ae Bai tse AR bk bh A « ah daa ro ar See Sarees N° o| 1N THE FEDERAL COURT OF AUSTRALIA LP INDUSTRIAL DIVISION Vv. No. 16 cf 1979, VICTORIA DISTRICT REGISTRY ' BETWEEN: DAVID JAMES CAINS Claimant 29\ 07 and . EILEEN JENKINS, CARLO FRIZ2IDRO, NiCK PANNAGOPOULOS, GEORGE BISSIOTIS, MORGAN DAVIS, PAUL COOPER, SHIRLEY SKIDMORE, ALFRED GEMPTON, ELSIC HILL, BEVERLEY WEBSER, SHIRLEY BIRCH, KIM HAMMERLUYD, BRIAN MOREL & MECAN CKALON Respondents CATCHWORDS Registered Organization - removal from office of branch secretary - powers of Committee of Management - natural justice - bias - refusal to allow representative of branch secretary to be present... Conciliation and Arbitration Act 1904, s.141l. see IN THE FPODERAL CORY OP AUS" UALTA INDUSTRIAL DIVTS:: . V. No. 16 of 1975. VICTORIA PISTRICT RUGISTRY BETWEEN: DAVID JAMES CAINS Claimant and PLUID, ol das ORDER JUDGE MAING ORDER: Northrop J. DATE OF ORDPR: 26 Sune, 1379. WHERE MADE: Melbourne ORDER: Rule Nisi discharged. BR 4z@4 A ézA A ASDA DS Bh ~_ & & & & ya ere a Sana a aay IN THE FLORAL. Cone OP _AUSTPALTA INDUSTR DIVISICN V. No. 16 of 1979. VICTORIA DISTRICT REGISTH BLETWLE WN: DAVID JALINS CAINS Claimant and EJLEEN JENKINS, CARLO PRI2ZTERO, NICK PALS MORG: ay SKID: BLVER! SOPOULCS , CEGRGE LiSsiovrrs, Pash COOBIR, vie ROL DA MEGAN Ch Respondents NORTHPOP J. REASONS FOR JUDGIUNT 26 June,1979. The claimant, Cavid Jaras Cains, 1S the secretary of the Victorian Branch of the Tedereated Conftucr.oner. Associaticn of Australia (the Association), an organzsation under the Conciliation and Arbctration Act 1904, as arendei, (the Act). Each of tue respondents 1s a mearber of the association and thus 18 under an oblication to perform or observe the rules of the association. The respondents, together with the claimant, comprise the cormittee of Managemcnt of the Victorian Branch of the Association (the Victorian Branch), see branch rule 9. On 11 April 1979, the committee of managorent of the Victorian Branch (the Committac) in the exercise of powe.s conferred by branch rule 40, removed the claimant from his office of secretary. In these proceedings, the claimant, pursuant to s.141 of the Act, is seeking orders directing respondents and each of them to perform or observe the rules of the Association by treating as null and void and of no leyal effect, the decisions of the meeting 2. 2. of the Committee held on 10 and 11 April 1979 so far as such mecting "(a) Purported to refuse the request of the claimant that he be represented before such meeting by an agent Mr. Albert Romanin; and (b) Furported to decide that the clainant waS Guilty of any char.e heard or purportedly heard by the seid neetirg." It is necessary +o Set out the facets leading up to the Cecirsiors made at the meeting on 10 and 11 April. Under the rules of the Victorzen Brew, elections are held ampnually for each js 2latier ca the Committees aicept for the cfifice cf president, fur which o7f:ce an clection as beid bi-ennielily, and the offices of seerecary and assistant secretary, for which officcz ar agicction 1s raw helic every four years, branch xruies 12 and 12A, and avr2 conduct da persuant to the pro-1isiens conteines im prancn rule 123. Under the branch rules a general reetirg of the branch us > held on the first Tuesday in the ronths of February, April, June, August, October and December, the Deccrber meeting beinj called the annual general meeting, branch tule 10, wnile meetings of the Committec aro hola in the alfernate 'onths or when called by the president and secretary, branch rule 10. Nominations for election to positicns on the Committee are called at a ganeral meeting and are to bo delivered to the d returning o"ficer net later than 8 weeks prior to the date o 5 6 the anrual general "eating. Of necessily, pominations mu Gelivered to the returning efficer not later than a few days after the October yeneral meeting. The election 15 te be conducted Ly sccret ballet of the financial wembers of tne Victorian Brtonch. Tne result of the election 15 declared at annual general meétire in Decevour and che successful candidates held office uniil their successors have been duly electcd, branch rule 3{c). In the year 1978 elections were conducted for all of the positions on the Conmittee except these of secretary and assistant secretary. The term of office of the claimant did not expire until 1992, thus he was not the ET EE NT RE IE TTY RATER OIE TIT PTR TESTE EVER SEY IRE ER I PP REO 2 te. . ee ee ~ eda @&s A em Pr as aa *& & Pr roa a aa Sa aa was 3. a candidate at tne 1976 elections. Onc of the grours to b= elected is Ceseribed in the branch rules as commiLltee cf management (4 males), branch rulc 9%. Eight candidates nominated for tnose four positions. Some of those candidates were then renbers of the Comucrce. Durirg the course of the eleetson the claim at authorised the publication and distribution of a circujar printed in four languages, ancluding English, the relevant part of which was as follews:- "TAR FEDCRAIND CON FUCTIONERS ASSOCTATTON Vactorian Branch Elections Committce of Management (4 Males) Keep Corimen v t anfluence and interference fron other Unions out of th ba Vote by placing a 'eross' as fulles, voce eae COOPER PAUL GEMPTON ALIREOD WILLIAN GRACHAN MARTIN MORET, BRIAN PANNAGOPOULOS NICKY PEDDIE JAMES ROLERTSON PYERS NORMAN WESTWOOD SIDNIY DON'T FORCET TO votr BALLOT OPENS 17th NOVE''BER BALLOT CLOSES 8th DECE?