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.
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
AGLC
Cains v Jenkins [1979] FCA 145
Case
[1979] FCA 145
Decision Date
CaseChat Overview and Summary
In the case of Cains v Jenkins, the Federal Court of Australia dismissed an appeal brought by David James Cains against the decisions of a committee of the Federated Confectioners' Association. The committee had dismissed Cains from his position as Branch Secretary, finding him guilty of charges including misbehaviour and failure to follow instructions. Cains argued that the committee's decisions were marred by bias and a denial of natural justice, including the refusal to allow his agent to be present during the proceedings. The Court, however, found that the committee had followed proper procedures and that there was no actual bias influencing the decisions. The Court emphasised the distinction between statutory tribunals and consensual tribunals such as trade union committees, noting that the latter are often composed of members with pre-existing relationships to the parties involved, and that the law does not generally require disqualification based on mere suspicion of bias. The Court concluded that the committee's decisions were fair and in compliance with the principles of natural justice, and thus dismissed the appeal.