Cleworth v Barrow

[1978] FCA 37

a=	'
IN THE FEDERAL COURT OF AUSTRALIA - )

)

INDUSTRIAL DIVISION	) NO. 24 Of 1977
1

NEW SOUTH WALES DISTRICT REGISTRY )

IN THE MATTER of the Conciliation and

Arbitratlon Act, 1594

AND IN THE MATTER c,€ an applicacion under

Section 141 of the said Act

BETWEEN JOSEPH RCIBERT CLEWORTH

Claimant

-	AND	J. BARROV', M. BOORMAN, D. BROPIW ,
P. BURC-E. A. REID and H.I-I. SIMMS

Respondents

JUDGES MAKING ORDER: J. B. SWEENEY, EVATT and KEE1.Y JJ.

DATE OF ORDER: - 23 May, 1978

WHERE MADE: Sydney organisation by treating as null and void the resolutions

ORDER OF THE COURT:

of the Committee of Management carried at its meeting 3n

10 October, 1977 finding the claimant guilty of a charge

of three rqonths.

of misconduct and suspending him from office for a period

IN THE FEDERAL COURT OF AUSTRALIA	)
1 No. 24 of 1977

DIVISION INDUSTRIAL 1 . I

IN THE MATTER of the Conciliation

and Arbitration	Act, 1904 as
amended

AND IN THE MATTER of an applicatir

under Sectlon 141 of the slid Act.

- BTTWEEN: JOSEPH ROBERT CLEWORTH

Claimant

--	A;m:	J. BARROW, M. BOORMAN,
D. BROPHY, P. B U R G ,
A. REID and H.H. SIMMS

Respondents

I

CORAM: J.B. Sweeney, Evatt and Keely JJ.

- DATE: 29 May 1978

REASONS FOR JUDGMENT

This is the return of an order nisi granted or.

14 November 1977 pursuant to s.141 of the Conciliation

and Arbitration Act 1904 (the Act) wherein the claimant

a member and Federal Secretary of the Australian Institute

of Marine and Power Engineers (the organization) an organization

registered under the Act seeks orders to the effect that the

respondents, six members of the Committee of Management of

the organization ( the C.O.M.), treat as null and void

two resolutions of the C.O.M. carried at its meeting on

10 October 1977, first that the clamant was guilty of a

I ‘charge of misconduct as a result of his non-compliance

with a direction of the C.O.M. and secondly that he

accordingly be suspended from office for a period of three

1           months.

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The direction of the C.O.M. referred,to was a

I resolution of the committee carried at its meeting on

8 October 1975 "that the Federal Office administer the

above budget and furnish branches with a monthly summary

of individual branch expenditure, cumulative total expenditure,

remaining budget amounts and the individual variances in each

budget account. The Federal office to also supply details on

a monthly basis of balances held in all functioning accounts

and income received by the institute". The budget referred

to was a budget outlining the estimated income and expenditure

of the Branches and the Federal Offjce during 1976 which

had been adopted earlier at the meeting of 8 October 1975.

Thereafter and up until October 1976 there had apparently been clashes between the claimant and various

members of the C.O.M. relative to his failure to administer

the budget and furnish monthly summaries as directed. At

its meeting held between 4 and 8 October 1976 the C.O.M.

after discussion during which the claimant was present

resolved "that the Federal Secretary be censured for failing

to comply with the terms of item 59 C.O.M. meeting October

1975". That item refers to the resolution set out above.

At its meeting in Octsber 1976 the C.O.M.

further resolved that the respondend- Brophy as President

of the organization carry out an investigation of the

financial affairs of the organization and present a budget

for 1977. At a special meeting of the C.O.M. held in January 1977 the recommended budget for that year was adopted and it was further resolved that the Branches in additior, to forwarding their monthly statements to the

Federal office, were to forward copies of such returns to

Mr Brophy. Each Branch Secretary was a member of the

C.O.M. Thereafter the Federal office should have prepared

and circulated statements showing the monthly expenditure

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and income and budget variances of the organization with

a break down for the Federal office and each Branch. None

was circulated by the Federal office for each of the months

of February, March, April, May or June 1977. In July 1977

i

a composite statement for those months was prepared under

circumstancls later referred to herein.

