etme ahem Ta te TT ee te ee ee fe (0 ee ad teat Fi lala he dae tae ee ee tO Ralem ats agus: ee P ~g IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT BETWEEN: INDUSTRIAL DIVISION V. No. 16 of 1979. REGISTRY DAVID JAMES CAINS Claimant and EILEEN JENKINS, CARLO FRIZZIERO, NICK PANNAGOPOULOS, GEORGE BISSIOTIS, MORGAN DAVIS, PAUL COOPER, SHIRLEY SKIDMORE, ALFRED GEMPTON, ELSIE HILL, BEVERLEY WEBBER, SHIRLEY BIRCH, KIM HAMMERLUND, BRIAN MOREL & MEGAN CHALON Respondents . CATCHWORDS Registered Oraanization - 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.141. TN WHE FRDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISJON V. No. lo of 1979, VICTORIA DISTRICT REGISTRY BETWEE N: DAVID JAMES CAINS Claimant and EILREN JENKINS, CAPLO FRIZZTERO, NICK PANNAGOPOULOS, GEORGL BISSIOTIS, MORGAN DAVIS, PAUL COOPER, SiTiRLEY SKIDMORE, ALFRED GEWPTON, ELSIE HILL, BEVERLEY WEBBER, SIHJRLEY BIRCH, KIM HAMMERLUND, BRIAN "OREL & MEGAN CHALON Respondents ORDER JUDGE MAKING ORDER: Northrop J. DATE OF ORDER: WHERE MADE: ORDER: 26 June, 1979. Melbourne Rule Wisi discharged. IN THE EDERAL, COURT OF AUSTRALIA INDUSTRIAL DIVISION V. Mo. 16 of 1979. VICTORIA DISTRICT REGISTRY BETWEE N: DAVID JANES CAINS Claimant and EILEEN JENKINS, CARLO FRIZZIFRO, NICK PAXNAGOPOULOS, GEORGE BISSIOTIS, MORGAN DAVIS, PAUL COOPLDR, SHIRILY SKIDMORE, ALFRED GEMPTON, ELSIE HILL, BEVERLEY WEBBER, SIIIRLEY BIRCH, KIM HAMMERLUND, BRIAN MOREL & MEGAN CHALON Respondents NORTHROP J. REASONS FOR JUDGI1ENT 26 June, 1979. The claimant, David James Cains, is the secretary of the Victorian Branch of the Federated Confectioners Association of Australia (the Association), an organisation under the Conciliation and Arbitration Act 1904 (the Act). Each of the respondents is a member of the as amended, association and thus 1s under an obligation to perform or observe the rules of the association. The respondents, together with the claimant, comprise the committee of management of the Victorian Branch of the Association (the Victorian Branch), see branch rule 9. On 11 April 1979, the committee of management of the Victorzan Branch (the Committee) in the exercise of powers conferred by branch rule 40, removed the claimant From his office of secretary. In these proceedings, the clazmant, pursuant to s.141 of the Act, 1s 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 legal effect, the decisions of the meeting % an abeed 2. of the Committee held on 10 and 11 April 1979 so far as such meeting "(a) Purported to refuse the request of che claimant that ne be represented before such meeting by an agent tr. Albert Romanin; and (b) Purported to decide that the claimant was guilty of any charce heard or purportedly heard by the seid neeting." It 1S necessary to sel out the facts leading up to the decisions made at the meeting on 10 and 11 April. Under the rules of the Victor1an Branch, elections are held annually for each position on the Committee except for the office of president, for which office an election is held bi-cnnially, and the offices of secretary and assistant secretary, for which offices an election is now held every fovr years, branch rules 12 and 12A, and are conducted pursuant to the provisions contained in branch rule 12B. Under the branch rules a general meeting of the branch is held on the first Tuesday in the months of February, April, June, August, October and December, the December mceting being called the annual gencral meeting, branch rule 10, while meetings of the Committeé are held in the alternate months or when called by the president and secretary, branch rule 10. Nominations for election to positions on the Committee are called at a general meeting and are to be delivered to the returning officer not later than § weeks prior to the date of the annual general meeting. Of necessity, nominations must be delivered to the returning officer not later than a few days after the October gencral meeting. The election is to be conducted by secret ballot of the financial members of the Victorian Branch. The result of the election is declared at the annual general meeting in December and the successful candidates hold office until their successors have been duly elected, branch rule 9(c¢). In the year 1978 elections were conducted for ali of the positions on the Committec except those of secretary and assistant secretary. The term of office of the claimant did not expire until 1982, thus he was not 3. a candidate at the 1978 elections. One of the grows to bez elected 1s described in the branch rules as committee of Management (4 males), branch rule 9. Eight candidates nominated for those four positions. Some of those candidates were then members of the Committee. During the course of the clection the claimant authorised the publication and distribution of a circular printed in four languages, including English, the relevant part of which was as follows:- "THE FEDERATED CONTECTIONERS ASSOCIATION Victorian Branch Elections Committee of Management (4 Males) Keep Communist influence and interference from other Unions out of this Union. Vote by placing a 'cross' as follows. VOTE AS FOLLOWS [x COOPER PAUL DON'T FORGET TO VOT GEMPTON ALFRED WILLIAM BALLOT OPENS 17th NOVEMBER [Xx] GRACHAN MARTIN BALLOT CLOSES 8th DOCENPER {_X] MOREL BRIAN PANNAGOPOULOS NICKY VOTE - VOTE - VOTE PEDDIE JAMES ROBERTSON PYERS NORMAN WESTWOOD SIDNEY [4 fe Authorised by JIN CAINS - VERMONT." 