Cains, David James v Jenkins, Eileen & Ors [1979] FCA 29

Federal Court of Australia|1979-04-11|Before: Northrop J, Northpop J

. EILEEN JENKINS, CARLO FRIZ2IDRO, NiCK PANNAGOPOULOS, GEORGE BISSIOTIS, MORGAN DAVIS, PAUL COOPER, SHIRLEY SKIDMORE, ALFRED GEMPTON, ELSIC HILL, BEVERLEY WEBSER, SHIRLEY BIRCH, KIM HAMMERLUYD, BRIAN MOREL & MECAN CKALON Respondents

Registered Organization - removal from office of branch secretary - powers of Committee of Management - natural justice - bias - refusal to allow representative of branch

ROL DA MEGAN Ch Respondents NORTHPOP J. REASONS FOR JUDGIUNT 26 June,1979.

The claimant, Cavid Jaras Cains, 1S the secretary of the Victorian Branch of the Tedereated Conftucr.oner. Associaticn of Australia (the Association), an organzsation under the Conciliation and Arbctration Act 1904, as arendei, (the Act). Each of tue respondents 1s a mearber of the association and thus 18 under an oblication to perform or observe the rules of the association. The respondents, together with the claimant, comprise the cormittee of Managemcnt of the Victorian Branch of the Association (the Victorian Branch), see branch rule 9. On 11 April 1979, the committee of managorent of the Victorian Branch (the Committac) in the exercise of powe.s conferred by branch rule 40, removed the claimant from his office of secretary. In these proceedings, the claimant, pursuant to s.141 of the Act, is 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 leyal effect, the decisions of the meeting

of the Committee held on 10 and 11 April 1979 so far as

"(a) Purported to refuse the request of the claimant that he be represented before such meeting by an agent Mr. Albert Romanin; and

(b) Furported to decide that the clainant waS Guilty of any char.e heard or purportedly heard by the seid neetirg."

It is necessary +o Set out the facets leading up to the Cecirsiors made at the meeting on 10 and 11 April. Under the rules of the Victorzen Brew, elections are held ampnually for each js 2latier ca the Committees aicept for the cfifice cf president, fur which o7f:ce an clection as beid bi-ennielily, and the offices of seerecary and assistant secretary, for which officcz ar agicction 1s raw helic every four years, branch xruies 12 and 12A, and avr2 conduct da persuant to the pro-1isiens conteines im prancn rule 123.

Under the branch rules a general reetirg of the branch us

held on the first Tuesday in the ronths of February, April,

June, August, October and December, the Deccrber meeting beinj

called the annual general meeting, branch tule 10, wnile

meetings of the Committec aro hola in the alfernate 'onths or

when called by the president and secretary, branch rule 10. Nominations for election to positicns on the Committee are called at a ganeral meeting and are to bo delivered to the

d returning o"ficer net later than 8 weeks prior to the date o

the anrual general "eating. Of necessily, pominations mu Gelivered to the returning efficer not later than a few days after the October yeneral meeting. The election 15 te be

conducted Ly sccret ballet of the financial wembers of tne

Victorian Brtonch. Tne result of the election 15 declared at

annual general meétire in Decevour and che successful candidates

held office uniil their successors have been duly electcd,

In the year 1978 elections were conducted for all of the positions on the Conmittee except these of secretary and assistant secretary. The term of office of the claimant did not expire until 1992, thus he was not

ET EE NT RE IE TTY RATER OIE TIT PTR TESTE EVER SEY IRE ER I PP REO 2

a candidate at tne 1976 elections. Onc of the grours to b= elected is Ceseribed in the branch rules as commiLltee cf management (4 males), branch rulc 9%. Eight candidates nominated for tnose four positions. Some of those candidates were then renbers of the Comucrce. Durirg the course of the eleetson the claim at authorised the publication and distribution of a circujar printed in four languages, ancluding English, the relevant part of which was as follews:-

v t anfluence and interference fron other Unions out of th ba

MORET, BRIAN PANNAGOPOULOS NICKY PEDDIE JAMES ROLERTSON PYERS NORMAN WESTWOOD SIDNIY

BALLOT OPENS 17th NOVE''BER BALLOT CLOSES 8th DECE?-SER

The carcular caused wieut corcern to a nuvher of persor: including some of the moanbers of the Lhen Ceamittee since it contained an implication that the persons not supported by

the claimant were either ccmmunists or under cornunist influcnee or were under the influences of other unlons, or possibly all three. In particular, the circular grcatly ups t the respondent Pannagopculos who, on first seeing the circulac and on the

spur of the moment, rang the assistant secretary, the responeent 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 corry out or attempt to carry out thet threat.

