assessed by Northrop J. His finding is referred to above. His Honour's annroach was correct. Whether a deaf mute or a migrant with no English should have representation is a question that could have a

different answer to the samc question abot~t Queen's Counsel. On

the authorities there is no absolute right to rcpresentatlon even where livelihood is at stake. Rut that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal,

may be such that refusal would offend natural justice prlnclples 1979 was only that Mr Romanin should be prescnt as a witness observing the proceedings. The applicant intended that he himself would examine and cross-examine witnesses and address. We see nothing in the learned Trial Judge's decislon on thls point that calls for adverse comment.

Thc content of the rules is to some extent prescribed by the Act and regulations made thereunder The statutory content does not

and committee members remalns the province of the memhl-s of the	touch upon the composition of committees: the choice of offlcers
Union. Therefore they remain tribunals with a consrnsi~al base
as referred to in the above quotation from Slr Owen Dixon in Bowen's case. We reject a submission to the contrary made by the appellant's counsel. We emphasize, if emphasis be necessary, that we are not to be taken to be reducinq the level of care, consideration and fairners that must characterize the hcarlng and adjudication of a trade union committee esncclally when exercising powers of dismissal of officers or cxpulslcn.

. . ./l9

Some of the committee members hearing the charges aqalnst the appellant had persona1,knowledge of the facts supporting the charge. This was utilized to support a further submission of denial of natural justice. Rule 24 of the branch rules provided that the branch secretary was under the supervision of the committee. In the domestic tribunal sphere natural justice is

an implied term of the contract of membership. Terms cannot

be implied where a contrary intention is expressed in the

contract. If the committee is dutiful, in many cases, its

members will necessarily become aware of or have personal
knowledge of the conduct which forms the subject-matter of the
charge. It follows that the implled term of natural justice is
modified to the extent that if a quorum of the committee cannot
be formed from members with no knowledge the members wlth
knowledge must proceed to deal with the charge. To hold
otherwise would, for example, put a defalcating secretary in
an impregnabie positlon if he confessed his misappropriation to
the whole committee. That could not be the true intenticn of

the parties to the contract of membership.

Because of knowledge of the facts in the m~nds of some cornittee

members it was submitted by appellant's counsel that. rather than
proceed under Rule 40 of the branch rules.the federal body rule
under which membership of the organization could be terminates
should have been invoked. Statement of the submission is almost

its own refutation. Putting aside the possible argument that

conduct in the office of secretary as secretary is not conduct

as a member and therefore outside the federal rule, branch rule

40 could be reqarded as beinq breached by th.:t course. To

indirectly dismiss a secretary by terminating hls menlbrlrship of We doubt whether it would be a bona fide use of other rules to achieve indirectly that same purpose but that is not a matter necessary for our decision at this stage.
the Unlon would in our view be in breach of the branch rules.

It is not our intention to comment upon all the suhmlsslor.s made as to the effect of numerous decisions to which we were referred. We detect no errors in the approach of the learned

Trial Judge. Hls Honour's reasons and conclusions are careful and compelling.

Apnellant's co~~nsel also argued that the failure of tl~s r:o~.m:ttee

to conslder a penalty other than that of dismissal anountcd to a denial of natural justice as dld the £allure of the comrclt.tcr to hear the a~pe!lant on the questlon of penalty after flnding qullt.

The minutes of the meetlng reveal that the appellant was invlted

to be present during the deliberations of the com~lttcc?	whcn tl~ey
retired to conslder the matter but he declined t:hls lnvlt-atlon.

Further, after the announcement of quilt on the flrst charges

referred to, the appellant wa? lnvitcd to sneak but stated hc had

no conment to make. Dismlsflal was then announced. There w a 5 ?orqe

cross-examination of rrembers of the comrnlttee apparently 3lrcctr.d to establish in the witness a state of mlnd in whlch hc c?ld not

conslder the posslblllty of not dism~nsing the ap~ellar~t. T'np t w ~

submissions referred to above were rnadc to the 1carnf.d trial j1lclc;e
and to a great extent they depend upon the vicw he Lock of tl~e
state of mlnd of the varlous co~lunlttee members who wpre cross-

examined on that matter. The evldcnce as to their state of .>ind

is not at all clear as some of the questions were put on the hasls

as to whether or not the wltness considered any penalty other than dismissal and clearly from Rule 4n no other penalty is available. We are not satisfied that tnere is any substance in elther

suhlssion.

