Campbell, Ross Johnson v Gonnan, John

[1977] FCA 97

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IN THE AUSTRALIm )

I 1 B No. 35 of 1976

i INDUSTRIAL COURT

In the matter of -

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THE CONCILIATION AND ARBITRATION

ACT 1904

B E T W E E N :

ROSS JOHNSON CM'IPBELL

Claimant

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JOHN GORMAN and OTHERS

Respondent

Coram: Dunphy, A.C.J.

matt, J.

St. John, J.

ORDER OF THE COURT:

This Court doth Order that e nine firstnamed

Respondents and each of them treat and continue to treat as

a nullity all proceedings which took place at Room 68, Trades

Hall, Goulburn Street, Sydney at o r about 2.30 p.m. on 3 March

1976 in relation to charges laid against the claimant under

Rule 37 of the Rules of	the Federated Marine Stewards and
Pantrymen's Association	of Australasia.

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I I N THE AUSTRPLIAN

B No. 35 o f 1976

INDUSTRIAL COURT I '.

IQ the matter of -

THE CONCILIATION AND ARBITRATION

ACT 1904

B E T W E E N :

ROSS JOHNSON CAMPBELL

Claimant

JOHN G O W N and OTHERS

i RespQndent

Coram: Dunphy, A.C.J.

Sydney

Tuesday, 13th December, 1977 Evatt , J.

St. John, J.

FSASONS FOR JUDGEMENT , , . ' 8 - '

Ross Johnson Campbell (the claimant) has made appl ica t ion

pwsuant to Sec t ion 141 of the Concl l ia t ion and Arbi t ra t ion

Act 1904 f o r , i n t e r a l i a an order against the 9 firstnamed

respondents in the following terms:-

f140 That the nine firstnamed Respondents

and each of them t r e a t and continue t o

t r e a t as a n u l l i t y all proceedings which

took place a t Room 68, Trades Hall, Goulburn

S t r e e t , Sydney a t or about 2.30 p.m. on

3 Narch 1976 i n r e l a t i o n t o c 5 a r g e s l a i d

against the claimant under Rule 37 of the

Rules of the Federated Marine Stewards and '.

Pantrymen's Association of Australasia.If

Other orders sought originally are no longer sought.

The Federa l Counci l o f the organisa t ion re fer red to in the

order sought a t its meeting on 3 March, 1976 purported t o

suspend the claimant from membership i n circumstances

which the claimant alleges manifest a denial of natural

j u s t i c e and a lack of power i n the Federal Council.

The f a c t s a r e i n dispute. Because of the conclusions of

law we have reached we do no t f i nd It necessary to resolve

the d ispute and will assume t h e f a c t s t o be as alleged by

the respondents.

The claimant was a t a l l r e l e v a n t t i m e s a member o f the

registered organisation, the Federated Marine Stewards and

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Pantrymen's Assoclation of Australasia. On 3 February, 1976

in the ship IfAustralian Trader", then at sea, the passengers

were being served luncheon and the claimant, a ship's

delegate named Richard Grenville, and others were assisting

in the provision of luncheon for the passengers by carrylng

out duties in the pantry and handing meals to waiters from

an area known as the hot press. A notice, placed there by

ship's officers, prohibiting the use of obscene language

by staff in the pantry had for sometlme been displayed on

a notice board in the pantry area. The claimant allegedly

used foul language in describing to a cook nearby the

propensities of one of his friends for violence and his

friend's capabllitles in that regard. Mr. Grenville, a

steward, and one of the I'shLpIs delegates1', spoke t o the

claimant about his language and the claimant replied with a

question asking Mr. Grenville Ivho he thought he was. At the

time the pantry and the claimant kwein charge of a pantrypan who was present. The second steward, another person with power to direct the claimant was temporarily absent but

on his return Mr. Grenville asked his permission to leave

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the hot press for the purpose of speaking to another ship's

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delegate named Miller. This request was granted and

subsequently Mr. Miller and Mr. Grenville drafted a document

which D%. Grenville termed a I'citatlonl' making allegations

of misconduct against the claimant. The main allegations may

be summarlsed by stating that the service from the press was

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thrown into disruption by loud and continued disgusting language

which could clearly be heard by the passengers i the diqiqg room.

