FEDERAL COURT OF AUSTRALIA IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG141 of 1998 BETWEEN: CAROLYN JENNIFER ADLAM Applicant AND: P. BAUER AND OTHERS Respondents JUDGE: VON DOUSSA J DATE OF ORDER: 22 DECEMBER 1998 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SG141 of 1998 BETWEEN: CAROLYN JENNIFER ADLAM Applicant AND: P. BAUER AND OTHERS Respondents JUDGE: VON DOUSSA J DATE: 22 DECEMBER 1998 PLACE: ADELAIDE REASONS FOR JUDGMENT This is an application for a rule to show cause under s 209 of the Workplace Relations Act 1996 (Cth). The rule sought seeks to challenge the validity of the outcome of the hearing by the State Council of the South Australian Branch of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union) of charges brought against Mr Noack under Rule 11 of the organisation's Rules. There were seven charges. One of them was withdrawn during the course of the hearing. Six were determined by the State Council. Rule 11 relevantly provides that by a two-thirds majority of votes taken at a meeting, in this case of the State Council, the Council may by resolution decide that an official of the Union named in the resolution has been found guilty of gross misbehaviour and may remove that person from office. The outcome of the six charges was that by a simple majority the facts alleged were found to be established, and in five of the six charges by a simple majority the Council found that Mr Noack had been guilty of gross misbehaviour. On the sixth charge there was a tied vote on the question of whether the facts alleged would constitute gross misbehaviour. It will be noted that in not one of the charges was there a decision by a two-thirds majority. The charges, without going through them one by one, included a charge that Mr Noack had indecently assaulted Ms Adlam at the Union offices and had been guilty of acts of harassment of Ms Adlam. Ms Adlam is now the applicant for the rule to show cause. She is dissatisfied with the outcome of the proceedings before the State Council and is seeking relief in one form or another which would lead to the imposition of a penalty upon Mr Noack, and his removal from office,. The application for a rule to show cause was in the first instance brought before me with a request that it be heard ex parte. That occurred on 9 December 1998. I directed that it be heard after notice to Mr Cameron, who is the National Secretary of the Union and who was the prosecutor of the charges, and to Mr Noack. The proceedings have been brought to the notice of those parties. The matter has come on today with each party represented by counsel. The proposed respondents to the rule to show cause are sixty-seven people who comprise the members of the State Council and the National Council of the Union. An application was made at the outset of the hearing today to have the matter adjourned. The application for an adjournment was refused for reasons that I delivered at the time. In my opinion this is a matter of considerable importance to the membership of the Union, and the personal convenience of the individuals who are involved at the centre of the dispute must give way to the wider public interest. In my opinion it is important that the application for a rule to show cause be determined today so that the parties and the members of the Union know the position. The affidavit in support of the application raises a number of grounds which are said in one way or another to vitiate the decision reached by the State Council. It is not appropriate on an application for a rule to show cause for the Court to investigate at length the facts asserted by the applicant nor to make any findings of fact. Indeed on disputed factual questions probably the less said the better unless the application for the rule to show cause is to be refused. In what follows in relation to paragraph 6 of the affidavit in support I do not seek to express any final view on the facts and I direct my attention purely to the nature of the allegations that are made for the purposes of considering whether those allegations could support some form of relief as sought in the application for the rule to show cause. Let me express my conclusion first and then give some reasons for it. In my opinion the matters raised in paragraph 6 of Ms Adlam's affidavit in support, if borne out at a full trial, could justify an order setting aside the decision of the State Council. I acknowledge that whether such an order would be made at the end of the day would involve the exercise of a discretion and there may also be an issue of waiver to be explored which could bar any relief. I shall come back to paragraph 6 in a moment. Let me briefly dispose of other grounds which are also raised. Paragraph 3 of the affidavit alleges that Ms Adlam was denied representation at the hearing of the charges against Mr Noack which occurred on 24, 25 and 26 November 1998. In my opinion there is no substance in the allegations that are made in that paragraph and there is no prospect that a trial on those issues could lead to any relief of the kind sought. Accordingly, it would not be appropriate to grant an order nisi based on those grounds. The information given by Mr Cameron in his affidavit identifies a number of passages in documents that were available to all parties including Ms Adlam in advance of the hearing which indicate that she was not denied the representation which someone in her position could expect in a domestic hearing of this kind. The documents indicate that should she wish to avail herself of the opportunity she could be present in person or by counsel to hear and observe what was happening and if necessary to ask questions about witnesses who sought to give information on new material that had not been explored in the trial of another matter before Judge Sulan in the District Court. Paragraph 4 of the affidavit complains that Ms Adlam was not allowed a substitute at the hearing. Ms Adlam is in her own right a member of the State Council. There is provision in the Rules that in certain circumstances, including temporary ill health, a Council member unable to attend a meeting of Council is entitled to have or to nominate a substitute. Indeed Ms Adlam in her supporting affidavit indicates that she had done so at another State Council meeting held on 7 October 1998. In my opinion, however, there is nothing arising out of the complaint that she makes that would assist her in this case. The plain fact is that both she and Mr Noack, both persons ordinarily entitled to sit on the State Council and to vote, were disqualified by interest in the particular matter that was before the Council on 24, 25 and 26 November 1998. Being disqualified, in my view, Ms Adlam was not – neither was Mr Noack – entitled to have a substitute. As it turned out, neither of them was granted a substitute and in my opinion there is no cause now for Ms Adlam to complain