The appeal is dlsmlssed.

. .

4   I N THE FEDERAL COURT OF AUSTRALIA )

)

INDUSTRIAL DIVISION	)	V. NO. 25 of 1979
)
VICTORIA DISTRICT REGISTRY	)
BETWEEN:

DAVID JAMES CNNS	Appel iant
and
Respondent

Coram:  J. B. Sweeney, S t John & Keely JJ.

20 December 1979

REASONS FOR JUDGMENT

KEELY J.

I have had t h e advantage of read ing t h e reasons f o r

judgment of J. B. Sweeney and S t John JJ. whlch set o u t i n

d e t a l l t h e m a t e r l a l f a c t s and the I s s u e s a r l s l n g i n t h l s

appeal . I ag ree t h a t t h l s appea l should he d lsmlssed and

s h a l l s t a t e s h o r t l y my reasons f c r s o doing.

M r Trace-f o f counse l on beha l f of t h e i lppel lant s t a t e d

t h a t h e d l d n o t submit t h a t it was n c t open t o t h e c o m l t t e e

t o reach	t h e conc lus ions t h a t it d l d on	t h e m a t e r i a l whlch	was
b e f o r e it.	The m a t t e r s r e f e r r e d t o i n grounds	1, 2 , 4 ,	6

and 7 of t h e grounds of appea l may	Le broadly s t a t e d a s a
submlsslon t h a t t h e l e a r n e d t r l a l judge	silould have h e l d

t h a t on t h e evidence b e f o r e hlm t h e appe l l an t had f ~ t ; l ; ~ l l s h w ?

t h a t scms o r a l l of t h e membcrs of t h e corrunlttee of

management who heard and determlncd t h e charges against

t h e a p p e l l a n t w e r e " s o b l a s e d a s t o v l t l a t e t h e l r cleclslvns

thereun".

i n suppor t of t h l s submlsslon I.:r Tracey . ougn t t o p l a c e

considerable r e l i a n c e upon t h e d e c i s l o n i n Clcworth v. - R :

€. o r s (1978) 20 A.L.R. 359. I n t h a t c a s e t h e Cour t , a f t e r

s t a t l n g t h a t c e r t a l n evldence	showed	prejudgment	by	t h r e e
members	of	t h e committee,	d e a l t w l th an	argumer~t " t h a t t h e r e

was i n f a c t no p r e ~ u d g n e n t b u t t h a t t h e resolution was merely

a way of having an i t e m p l aced on t h e agenda" and t h a t t l lose

respondents w e r e unbiased. The Cour t , i n rejecting t h e

argument r e f e r r e d t o t h e absence of any evldence t o suppor t

l t , and s a l d ( a t p.370):

"No a t t e m p t , however, was made t o l e a d evldence from them

b e f o r e u s t h a t t hey	rcgardsd	t h e i r telegraphic	v o t e as
on ly p l a c i n g an	i t e m on	t h e agenda	o r t h a t t hey had

lndeed a p p l l e d themselves t o g l v i n q a f a i r hea r ing t~

t h e applicant.

M r Brophy swore an affidavit b u t d l d no t touch on t h l s

mat te r . H e was p laced i n t h e wltness-box, b u t no evldence

was l e d from him o r ob ta lncd 1 1 1 c r o s s - e x m l n a t l o n . The

o t h e r two	members	d l d n o t	g l v e evldcnce.
I n	t h e s e c i rcumstances w e f e e l WC	a r e unable	t o d e p a r t

from t h e terms of t h e te legrams and t h e r e p l l e s and

t h a t t h e s e c l e a r l y show a judgmr!nt and cons idered op in ion

reached by t h e t h r e e members on t h e very mtters t h e y

w e r e r e q u l r e d t o l n q u i r e i n t o and reach a d e c l s l o n about.