4. The circular caused great concern tc a number of persons includiag some of the members of the then Committec since 1t contained an implication that the persons not supported by the claimant were either communists o1 under comrunist snflueuce or were under the influences of other unions, or possibly all three. In particular, the circular greatly ups.t the respondent Pannagopoulos who, on first seeing the circular and on the spur o£ the moment, rang the assistant secretary, the respondent 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 carry out or attempt to carry out that threat. A meeting of the Committee held on 3 November 1978 passed the following resolution: "This meeting of the Executive of tho Federated Confectionsers' Union having heard the explanation of.the branch secretary regarding the lies and distortions contained in a circular to members authorised by him in respect to the elections for male representatives on our executive calls on the secretary to withdraw the allegations of communistic influences made against one or more of the candidates in that election and to publically apologise by sending a letter to every member of the union who would have received a ballot paper in that election, We condemn the secretary for his atterpts to divide the membership of the union by authorising a leaflet containing lies against loyal members of the union whe wish to exercise their democratic right to run for an office within the structure of the union." The respondents Pannagopoulos, Jenkins, Frizziero, Bissiotis, Davis, Skidmore, Gempton, being members of the then Committee, voted in favour of the resolution. On 30 November 1978, three separate charges in writing were laid against the claimant. The first charge was signed by five persons, including the respondents Jenkins, Davis, Pannagopoulos, Bissiotis, and was as follows: wi "UNCONSTITUTSONAL MEETING ON 4 MAY,1978, ROOM 40, TRATTS ALL We, the undersigned, charge under rule 40 the Secretary, Jim Cains with a breach of rules 24({a) (2), 24(b),9(b). Particulars of which are as fa'lows. 1. The Branch Secretary convened on the 4d May, 1978 a Special Meeting of the Committee of Management without the approval of the President in defiance of Rule 24(a) (2). 2. The Branch Secretary fa1led to notify all members of the Committee of Management and did fail to notify five members of the Committee of Management of the meeting being held on 4 ifay, 1978 in defiance of rule9(b). 3. That the meeting of the Committee of Management on 4 May, 1978 was unconstitutional and the members present were paid attendance money and/or expenses for this meeting, contrary to the provisions of the constitution, rule 30." The second charge was signed by five persons including the respondents Pannagopoulos, Gempton, Birch and Bissiotis and was as follows: "SIGNING OF INDUSTRIAL AGRECMENT We, the undersigned, charge under rule 40, the Secretary, Jim Cains with a breach of rule 21. Particulars of which are as follows: 1. The Branch Secretary signed an industlial agreement with Cadbury-Schweppes Ltd., Ringwood division, without consultation and/or without the approval of the members of the Committee of Management, contrary to rule 21. 2. The Branch Secretary did sign such agreement without the signature or approval of the Branch President, contrary to rule 2i." The third charye was signed by the respondents Frizziero, Davis, Jenkins, Skidmore, Chalon, Pappagopoulos, Gempton and Bissiotis and was as follows: "FAILING TO OBEY THE INSTRUCTIONS OF TNE COMMITTEE OF MANACEMONT AT A MELTING OF THE COMMITTEE OP Ma NAGEMENT "EELD ON 23 NOVEMBER, 1978. We, the undersigned, charge under rule 40, the Secretary 6. Jim Cains with a breach of rule 15. PARTICULARS OF WIUSCH ARE AS FOLLOWS 1. A Special Committee of Management meeting was held on 23 November, 1978, in accordance with rule 11, at the request of the Branch Secretary and Branch President, to discuss a pamphiet issucd by the Branch Secretary to members of the union un Victor1la in which false allegations were made against a number of candidates standing for clection to the Committee of Management. The pamphlet stated that the candidates were under communist influence. 2. During the meeting 1t was suggested by a number of members of the Committee of Management that the Branch Secretary resign his position. The Branch Secretary then abandoned the meeting by walking out despite being requested to remain at the meeting." The results of the elections for the positions on the Committee were declared at the annual gencral meeting in December 1978, Only one of the eight candidates for the position of member of committee of management (four males) who had the support of the claimant was successful, namely the respondent Morel, the other three successful candidates being the respondents Cooper, Cempton and Pannagopoulos. A Committee meeting held on 31 January 1979 resolved as follows: "That after having considered items 1, 2A,2B,2C,3A,3B,3C, this meeting of the committee of management of the Victorian branch of the Tederated Confectioners! Association, considers that the branch secretary, J. Cains 1s not fit to hold the office of secretary of the Victorian branch of the association, and accordingly dismissed ham from that position in accordance with rule 40 of the Victorian rules of the association," In that resolution the reference to the numbered items are to the 1tems contained in a notice of meeting and relate to a number of matters involving -Ehe claimant, items 3A,3B, and 3C being the three charges referred to earlier, All of the respondents except Hammerlund voted in favour of the resolution. Following intervention by the Industrial 7. Relations Bureau, a meeting of the Committee held on 6 February 1979 resolved as follows: "Arising from the report by Mr, Frizgziero this meeting rescinds that part of the motion of meeting of committee of management on 31/1/79 concerning the dismissal of J. Cains as secretary of the Victorian branch and considers J. Cains is suspended in accordance with Rule 38 of the branch of the association pending the hearing of charges that had been laid against him by members of the branch." In the meantime, the branch assistant secretary, the respondent Frizziero, had caused solicitors to prepare a summons dated 6 February 1979 containing charges against the respondent. The branch president, the respondent Jenkins, at the time was attending a seminar for trade union officials at the Clyde Cameron College, Albury, and at the request of Frizzlero came to Melbourne to sign the summons. On the same day she attended the meeting of the Committee. The summons 18S as follows:- "To: James David Cains 20 Aubrey Street VERMONT VIC. 3133 This 1s a Summons in writing given pursuant to Rule 40 of the Rules of the Federated Confectioners' Association of Australia (Victorian Branch) and you are hereby summoned to show cause before the Committee of Management of the Federated Confections' Association of Australia (Victorian Branch) to be held in Room 40 in the Trades Hall Council Building at the corner of Lygon Street and Victorian Street Carlton at 7.30 o'clock in the afternoon on