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.

1. 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 council of the union has fixed tomorrow, 8 November 1989, as the date upon which certain charges of misconduct will be heard and determined against the four applicants. Attempts have been made in other proceedings to forestall the convening and the holding of that meeting. As yet, those attempts have been unsuccessful, but I know them to be still on foot elsewhere in this Court. The present proceedings are in the nature of supplementary proceedings to those just mentioned by me.

2. The four applicants have alleged that Mr. Ecob would be biased if he sat as a member of the executive council in the hearing and the determination of the charges against each of them. In his affidavit, to which I have already referred, Mr. Thompson describes the grounds for the complaint of bias and in particular, he refers to events that took place at a meeting of the executive (of which he is a member) on 18 October 1989:- I have in mind, in particular, the contents of paragraph 15 of Mr. Thompson's affidavit. There is no doubt that there is a measure of ill feeling between Mr. Thompson and Mr. Ecob, for Mr. Ecob in his answering affidavit does not wholly deny some of the accusations levied against him.

3. During the course of argument I addressed the subject of a classification of the four applicants. Having heard the respective submissions of counsel, I am of opinion that it is not appropriate to have regard to the claims of the four applicants collectively.

4. The accusations made against Mr. Ecob vary in their importance and in their effect. They vary so much that so far as the applicants, Hughes and Baker are concerned, I have no hesitation in discharging the rule nisi that was obtained late last week. It was argued by Mr. DiFazio, counsel for the applicants, that the mere association of the four applicants was sufficient to enable Hughes and Baker to plead bias against Mr. Ecob. I dismiss that argument; I regard common political ideology as an insufficient ground to make out bias tentatively or prospectively.

5. I turn next to the applicant, Birch. Allegedly Mr. Ecob said these words at the executive meeting of 18 October 1989:
   

"I will get you and you (pointing to Alan Begg) - and that Birch too and I am going to bury you, bury you and you're going down."

The initial words of the quotation, "I will get you" I take to be directed towards Thompson. The reference to Birch is the only reference ascribed, allegedly, to Mr. Ecob and it is not, in my opinion, sufficient to raise him above the level of the position in which I have classified Mr. Hughes and Mr. Baker. I would therefore discharge the rule nisi so far as Mr. Birch is concerned.

1. That leaves the remaining and the first-name applicant, Neville William Thompson, and here the position has caused me great difficulty. I say that because the affidavits, to the extent to which their contents are not in dispute, reveal a on-going and acrimonious history between the protagonists, Thompson and Ecob.

2. They apparently have different political persuasions. They apparently have engaged in intensive lobbying against each other and, at that meeting of the executive council, which is referred to in paragraph 15 of Mr. Thompson's affidavit, there was obviously bitter ill-feeling that surfaced between the two men, so much so that Mr. Ecob said words of an obviously disparaging nature about Mr. Thompson; that comment holds good whether one accepts Mr. Thompson's version or Mr. Ecob's version of the events of the meeting.

3. Mr. Murdoch, counsel for Mr. Ecob, drew to my attention the decision of the Full Court of the Federal Court in Cains v Jenkins (1979) 42 FLR 188. In that case, the appellant had sought orders that the respondents' determination, dismissing him from his office as branch secretary, be set aside; he had alleged that he had been denied natural justice. It would seem that among the many issues that were canvassed by the Full Court, one included a finding that a member of the relevant committee had at some stage threatened to kill the appellant, because the committeeman believed that he had been described as a communist in the election material: (I refer to the joint judgment of Sweeney and St. John JJ. at page 192). Nevertheless, the Full Court saw fit to dismiss the appeal.

4. Mr. Murdoch also pointed to the provisions of s.ss 209(3) and 209(4) of the Industrial Relations Act 1988 to support an argument that this court should not interfere nor be seen to be interfering in union matters, unless and until such time as the applicants have taken all reasonable steps to try to have the matter that is the subject of the application resolved within the union's framework. I am impressed by his argument as to the effect of these sub-sections, and they fortify me in the conclusions that I have already reached so far as Birch, Hughes and Baker are concerned. If Mr. Ecob's animosity towards Thompson was limited to matters of political persuasion only, I would have been quick to decide that it would be most inappropriate for this court to interfere. This court would not be the appropriate forum.

5. What has concerned me in this case, however, is the personal animosity which obviously exists and it is, in my opinion, sufficient to warrant interference by this court at this very early stage. I am therefore prepared to fashion an order, the details of which I will refer back to counsel. The effect of the order that I have in mind is that it will prohibit Mr. Ecob from sitting as a member of the executive council of the Australian Workers Union when the executive council hears and determines charges of misconduct against Neville William Thompson.

6. It occurs to me that I do not know the nature of the charges that are facing Mr. Thompson and his co-applicants. In particular, I do not know whether they are jointly charged and, (should that be the case), whether the orders that I propose may cause practical difficulties. I want counsel to understand that I have not overlooked that factor, but it is a factor that has not dissuaded me from coming to the decision in broad principle that I have just announced.

7. There is a subsidiary question as to whether or not Mr. Ecob would be entitled to appoint a proxy to attend the meeting in his place as a consequence of the order adumbrated by me. I would be prepared to make an order of prohibition, but it would be limited so that it would merely proscribe any action on the part of Mr. Ecob.

8. I emphasize that if, as a consequence of my first intended order, there are, within the rules of the union, provisions for the appointment of a proxy, other than through the personal intervention of Mr. Ecob, then I would not intend those provisions to be affected by my order.