-SER VOTE - VOTE - VOTE Authorised by JIN CAINS - VORMONT." ow ae Dd 4. The carcular caused wieut corcern to a nuvher of persor: including some of the moanbers of the Lhen Ceamittee since it contained an implication that the persons not supported by the claimant were either ccmmunists or under cornunist influcnee or were under the influences of other unlons, or possibly all three. In particular, the circular grcatly ups t the respondent Pannagopculos who, on first seeing the circulac and on the spur of the moment, rang the assistant secretary, the responeent Frizziero, complained about the circular and its implications and said words to the effect that he would kill the claimant for alleging that he Pannagopoulos was a communist. He did not corry out or attempt to carry out thet threat. A meeting of the Committee held on 3 November 1978 passed the following resolution: "This meetirg of the Bieecutive of the Federated Confccticnters' Union hc-ving heard the expleanution of the brzrec' Pare secretury regarding the lies anc distorticns contained 1n a circular to ferbers authorised by hiv in respect to the elect: for male representatives on our executive calls on the secretary to withdray the allegations of comnunisztic influences made against one or more of tne candidates ain that election and to publicaliy apotogise by sending a letter to evory mamser of the union who wo.ld have received a ballot paper in that election. We condemn the secretary for his attonsts to divide the membershio cf the union by authorising a leaflet coitaining lies against loyal members of the unior who wish to exercise their democratic richt to run Fos an office within the szructure of the unzon.' The respondents Paun-gopoulos, Jenkins, Frizsicro, Bissl1otis, Davis, Skidmore, G~».pton, being menbers of the than Corm:tcee, voted in favour of tne resolution. On 30 Rovwrber 1978, threa saparate charyss in writing vere Jaid against the clarnort. The farst charge was signed by five peisens, including the respondents Jenkins, Davis, Pannagopoulos, Bissiotis, and was as 'ollows: Sa] . a 4 oe "UNCONSTITUT&O" G& lui sTING O. f . AY,7978, LOC 40, GRALTS Ula, wee ee -s i272 ve wanes eu We, the undersigned, charge under rule 40 the Secretary Jim Cains 'o2tn a breech of cules 24(a) (2), 24(b),9(b). Particulars of w'iice ove ay Je ons, 1. The Branch focretary conven. a Special Meeting of tne Cor: without the approval of the President 1.4 of Rule 24(a) (2). "ay, 1978 ye wage rent o @.1iance a 2. The Branch Sceretiry failed to notify all members of the Committee of Manacesient and did fail to notify five members of tno Ceonmittee of Managerent of the meeting being held on 4 May, 1978 in defian of xule9(b). ce 3. That the meeting of the Commitee of Manegerant on 4 May, 1978 was unconstituticual and the menbers present were paid attendcrce money and/or expenses for this meectirg, contrary to the provisions of the constitution, rule 30." The second cnarye vas sigi ed by five persons includirg the respondents Pannagopoulos, Gempton, Birch and Rissirot:s and was as follevvs "SIGNING OF INDUSTRIAL AGROCUENT We, the und2rsigued, charyr under rule 40, the Secretary, Jim Cains witn a breach of rule 21. Particulars of which are as follotit: 1. The Branch Secretary sisned an industrial aqroenent with Cadbury-Sc.. ieppes Lid., Ring voad divasion, without consultation and/or wrtneut the approval of the members of the Ccimuittec of Management, contrary to rule 21. 2. The Branch Secretary did sign such agreement without the signature or approval of tne Beanch Tresiaucnt, contrary to rule 23." The third charge was signed by the respondents Frizziero, Davis, Jenkins, Skidmore, Chalon, Pappagorculos, Gempten and Bissictis and wes as follows: L a 'iL MITTEN OF MA LAGP iii? NM PB we te "FAILING TO OFSY THR INSTR AT A MELTING OL: 7% YTOTS OF Th CC Gate MG We, the unders:gne!, cherge under rule 40, the Secretary G. Jim Caans with @ breach cf rule 15. PARVICULE PS OF WICK Al AS FOLT4 lL. A Specie? Committee of Managemunt meeting was held on 23 "eovember, 1978, in .ccerdinee with rule 11, at tne reynitse of the Brancn Secretary end Branen PrcSisertl, to diseu © a parphlet rssued by the Breiecu Seers lly to ors cneors of thea enivd in Vactoria jn VR ca felve elivd rrans wore pade ayanrse @nucket of candleates Stunde toe clacton to the Cerasittoo of haralemnt. 7 plisk etined that the cer iidates ver. unéer ccrwunisl raliutnee. ray 2. During the me2eting it was Rrembors of the Conrrttee e nunper of a - lye that the fe) Branch Socleecry retig: Fis portion. VYhe vranch Secretar, chen eaarConed che rocviag by wallauc cut Gespltc buirg roy,ulstred foe remoin et tre meeling," The results of the elections for the positions on the Conmittee were dectarcd at the annual general meeting in Dicemo2x 1978. Only cre of the e1yght candidates is for the position of mombe: of commitcce of managenen D (four males) who had the cupport of the clairant was s Ss Qa ¢ a a D ia) a th c a ~ namely the responcenc Morel, the other threc suc candicatas being the respondents Cooper, Gorpton and Pannayopoulce' A Commitcae meeting held on 31 January 197% resolved as follcys: "Yhat acter h ving co.%1. ered ites L, 24,2B,20,34,38,3C, this m-.cting or tae committe, of maragemers ef the Victorian brench of the Federutei Confeccionzsis' mao oO Association, considers tant the wrarena secretary, Jd. Cains 18 ,ct fit co hole the oftice of secretary of the Victerian brench cf the associazion, end accorc.agly diswisved him from that pesitioen in accordance with rule 42 of the Victorian rules of the astec.ation." In that resolution the refcrence to the numbered items are to the items contained in a notice of meeting and ieclate to a number of matters involving the ciaimant, 1te1.5 3A,3B, and 3C being the three charges referred to earlier, All of the respondents cxecpt HarmmerlLund voted in favour of the resolution. Following anterventien by the Industrial -— &@ @&sir hd Bee ee em a ae ae aS a £4 4 D&D « -_- a es Pe es ae 7. Reletions Lurcau, a meeting of the Cou aittee held on 6 February 1979 resolved as follovw.: "Arising from the report by Mr, Prizzicro this wotiny xe i that posk of tha rotsron o of coumilies cf mr naceren concerning the visors Cains as secretery' of S rneeting on 31/1/79 uy e) re . Let orian branch and cons:cders J. Cains 1s suspended 10 accordéenee wrth Pule 38 of the breach of thea asseciation pending the hearing of charges that had been laid against him