Between 4 April 1977 and 27 May 1977 the respondent

Brophy as Federal President wrote four letters (dated as shown) to the claimant. These letters which were copied to all

members of the C.O.M. are as follows :-

Federal Secretary	4 April 1977
C.C. C.O.M.

BUDGET REPORT FEBRUARl 1977

Could you please advise as to when the budget

report for-February 1977 will ke available.

Whilst speaking to Mr Sims today, he advised

that we may now be in a positim to invest

part of the General Fund in interest bearing

deposits. Could you please advise if this

can be done.

Yours

27 April 1977

B.UDGET REPORTS

Further to my earlier letter dated 4th April, 1977,

could you please ensure that the February, March

reports, and if possible the April report, are made

available to the C.O.M. before it's next meeting so

that informal discussion can take place at that meeting.

Yours

17 May 1977

- BUDGET REPORTS

Could you please forward to the C.O.M., statements

of fund balances as a't the end of April 1977.

togethsr with the budget reports for the project

accounts and Branch expenditure.

Since the Sydney property was not sold, it will be

necessary in my opinion to revise our current deficiency budget with a view of reducmg expenditure and if necessary increasing income.

Yours

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27 May 1977

BUDGET REPORTS . 1

Further to my letter of the 17th May. 1977, could

you please forward to the C.O.M.. as a matter of

urgency, arrent budget reports.

As I have stated earlier, the present $83,000 deficit

budget must be revised in light of our failure to

sell the.Sydney property and re-invest the proceeds.

Consequently, the C.O.M. must as a priority issue,

determine how we can finance our expansion costs

into the Hospital Award, Fishing Industry, Sewerage

Industry and Tasmania. It world be futile to embark

on our expansion programme unless we have a firm

assessment of our current finmcial status. I

therefore urge you to provide the financial information

so that the C.O.M. can make tke necessary decisions re

the Institute's future financial expenditure.

Yours

The claimant did not answer the first and second

of these letters and there was no evidence that the third

letter was answered. The claimant answered the fourth letter

as follows :-

FROM: FEDERAL SECRETARY 31 May 1977

To: FEDERAL PRESIDENT - C.C. C.O.M.

SUBJECT : BUDGET REPORTS

Your memo of 27th May, 1977

Further to my previous memo, the decision

should not be very difficult to reach and should

be as follows :

1) Stop playing games with budgets and the like

2 ) Defer Fisheries and Sewerage until next year

3) Slow down activity in Hospitals

4) Increase fees as per P. 6urge's resolution.

Yours

The "previous memo" referred to was not in

evidence.

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On 29 June 1977 the respondent Brophy again wrote

to the claimant	- copied to all members of the C.O.M.	- as
follows :-

BUDGET REPORTS June 1977 29

Further to my earlier correspondence on this mstter, could you please advise as to when the

C.O.M. will receive the budget reports and

f u d statements.

You will appreciate that tiiis information is of

vital importance to the Institute, particularly

now that the Finance Committee reports that we

frce a minimum deficit of $127,000.

Yours

On 4 July 1977 the claimant wrote to the respondent Brophy - copied to all members of the C.O.M.	-
as follows :

SUBJECT: BUDGET 4 July l977

AS AT MAY 31st

395	$34	Fund	- General
- Insurance Fund (since an I.B.D. 30 000) 30 787
.-

Fund - Reserve 4 000

753.                - Contingency

These figures have already been given to you at tftt

I	Finance Meeting. Budget reports with any accuracy cannot be prepare3
as there is no figure for Institute expenditure fo:
the purpose of comparison and the branches are not furnishing variance details in all cases.
A budget based on an accurate foundation may serv?
its. purpose fully. The accounting from the branches has been discussed with our auditor and necessary changes are to be introduced in the new financial year. Your reference to the $127.000 deficit at this stacje
is purely a figment of your imagination and the report
hss yet not been verified by factual assessment.

