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[1999] FCA 1504
Federal Court of Australia
1999-11-03
Marshall J
Original judgment source is linked above.
THE COURT ORDERS THAT: The applicant be refused leave to amend the rule to show cause.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AND: P BAUER and OTHERS (as per attached schedule)
REASONS FOR JUDGMENT 1 The proceeding before the Court is an application by the applicant, Ms Adlam, pursuant to s209 of the Workplace Relations Act 1996 (Cth)("the Act") for orders for the performance and observance of the rules of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") by the respondents. Ms Adlam is a member of the Union and holds office as the South Australian Regional Secretary of the Technical and Supervisory Division of the Union. The respondents comprise, with the exception of Ms Adlam, the members of the South Australian State Council of the Union ("the State Council") and the National Council of the Union.
Background 2 On 24, 25 and 26 November 1998 the State Council met to consider a charge which had been laid by the National Secretary of the Union, Mr Cameron, against the Secretary of the South Australian Branch of the Union, Mr Noack, pursuant to rule 11 of the registered rules of the Union. 3 At all material times rule 11 provided as follows: "11 - REMOVAL OF NATIONAL OFFICIALS AND STATE REPRESENTATIVES ON NATIONAL COUNCIL
The invincible bias allegations 10 Paragraph 6 of Ms Adlam's affidavit raised allegations that three members of State Council who sat to hear and determine the charge against Mr Noack were invincibly biased in favour of Mr Noack and should not have participated in the State Council hearing. The three people against whom the invincible bias allegations were made were Mr Paul McMahon, Mr John Camillo and Mr Rod Parham. 11 At paragraph 6 of her affidavit of 15 December 1998 Ms Adlam described Messrs McMahon, Camillo and Parham as being "unshakeable supporters of Noack" and unable to "bring to bear an impartial consideration of the subject matter of the charges". 12 It was common ground between the parties for whom counsel appeared that if the Court formed the view any one member of State Council was invincibly biased and should not have sat to hear and determine the charge against Mr Noack, Ms Adlam would be entitled to some relief in her application, putting aside any discretionary considerations, in that the proceedings before the State Council would have miscarried. That common ground is soundly sourced in two judgments of the High Court of Australia. See Australian Workers Union v Bowen No 2 (1948) 77 CLR 601, 631 and Dickason v Edwards (1910) 10 CLR 243. 13 Relatively late in the proceedings the Court was invited by counsel for Ms Adlam to amend the rule to show cause to raise allegations concerning invincible bias on behalf of other members of the State Council who represented the Vehicle Division of the Union, apart from Mr McMahon and Mr Camillo. The Court will formally refuse leave for the rule to show cause to be so amended. It does so for the following reasons: · In the Court's view it is unnecessary to amend the rule to show cause. The Court has formed the opinion, based on the evidence before it on matters other than those the subject of the application for amendment, that Mr McMahon was invincibly biased and should not have participated in the hearing of the charge against Mr Noack.
· Additionally the Court is concerned that some of the respondents in respect of whom the new allegations were made may not have had sufficient time to adequately deal with the matters raised against them. 14 It also follows that it is unnecessary to deal with any submission concerning whether Mr Camillo or Mr Parham were invincibly biased and ought not to have participated in the hearing and determination of the charge against Mr Noack.
Paul McMahon 15 Mr McMahon is an organiser employed by the Union in its Vehicle Division's South Australian branch. He is a good friend, a political ally and strong supporter of Mr Noack in the Union. He has been so since 1988. Ms Adlam is a political opponent of Mr Noack and Mr McMahon in the Union. Mr McMahon and Ms Adlam first met in 1988. At that time Mr Noack and Ms Adlam were in a personal relationship. That relationship discontinued in January 1989. Ms Adlam gave evidence that at that time Mr McMahon began to be unfriendly towards her and expressed antipathy towards her both verbally and by his demeanour. When questioned by counsel for McMahon on that topic, Ms Adlam said: "I mean the things he would say - for example, that I represented the bosses' union or that I didn't represent many members anyway, those sorts of issues, some of the names he would call me at times or things that people would tell me; the way that he spoke about me at meetings. He clearly was not a friendly person." Ms Adlam was not challenged on that evidence. Ms Adlam's evidence on that aspect is consistent with Mr McMahon's evidence in an affidavit sworn by him on 10 June 1999 in which he referred to the "political differences" in the Union as having "heightened personal dislikes and disagreements between individual office-holders". 16 In his affidavit Mr McMahon said that when he attended State Council on 24 to 26 November 1998 he "was prepared to listen to all that was put to State Council and make a decision whether Noack was guilty of the charges or not in light of the evidence then produced." He added that, "[i]f I had been unable to bring a fair and unbiased mind to the Council meeting I would not have attended." For reasons which will become apparent the Court does not accept that evidence.