W e t h e r e f o r e t h i n k t h a t t h e r e was a d e n i a l of n a t u r a l

I u s t l c e i n t h i s a spec t . "

Tne absence o f evldence i n suppor t of t h e submlsslon i n

Cleworth v. Barrow & o r s ( s u p r a ) may be c o n t r a s t e d wi th t h e

p r e s e n t m a t t e r i n which each of t h e n i n e respondents who

participated i n t h e d e l l b e r a t l o n s of t h e c o m u t t e e gave

evldence. I n my vlew t h a t d e c i s l o n does no t a s s l s t the

p r e s e n t	a p p e l l a n t .	I	a g r e e w l th	t h e l ea rned	t r l a l	ludqe
t h a t on	t h e evldencc it	h a s n o t	Seen	e s t a b l i s h e d	t h a t	any

member of the committee who heard and dcter~nlned thc.
charges agalnst the clalmant was so biased as to vltlate

the declslons made.

Mr Tracey contended that it was sufficient for the

claimant to establlsh a reasonable apprehension of blas
and placed some rellance upon the following sentence from

the reasons for judgment in Cleworth v. Barrow & ors (suprz

"It would seem that it is no less unportant that
lustlce be seen to be done than thar it be done in

the case of these organlzatlons."

That sentence was part of a passage dcallng wlth an aiq~mcnt
that "the clalmant had walved hls rlghts to have th- rules
cf natural justice applled" and in my vlew was not inl-~nded
to convey that it was sufflclent for a clalmant under s.141

of the Act to establlsh a reasonable apprehension of bras.

In my opinion where actual bias on the part of peLscns

sltting on a domestlc tribunal has not been cstabl~shed, ,A

clalmant under s.141 of the Conclliatlon and Arbltratlnn natural justlce by showlng only that falrmlnded persons might

entertain a reasonable apprehension that members of the

domestlc tribunal wuld not act with unbiased minds.

Mr Tracey submitted that the New South Wales Court of A~{JF~~'s

decislon in Malonev v. New South Wal~s	Natlonal Coursinc
Association Ltd (1979) 1 M.S.W.L.R.	161 is "buth wrcng and
d-stlnguishable". I relcct tho arqum~nt	that the decisluc is
wrong and adopt, as bclng equally asp1 lcahle tr~	thc c?m~-stic
trlbunal the sdblect of the present appeal, wb:t X;:-	7 :I fJ

in Malonev' S Case (supra) by Glass Z.A. (with w!!crn F~.J!-., 311e

I!utley J J . i k . ag reed) who, a f tcr r e f e l - r l ng t o t h e a p p l ~ c a t l o n

c€ t h e p r l n c l p l e s of n a t u r a l j u s t l c e t o c c u r t s ancl s t a t u t o r y

t r i b u n a l s , where t h e t r l b u n a l is n o t chosen by t h e p a r t l c s ,

s a i d ( a t pp.170-1) t h a t :

" t h e requl rements of	n a t u r a l	: u s t l ce	a r e i n ssna
r e s p e c t s d l f f e r e n t where	domcstlc	tribunals	a r e

concerned. . . .

Domestic t r i b u n a l s a r e u s u a l l y e s t a b l i s h e d i n

circumstances w h l c h a r e radically	d l f f e r e n t .	The
members,	g e n e r a l l y speakinq,	have agreed t o ab lde

by a s e t of r u l e s and t h e a u t h o r i t y of a c o m m l t t ~ e

t o en fo rce them, i f necessary by expuls ion . 'J'lle

committee members canno t , i n t h e n a t u r e of t h l n g s ,

d i v e s t themselves of t h e manlfold p r e d l l e c t l o n s

and p r e j u d i c e s r e s u l t i n g from p a s t a s s o c l a t i o n s

w l th members. Apprehension of b l a s could be

genera ted i n a l l k i n d s of ways. I f i t was a

disqualifying c o n s i d e r a t i o n , t h c enforcement o f

t h e consensual r u l e s would be l a r g e l y unworkab l~ .

There may be some c i rcumstances where a susp lc lon of b l a s would o p e r a t e t o disqualify a member of a

domest lc t r i b u n a l . But g e n e r a l l y speaking i t does

n o t s o o p e r a t e ....

A domestlc t r i b u n a l o b l l g e d by t h e g e n e r a l law t o

observe t h e mlnimum requl rements of justice must

g l v e n o t l c e o f t h e charge be lng p r e f e r r e d , extend

an adequate opportunity t o p r e s e n t a deferice and concede a l l the o t h e r i n c l d e n t ~ ~ l sa fcquards of a

f a l r t r i a l whlch a r e covered by t h e audl a l t e r am

p a r t e n principle. ...

