Rolph v Transport Workers Union of Australia

[1991] HCATrans 203

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cll of 1989

B e t w e e n -

JOHN CHARLES ROLPH

Applicant

and

TRANSPORT WORKERS' UNION OF

AUSTRALIA

Respondent

Application for enlargement of

time and application for

special leave to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 AUGUST 1991, AT 10.21 AM

Copyright in the High Court of Australia

Rolph 1 8/8/91

MR Bd, SALMON, QC:  May it please the Court, I appear with

my learned	friend, MR J.I. BRIGGS, for the
applicant.	(instructed by Blake Dawson Waldron
Australian)

MR R.C. KENZIE, QC:  May it please the Court, I appear with

my learned friend, MR M.J. KIMBER, for the

respondent. (instructed by R.L. Whyburn &

Associates)

MASON CJ:	Mr Salmon.
MR SALMON:	Your Honours, this application for special leave

to appeal is from a decision of the Federal Court

of Australia delivered on 25 July 1984 and, in

addition, leave is sought under Order 60 rule 6 to

apply to the Court out of time.

Subject to the convenience of the Court, we

propose to briefly outline the matter which, we
submit, would justify a grant of special leave

before dealing in detail with the applicant's

reasons for seeking the Court's indulgence as to

time.

MASON CJ: Well, the latter question does loom as a very

considerable obstacle.

MR SALMON: It does, that is appreciated, but the special

leave point which we seek to interest the Court in is reduced to only one matter and, bearing in mind that the Court would consider the merits as part of

their consideration of the time application, it

occurred to us that we can briefly put the special
leave point before we proceed to the other hurdle
in case the Court's view is that the special leave

point is of a kind that would not justify a grant

on that ground.

MASON CJ: Very well.

MR SALMON: 

If I could just very briefly outline what the

point is, and the only point on which we approach
the Court. It relates to the charges that are set
out in the petition which was the founding document
of this long-running matter and the issue of

whether, in domestic tribunals where allegations

are made which can have serious consequences on the member of the organization who is being dealt with,

the charges have to be formulated in a manner which
make them comprehensible and able to be met.

Could I very briefly, I trust, go through the

history of the matter. It was litigated in the

Federal Court under section 171G of the

Conciliation and Arbitration Act. This section is

reproduced in virtually identical terms in

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section 257 of the Industrial Relations Act.	The
section itself is set out at page 47 of the
application book in the judgment of
Mr Justice Woodward, and I will just take you
briefly to it:

Where, upon an application for an order under

this section, the Court is satisfied that the

application of ..... section 171F to an act

would do substantial injustice having regard

to the interests of the organization, members

or creditors of the organization or persons

having dealings with the organization, the

Court shall, by order, declare accordingly.

Section 171F is the section preserving

validity and that section has an equivalent in the

Industrial Relations Act at section 257.

Section 171F is set out in the judgment of

His Honour Mr Justice Neaves at page 3 of the

application book. The relevant parts - - -

DEANE J: Page 46, I think it is, is it not?

MASON CJ: That us in the judgment of Woodward, is it not?

MR SALMON:  In Mr Justice Woodward's judgment it is at

page 46, yes. The section is designed obviously to

validate acts which may have been the subject of

challenge as being technically invalid. And the

starting point of the applicant's attack is a

determination that the act of the union branch

president in declaring the applicant's position as

branch secretary vacant was invalid, and that a

case exists for preserving the invalidity. It is a

rather tortuous route to test the determination of

the branch president in declaring my client's position vacant. However, we submit that the

application under 171G was essential, of course, to

the applicant himself and it does raise the issue

which we seek to interest this Court in. Both the Federal Court and Mr Justice Neaves	approached the matter by considering whether or not
the declaration by the branch president that our
client's position as branch secretary was vacant was invalid and, more particularly, whether the
steps leading up to that declaration involved a breach of the rules of the union or a denial of
natural justice.

As I indicated earlier, in the application and

in the affidavit in support of the application,

there are many issues raised regarding the conduct

of the meeting and the whole background to the

meeting, but the only issue on which we approach

the Court as a basis for special leave to appeal is

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that relating to the charges in the petition

themselves.

