Mellor v Horn

[1989] FCA 367

CATCHWORDS

INDUSTRIAL LAW - Unicn (State Branch) registered under Act - Members of Branch Committee of Management charged under Union (Branch) Rules - Expulsion - Whether charges made out in accordance with Rules - Whether tribunal biased - whether tribunal proceedings in contempt of court - Whether natural justice afforded - Whether ulterior motive

- Whether applicants taken reasonable steps to have

matter resolved internally - Exercise of discretion

Industrial Relations Act 1988 (Cth), S209

MELLOR and another v HORN and others

Q1 3/89

HARTIGAN J

1 0 July 1989

Brisbane

NO. Q1 3 OF 1989

RE:  SHIRLEY MELLOR AND SANDRA BALDWIN

APPLICANTS

AND: NOEL RAWLE HORN, DOUGLAS RILEY ANDERSON,

SANDRA KAYE JOHNSON, JOSEPHINE ROBERTS,
I L M TAYLOR, ROBERT WILLIAM RICHARDSON,
RUSSELL DUMMETT, KATHLEEN NEUCOM,
OWEN O'SULLIVAN, JAMES WILLIAM MOORE,

STEVEN KING

RESPONUliNTS

CORM: Hartigan J.
DATE: 10 July 1989

PLACE: Brisbane

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         The Branch Committee of Management of the Federated Liquor and Allied Industries Employees Union of Australia (Queensland Branch) treat as null and void its resolutions made on the 13 day of June 1989 to expel Shirley Mellor and Sandra Zelda Baldwin from the said Union.

2.         The said Committee of Management cease and deslst

from hearing or otherwise dealing with the

substance of the charges made against the applicants
on the 22 day of May 1989.

3.         There be liberty to apply.

1. The applicants' appllcatlon for costs come on for hearing on Thursday 1 3 July 1989 at 9.30am.

   IN THE FEDERAL COURT OF AUSTRALIA
   QUEENSLAND DISTRICT REGISTRY

   INDUSTRIAL DIVISION

   NO. Q1 3 OF 1989

   BETWEEN:

   SHIRLEY MELLOR AND SANDRA ZELDA BALDWIN

Applicants

AND :

NOEL RAWLE HORN, DOUGLAS RILEY ANDERSON,
BRIAN RAYMOND ELTON, COLIN STANLEY HARDIE
SANDRA KAYE JOHNSON, JOSEPHINE ROBERTS
ILHA TAYLOR, ROBERT WILLIAH RICHARDSON
RUSSELL DUMMETT, KATHLEEN NEUCOM
OWEN O'SULLIVAN, JAMES WILLIAH MOORE

STEVEN KING

Respondents

CORAM: Hartigan J

- DATE: 10 July 1989

REASONS FOR JUDGMENT

The applicants, Shirley Mellor and Sandra Zelda Baldwin, as members of the Federated Liquor and Allied Industries Employees' Union of Australia (Queensland Branch), (henceforth referred to as the Union) are the subject of decisions of the Branch Committee of Management which purport to expel the applrcants from the Union.

The evidence before me demonstrates that the Union 1s an organisation registered under the Industrial Relations Act 1988 (Cth), ("The Act").

Both applicants seek Orders from the Court under Section 209 of the Act. On 15 June 1989 Pincus J ordered the

respcndtnts to zhcv =;use -hy u ~ d e r s shouia not be made

that the Queensland Branch Committee of Management of the Federated Liquor and Allied Industries Employees' Union of Australia:

(1) Treat as null and void its resolutions made on the thirteenth day of June 1989 to expel Shirely Mellor and Sandra Zelda Baldwin from the Union;

(2) Cease to and desist from hearing or otherwise dealing with the substance of the charges made against the applicants on the twenty-second day of

May 1989 upon the grounds set forth in the	affidavits of Shirley Mellor and Sandra Zelda
Baldwin sworn on the fourteenth day of June 1989 and filed herein.

A fact that is not disputed before me is that the applicants were expelled from the Union as a result of a decision of the Queensland Branch Committee of

Management of the Union. That action was taken by the Committee of Management ("The Committee") after it had heard charges laid by the Branch Secretary, Brian Raymond Elton. The charges apart from references to the other applicant were in similar terms. The substance of the charges in relation to the applicant Shirley Mellor are as follows:

(1) That on or about the fifth of May, 1989, and until the date hereof, you participated in the scheme

v i t h =t=Sc:s 93::~ LCV:ZZCE a t d Sandra Sa:drr~-z iv

provide the Australian Federal Police, who are
acting on behalf of the Returning Officer, with
false evidence about the conduct of the 1986
Queensland Branch elections with a view to having
officers and former officers of the Union convicted
of criminal offences with respect to the said

elections;

(2) That in concert with Sandra Zelda Baldwin and other members, you participated in the scheme to offer a
'	member of the Queensland Branch Committee of Management a "job for life" with the Branch if the member signed a false statement to be supplied to the Australian Federal Police for the purpose referred to in Clause 1 above;

( 3 ) That from on or about 5 May, 1989, to the date

hereof you aided and encouraged other members (namely Barry Lawrence and Sandra Baldwin) to procure the signing of a false statement by

Kathleen Marge Neucom, for the purpose set out in
(1) above.