A meeting of the Committee held on 3 November 1978 passed the following resolution:

"This meetirg of the Bieecutive of the Federated Confccticnters' Union hc-ving heard the expleanution of the brzrec'

secretury regarding the lies anc distorticns contained 1n a circular to ferbers authorised by hiv in respect to the elect: for male representatives on our executive calls on the secretary to withdray the allegations of comnunisztic influences made against one or more of tne candidates ain that election and to publicaliy apotogise by sending a letter to evory mamser of the union who wo.ld have received a ballot paper in that election.

to divide the membershio cf the union by authorising a leaflet coitaining lies against loyal members of the unior who wish to exercise their democratic richt to run Fos an office within the szructure of the unzon.'

The respondents Paun-gopoulos, Jenkins, Frizsicro, Bissl1otis,

Davis, Skidmore, G~».pton, being menbers of the than Corm:tcee,

On 30 Rovwrber 1978, threa saparate charyss in writing vere Jaid against the clarnort. The farst charge was signed by five peisens, including the respondents Jenkins, Davis, Pannagopoulos, Bissiotis, and was as 'ollows:

"UNCONSTITUT&O" G& lui sTING O. f . AY,7978, LOC 40, GRALTS Ula,

We, the undersigned, charge under rule 40 the Secretary Jim Cains 'o2tn a breech of cules 24(a) (2), 24(b),9(b). Particulars of w'iice ove ay Je ons,

The Branch focretary conven. a Special Meeting of tne Cor: without the approval of the President 1.4 of Rule 24(a) (2).

The Branch Sceretiry failed to notify all members of the Committee of Manacesient and did fail to notify five members of tno Ceonmittee of Managerent of the meeting being held on 4 May, 1978 in defian of xule9(b).

That the meeting of the Commitee of Manegerant on 4 May, 1978 was unconstituticual and the menbers present were paid attendcrce money and/or expenses for this meectirg, contrary to the provisions of the constitution, rule 30."

The second cnarye vas sigi ed by five persons includirg the respondents Pannagopoulos, Gempton,

We, the und2rsigued, charyr under rule 40, the Secretary, Jim Cains witn a breach of rule 21.

The Branch Secretary sisned an industrial aqroenent with Cadbury-Sc.. ieppes Lid., Ring voad divasion, without consultation and/or wrtneut the approval of the members of the Ccimuittec of Management, contrary to rule 21.

The Branch Secretary did sign such agreement without the signature or approval of tne Beanch Tresiaucnt, contrary to rule 23."

The third charge was signed by the respondents Frizziero, Davis, Jenkins, Skidmore, Chalon,

Pappagorculos, Gempten and Bissictis and wes as follows: L a 'iL

We, the unders:gne!, cherge under rule 40, the Secretary

lL. A Specie? Committee of Managemunt meeting was held on 23 "eovember, 1978, in .ccerdinee with rule 11, at tne reynitse of the Brancn Secretary end Branen PrcSisertl, to diseu © a parphlet rssued by the Breiecu Seers lly to ors cneors of thea enivd in Vactoria jn VR ca felve elivd rrans wore pade ayanrse @nucket of candleates Stunde toe clacton to the Cerasittoo of haralemnt. 7 plisk etined that the cer iidates ver. unéer ccrwunisl raliutnee.

During the me2eting it was Rrembors of the Conrrttee

Branch Socleecry retig: Fis portion. VYhe vranch Secretar, chen eaarConed che rocviag by wallauc

cut Gespltc buirg roy,ulstred foe remoin et tre meeling,"

The results of the elections for the positions on the Conmittee were dectarcd at the annual general meeting in Dicemo2x 1978. Only cre of the e1yght candidates

for the position of mombe: of commitcce of managenen

(four males) who had the cupport of the clairant was s

candicatas being the respondents Cooper, Gorpton and Pannayopoulce'

"Yhat acter h ving co.%1. ered ites L, 24,2B,20,34,38,3C, this m-.cting or tae committe, of maragemers ef the Victorian brench of the Federutei Confeccionzsis'

accordance with rule 42 of the Victorian rules of the astec.ation."

