CATCHWORDS Registered organisation - removal from office of branch secretary by committee - refusal to allow agent of branch secretary to be present - actual bias or reasonable apprehension of bias - whether denial of natural justice - Conciliation and Arbitration Act s.14l CAINS v. JENKINS & ORS V. No. 25 of 1979 Coram: J. B. Sweeney, St John & Keely JJ. Place: Sydney Date: 20 December 1979 IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY V. No. 25 of 1979 INDUSTRIAL DIVISION BETWEEN: eee DAVID JAMES CAINS Appellant 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 AND MEGAN CHALON Respondents ORDER JUDGES MAKING ORDER: J.B. Sweeney, St. John & Keely JJ. DATE OF ORDER: WHERE MADE: 20 December, 1979 SYDNEY THE COURT ORDERS THAT: Appeal be dismissed. WN ed IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY INDUSTRIAL DIVISION ) ) ) V. No.25 of 1979. ) ) IN THE MATTER OF The Conciliation and Arbitration Act 1904 BETWEEN ; DAVID JAMES CAINS AND Appellant EILEEN JENKINS, CARLO FPRIZZIERO, NICK PANNAGOPOULOS, GEORGE BIisSSioTvTis, MORGAN DAVIS, PAUL COOFER, SHIRLEY SKIDMORE, ALFRED GHMPTON, ELSIE HII, BEVERLEY WEBBER, SHIRLEY BIRCH, KIM HAMMERLUND, BRIAN MOREL and MEGAN CH&I ON ~ XN Respondents J.B. SWEENEY J. AND ST.JOHN of. An application by the claimant for a rule nisi, pursuant to Section 141 of the Conciliation and Arbitration Act 1904 (The Act), that the respondents perform or observe the rules of the Victorian branch of a registered organization, namely the Federated Confectioners' Association, by treating as null and void the resolutions of the committee of management (the committee) of that branch, at a meeting held on ll April, 1979, was @ischarged by Northrop J. on 26 June, 1979. Those resolutions dismissed the appellant from his former office of Branch Secretary after he was found guilty of certain charges against him. Against such discharge an appeal by the claimant is brought to this Court. Denial of natural justice by the committee was alleged before the learned Trial Judge. Before consideration of the grounds of appeal it is convenient to summarize the relevant facts. The terminology of the criminal law seems to have been imported into this area, and, for the sake of convenience,we use it. An election for office bearers except those of Secretary and President was held in late 1978. The appellant distributed election material in @ifferent languages, including English, in which he urged members of the branch "to keep Communist influence and interference from other Unions out of this Union" by placing a cross against the names of four of eight candidates for election to the committee of management. The four names for whom a vote was not recommended included Messrs Gempton and Pannagopoulos who were in fact elected to office subsequently in December, 1978. Before the ballot was completed the then committee passed a resolution calling upon the appellant to withdraw "the allegations of Communist influence", to publicly apologize to every member and expressing condemnation of the appellant's "attempts to divide the membership". - . -/3 Of the respondents Pannagopoulos, Jenkins, Frizziero (the Assistant Secretary), Gempton and Skidmore were members of the committee passing such resolution. a On 30 November, 1978, three separate charges in writing were laid against the appellant. Briefly stated, the first alleged that the appellant had convened on 4 May, 1978 a special meeting of the committee without the approval of the President, and failed to notify certain members of the committee of the meeting, which was alleged also to be unconstitutional. The members present were alleged to have been paid attendance money and expenses, presumably by the appellant. This chazxge was signed by five persons including the respondents Jenkins, Davis, Pannagopoulos and Bissiotis. The second charge alleged that the appellant signed an industrial agreement with Cadbury-Schweppes Limited without consultation and/or approval of the conmittee, and signed the same without the signature or approval of the Branch President. This second charge was signed by persons including the respondents Pannagopoulos, Gempton, Birch and Bissiotis. The third charge alleged failure to obey the instructions of the committee, the particulars of which were that at a meeting called to discuss the election material above referred to, the appellant walked out of the meeting despite requests to remain. At an annual general meeting held in December, 1978 and then adjourned, the new committee on 31 January, 1979 resolved that the appellant was not fit to hold office of Branch Secretary and was accordingly dismissed in accordance with Rule 40 of » .