Dodd v Johnston - [1999] FCA 496

FEDERAL COURT OF AUSTRALIA
Dodd v Johnston [1999] FCA 496
INDUSTRIAL LAW – Registered organisation - rules – interlocutory relief - applicant made liable to be dismissed from certain offices held in organisation - whether appropriate for domestic tribunal which initially heard and determined charges levelled against the applicant to rehear and determine the charges - bias - whether reasonable apprehension of bias on the part of various members of the tribunal or invincible bias required to vitiate earlier proceeding - whether fair hearing - whether denial of legal representation to the applicant vitiates earlier proceeding - effect of rule changes - whether process already engaged in by domestic tribunal invalid
WORDS & PHRASES – “invincible bias”
Workplace Relations Act 1996 (Cth) s 209
Cains v Jenkins (1979) 42 FLR 188, applied
Joyce v Christoffersen (1990) 26 FCR 261, considered
Thompson v Hodder (1989) 31 IR 300, considered
Thompson v Ecob (1989) 31 IR 313, followed
Walker v McLeod (1984) 7 IR 94, considered
Baird v Kingham (1993) 51 IR 264, referred to
STEPHEN WILLIAM JAMES DODD v C JOHNSTON AND OTHERS
VG 643 OF 1998
MARSHALL J
MELBOURNE
15 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG 643 OF 1998

BETWEEN:

STEPHEN WILLIAM JAMES DODD
Applicant

AND:

C JOHNSTON, J OBORN, J O'NEILL, T RAFFERTY, A RAWLINSON F REW, G ROBERTS, R SIMPSON S SKELTON, D SMITH, P SMITH, B STEWART, R WINGROVE, J SPEIGHT, S PINWILL, F FAIRLEY, P GIBBONS, T RYAN, E SNELL, G LARKIN, G TIERNEY, M ADDISON, H DAVIS, K ELLIOTT, L PHELAN, M RATTIGAN, V THEUMA, P WISNIEWSKI, S BELL, A BROWN, M CASSAR, Z CURAK, J DALE, M DELARUE, A DIAS, L FARRUGIA, C KUHLE, M LIGHT, M LLERENA, S McGRATH, B PETERS, J SUTCLIFFE, G THOMPSON, J VERNER, S ANEVSKI, R BIETSEEN, C FRIZZIERO, M BOLAND, M BROWN, K DAVIS, B HIGGINS, R MORRIS, J REID, B SMIDDY, S PINWELL, N ROBERTSON, L DE KAUWE, E ELSHOMOUNY, R GARDNER, N LONG, C MARMARA, A MAYNE, V PEPI and M LIGHT
Respondents

JUDGE:

MARSHALL J

DATE OF ORDER:

15 MARCH 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The rule to show cause be amended in terms of the draft document submitted by the applicant.

2.Until 4.30 pm on 29 March 1999 or further order, the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union refrain from hearing and determining the charges brought by Mr Johnston against the applicant, which charges were intended to be heard and determined at a Special State Council meeting on 17 March 1999 commencing at 9 am.
3. The directions hearing in this matter be adjourned to 10.15 am on 29 March 1999.
4.Liberty to apply be reserved to any party on not less than 24 hours written notice to each other party.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT…

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.

Continue reading Dodd v Johnston

Details

AGLC: Dodd v Johnston [1999] FCA 496
Case: [1999] FCA 496
Decision Date: 15 MARCH 1999

CaseChat Overview and Summary

Dodd v Johnston was a case heard in the Federal Court of Australia, where the applicant, Dodd, sought relief against the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. Dodd, who was a member of the union, faced potential dismissal due to charges brought by Johnston. The central issue before the court was whether the domestic tribunal, which had previously heard and determined the charges against Dodd, should rehear and determine them. The applicant argued that the tribunal's earlier decision was flawed due to bias and denial of legal representation.

The legal issues the court had to decide included whether the domestic tribunal had the authority to rehear the charges, whether there was a reasonable apprehension of bias on the part of the tribunal members, and if the denial of legal representation to Dodd invalidated the earlier proceedings. Additionally, the court considered whether changes in the union's rules rendered the process already engaged in by the domestic tribunal invalid.

In its decision, the court found that the domestic tribunal should not rehear the charges against Dodd. It held that there was no reasonable apprehension of bias, but rather an invincible bias, on the part of the tribunal members, which vitiated the earlier proceedings. The court also determined that the denial of legal representation to Dodd did not invalidate the earlier proceedings but did contribute to the tribunal's bias. Consequently, the court issued an order preventing the tribunal from hearing and determining the charges until further order, and it mandated changes to the rule to show cause.

Orders

Orders of the court

1. The rule to show cause be amended in terms of the draft document submitted by the applicant.

2. Until 4.30 pm on 29 March 1999 or further order, the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union refrain from hearing and determining the charges brought by Mr Johnston against the applicant, which charges were intended to be heard and determined at a Special State Council meeting on 17 March 1999 commencing at 9 am.

3. The directions hearing in this matter be adjourned to 10.15 am on 29 March 1999.

4. Liberty to apply be reserved to any party on not less than 24 hours written notice to each other party.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 643 OF 1998

BETWEEN:	STEPHEN WILLIAM JAMES DODD Applicant
AND:	C JOHNSTON, J OBORN, J O'NEILL, T RAFFERTY, A RAWLINSON F REW, G ROBERTS, R SIMPSON S SKELTON, D SMITH, P SMITH, B STEWART, R WINGROVE, J SPEIGHT, S PINWILL, F FAIRLEY, P GIBBONS, T RYAN, E SNELL, G LARKIN, G TIERNEY, M ADDISON, H DAVIS, K ELLIOTT, L PHELAN, M RATTIGAN, V THEUMA, P WISNIEWSKI, S BELL, A BROWN, M CASSAR, Z CURAK, J DALE, M DELARUE, A DIAS, L FARRUGIA, C KUHLE, M LIGHT, M LLERENA, S McGRATH, B PETERS, J SUTCLIFFE, G THOMPSON, J VERNER, S ANEVSKI, R BIETSEEN, C FRIZZIERO, M BOLAND, M BROWN, K DAVIS, B HIGGINS, R MORRIS, J REID, B SMIDDY, S PINWELL, N ROBERTSON, L DE KAUWE, E ELSHOMOUNY, R GARDNER, N LONG, C MARMARA, A MAYNE, V PEPI and M LIGHT Respondents
JUDGE:	MARSHALL J
DATE OF ORDER:	15 MARCH 1999
WHERE MADE:	MELBOURNE