In that resolution the refcrence to the numbered items are to the items contained in a notice of meeting and ieclate to

a number of matters involving the ciaimant, 1te1.5 3A,3B, and 3C being the three charges referred to earlier, All of the

respondents cxecpt HarmmerlLund voted in favour of the resolution.

Reletions Lurcau, a meeting of the Cou aittee held on 6

"Arising from the report by Mr, Prizzicro this wotiny xe i that posk of tha rotsron o of coumilies cf mr naceren concerning the visors Cains as secretery' of S

. Let orian branch and cons:cders J. Cains 1s suspended 10 accordéenee wrth Pule 38 of the breach of thea asseciation pending the hearing of charges that had been laid against him by members of the branch."

at least 14 days! notic2 of the time and oars of the reeting

of the Committ of Manacemeant Lo hich he 1s surwoned, "and tha notice summoning such person shall also snecify the ground or greunds upon nich it 15S plol,.oseda to consider such removal. The Committee of iManagement may proceed to hear and determine a matter under this rule notwithstanding the absence of the person sanm-oned 1f£ due notice of the hearing has bcen given ain accordance with this rule,"

Councel for the claimant Cid not subrit thet the Committee could not have found the clai.ant quilty of ' the charges laid against him an@ accordangly there is no ' need to inake specific reference t the particular crounds ' contained an the summons nor to the mereried uron Vuich the

The claimant sought and was given further particulurs of the crounds set out in the cumons. On 19 March 1979, the Federal Court, on the application oF the claimant, made orders that the respoudcats treat as null and void and of no ieysl effecr the resolutions set Out above aud passed poy the Cermittec on 31 January 1973 ard 6 Februvry 1972 respectively. Tne court ordered also that the respondents not proceed te hear and G2termine the

charees 372 fed in th: aumnons dat..d € February 1979 before 10 April 1879,

10 April 1579. All of the resnondents except H111l and Hamrerlunod vere in'attendance. The claimant, accompanicd by a Mr. Romanin, then an articled lav clerx but nov a barrister and solicitor of the Surpreve Court cf Victoria, attended at the mectingy. When the president, che respundeanr Jenkins, who under the branch rules was required to preside ac the reoeting, opened the reeting, Mr. Rovunin identified hinsel?t und said be was an agent. for the clainunt and 1.43 Present to coproscent the clarmant. Sore ne cbars of the

e SL Manas waAcnt question. 2 his risht to be The t:espondanc Jenkans read a statowent and then asked the mecting wanted Lo corsider whetuer Mr. Pomanin sho allowed to renzin. Tae cleinaut and Mr. Romarin refuend to leave when reyuesced and the rortong then revolved that they Jeave the mstire to cllow tre raeotirg to cons Mr. Romanzn snould bo ; ariattod to stay. Bofore leaving the meeting, Mr. Romanin ublained leave to read a prepared statement signed by the claimant. The stalement was an objection to the cespondents Frizziero, Davis, Jenkins, Skidmore, Chalon, Ponnagopoujos, Gempton and Bissiotis

Par tLicapeting ab cho mer ting siie Froy 'aed saue.n ther

to bo +o pi eyudtced avainrt the ciaiweipt as to ke

prejudice were given by reference to the particiv tion of

particsp. Lion in the conmattec of manayenuent moc' ing on

23 November 1978 and the: threst by the respondent Pannagcyouloc

"If the persons arsed remain at this INceting and purpert to participate in it 1 do not recognise the meeting as valid or as acting in good faith and

against ne I will arply to tae Federa? Court of Fuctralia for such relief 15 J may

so far as 1 understood such a Toanvivle toy perso 7 ce gener honestly Citnxs L.ave pein

doiuhiv presea -S O1 the prec MZEL LTS tT hay "gt a Fanti

A copy of the sSstatemant was he: dad to aceon of the respondents n

and statepent was handed t at the meeting. Again 2at

make spocific reference to The claimant and Mr. Ronan resolved not to permr1t mr. the meeting was beiryg cond returned £2 the mecting an Pussed. Mr. Romanin then

mene Contatning aS an anrexure @ being an anster to each of the y of the affidavit o cacn of the respondents preseit ais not necessary for tne court to tha arswors rade by the claimant. in left the "eeting. Tne mieking Rorunan to be in attcnJance whale ucted., Tne claimart and Nr. Ro.anin dvere anfornes of the rescluticy left saying .ords to the effect