What we say is that a domestic tribunal, such as this meeting was, cannot make a finding against a person which has the serious consequences that

this did - that is, he lost his position - without a proper notification of the precise charges. And

that that is or should be a requirement of natural

justice when dealing with proceedings of this kind.

Just leaving aside the question of natural justice for a moment, although as I say it is the

foundation of our argument, I would point out

rule 37 which is set out at page 6 of the appeal

book. Perhaps I should just interpolate here that

the extempore judgment of the Federal Court was

fairly brief and the court adopted the very

detailed and careful judgment of His Honour

Mr Justice Neaves and nearly everything is set out

in that judgment and that is the judgment to which

I will mainly refer.

Rule 37 provided that:

upon receipt of a petition signed by 100 or

more financial members -

the branch president or the branch secretary -

shall call a special meeting of the Branch to

hear specific charges which shall be clearly

set out in the petition -

And, also just dealing with another bit of

background, rule 25A, which is also set out on
page 6 of the application book, there appear the

five bases on which a person such as our client could be dismissed from office. And they are -

misappropriation of the funds of the Union -

which is not relevant here -

a substantial breach of the Rules of the Union

or gross misbehaviour or gross neglect of duty

or has ceased, according to the Rule of the

Union, to be eligible to hold the office.

If I can now take you to the petition itself.

It is at page 10 of the application book and at the

bottom of the page, having set out the requirement

that the petitioners had the necessary signatures

and that sort of thing, goes on in the indented

portion:

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John Charles Rolph being the Branch Secretary

of the Tasmanian Branch of the Transport and did commit a substantial breach of the

rules of the said Organisation or was guilty

of gross misbehaviour or was guilty of gross

neglect of duty.

So that the charges are three out of the five

charges which would have justified the meeting in

dismissing him or, as it turned out, in the branch

president declaring his office vacant.

Thereafter, there are a series of particulars.

Now, the particulars, after the first one, commence

with the words:

Additionally or alternatively -

and there are altogether 11 - 10 numbered

paragraphs and one that appears to allege two

separate offences - that is paragraph 9 of the

particulars. So that if one looked at this

document with the same attitude as one would look

at a charge in other proceedings then, it is our

submission that clearly the document is unfair,

impossible to understand and that at no point do

the particulars relate easily to any of the
charges. That is one basis. The other basis, of

course, is that they are in the alternative and

there is no way anybody receiving this petition

could have determined what was the principal matter

alleged against him and what were the alternatives

or subsidiary matters with which he may have to

deal if he succeeded in relation to one of the

charges.

As it turned out, the meeting, in fact, dealt

with all of the particulars but, reading this and

seeing that the particulars are in the alternative,

could anybody who received it have anticipated that that was the way the matter was to proceed or would	they have thought that once the allegation on, say,
the first charge had been established, none of the others would be dealt with.

The problem in relation to the petition was

adverted to by His Honour Mr Justice Neaves at

page 28 of the application book where he says:

Attention was directed to the form of the

petition in that it stated in the alternative

the charges alleged against the applicant

followed by 10 paragraphs described as

"Particulars". It was submitted that the

petition was defective in that it did not

convey to the applicant which of the

Rolph 8/8/91

alternative charges was being alleged against

him and in that it did not identify which of

the particulars related to each of the

alternative charges alleged. Further, it was

said that the particulars, even if found

proved, were not sufficient to sustain any of

the alternative charges.

His Honour then, having pointed to the

problem, goes on:

In my opinion the petition provided a

sufficient foundation for the proceedings of

the special meeting of the branch of the Union
held on 7 August 1976. That is not to say

that the form of the petition may not properly

be the subject of criticism. It is, in my

view, undesirable that charges be stated in

the alternative. Further, the particulars of

each charge should be set out in such a way

that the person charged can be under no doubt

which specific incidents are relied upon as

supportive of each charge. However, having

said that, I am satisfied that the petition

was adequate to convey, and did convey, to the

applicant the specific matters which were

alleged against him and I am left in no doubt

that he fully understood what it was that he

had to meet.