Tuesday the 6th day of March 1979 why you should not be removed from the position of Secretary of The Federated Confectioners' Association of Australia (Victorian Branch). The grounds upon which it is proposed to consider such removal are as follows, namely that it is 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 similar to those the subject of the three charges already set out in full in these reasons for judgment. Those wt 8. three charges, together with two others, being grounds 4 and 145, related to matters similar to those the subject of the resolution of the Committee on 3L January 1979. Ground 3 in the summons is set out in full:- Ww 3, That you committed an act of gross misbehavicur in that you authorised and published and distributed a document making mischievous, untrue and devisive statements about members of the Federated Confectioners' Association of Australia (Victorian Branch) ." The charges contained in grounds 2(c) and 2(d) each allege a gross neglect of duty while the remaining grounds each allege a substantial breach of specified branch rules. Branch rule 40 is as follows:- " REMOVAL TROM OFFICE 40. (a) The Committee of Management may remove from office any officer or member of the Committea of Management at a meeting of the Committee of Management to which the person concerned has been summoned in writing to show cause why he/she should not be so removed. Provided that such person shall not be removed from office unless he/she has been found guilty of misappropriation of the funds of the Association, a substantial breach of these rules, or gross misbehaviour or gross neglect of duty, or has ceased, according to these rules, to be eligible to hold the office, (b) A person summoned to show cause pursuant to sub-rule (a) of this rule shall be given at least 14 days' notice of the time and place of the meeting of the Committee of Management to which he is summoned, and the notice summoning such person shall also specify the ground or grounds upon which it 1s proposed to consider such removal. The Committee of Manacement may proceed to hear and determine a matter under this rule notwithstanding the absence of the person summoned if due notice of the hearing has been given in accordance with this rule." 'a a . 9. Counsel for the claimant did not submit that the Committee could not have found the claimant guilty of the charges laid against him and accordingly there is no need to make specific reference to the particular grounds contained in the summons nor to the matertal upon which the Committee subsequently acted. The claimant sought and was given further particulars of the grounds set out in the summons. On 19 March 1979, the Federal Court, on the application of the claimant, made orders that the respondents treat as null and void and of no legal effect the resolutions set out above and passed by the Committee on 31 January 1979 and 6 February 1979 respectively. The court ordered also that the respondents not proceed to hear and determine the charges specified in the summons dated 6 February 1979 before 10 April 1979, The Committee met at about 9,30 a.m. on 10 April 1979. All of the respondents except H111 and Hammerlund were in'attendance. The claimant, accompanied by a Mr. Romanin, then an articled law clerk but now a barrister and solicitor of the Supreme Court of Victoria, attended at the meeting. When the president, the respondent Jenkins, who under the branch rules was required to preside at the meeting, opened the meeting, Mr. Romanin identified himself and said he was an agent for the claimant and was present to represent the claimant. Some members of the committee of management questioned his right to be present. The respondent Jenkins read a statement and then asked if the meeting wanted to consider whether Mr. Romanin should be allowed to remain. The claimant and Mr. Romanin refused to leave when requested and the meeting then resolved that they leave the meeting to allow the meeting to consider whethor Mr. Romanin should be permitted to stay. Before leaving the mecting, Mr. Romanin obtained leave to read a prepared statement signed by the claimant. The statement was an objection to the respondents Frizziero, Davis, Jenkins, Skidmore, Chalon, Pannagopoulos, Gempton and Bissiotis 10. 10, participating at the meeting since they had shown themselves to be so prejudiced against the claimant as to be unable to give him a fair hearing of the charges. Particulars of the prejudice were given by reference to the participation of those persons in the charges dated 30 November 1978, their participation in the committee of management meeting on 23 November 1978 and the threat by the respondent Pannagopoulos. The statement continued:- "If the persons named remain at this meeting and purport to participate in it I do not recognise the meeting as valid or as acting in good faith and I do not propose to take any part in 1t. In the event that the meeting purports to find me guilty of any charge brought against me I will apply to the Federal Court of Australia for such relief as I may be advised. If I remain physically present I do so only as a witness of the proceedings of an invalid meeting. -If have prepared as evidence of my good faith, a sworn reply to each charge brought against me so far as T understand such charge. I invite any person who genuinely and honestly thinks I have been guilty of any misconduct to charge me with such misconduct before Federal Council under the Association's Rules." A copy of the statement was handed to each of the respondents present at the meeting. Mr. Romanin then read out an affidavit sworn by the claimant containing as an annexure a statement by the claimant being an answer to each of the grounds set out in the summons, A copy of the affidavit and statement was handed to each of the respondents present at the meeting. Again it 1S not necessary for the court to make specific reference to the answers made by the claimant. The claimant and Mr, Romanin left the mceting. The meeting resolved not to permit Mr. Romanin to be in attendance while the meeting was being conducted. The claimant and Mr. Romanin returned to the meeting and were informed of the resolution passed. Mr. Romanin then left saying words to the effect that he left under protest