The recrmondeny SIonokins raad cub agein the state roit she had earlier made. Previously she had alloted the clairant to obtain a copy of that statement. The state ont hud been prepared by the roovondenat Jonkins without ley:l assastance and ta bused om the ot perience she hed ot.catn77? as a menber of a yrry i3 a@ cravtins? trial at Melbour: 2 1n 1978 end also a3 a vesertt cf attend? aq seminars et Lhe Clyde Cameron College. It 18 a ronarkuble statement and 1s to be commanded. I set 1t out in full. In the statement the lIctters "C.U.M." refer to the Commitize. The letters "J.C." and the nacre "Jir" refer to the clairant and the letters "C.F." and the name "Carlo" refer to the respondent Prizziero who had laid Lhe charges against the clazmant and who prosecuted them Lefore the

"Declare the meeting open and advise that this is the furtner reconpvensa Comiutrce of Managercnt meeting of 6 linvca 197). State that I have sent to cach cam + of C.O.tl. a letter as Brancn Prasadent, cared 30 March 1979 advising of tac rcotirg .... read Jccter of 30 March.

The only lLusiness on the agenda todty is the hearing and deterranatior of ten cn.rgss Laid against J. Cains.

I advise the rectin; of the ps follotred today in hearing anc these charycs.

C.F. will prosecute the charios ang will not be pexmittcd to remain ia the reer hist the C.O.M. 18 considering the sebvrissions and evidence relating to each ch. rgc.

After C.F. has pu. his submissions and evidence to J.C. by way of quistions J.C. can ark questions of ard see any docutents presented by C.F.

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 gucstions of any witness called by J.C.

Menoers of tne C.O. 1. may asi questices of C.P., J.C. and witnesses at any tire

{££ any manber of the C.O.M. 1s colled to giv evicences thet member of the C.O.M. may tarticziprites an the f1.at aeerston relottre tO LLG charcee on thio ho hes given @vidence bus may not Gircucs his/ her evidence cering disev stones after C.r. has iefie the C.O.1i. to deliberate on that particular charge.

ALL PANTIES IN THIS MATTER, TO APPROACH THiS MATTLR WITH AN OPCN MIND AND TO CIVS BOT!

DELIBIP ATC ON TAP EVIDOYCE BeYORT 1OU SEra.k Lakme ANY DECTSLON ON AliY OF THE CHARGES.

IT IS A PTFPICULT TIVE FOR Til BRANCH AND YOU ARE CANROLD WITH A GREAT RVGTOXSTBILID! In

ETT RL: FIG THES T CUNVGLS AGATNGT JIen Cris. DACH MLV OR OP THE COMMITTING OF MMLC INGL? HAS LET TuLt. A COPY OF Giil RULTMS OF Trl BRACCH FUND IoU?Gsl YOU GO RETAR TO PLN AT

DELIEVRATICIS FINCLLY, I ash PPAG JU! Cai .s CUDT TV NLGie i

BE GIVE. Tis EQocive? or AN OD EsxIStT lv AGik Mind Ir Yom RvR CONVINCED CN ANY POINT FLT TO You."

After the respondent Jenkins had nade her opening risarks, she asked in turn cach membLe1. present to indicate whether that person felt disqualificd 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 thereuyon left the meeting and took no further part in the hearing of the charges. The other respondents remained. The procedure outlined in the opening rerar's made by the respondent Jenkins wus followed. Tho xespondent Jenkins conducted the meeting in an exemplary manner. After the prosecutor presented his material on euch charge, the claimant was asked whether he had anything to say. Hoa replied "no comment". On the sccond day the claimant did make sore comment, but for

the purpose of these reasons J consider they were consis tent 13.