If I could just pause there, whilst it is true

that the particulars alleged individual acts which

were said to constitute some sort of offence, one

of the principle defects in the petition was that
the specific particular is not related to any of

the three actual charges that were set out at the

beginning of the petition:

gross misbehaviour or ..... gross neglect of

duty -

and/or committing a substantial breach of the

rules.

Some of the particulars specifically allege a

breach of the rules and, accordingly, one might be

inclined to say, "Well, the ones that do allege a

specific breach of the rules must be the

particulars relating to a charge of committing a

substantial breach of the rules". But, of course,

it does not follow to breach the rules could amount

to gross misbehaviour or gross neglect of duty.

On the page before the passage that I have

just read from His Honour Mr Justice Neaves's

judgment, His Honour set out what I might call the traditional view concerning domestic tribunals, as

Rolph 6 8/8/91

stated by His Honour Mr Justice Dixon as he then
was, in the Australian Workers' Union v Bowen case,

and here His Honour said:

"It is important to keep steadily in mind

that we are dealing with a domestic forum

acting under rules resting upon a consensual

basis. It is a tribunal that has no rules of

evidence and can inform itself in any way it

chooses.

He pointed out that -

Members may act upon their own knowledge and

upon hearsay if they are satisfied of the
truth of what they so learn and if they give
the member with whom they are dealing a proper

opportunity of answering the charge and

defending himself. The tests applied to

juries' verdicts, namely, whether there was

evidence enabling a reasonable man to find an
affirmative or whether upon the evidence a

finding was unreasonable, have no place in the

examination of the validity -

His Honour, in that case, does not deal with

the issue of the precision of the charges but I
think it can be stated that that was the

traditional view about domestic tribunals until

comparatively recently, and it is our submission

that this case gives this Court the opportunity to

examine again, as it were, the procedures in
domestic tribunals in those cases where the
decision of the tribunal has the capacity to affect

the livelihood of the member who is being dealt

with by the tribunal.

There has, we suggest, been a big shift over

the last 20 or 30 years in relation to examination of decisions generally, outside the ordinary court

Appeals Tribunal Act and similar State legislation.	procedures - legislation such as the Administrative Decisions Judicial Review Act, the Administrative	Decisions are now reviewed by courts or properly
constituted tribunals, and had this sort of charge
been levied against a person who could have access
to those tribunals, the Federal Court or the AAT,
then we submit that this petition would have been
found bad and the decision which was ultimately based on the petition would have necessarily fallen
with it, and he would have had the opportunity of dealing with the charges properly.

There are, throughout the country, numerous

domestic tribunals of the kind which can have a

very serious effect on the life and livelihood and

career of members: trotting clubs; jockey clubs;

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unions, of course, in relation certainly to members

and servants of the union; associations of

architects; associations of medical specialists;

all these bodies have rules and hearings and can

expel or deal with their members, and the result of

the decisions of those tribunals can be quite catastrophic for the person being dealt with.

Of course, their decisions may be reviewed in

certain circumstances and in the instant case this

decision was reviewed under a section of a statute

which just happened to apply to unions. But the

nature of the charges and the formulation of the

charges, while His Honour Mr Justice Neaves

conceded they were inappropriate, were not the

focus of the hearing before him and that was, we

submit, because he took the dicta of

Mr Justice Dixon, as he then was, and in fact the

traditional view, that once you deal with domestic

tribunals the sort of rigidity in relation to

informations or indictments or charges in criminal courts is just quite inappropriate and, that being the case, so long as the member had some idea that

people were complaining about him, that is all that

was needed.

McHUGH J: But, Mr Salmon, this Court does not sit to hear

abstract questions. What is the practical

consequence of this case now, 15 years after the

event? I mean, the steps that you would have to

show are, one, that the decision of the meeting was

invalid; then, even if you showed that,
section 171F validates it; and then you have got
to ask for the exercise of the discretion under

171G to set aside that statutory validation

15 years after the event when your client could not

be put back into his office.	Now, what practical
consequence is there?