and that he believed the meeting to be illegal. ll. ll. The respondent Jenkins read out again the statoment she had earlier made. Previously she had allowed the claimant to obtain a copy of that statement. The statement had been prepared by the respondent Jenkins without legal assistance and was based on the experience she had obtained as a member of a jury in a criminal trial at Melbourne in 1978 and also as a result of attending seminars at the Clyde Cameron College. It is a remarkable statement and is to be commended. I set 1t out in full. In the statement the letters "C.O.M." refer to the Committee. The letters "J.C." and the name "Jim" refer to the claimant and the letters "C.F." and the name "Carlo" refer to the respondent Frizziero who had laid the charges against the claimant and who prosecuted them before the Committee. The statement was as follows:- "Declare the meeting open and advise that this 1s the further reconvened Committee of Management meeting of 6 March 1979. State that I have sent to each member of C.0O.M. a letter as Branch President, dated 30 March 1979 advising of the meeting .... read letter of 30 March. The only business on the agenda today is the hearing and determination of ten charges laid against J. Cains. Read introduction ... I advise the meeting of the procedure to be followed today in hearing and determining these charges, C.F. will prosecute the charges and will not be permitted to remain in the room whilst the C.O.M. is considering the submissions and evidence relating to each charge. After C.F. has put his submissions and ovidence to J.C. by way of questions J.C. can ask questions of and see any documents presented by C.F. C.F. may call witnesses 1f 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 questions of any witness called by J.C. 12. 12. Members of the C.O.M. may ask qucsctions of C.F., J.C. and witnesses at any time If any member of the C.0O.M. 1s called to give evidence that member of the C.O.M. may participate in the final decision relating to the charge on which he has given evidence but may not discuss his/ her evicence during discussions after C.F. has left the C.O.M. to deliberate on that particular charge. a ed AS PRESIDENT OF THIS BRANCH IT IS MY DUTY TO ASK MEMBERS OF THE COMMITTEE OF MANACEIMENT TO HEAR TIlE SUBMISSIONS AND EVIDENCI or ALL PARTIES IN THIS MATTER, TO APPROACH THIS MATTER WITH AN OPDN MIND AND TO GIVE BOTH CARLO AND JIM LVERY ASSISTANCE IN PRESENTING THE FACIS TO YOU SO THAT YOU CAN JUSTLY DELIBURATE ON THE EVIDENCE BEFORE YOU BELFORD MANNING ANY DECISION ON ANY OF THE CHARGES, IT IS A DIFFICULT TIME FOR THE BRANCH AND YOU ARE CHARGED WITH A GREAT RESPONSIBILITY IN DETERMINTNG THESE CHARGES AGAINST JIM CAINS. EACH MEMBDR OF THE COMMITTEE OF MANAGLDMENT HAS BEFORE THEM A COPY OF THE RULES OF THL BRANCH AND I URGE YOU TO REFER TO THEM AT ANY TIME SHOULD YOU DEEM I1 NECESSARY. EACI] OF YOU HAS A PAD AND PEN AND I ASK YOU TO TO TAKE NOTES OF THE MATERIAL THAT WLLL BL PUT BEFORE YOU TO ASSIST YOU IN YOUR DELIBERATIONS FINALLY, I ASK THAT JIII CAINS BE GIVEN THE BENEFIT OF ANY DOUBT THAT MIGHT EXIST IN YOUR MIND IF YOU ARE NOT FULLY CONVINCED ON ANY POINT PUT TO YOU." After the respondent Jenkins had made her opening remarks, she asked in turn each member present to indicate whether that person folt disqualified 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 thereupon left the meeting and took no further part in the hearing of the charges. 'The other respondents remained. The procedure outlined in the opening remarks made by the respondent Jenkins was followed. The respondent Jenkins conducted the meeting in an exemplary manner. After the prosecutor presented his material on each charge, the claimant was asked whether he had anything to say. He replied "no comment". On the second day the claimant did make some comment, but for the purpose of these reasons I consider they were consistent 13. 13, with a "no comment", In addition to receiving the written answers of the claimant, the Committee gave every opportunity to the claimant to present his defence. The meeting continued during normal office hours on 10 April. During the afternoon the respondent Gempton, in reference to the attitude of non-participation adopted by the claimant, said words to the effect that the meeting was a mockery, that he refused to remain and that the claimant was guilty. The respondent Jenkins reminded him that the claimant had distributed the statement made answering the charges but the respondent CGempton said words to the effect that the meeting was a farce and that he was going to tell his members that the claimant was guilty. Gempton then left the meeting and took no further part in the hearing of the charges. The meeting resumed on the morning of 11 April. After the lunch break and at about 2.30 p.m. the hearing of the charges was completed and the meeting resolved that a decision be made that day. The claimant and the respondent Frizziero left the meeting. The remaining nine members of the committee of management then considered each charge separately including the charges contained in each sub- paragraph of those grounds which contained sub-paragraphs. Under the direction of the respondent Jenkins, the members looked at the relevant branch rule , the material presented to them by the respondent Frizziero and the answers to the charges contained in the statement distributed by the claimant. The members were directed to consider the wording of the relevant branch rule and of branch rule 40. Discussion ensued between the members in relation to each separate charge. Each separate charge was considered separately and when the discussions on that charge had ceased, the respondent Jenkins asked in turn each member present whether he or she found the claimant guilty or not guilty of the particular charge being considered, After each ground set out in the summons had been finally considered, the committce applied branch rule 40 to that ground and indicated that the committee would dismiss the claimant, or rather remove him from office as secretary of the branch, In particular the committee did not consider whether to impose any other penalty or to impose no penalty at all. At about 4.30 p.m. the claimant was recalled to the meeting and informed of the results reached by the committee. He was told that he had been found guilty of 14. 