FEDERAL COURT OF AUSTRALIA Dodd v Johnston [1999] FCA 496 INDUSTRIAL LAW – Registered organisation - rules – interlocutory relief - applicant made liable to be dismissed from certain offices held in organisation - whether appropriate for domestic tribunal which initially heard and determined charges levelled against the applicant to rehear and determine the charges - bias - whether reasonable apprehension of bias on the part of various members of the tribunal or invincible bias required to vitiate earlier proceeding - whether fair hearing - whether denial of legal representation to the applicant vitiates earlier proceeding - effect of rule changes - whether process already engaged in by domestic tribunal invalid WORDS & PHRASES – "invincible bias" Workplace Relations Act 1996 (Cth) s 209 Cains v Jenkins (1979) 42 FLR 188, applied Joyce v Christoffersen (1990) 26 FCR 261, considered Thompson v Hodder (1989) 31 IR 300, considered Thompson v Ecob (1989) 31 IR 313, followed Walker v McLeod (1984) 7 IR 94, considered Baird v Kingham (1993) 51 IR 264, referred to STEPHEN WILLIAM JAMES DODD v C JOHNSTON AND OTHERS VG 643 OF 1998 MARSHALL J MELBOURNE 15 MARCH 1999 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 643 OF 1998 BETWEEN: STEPHEN WILLIAM JAMES DODD Applicant AND: C JOHNSTON, J OBORN, J O'NEILL, T RAFFERTY, A RAWLINSON F REW, G ROBERTS, R SIMPSON S SKELTON, D SMITH, P SMITH, B STEWART, R WINGROVE, J SPEIGHT, S PINWILL, F FAIRLEY, P GIBBONS, T RYAN, E SNELL, G LARKIN, G TIERNEY, M ADDISON, H DAVIS, K ELLIOTT, L PHELAN, M RATTIGAN, V THEUMA, P WISNIEWSKI, S BELL, A BROWN, M CASSAR, Z CURAK, J DALE, M DELARUE, A DIAS, L FARRUGIA, C KUHLE, M LIGHT, M LLERENA, S McGRATH, B PETERS, J SUTCLIFFE, G THOMPSON, J VERNER, S ANEVSKI, R BIETSEEN, C FRIZZIERO, M BOLAND, M BROWN, K DAVIS, B HIGGINS, R MORRIS, J REID, B SMIDDY, S PINWELL, N ROBERTSON, L DE KAUWE, E ELSHOMOUNY, R GARDNER, N LONG, C MARMARA, A MAYNE, V PEPI and M LIGHT Respondents JUDGE: MARSHALL J DATE OF ORDER: 15 MARCH 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The rule to show cause be amended in terms of the draft document submitted by the applicant. 2. Until 4.30 pm on 29 March 1999 or further order, the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union refrain from hearing and determining the charges brought by Mr Johnston against the applicant, which charges were intended to be heard and determined at a Special State Council meeting on 17 March 1999 commencing at 9 am. 3. The directions hearing in this matter be adjourned to 10.15 am on 29 March 1999. 4. Liberty to apply be reserved to any party on not less than 24 hours written notice to each other party. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 643 OF 1998 BETWEEN: STEPHEN WILLIAM JAMES DODD Applicant AND: C JOHNSTON, J OBORN, J O'NEILL, T RAFFERTY, A RAWLINSON F REW, G ROBERTS, R SIMPSON S SKELTON, D SMITH, P SMITH, B STEWART, R WINGROVE, J SPEIGHT, S PINWILL, F FAIRLEY, P GIBBONS, T RYAN, E SNELL, G LARKIN, G TIERNEY, M ADDISON, H DAVIS, K ELLIOTT, L PHELAN, M RATTIGAN, V THEUMA, P WISNIEWSKI, S BELL, A BROWN, M CASSAR, Z CURAK, J DALE, M DELARUE, A DIAS, L FARRUGIA, C KUHLE, M LIGHT, M LLERENA, S McGRATH, B PETERS, J SUTCLIFFE, G THOMPSON, J VERNER, S ANEVSKI, R BIETSEEN, C FRIZZIERO, M BOLAND, M BROWN, K DAVIS, B HIGGINS, R MORRIS, J REID, B SMIDDY, S PINWELL, N ROBERTSON, L DE KAUWE, E ELSHOMOUNY, R GARDNER, N LONG, C MARMARA, A MAYNE, V PEPI and M LIGHT Respondents JUDGE: MARSHALL J DATE: 15 MARCH 1999 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 24 November 1998 the Court granted a rule to show cause in this matter which called upon the respondents, who substantially comprised the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the organisation"), to show cause why an order should not be made in the following terms: "By treating as null and void the resolutions of the Union's State Council, made on 6 November 1998 to the following effect: (a) That legal representation of Steve Dodd be excluded from State Council; (b) That Steve Dodd is guilty of the charges laid by Craig Johnston (c) That Steve Dodd be removed from the offices referred to in paragraph 2 of the Particulars of Charges signed by Craig Johnston." 2 The applicant, Mr Dodd, holds various offices in the organisation. His position as an office holder was challenged by virtue of charges brought against him by the first named respondent, Mr Johnston. Those charges were heard and determined by the State Council of the organisation on 6 November 1998. Mr Dodd was found guilty of certain charges and consequently was made liable to dismissal from certain offices held by him in the organisation. 3 The rule to show cause was made returnable on 26 November 1998. On that day, Mr Fairley, the State Secretary of the organisation and a respondent in this matter, gave evidence by way of affidavit that he would seek to re-open the hearing of the charges against Mr Dodd. This declared intention on Mr Fairley's part was made in responseto certain complaints made by Mr Dodd regarding the conduct of the meeting which led to the resolution for his dismissal from certain offices. It is pertinent to note that although reference is made to Mr Dodd's "dismissal" in the context of the resolution and under the rules of the organisation as they applied at the time his dismissal was not operative pending further action by the State Council of the organisation. Such further action has not yet occurred. 