17 As mentioned earlier a central element of the charge concerned the incident between Ms Adlam and Mr Noack in 1996 which was the subject of the judgment of Judge Sulan. Under cross-examination by counsel for Ms Adlam, Mr McMahon related the discussions he had with Mr Camillo, another State Councillor, on that very issue. Mr McMahon said that he told Mr Camillo and that he "didn't think Paul was capable of doing something like that" and was "shocked by the decision of Judge Sulan". He added that, "just knowing Paul it was just very hard to believe that he would have done it". He further added, in answer to a question concerning whether Mr Noack was capable of that type of conduct that: "my knowledge of Paul is yes, he wouldn't do it. That's true. I couldn't believe Paul doing it."Counsel then asked: "That has always been your view hasn't it?" Mr McMahon replied: "Yes, it's always been my view but there has been the decision by Judge Sulan that found him guilty and of course that creates a little bit of a thought in your mind that it's a possibility that Paul could have done it but knowing the guy, I just couldn't find it, didn't find it possible." 18 Shortly afterwards Mr McMahon was cross-examined about a conversation he had with another State Councillor from the Vehicle Division, a Mr Gee, in or about September 1998 in which the issue, "what if we were wrong" was raised in relation to Judge Sulan's findings and Mr McMahon's view about them. Mr McMahon gave this evidence in an unconvincing manner. Mr Gee was not called to corroborate that evidence. I do not believe that any such conversation occurred. Mr McMahon went on to add that Judge Sulan's judgment had "a little bit of weight". Mr McMahon estimated that although highly improbable there was a 1 per cent chance that what Judge Sulan found to occur had in fact occurred. This stark evidence from Mr McMahon's own mouth demonstrates that he had pre-judged the issues which were contained in paragraphs (e) and (g) of the particulars of the charge. He should not have sat to hear and determine the charge. It is fanciful to contend to the contrary. Further cross-examination only served to confirm the point. At 421 of the transcript counsel for Ms Adlam put the following question to Mr McMahon: "The view that you had at that time, following reading Judge Sulan's decision, was still that you couldn't believe that he was capable of assaulting Ms Adlam. Isn't that right?" He replied: "The biggest part of me thought, yes, that's true." 19 It was submitted that Mr McMahon ought not to have sat on the State Council at the hearing of the charge against Mr Noack not merely because of his pre-determination of the matters raised at paragraphs (e) and (g) of the particulars of the charge but also because he had a pivotal role in the events that were the subject of the particulars set out at paragraph (b). Those particulars refer to Mr Noack's role in allegedly having Ms Brazil removed from her position as shop steward. Mr McMahon acknowledged under cross-examination that Judge Sulan found he was "a participant, at least indirectly in the motion to abolish Dorothy Brazil's position of shop steward" and that he"had influence in the decision to remove Brazil." Given those acknowledgments it was highly likely that any adverse finding against Mr Noack on particular (b) would also reflect adversely on Mr McMahon and his standing in the Union. Whether or not the allegation was true and whether or not Judge Sulan's findings on this issue were open is beside the point. The essential contention of Ms Adlam is that Mr McMahon was too close to the relevant events to come to them with an unprejudiced point of view. Given the Court's view concerning paragraphs (e) and (g) it is unnecessary to decide this issue. 20 The Court does not find it necessary to deal with any allegation that Mr McMahon may also have been invincibly biased in respect of the particulars at paragraph (d), having regard to the role he was alleged to have played in the preparation of the cartoon referred to in that paragraph. It has otherwise been established without doubt that Mr McMahon was invincibly biased in relation to the charge against Mr Noack and did not bring an impartial mind to bear in sitting on State Council to hear and determine the charge. 21 The submissions of counsel for Mr McMahon that Mr McMahon went to the November State Council meeting with an open mind are rejected. Counsel submitted that Mr McMahon was open to persuasion. The Court disagrees. Having observed Mr McMahon give evidence, there is no doubt that he was incapable of accepting that Mr Noack did not indecently assault Ms Adlam. 22 Counsel for Mr Noack submitted that pre-judgment of an issue does not disqualify a person sitting on a disciplinary body by reason of invincible bias. In support of that submission he referred to the judgment of J B Sweeney and St. John JJ in Cains v Jenkins (1979) 42 FLR 188. At 197 in Cains their Honours canvassed the possibility that someone who has adjudicated guilt on an issue can revisit that issue and offer natural justice on a second hearing. The situation on the facts of this case is different. On the evidence up to and including the hearing of the charge Mr McMahon's views as to Mr Noack's lack of propensity to indecently assault Ms Adlam persisted. Mr McMahon replied in the affirmative when asked by counsel for Ms Adlam whether his view that Mr Noack was incapable of assaulting Ms Adlam was in place at the time of Judge Sulan's judgment. He was then asked whether his view that Mr Noack was so incapable has remained the same since then. He answered: "There is definitely a part of me that thinks it was possible, [that the assault occurred] but not a big part."