14. each charge included in ground 1 and therefore was d:sm1 ed from office, that he had been found guilty of cach charge included in ground 2 and therefore was dismissed from office, that he had been found not guilty of the charge contained in ground 3, that he had been found guilty of the charge contaaned in ground 4(a) and therefore was dismissed from office, but the charge contained in ground 4(b) had been withdrawn, that he had been found not guilty of the charges contained in grounds 5 and 6, that he had been found guilty by 8 votes to 1 o:. the charge contained in ground 7 and therefore was dismissed from office, that he had been found guilty by 8 votes to 1 on the cherye contained in ground 8 and therefore was dismissed from office, that he had been found not guilty of the charge contained in ground 9(a) but guilty of the charge contained in 9(b) and therefore was dismissed from office and that he had been found not guilty of the charge contained in ground 10. Since 11 April 1979 the claimant has been deprived of his salary as secretary of the Victorian branch. Ne has no other income and his removal from office has imposed severe financial burdens upon him. He w2rll find it difficult to find other employment at a salary similar to that he had received as secretary, Evidence was given by each of the 9 respondents who on 11 April 1979 participated in the deliberations of the committee, Each was subjected to strong and vigorous cross- examination on whether he or she was prejudiced against the claimant and whether by reason of past actions could approach the Matter with an open mind. It was put that the witness had prejudged the claimant and would look to see if he could prove his innocence. I am satisfied that each of the 9 respondents, to the extent of his or her capabilitics, did consider the charges and did participate in the deliberations in the manner described by the respondent Jenkins in her preliminary remarks and thereafter under her careful guidance during the course of the hearing of the charges and the deliberations by the members of the committee, 15. eo ee ee 15. Before dealing with the legal 1ssues rai' cd several matLers call for mention. The Committ..e comprises 15 persons, branch rule 9, and 8 members comprise a quorum, branch rule 31. The claimant objects to at least 8 of the respondents participating tin any deliberations of the Committee which considers charges against him. It follows that at the present time, if those 8 are excluded, the absence of a quorum would prevent the Committee hearing any of the charges against the claimant. It is well to remember that a secretary ofa branch of an organisation who enters into the contrevercsy of an election for members to the committee of management of that branch, especially when the secretary is not a candidate at those elections, must face the consequences of his intervention. As was truly said by Joske J. in re Elections for Offices in the Electrical Trades Union (N.S.W. Branch) (1961) 3 F.L.R. at pp.90-1: "A secretary should realise that even though his own off1ce may be 1n jeopardy in an election, while he remains a secretary he has a duty to all members to behave fairly and impartially. In my view Mr Dolan entirely failed to carry outa fiduciary duty which a secretary should regard as a most important duty cast upon him," In the statcment read by Mr. Romanin to the Committee, reference was made to the possibility of the charges against the claimant being laid before the Federal Council. It was sought to justify this course under federal rule 12, the relevant part of which reads as follows: "L2 DUTIES AND POWERS Of FEDERAL COUNCIL. (a) ... the Federal Council shall supervise the duties of Officers, and shall have power to dismiss, suspend or remove from any office ,any officer or servant of the Association for misconduct proved against him, provided that ali officers and servants shall have the right of appealing to the next meeting of the Federal Council, The decision of the Federal Council is final." 16. eee een 16. fn that rule the words "any officer" refer to any Pederal Officer being any of the officers of the Federal] Council, - see Federal Rules 17 and 18 and not to an officer within a branch. Federal Rule 12 dces not confer on Federal Council a power to remove a person from a branch office. Such a person is not "any officer" within the meaning of Federal Rule 12. It follows therefore that the charges against the claimant could not be brought befo 72 the Federal Council under federal rule 12. It is clear that the principles of natural justice are to be applied with respect to the procecdings before the Commiattce. Counsel for the claimant submitted that natural justice had been denied to the claimant in two major respects. He submitted that each of the eleven members who constituted the Committee when it met on 10 April had, by their previous actions including the prosecution of charges based on facts similar to those upon which the claimant was then charged and their participation in proceedings which found the claimant guilty of those charges heard on 31 January 1979, prejudged the charges then presented against the claimant and thus were guilty of bias against him. As a matter of procedure, particulars of bias had been given with respect to six of those persons only and as a result, Counsel did not rely upon the other three persons being guilty of bias. Of thease three, the respondent Birch had disqualified herself and the respondent Gempton had retired from the meeting in the afternoon of 10 April, The second major respect in which it was claimed that natural justice had been denized to the claimant was alleged to result from the refusal of the Committce to allow Mr. Romanin to represent the claimant in the proceedings before the Committee. In R, v. Watson ex parte Armstrong (1976) 136 C.L.R. 248, the Nigh Court considered the principles to be applied in determining whether a tribunal exercising judicial 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 number of authorities on this issue and at pp.262-3 said: 17. ss 17. "The view that a Judce should not sit to hear a case if in all the circumstances the parties or the public might reasonably susrect that he was not unprejudiced and impartial, and that if a judce does sit in those circumstances prohibition will lic, is not only supported by the balance of authority as it now stands but 1S correct in principle, It would be wrong to regard the observations of Lord Ilewart C.J. in R, v. Sussex Justices; Ex parte McCarthy [1924] 1 K.B. at p.259 as meaning that the appearance of justice is of more importance than the attainment of justice itself: cf. Reg. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B., at p.52. However, his statement of principle, which was recently reaffirmed an this Court in Stollery v. Greyhound Racing Control Board (1972) 128 C.L.R. 509, at pp.518-519 does go to the heart of the matter. It 1s of fundamental importance that the public should have confidence in the administration of justice, If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning M.R. which have already been cited, 'Justice must be rooted in' confidence: and confidence is destroyed when right-minded people go away thinking: 'The Judge was biased.'" In the present case, the Committee is not a tribunal exercising judicial or quasi-judicial functions within the meaning of those words as used in R. v. Watson ocx parte Armstrong, supra. The Committee is a body constituted by the rules of the Association. It 1s a domestic tribunal exercising powers conferred on it by the rules of the Association. In the exercise of its powers, the Committee must ensure that 1t proceeds according to the rules of the Association. Of necessity the members of the Committee must be involved in any controversy affecting one of their number. Branch rule 40 confers on the Committee the power to hear and determine charges brought against one of their number. The prior involvement of the members of the Committee in the controversy leading up to the bringing of charges against one of their number cannot disqualify them from hearing and determing those charges, Australian Workers Union 18. 18. v. Bowen (1948) 77 C.L.R. 601 per Dixon J. at 630-1. But notwithstanding this, the rules of the Association are to be interpreted as being subject to the underlying condition that the proceedings brought under branch rule 40 should be carried on in accordance with the fundamental principles of natural justice, see O'Connor J. in Dickason v. Fadwards (1910) 10 C.L.R. 243 at 255 quoted with approval by Dixon J. in Australian Workers Union v. Bowen, supra at p.631. After refer:ing to that quotation from the judgment of O'Connor J., Dixon J. continued at p.631: "It is not in accordance with the principles of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as tne prosecutor or one who is invincibly biassed against the accused as a result of his participation in the controversy, and this was the case with Dougherty. If a person disqualified by such considerations sits with the tribunal and takes part in the decision, that is enough to vitiate 1t: Dickason v. Edwards." ' Counsel for the claimant submitted that the members of the Committee had so conducted themselves prior to the meeting on 10 April that each was biased to such a degree as to vitiate the decisions made at that meeting. The person making the charges and prosecuting them before the Committee, the respondent Frizziero, did not participate in the deliberations of the committee. The question to be determined, therefore, is whether the other members of the Committee who did participate in the deliberaticns were biased to the extent necessary to vitiate the decisions made. Except to the extent that the word "jnvincible" has the strong meaning of referring to something that cannot be overcome, JI do not find the phrase "invincibly biased" easy to apply. It is not sufficient to establish that 1t might reasonably be apprehended or suspected by fair-minded persons that the Committee may not determine the matters before them with an unprejudiced mind, c.f. R. v. Watson Ex parte Armstrong, supra, see Maloney v. New South Wales National Coursina Association [1978] N.S.W.L.R. 161 per Glass J.A, at pp.168-9. In 19. 19. my opinion the test to be applied in the present case, 1s whether, having regurd to the rules of the Associa 10on and all the surrounding circumstances of the case, the members of the Committee who participated in the proceedings on 10 April and 11 April were able to exercise the powers conferred upon them by the rules of the Association in a fair and reasonable manner. In applying this test, particular emphasis must be given to the fact that it 1s necessary that the members of the committce of management should exercise their powers Lairly with respect to the claimant. Leaving aside the questions o£ whether Mr. Romanin should have been allowed to represent the claimant and whether the committee should have enuercised a discretion as to the penaJty to be imposed, Counsel for the claimant did noc, and in fact could not, make complaint against the procedures adopted by the Committee in the hearing and determining of the charges made against the claimant. Counsel submitted however, that by their previous actions the members, in varying degrees, had so prejudged some of the charges against the claimant that they could not hear and determine the charges fairly and reasonably, or, as he put it, that they were b:ased to such a degree as to vitiate the decisions made. He relied upon the involvement of the respondents in discussing and voting on the matters already referred to at the meeting on 23 November 1978, the threat of the respondent Pannagopoulos, the laying of the charges dated 30 November 1978 by some of the respondents, and the hearing and determining of these charges adversely to the claimant on 30 January 1979, Ile submitted that this showed that those respoidents had so prejudged the matters that some of them at least applied a "reverse onus" with respect to the claimant cff. Cleworth v. Barrow (1978) 20 A.L.R. 359, to the extent of considering him guilty of the charges unless he could show he was not guilty. In addition, Counsel relied upon what he described as evidence of "corporate bias" to support his submission. These factors related to the summary mannerin which the Committee refused to allow Mr. Romanin to represent the claimant at the hearing of the charges and so deciding without ascertaining his status and the failure of the committce to consider any penalty other than removal from office. 