Yours

t

The respondent Brophy replied to this letter on

12 July 1977 - copied to all members of the C.O.M. - as follows :-

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Federal Secretary 1977 July, 12

C.C. C.O.M.. Federal Treasurer, Bill Wright and Peter Bourke

BUDGET

Your brief report contained in your letter of

the 4th instant is completely unacceptable and

provides no information of use to the C.O.M.

Accurate budget reports can be prepared given a little knowledge of arithmetic and a little application on your behalf. Tf the Branches do not supply the information you require, it Mr. Dunn cannot be blamed. I must remind you is your resDonsibility to see that they do -

that Mrs Lawrie had no troubl? in producing

these reports in January, perhaps you wish to

blamc her?

The projected deficit is not a figment of my

imagination. With a little research you will

find that my draft report to che Finance Committee

made no reference to the Institute’s future financl21

position. This point was raised by Mr Inglis and

debated by the Committee. The estimated minimum

deficit was calculated after considering lnforrmtior,

supplied by Mrs Lawrie and Mr Sims, and was agreed to

unanimously by the members of the Committee.

Mr Cleworth, it should be as plain to you as the beard

on your face and the odour under your arm, that facts

are facts. All your ranting and raving will not change

this. Stop evading your responsibilities and carry out

the instructions of the C.O.M.

Yours

The Mr Dunn and Mrs Lawrie referred to in this

letter were Account Clerks employed by the Federal office

at different periods during 1976 and 1977.

It is clear that the finances of the organization

eince at least 1975 were, to say the least, unhealthy and

that the C.O.M. had endeavoured to exercise some control

of expenditme for that year and for the year 1976.

Nevertheless a levy on the m-rs each year had been required.

The correspmdence of the respondent Brophy, as President of

the organization, during the first half of 1977 clearly shows

his concern that the financial statements of the branches

and the Federal office of the organization were not being

furnished by the Federal Secretary to the C.O.M. and that

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he felt obliged to persist in his request that luch statements

and budget variances be taken out and circulated to members

of the C.O.M. by the Federal Secretary in accordance with

the direction of October 1975.

The claimant attended en International Labour

Organization meeting in Europe in June/July 1977. During

his absence the respondent Sims, Secretary of the Sydney

Branch became the Acting Federal Secretary. During this

period or shortly after Mr Sims produced with the assistance

of Mrs Lawrie the budget statements as far as possible from

the figures available at the Federal office for all branches

and the Federal office for the manths of February, March,

April, May and June 1977. These were prepared by Mr Sims

for a special Finance Committee consisting of the respondents

Brophy, Sims and Burge the Victorirn Branch Secretary which

was appointed to examine and report on the financial position

of the Institute and to bring down a supplementary budget

€or the balance of 1977. Thereafter and up to 10 October 1977,

the date when the claimant was suspended from office, no further

monthly financial statements were compiled by the Federal

Office in accordance with the October 1975 resolution.

The claimant again travelled(at his own expense)

to England in September 1977 returning to Australia on

29 September 1977.

The above is a brief history of the background

to events mmmencing on 14 September 1977 with the respondent

Burge as Victorian Branch Secretary sending a telegram

to the respondent Sims as Acting Federal Secretary of the

organization in the following form :-

(sic )

"Thus/I request that you sulxnit as a matter of urgency,

the following rule 11 resolution to the C.O.M. by

telegram. That the Federal Secretary be suspended under rule 28(v) for misconduct by his non-compliance to AGM resolution to produce finance reports. This

euspension of 3 months to become effective if a

satisfactory answer is not given at the	10/10 C.O.M.
Meeting .

S. . P E Burge Victoria Branch Secretary. l

Rule 11 of the rules of the organization reads :-

11 - Committee of Management

The Committee of Management shall consist

of the Federal Secretary, together with the voting on business before the Committee of

Management shall be by show of hands, provided

however that a motion in writing may be submitted

to all members of the Committee of Management by

the Federal Secretary and if signed by a majority

of them shall be valid and effectual as if the same

were made in meeting assembled. At meetings of the

Conunittee of Management flve	( 5 ) officials shall form
a quorum.

