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[2002] FCA 116
respondent. Application for interim relief dismissed; directions given for affidavits to be filed by both parties and matter listed for further directions (Orders, paras 1-4; judgment para 20).
Haritou, a union branch secretary, faced internal disciplinary charges. He sought interim court orders to set aside a Branch Executive's finding of guilt after the Executive refused him legal representation and proceeded in his absence. The Court held the Branch Executive had jurisdiction to hear the charges; allegations of bias, denial of counsel, and insufficient time to prepare did not, on the interlocutory material, show a breach of natural justice of such seriousness as to warrant interim relief. The application was dismissed and directions given for trial preparation.
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1,782 words · generated 11/07/2026
Michael Haritou, the Divisional Branch Secretary of the FFTS Division (a division of the CFMEU), was charged under the union's rule 14 with failing to observe union rules and being guilty of gross misbehaviour or gross neglect of duty. The particulars alleged Haritou procured certification of an industrial agreement not endorsed by a majority of employees and lodged a false statutory declaration (para 2).
1 cited instrument linked from this judgment.
An extraordinary meeting of the Divisional Conference on 31 October 2001 purported to pass two resolutions: (a) to refer the charges to the Divisional Conference to hear and determine; and (b) to direct the Victorian Branch Committee of Management and the Divisional Branch Executive to refrain from further action in the matter (para 3). The respondents (members of the Divisional Branch Executive) disputed both the validity of that meeting and the effect of the resolutions; they took the view that the Divisional Conference did not have power to hear the charges as a court of first instance (para 4).
On 1 November 2001 the Branch Executive convened a hearing. Haritou asked for legal representation and sought an adjournment to obtain counsel. The Executive resolved not to allow legal representation. Haritou ceased to participate and left. The Executive proceeded in his absence, received witness evidence, deliberated and found him guilty, dismissing him from office and expelling him from membership (para 5).
Haritou filed an interlocutory application under s 209 of the Workplace Relations Act 1996 (Cth), seeking orders that the Executive's resolutions be treated as null and void and that the rules of the union be observed. He sought interim relief under s 209(4) pending trial (paras 6-7). Finkelstein J heard the interlocutory application and dismissed it (Orders; para 20).
The judgment rests on five interlocking assessments.
Jurisdiction under the rules. Finkelstein J analysed the union's rules (following his prior analysis in Skourdoumbis v Maher) and concluded that the body with power to hear charges as a tribunal of first instance was either the Divisional Executive or the Divisional Branch Executive. The Divisional Conference and the Divisional Branch Committee of Management had power to deal with charges only on appeal. Applying that construction, the Conference resolutions did not take away the Branch Executive's jurisdiction to hear the charges (paras 10-11). The judge expressly assumed, for purposes of the interlocutory application, that the Conference meeting was validly convened and the resolutions were properly passed, but still concluded they did not prevent the Branch Executive from acting (paras 9-12).
Interlocutory relief threshold. The Court framed the usual interlocutory checklist (serious question to be tried, adequacy of damages, balance of convenience) and noted that while some authorities suggest a different approach for relief under s 209, the judge did not need to decide whether a different or lower standard applied in this case (para 8). Applying the conventional approach, the applicant failed to show sufficient prospects of success on the jurisdictional point (para 11).
Bias. The Court reviewed the law distinguishing statutory tribunals and domestic bodies. For domestic tribunals, natural justice requirements are different because members have agreed to a rule-based internal governance and may have predilections due to association. Mere factional hostility, prior litigation and political opposition, while relevant, do not automatically disqualify members. To vitiate proceedings, the applicant must show "invincible bias", a state where the decision-makers would find the charges proved regardless of the evidence (paras 13-15). Haritou's particulars (bitter dispute, respondents' factional allegiance, prior court actions, personal antagonism) did not, on the interlocutory material, meet this high threshold (paras 14-15).
Right to legal representation. The Court held there is no general right to counsel before a domestic tribunal. Authorities and prior decisions were cited to support the view that domestic tribunals, often lay bodies, are not bound by the strict rules of evidence, may act on hearsay and have no power to compel witnesses; therefore counsel are not ordinarily entitled to appear (para 16). That is not absolute: Cains v Jenkins recognises exceptions where seriousness or complexity makes denial of counsel unfair. On the evidence before the Court, no special circumstances were demonstrated that would render denial of representation unfair at this interlocutory stage (para 17).