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A meeting of members of the organisation on board the ship

was called by the two delegates and held at 10 a.m. on 8

February, 1976. Subsequently, on that day, the claimant,

whilst in the plate locker, used most objectionable and

f o u l language to Mr. Grenville. No passengers were within hearing on this occasion. Mr. Grenville subsequently laid

a charge pursuant to the rules of the organisation a d

that charge was later said to be made pursuant t o Rule

37 3. (a) which rule is in the following terms:

I'Any member who insults or uses abusive language

to any official of the Association vrhilst, such

official is in the course of his dutles as such

official, shall be guilty of an offence under

the se Rule s .

On 17 February, 1976 the respondent Leslie Mullens, general

secretary of the organisation mote on its behalf to the

claimant in the following terms:

"1 have been instructed by the Executive Council to

inform you that you are charged under Rule 37 o f

the Rules of The Federated Marine Stewards and Pantrymen's Association of Australasia (amended

1959), re your conduct on board the I'Australian

Trader.

I	I am further instructed by the Executive Council
I	to inform you that you are not permitted to engage

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i n t h i s I n d u s t r y a s a Steward u n t i l your case

is heard by the Federal Councll of the Federated

Marine Stewards and Pantrymen's Association

of Australasia .

You are hereby directed t o appear before the

Federal Council of The Federated Marlne Stewards

and Pantrymen's Associatlon o f Aus t r a l a s i a a t

Room 68, Trades Hall, Goulburn S t r e e t , Sydney,

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a t 2 D 30 p .m. on the 3rd March, 1976 t o answer

these charges.

On 26 February, 1976 t h e s o l i c i t o r s f o r the claimant vrrote

reques t ing par t icu lars o f the charge referred t o i n t h e l e t t e r

o f 17th and by h is rep ly da ted 2 March, 1976 Mr. Mullens gave

the pa r t i cu la r s i n the following terms:

VJsed obsene ( s i c ) and disgusting language on

two separate occasion (s ic) whils t on duty. Language addressed t o Unlon Delegate within

the hearing of passengers including women and

chi ldren and a l so the	members	o f	t h i s
Assoclation.

On 3 March, 1976 the claimant attended before the Federal

Council a t t h e time and place specif ied. He was excluded

from the meeting room whilst evidence in support of the

charge was glven against him and it i s conceded by respondents

who were p re sen t a t t he mee t ing tha t i n the absence of the

claimant, evidence of his general conduct and character was

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given to the counci l . The said council, then purported

t o suspend the appl icant from membership f o r a period.

The claimant puts his case i n a number of ways. F i r s t l y ,

he submits tha t ru le 37 .3(a) has no app1iGatj.m and there

was no evidence upon which i t s breach could be	found beRore
the Council for the following reasons:

( a ) The ship 's delegate is not an o f f i c j a l w i t h i n

the meaning of the ru le .

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(b 1 Assuming tha t a ship's delegate is an off ic ia l ,

within the mesning of the ru le the s h i p ' s

delegate was no t , a t the relevant t ime, i n

the course of his duties a s such o f f i c i a l .

( c ) Such ac t ion as the claiDant ook on 3 February

was	nei ther insul t ing nor abusive language, nor
was	It d i r ec t ed to the de l ega te .

In addition, the claimant, through his counsel, submits

tha t he has been denied natural justice by the respondent

members of the councll . He p o i n t s t o t h e l e t t e r of 17

February, above r e f e r r e d t o , as clear evidence that a t

l e a s t M r . Leslie Mullens and such members of the counci l

as were concerned i n t h e a c t i o n r e f e r r e d t o i p that l e t t e r ,

prejudged the matter and exhibi ted bias agains$ him when

they purported to withdraw his permission to work i n the

industry. F'urther, the charge was n o t c l e a r l y made known

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t o him i n t h e l e t t e r o f t h e 17th nQr i n t h e l e t t e r of 2 MaTch.

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Neither the date nor place of tbe alleged offences is set o u t

and a f a i r reading would l ead the r ec ip i en t of t ha t l e t t e r t o i

be l i eve tha t t he re were two occasions upm which women and

ch i ldren were within hear ing d is tance . f i r ther , the claimant

r e l i e s upon his exclusion from the room during the time

evidence was taken and the taking gf evidence, by the covncil,

of hls general conduct wrelated to the specif4c charges also

Ivhilst the claimant was excluded from the room.