« 4 the Branch Rules. All the respondents except Hammerlund voted for the resolution. The Industrial Relations Bureau intervened and at a meeting of the committee on 6 February, 1979, the resolution dismissing the appellant from office was rescinded and suspension, pending the hearing of charges, was substituted. The respondent Frizziero caused solicitors to prepate a summons to the appellant dated 6 February, 1979 and this summons was signed by the Branch President, the respondent Jenkins, who travelled especially from a conference in Albury to Melbourne for that purpose. The appellant was summoned to attend a meeting on 6 March, 1979 to show cause why he should not be removed from the position of Branch Secretary. The grounds were ten in number and grounds 1, 2 and 3 were similar in content to the three charges above described except that ground 3 included:- "that you continued an act of gross misbehaviour when you authorized and published and distributed a document making mischievious, untrue and devisive (sic) statements about members". This, of course, was a reference to the election material. Branch Rule 40 complies with Section 133 (1) (f) of the Act and is in the following terms:- "REMOVAL FROM OFFICE 40. (a) The Committee of Management may remove from office any officer or member of the Committee 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 is proposed to consider such removal. The Committee of Management 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." On 19 March, 1979, a Judge of this Court, on the application of th: appellant made orders that the respondents treat as null and void and of no legal effect the resolutions set out and passed by the committee on 31 January, 1979 and 6 February, 1979. The Court ordered also that the respondents not proceed to hear . - .f/6 See and determine the charges in the summons dated 6 February, 1979 before 10 April, 1979. The committee met at 9.30 a.m. on 10 April, 1979, all the respondents being present except Hill and Hammerlund. The appellant, accompanied by Mr Romanin, then an articled law clerk but now a barrister and solicitor, identified himself and said that he was an agent for the claimant and was present to represent the claimant. Has right to remain during the meeting wag questioned by some members, and, when put to the vote, the meeting resolved that Mr Romanin be not allowed to remain. Before leaving, Mr Romanin was permitted to read a prepared statement signed by the appellant in which he, the appellant, objected to the respondents Frizziero, Jenkins, Davis, Skidmore, Chalon, Pannagopoulos, Gempton and Bissiotis participating in the meeting on the grounds that they were so prejudiced against the claimant as to be unable to give the appellant a fair hearing. Particulars of the alleged prejudice were that they had signed one or more of the three original charges dated 30 November, 1978, they had participated in the committee of management meeting of 23 November, 1978, and that the respondent Pannagopoulos had threatened to kill the appellant because Pannagopoulos believed he had been described as a Communist in the election material. The prepared statement then went on with a statement that the appellant did not recognize the meeting as valid or as acting in good faith and that he did not propose to take any part in it. It also stated that if the appellant remained present it was as a witness and the members of the committee were supplied with a sworn statement by the appellant setting out his answer to each of the grounds set out in the summons. te The hearing of the charges proceeded in the absence of Mr Romanin but in the presence of the appellant. The respondent Jenkins, who presided, read out a statement as to the procedure to be followed in dealing with the charges. This statement was based upon her experience as a membor of a criminal jury and certain instruction she had received in attending Clyde Cameron College. Of it the learned Trial Judge said "it is a remarkable statement and is to be commended". In short,it included a statement that Mr Frizziero would prosecute the charges: that witnesses could be called by the prosecution and could be asked questions by the appellant; that the appellant could call witnesses and the prosecutor could ask them questions and further that the members of the committee could ask questions. It went on to the effect that if any member of the committee was called to give evidence that member may participate in the final decision but may not discuss his evidence after Mr Frizziero had left the committee of management to deliberate on the charge. The members were then asked to approach the matter with an open mind and give every assistance to the prosecutor and the appellant in presenting the facts so that "you can justly deliberate on the evidence before you before making any decision on any of the charges". A copy of the rules was before each member and they were urged to refer to them as necessary. Finally, members were told that the appellant was to be given the benefit of any doubt which might exist in members' minds "if you are not fully convinced on any point put to you". - The respondent Jenkins asked each member of the Committee if he or she felt disqualified from hearing and determining the charges. The respondent Birch stated that she could not bring an open mind to the questions, left the meeting, and took no further part. The procedure outlined by the respondent Jenkins was followed and after the prosecutor had presented his material on each charge the applicant was asked whether he had anything to say. He invariably replied "no comment" but on the second day did make some comment. The appellant was