Prejudice from lack of time and manner of hearing. The applicant did not identify specific prejudice from any lack of time to prepare; he was afforded the notice required by the rules and did not particularise how his ability to cross-examine or present evidence was hindered. Examination of the minutes did not disclose any unfair conduct by the Executive (paras 18-19).
On these bases the Court concluded the interlocutory application was not made out and refused relief (para 20).
Before this decision, the legal landscape comprised established principles distinguishing domestic tribunals from statutory tribunals on procedural fairness, and authorities that domestic bodies are not automatically bound to permit legal representation or adherence to strict rules of evidence. The Court relied on these authorities (e.g. Kay, McLean, Pett, Enderby and others at para 16) and on High Court authority recognising that invincible bias is a higher threshold (Bowen No. 2; Dickason) (para 13).
After this decision, the position remains consistent with the established approach: internal union tribunals retain a distinct, more flexible procedural standard. Haritou confirms that, at interlocutory stage, an applicant must show heightened prospects of success to obtain interim relief under s 209(4) where the complaints are about jurisdiction, bias or denial of representation, and that general claims of factional hostility and prior litigation will not automatically meet the test for invincible bias or for unfair denial of counsel (paras 11, 15-17). The decision emphasises careful factual particularisation is required to obtain interlocutory relief.
Para 10 (core jurisdiction): "After an examination of the rules, I reached the conclusion that the body that had power to hear charges against a member was either the Divisional Executive or the Divisional Branch Executive." Plain English: The union's rules give first-instance power to the Executive bodies, not to the Conference. So the Branch Executive was entitled to deal with the charges unless the rules provide otherwise.
Para 13 (domestic tribunal context): "In the case of a domestic body the members have agreed to abide by a set of rules... such a committee may have predilections and prejudices." Plain English: Internal bodies are run by members who have chosen the rules; the law expects some partisanship, so the standard for disqualification is stricter than for public tribunals.
Para 15 (test for invincible bias): "To establish such a case ... required to show much more than a bitter and protracted dispute..." Plain English: To prove the decision-makers were hopelessly biased, the applicant must show they would decide no matter what the evidence was; mere hostility or prior court fights are not enough.
Para 16-17 (right to counsel): "In the case of a domestic tribunal, the better view seems to be that [the right to counsel] will not generally apply... Cains v Jenkins ... not an absolute rule." Plain English: You do not automatically get a lawyer before a union committee; but in very serious or complex cases, refusing a lawyer could be unfair.
Para 20 (disposition): "The application for interim relief is refused." Plain English: The court declined to stop or overturn the Branch Executive's decision before trial.
This judgment is directly engaged when:
Key practical outcomes:
This judgment itself records reliance on earlier authorities and the judge’s own unreported ruling (Skourdoumbis v Maher) [para 10]. The reasons are framed as application of established principles rather than creation of a new rule. The transcript does not contain citations to later treatment of Haritou v Skourdoumbis. Accordingly, within the four corners of this judgment, no later appellate treatment or judicial consideration of the precise holdings is recorded. Practitioners should therefore treat the decision as a reasoned application of existing authorities on domestic tribunals, bias and representation, persuasive in similar factual scenarios and consistent with the line of authority cited (paras 13-17).
Several areas remain for fuller resolution on the facts at trial or in future authority:
The precise boundary of 'invincible bias' in closely divided or highly politicised union contexts. Finkelstein J indicates the high threshold but recognises a workable bias case could be made at trial with fuller evidence (para 15).
When denial of legal representation will cross the line. The Court accepted exceptions exist where matters are sufficiently serious or complex, but what precise combination of seriousness, complexity, or procedural disadvantages will require counsel is not fixed. The judge noted the absence of evidence to support such an exception here (para 17).
The role of issue estoppel and finality. The judge acknowledged (para 11) the difficulty whether his earlier unreported decision would preclude relitigation; he applied the principle of following earlier rulings unless 'plainly wrong' but left deeper estoppel analysis for another day (para 11). The interplay between interlocutory rulings within the same judge and final issue estoppel in this congested litigation environment remains open.
Whether s 209(4) requires a modified interlocutory test in union-rule challenges. The judge flagged cases suggesting a different approach but did not decide the point (para 8). A future authoritative decision could clarify whether a different standard applies to interim relief under s 209.