There are six branches of the organization namely

Sydney, Victorian, Adelaide, Western Australian, Queensland

and Newcastle, the respective Secretaries being the respondents

Sims, Burge, Brophy, Boorman, Reid and Barrow.

Rule 28(v) provides:

28 - Qualifications and Election etc. of Federal Secretary

(i) The Federal Secretary shall ........ ........ ...

........ ........ ........ ........ ........ ........ ...

(v) He shall be liable to suspension by Committee

of Management for any misappropriation of funds,

misconduct or insobriety whilst on duty, for a

period not exceeding three ( 3 ) months. The

Committee of Management shall if so desired

.	general ballot of the financial members of the
suhnit the question of his reinstatement to a

I                   Institute and during such suspension and whilst

I                    on authorised leave, the Committee of Management

shail appoint an Acting Fede-ral Secretary to

fulfil the duties of Federal Secretary.

1 On receipt of Mr Burge's telegram of 14 September

1977 the respondent Sims telegraphed each member of the C.O.M.

informing them of the so called rule 11 "resolution" and

requested telegraph replies as a matter of urgency.

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Tendered in evidence were telegrams ,in answer to such request from the respondents Boorman, Brophy, Burge

and Reid in the following terms :-

"Re Mr Cleworth suspension under rule 28(5) I agree.

. . . MS Boorman WA Secretary "

"Agree Mr Burges rule 11 resolution of 15 Sept 77

. . . Brophy Adelaide "

"Re rule eleven resolution proposed suspension of

Federal Secretary. I support resolution

. .. P E Burge Victoria Branch Secretary "

"Agree to Camnittee of Management hearing charges

against the Federal Secretary during October COM

Meeting.

. .. Reid Queensland Branch Secretary "

A further telegram was .:eceived by the Acting Federal Secretary from the Federal Treasurer N.B. Demeral,

purporting to be sent on behalf of the claimant, as follows :-

"Rule 11 re Cleworths suspension. I disagree.

... N.B. Demeral for Cleworth "

On 23 September 1977 Mr Demeral spoke by telephone

to the claimant whilst he was in Lcndon saying "I thought you

had better know that Burge has put a rule 11 resolution out

to have you suspended%r non-compliance with A.G.M. resolution

1975 and it is to be dealt with by the C.O.M. on 10 October."

The claimant gave that the respondent Barrow had not replied to the telegram of the Acting Federal Secretary of 14 September 1977 and evidence (which was not contested)

that the respondent Sims had abstained. Thus if the

"resolution" set out in Mr Sims' telegram to each member

of the Cornnittee was a motion in writing within the meaning

of r.11 there was no majority affirmative vote and accordingly

the motion was not valid or effective. The effect (if any) that

this may have had is discussed later herein.

l

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Of the six respondents only Messrs. eBrophy and

Sims gave evidence. A lengthy affidavit sworn by Mr Brophy

was tendered. He was called to confirm his affidavit but

was not cross-examined at all. No information was given

to the Court as to whether the other four respondents

were available to give evidence.

The minutes of the Annual C.O.M. meeting for the

first day Monday. 10 October 1977 were tendered in evidence.

The claimant agreed that such minutes though not a verbatim

report correctly Set out the matter3 discussed and the

resolutions passed at the meeting that day. Such minutes

show that the meeting opened at 10.30 am and adjourned

apparently for lunch at 12.30 p n resuming again at 1.30 pm.

No formal agenda had been prepared for the meeting and the minutes show that at the commencment of the meeting an agreed

agenda was adopted as a guide. Suck agenda consisted of

eight items, the first three being :

1. Election of honorary officials,

2. Previous minutes of the	C.O.M.,
3. Rule resolutions.

Motions were either moved or seconded by the

claimant under items 1 and 2. In atldition the claimant

spoke on various matters raised under item 2. On

resuming at 1.30 p n after the luncheon break the meeting

dealt with the minutes of the C.O.M.. meeting held on 19 and

20 July 1977. This matter appears to have taken only a shor':

time. Item 3 was then dealt with. The minutes show a heading

"Rule 11 Resolutions" with the following "The C.O.M. confinwd

the following Rule 11 resolutions" a s an introduction to a

list of fifteen subject matters with a date and the word

CARRIED against each matter.