MR SALMON:  That is certainly conceded, Your Honour. The

route through which he is trying to clear his name

is this application under section 171G and the way

it has been approached, both by Mr Justice Neaves

and the Federal Court, was to decide whether there

was in fact any validity which needed the

protection of 171F. Accordingly, if he won this

case, at least he would have been able to say that

his dismissal as branch secretary was based on an

invalid decision. Any other practical consequences

which would flow from that, I cannot envisage. It

is purely a matter of clearing his name,

Your Honour.

McHUGH J:  And it does not affect any rights of his?

MR SALMON:  It cannot now affect any rights. I mean, the

time has just gone too far. That is conceded.

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But, on the other hand, from his point of view,

this decision has been a quite traumatic part of

his life. He has spent a long long while trying to

work out ways of challenging it and the route that

he adopted using 171G would at least have resulted

in a declaration that the original decision was

invalid. That is about as far as I can take it.

It is conceded that this particular case may

only have that effect on the parties to it but it

is submitted that it does give the Court an

opportunity to examine the limits for the

formulation of allegations which, if proved, could

have serious consequences on an individual.	The
formulation of the special leave matter is

restricted to those organizations whose decisions

actually affect the livelihood or the career of

members. In this particular instance, whilst it

cannot now practically be righted, it did result in

my client being dismissed.

Clubs which are of a purely social nature and where the financial futures of the members are not

in any way affected would not be the subject of any

argument before the Court. It is limited to those

tribunals dealing with matters that affect the

future of the members. And it is a matter which we

submit should be - the reason we submit why this

matter should be granted special leave is that the

Court could consider just with what degree of

particularity and certainty allegations against

members should be formulated when a domestic

tribunal is about to deal with them in a way which

could affect their careers.

It is conceded that in the instant case,

except for clearing his name, there is not much
more that could happen to our client. But the

issue itself raised by - - -

McHUGH J: It does not clear his name, really, does it? It

does not affect the fact that the members made the

decision. All it can do is set aside the

expulsion.

MR SALMON: No.	It does not.
McHUGH J:	I mean, they still voted on it and they still

made those findings and it might be set aside in a

legal sense, but they still remain.

MR SALMON:  What Your Honour says is true. It just happens

that the petition in this instance is, we say, a

particularly good example of the evil which, we

say, this Court should investigate and set rules

about but I concede what Your Honour says about the

ultimate result of this case and I should indicate

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that subject to the Court wanting me to, I have

formulated the special leave question as best I

can.

MCHUGH J: Yes.

MR SALMON:  The applicant says that this case does give a

very good example of the sort of allegation which

should not have been dealt with while it remained

in that form and, effectively, he has lost his

career as a result of it.

McHUGH J:	Was any explanation given why action was not taken at an earlier stage?
MR SALMON:	So far as time is concerned?

MCHUGH J: Yes.

MASON CJ: Well, there is a long history in the affidavit.

MR SALMON: Yes. It goes, I think, from page 59 through

to 68 of his affidavit, many, many instances. I

think it would take longer to retail those - - -

MASON CJ: Yes, I think that is quite true, Mr Salmon. It

must be said that although it deals in some detail

with efforts that have been made by the applicant,

it does not really explain a number of time gaps

between steps that were taken.

McHUGH J: That is what I meant, yes.

MR SALMON:  That is conceded and I would only ask the Court

to infer that largely it has been a result of his
financial situation which he does mention at

different times, but that is - - -

DEANE J: That was what I inferred.

MR SALMON:  Yes. Unless the Court required me to, I was not

proposing to go chapter and verse through all those

matters. I have tried to formulate what, we say,

is the special leave point and it is certainly our

submission that it raises a matter of significance.

MASON CJ:  Thank you, Mr Salmon. The Court need not trouble

you, Mr Kenzie.

Though this application is unquestionably of

importance to the applicant, we do not consider

that it raises any question of general principle

such as would warrant the grant of special leave to

appeal.

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That being so, the application for an

enlargement of time is refused and the application

for special leave to appeal itself is dismissed.

The Court will now adjourn until 2 pm.

AT 10.52 AM THE MATTER WAS ADJOURNED SINE DIE

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