As I have said if the name of the applicant Mellor is substituted for that of the applicant Baldwin in the grounds above then the Baldwin charges are identical.

-- -..	GROUNDS :
The grounds on which the applicants seek this Court's Orders are, except in one respect, identical. Those grounds are:
(i) that there is absolutely no substance to the

charges whatsoever;

(ill that the charges were not made out in accordance with the Rules of the Union - no charge was made

out under Rule 35;

(iii	)the tribunal was biased in that all
pre-prejudiced, interested parties should have
disqualified themselves from participating in any way in the hearing or decision making, these people I believe were Brian Raymond Elton, Colin Stanley Hardie, Douglas Anderson, Kathy Neucom and Owen O'Sullivan;
(iv)	that the charges were outside the power or
jurisdiction of the Committee to hear;

( V ) that the substance of the charges and the matters

that they seek to cover relate to hearings pending
before a Court namely charges under the
Commonwealth Conciliation and Arbitration Act and
are sub judice and 1t was contempt of Court to
even discuss the charges let alone deal with them;

(vi) the charges were not made bona fides and were made

for an ulterior motive to disqualify myself from
participating in the upcomrng Union elections

( V ) ! ' : C ; justice .".as not to == in 'L- ' Cl lDL C

I did not have sufficient particulars of the

charges,no disclosure was made of evidence to substantiate the charges in sufficient time to prepare an adequate defence and, I was unable to cross-examine all of the witnesses who gave evidence against me.

In the case of the applicant Mellor, ground (vl) extended to include "and to lmpugn my standing before the Court in Application No. Q2 of 1989." The grounds

referred to in the Order of Pincus J are those set out	ia the affidavits of the applicants. The Ground which
I take to be ground (vli) was numbered (v) In both
affidavits.
FACTS
Many of the background facts are not in dispute. I have
set them out below in narrative form. In making findings I have applied the civil standard of proof namely satisfaction on the balance of probability.
The respondents are all members of the Branch Committee of Management. At relevant tlmes to this matter the applicants were and claim that they are entitled to continue as members of the Queensland Branch Committee of Management.
The applicant Mellor has been a member of the Union for
ii years. she was a member of the Queensland Branch
Committee of Management on the 13 June 1989. She has been active in various Union election campaigns. On or before the 28 April 1989 Mellor had nominated herself for election to the position of Trustee and Federal Councillor.
The applicant Baldwin has been a member of the Union since 1970. She is employed by the union as an organiser. She was a member of the Committee of Management on the 13 June 1989.
here is rivalry amongst some of the witnesses in thls

case as to their participation in Union affarrs. The evidence is and I am satisfied that lntense rlvalry exists between a team of members including the respondents Hardie and Elton and another group Including Mellor and Baldwin.

A number of charges under the Conciliation and Arbitration Act 1904 have arisen out of the 1986 Union elections. These charges relate to allegations that persons had ballot papers in therr possession. The applicant Baldwin has been so charged. Others who have been charged include the respondents Brian Raymond Elton, Owen OISullivan, Kathleen Neucom and Douglas Riley Anderson. The respondent Colin Stanley Hardle has been convicted of the offence in question. A11 the others remain pending.

The charges under the Rules were brought against the applicants by the respondent Elton who is the Union secrtary. The charges arose out of information and material which Elton swore, and I accept, came to him from the respondent Neucom. The material used at the Committee meeting also included a statement by a Mr. Kendall. All of the material has been exhibited before me.