. The fifteenth subject matter is set out thus:

"15. Suspension of Federal Secretary - dated 14/9/77 CARRIED"

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Thereafter is set out detailed minutes concerning

the discussion of what is termed the charge against the

claimant and the two particular resolutions. Such minutes

covernexly three foolscap pages of single-line space typing

and show that these proceedings concluded at 4 pm.

The minutes show that when the rule 11 "resolution"

concerning the claimant's suspensio.1 was first raised debate ensued wherein the claimant "expressed the view that the

motion was out of order." In his oral evidence he stated

that the view there expressed was based on the fact that

the motion put by Mr Sims to the members of the C.O.M. by

telegram on 14 September 1977 had not been signed by a

majority of the conunitteemen and was therefore of no effect.

The minutes then read : "Mr Reid stated that he had only

agreed to the charge being	heard' and had agreed	to nothing
beyond that. I'

The view expressed by the claimant tends to

support a suhnission made by Mr Kenzie who appeared for

the respondents that, as the rules of the organization do

not make provision for the preparation and the circulation

of an agenda for Annual C.O.M. meetings, a procedure to

have matters placed before any such meeting by way of a

written rule 11 "resolution" had been adopted. MO direct

evidence was given that it was the practice to use such a

I

procedure in the past but the suhnission seems inc0nsister.t

with Mr Reid's reply to the telegram.

After Mr Reid had pointed out that he had only

agreed to the charge being heard the minutes show that "the

Chairman (Mr Brophy) ruled that the charge be heard" and

asked the respondent Burge "to speak to the charge". The minutes up to this point do not indicate that a specific

charge was read or circulated to the meeting. Thereafter

are set out statements of facts alleged by Mr Burge.

.

"

These include the October 1975 resolution, the resolution

of C.O.M. censuring the claimant in October 1976 and the

reading of the correspondence set out above.

Mr Cleworth pointed out to the meeting that

the facts as outlined by Mr Burge included references to

periods of time before October 1976 and that he had in

October 1976 given the then C.O.M. his reasons for his

then failure to comply with the 1975 direction and that he had

then been censured. Thereupon Mr Reid asked Mr Burge to indlcate

the extent of his complaint against the claimant. The minutes

then read: "Mr Burge stated that he was concerned with the

I period s i m e January 1977" and asked the claimant "if staff

had been the problem." Mr Cleworth stated "there was no

problem with staff	but Mr Dunn had caused considerable
confusion ..."

'1 Further discussion ensued during which the

respondents Sims, Emorman, Reid and Brophy spoke. During

euch discussions Mr Cleworth gave certain explanations

3

and reasons for	the failure to produce the financial
documents.

I

These reasons were then succinctly summarised

by Mr Reid when (according to the minutes) he stated

that "he understood Mr Cleworth' S answer to the charge

was that :

- Federal Office staff has been asked to prepare budget reports

- Federai Office staff had not been able to do this because -

- some reports did not arrive on time

- the bookkeeping mess left by Mr Dunn had had to be

cleaned up.

- the weight of day-to-day buslness."

The next minute reads "Mr Cleworth agreed with

Mr Reid's smary".

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Mr Reid then asked the claimant "whether Mrs Lawrie or any other person should be invited to comment

and answer questions on the business related to the charge" In

but "Mr Cleworth declined to call/Mrs Lawrie. " . The

Court was informed that Mrs Lawrie was at the relevant time working in the same office building in which the C.O.M.

meeting wa3	held.
A motion was then put by the respondent Burge

and seconded by the respondent Boorman "that the charge

of misconduct against the Federal Secretary for his

non-compliance with the C.O.M.'s direction to provide

financial reports, be upheld". The minutes show the

voting on this motion to be : For 4, Against 1, Abstained 2.