For practitioners preparing similar applications, this judgment emphasises the importance of detailed evidentiary particularisation: demonstrate how jurisdiction was ousted by clear rule provisions; adduce direct evidence of closed-mindedness or predetermined outcomes to substantiate invincible bias; and, if claiming denial of counsel, explain why the matter is sufficiently serious or complex to necessitate representation.
REASONS FOR JUDGMENT 1 Litigation abounds between factions in the FFTS Union Division, a division of the Construction, Forestry, Mining and Energy Union. The cause of the dispute has not been explained, but an interim inquiry into the affair has been conducted by officers of the union who, in their report, have described the Victorian Division as "dysfunctional" and noted that the division has not had the services of any officer since February 2001. Internal attempts to resolve the dispute have been singularly unsuccessful, and the disputing factions now make increasing use of the court to sort out their differences, or to further their respective interests. This case is one of around sixteen that are currently being pursued in the Federal Court alone. No doubt the union's finances are being diminished by this litigation, with little gain for the ordinary members. 2 The present dispute follows the laying of charges against Mr Haritou, the Divisional Branch Secretary of the FFTS Union Division, Victorian Branch, alleging breaches of rule 14 of the union's rule. The charges allege that Mr Haritou failed to observe the union's rules and was guilty of gross misbehaviour or gross neglect of duty. The particulars of the charges assert that Mr Haritou procured the certification of an industrial agreement between the CFMEU and an employer which was not endorsed by a majority of employees. It is also asserted that a statutory declaration made by Mr Haritou that was lodged with the Australian Industrial Relations Commission when certification was obtained was false in several respects. 3 Mr Haritou was summonsed to appear before the Divisional Branch Executive, constituted by the respondents, who were to hear the charges on 1 November 2001. On the day prior to the hearing an event of some importance occurred. The supreme governing body of the FFTS Union Division is the Divisional Conference. Mr Haritou says that on 31 October 2001 there was an extraordinary meeting of the Divisional Conference at which the following two resolutions were passed: "(a) That the changes [sic] laid by Victorian Divisional Branch member Adam Wallace against Michael Haritou and scheduled for hearing by the Victorian Divisional Branch Executive on Thursday November 1, 2001 be referred to the Divisional Conference to hear and determine the charge laid by Adam Wallace; and (b) That the Victorian Branch Committee of Management and the Divisional Branch Executive refrain from any further action with regards to hearing such charges." 4 The respondents were advised of these resolutions. They were not minded to take any notice of them. They took the view that the meeting at which the resolutions had been passed was not validly convened. More importantly, however, the respondents also assert that whether or not the resolutions were passed, they had no effect because the Divisional Conference does not have the power to hear and determine the charges against Mr Haritou, as that body has not been conferred with the authority to hear any charges against a member other than by way of appeal. 5 Mr Haritou appeared before the Divisional Branch Executive on 1 November 2001. I have the minutes of the meeting, as well as some evidence of what occurred. For present purposes, it is sufficient to note the following. Mr Haritou said that he was entitled to be legally represented at the hearing, and asked the respondents to halt the proceedings until he obtained the services of a lawyer. The respondents resolved that Mr Haritou should not be allowed legal representation. Mr Haritou decided that he would no longer participate in the hearing on this basis, so he left. The hearing of the charges then continued in Mr Haritou's absence. Evidence was taken from a number of witnesses. At the conclusion of the evidence the complainant was asked to leave the room. Mr Patti, the chairperson, advised the committee that, for the purposes of determining whether the charges had been proved, they should only take into account the statements made by the witnesses. The committee then deliberated upon the matter and found Mr Haritou guilty as charged and resolved that he be dismissed from the office of Divisional Branch Secretary and that he be expelled from membership of the FFTS Union Division with immediate effect. 6 Mr Haritou brings this application under s 209 of the Workplace Relations Act 1996 (Cth) seeking directions for the observance of the rules of the union by treating as null and void the resolutions of the Divisional Branch Executive. At present, he asks for interim orders substantially to the same effect as the final relief that is sought. The power to grant interim relief is found in s 209(4). 7 Mr Haritou challenges the validity of the Divisional Branch Executive's resolutions on three grounds, namely (i) That by reason of the resolution of the Divisional Conference, the Divisional Branch Executive ceased to have authority to deal with the charges; (ii) That the respondents who comprised the Divisional Branch Executive for the purposes of the hearing were "invincibly biased" against Mr Haritou and were thus disqualified from hearing the charges; (iii) That by denying Mr Haritou both legal representation and time to prepare for the hearing, and by dealing with the charges in the manner that it did, the Divisional Branch acted unfairly (that is contrary to the rules of natural justice), and thereby its decision is vitiated. 