The charges were received by Baldwin on the 23 May 1989. Mellor received hers on the same day. A sittlng of the	Committee of Management was arranged to hear the charges
on 1' June 1989. As a result of submissions by the
applicants' solicitors the sittings were adjourned to 13 June 1989. The Committee heard the charges on that day. The applicants were found guilty and expelled from the Union.
The Committee of Hanagement meeting on that day was attended by all Committee members except Josephine Roberts, Owen O'Sullivan and Ilma Taylor.
The respondent Elton did not provide copies of the material which he recerved from Neucom to the applrcants prior to the 13 June meeting. At the meeting Mr. Elton distributed the documents which are exhibits to his affidavit to the applicants and to the members of the committee. The material was handed out in folders by Mr. Elton. He retrieved the material at the conclusion of the various sessions of the meeting.
Elton attended the Committee meeting on the 13 June but he was not present during the Committee deliberations at the conclusion of each case. He remarried in the building and available for questioning if required. Elton agreed in evidence that he was the author of the procedure followed at the meeting. A version of this procedure is set out in his letter of 9 June 1989 to the applicants' solicitors. At the time of laying the
were alleged in the particulars to the charges to have charges Elton was certainly aware that the applicants done things that would be to Elton's detriment. He also knew that Mellor was an intervenor in proceedings brought by Hardie in the Court. The current Union elections are set for later in July 1989. Previously they were to commence in June.
So far as the Assistant Secretary Hardie is concerned he sat as a member of the Committee realising that the applicants were charged wlth gathering evidence to, inter alia, charqe Hardie with further charges. He had already been convicted by a magistrate in relatlon to matters arising out of the 1986 elections. He was and remains an applicant to this Court seeking exemption from disqualification from holding Union office because of the conviction. He was aware by then that Mellor had
intervened in those proceedings. He was aware on the 13
June 1989 that he would be in jeopardy if further charges were brought and made out against him.
On that day Hardie was aware that the particulars relating to the charges included: "7 The nature of the scheme was that a false statement from Kathleen Marge Neucom would be provlded to the Australian Federal Police so that they would investigate and prosecute Colin Hardie, Doug Anderson, Tony Sheldon, Hamish Linacre and me for participating in offences under Section 171 of the Conciliation and Arbitration Act 1904 and for an alleged criminal conspiracy to cbmnit fraud and forgery dui-inj the Branch 1986 '.
elections."

The meeting on the 13 June 1989 was chaired by the Branch President, Mr. Noel Horn. The President did not give any directions on the question of bias to the meeting. On that day the Committee heard charges against another person as well as the applicants. The applicant Baldwin was the second person dealt with and Mellor was the third on that day.

In relation to the meeting I prefer the evidence of the applicants and that of Mellor in particular to the evidence of Hardie and Elton. In my assessment of the witnesses I was impressed by Mellor's account as being reliable and accurate. It was a long day for all participants in the proceeding. Such differences as

rppcar in the e v i d e n c e cf X t l l c : and BalGu'n a r e io La

expected in the circumstances and are not such as to cause me to reject their accounts. I was not impressed by Hardiefs evidence nor with the evidence of Elton. I am satisfied that Hardie did state several times durrng the day and before the deliberative processes ln relation to either charge had started, that he believed the applicants were capable of committing the offences charged and were guilty. These statements were made to and in the hearing of the applicants and at the meeting of the Committee of Management held on the 13 June 1989.

proceedings against Lawrence but the Committee dld not	I air0 accept that the applicants participated in the
give the applicants the chance to develop their own cases before the Committee later in the day with an opportunity to cross examine witnesses who had provided material against the applicants. The applicants swore and I accept that though they participated in the

Lawrence case they were not able to properly answer the charges ln their own cases. Kendall for example was sent away from the meeting when he was not requlred further for the Lawrence case. Mellor swore and I accept that she had desired to questlon Kendall in her case. Baldwin wished to questlon Ilma Taylor in her case on Taylor's statement. The procedure adopted by the Committee left the applicants without the necessary procedure to question the relevant witnesses referred to above and whose statements were used against the relevant ap?l ic?!?t .

FEDERAL AND BRANCH RULES

M . Murdoch of Counsel who appeared for the applicants at the outset of his case referred me to the Rules both of the Federated Liquor and Allied Industries Employees' Union of Australia ("the Federal Union") and the Branch Rules applicable to the Union. It is helpful to note some of the Rules. I was referred to the definition in Rule 2 of the Federal Rules which defines "Branch" to

mean a "State Branch of the Union". The Federal Rules

dbf ine a body known as "Council" to mean "Federal

Council". Rule 6 of the Federal Rules provides for the composition of and elections for Federal Council. Rule

8 of the Federal Rules provides for the powers and

duties of Federal Council. Federal Council, subject to the supreme control of the members, is the governing body of the federal union. Sub Rule 8 (10) of the Federal Rules empowers the Federal Council to hear and determine appeals from any decision made within a Branch affecting the rights of any member.

Federal Rule 12 provides for the composition of a Federal Management Committee. Rule 13 of the Federal Rules sets out the powers of the Federal Committee of Management. Rule 14 provides a power to remove officers and sets out some elements of procedure in respect to the exercise of such power. Federal Rule 21 deals with Council meetings and Federal Council shall meet at least once a year under Rule 21 (A).

Under the Branch Rules there is a definition in Rule 1 of "Council". That means the "Federal Council". Branch Rule 3 deals with the officers of the Management Committee of the Branches of the Union whilst Branch Rule 4 deals with the qualification for office of the Committee and for Branch representatives.