The claimant's evidence was that the four voting for the

motion were the respondents Burge, Brophy. Boorman and

Reid: the two -abstainers being the respondents Sims and

Barrow whilst the claimant voted against the motion.

The minutes then show that it was moved by

I

I	Mr Burge and seconded by Mr Boormac, "that the Federal
I	Secretary be suspended pursuant to r.28(v) for misconduct
for non-compliance withthe C . O . K . resolution for a perlod of
three months duration".
During the ensuing discussion on this second motion the claimant "expressed the opinion that the motion was out of order because there was no misconduct and some
of the members of the C.O.M. were biased and natural justice
had been denied him."

'The minutes then read :-

'I - The Chairman then asked Mr Cleworth to indicate

who was biased as this would influence his

decision as to whether the motion was in order.

Mr Cleworth declined to name those persons but

indicated that he may do so after the motion had

been voted on. The Chairman subsequently asked

Mr Cleworth in what way had natural justice not

been afforded him. Mr Cleworth replied that he

was not prepared to discuss this now.

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- The Chairman rules the motion in order."

The motion relating to penalty was then put

and carried on the vote of 4 for one against and 2 abstaining.

In his oral evidence Mr Cleworth stated that the

members whom he claimed were biased at the time of the meetlng

were the respondents Brophy, Boorman and Reid. As has been

earlier stated Mr Brophy was not cross-examined at all when he was called as a witness before the Court. Further, it is of interest to note that the claimant did not allege that

Mr Burge wss biased but submitted to the Court that as

Mr Burge was in effect the prosecutor of the charge he

should not have deliberated on and voted as to the guilt

or otherwine of the claimant and should not have been in

attendance while such deliberation and voting took place.

By letter dated 11 October 1977 the claimant's solicitor wrote to the respondent Brophy as President of

the organization. Such letter includes the following : "he

I	are instructed that on 10 October charges were brought against ( M r Cleworth) and the Committee of Management purported to suspend him persuant (siclto r.28(v)".
The letter goes on to claim that miaconduct had not been
proved and that Mr Cleworth had been denied natural lustice
in that (inter alia) the members of the C.O.M. proceeded
with obvious bias against the claimant, had failed
to examine and consider the issues with impartiality
I
and that mcnbers of the Committee who were instrumental
in formulat.ing or presenting the charges had voted upon
the issue. It was further claimed that the penalty, being
1
m	the maximum provided for under the rules was in the circumstmces excessive.

It is clear that as the claimant was at all

relevant times a full time officer of the organization he

was entitledto have the rules of natural justice observed

in all matters relating to the charge.

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Further, certain evidence was led at the hearing

before the Court which appeared to be an attempt to have the

charge re-heard by the Court. On any hearing by a Court of

proceedings such as the present the Court considers whether domestic tribunal could have so found, then the Court will not interfsre with the finding of that tribunal unless there has *en a denial of natural lustice.

reasonable men acting honestly could have come to the

decision that the domestic tirbunal did (Australian Workers

We are of the opinion that the C.O.M. in this

case acting reasonably and honestly could have found that

the conduct of the claimant between January 1977 and

10 October 1977 in failing to compile and circulate the

financial Leports in question was misconduct within the

meaning of r.28(v) and that the suspension from office

for 3 months was in the circumstances a penalty that the

comnittee so acting could reasonably have imposed.

This finding does not of course conclude the

matter. The applicant was entitled to have the C.O.M.

when dealing with the charge under r.28(v) act in accordancc

with the rules	of natural justice. This indeed was not
denied.

Under these rules he was at least entitled to a

hearing and an opportunity of being heard in his own defence

and to an unbiased tribunal. It is this latter point which

causes difficulty.

.Rule 11 provides two methods by which a C.O.M.

may deal with a matter. - First by voting at a meetlng

and secondly by suhnitting a motion in writing to members

of the Committee. If signed by a majority of members the wrltten

motion is as effective as if carried at a meeting. In this

case the motion by Mr Burge was submitted to members.