With a "no coment". In ctdarren to receiverg tho written ansvors of the cliuwnwit, the Comortroc qava evecy Gopor''up.ty to the clairan't to pwew co his defeset. 'hh mscting coat uuead durirg normat eftace heugis on 10 Aprad. During the aflter-ooen the respondent Gerpton, in re.ererce ta the wetiitude of NoMepartryed ren eerie d hy Gos eto ment, sand varde te tie etfloce thot the roe gat a Qomacter , chee bo reduses Le rewmrri1 and tnat tho claim tb ws ycttly. The respewdent Jenkins retuned Ro that the ctaimrt hac avetributed tac Statoment me ant ering che charceas bul the resvondert Goupten

said words to the effect tnst tha mw: tiurg «a u farca and tic

Gerpton then leit the reel ony and town ne "Sorin r port oun the . . '0

hearing of the charges. The reckicy ro suec? ca the rogpray of

11 April. Aftor ths luac: break and at. cbour 2.30 b.5. tue

hearing of the chargss wac commicte 7 and the reeling oe aived that a decisicen be made tnih day. Yne cliiniwnt ait the resp et dint Frizziero lcfFo the wieting. The resaintag no we rembers of

the committc2 cl ranavement tuen censidered cach charge

separatcly inciuting the cnaiaes centarned 21 cach sub-

paragraph cf those grounds which contained suycparayravhs. Urder the cirection ¢f£ the responeent Jousine, the rarmbers looked at the relevant Lranch rule , the matcrial presented to them by the respondent Priczicro ana the ansers to the charges contained

In the statenont cistributed by the claamant. 'The merbers were directe@ to consider the vording of the releveut breach rule and of brarch rule 49, Daseussion erserd betw cu the' meonbers in

relatien to e1c' separate charge. bach scpurate charge wis

eonsid:icd seperately and wan che "ise .reiers on that charge aac ceased, the xis. sidant Jon.ins ached arp tarn cach mochor presert wrevther he o1 sro fourd bic claica.t guilty or nol cailty

of the particulir caarze bernz con cered. After cach Ground set

applied broench tule 40 te that grownd anc and cared that the conunrtice would Gistnis3 the chum nt, or ratsoor renove hin from office as cerretary of the uetreh, In partacular tac compmiltee did nel consider vhether to impose any other penelty or to impose ro peadlty at all. At aboul 4.30 p.m. th: claimant was recalicd to the meeting ortas

(a) ... the Fedi val Cocnc1)] shall svepervise the duties of Officars, and snall have

pover to dics' 1ss, Suspend or remove Erom any office ,ary ofif.ec servent of the Xssociatio n for >

Council. Tne udecisisn of tne Federal Council as final."

In that rule the words "any officer" refer to any Federal

Offaces being iny ci the offieers of the Pedi ral Council, - p

see Federal Rales 17 and 18 and not to an officar withan a ry

brarch. edera, Rule 12 dees rot confer on PFedurai Cuuncil Yr

a power to revove a perjun from a branch office. Such a

person 1s rot "ane offacer™ vuratn th onm-cniagd s° Few cal Rule 12. It follows thtrerore tbat che ene re 28 ajainss t ba breug't bess 2 the le leral Counz1l

It as cleer tnat the principles of natural justice are to be applicd with resp.ct to t'.2 proceedings before the Comaittes. Counsel for the claimant submitted that natural justice had been denied to the claimant in tro Major respects. He subnitted that each of the cleven members who constituted the Cormittee when 1t met on 10 April had, by their previous actions including the prosecution of charges based on facts similar to tiose upon which the claimant vas then charged and their participation in proceedings wnich found the claimant guilty of those ch-racs kearé on 31 January 1979, prezucyged the charges then presented against the cluimant end thus were guilty of bias aguinst him. As a matter of procedure, particulars of bias hid Lecn given with

respect to si. of those porfors cry én as 2 resuit, Counsal

Gonet rely wnon the othor turee rorsses persed aatluy at baas.