given every opportunity to present his defence. On the afternoon of 10 April, 1979, the respondent Gempton stated that the meeting was a mockery because of the appellant's refusal to participate and stated that he was going to tell his members that the claimant was guilty and then left the meeting. He took no further part in the hearing. The meeting was resumed on the morning of 11 April and at about 2.30 p.m. the hearing of the charges was completed and the claimant and the respondent Frizziero left the meeting. The remaining members of the committee considered each charge separately, and, under the direction of the respondent Jenkins the members looked at the relevant branch rule, the material presented to them by the prosecutor and the answers contained in the statement distributed by the appellant. When discussion had ceased, the respondent Jenkins asked each member in turn to state his or her decision. After each ground in the summons had been finally considered a decision was taken as to whether or not to remove from office. The committee did not consider whether to impose any other penalty or to impose no penalty at all. At 4.30 p.m. the appellant was recalled to the meeting and informed of the results of the adjudication. On a number of grounds the appellant had been found guilty and dismissed from office. On others, including grounds relied upon previously, he was found not guilty. At the hearing before Northrop J. each of the nine respondents who adjudicated was called to give evidence and was cross- examined as to prejudice against the appellant and whether or not the hearing was approached with an open mind. His Honour was satisfied that each of the nine respondents "to the extent of his or her capabilities 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 . ..". His Honour found specifically that the appellant had not established that the members of the Committee who heard and determined the charges against the appellant were so biased as to vitiate the decisions made. A submission, that the time for determining whether bias existed or not was at the time the meeting commenced, was rejected and His Honour expressed the view that the whole of the proceedings must be considered. As to a submission that answers given to cross-examination of the committee members indicated that a "reverse onus" may have been applied by some, His Honour stated that it introduced "a degree of subtleness which is undesirable in matters of this kind", Tuking the analogy of a jury which could not be cross-examined His -~10- Honour said "the particular thought process of individual members of the committee should not be allowed to be used to challenge decisions made which have been arrived at by applying procedures which are fair and reasonable". As to a submission that natural justice was denied in failing to allow Mr Romanin to represent the appellant, His Honour pointed out that the appellant held office which placed him in an advantageous position with respect to other members of the Committee. In other words His Honour took the view that the appellant in the proceedings was well able to look after himself and that the refusal to allow representation did not invalidate the decisions. In view of the arguments formulated by Counsel for the appellant it is desirable to make some general observations as to the application of rules requiring adherence to the principles of natural justice by tribunals generally. FPairstly, there is a different approach, depending upon whether the tribunal hearing the charges 1s statutory or consensual in origin. In broad ' terms a more stringent test is applied to the former than to the latter. To the statutory tribunal the law apolies a test based on the appearance of fairness; a reasonable suspicion of unfairness generated in an assumed informed observer is sufficient to nullify the proceedings. In the case of the consensual tribunal the reality 1s considered; the question is whether in all the circumstances natural justice was done, There are of course differing standards of natural justice to be applied in the case of different types of each type of tribunal. fll ~lLi- The relevant authorities on this field of the law have been usefully reviewed, and, in our view, accurately expounded in the New South Wales Court of Appeal in Maloney v_ New South Wales National Coursing Association Limited (19738)1 N.S.W.L.R. 161 In the leading judgment Glass J.A. illustrates the difference of approach to a consensual tribunal by quoting Dixon J. an Australian Workers Union v. Bowen (No.2) 77 C.L.R. 601 at pages 628, 630 and 631 of that report. Those passages are as follows: "It is important to keep steadily in mind that we are dealing with a domestic forum acting under rules resting upon a consensual basis. ' "The last matter relied upon as invalidating the decisions 2s of a more serious kind. It 1s that the Executive and Dougherty were both prosecutors and judges and animated by such intensity of feeling that they were disqualified by bias. So far as this contention 1s based upon the fact that the Executive Council promoted the charges and that they were vitally concerned in the controversy not only as members