about what happened. Paragraph 5 is associated with paragraph 4 of the supporting affidavit. Paragraph 6 I consider sufficiently makes out a case justifying an order nisi. It asserts invincible bias on the part of three people sitting on the Council. I will come back to that. Paragraph 7 makes very general allegations that with few exceptions the bulk of the delegates sitting on the State Council were politically committed to Mr Noack. By reference to paragraph 4 of the application for a order nisi it is possible to identify a number of people which it is asserted were so committed to Mr Noack. In my opinion the vagueness and lack of particularity in paragraph 7 and the generality of the allegations, such as they are, are not sufficient to justify the grant of an order nisi directed to the apparent bias or actual bias of any of the members of the Council, other than those who are otherwise identified in paragraph 6. Paragraph 8 of the affidavit in support raises complaints about the voting procedures. As I indicated in the course of argument, I consider those complaints are misconceived. What Rule 11 requires by its terms is a two-thirds majority vote that the person charged has been guilty of a gross misbehaviour. In the present case there was no two-thirds majority voting in favour of the proposition either taken in two parts as occurred in the voting sheet, or as a composite concept. That being the case, the argument that was sought to be advanced today in my opinion fails at the outset simply because there was not a two-thirds majority in favour of a finding on the facts upon which the charges were based. So the next question of whether upon the asserted facts it would be appropriate to characterise the conduct charged as gross misconduct does not arise. In short, the only information which I think justifies the order nisi is in paragraph 6. That asserts invincible bias within the notions described in Australian Workers Union & Ors v Bowen [No.2] (1947) 77 CLR 601 and cases that have followed it. The allegations of invincible bias put forward in the affidavit are, to adopt the language of counsel for Mr Cameron and Mr Noack, very thin. Indeed part of it is hearsay and in some respects it is put forward in an argumentative way. If this were the trial of the action the evidence in the affidavit in support of those matters would probably not be admissible and certainly would be entitled to little weight. However, this is not the trial. The purpose of the affidavit is rather to identify whether there are grounds upon which the argument can be reasonably asserted. Taking the allegations at face value and without passing any comment about their veracity it seems to me that the matters raised, or at least some of them, would leave the inference of invincible bias open. In my opinion the proper course is to grant an order nisi limited to paragraph 6 of the supporting affidavit and give directions requiring that affidavits in an admissible form be filed within a reasonable time by Ms Adlam to support the allegations made in paragraph 6. It must be understood by Ms Adlam that she seeks to raise a very serious matter. Correspondingly the evidence that she advances in support of it must be admissible and must be in proper form. Further, it must be understood that when the matter next comes before the Court, and indeed as it proceeds to trial, the Court will hold Ms Adlam to the matters of fact which are asserted; that is the affidavits will operate as pleadings. It is most important in a case like this, where serious allegations are made, that precise allegations of fact be made and be properly supported by witness statements so that those affected have an opportunity to deal with the allegations, and so that the Court in turn has the opportunity without undue delay to come directly to the points that need to be decided. There is one other issue. The respondents to this application, and in particular Mr Noack, assert that the discretion which the Court undoubtedly has in deciding whether or not a rule to show cause should issue should be exercised against Ms Adlam because she waived her entitlement to complain about the constitution of the Council and the fact that there were people on the Council who may have been invincibly biased. In my opinion the question of waiver is an open one but at this stage the factual material simply does not raise a reasonable ground for saying that Ms Adlam is likely to be held to have waived the rights that she asserts. It must be remembered that she was not the party charged. She was not a participant in the hearing. She was entitled to assume, at least prima facie, that people who were invincibly biased would disqualify themselves from sitting on the hearing. As she was not there, it seems to me anything but plain that she would be held to have waived the rights that she now seeks to assert, assuming that she otherwise establishes the facts upon which she relies. It would also be necessary to know why Ms Adlam did not take action earlier if it is found that one or more of the people about whom she complains was invincibly biased. Those are issues that have not been explored and it seems to me that, whilst they may be matters for trial, they are not grounds which at this stage would justify an exercise of the discretion against making the order nisi. For these reasons I am of the opinion that there should be a rule to show cause limited to the grounds alleged in paragraph 6 of the affidavit. I have not discussed the actual terms of the rule to show cause, although they have been a matter of debate. Subject to anything that the parties now wish to say, it seems to me that the rule to show cause should have two paragraphs in it: the first in terms of paragraph 1 of the application. The second should be in the terms of paragraph 2 of the application but have added to it the following words: "…or give such other direction as appears appropriate to ensure the proper performance of the Rules." That would then be wide enough to allow directions to be made, if the Court gets to that point, to accommodate the arguments that have been advanced today about the proper construction of Rule 11. It may well be that the Rule requires that the matter goes to the State Conference rather than to a National body if the State Council for any reason cannot determine the matter. I pass no view on that. I will now hear the parties as to the terms of the order nisi. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa Associate: Dated: 22 December 1998 Counsel for the Applicant: Mr J W Weatherill Solicitors for the Applicant: Lieschke & Weatherill Counsel for the 10th Respondent: Mr F Di Fazio Solicitors for the 10th Respondent: Moloney & Partners Counsel for the 41st Respondent: Mr J H Pearce Solicitors for the 41st Respondent Taylor & Scott Date of Hearing: 22 December 1998 Date of Judgment: 22 December 1998