136 C.L.R. 248, the liagh Court considered the principles to be applied in determining whether a tribunal exercising judicicl 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 nusher of authorities on this

"The vieow that a dudes siuld uot sit to heer a case if an ali wne curcvnsiarces tne pe.'ies or tne public wiebl reesorably

sus -ct thet he was vote unpretudiced 2.4 airpactial, and that 2F a judge docs sit

an these cltcumsvances prohzbitzon 111 lic, 18 net only survorted by the

he wreng to re curd the ovservitrons of Lord liewart C.7d. tn R.ov. Susctan wacbhicis; In pavhe Feces. ov [149 ty 1 Leb. at o.259 as moaniay Searanen of Justices as of more Chan the atteinimenc

of Justice cf. Justic.3i it at p.52. r 3 principla, wnie? #38 Les . in this Comwrtl in crelies Racirg Curls) roise "(Ly 1278 C.G.R. 509, at pp.Slu-5iy cases the hear ais of fundar tal

iv of the matter, It amportance that the public should have coniidence in the adpinistraticn of justice. If farr-winded pecple reasonably apprehend or suspect taut the tribunal has prejueyed the case, they cannot have confidence 1n the decision. To reveat

the wordes of Lord Dennirg i.R. which have already been cited, 'Justice must be rootcé in' confidence: end confidence 1s destreyed vhen right-minded veople go

a tribunal exercising ju@iczal or quasi-judicial functions

° Association. I must ensure that 2 Assoclaticon. Of ers cf cha Cewittee rust be involved in eny controversy affecting one of their number. Branch rule 40 confers on the Co' mittee tie power to hear

and G@etermine charges Froulnsl against one cf their number. The prior involvement of tne merbers of the Committee in the controversy leading up to the brinying of charges against one of their nurber cannot disgvalify them frow hearirg and

ve. Bor. (194?) 77 CLLR. GOL per Palen G2. aL G7O-1l. Bue

not 21h3tcadrne tars, the tules of i. : Atsoc1. 119n are io ha

anterpsroted as being subject to tne urGerloinyg condition th. -

the s the proceedings Leroughtl wales brancua rule 40 should be carried on in accordance vith the fundayrne-) prancstiples of natural

justic?, see O'Connor J. an Diciason ve. Fdvard. (1919) 10 C.L.R.

243 aut 255 quetod with aporoval by Daron J. an Auctralian Worsers

Union v. Bowen, Supra at p.f3l. After refer 2ag to that

quotation from tac judgment of O'Conrer J., Divyon J. continued at p.631l:

. present as a ° ator Of tre trigre a berser tho Los wer. st za the erwyje apd Supseris it as tne pst

Bho 28 AnvVaLe Sly Daaee accused 23 4 result of in the corcersvircy, end cate With Dow ue drvemaliztiec o2 sien con le Sits with th tcribueel and in the decistcr, thet 15 vitiate iv: Pic. . 3

the members of the Cormitree had se cerducte: themselves prior te

the meeting on 10 April that each was biased to such a cegree

as tO vitiate the cecisious made at that mecting. The persor

making the cherges and prosecuting tiem before tne Cormittze,

the respondent Fricziero, did not parrcicivate in tue delvberations

of the cotmittee. The question to be determined, therefore, 1s

whether the ocher rembers of the Covmittee who did participate

an the Gcliberaticas were biased to -Ehe extent mecessary to

vitiate the decisice.:s made. Pacept to tre eylent that the werd

"invincible" has th strong m2aning of referring to something that cannot be ovorcorne, IT do net fine the phrace "invincibly biased" easy to usely. It 3s not sufficient to establisn thit at might reasonaoly be apprchended or suspected by fazrr-mainded

ersons thak the Committee nay not determine the mutters before Pi

them with an unerejadiced mind, c.f. R. v. Watson Fa parte

my opinion tha tork to bho apnlie iis uPa tea at whetuer, navare relacd te tae rules of the Avsoere oon ard abl the surrounding ciceumst .c.5s of Lia cane, the neabers of ti Comittee who porticipated in the presoediics en 13 April and LL April were ele to cueresse fhe Lovers comiersod upon thom by the rules of ithe Association ina fair and reasonable mapwaur. In appiyang this tust, prartz~cular owhasi1s macvt be given to the fact that it 1.8 necessary that the masbars of the committee

of management should exercise their powers fairly with respect

Leaving «side trea questions of whether Mr. Rorahin shouit have been allovcd to represent the claimant and whether the committee should hive exercised a discretion as to the penalty to be aumposed, Counsel for the cloirert did not, and in fact could not, mae coaplainrce azaiist the procedures adcpied by the Couelttes an the bearing are determiring of tho

that by thelr previous actions the ne bars, in verying degrees, t

had so proajudyel sore of tne charges acainst the clalvant taat . ' . they could not hear and Ceiermine tie churges fairly and