of the union but as office~bearers whose authority had been resisted, there is in my opinion no substance 1n it. The reason lies in the constitution of the union. In choosing as a domestic forum a governing body and in authorizing it to make inquiries and investigations of such a kind the rules necessarily bring about, 1f they do not actually contemplate, such a situation. Domestic tribunals are often constituted of persons who may, or ./12 -12~. even must, have taken some part in the matters concerning which they are called upon to exercise their quasi- judicial function. Nor do I think that 1t has been shown that any particular member, putting aside the general secretary, was disqualified by any interest or specific ground of bias attaching to him or to them all. But Dougherty appears to me to have assumed altogether a different position. "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 the prosecutor or one who 1s invincibly biassced 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 it: Dickason v. Edwards," Northrop J. expressed some concern as to the difficulty of applying the phrase "invincibly biassed" in applying Bowen's case to the facts before him. "Invincible" must in the circumstances mean a bias that is incapable of being remedied by reason or argument during the period up to the making of the tribunal's decasion. It could not mean that bias that was impossible of eradication at any time during the holder's lifetime,as that would be irrelevant to the decision in Bowen's case. In our view it 1s sufficient if the fanding -13- bod is that, on the probabilities, the bias continued at least until the adjudication is made. In many cases bias is inferred from previous conduct or a history of a relationship between contestants. Had not Northrop J. heard evidence from ali the committee who deliberated he may have inferred such bias from previous conduct. In our view he certainly was not precluded from finding that bias did not influence the decision of the committee. His Honour had a total view of the whole of the proceedings, heard all the participants, and had before him extremely full minutes of the meeting. It remains to deal with the arguments put for the appcllant. Counsel for the appellant put to the Court various arguments in which he selected a certain fact or facts from decided cases and sought thereby to produce a general proposition of law that natural justice had been denied when those facts existed and in this process ignored other relevant facts which contributed to the ruling that natural justice had been denied. For example Cleworth v. Barrow (1978) 20 F.L.R. 359 was relied upon as establishing the principle that invincible bias "includes the concept of prejudgment and a prior hearing of exactly the matters concerned at which a judgment of those facts is made as amounting to invincible bias and therefore disqualification". Cleworth's case was a decision after a first instance hearing in which the relevant facts were that pursuant to a rule allowing resolutions to be made by the - - .f/14 -14-— committee signing a resolution in terms without a formal meeting, three members signed a resolution supporting the suspension of the federal secretary and in that sense had pre-judged the issue of his guilt without hearing the federal secretary. At a subsequent meeting when the secretary was heard, the suspension resolution was confirmed and a suspension of three months imposed. A careful reading of the joint reasons for judgment makes it perfectly clear that the Court felt there was a prima facie case of bias within the terms of Bowen's case made out against three members of the Tribunal because of their pre-judgment. At the hearing those three members gave no-evidence at all to displace such a prima facie case except that one of them swore an affidavit which did not touch on that issue. In the absence of any evidence to the contrary the Court concluded that the continuation of the bias evidenced by signing the resolutions without hearing the secretary was an inference properly to be drawn. In other words Cleworth's case establishes no new principle; it is an application of the principles in Bowen's case to the facts before that Court. Counsel for the appellant also relied on the fact that the President Jenkins had signed the summons addressed to the appellant setting out the charges to be dealt with. The President Jenkins' explanation for signing the charges was to the effect that she thought she was the appropriate person to do so. Because she signed the charges counsel for the appellant argued that it was a principle of law that she was thereby disqualified from taking part in the hearing. » « 15 -15- Cr Reliance was placed on Dickason v. Edwards 10C.L.R. 243 to support this proposition. In that case the conduct complained of .consisted of personal abuse of a District Chief Ranger who was entitled to, but not bound, under the relevant rules to preside over the body which adjudicated. At Page 252 Graffith C.J. said of 'he Chief Ranger's position "if he is not merely a formal party but in substance an individual complaining of an offence against himself, then I think very different considerations