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Meeers Brophy, Boorman and Burge voted in famur of it.

I

This means that a least they then reached conclusions,

first that the applicant was guilty of misconduct, secondly

that it was misconduct which warranted suspension and

thirdly that it warranted suspension for a period of

three months. .

True it is that this was only to become effective

if he failed to give a satisfactory answer at the October

Committee meeting but this effectively reversed the onus

and showed prejudgment by the three members of the Conunlttee.

It was put to us that there was in fact no

prejudgment but that the resolution was merely a way of

I having an item placed on the agenda for a meeting of the

C.O.M. The rules provide no method of placing matters

i on the agenda but as we have pointed out, r.11 deals with

two alternative methods of the C.O.M. reaching a decision.

Moreover such a view seems inconsistent with Mr Reid's

reply to the telegram in which he limited his agreement in

terms to tke matter being discussed at the Committee meeting.

The other three members did not. If their intention was

no more than to have the item placed on the agenda it may

be they hac1 not prejudged to any material extent. As they

were of course entitled to act on their own knowledge and as

a body with administrative, legislative and indeed ~udicial

powers, it would be unreal to think they had not formed any

tentative cpinions.

No attempt however was made to lead evidence from them

.before us that they regarded their telegraphic vote as only

placing an item on the agenda or that they had indeed applied

themselves to giving a fair hearing to the applicant.

Mr Brophy swore an affidavit but did not touch

on this matter. He was placed in the witness box but no

evidence was led from him or obtained in cross-examination.

The other two members did not give evidence.

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In these circumstances we fee 11 we are una lble to

depart from the terms of the telegrams and the replies

and that these clearly show a judgment and considered

opinion reached by the three members on the very matters

they were required to inquire into and reach a decision

about.

We therefore think that there was a denial

of natural justice in this aspect. Accordingly it is

not necessary to consider further whether the claimant

was given proper notice and so given an opportunity of

being heard in his defence or whether Mr Burge was the

accuser or prosecutor of the chalge and consequently

should not have deliberated upon and voted on the motions

or indeed have remained in attendance whilst such motions

were discussed and voted upon.

During the course of the hearing the question

was raised whether the claimant had waived his rights to

have the rJles of natural justice applied. Ultimately

written sulmissions were made by both parties. The

respordents' sulmission was that circumstances could	and in
fact had arisen in which

a. Either the rights of the person affected to complain of a breach of the rules of

natural justice can be said to have been

waived, or alternatively,

b. By virtue of the conduct of the person

affected by the deliberations of the

tribunal, either prior to or during the

tribunal's deliberations, a situation is

reached in which it is true to say that

there has been no breach of the rules of

natural justice notwithstanding the fact

that, in the absence of such conduct, it

would be true to say that the rules of

natural justice had not been observed.

Having regard to the nature of organizations.

the importance and the role they play and their incorporation

for the purposes of the Act, we think there is some doubt

whether there can be waiver. It would seem that it is

M lees w r t a n t that justice be seen to be done than

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that it be done in the case of these organizations. However

we are satisfied that nothing the claimant did can be said

to be a waiver of his rights.

T$e proceedings were conducted somewhat Informally

taking the form of a committee meeting rather than any

sort of hearing. The committee was of course quite

entitled so to do. The claimant objected to the matter being considered at all and at a relatively late stage of

the proceedings but well before their completion he objected

to the continuance on the ground that some members of the

c d t t e e were biased against him. In reply to questions

however he refused to name the persms so concerned.

However the matters constituting bias which

could have been present to his mind and which we have

held did show bias were all well known to all members of

the committee. We think then that the fact that he did

not immediately raise the question of bias and that he

refused to name the persons concerned are	not sufficient
to amount to a waiver of his rights.

In these circumstances we would make an order

that the raspondents perform and okserve the rules of the organization by treating as null and void the resolutions

of the Conunittee of Management carried at its meeting

on 10 October, 1977 finding the claimant guilty of a

charge of misconduct and suspending him from office

for a period of three months.