reasonably, or, as he put it, that tney were biased to eucn a degree as to vitia vo the decisions rade. He relied exon the Involvencnt of tio respondarts in Ciscussy 3 cad voting of tne

matters already referred to at tne mPaecing cn 23 Naovenber 19728,

against the claimint ware so biased as to vitiate the Gecis ony made. In reaching this conclusion I rely upon the findings of fact already set out. Some only of the c*arges heard and determined related to matters previously dealt with by the vericus responuents. It was submitted that the time for detervsuing whether bias existed or not was at the time the reoting comecnced In my opinion this 1s too restricted a view. The whole cf tie Proceedings must be considered. The charges laid were br

P] under branch rule 40. It 1s no answer to say that diffrent procecdings alleging different offences but anvolving the same fu could have been brought under branch rules 18 and 38 vhich prowid for charges to be laid against members of tho branch. 4&1 the provisions of federal rule 41A do not apply to allow chcr7us to be brought thereunder for the purpose of removing a braich officer from office by a corvolvtcd sericcs of proceduras of

doubtful validity. Tne charges vere bro ight under brancn rule

40 ard the form of the surmons made 1t cluar that if the clay

any of them were provad, removal frown cffice tould result. 'the fact that the Ceauswztcce did not consider the possibility cf

not jmpouing the penalty of retoval fren office does ro. susrert the allegation of bias. More inocortantiv, however, under

the branch rules, the Committce was the only body omposred to Acc and determine the charues brought against tho claimant. Farlier proceedings in relaticn to sovra similar charyes had miscarricd

and decisions then mace were invalid. The committee of wanagerent proceeded afresh c/f. Ridge v. Baldwin [1964] A.C. 40 per Lord Rei

at p.79. Tn particular the prece: dings belore the Committec

: _ rey Tay were conducted undec fair and clear leadership by the respondent

: - narkedly Jenkins. The facts in Clevorth v. Barrow, supra, are Mar "44

differenl from tho facts wn ov ero rt e2se aa rouAan

said in that cése prevorte tho fanliegs mode 21 the prasoot case. The claim vl sas Forvod mob purl oy of the Ciaryos arising out of the cree lur d-tizrtberad by the sleimrark, wiecnds 3 ard

Alvhough t!° charces cc. caine 7 24 grounds 3 and 7Q wore

@ifferen> co these previously dealt wrth Ly t8.0 Comiitcss, the fact that the claimant was foun' nat guilty of thote charges doe

to sone extent,Ssupport the fact that the riembers of the

Committee: considored the cnéerges in a fair and responsibie way.

The warning given by the prosicent el the begirraing ef t proceedings was designed to ensure knat the te. vers of the Commitige 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 applicd, introduces a degree of subtlencss3 which 1s undesirabie in matters of this

kind. Members of a jury 15 a criminal trial canrot be cross- examincd ars to their metnod of Ceterming the guilt of cn accused person. When the members of the Committee, ir the exercise of povers conferred uron them by the rulcs of the /ssociaticn, procace

to determine the charges in a manner similar to that of a jery,

: the particular thought procuss2s of i-dividval committee should not be alloved to be used co challerce decisions fade vnich have becn arrived at

fair and reasonanlie. Twill consider later the as, tec of tne

refusal to allow Ir. Romanin to represent the cla.vant.

judgme t it 1s useful to refer to what was said in Holmes v. O'Too. (1957) 1 F.L.R. by Dunphy J. at p.232:

the tribunal by viriue of his office and under the rules of the organization, he had both a right and a duty to

act therecn. Tne view of the majority in Bowen's Cause Qewsnrstrates th2t those factors do not authorize the presence on such a tribunal of a person 'invincibly biassed@'' against an accused, but also provides standards vgon which questions oF bias priv be judeed. & seows to me that the evidence for the applicant herein rcferred to Coes nol contorm

to such standards. To hold otherwise would be tantamount to saying that

The eprrom out a p.405 as follows: s so fav mer lioned dia Cacator coald be disponoid wit) or replace py su csne to whe tha sao oje al

But treed era map, causes tai be no substitution 2g peseible, Siree no

one ¢lse 18 cVWowereca to ack, Tararal Justice than has to gave way ty necessity, for otherwise tnere 15 no means of deciding and the rachinery

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (231 paragraphs)