apply. Then 1t becomes his own cause not in a technical sense but substantially. He is a person complaining of a grievance." The learned Chief Justice then went on to state that such circumstances vitiated the proceedings. It is, in our view, a far cry from the facts before Northrop J. Counsel for the appellant also relicd on Taylor v. National Union of Seamen (1967) 1 W.L.R. 532. That case turned upon considerations vastly different to those in the instant case. In the forefront of the finding that there was a denial of natural justice was the fact that the tribunal deliberating heard from the accuser a long statement in the plaintiff's absence about matters completely outside the charge against him,(such as that he had Communist associations), which affected the minds of the deliberating body. Rocbuck v. National Union of Mine Workers (1977) I.C.R. 573 was also referred to for the same purpose. In that case the actions of the President, whose presence on the tribunal deliborating, was not necessary according to the rules, and his conduct prior indicated strong animus against the person charged. At Page 587 Judge Rubin applied Bowen's case and at Page 589 1t was emphasized that » . ./16 -16- in the very document in which the President made the complaint he also expressed the view that the persons charged were guilty. No new principles emerge from these cases. They are decisions on the facts; denial of natural justice was found or inferred from proven facts. There is no absolute rule that denial must be found when the person laying charges adjudicates. There is no rule of law that a committee that has adjudicated guilt on issues cannot afford natural justice on a second hearing of the same issues; Ridge v. Baldwin (1964) A.c. 40. There are facts which lead inevitably to the conclusion that a fair hearing has not been had; where for example the accused is left an ignorance of the complaint against him or he is not allowed to be heard in answer; the audi alterum partem rule. For the appellant it was also argued that denial of representation (the exclusion of Mr Romanin), vitiated the proceedings. Lord Denning's judgment in Pett v. Greyhound Racing Association (1968) 2 W.L.R. 1471 at 1475 dealing with the right to representation of a greyhound trainer before a tribunal, the decision of which could result in his licence to train being lost, stated ". . . when a man's reputation or livelihood is at stake he not only has a right to speak by his own mouth. He also has the right to speak by counsel or solicitor". That statement was made in an appeal from interlocutory orders; when the matter finally came before Lyell J. (Pett v. Greyhound Racing Association (No.2) 1969 2 W.L.R. 1228, that view of the law was not applied. His Lordship referred (at Page 1237) to the fact that the Privy Council advice in University of Ceylon v. Fernando (1960) 1 W.L.R. 223 had not been cited to Lord -17- - Denning and his brethren. There a charge of cheating in an examination could have led to a student's being refused to sit for further examinations. The University refused permission for the student to cross-examine a witness whose statement in writing supported the charge. The Judicial Committee cited Russell v. The Duk, of Norfolk (1949) 1 Ail E.R. 109 per Tucker L.J. at p.108; " "There are, 1n my view, no words which have unive:sal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject~matter which is being dealt with, and so forth." As recently as 1973, in Stollery v. The Greyhound Racing Control Board (1973) 128 C.L.R. 509 Gibbs J., at p.526, quoted the latter sentence of that passage with approval, prefacing it by "The principles of natural justice are not rigid or technical." At p.517 of the same report Barwick C.J. said "What 1s required to satisfy these principles no doubt ' depends very largely on the matter in hand and the circumstances in which the hearing takes placc." . ./18 -18- i The appellant's capacity to look after himself before the committee in the matter under appeal was assessed by Northrop J. His finding is referred to above. His Honour's annproach was correct, Whether a deaf mute or a migrant with no English should have representation 1s a question that could have a different answer to the same question about Queen's Counsel. On the authorities there is no absolute right to representation even where livelihood is at stake. But that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal, may be such that refusal would offend natural justice principles In any event what was really sought at the meeting of 10 April, 1979 was only that Mr Romanin should be present as a witness observing the proceedings. The applicant intended that he himself would examine and cross-examine witnesses and address. We see nothing in the learned Trial Judge's decision on this point that calls for adverse comment. The content of the rules is to some extent prescribed by the Act and regulations made thereunder The statutory content does not touch upon the composition of committees: the choice of officers and committee members remains the province of the members of the Union, Therefore they remain tribunals with a consensual base as referred to in the