20. as 20. In support of his submission he relied by way of illu tration and analogy on authorities such as Ausirclian Worlers Unaien v. Bowen, supra, Leeson v. General Counti! of Medical DTdu- .10n and Registration, (1890) 43 Ch.D 366 particularly per Cotcon L.J. at 379, Frome United Erewerics Company Ltd. v. Keepers af the Peace and Justices for the County Borough of Bath, [1926] A.c. 586, Taylor v. National Union of Seamen [1967] 1 W.L.R. 532, Roebuck v. National Union of Mine Workers [1977] I.C.R. 573, R. v. Equal Opportunity Board ex parte Ansett Transport In"uystrics Ltd. unreported 20 February 1979 and Cleworth v. Barrow, supra. In my opinion the claimant has not established that the members of the Committee who heard and determined the charges against the claimant were so biased as to vitiate the decisions made. In reaching this conclusion I rely upon the findings of fact already set out. Some only of the charges heard and determined related to matters previously dealt with by the various respondents. It was submitted that the time for determining whether bias ex1sted or not was at the time the meeting commenced. In my opinion this 18 too restricted a view. The whole of tho proceedings must be considered. The charges laid were brought under branch rule 40. It 18 no answer to say that different proceedings alleging different offences but involving the same facts could have been brought under branch rules 18 and 38 which provide for charges to be laid against members of the branch. Likewise, the provisions of federal rule 41A do not apply to allow charges to be brought thereunder for the purpose of removing a branch officer from office by a convoluted series of procedures of doubtful validity. The charges were brought under branch rule 40 and the form of the summons made it clear that 1f che charges or any of them were proved, removal from office would result. The fact that the Committee did not consider the possibility of not imposing the penalty of removal from office docs not support the allegation of bias. More importantly, however, under the branch rules, the Committee was the only body empowered to hear and determine the charges brought against the claimant. Earlier proceedings in relation to some similar charges had miscarried and decisions then made were invalid. The committee of management proceeded afresh c/f. Ridge v. Baldwin [1964] A.C. 40 per Lord Reid at p.79. In particular the proceedings before the Committee were conducted under fair and clear leadership by the respondent Jenkins. 'he facts in Cleworth v. Barrow, supra, are markecly 21. 21. different from the facts in the present case and nothin: said in that case prevents the Findings made in the present case. The claimant was found not guilty of the charges srising out of the circular distributed by the claimant, grounds 3 and 10. Although the charges contained in grounds 3 and 10 sere different to those previously dealt with by the Commitice, the fact that the claimant was found not guilty of those charges does, to some extent,support the fact that the members of the Committee considered the charges in a fair and responsible way. The warning given by the president at the beginning of the proceedings was designed to ensure that the members of the Committee 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 applied, introduces a degree of subtleness which 1s undesirable in matters of this kind. Members of a jury in a criminal trial cannot be cross-=- examined as to their method of determing the guilt of an accused person. When the members of the Committee, in the exercise of powers conferred upon them by the rules of the Association, proceeded to determine the charges in a Manner similar to that of a jury, the particular thought processes of individual members of the conmittee should not be allowed to be used to challenge decisions made which have been arrived at by applying procedures which are fair and reasonable. Jf will consider later the aspect of the refusal to allow Mr. Romanin to represent the claimant. In concluding this part of my reasons for judgment it is useful to refer to what was said in Holmes v. O'Toole (1957) 1 F.L.R. by Dunphy J, at p.232: "As Riordan therefore came on to the tribunal by virtue of his office and under the rules of the organization, he had both a right and a cuty to act thereon. The view of the majority in Bowen's Case demonstrates that these factors do not authorize the presence on such a tribunal of a person 'invine bly biassed'' against an accused, but also provides standards upon which questions of bias may be judged. It seems to me that the evidence for the applicant herein referred to docs not conform to such standards. To hold otherwise would be tantamount to saying that 22. persons politically opposed to each other and who fight their polilical battles on a basis of personalities, are incompetent to sit in fair judgment upon their opponents when, through their office, they become members of a tribunal charged with such a duty. It should be romembcred that the Conciliation and Arbitration Act roquires registered organizations to provide in their rules for a system of election of officers and, as elections of all descriptions are, unfortunately, frequently conducted on bitter and personal issues, 1t is most unlikely that members of union tribunals could escape a charge of bias if what they said about their opponents was to be taken, of itself, as conclusive evidence. It would be a very convenient position for a recalcitrant union member to be in, for, as long as he was in opposition, he could deny the right of the ruling executive to sit in judgment upon him because of what they might have said about him during an election campaign, This, in effect, is what the applicant's first submzssion amounted to." In any event, if contrary to my opinion, the members of the Committee who heard and determined the charges against the claimant were so biased against the claimant that the decisions of the committee otherwisc would be vitiated, nevertheless, I would hold that, by reason of necessity, those decisions should not be treated