8 Before I turn to the merits of the application, there are some introductory remarks I wish to make. In ordinary civil litigation it is usual to decide whether an interlocutory injunction (or relief along the lines sought here) should be granted by arriving at answers to the following questions; a checklist of sorts. First, has the plaintiff presented a case which is not frivolous or vexatious but which presents a serious case to be tried. Second, will damages provide the plaintiff with an adequate remedy. Third, would the plaintiff's undertaking in damages provide adequate compensation to the defendant, should he or she succeed at trial, for any loss sustained because of the interlocutory injunction. Fourth, where does the balance of convenience lie: see generally American Cyanamid Co v Ethicon Ltd [1975] AC 396; Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1. There are some cases which suggest a different approach to the grant of interim relief under s 209(4). On occasion the test has been described in terms of what is the fairest and most convenient arrangement for all parties pending trial: eg Dodd v Johnston (1999) 91 IR 352. For reasons which will become apparent it is not necessary to consider whether an applicant for interim relief under s 209 must clear a lower hurdle, or satisfy a lesser standard, than a plaintiff who seeks an interlocutory injunction in a civil suit. There is much to be said for the view that the considerations that must be taken into account should be the same. But, as I say, that is a matter for another day. 9 The first issue to consider is the effect of the resolutions of the Divisional Conference. Did they deprive the Divisional Branch Executive of authority to hear the case against Mr Haritou? For this purpose I will assume that the meeting of the Divisional Conference was regularly convened and that the resolutions were duly passed. It is to be noted, of course, that these issues are hotly contested, as is every other issue that separates the parties. 10 In Skourdoumbis v Maher (unreported, 16 October 2001), I was required to determine whether the Divisional Conference had jurisdiction to hear charges brought against a member under rule 14 of the union's rules. After an examination of the rules, I reached the conclusion that the body that had power to hear charges against a member was either the Divisional Executive or the Divisional Branch Executive. The Divisional Conference and the Divisional Branch Committee of Management have power to deal with charges, but only in the event of an appeal being brought to one of those bodies. 11 I will not repeat the provisions in the union rules to which I made reference to reach the conclusion that the Divisional Conference could not hear a charge as a first instance tribunal. Nor will I set out my reasons for arriving at that conclusion. Finally, I will not deal with the difficult question as to whether the conclusion reached in Skourdoumbis v Maher, a case in which both the applicant and the first respondent were parties, prevents those parties from re-litigating the issue because of the so-called doctrine of "issue estoppel". It is sufficient for present purposes to deal with the matter in the following way. If the ruling in Skourdoumbis v Maher had been made by another judge then, in accordance with well settled principles, I would be required to follow that ruling unless satisfied that it was "plainly wrong". I think I should apply that principle to my earlier decision, not because it is my own, but because of the underlying principle that is involved, namely that there should be certainty in the law. In passing, I note that my analysis of the relevant rules in Skourdoumbis v Maher, failed to take into account one relevant rule, namely rule 14(11). I have considered whether this omission should lead me to conclude that my earlier decision was indeed "plainly wrong". While acknowledging the difficulty of this kind of self analysis (it is always easier to find fault with others), I do not think that if I had paid regard to rule 14(11), I would have reached a different conclusion. Accordingly, Mr Haritou's contention that the Divisional Branch Executive had its jurisdiction to deal with the charges taken away by the resolutions of the Divisional Conference, does not have sufficient prospects of success to warrant the grant of interim relief. 12 I have considered whether it would be appropriate to disregard the first resolution of the Divisional Conference (that the charges be referred to the Divisional Conference) and determine whether the second resolution (that the Divisional Branch Executive refrain from hearing those charges) was within power and bound the Divisional Branch Executive so that defiance of the resolution would invalidate the proceedings before it. On balance, however, I do not think that it is proper to treat the second resolution as having life independent of the first. The principal object of the Divisional Conference was not to stay the hearing of the charges, but to remit the matter to itself for hearing and determination. If the second resolution is given an independent existence, it would bring about a state of affairs that the Divisional Conference did not intend to bring about. 