above quotation from Sir Owen Dixon in Bowen's case. We reject a submission to the contrary made by the appellant's counsel. We emphasize, 1f emphasis be necessary, that we are not to be taken to be reducing the level of care, consideration and fairness that must characterize the hearing and adjudication of a trade union committee esnecially when exercising powers of dismissal of officers or expulsion. ~19- Some of the committee members hearing the charges against the appellant had personal ,.knowledge of the facts supporting the charge. This was utilized to support a further submission of denial of natural justice. Rule 24 of the branch rules provided that the branch secretary was under the supervision of the committee. In the domestic tribunal sphere natural justice 1s an implied term of the contract of membership. Terms cannot be implied where a contrary intention is expressed in the contract. If the committee is dutiful, in many cases, its members will necessarily become aware of or have personal knowledge of the conduct which forms the subject-matter of the charge. It follows that the implied term of natural justice is modified to the extent that if a quorum of the committee cannot be formed from members with no knowledge the members with | knowledge must proceed to deal with the charge. To hold otherwise would, for example, put a defalcating secretary in an impregnabie position if he confessed his misappropriation to the whole committee. That could not be the true intention of the parties to the contract of membership. Because of knowledge of the facts in the minds of some committee members it was submitted by appellant's counsel that, rather than proceed under Rule 40 of the branch rules, the federal body rule under which membership of the organization could be terminated should have been invoked. Statement of the submission is almost its own refutation. Putting aside the possible argument that conduct in the office of secretary as secretary 1s not conduct as a member and therefore outside the federal ruJe, branch rule 40 could be regarded as being breached by thut course. To 2. 6/20 ty -20-_ indirectly dismiss a secretary by terminating his membership of the Union would in our view be in breach of the branch rules. Rule 40 was used for the specific purpose for which it exists We doubt whether it would be a bona fide use of other rules to achieve indirectly that same purpose but that 1s not a matter necessary for our decision at this stage. It is not our intention to comment upon all the submissions made as to the effect of numerous decisions to which we were referred. We detect no errors in the approach of the learned Trial Judge. His Honour's reasons and conclusions are careful and compelling. Avrnellant's counsel also argued that the failure of the corm: ttee to consider a penalty other than that of dismissal amounted tn a denial of natural justice as did the farlure of the committee to hear the avpe!lant on the question of penalty after finding guilt. The minutes of the meeting reveal that the appellant was invited to be present during the deliberations of the committee when they retired to consider the matter but he declined thas invitation. Further, after the announcement of guilt on the first charges referred to, the appellant was invited to sneak but stated he had no comment to make. Dismissal was then announced. There was sore cross-examination of members of the committee apparently directed to establish in the witness a state of mind in which he did not consider the possibility of not dismissing the appellant. The two submissions referred to above were made to the learned trial judge and to a great extent they depend upon the view he tock of the -21- state of mind of the various committee members who were cross- examined on that matter. The evidence as to their state of 1nd is not at all clear as some of the questions were put on the basis as to whether or not the witness considered any penalty other than dismissal and clearly from Rule 49 no other penalty 1s available. We are not satisfied that tnere is any substance in either submission. The appeal is dismissed. IN THE FEDERAL COURT OF AUSTRALIA INDUSTRIAL DIVISION V. No. 25 of 1979 VICTORIA DISTRICT REGISTRY BETWEEN: DAVID JAMES CAINS Appeliant and . EILEEN JENKINS, CARLO FRIZZIERO, NICK PANNAGOPOULOS, GEORGE BISSTOTIS, MORGAN DAVIS, PAUL CCOPER, SHIRLEY SKIDMORE, ALFRED GEMPTON, ELSIE HTLL, BEVERLEY WEBBER, SHIRLEY BIRCH, KIM HAMMERLUND, BRIAN MOREL AND MEGAN CHALON Respondent Coram: J. B. Sweeney, St John & Keely JJ. 20 December 1979 REASONS FOR JUDGMENT KEELY J. I have had the advantage of reading the reasons for judgment of J. B. Sweeney and St John JJ. which set out in detail the material facts and the 1ssues arising in this appeal, I agree that this appeal should be dismissed and shall state shortly my reasons for so doing. Mr Tracey of counsel on behalf of the appellant stated that he did not submit that 1t was nct open to the committee to reach the conclusions that it did on the material which was before it. The matters referred to in grounds l, 2, 4, 6 and 7 of the grounds of appeal may Le broadly stated as a submission that the learned trial judge should have held that on the evidence before him the appellant had ectablished that scme or all of the members of the committee of management who heard and determined the charges against the appellant were "so biased as to vitiate their decisions thereon". in support of this submission Mr Tracey sougnt to place considerable reliance upon the decision in Cleworth v. Barrow & ors (1978) 20 A.L.