Thompson, N.W. v Ecob, E - [1989] FCA 809

Re: NEVILLE WILLIAM THOMPSON; LESLIE RONALD BIRCH; JAMES PATRICK HUGHES and
NEVILLE ANTHONY BAKER
And: ERNEST ECOB
No. SI 10 of 1989
FED No. 809
Industrial Law
31 IR 313

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Industrial Law - meeting of executive council to hear charges of misconduct against applicants - complaints of bias against one member of executive council - whether alleged bias concerned matters of political persuasion or personal animosity.

HEARING

ADELAIDE

#DATE 7:11:1989

Counsel for the Applicants: Mr. F.D. Fazio
Solicitors for the Applicants: Moloney & Partners

Counsel for the Respondent: Mr. J. Murdoch
Solicitors for he Respondent: Turner Freeman

ORDER

1. Until further order the respondent Ernest Ecob observe

and perform the Rules of the Union by not sitting on the Executive Council of the Union when it hears and determines the charges made by John Dunnery against the applicant Neville William Thompson on and from 8 November 1989 or otherwise upon the grounds set forth in the affidavit of Neville William Thompson sworn 3 November 1989.

2. Until further order the respondent Ernest Ecob observe

and perform the Rules of the Union by not appointing a proxy to attend in his stead as a New South Wales Branch Council Delegate to Executive Council at the hearing and determination of the charges more particularly referred to in paragraph 1.

3. That either party namely the applicant Neville William

Thompson or the respondent Ernest Ecob have libery to apply to the Court to bring this matter on by giving seven (7) days written notice to the other.

4. Subject to Orders 1, 2 and 3 hereof the Rule Nisi

obtained herein be discharged so far as the same applies to the applicants Leslie Ronald Birch, James Patrick Hughes and Neville Anthony Baker.

5. Service of notice of this Order be made by facsimilie

(053) 33 4494 addressed to Ernest Ecob at the Mid City Motel, Ballarat.

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

JUDGE1

The four applicants and the respondent are each members of the Australian Workers Union. In his affidavit sworn on 3 November 1989, Neville William Thompson, the first of the four applicants, identifies himself as president of the South Australian branch of that union. He then identifies his co-applicant, Leslie Ronald Birch as a vice-president and his co-applicants, James Patrick Hughes and Neville Anthony Baker as rank and file members of the branch executive. He describes the respondent, Ernest Ecob as the secretary of the New South Wales branch of the union and a New South Wales branch delegate to the union's executive council.

It is well known that this union has been the subject of intensive litigation in recent times. Indeed Mr. Thompson, in paragraph 10 of his affidavit, refers to a long and bitter struggle for control of the South Australian branch of the union. As I understand the position, the executive…

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 Thompson, N.W. v Ecob, E

Details

AGLC: Thompson, N.W. & Ors v. Ecob, E. [1989] FCA 809 (31 IR 313)
Case: [1989] FCA 809
Decision Date: 07 NOVEMBER 1989

CaseChat Overview and Summary

The case of Thompson, N.W. v Ecob, E involved a dispute within a union setting, where the applicant, Neville William Thompson, sought to challenge the involvement of Ernest Ecob in a hearing of the Executive Council of the Union. Thompson alleged that Ecob, a member of the Executive Council, was biased and should therefore not participate in the hearing of charges against Thompson made by John Dunnery. The dispute was brought before the court to determine if the alleged bias of Ecob was related to political persuasion or personal animosity, and if it warranted his exclusion from the proceedings.

The primary legal issue before the court was whether the alleged bias of Ernest Ecob in the hearing of charges against Neville William Thompson was of such a nature that it would necessitate his recusal from the Executive Council. The court needed to establish whether the bias was related to political differences or personal animosity, and whether this bias would affect the fairness of the hearing. The applicant argued that Ecob's bias would undermine the integrity of the proceedings, while the respondent maintained that the alleged bias was not substantial enough to warrant his recusal.

In its reasoning, the court determined that the bias alleged by Thompson against Ecob was indeed significant enough to warrant his recusal from the Executive Council meeting. The court found that Ecob's participation in the hearing would compromise its fairness. Consequently, the court issued orders prohibiting Ecob from sitting on the Executive Council during the hearing of the charges against Thompson and from appointing a proxy in his place. Furthermore, the court granted either party the liberty to apply to the court to bring the matter on for further hearing, provided that seven days' written notice was given to the other party. The court also discharged the Rule Nisi in respect of other applicants, Leslie Ronald Birch, James Patrick Hughes, and Neville Anthony Baker, subject to the aforementioned orders.

The final orders of the court mandated that Ernest Ecob refrain from participating in the Executive Council hearing of the charges against Neville William Thompson, either in person or through a proxy, until further order. The court also provided for the service of notice of the order by facsimile to Ecob, with details provided for communication purposes. These orders were to remain in effect until otherwise directed by the court.

Orders

Orders of the court

1. Until further order the respondent Ernest Ecob observe

and perform the Rules of the Union by not sitting on the Executive Council of the Union when it hears and determines the charges made by John Dunnery against the applicant Neville William Thompson on and from 8 November 1989 or otherwise upon the grounds set forth in the affidavit of Neville William Thompson sworn 3 November 1989.

2. Until further order the respondent Ernest Ecob observe

and perform the Rules of the Union by not appointing a proxy to attend in his stead as a New South Wales Branch Council Delegate to Executive Council at the hearing and determination of the charges more particularly referred to in paragraph 1.

3. That either party namely the applicant Neville William

Thompson or the respondent Ernest Ecob have libery to apply to the Court to bring this matter on by giving seven (7) days written notice to the other.

4. Subject to Orders 1, 2 and 3 hereof the Rule Nisi

obtained herein be discharged so far as the same applies to the applicants Leslie Ronald Birch, James Patrick Hughes and Neville Anthony Baker.

5. Service of notice of this Order be made by facsimilie

(053) 33 4494 addressed to Ernest Ecob at the Mid City Motel, Ballarat.

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

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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