by members of the branch." < In the meantine, the branch assistant secretary, the respondent Friznicro, had causcd solicitors to prepare a summons dated 6 February 1979 containing charges against the respondent. The branch president, the rcspondent Jenkins, at the time was attending a seminar for trade union officials at the Clyde Cameron College, Albury, and at the request of [rizziero came to Melbourne to sign che summons. On the same day she attended the meeting of the Comittee. The sux2mons is as follats:- "TO: Janes Devid Cairs 20 Aubrey Street Vento tT ptC. 3233 Tnis i3 2 Sum.ons in writine given pursuant to Rule 49 of the Rules oF the Tedsratcd Cunlfeercioness' Lssociation of Austr*l.a (Victorian Brcwcn) and you are aereby summoned to skow cause before the Comittee of Managgrent of the Pederated Confecticnus!' Associration of Australra (Vactorien Erenuch) to be hela in Foon 40 in tha + Trades 22.11 Coarcil Burlding at tne corner ci Lygon Strect end Victorian Street Caclton at 7.30 o'clock in the afteriaesn on Tuesday the 6th day of Marea 1979 why you should not be rarovea from the pesition of Secrotary of the Fecerated Confectioners' Association of Australia (Victorian irunch). The grounds upon which it 18 preposed to consider such removal are as follows, navely that 1t 1s alleged that: There are then set out ten separate grounds some of which are divided into sub-paragraphs. Grounds 1,2 and 3 related to facts similiar to those the subject of the three charges already set out in full in these reasons for judgment. Those ao e2£ hte & three charges, together with two others, 8. boing qrounds 4 and 149, related to matters similar to those the subject of the résolution of the Cormittee on 31 January 1979. Ground 3 in the summons is set our in full:- 3, That vou cemmittod an art mish hovic wr ia that you authorisoad ard publisixnd «nd distribnted a document waking rischievous, urtrne can of gros, wy and devisive statements asout rc * ars of the Feacraled Confectioners! Assoc'ation of Australia (Victorian Branch)." The charges contained 1a grounds 2(c) and 2(d) each allege S a gross neglect of duty whale the remaining allege a substantial breach of specified brench rulas. 40. Branch rule 40 is as follows:- REMOVAL [Photi or"iIcn (a) The Comnittee of Management May remove fron office aay officer or meinber of tne Con itree of Management at a meetiny of the Comirttce of Maracenerc to whicn the person concerned his en surroncd in nritang to sow cause way he/she should not be so renoved, Provided that suc person enail sot be ad fro. office wnicS.s hasan. nas been Found qeiity ntien of che funes of the Fasuciet- aA SuLsrantral en -aech oL these rel? Or Cioss Vofhauxs Lour oF Giue. rogle.- of duty, Ss coased, accerdirg oo chose raul ba eliygibie to nold tre of (b) A porsen sumnonwd to snow cause Pursuant tw sup-rcie (a) of this rule shall be give> at least 14 days! notic2 of the time and oars of the reeting of the Committ of Manacemeant Lo hich he 1s surwoned, "and tha notice summoning such person shall also snecify the ground or greunds upon nich it 15S plol,.oseda to consider such removal. The Committee of iManagement may proceed to hear and determine a matter under this rule notwithstanding the absence of the person sanm-oned 1f£ due notice of the hearing has bcen given ain accordance with this rule," te rine ee ee ee re cee a a a a mi ew ~ Councel for the claimant Cid not subrit thet the Committee could not have found the clai.ant quilty of ' the charges laid against him an@ accordangly there is no ' need to inake specific reference t the particular crounds ' contained an the summons nor to the mereried uron Vuich the Conmittee subsequently icted. The claimant sought and was given further particulurs of the crounds set out in the cumons. On 19 March 1979, the Federal Court, on the application oF the claimant, made orders that the respoudcats treat as null and void and of no ieysl effecr the resolutions set Out above aud passed poy the Cermittec on 31 January 1973 ard 6 Februvry 1972 respectively. Tne court ordered also that the respondents not proceed te hear and G2termine the [ey % charees 372 fed in th: aumnons dat..d € February 1979 before 10 April 1879, vs The Commitloe ret at about 9,30 a.m. on 10 April 1579. All of the resnondents except H111l and Hamrerlunod vere in'attendance. The claimant, accompanicd by a Mr. Romanin, then an articled lav clerx but nov a barrister and solicitor of the Surpreve Court cf Victoria, attended at the mectingy. When the president, che respundeanr Jenkins, who under the branch rules was required to preside ac the reoeting, opened the reeting, Mr. Rovunin identified hinsel?t und said be was an agent. for the clainunt and 1.43 Present to coproscent the clarmant. Sore ne cbars of the e SL Manas waAcnt question. 2 his risht to be The t:espondanc Jenkans read a statowent and then asked the mecting wanted Lo corsider whetuer Mr. Pomanin sho allowed to renzin. Tae cleinaut and Mr. Romarin refuend to leave when reyuesced and the rortong then revolved that they Jeave the mstire to cllow tre raeotirg to cons Mr. Romanzn snould bo ; ariattod to stay. Bofore leaving the meeting, Mr. Romanin ublained leave to read a prepared statement signed by the claimant. The stalement was an objection to the cespondents Frizziero, Davis, Jenkins, Skidmore, Chalon, Ponnagopoujos, Gempton and Bissiotis 30. aa dR R&S qo, Par tLicapeting ab cho mer ting siie Froy 'aed saue.n ther to bo +o pi eyudtced avainrt the ciaiweipt as to ke give ham a taar hearing of prejudice were given by reference to the particiv tion of thovte persone in the charges ure wiaryges. Partice' rs cf the Gated 30 Nevenber 1978, their particsp. Lion in the conmattec of manayenuent moc' ing on 23 November 1978 and the: threst by the respondent Pannagcyouloc The statement continved:- "If the persons arsed remain at this INceting and purpert to participate in it 1 do not