-R. 359. In that case the Court, after stating that certain evidence showed prejudgment by three members of the committee, dealt with an argument "that there was in fact no prejudgment but that the resolution was merely a way of having an item placed on the agenda" and that those respondents were unbiased. The Court, in rejecting the argument referred to the absence of any evidence to support it, and said (at p.370): "No attempt, however, was made to lead evidence from them before us that they regarded their telegraphic vote as only placing an item on the agenda or that they had indeed applied themselves to giving a fair hearing to the applicant. Mr Brophy swore an affidavit but did not touch on this matter. He was placed in the witness-box, but no evidence was led from him or obtained in cross-examination. The other two members did not give evidence. In these circumstances we feel we are unable to depart from the terms of the telegrams and the replies and that these clearly show a judgment and considered opinion reached by the three members on the very matters they were required to inquire into and reach a decision about. We therefore think that there was a denial of natural justice in this aspect." The absence of evidence in support of the submission in Cleworth v. Barrow & ors (supra) may be contrasted with the present matter 1n which each of the nine respondents who participated in the deliberations of the committee gave evidence. In my view that decision does not assist the present appellant. I agree with the learned trial judge that on the evidence it has not been established that any member of the committee who heard and determined the charges against the claimant was so biased as to vitiate the decisions made. Mr Tracey contended that 1t was sufficient for the claimant to establish a reasonable apprehension of bias and placed some reliance upon the following sentence from the reasons for judgment in Cleworth vy. Barrow & ors (supra at p.371): "It would seem that 1t 1S no less important that justice be seen to be done than that it be done in the case of these organizations." That sentence was part of a passage dealing with an argument that "the claimant had waived his rights to have the rules cf natural justice applied" and in my view was not intended to convey that it was sufficient for a claimant under s.141 of the Act to establish a reasonable apprehension of bias. In my opinion where actual bias on the part of pe.sons sitting on a domestic tribunal has not been established, «a claimant under s.141 of the Conciliation and Arbitration Act 1904 (the Act) can not establish that he has been denied natural justice by showing only that fairminded persons might entertain a reasonable apprehension that members of the domestic tribunal would not act with unbiased minds. Mr Tracey submitted that the New South Wales Court of Arpeal's decision in Maloney v. New South Wales National Coursinc Association Ltd (1978) 1 N.S.W.L.R. 161 1s "both wrong and d_stinguishable". I reject the argument that the decision is wrong and adopt, as being equally applicable to the domestic tribunal the subject of the presenz appeal, what war 3.14 an Maloney's Case (supra) by Glass J.A. (with whem Horm and Wutley JJ.A4. agreed) who, after referring to the application ef the princaples of natural justice to ccurts and statutory tribunals, where the tribunal is not chosen by the parties, said (at pp.170-1) that: "the requirements of natural justice are 1n sone respects different where domestic tribunals are concerned. ... Domestic tribunals are usually established in circumstances which are radically different. The members, generally speaking, have agreed to abide by a set of rules and the authority of a committee to enforce them, if necessary by expulsion. The committee members cannot, in the nature of things, divest themselves of the manifold predilections and prejudices resulting from past associations with members. Apprehension of bias could be generated in all kinds of ways. If it was a disqualifying consideration, the enforcement of the consensual rules would be largely unworkable. There may be some circumstances where a suspicion of bias would operate to disqualify a member of a domestic tribunal. But generally speaking 1t does not so operate.... A domestic tribunal obliged by the general law to observe the minimum requirements of justice must give notice of the charge being preferred, extend an adequate opportunity to present a defence and concede all the other incidental safeguards of a fair trial which are covered by the audi alteram partem principle. ... But for reasons already given I am of opinion that suspected bias on the part of a member of a domestic tribunal such as the committes of the defendant association does not disqualify him, even