4 On 9 March 1999 a directions hearing took place in respect to this application. The applicant there foreshadowed his intention to seek to amend the rule to show cause by adding the following paragraph in these terms: "By treating as null and void that part of the resolution of the Union's State Council made on 10 February 1999 to the following effect: "State Council determines the charges brought by Brother Craig Johnston against Brother Steve Dodd will be reheard and determined at a Special State Council meeting on 17 March 1999, commencing at 9 am."" 5 The applicant pressed this morning for the amendment of the rule to show cause and for interlocutory relief preventing the Special State Council meeting on 17 March 1999 from considering the rehearing and determination of the charges. The charges which were dealt with on 6 November 1998 were the subject of a State Council resolution on 16 December 1998 to rehear the charges made against Mr Dodd at a Special State Council meeting on 17 February 1999. On 10 February 1999 the date of the rehearing was amended to 17 March 1999. 6 By his application to amend the rule to show cause and his application for interlocutory relief Mr Dodd seeks to prevent the Special State Council meeting of 17 March 1999 from dealing with any charges raised against him. Mr White, of counsel, who appeared for Mr Dodd, raised various arguments as to why the meeting should not go ahead on 17 March 1999. Mr White alleged that there was bias held by the members of the State Council against Mr Dodd. This, he submitted, is most significantly evidenced by the fact that the Council has already determined the guilt of Mr Dodd in respect of the very charges that it would reconsider. Reference was also made to "political animosity" between Mr Dodd and the majority of the members of the State Council. 7 Mr White also submitted that Mr Dodd had been denied a fair hearing on 6 November 1998. He submitted that the factors affecting his ability to receive a fair hearing at that time would remain alive during the proposed 17 March 1999 hearing and were still relevant. One factor, for example, was the question of the denial of legal representation on 6 November 1998. During the course of his submissions Mr White also referred the Court to the fact that on 2 March 1999 a whole new scheme for the charging of officers under the rules had been inserted into the rules of the organisation. 8 Mr Bromberg, of counsel, appeared for most of the respondents. He contended that the State Council as a domestic tribunal can only be considered biased if actual bias is proved. He submitted that evidence of some members of the State Council being of a different political persuasion to Mr Dodd is insufficient to show actual or invincible bias. Mr Bromberg put in dispute allegations about certain previous conduct alleged by Mr Dodd against Mr Fairley and Mr Johnston. He also put in issue the question as to whether a denial of legal representation to Mr Dodd vitiates the earlier proceedings. 9 In any event, Mr Bromberg submitted that as the findings of guilty consequent upon the hearing of 6 November 1998 are effectively without any operation as a result of the decision to rehear and determine the charges, any matters in relation to which Mr Dodd may wish to be heard at State Council can be put forward by him at the State Council meeting due to be held at 9 am on 17 March 1999. He submitted that Mr Dodd can then be heard in full on any matter he wishes to raise relating to the charges laid against him. 10 Putting to one side the question of the effect of the rule change which took place on 2 March 1999, there is much force in Mr Bromberg's submissions in many respects. For example, it is clear that the test for determining whether bias exists in a domestic tribunal is a high one. Invincible bias, as distinct from a reasonable apprehension of bias, must be shown. Invincible bias means: "… a bias that is incapable of being remedied by reason or argument during the period up to the making of the tribunal's decision." 11 See Cains v Jenkins (1979) 42 FLR 188 at 195, per J.B. Sweeney and St John JJ. See also Joyce v Christoffersen (1990) 26 FCR 261 at 292 and Thompson v Hodder (1989) 31 IR 300 at 311. 12 As is clear from the judgment of O'Loughlin J in Thompson v Ecob (1989) 31 IR 313 (at 314, 315) a lack of common political ideology is insufficient to make out invincible bias in the absence of demonstrated personal animosity against the person charged by a member of the domestic tribunal. All that is clear on the current evidence before the Court is that Mr Dodd is aligned to a different group to that which Mr Johnston and Mr Fairley, his main political protagonists, are politically aligned. 