23 The Court has no doubt that Mr McMahon went into the State Council meeting with a viewpoint that Mr Noack was incapable of indecently assaulting Ms Adlam and continued to hold that view whilst hearing and determining the charge against Mr Noack. It is trite to say that prior involvement in a controversy will not necessarily result in a person being held to be invincibly biased in respect of a matter arising out of that controversy. However Mr McMahon was not involved in the alleged indecent assault on Ms Adlam so this issue does not arise in any relevant sense. It is absurd to contend, as counsel for Mr Noack did, that one can prejudge the very matter one is required to bring an impartial mind to and somehow not be invincibly biased. It would appear that counsel for Mr Noack was seeking to emphasise the point made by Northrop J in Thompson v Hodder (1989) 31 IR 300, that (at 311):
"The mere fact that the members of the committee hearing the charges may have knowledge of the events giving rise to the charges does not, of itself, constitute actual bias."
24 The Court does not disagree with what was said by Northrop J in Thompson. However Mr McMahon had no particular knowledge of the events that gave rise to or comprised the alleged assault. His prejudgment of those issues is not defensible by reference to Thompson. Thompson concerned matters of competing political tactics within a branch of an organisation and dealt with matters concerning alleged criminal conduct.
Waiver 25 It having been accepted that the presence of a person who should not have sat on a disciplinary tribunal vitiates the decision of that tribunal it follows from the Court's findings concerning Mr McMahon that the proceedings of the State Council on 24-26 November 1998 miscarried. Counsel for various respondents contended however that Ms Adlam had waived her right to object to Mr McMahon sitting. The Court rejects that submission. It was only Mr McMahon who was able to properly form the view concerning whether he should or should not sit. He sat whilst holding a view about Mr Noack's innocence in respect of the particulars of the charge set out at paragraphs (e) and (g). There is nothing Ms Adlam could have done about that. It was for McMahon alone to determine whether he would do the right thing and stand down or remain mute and inappropriately sit on the Council at the hearing and determination of the charge.
26 In any event Mr Cameron was the prosecutor not Ms Adlam. She had no enforceable right to insist that any particular Councillor not sit. It always ultimately remained a matter for the individual Councillors. Consequently the Court is of the view that the issue of waiver is irrelevant to the question as to whether the State Council proceedings miscarried.
Further conduct of the proceeding 27 It was generally agreed between counsel that should the Court determine that proceedings at the Special State Council meeting had miscarried the Court should do no more than make that finding and explain why it has done so in its reasons for judgment and otherwise adjourn the proceeding to enable the parties to address the Court further on two issues. Those issues are: 1. Whether the Court should refrain from making any order in the exercise of its discretion under s209(3) of the Act or in the exercise of its residual discretion; and,
Order The Court will give formal effect to its view that the application to amend the rule to show cause be dismissed and will order accordingly. It will now deal with any submission any party wishes to make concerning the further conduct of the proceeding. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Counsel for the Applicant: Mr S Howells
Solicitor for the Applicant: Lieschke & Weatherill
Counsel for the 2nd, 3rd, 4th, 6th, 8th, 13th, 14th, 20th, 21st, 24th, 26th, 28th, 31st, 32nd, 34th, 35th, 38th, 41st, 43rd, 44th, 45th, 47th, 48th, 49th, 50th, 51st, 52nd, 55th, 56th, 57th, 60th, 61st, 62nd and 65th Respondents: Mr J H Pearce
Solicitor for the abovementioned Respondents: Taylor & Scott
Counsel for the 5th, 7th, 11th, 15th, 16th (only on the application to amend the rule to show cause) Respondents: Mr T Bourne
Solicitor for the abovementioned Respondents: Stanley and Partners
Counsel for the 10th Respondent: Mr F Di Fazio
Solicitor for the abovementioned Respondent: Maloney and Partners
Date of Hearing: 21-25 June 1999 inclusive and 7- 10 September 1999 inclusive
Date of Judgment: 3 November 1999
Adlam
Bauer
(1948) 77 CLR 601
(1979) 42 FLR 188
(1989) 31 IR 300
(1910) 10 CLR 243