Thompson v Ludwig - [1991] FCA 367

Re: NEVILLE WILLIAM THOMPSON
And: W. LUDWIG; J. DUNNERY; R. SMITH; M. O'SHEA; F. LAKE; J. TURLEY; V.J.
KEENAN; B. WILSON; V. JACOBS; E.J. BUTLER; B. MEIKLEJOHN;
I. CAMBRIDGE; E.R. HODDER; M. FORSHAW; F. PHILIPS; M. WALSH; J. COLLINS;
M. WARNEKE; R. HUTTON; P. TUCK; M. MALONEY and J. CLARENCE
No. V I13 of 1991
FED No. 367
Industrial Law
(1991) 37 IR 437

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)

CATCHWORDS

Industrial Law - registered organisation - rules - performance and observance - dismissal of unelected organiser - power of branch executive to dismiss any "Officer" only in specified circumstances - "Officer" defined for purposes of rules as including appointed and employed organisers, "unless the context otherwise required" - whether context otherwise required - whether unelected organiser an "Officer" even if definition not applied - whether denial of natural justice - failure to formulate charge or to give notice of precise conduct complained of - whether waiver of right to procedural fairness by continuing to contest proceedings in the belief that success was likely - discretion not to make an order - principles on which discretion exercised.

Words and phrases - "Officer".

Conciliation and Arbitration Act 1904 s.133(1)(f).

Industrial Relations Act 1988 ss.3,195(1)(c).

Industrial Relations (Consequential Provisions) Act 1988 s.5.

HEARING

MELBOURNE

#DATE 27:6:1991

Counsel for the applicant: Mr D. Staindl

Solicitors for the applicant: Gill Kane and Brophy

Counsel for the 3rd, 6th, 15th,
16th, 17th, 18th, 19th, 20th,
21st and 22nd respondents: Mr R. Hinkley

Solicitors for the 3rd, 6th, 15th,
16th, 17th, 18th, 19th, 20th, 21st
and 22nd respondents: Holding Redlich

Counsel for the 1st, 4th, 5th,
7th, 8th, 10th, 12th and 14th
respondents: Mr R. McClelland

Solicitors for the 1st, 4th,
5th, 7th, 8th, 10th, 12th and Turner Freeman, by their agents
14th respondents: Ryan Carlisle Thomas

ORDER

The Court orders that the rule to show cause is discharged.

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

JUDGE1

The Australian Workers' Union ("the Union") was for many years an organization, registered pursuant to the Conciliation and Arbitration Act 1904 ("the C and A Act"). Its rules were amended from time to time, and the amendments were certified by the Industrial Registrar, pursuant to the relevant provisions of the C and A Act. Upon the repeal of the C and A Act, on 1st March 1989, and the coming into operation of the Industrial Relations Act 1988 ("the Industrial Relations Act"), the Union was taken to have become registered under the Industrial Relations Act and its rules as then in force continued in force. See s.5 of the Industrial Relations (Consequential Provisions) Act 1988. Thereafter, the rules were further amended and the amendments were certified by the Industrial Registrar pursuant to the relevant provisions of the Industrial Relations Act.

It is apparent from an examination of the rules as presently in force, and of some of…

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 v Ludwig

Details

AGLC: Thompson v Ludwig [1991] FCA 367
Case: [1991] FCA 367
Decision Date: 27 JUNE 1991

CaseChat Overview and Summary

The case of Thompson v Ludwig involved the plaintiff, an organiser for a union branch, challenging his dismissal by the defendant, the branch executive. The plaintiff argued that the dismissal was unjust and procedurally unfair, and that the branch executive did not have the power to dismiss him as he was not an elected officer but rather an appointed organiser. The dispute was heard in the Federal Court of Australia, where the plaintiff sought relief against the branch executive’s decision to terminate his position.

The central legal issues before the court were whether the branch executive had the authority to dismiss the plaintiff, whether the plaintiff was an "Officer" as defined by the union’s rules, and whether the dismissal breached the principles of natural justice. The court had to interpret the term "Officer" in the union's rules and consider if the dismissal process adhered to procedural fairness. Additionally, the court examined whether the plaintiff's continued participation in the proceedings constituted a waiver of his right to procedural fairness.

The court found that the branch executive did not have the power to dismiss the plaintiff as an unelected organiser. It ruled that the term "Officer" in the union’s rules did not include the plaintiff, as he was not an elected officer but rather an appointed organiser. The court also held that the dismissal process was procedurally unfair because the plaintiff was not given a clear charge or notice of the specific conduct that led to his dismissal. However, the court determined that the plaintiff had not waived his right to procedural fairness by continuing to contest the proceedings, as he did so in the belief that success was likely. The court exercised its discretion not to make an order in favour of the plaintiff, considering the settlement and entry of orders as outlined in Order 36 of the Federal Court Rules.

The final orders of the court discharged the rule to show cause, effectively concluding the case without further orders being made in favour of the plaintiff.

Orders

Orders of the court

The Court orders that the rule to show cause is discharged.

Note: Settlement and entry of orders is dealt with by O.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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