Under Branch Rule 4 it is provided that in order to

meaber must have been a member of the Union continuously	become a member of the Committee of Management a Union	for a period of 12 months prior to that person's nomination in respect of membership of the Committee of Management. Branch Rule 4B there provides that the holder of any of the offices referred to in Branch Rule 3, (this includes membership of the Committee of Management for the Branch) ceases to be eligible to hold such office if that person ceases to be a financial member of the Union. Under Branch Rule 48 a person who is a member of the Committee of Management ceases to be eligible to hold such an office if that person ceases to be a financial member of the Union.
It follows from these Branch Rules that because of the expulsion of the applicants Mellor and Baldwin from the union both persons lose not only their Union membership, but by reason of Rule 48, they also lose their offices as members of the Branrh Ccmmittce sf E;najenenZ.
Branch Rule 7 makes provision for the duties of the President of the Branch. The President among other things is required to attend and preside at all meetings of the Branch and to preserve order and enforce Branch Rules. The President of the Branch is one of the Respondents to this application; that person is Noel Rawle Horn.
Branch Rule 9 sets out the duties of the Branch
Br'i,an Raymond Elton. Branch Rule 9A provides for the Secretary. The Branch Secretary is the Respondent, '.
duties of Assistant Branch Secretary. The Assistant Branch Secretary is the Respondent, Colin Stanley
under Branch Rule 16 the general control and conduct of the business of the branch is entrusted to the Committee
of Management of the Branch. Rule 17 of the Branch Rules provides that the Branch Committee of Management shall comply with any direction given by a Branch subject however to the Rules and to the decisions of Council and the Federal Committee of Management.
Branch Rule 18 deals with the removal of Branch Officers and members of the Committee of Management of the Branch. Removal comes about after a special meeting of the Branch called in accordance with Rule 31 of the
ara?r.rh p c l ~ s , i f 2 E$&=: be=:: C-..-l ~ u u r r u r j u s s ~ y -..:lL-- i i i
accordance with the Rules of any one of five heads of misconduct. In Item (iii) of Branch Rule 18 a head of misconduct is "gross misbehaviour".
Branch Rule 31 provides for the calling of special meetings of the Branch. Branch Rule 35 provides for the Committee of Management to have the power to hear and determine charges of misconduct provided for under Rule 35. Under Sub Rule 2 of Rule 35 a member may charge any other member with various charges of misconduct which
are set out in paragraphs ( a ) to (0) of Sub Rule 35 (2). I now turn to consider the grounds.
GROUND l: MERITS
In relation to ground (i) Mr. Hurdoch for the applicants informed the Court that the applicants did
not seek to canvass the merits of the charges before the Court. I do not consider that ground further.
GROUNDS (ii) AND (iv): SUB RULE 35(2)(h) AND (k)
Mr. Murdoch linked grounds numbered (ii) and (iv) in the Order Nisi. The applicants' case was that the charges as brought were not charges that were capable of being brought under the Branch Rule that was relied upon. The charges were said to be brought under sub rules 35(2)(h)
and fk! nf t h ~ R r s n c h R n l e s . It -2s s ~ b r i t t e d th3t t h c
Committee had no power to hear the charges that were brought.
The charges which were brought against the applicants were said to be brought under paragraphs (h) and ( k ) of Sub Rule 35 (2). I shall set them out:
n
(h) Knowingly giving false or misleading information

or refusing to give information to any officer,

representative or employee of the Union or Branch

Returning Offficer conducting an election under	or any person acting as or on behalf of a	its Rules relating to any Union business or
election or any matter affecting the interests of
the Union or Branch or its members;

(k) Aiding or encouraging any other member in any

offence under this Rule."

Under Sub Rule 3 5 ( 4 ) provision 1s made for varlous punishments which are open to the Committee of Hanagement to impose upon a member if they have found a member charged before them guilty of misconduct under Rule 35. These options include an imposition of a fine, their removal from any position, suspension from membership, deprivation of any right or benefit of membership or expulsion from the Union.

Sub Zule 35 (6) provides that an Appeal shall lie in respect of any decision under Rule 7 to the Councll. Council, of course, is defined to be the Federal Council.

In regard to charge 1 against both applicants it was alleged that the applicants participated with each other and Barry Lawrence in a scheme to provide false evldence to the Australian Federal Police about the conduct of the 1986 Queensland Branch elections. Under sub rule 35(2)(h) the charge there provided is "Knowingly givlng

false or misleading information to ..... any person acting

ad or on behalf of a Returning Officer conducting an
election under its rules relating ........ "

The charge as framed, Mr. Murdoch submitted, related to a conspiracy or an agreement to provide false evidence. It did not relate to knowingly providing false evidence. Mellor and Baldwin were not charged with knowingly

providing false or misleading information as required by
Sub Rule 35(2)(h).

It was also submitted that charge (1) as brought could not be made out for two reasons which concerned the allegation in the charge that the false evidence was given to Australian Federal Police acting on behalf of a Returning Officer conducting an election under the Union Rules relating to the conduct of the 1986 Branch election.