recognise the meeting as valid or as acting in good faith and . I do not propo se to take any part in it. In the évent tnat the meeting purports to fand me gailty of avy charg? broucht against ne I will arply to tae Federa? Court of Fuctralia for such relief 15 J may be advice. If I remain pryvs only as avr ines of en aunvels as evidence roply toc: so far as 1 understood such a Toanvivle toy perso 7 ce gener honestly Citnxs L.ave pein rPisconduct ka n rc VEN any mi iscund. wore the Ass. Lal. doiuhiv presea -S O1 the prec MZEL LTS tT hay "gt a Fanti churea me viun seen bye Toda ral covceil undar Ls A copy of the sSstatemant was he: dad to aceon of the respondents n present at the mectianec. Mr. Rou affidavit svorn by the cla statement & tna cloiamant grounds sé cut in the summrors., A co and statepent was handed t at the meeting. Again 2at make spocific reference to The claimant and Mr. Ronan resolved not to permr1t mr. the meeting was beiryg cond returned £2 the mecting an Pussed. Mr. Romanin then that he lett uncer protest be illegal. mene Contatning aS an anrexure @ being an anster to each of the y of the affidavit o cacn of the respondents preseit ais not necessary for tne court to tha arswors rade by the claimant. in left the "eeting. Tne mieking Rorunan to be in attcnJance whale ucted., Tne claimart and Nr. Ro.anin dvere anfornes of the rescluticy left saying .ords to the effect and that he believed the reating to ll. Pe Sa ee er ey Pr a ares - a a a bh hs & a a ane? \o- ll. The recrmondeny SIonokins raad cub agein the state roit she had earlier made. Previously she had alloted the clairant to obtain a copy of that statement. The state ont hud been prepared by the roovondenat Jonkins without ley:l assastance and ta bused om the ot perience she hed ot.catn77? as a menber of a yrry i3 a@ cravtins? trial at Melbour: 2 1n 1978 end also a3 a vesertt cf attend? aq seminars et Lhe Clyde Cameron College. It 18 a ronarkuble statement and 1s to be commanded. I set 1t out in full. In the statement the lIctters "C.U.M." refer to the Commitize. The letters "J.C." and the nacre "Jir" refer to the clairant and the letters "C.F." and the name "Carlo" refer to the respondent Prizziero who had laid Lhe charges against the clazmant and who prosecuted them Lefore the Committce. The statement was es follows:- "Declare the meeting open and advise that this is the furtner reconpvensa Comiutrce of Managercnt meeting of 6 linvca 197). State that I have sent to cach cam + of C.O.tl. a letter as Brancn Prasadent, cared 30 March 1979 advising of tac rcotirg .... read Jccter of 30 March. The only lLusiness on the agenda todty is the hearing and deterranatior of ten cn.rgss Laid against J. Cains. Pead introduction ,.. I advise the rectin; of the ps follotred today in hearing anc these charycs. C.F. will prosecute the charios ang will not be pexmittcd to remain ia the reer hist the C.O.M. 18 considering the sebvrissions and evidence relating to each ch. rgc. After C.F. has pu. his submissions and evidence to J.C. by way of quistions J.C. can ark questions of ard see any docutents presented by C.F. C.F. may call] witnesses if he desires, J.C. can ask questions of C.F,'s witnesses, J.C. can call witnesses, give evidence and make submissions as he desires C.F. may ask gucstions of any witness called by J.C. a a-ha d+ &:, a mo 12. Menoers of tne C.O. 1. may asi questices of C.P., J.C. and witnesses at any tire {££ any manber of the C.O.M. 1s colled to giv evicences thet member of the C.O.M. may tarticziprites an the f1.at aeerston relottre tO LLG charcee on thio ho hes given @vidence bus may not Gircucs his/ her evidence cering disev stones after C.r. has iefie the C.O.1i. to deliberate on that particular charge. eee eene AS PRESIDENT OF THIS BRANCH TT IS MY DUTY TO ASK MOMPERS OF TUE COMMNITOFR OF KANACZION TO NEAR THE SURNTISSTONS AYD BVTpRVer cor ALL PANTIES IN THIS MATTER, TO APPROACH THiS MATTLR WITH AN OPCN MIND AND TO CIVS BOT! CARLO AUD JIM EVoR' ASSTSv7ANITL IN PRIS LTLG THE PACTS TO YOU SO THAT YOU Cran JUSTLY DELIBIP ATC ON TAP EVIDOYCE BeYORT 1OU SEra.k Lakme ANY DECTSLON ON AliY OF THE CHARGES. IT IS A PTFPICULT TIVE FOR Til BRANCH AND YOU ARE CANROLD WITH A GREAT RVGTOXSTBILID! In ETT RL: FIG THES T CUNVGLS AGATNGT JIen Cris. DACH MLV OR OP THE COMMITTING OF MMLC INGL? HAS LET TuLt. A COPY OF Giil RULTMS OF Trl BRACCH FUND IoU?Gsl YOU GO RETAR TO PLN AT ANY TILE SHOULD YOU DELI It NECESSARY. DACH O7% YOU BAS a PAD AND PON AND JT ASH 1OU POC VET NCP IS OF TUL MAT hela PUAY WILL Bo PUT R2IPoRo YOU Lo ASSaST UG TI i CbR DELIEVRATICIS FINCLLY, I ash PPAG JU! Cai .s CUDT TV NLGie i BE GIVE. Tis EQocive? or AN OD EsxIStT lv AGik Mind Ir Yom RvR CONVINCED CN ANY POINT FLT TO You." [on After the respondent Jenkins had nade her opening risarks, she asked in turn cach membLe1. present to indicate whether that person felt disqualificd from hearing and determining the charges. The respondent Birch stated that she could not bring an open mind to the consideration of the charges and thereuyon left the meeting and took no further part in the hearing of the charges. The other respondents remained. The procedure outlined in the opening rerar's made by the respondent Jenkins wus followed. Tho xespondent Jenkins conducted the meeting in an exemplary manner. After the prosecutor presented his material on euch charge, the claimant was asked whether he had anything to say. Hoa replied "no comment". On the sccond day the claimant did make sore comment, but for the purpose of these reasons J consider they were consis tent 13. ~ahRaeo wh anana'd a a was. &@ hd wie o, a a we With a "no coment". In ctdarren to receiverg tho written ansvors of the cliuwnwit, the Comortroc qava evecy Gopor''up.ty to the clairan't to pwew co his defeset. 