as being invalid. In the events which have happened and on the hypothesis stated, no quorum of the Committee could be obtained to hear and determine the charges against the claimant. There 1s no certainty that following the 1979 elections, the composition of the Committee would permit of a quorum for that purpose. The claimant would have an immunity. The more outrageous his conduct the greater that immunity. For reasons already given, no other body within the Association has authority under the rules of the Association to hear and determine the charges contained in the 10 grounds specified in the summons against the claimant. It 1s no answer to say that dificrent charges against the claimant could be dealt with under other rules of the Association or branch. In making his submissions on this part of the case, Counsel for the respondents relied upon statements appearing in Wade, Administrative Law, 4th Ed., at pp.405-6, and 467-8. 23. The epitome of the views expres' +d in those passases 15 set out at p.405 as follows: "In all the cases so far mentioned the disjualified adjudicator could be dispensed with or replace by soneone to whom the objection did not apply. But there are many cases where no substitution 18 possible, since no one else 1S empowered to act. Natural justice then has to give way to necessity, for otherwise there 1s ao means of deciding and the machinery of justice or administration will break down." Counsel for the claimant relied upon Low v. Chartered Institute of Patent Agents [1919] 2 Ch. 276, especially per Lve J. at p.289, but in that case no reference was made to the application of the principle of necessity empowering the committee of an association to determine disciplinary charges against a member where otherwise those charges could not be heard and determined by the committee because of the application of the principles of natural justice. In my opinion, on the facts of the present case, the decisions ,f the Committee are not invalid. I turn now to consider whether the refusal of the Committee of management to allow Mr. Romanin to represent the claimant constituted sufficient reasons to invalidate the decision subsequently made by the committee. If found guilty of the charges laid, the claimant would be deprived of his livelihood. He held an office within the Victorian branch and thus was in a stronger position than a member of the branch who did not have any knowledge of the rules of the Association or the branch and did not have experience gained from office. The claimant, as secretary, should have been in a position to be able to present a defence on his bchalf particularly when the other mambers of the committee were in no better position as Far as professional advice was concerned. In the absence of specific provisions in the rules of the Assoc1ation, the claimant did not have the right to be represented by an agent, whether a lawycr or not. At the very most the Committee had a discretion to allow the claimant to be so represented; sce R. v. City of Melbourne; ex parte Whyte [1949] V.L. 257 and the cases therein cited, McNab v. Auburn Soccer Sports 24. 24, Clus Ltd. (1975) 1 N.S.VL.R. 354 and the oc 7ses therein citcd and R. v. Visiting Justice at He "Majesty's Pris bostriddac, ex pe-rte Wilker 1975 V.R. 883 and the c ses therein citea. Counsel for the claimant submitted thut on the evidence the members of the Committec did not give any real consideration to the discretion confurred on them. He said that a number of those members in deciding to refuse permission, followed as being absolute, a practice or policy of the branch not to permit strangers to attend meetings of the Committee. He Said this gave to the practice or policy the same effect as a rule of the Association and that this was wrong since it prevented the Committee from exercising its discretion properly and thus vitiated the whole of the subsequent proceedings. He said also that if the Committee had sought clarification of the status of Mr. Romania, the members might have reached a different conclusion. Jn support of these submissions, he relied upon the opinions expressed by Lord Denning in Enderby Town Football Club Ltd. v. Football Associated Ltd. [1971] Ch. 591 at pp.605-6. In my opinion the claimant, on this' part of his application, has not established @ breach of ornon-compliance with the requirements of natural justice. None of the members of the Committee hearing the proceedings had had legal experience, They were employees engaged 1n the industry in which the Association is registered and attended to the affairs of the Association in their spare time or with the leave of their employers. There 1s nothing inherently wrong with the practice or policy adopted by the Committee of excluding strangers from their meetings and the application of that practice or policy cannot be said to result in a failure to exercise properly the discretion conferred on them. The secretary was a full time paid official of the branch. If anything, being the holder of this office placed him in an advantageous positon with respect to the other members of the Committee. The assistant secretary was not represented by an agent, The Committoe were entitled to apply the policy of the branch without seeking clarification of the status of Mr, Romanin, The refusal to allow representatic does not invalidate the decisions subsequently made. Counsel for the respondent submitted that 25. — rr ee Pr ee a - E re. 25. in any event, by remaining at the mecting and distriputing his answer to the charyes, the claim ont had waived any rights he may have had resulting from a noncompliance of the requirements of natural justice. He relicd upon authorities such as R. v. Magistrates' Court at I 'vdale; ex parte Cicconi [1973] V.R. 122. Having regard to the Opinions already expressed it is not necessary for me to express any opinion on this submission, but for the sake of completeness and assuming the defence of waiver 1s open to the respondents, on the facts of this case, the claimant did not waive any rights he may have otherwise have had. In my opinion the rule nisi should be discharged. T certify that this and the Poe Ay doer preceding pages are,a true copy of the Reasons for Judgment hercin of the Honourable Ms. Justice 4 prthrep