The first criticism made is that it was not open to allege that the Australian Federal Police were acting on behalf of the Returning Officer. In this regard John Edward Curtis gave evidence that he is a Returning Officer employed by the Australian Electoral Commission to conduct elections within Queensland under the Conciliation and Arbitration Act and now under the Industrial Relations Act 1988. His evidence was that he was the Returning Officer for the 1986 branch elections of the Union. A Judge of this Court ordered that a new ballot be held and that was conducted in 1987 by another ~it+rning Officer.

Mr. Curtis gave evidence that the Australian Federal Police never acted on his behalf at all so far as the 1986 elections were concerned. Mr. Curtis did refer certain matters concerning aspects of the 1986 election to the Director of Public Prosecutions. Mr. Curtis said that on instructions from the Director he provided material to the Australian Federal Police. I have considered the whole of the evidence of Mr. Curtis. That evidence does not reveal that the Australian Federal Police were acting for Mr. Curtis as Returning Officer as alleged in the charge. I am satisfied that the Australian Federal Police were not so acting.

The second criticism on this score relates to the meaning of Returning Officer conducting an election

under the l . ! R ~ I ~ P s . The 1986 electis:: :.as iizt

conducted by a Returning Officer appointed under the Rules. Branch Rule 5(l)(a) makes provision for the appointment of a Returning Officer by the Committee of Management. The Rule specifies who may be appointed as a Returning Officer and sets out some responsibilities of the Returning Officer. Branch Rule 6 then makes provision for the conduct of Branch elections such that the elections are controlled by the procedures that were available under the Conciliation and Arbitration Act. It was in this way that Mr. Curtis became the Returning

Officer for the 1986 election.

It was submitted that the reference in Sub-Rule 35(2)(b) is to a Returning Officer appointed under Sub-Rule 5(l)(a) and not to a Returning Officer appointed rn relation to a controlled ballot. In this sense it was submitted that notwithstanding that Branch Rule 6 provided for a controlled ballot the ballot that resulted was not a ballot under Sub Rule 35(2)(h) which refers to a "Returning Officer conducting an election under its Rules".

In support of this submission it was said that Sub Rule 35(2)(h) adverted to the position of a Union appointed Returning Officer whereas an officer of the Australian Electoral Office does not require that sort of assistance under the Rules.

nr. vougias suDmltted tnat Branch Rule 6 amounted to an invitation to the appropriate persons to conduct an electlon under statutory provisions. Mr. Douglas referred to S170 of the Conciliation and Arbitration Act and to S210 of the Act. Section 170 allowed a Branch to make a request to the Industrial Registrar that an election be conducted under S170.

I prefer the submissions that the reference to an

election under the Union's Rules in Sub Rule 35(2)(h) refers to an election conducted under Sub Rule 5(l ) ( a ) .

one,, though at the invitation of the Branch, conducted	I, consider that the election conducted by Mr. Curtis was
under the provisions of the Conciliation and Arbitration Act.
Mr. Murdoch made a further submission in relation to the charge. He referred to the words "conducting an election". He submitted that Mr. Curtis had conducted the 1986 election by at the latest 1987. There was at the times alleged in the partrculars an election anticipated in 1989. Mr. Murodch submitted that the appropriate charge under Sub Rule 35(2)(h) must relate to a Returning Officer actually conducting an election. Hr. Curtis had finished his duties at the conclusion of the 1986 elections. Sub Rule 35(2)(h), in my view, requires that the false or misleading information must be given to a person acting as or on behalf of a Returning Officer conducting an election under the
v . - :  -- . -
u n r ~ v i ~  3 Et i les . A Hr. C.L. noage of tne Australian
Electoral Commission is the Returning Officer for the current election. The charge as particularised does not refer to Mr. Hodge at all as the current Returning Officer conducting an election.
I have come to the view that because of the matters referred to above the charge under Sub Rule 35(2)(h) of the Rules against both applicants cannot, on the particulars and in light of the evidence before me, be made out for the reasons set out above.
~ d c b u s e of the view I take in relation to Sub Rule 35(2)(h) I consider that the remaining charges under Sub
Rule 35(2)(k) cannot be made out. It is true as Mr . Douglas submitted that a person may aid or abet under Sub Rule 35(2)(k) without the substantive offence being brought to fruition. However in my view the charges under Sub Rule 35(2)(k) are to aid and abet in respect of matters which do not amount to an offence under Rule
35. Charges 2 and 3 in thrs case depend upon the
existence of a valid charge under Charge 1.
GROUND (iii): BIAS
I turn to the question of bias in respect of the hearing
conducted by the Committee of Management. I was referred to the decision in Cains v Jenkine (1979) 46 PLR 278 at 285. Their Northrop J described the prorraures taken in the case before him and recommended them as a guide. I would commend again the procedure adopted by the Union official in that case as a guide to officers of Unions engaged in the hearing of charges of the type that the Court has considered in this case.
The Committee of Management of the Union is not a tribunal exercising judlcial or quasi-judicial functions. It is a body constituted by the Branch Rules of the Union. The Sub Rules confer powers on it as a domestic tribunal (see Cains v Jenkins supra at p290).
As Northrop J observed (at P290)

"The prior involvement of the members of the
Committee in the controversy leading up to the
bringing of charges against one of their members
cannot disqualify them from hearing and determin-
ing these charges, Australian Workers Union v
Bowen (No. 2) per Dixon J. But notwithstanding

this, the rules of the association are to be
rnterpreted as being subject to the underlying
condition that proceedings under branch s.40
should be carried on in accordance with the
fundamental principles of natural justice."