13 The existence of any personal animosity has not been demonstrated on the evidence so far. Further, as Mr Bromberg submits, simply because the members of State Council have had a prior involvement in the controversy it does not follow that they cannot sit to rehear charges. There is a possibility in the circumstances that another organ of the union is empowered to hear the charges depending on what view one takes of the effect of the rule amendments made on 2 March 1999. It may be possible that a federal committee or council can hear and determine the charges if necessary. So no question of the doctrine of necessity therefore arises, nor did Mr Bromberg seek to rely upon it. 14 The question that does concern the Court at the moment is the question as to the effect of the rule changes of 2 March 1999. In Walker v McLeod (1984) 7 IR at 94, Beaumont J (at 102) found it unnecessary to deal with an issue as to whether a new rule dealing with removal of officers was exhaustive and covered the field in respect of disciplinary proceedings, such that earlier steps taken under an old rule that once applied to such questions were vitiated. His Honour held that the question did not arise because the relevant business in question before him didn't commence until a time after which the rule changes had taken effect. His Honour did however imply that there may have been something in the argument of the respondents worth considering as to the effect of the rule changes on the previous process that had commenced under the old rules. 15 In matters involving s 209 of the Workplace Relations Act (1996) (Cth), especially when one considers the question of interlocutory relief, as Heerey J said in Baird v Kingham (1993) 51 IR 264 (at 264): "The Court has to make a decision which is the fairest and most convenient temporary arrangement, pending a full trial of the proceeding." 16 In this matter, but for the question of the rule change which occurred on 2 March 1999, the Court would have been minded to permit the meeting to occur. On the arguments before it, although not full arguments, the Court is not satisfied that questions of invincible bias have been made out and is also not satisfied, had the State Council had the opportunity to do so, that it may have provided natural justice on a rehearing to the applicant. The possibility of such a matter occurring in the absence of invincible bias was alluded to by the Full Court in Cains, as Mr Bromberg pointed out. 17 However, in the current circumstances there is a real question for the Court as to whether the process that commenced with the laying of the charges, which the State Council intends to rehear and determine, is invalid in the sense that the new rules may have overtaken the old. The Court is concerned that it not put the applicant in a position where he has to confront a charging process which might ultimately prove to be invalid. 18 If that is the case, what is intended to occur on 17 March 1999 and what the Court would otherwise have been minded to let happen, but for the rule changes, may prove to be a waste of everybody's time and effort. No submission was put forward by Mr Bromberg to support any basis for any urgency in the hearing of the charges by State Council on 17 March 1999. If the Court grants interlocutory relief and amends the rule to show cause preventing the meeting occurring on 17 March 1999, but also grants liberty to apply at very short notice so that any party which seeks to have any matter in the application reagitated or agitated in the light of new developments, then that would be a preferable course. 19 Such a course enables the State Council to take legal advice regarding what Mr Bromberg conceded, in effect, was an argument that didn't arise plainly from Mr White's outline of argument and which, especially having regard to Walker, is a matter that requires further consideration. Those advising Mr Bromberg's clients should give such further consideration to this question. The organisation itself should similarly consider this issue and have the opportunity to intervene in any further proceedings, should it be so minded, given that the interpretation of its rules may be a relevant and perhaps decisive question in the ultimate determination of issues regarding the present matter before this Court. The Court makes the following orders: 1. The rule to show cause be amended in terms of the draft document submitted by the applicant. 2. Until 4.30 pm on 29 March 1999 or further order, the State Council of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union refrain from hearing and determining the charges brought by Mr Johnston against the applicant, which charges were intended to be heard and determined at a Special State Council meeting on 17 March 1999 commencing at 9 am. 3. The directions hearing in this matter be adjourned to 10.15 am on 29 March 1999. 4. Liberty to apply be reserved to any party on not less than 24 hours written notice to each other party. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 15 March 1999 Counsel for the Applicant: Mr E White Solicitor the Applicant: Gill Kane and Brophy Counsel for the Respondents: Mr M Bromberg Solicitor for the Respondents: Maurice Blackburn and Co Date of Hearing: 15 March 1999 Date of Judgment: 15 March 1999 (ex-tempore as revised from the transcript)