'hh mscting coat uuead durirg normat eftace heugis on 10 Aprad. During the aflter-ooen the respondent Gerpton, in re.ererce ta the wetiitude of NoMepartryed ren eerie d hy Gos eto ment, sand varde te tie etfloce thot the roe gat a Qomacter , chee bo reduses Le rewmrri1 and tnat tho claim tb ws ycttly. The respewdent Jenkins retuned Ro that the ctaimrt hac avetributed tac Statoment me ant ering che charceas bul the resvondert Goupten said words to the effect tnst tha mw: tiurg «a u farca and tic OQ Roasts tear tas ot. tab Vas ovaidty. Y {1 he ses going te tol, he Gerpton then leit the reel ony and town ne "Sorin r port oun the . . '0 hearing of the charges. The reckicy ro suec? ca the rogpray of 11 April. Aftor ths luac: break and at. cbour 2.30 b.5. tue hearing of the chargss wac commicte 7 and the reeling oe aived that a decisicen be made tnih day. Yne cliiniwnt ait the resp et dint Frizziero lcfFo the wieting. The resaintag no we rembers of the committc2 cl ranavement tuen censidered cach charge separatcly inciuting the cnaiaes centarned 21 cach sub- v paragraph cf those grounds which contained suycparayravhs. Urder the cirection ¢f£ the responeent Jousine, the rarmbers looked at the relevant Lranch rule , the matcrial presented to them by the respondent Priczicro ana the ansers to the charges contained In the statenont cistributed by the claamant. 'The merbers were directe@ to consider the vording of the releveut breach rule and of brarch rule 49, Daseussion erserd betw cu the' meonbers in relatien to e1c' separate charge. bach scpurate charge wis eonsid:icd seperately and wan che "ise .reiers on that charge aac ceased, the xis. sidant Jon.ins ached arp tarn cach mochor presert wrevther he o1 sro fourd bic claica.t guilty or nol cailty of the particulir caarze bernz con cered. After cach Ground set fanaliy coisadasou, the conuriiice Out an the suv cnt had he applied broench tule 40 te that grownd anc and cared that the conunrtice would Gistnis3 the chum nt, or ratsoor renove hin from office as cerretary of the uetreh, In partacular tac compmiltee did nel consider vhether to impose any other penelty or to impose ro peadlty at all. At aboul 4.30 p.m. th: claimant was recalicd to the meeting <nd anformed cf the resvits reached hy the cermaitice. Ya was told that he had been found gqurity of 14. eacn charge iancluced 3n ground J and therele re was deems tan from office, that he had been found yailty of ce ch charge incluted in ground 2 and therefore was disiisssed from office, that he hal been found not geilty of tne charge cor: sine? ana ground 3, that he bad been foand garluy of tbe churye contained in ground "{2) a.97 tnerefore vas dasuige. fic" office, but tae charge contai ground 4(5) had been wilidracn, that he had OQ n i) been fourd not quilty of the charges conlaiued un yroundc 5 and 6, that he ial been found guilrcy Py 8 votes to lc. tin charge contained in grourd 7 and therefore wos dismissel fruia office, that he hud been found guilty by 9 .stos to 1 ci tne chas contained in yround 8 and therefore vas 312 -°issed from office, that he had been found not guilty of the cha-ge contained in ground 9(a) but gualty of the charge contained in 9(b} and therefore was Cisnissed from olfice and that he had been Found no~ guilty of tne charge contained in ground 10. fol pritl 1979 the clairant hus been deprived of his salary es secrerary of the Victorian branch. He has no olher inceme and his r nh imposed sever finatc1al purders uzor him. tig will find it O1lFficult to fined other erolcyment at a seiiey similar to tree Cc he had received a7 oe Fyidconce vas given by |a1aci uf the 9 respn, dents who on 1i April 1979 partreigatet in the Aarliveratidps ci tia committee. Each .cs subject2d to strony ana vigorous cross- examination on whether he or sho was prejuc.°ed agaiust the claimant and whetaer by reason of pase actrc:s could eppionach tae Matter with an opcn mind. It was put that iss witness had prejudged the claimant and would look to sce if he could prove his innocence. I am satisf1ed that each of the 9 respordints, to the extent of his or her capabilities, did consider the charges and did participate in the doliberations in the nanner @escribed by the respondent Jenkins in her preliminary remarks and thereafter under her carefl guidance during the course of the hearing of the charges and the G4eliberatzrons by the members of the committee, Before dealing with tie legal issues rai' ed several matcers call for mention. The Conmaiti e corsvrises 15 person , branch rule 9, and § rombers comprise a quorum, branch rule 31. The claimant obtects te at least 8 of the responcents participatray in ery del.b rations of Une Commitee which coneiders crarccs ayainse ham. Tt follews tnat at the present tins, 1f tuose 8 are excluccd, tne absence of a quorun would prevent the Conmittce hearing any of the charges agaist the claimant. it is well to rome 'Ler that a seeretary of a branch of an organisation whe enters into the corner vercsy ef an election for members to the committee of ranagement of that brane, especially when the secretary 1s not a candidate at those elections, must face the consequences of his intervention. As was truly said py Joske 7. in re Elections for Off:ces5 in the Electrical Trades Union (N.S... Brencn) (1961) 3 P.L.R. at pp.oe-": "A secretary should realise that even though his own off.ce may be in jeopardy in an election, while he rerains a secretary he has a duty to all members to behave fairly an3Z impartially. In my; view Mr Dolan entirely failed to carry cut a fiduciary duty which a secretary should reyarl aS aA mose it>ortas upon Lon," In tne stat i¢nt read py ifr. Roranin to "12 DLTILS AX D TOURS OF FICERin COUNCIL. (a) ... the Fedi val Cocnc1)] shall svepervise the duties of Officars, and snall have pover to dics' 1ss, Suspend or remove Erom any office ,ary ofif.ec servent of the Xssociatio n for > r onduct proved against tficers and servants shall have trea right of appealing to the next meeting cf the Federal Council. Tne udecisisn of tne Federal Council as final." 