A s t o the submissions based upon lack of pqwe? in the Fede ra l

Council because of lack of any eyidence it hqs been sqbmik~ecl

by counsel for the respondents t ha t the Tind$pg of guilt

by the council cannot be re-exarniped by t h i s Court and must

be accepted whether there is any evidepce on which the f inding

could be based or not. Reliance was placed on Australian

Workers!	Union v. Bowen 77 C.L.R. 601 (Bowep's Case),
Bowen's	case was dis t inguished by this Court in Clark ,v .*

P r i n t m g and Kindred Industries Union and Others (1976

9 A.L.R. 621). The Court 1 s no t bound to accept an inGorrect

interpretat ion of rules by a domestic tribunql and where there

i s no evidence on which the t r ibunal can f ind a g it d i d

f ind, the Court in proceedmgs pursuant to Sect ion 141 of

the Act, may make appropriate orders.

The rules contain only one r e fe rence to a delegate: it is

provided that that person can demand the production of members!

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contribution books and f a i l u r e t o so produce makes the member

l i a b l e t o a small penalty. There is evidence before us that

the p rac t i ce s ince 1972 on the shlp l lAustralian Trader" was

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tha t fo r each fou r week per iod there was e l ec t ed , a t the

commencement of that per iod, two sh ip ' s de lega tes .

Mr. Grenville has given evidence as t o what he conceived

h is d u t i e s t o be i n that pos i t i on and the claimant also gave

some evidence as t o his understanding o f the dut ies . It was

submitted by counsel for the respondents that this evidence

could be regarded as proof t h a t t h i s was a well k n o ~ m prac t iqe

within the organisation and supplemented the rules. We think

it too scanty to amount t o such proof i n r e l a t i o n t o the

pract lce of the organisat ion, as the evidence i s confined

t o t h a t p a r t i c u l a r s h i p from 1972 until 1976. No o f f i c e r

of the organisat ion gave evidence of any such p rac t i ce

elsewhere.

As t o t h e meaning of the word l l o f f i c i a l l l i n rule 37.3(a) it

i s t o be noted that it i s an o f f i c i a l "of the association1', which

i s a descr ip t ion whxh does not readi ly f i t a person elected

by the members on a part icular ship. "Off lcer ' l i s defined i n

the Conci l ia t ion and Arbi t ra t ion Act and the word 'IOfficers'I

i s used to desc r lbe e l ec t ed o f f i ce r s o f t he o rgan i sa t ion i n

I the wr i t ten ru les . Having regard to the contex t i n which the

word "off ic ia l" appears we a re in doub t as t o whether a sh ip ' s

delegate 1s an o f f i c i a l w i t h i n t h e meaning o f t h a t r u l e . We

are of t h e view that a t the time of the inc ident in the pantFy

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on 3 February there is no satisfactory evidence that such

actlon as Mr. Grenville took was in the course of his duties

as such official, even assuming him to be qne. There is

certainly no satisfactory evidence that the duties of a

ship's delegate would include policing rules of conduct made

by the employer f o r the carrying out of employees' duties,

particularly when the employee's superior was present.

It would be odd indeed if discipline could be taken out of

the hands of the superior present and in charge and vested

by practice or rule in a delegate or some such person.

There was, before the council, no evidence that language

used by the claimant in the hot press area on 3 February

was addressed to a delegate, or was insulting or abusive,

It was argued that the lncldent of 8 February, 1976 was

merely a prolongation or continuation of the incident of

3 February. This desperate attempt to justify the council's

decision has no merit. There is nothing	in the evidence $0
support it.

The combmation of circumstances adverted to in relation to

the laying of and the wording of the charge, the holding

and conduct of the meeting of the Federal Council at which

the clalmant was suspended in our view clearly amount to 51

denial of natural justice. It is unnecessary for us to

consider whether any one or other singly o r in combination

would amount to such denial. The claimant was entitled

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t o more specific information as t o what the charge or

charges were aga ins t him. He was e n t i t l e d t o know wha$

the evidence against him was. He was e n t i t l e d t o have the

evidence confined t o those charges a t l e a s t up t o the

stage of a f inding o f gu i l t . C lea r ly , j u s t i ce d id not

appear to be done.

Counsel f o r the respondents has urged t h a t we exercise o u r

d i sc re t ion aga ins t the claimant becaupe he admitted using

foul language to the delegate Mr. Grenville on 8 February,

We dec l ine to do so. To leave a f inding o f g u i l t t o stand

may af fec t the c la imant ' s fu ture both in, r e l a t i o n t o his

work and his membership of the union.

We make absolute the order sought.

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