His Honour also drew attention to what Dixon J. sard in Australian Workers Union v Bowen (No. 2)(1948) 77 CLR 601 at 631:

"It is z c t i n zccc rdnncc v i t h t h e piiaciples of

natural justice to have present as a member of
the trihunal a person who has promoted the charge
and supports it as the prosecution or one who is
invincibly biassed 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 sits with the
tribunal and takes part in the decision that is

enough to vrtiate it."

Gains v Jenkins received further consideration in the	Full Court. In regard to what is meant by invincible
bias in this context, Sweeney and St. John JJ considered (28 ALR 219 at 227) that:

"'Invincible' must, in the circumstances, mean
a bias that is incapable of being remedred by
reason or argument durrng the period up to the
making of the tribunal's decision. It could not

mean that bias that was impossible of eradication at any tlme during the holder's lifetime, as that would be irrelevant to the decision in Bowen's

case. In our vlew, it is sufficient if the
finding 1s that, on the probabilities, the bias
continued at least until the adjudication 1s
made. "

Their HOnOuCS went on to say that bias can be inferred from previous conduct or the history of the relationship between the parties.

In the case before me the applicants' Counsel referred me to the history of the matter particularly in relatlon to Mr. Hardie and Mr. Anderson. It was submitted that these gentlemen had a particular interest above and beyond the interest of members of the Management Committee in the charges. I have already referred to this under the heading of Facts.

The applicants, by their solicitors had in advance of

tHe meeting, objected to the participation in the ,.

hearing of the charges by various members of the Committee. Some members of the Committee of Management did not attend and some attended and disqualified themselves from participating in the determination of the charges.

It was submitted for the applicants that the respondent Hardie did participate when he had an invincible bias against both applicants. It was submitted that he had an interest in the proceedings beyond that which it was proper for a member of the Committee participating in the proceedings to have.

In relation to Hardie I am satisfied that Hardle was aware that Mellor had intervened and was the only opponent then on the record in relation to Hardie's appiicacion c0 cnis Court to obtain an exemption from a disqualification from holding office in the Union.

~t appears from the particulars of the charges against

the applicants that Baldwin and Mellor were alleged to be involved in a scheme to gather evidence for use ln prosecuting Hardie and others. Hardie in his evidence believed that though he had been prosecuted in respect of charges arising out of the 1986 elections, he could face fresh charges.

It was the case that Hardie and Mellor had been

lonpstanding and I infer from the evidence bltter

opponents. Both Mellor and Baldwln were opponents of the Elton and Hardie team in the forthcomrng Unlon elections.

Hardie took an actlve role in the conduct of the proceedings against both applicants. Elton was

responsible for bringing the charges and in a sense acted as the prosecutor or at the least co-ordinated the cases against the applicants by distributing material and setting up the procedure adopted by the Committee as the format for the day's proceedings. Elton dld not participate as a Committee member so as to hear and determine the charges. I am satisfied that Hardie did take an active role in that in the proceedings against Baldwin, Hardie asked the other participants their view on guilt or innocence and not the Chairman. Hardie was responsible for moving that the Committee determine guilt or rnnocence on all three charges in respect of Baldwin instead of separate decisions in each of the three charges.

In relation to Mellor's case I am also satisfied that Hardie took a leading role in the proceedings. Mellor's case was determined as the last of three at the end of a long day. The proceedings concerning Mellor's case occupied only minutes at the end of the day. Again Hardie moved a motion to determine guilt or innocence on