16. -~-e- --- ne a ee ee ee ee - at In that rule the words "any officer" refer to any Federal Py - Offaces being iny ci the offieers of the Pedi ral Council, - p see Federal Rales 17 and 18 and not to an officar withan a ry brarch. edera, Rule 12 dees rot confer on PFedurai Cuuncil Yr a power to revove a perjun from a branch office. Such a person 1s rot "ane offacer™ vuratn th onm-cniagd s° Few cal Rule 12. It follows thtrerore tbat che ene re 28 ajainss t ba breug't bess 2 the le leral Counz1l eo) ft. te the cleimant c fe} under federal rule 12. It as cleer tnat the principles of natural justice are to be applicd with resp.ct to t'.2 proceedings before the Comaittes. Counsel for the claimant submitted that natural justice had been denied to the claimant in tro Major respects. He subnitted that each of the cleven members who constituted the Cormittee when 1t met on 10 April had, by their previous actions including the prosecution of charges based on facts similar to tiose upon which the claimant vas then charged and their participation in proceedings wnich found the claimant guilty of those ch-racs kearé on 31 January 1979, prezucyged the charges then presented against the cluimant end thus were guilty of bias aguinst him. As a matter of procedure, particulars of bias hid Lecn given with respect to si. of those porfors cry én as 2 resuit, Counsal Gonet rely wnon the othor turee rorsses persed aatluy at baas. In R. v. Watson ex parte Aruastroig (2976 136 C.L.R. 248, the liagh Court considered the principles to be applied in determining whether a tribunal exercising judicicl or quasi-judicial functions was guilty of bias. In a joint judgment Barwick C.J. Gibbs, Stephen and Mason JJ. at pp.258-262 considered a nusher of authorities on this issue and at pp.262-3 said: 1?. i7?. "The vieow that a dudes siuld uot sit to heer a case if an ali wne curcvnsiarces tne pe.'ies or tne public wiebl reesorably sus -ct thet he was vote unpretudiced 2.4 airpactial, and that 2F a judge docs sit an these cltcumsvances prohzbitzon 111 lic, 18 net only survorted by the baience cf eatnertty es lt new stands but 28 cerrect an prancirjie, It would he wreng to re curd the ovservitrons of Lord liewart C.7d. tn R.ov. Susctan wacbhicis; In pavhe Feces. ov [149 ty 1 Leb. at o.259 as moaniay Searanen of Justices as of more Chan the atteinimenc of Justice cf. Justic.3i it at p.52. r 3 principla, wnie? #38 Les . in this Comwrtl in crelies Racirg Curls) roise "(Ly 1278 C.G.R. 509, at pp.Slu-5iy cases the hear ais of fundar tal iv of the matter, It amportance that the public should have coniidence in the adpinistraticn of justice. If farr-winded pecple reasonably apprehend or suspect taut the tribunal has prejueyed the case, they cannot have confidence 1n the decision. To reveat the wordes of Lord Dennirg i.R. which have already been cited, 'Justice must be rootcé in' confidence: end confidence 1s destreyed vhen right-minded veople go avay thanking: 'The vudyoe was biased.'" In the present case, the Committee 1s not {4 a tribunal exercising ju@iczal or quasi-judicial functions within tae at Oo anirg of those words as used in R. v. Watscn ex The Comnitttee 18 a body corstituted ociation. It is a domestic tribunal xr exercici'g pow ° Association. I must ensure that 2 Assoclaticon. Of ers cf cha Cewittee rust be involved in eny controversy affecting one of their number. Branch rule 40 confers on the Co' mittee tie power to hear and G@etermine charges Froulnsl against one cf their number. The prior involvement of tne merbers of the Committee in the controversy leading up to the brinying of charges against one of their nurber cannot disgvalify them frow hearirg and determing those cnarges, Australian Workers Unton 18. ao A wa *2 2 a AA . of) ve. Bor. (194?) 77 CLLR. GOL per Palen G2. aL G7O-1l. Bue not 21h3tcadrne tars, the tules of i. : Atsoc1. 119n are io ha anterpsroted as being subject to tne urGerloinyg condition th. - the s the proceedings Leroughtl wales brancua rule 40 should be carried on in accordance vith the fundayrne-) prancstiples of natural justic?, see O'Connor J. an Diciason ve. Fdvard. (1919) 10 C.L.R. 243 aut 255 quetod with aporoval by Daron J. an Auctralian Worsers Union v. Bowen, Supra at p.f3l. After refer 2ag to that quotation from tac judgment of O'Conrer J., Divyon J. continued at p.631l: rdarpe: with the "It 1S not ain acco natural grstcce to heve rinciples of . present as a ° ator Of tre trigre a berser tho Los wer. st za the erwyje apd Supseris it as tne pst Bho 28 AnvVaLe Sly Daaee accused 23 4 result of in the corcersvircy, end cate With Dow ue drvemaliztiec o2 sien con le Sits with th tcribueel and in the decistcr, thet 15 vitiate iv: Pic. \. 3 ' Counsel for tne clazrant subkurtted that the members of the Cormitree had se cerducte: themselves prior te the meeting on 10 April that each was biased to such a cegree as tO vitiate the cecisious made at that mecting. The persor making the cherges and prosecuting tiem before tne Cormittze, the respondent Fricziero, did not parrcicivate in tue delvberations of the cotmittee. The question to be determined, therefore, 1s whether the ocher rembers of the Covmittee who did participate an the Gcliberaticas were biased to -Ehe extent mecessary to vitiate the decisice.:s made. Pacept to tre eylent that the werd "invincible" has th strong m2aning of referring to something that cannot be ovorcorne, IT do net fine the phrace "invincibly biased" easy to usely. It 3s not sufficient to establisn thit at might reasonaoly be apprchended or suspected by fazrr-mainded ersons thak the Committee nay not determine the mutters before Pi them with an unerejadiced mind, c.f. R. v. Watson Fa parte Armstrong, supra, sec Maloney v. Nev Sout' Uoles 19. my opinion tha tork to bho apnlie iis uPa tea at whetuer, navare relacd te tae rules of the Avsoere oon ard abl the surrounding ciceumst .c.5s of Lia cane, the neabers of ti Comittee who porticipated in the presoediics