But f o r r ea sons a l r e a d y g lven I am of op ln lon t h a t

suspec ted b l a s on t h e p a r t of	a m?mber of	a domcstlc
tribunal	such a s t h e commltte,? o f	t h e defendant

a s s o c l a t l o n does n o t disqualify him, <wen i f t h e r e

be no r u l e which e x p r e s s l y , o r by i m p l l c a t l o n , s o

provides. "

I n suppor t o f h l s submlsslon t h a t Maloney's Case ( s u p r a )

1s " c i ~ s t i n g u l s h a b l e " , M r Traccy contended t h a t t r a d e un lons

registered under t h e Act " a r e i n a ve ry d i f f e r e n t ca t ego ry

from t h e p u r e l y consensual domest lc bodies" such a s s p o r t l n g

c l u b s and s o c l a l c l u b s . H e p u t t h e contention on two bases .

F l r s t h e s a l d t h a t " I n many c a s e s i t is a f a c t t h a t membership

of t r a d e unlons 1s a t l e a s t i n a de f a c t o scn:;e no t vo lun ta ry" .

Flowever, i n my vlew t h a t suggestion 1s met by h12 concession

t h a t t i l e re was no e v ~ d e n c e b e f o r e t h e t r l a l judgc t h a t any

pe r sons were	fo rced t o join	t h e Fedcrated	Confcc t ion i r s '
Assoc la t ion	( t h e un lon) .

Secondly M r Tracey r e l i e d on t h e f a c t t h a t reg ls t r? . t lon

of t h e union under t h e A c t c o n f e r s c o r p o r a t e s t a t u s , t h a t

bo th t h e Act	and t h e regulations under	it	r e q u i r e t h e
registered	r u l e s of	t h e unlon	t o comply w l t h de ta l lec l

p r o v i s i o n s and t h a t t h o s e l e g i s l a t i v e requl rements have

i nc reased	s i g i l l f l c a n t l y	i11	r e c e n t	yea r s .	However,	t h o s e
p r o v i s i o n s of	t h e Act	and	t h e r e g u l a t i o n s	do	n o t	s u ~ p o r t

t h e argument e x p r e s s l y and i n my opin ion they do not

suppor t it	i n p l i e d l y .	There may	be	an l m p l l c a t l o n t o h	e
c o n t r a r y	i n t h a t	regulation	1 1 5 ( l ) ( d ) r c q u i i e s	t h a t	t h e

unlon have	r u l e s f o r t h e e l e c t i o n of	o f f l c e r s and of	a
conunlttee o f management	and of	o t h e r bod ie s empowe~ed	t o

e x e r c i s e functions of managemerrt and s .133(1) ( f ) of t t l~ Act

imposes c e r t a i n requlrements	a s t o any	r u l e s o f	t h c unlon
providing	f o r t h e dismissal	from o f f i c e of	a persnn e l e c t e d
t o an	o f f l c e .	Such	r u l e s w i l l o f t e n r e s u l t i n t h e conun~t tee

of managelent empowered t o h e a r a charge be ing c o n s t l t u t c d

by pe r sons , socle o r a l l of whom \ v 1 1 1 have sane pe r sona l

knowledge o f , o r even have played sonc p a r t i n , the m a t t r - r s t o

whlch t h e charges r e l a t e . I am n o t p repared t o acce1)t

Ilr T r a c e y ' s argument	t h a t Maloncy's	Case	( s u p r a ) 1s
distinguishable.

M r Tracey a l s o contended t h a t a t thc t l n9e oi t h ? J~irlgmcnt

of t h e I-Ilgh Court I n i\.ustral:an Workers' Union v. Bcr..r,>n (Yo. 2 ) (1948) 77 C.L.R. G01 " t h e r e a l l l k e l t h ~ o d ( o f bla:) t ? s C was i n

t h e ascendency b u t . . . t h a t 1s no longe r t h e c l s e " . Ilo:~t<vc?r,

I do no t cons lde r t h a t any of t h c I<z t c r c a s e s c i t e a h.?.<<

Srought about t h a t r e s u l t and I n my opln lon t t w f?il.r~:;jrlg

passaqes	f ror . T3owen's	Case	( si inra) , wh1c11 w e r e rjur>t,?d l,.!
G la s s J . A .	I n Maloney's	Case	( s n p r a ) , s t l l l apply.