Pbnalty was included in the question.	the rolled up charges. Anderson seconded the motion.
Before me Mr. Hardie has denied that he was biased against either of the applicants. As appears earlier I have found that Hardie, on several occasions during the day in the 13 June 1989 and before deliberations commenced, stated that he believed the applicants were capable of committing the offences charged and were guilty of them.
I am satisfied that Mr. Hardie when he participated in
the hearings against both applicants was invincibly biased against both applicants. In the light of that finding I conclude that his presence as a participant in the Committee of Management determination of the charges vitiated the proceedings in both cases.
Ar.Ger6on Sid n G t p a ~ l i i c i p a i e L I ~ ihe procasdinys agalnsr
Baldwin. He did participate in the proceedings against Hellor. He seconded the motion that Hardie moved in Mellor's case. Anderson gave evidence that he considered the scheme in which Mellor and Baldwin were alleged to have participated was one to gather evidence for use, among othe:- things, to assist in convicting Anderson of charges currently pending against him. He gave evidence that he felt he had a right to sit on Mellor's case. I am satisfied that Anderson was invincibly biased agalnst Mellor at the time he
p,articipated in the hearing of the charges against her. hat finding causes me to find that this is another
reason why the hearing against Mellor was vitiated.
GROUND (v): COURT PROCEEDINGS
The applicants did not place great reliance on this ground before the Court. There is no material which allows me to identify the subject matter of the charges under the Rules with any particular proceedings pending in a Court. Mr. Murdoch announced that he did not persist with the submission that any contempt of cobrt was involved. He did submit that as the charges under the Rules related to pending charges there was a very strong reason why the Committee ought to have adjourned the proceedings before it until the Court proceedings were finalised. Whilst I do not disagree with the proposition I am not able to consider whether the Rules charges raise the fame matter nr d c e l with cvidcnca a s are raised or dealt with in any proceedings for offences pending in a Court I am not able to consider whether any absence of the Unions as alleged is involved in the circumstances.
GROUND (vi): OTHER NATURAL JUSTICE GROUNDS
Ground (vi) of the grounds raises other natural justice issues. There are some unsatisfactory procedures involved in these hearings by the Committee which are
all' took place on the one day. Both applicants played revealed by the evidence. Charges against three members
some role in the first proceedings of the day against Mr. Lawrence. It appears that it is likely that the position became confused as to what role the various participants were playing during the day. I consider that fairness to the applicant's case required that the members of the Committee and the applicants have clearly in mind what was the actual case belng made out. I consider that Nellor and Baldwln when they participated in Lawrence's case dld so expecting that they would
have the opportunity to hear again, in their own cases, the evidence against them and be given the opportunity to test the evidence and to make submissions. Mellor's case at the end of the day took about five minutes to hear and determine the charge and expel Mellor from the union.
MC. nurdoch pointed agaln to the consideration of bias
to which I have previously referred. He pointed to the rolling up of the charges into one question for

-

determination. He pointed to the inclusion of the question of penalty with the question of guilt or innocence. On the last matter Yr. Nurdoch pointed to the evidence that Hardie and Anderson had mistaken views as to the effect expulsion from the Union membership would have on the applicant's members.

Mr. Murdoch submitted that injustice occurred in respect	ot,the question of penalty becau-e the Committee did not	a1Low itself to properly consider that question. The
fundamental questlon in this case on the issue of natural justice is concerned with the question of the bias of certain members of the Committee. I have already found that bias did exist and it was invincible bias as that term has been understood by the Courts in this context. The procedural deficiencies in this case exacerbate the miscarriage of the proceedings that occurred with the participation of Hardie and Anderson in the Committee proceedings. These matters when considered along with the bias that I have found require the court to order that the findings of the Committee be treated as null and void.
I also refer to what Toohey J said in Allen and anor v Hagger and ore (1983) 4 I.R. 100 at 106: "The committee of management sits as a domestic tribunal although its proceedings are controlled by its rules and those rules must meet the criteria imposed by the Conciliation and Arbitration Act. On the other hand, although a domestic tribunal, it may deal with the livelihood of persons elected to office by members of the federal organisation. I regard as applicable the statement by Megaw L.J. in 3. v. Hull Visitors; e x parte St. Germain [l9791 1 Q.B. 425 at pp. 450-451. Referring to proceedings of boards of visitors in respect of offences against discipline, his Lordship said: "It is certainly not any breach of any procedural
cousts. Such interference, in my judgment, would only rule which would justify or require interference by the
be required, and would only be justified, if there were
some farlure to act fairly - fairly, having regard to all relevant circumstances - and such unfairness could
reasonably be regarded as having caused a substantial, as distinct from a trivial or merely a technical, injustice, which was capable of remedy."
In my opinlon the cumulative effect of the matters referred to above, even wlthout the blas of Hardie and Anderson which I have found existed in fact, made unfairness which caused substantial injustice to the applicants and this ought to be remedied.
GROUND (vil) (DESCRIBED AS (v): ULTERIOR MOTIVE
Ground (vi) related to the allegation that the charges were made for an ulterior motive to disqualify the applicants from participating in the upcoming union elections and on Mellor's case t- impugn her standing in application Q2 of 1989. The charges were brought by Brian Raymond Elton, the Union Secretary. He is cuzre.nt1.y facing charges before the Magistrates Court arising out of the 1986 election of the Union. The charges were pending at the time Mr. Elton brought the charges under the Rules against the applicants. Elton laid the charges after he received material from the respondent Neucom. I have little doubt that Elton
welcomed the opportunity to bring the charges against the, applicants who were his opponents in regaid to the
affairs of the Union. He did however have material before him upon which he could and should act as he did. The formulation of the charges was a correct procedure albeit this is a case where the allegations did not, in my view, involve breaches of Sub Rule 35(2)(h) and ( k ) .
On the evidence before me I am not satisfied that Elton brought the charges for an ulterior motive either in Baldwin's case or Mellor's case. I do not consider that the application for relief is made out on this ground.
DISCRETION, SUB.S209(3)
Sub-Section 209(3) of the Act provides:

"(3) [Duty of applicant] The Court may refuse to deal with an application for an Order under this Section unless it is satisfied that the applicant

has taken all reasonable steps to try to have the
matter the subject of the application resolved
within the organisation."