if there be no rule which expressly, or by implication, so provides," In support of his submission that Maloney's Case (supra) as "distinguishable", Mr Tracey contended that trade unions registered under the Act "are in a very different category from the purely consensual domestic bodies" such as sporting clubs and social clubs. He put the contention on two bases. First he said that "In many cases it 1S a fact that membership of trade unions 1s at least in a de facto sense not voluntary". Jowever, in my view that suggestion 1s met by his concession that there was no evidence before the trial judge that any persons were forced to join the Federated Confectioners! ay Association (the union}. Secondly Mr Tracey relied on the fact that registration of the unzon under the Act confers corporate status, that both the Act and the regulations under it require the registered rules of the union to comply with deta1rled provisions and that those legislative requirements have increased significantly in recent years. However, those provisions of the Act and the regulations do not support the argument expressly and in my opinion they do not support it impliedly. There may be an implication to the contrary in that regulation 115(1)(d) requires that the union have rules for the election of officers and of a committee of management and of other bodics empowered to exercise functions of management and s.133(1)(f£) of the Act imposes certain requirements as to any rules of the union providing for the dismissal from office of a person elected to an office. Such rules will often result in the committee of management empowered to hear a charge being constituted by persons, some or all of whom will have some personai knowledge of, or even have played some part in, the matters to which the charges relate. I am not prepared to accept Mr Tracey's argument that Maloney's Case (supra) 1s distinguishable. Mr Tracey also contended that at the time of the judgment of the High Court in Australian Workers' Union v. Bowen (Io. 2) (1948) 77 C.L.R. 6GOl "the real likelthocd (of bias) tzst was in the ascendency but ... that 1s no longer the crse". However, I do not consider that any of the later cases citea haw brought about that result and in my opinion the following passages from Bowen's Case (supra), which were quoted by Glass J.A, 1n Maloney's Case (supra), still apply. Rich J. said at pp.618-9: "In considering the question whether the procesdings of the executive council of the union were carrie? out in accordance with the requirements of natural justice, the rule to be applied in this case 1s entirely @ifferent from that which is applied to judaes, magistrates or any person in a judicial capacity, where the tribunal 1s not chosen by the parties who are sending their disputes to be settled by it, but 1s a tribunal constituted apart from any agreement oer consent of the parties. Where the tribunal is not chosen by the parties, no doubt the rule is very strict. But where the parties choose their own tribunal the case 18 very different." Dixon J. (with whom Starke J. agreed) said at p.630: "In choosing as a domestic forum a governing body and an authorizing it to make inquiries and investigations of such a kind the rules necessarily bring about, if they do not actually contemplate, such a situation. Domestic tribunals are often constituted of persons who may, or even must, have taken some part 3n the matters concerning which they are called upon to exercise their quasi-judicial function," It was also argued that there had been a denial of natural justice in the way in which the committee decided upon the penalty. Having regard to the terms of Rule 40 and to the evidence of the conduct of the hearing, including the anvitation to the appellant to be present during the deliberations of the committee, I consider that his argument fails to support the contention that there was a denial of natural justice. Ground 5 of the grounds of appeal was that the learned trial judge should have held that the refusal of the committee of management to permit the appellant to be "represented" by one Romanin at the hearing of the charges constituted a denial of natural justice. However, 1n his evidence the appellant made it clear that he only wanted Mr Romanin to be present to advise him and to be an observer of the proceedings before the committee. He did not intend that Mr Roman1tn should examine or cross examine any witnesses or address the committee on his behalf. I agree with J. B. Sweeney and St John JJ. that there is no absolute right of representation by an agent, even where the livelihood of the person charged before the domestic tribunal is at stake. In the light of the nature of the charges and the experience of the appellant, I agree with the learned trial judge that the decision of the committee on this aspect did not constitute a denial of natural justice. Having regard to the opinion which I have expressed, I do not find at necessary to deal with the principle of necessity referred to in ground 3 of the grounds of appeal. Nor do I find it necessary to make any specific reference to the matters encompassed in ground 8. In my opinion, the appeal should be dismissed.