en 13 April and LL April were ele to cueresse fhe Lovers comiersod upon thom by the rules of ithe Association ina fair and reasonable mapwaur. In appiyang this tust, prartz~cular owhasi1s macvt be given to the fact that it 1.8 necessary that the masbars of the committee of management should exercise their powers fairly with respect to the claimant, Leaving «side trea questions of whether Mr. Rorahin shouit have been allovcd to represent the claimant and whether the committee should hive exercised a discretion as to the penalty to be aumposed, Counsel for the cloirert did not, and in fact could not, mae coaplainrce azaiist the procedures adcpied by the Couelttes an the bearing are determiring of tho charges "rd % 5) wy ey bw ai we ct ct ry ( ecluimant. Couprel suraitied hovever,; that by thelr previous actions the ne bars, in verying degrees, t had so proajudyel sore of tne charges acainst the clalvant taat . ' . they could not hear and Ceiermine tie churges fairly and reasonably, or, as he put it, that tney were biased to eucn a degree as to vitia vo the decisions rade. He relied exon the Involvencnt of tio respondarts in Ciscussy 3 cad voting of tne matters already referred to at tne mPaecing cn 23 Naovenber 19728, the thysat of the respondint Pannaccpaulo La ~ ct ey a i) aying ef the charges andents, and tie a ©) cr& w OQ iy < C A lon iw 4K he wo ~d foe] rr Me a oO Ey O le) Ph cefi bw Q Lip] ue] hearing ard determining of these charges advergely to the claimant on 30 January 1979. He Subratted that this shield inet thosa responcants had so prejyudced the matter: that some of tnem at least applied a "reverse onus" with resvect to the claimant csf. Cleworth v. Barrow (1978) 20 A.L.R. 359, to the extert of considerin- ham guilty of tho charges unless be could show he was nct guilty. In addition, Counsel relicd upon what he deseribced as evidence of "corpo'. te bias" to support his subtissioe.. These factors relates to the suemimy mantis rir which the Comirttce refused to allow Mr. Reaianin to represent the claimant at the hearing of the charyes and so deciding vitnout asesrtaining his statur and the fartlure of the committee to consider any penalty oth. rc than removal from officca. 20. 20. In support of his subdoursston he relicd by way of tlie bert sca and analecy on aul! o2tics such as Bowen, Supra, Leo' on v. Caneral Comm ' Ragistre'.c1, (1690) 43 Ch.D 366 particularly p-r Cotcon Lev. at 379, Prome Unvt 7 Sr *rIO7 Company Ltd. ve. Keciuecs of fF ene. _{- — rte Noicie af Bath, f19G292 A. = a oe —-— -- —-- beace avd Justice: fur tna Co. 586, Naylor v. NeLronsal Union of Seaton [1967] 1 W.UR. 522, Roc ouck v. Wational Union of Mine Vorsars [1977] I.C.R. 573, R. v. Equal Oppoctunit' Board ex parte Antet Trensport J * stra Ltd. unreported 20 February 1979 and Cle.orth v. Barrow, supra. In my opinion the c)]aimant bas not esvablished cra the members cf tne Comittee who hi .rd and determined the chazie> against the claimint ware so biased as to vitiate the Gecis ony made. In reaching this conclusion I rely upon the findings of fact already set out. Some only of the c*arges heard and determined related to matters previously dealt with by the vericus responuents. It was submitted that the time for detervsuing whether bias existed or not was at the time the reoting comecnced In my opinion this 1s too restricted a view. The whole cf tie Proceedings must be considered. The charges laid were br ° = + P] under branch rule 40. It 1s no answer to say that diffrent procecdings alleging different offences but anvolving the same fu could have been brought under branch rules 18 and 38 vhich prowid for charges to be laid against members of tho branch. 4&1 the provisions of federal rule 41A do not apply to allow chcr7us to be brought thereunder for the purpose of removing a braich officer from office by a corvolvtcd sericcs of proceduras of doubtful validity. Tne charges vere bro ight under brancn rule 40 ard the form of the surmons made 1t cluar that if the clay any of them were provad, removal frown cffice tould result. 'the fact that the Ceauswztcce did not consider the possibility cf not jmpouing the penalty of retoval fren office does ro. susrert the allegation of bias. More inocortantiv, however, under the branch rules, the Committce was the only body omposred to Acc and determine the charues brought against tho claimant. Farlier proceedings in relaticn to sovra similar charyes had miscarricd and decisions then mace were invalid. The committee of wanagerent proceeded afresh c/f. Ridge v. Baldwin [1964] A.C. 40 per Lord Rei at p.79. Tn particular the prece: dings belore the Committec : _ rey Tay were conducted undec fair and clear leadership by the respondent : - narkedly Jenkins. The facts in Clevorth v. Barrow, supra, are Mar "44 t a differenl from tho facts wn ov ero rt e2se aa rouAan said in that cése prevorte tho fanliegs mode 21 the prasoot case. The claim vl sas Forvod mob purl oy of the Ciaryos arising out of the cree lur d-tizrtberad by the sleimrark, wiecnds 3 ard 10. Alvhough t!