In this case I am prepared to exercise my discretion in favour of the applrcants. The applicants, I find, by their solicitors, raised the question of the

participation in the proceedings of members of the

Committee who were said to be biased. They also raised	the question of the charges not answering the	requirements of Sub Rules 35 (2)(h) or (k). There is
strength of course in Mr. Douglas' submission that S209(3) is directed towards having disputes resolved by internal processes where that is possible. There is however supporting evidence in this case to satisfy me that the applicants have taken all reasonable steps to resolve matters within the Union's procedures. At thls
point and in the light of the facts as I have found them to be it is unreasonable to have matters proceed further within the Union. Indeed it is not clear that any prczedures can be put in hand in the time constraints imposed by the impending Union elections let alone whether adequate procedures exist to resolve the issues raised before me.
Branch Sub Rule 35(6) provides for an appeal to the Federdl Council. That body is made up of 20 members from all over the Commonwealth. Their -annual meeting is not- due until November. The a under Sub Rule 35(6) may be by postal vote. However, the ;-sucs ralsed are cpmplex, including the nature of charges within Sub Rules 35(2)(h) and ( k ) and allegations of the denial of natural justic- '-cl L . u A ; . ~ L ' bias. It is not appropriate that they be dealt with -1 . writing. A further questlon also arises. The jurisdiction of the Federal Council under Sub Rule 35(6) is to hear appeals from charges under Rule 35. It was submitted that no charge in this case, and I have found, was framed under Sub Rule 35(2).
hive already stated my finding that it is unreasonable I do not have to consider this further question as I
in the circumstances of the applicants for them to preserve what remedy they have ander Sub Rule 36(6). I have considered the effect of Branch Rule 18 and Federal Rule 13. I do not consider that those Rules assist the applicants such that the discretion should not be exercised in their favour.
Mr. Douglas submitted that I should not exercise a discretion in favour of the applicants as they have not
exhausted all their rlghts under the Rules. In a d d i t ~ o n
to Australian Workers Union v Bowen (No. 2) (supra) he referred to Annamunthodo v Orlfield Workers' Trade Unlon [l9611 AC 945 and Lynch v McLachlan and ors [No. 21
(1962) 3 PLR 242 by way of background to his submission. He then went on to submit that S209(3) was inserted into the Act to put into effect the intention of Parliament that it was better to exhaust any internal remedy before resorting to the Court.
In my view S209(3) is expressed in permissive terms. The Court has a discretion which is to be exercised in the light of the circumstances of particular cases. When the range of circumstances that may arise in the conduct of an organisation's affairs is considered it can be appreciated that the discretion is a wide one to be exercised by the Court on the facts before it. S209(3) is concerned with the taking "of all reasonable
satisfied that the discretion is enlivened in this case dteps" . For the reasons which I have given I am
and that the orders sought ought to be made. I am satisfied that the applicants have taken all reasonable steps to try to have the matters the subject of the applications resolved within the Union and in that I include both the Branch and the Federal Union. I do not therefore refuse to deal with the applications.
In this case, for the reasons which I have set out above, I glve judgment for the applicants in respect of the relief sought by them.
I make the following Orders:
1. That the Branch Committee of Management of the Federated Liquor and Allied Industries Csployees Union of Australia (Queensland Branch) treat as null and vold its resolutions made on the 13 day of June 1 Q 9 O to expel Shirley Mellor and Sandra Zelda Baldwin from the said Uniui,.

.

2, That the said Corimittee of Manage~znt cease

and desist from hearing or otherwise r z 1 ng

with the substance cf th2 charges made agalr.
the applicants on the 22 day of May 1989.

3.      That there be liberty to apply.

4.      I direct that the applrcants' application for

costs come on for hearing on Thursday the
13 July 1999 at 9.30am.

I certlfy that this and
the preceding 34 pages are
a true copy of the Reasons
for Judgment herein of the
Honourable Mr Justice

Hartigan.

Associate

Dated: 10 July 1989

Counsel for the applicant	Mr. J. Murdoch
Sollcltor for the applicant :	Cooper Grace h Ward

Counsel for the respondent ; Mr. J. Douglas

Solicltor for the respondent :	Goss Downey Carne
Date of hearlng	27 and 28 June 1989