" I n cons lde r lng t h e q u e s t l o n whether t h e pracr-.~xilngs

of t h e executive counc l l of	t h e unlon wele cdr r l -3	o	~	t
i n accordance wl th	t he	rcqulr-cmcnts of	n a t u r a l	] u s t . l c ~ ~ ,

t h e	r u l e t o be	a p p l l e d	l n t h l s c a s e i s c n t l r e l y
d l f f e r e n t from	t h a t whlch	i s a p p l l c d t o	judq+c,,

magistrates o r any person i n a l u d l c i a l capacity,

where t h e t r l b u n a l i s no t chossn by t h e p a r t l c s \%h0

a r e sendlng t h e l r d l s p u t c s t o be s e t t l e d by i t , b u t

1s a t r l b u n a l c o n s t i t u t e d a p a r t from any agreemlZ,nt

o r consen t of t h e p a r t l e s . h%ere t h e t r l b u n a l i s

not chosen by	t h e p a r t l c s , no doubt t h e rulcl i s vcry
strict .	But where t h e p a r t l e s choose their own
t r l b u n a l	t h e c a s e 1s very d l f f e r e n t . "

Dixon J. ( w i t h whom S t a r k e J. agreed) s a i d a t p.630:

" I n chooslng a s a domestlc forum a qovernlng body and

I n a u t h o r i z i n g it t o make l n q u i r i c s and l n v e s t l g a t l o n s

of such a k lnd t h e r u l e s necessarily b r l n g abou t , 3.f

t hey do n o t a c t u a l l y contemplate , such a s l t u a t l o n .

Domestic tribunals a r e o f t e n c o n s t i t u t e d of persons

who may, o r even must , have taken some p a r t i n t h e

m a t t e r s concerning which they a r e c a l l e d upon t o

e x e r c l s e	t h e l r	q u a s i - l u d i c l a l	function."
I t was	a l s o argued t h a t t h e r e had been	a den la l	of

n a t u r a l j u s t i c e i n t h e way i n which t.hc committee declded

upon t h e pena l ty . IIilvlng regard t o t h c t e r m s of Rulc 40

and t o t h e ev ldence of t h e conduct 01 tl ie hea r lnq , l n c l u d l n g

t h e i n v l t a t l o n t o the a p p e l l a n t t o b~ pre5ent diirillg the?

d e l i b e r a t i o n s of	t h e	committee,	I	cons ide r	t h a t h i $ argument
f a i l s t o suppor t	t h e conLention t h a t	t h e r e was	a	d e n l a l	of

n a t u r a l j u s t i c e .

Ground 5 of t h e grounds of appea l was t h a t t h e l ea rned

t r l a l ludge should have h e l d t h a t t h e r e f u s a l of t h e committee

of management t o permi t t h e a p p e l l a n t t o be " r ep re sen ted" by

one Romanin a t t h e hea r lng o f t h e cha rges constituted a d e n i a l

o f n a t u r a l j u s t i c e . However, i n h ~ evldence s t h e a p p e l l a n t

made it c l e a r t h a t h e on ly wanted M r Romanln t o be p r e s e n t t o

ildvlse hlm and t o be an obse rve r o f t h c p r o c e e d ~ n g s be fo re

t h e conunlttee. H e d l d no t intencl t h a t M r R o r n d n l l ~ sliould

exannne o r c r o s s exanlne any wltnc:sscs	91 acldress :hr.
committee on his behalf.	I agree wlth J. B. Sweeney and

St John JJ. that there is no absolute rlght of represrntatlon by an agent, even where the llvellhood of the person charged

before the domestic trlbunal is at stake. In the l i ~ h t

of the nature of the charges and the experience of the

appellant, 1 agree wlth the learned trial ludge that the
decision of the committee on thls aspect dld not constitute

a denlal of natural justice.

FIavlng regard to the oplnlon whlch I have expressed,

I do not flnd it necessary to deal wlth the prlnclple of

necessity referred to in ground 3 of the grounds of appeal. the matters encompassed in ground 8.

In my opinion, the appeal should be dismlsscd.