° charces cc. caine 7 24 grounds 3 and 7Q wore @ifferen> co these previously dealt wrth Ly t8.0 Comiitcss, the fact that the claimant was foun' nat guilty of thote charges doe to sone extent,Ssupport the fact that the riembers of the Committee: considored the cnéerges in a fair and responsibie way. The warning given by the prosicent el the begirraing ef t proceedings was designed to ensure knat the te. vers of the Commitige exercised their powers fairly and reasonably. The fact that some of those members, in the course of cross examination indicated that a "reverse onus" may have applicd, introduces a degree of subtlencss3 which 1s undesirabie in matters of this kind. Members of a jury 15 a criminal trial canrot be cross- examincd ars to their metnod of Ceterming the guilt of cn accused person. When the members of the Committee, ir the exercise of povers conferred uron them by the rulcs of the /ssociaticn, procace to determine the charges in a manner similar to that of a jery, : the particular thought procuss2s of i-dividval committee should not be alloved to be used co challerce decisions fade vnich have becn arrived at fair and reasonanlie. Twill consider later the as, tec of tne refusal to allow Ir. Romanin to represent the cla.vant. judgme t it 1s useful to refer to what was said in Holmes v. O'Too. (1957) 1 F.L.R. by Dunphy J. at p.232: "As Riordan therefore came on to the tribunal by viriue of his office and under the rules of the organization, he had both a right and a duty to act therecn. Tne view of the majority in Bowen's Cause Qewsnrstrates th2t those factors do not authorize the presence on such a tribunal of a person 'invincibly biassed@'' against an accused, but also provides standards vgon which questions oF bias priv be judeed. & seows to me that the evidence for the applicant herein rcferred to Coes nol contorm to such standards. To hold otherwise would be tantamount to saying that 22. 23. in the moc sages 1G fat @ ie) ~ > > -. cas Dad % fs The eprrom out a p.405 as follows: s so fav mer lioned dia Cacator coald be disponoid wit) or replace py su csne to whe tha sao oje al But treed era map, causes tai be no substitution 2g peseible, Siree no one ¢lse 18 cVWowereca to ack, Tararal Justice than has to gave way ty necessity, for otherwise tnere 15 no means of deciding and the rachinery of justice or administration iill break dow." Counse?l for the claimant relied upon Lov v. Chartered Institute of Patent Acents [1919] 2 ch. 276, especially per Eve J. at p.269, but in thot vase no re was made to the application of the principle of ne empowering the cormittee of an association to @etervrine disciplinary charges against a member where otherwise these charaocs could not be heard and determined by the cormictree a) because of the application of the principics of natural In my cpinion, on the KR My iw Q rod a [9] oo) fag a m 'G re is wf om+ case, the decisicns of the Connittee a Ioturn nov to corsréiy vnew.er the refusal of the Cormittec of nanazte cane to allow i'r. Potanin Lo resrescnt the claimant constituted sufficient roastns (oO anvalid oo the decision subseduently rage py the courittes. Tf found gasics oF the charges laid, the clizirant would be Cenriveavot his livelier He heJd@ an office within the Victorian sranc': and thus was an a stronger position than a wember of the bracch who did not has any knowledge of the rules of the Association or the bravch and did not have experience gained from office. The claimant, as secretary, should have been in a positi a defence on his behalf particularly when tne other ~cwwers cz ia committee were in no better position as far es professional aadvic- was concerned. In the ahsence of specific provisiors in ti? Bl ry = of the Association, the claimant did not have the rignt to be repres ited by an agent, whether a lawye.s ox not. At the very mo the Comnittee had a diserei1on to allow the claimant to be so represented; sve R. v. City of stoibourne: ¢ _part> Whyte (1949) 7" 257 and the cases therein cited, McNab v. Puburn Soccer Svorts ee ete re ee weet ita, Cous Ll Tia t a who ur gh tl thee : the evicstree he se ee Toda Yecl cousaccrat.c1 bo the ualorl tap cera. wr Lon Ue. ie car =: yt - = a AS oa a --, - . that a nun es oF tacs: acemers in Jdeord.ing wo or tec voomssier follcwo?' as Leine absolu.c, a practice or policy of tea branch He said tris gov: to the practtee ce policy the sare offoec fo) not to per it strangers to attend ~eetings of une Comicree. { as a rule of the Assoczatior ond that this was .rones since re prevented the Conmitica frow ancrcising its diservi1on preperly and thus vitieated the whele of the s: woe "7 ce)fa) a G p s c proceedings. He said also that 1f the Committee had sought clarification of the status of Mr. Romari., tha members might have reached a different cunclusion. In suproare of three submiss.101.7, Dennins in =: Associe tod Lt Be sOC he SO Bene ie 7 Clairant, on thistpart cio ni rzgoelaicetaicr, nas nst me-abtisied breech of ovnenn-et met Tere bee ant aoe tom carel procecca 25 aad to a Lleal wee btm, ero goer loys 3 ONGZEGOM 2a bi ar Met ch rate hae aa Poatw le a Lee and att2 20. ta 4 a ae tare or wat) uae Tavews, Thecc in wus id inhersrtly treu.g uath the pratt ce or peiver adortet hy eat encludiag str ngers rrem tho + ccetings and tne agplicarici. cf that vractzee cr vol.c, cannos he said to reecult un a foilure to Gcsarcice pPeorperly the ciacceticn eetnt a? L conforred on tuem. The secretary --s a full time paic officia.s s of the branch. IF anythins, being the holdvr of this office r placed him in an advance Vath respect to the ead ray ) G t rs co Gvr c a > other notbers ar the Corrittce The assistant secretary was not represented by an agent. The Caimittee wore entitled to apply the policy of the branwh without seeking clarificaticn of {ne stulus of tc. Romanin., Tne refusal to clin. represeptatic dons nob invalidate th: dcocasziores subsequently made. Coureel for tie respondeat subnzeted that 25. _ moanyoevons, by or thay te etc Me bret eg his anew. to tur ef r,s, bie clan ve Pads avd any raght® 'se mey Pave aad peculloug Fro Q nenscord) sa: the requizcwoues OF macura)d goo .tee. he reiice ub Pon authorittes «uvi a BR. he ve. Haesstratec! Cocrb ot Ts 2 [1873] VR. 12° 12°. Bavaaty regard @x part? Creco Opinions already cxp.scssed it 15 to not reresnary [coi we express any opinien on-this ubrission, but for the eaho Of completeness and assuatng the cctence of waiver 1S open to the respondents, on the facta of this case, the claimant @2d not waive any richts he ma, have ctheswtoe heve had . In my opinicn the discnarced,. A WR PL Pecos taat this ait the PosiAy jew precedes pooes are 8 te eon ob the Reasons for frdamert teaver of the Honeteal ie Mao Justus Nerténop Charters. Dated- 2 ¢ ; C979 EE or Die A, BE ARR aenanntae tere!