13 The second complaint is that the respondents were disqualified from hearing the charges against Mr Haritou because of their "invincible bias" against him. This is an appeal to the rules of natural justice. As to this a number of things can be said. The first is that we are not dealing with a statutory tribunal, or a person acting in pursuance of a prerogative power, but with a domestic body acting under rules which have been agreed by its members. The requirements of natural justice for such a body will be different from those that regulate the conduct of statutory tribunals. One reason for the difference is that in the case of a domestic body the members have agreed to abide by a set of rules and the authority of a committee to enforce them. In the nature of things, such a committee may have predilections and prejudices resulting from their association with members. An apprehension of bias could exist for all sorts of reasons. So, if an apprehension of bias was a disqualifying consideration (as it would be in the case of a statutory tribunal), the consensual rules would be largely unworkable: see generally Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. On the other hand, the cases do establish that where a member of a committee is "invincibly biased" against a person the subject of disciplinary proceedings before a domestic body, such as when a person who has promoted the charge and supports it as the prosecutor seeks to take part in the hearing of the charge, that person is disqualified from doing so: Dickason v Edwards (1910) 10 CLR 243. In Australian Workers' Union v Bowen No. 2 (1948) 77 CLR 601 proceedings for relief against the expulsion of the applicants from a trade union arose out of a bitter and protracted power struggle in which the accused members, and the Executive which dealt with them, belonged to opposing factions. The High Court decided (by majority) that while the mere apprehension of bias would not disqualify the committee from hearing the charges against members who came from an opposing faction, if the members were "invincibly biassed against the accused as a result of his participation in the controversy" their decision would be vitiated. 14 Mr Haritou has provided the following particulars of the alleged "invincible bias": (i) The respondents are his political opponents within a small division of the union involved in a protracted internal union dispute; (ii) Mr Vari and Mr Patti are unshakeable supporters of Mr Skourdoumbis; (iii) The charges were not heard nor confirmed by the supreme decision-making body of the union; (iv) The respondents have been parties in various Federal Court proceedings associated with internal union disputation; (v) The disputes and grievances involved personal antagonism between the parties; (vi) The bitterness of the protracted dispute is evidenced by the fact (and it is the fact) that Mr Haritou has been working from the office of the CFMEU, Forestry Division, and not the office of the FFTS Divisional Branch since October 2001. Some of these particulars are supported by the evidence, and some are not. But even assuming that each of the particulars was properly established (by which I mean sufficiently proven for the purposes of an interlocutory application), I think they fall short of establishing the "invincible bias" that is necessary to vitiate the decision of the Divisional Branch Executive. 15 Let me say at once that I do not mean to imply Mr Haritou does not have a case for bias. The groundwork for such a claim has clearly been laid out. What I do mean, however, is that the particulars do not of themselves establish "invincible bias" or, perhaps more accurately, that the respondents would find the charges against Mr Haritou proven regardless of the evidence. To establish such a case Mr Haritou would be required to show much more than a bitter and protracted dispute between political opponents which has manifested itself in battles in court and battles elsewhere. He may be able to do so at trial where there will be a good deal more evidence. 16 Turning to the complaint that Mr Haritou was denied legal representation, I think he is again on weak ground. In the case of a domestic tribunal, the better view seems to be that this aspect of the rules of natural justice will not generally apply. This was the view of Griffith CJ in The King v Board of Appeal; ex parte Kay (1916) 22 CLR 183, 185. In McLean v The Workers Union [1929] 1 Ch 602 Maugham J dealt in passing with this issue in relation to the affairs of trade unions, members' clubs and professional bodies acting in a quasi judicial capacity. In an important passage (at 621) Maugham J said: "A domestic tribunal is in general a tribunal composed of laymen. It has no power to administer an oath and, a circumstance which is perhaps of greater importance, no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence; it is indeed probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them (like an English jury in ancient days) are themselves both the witnesses and the judges. Before such a tribunal counsel have no right of audience and there are no effective means for testing by cross-examination the truth of the statements that may be made." See also Pett v Greyhound Racing Association Ltd No. 2 [1970] 1 QB 46; Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591; Fraser v Mudge [1975] 3 All ER 78; R v Visiting Justice at HM Prison, Pentridge; Ex parte Walker [1975] VR 883; Maynard v Osmond [1976] 3 WLR 711; Fagan v National Coursing Association of SA Incorporated (1974) 8 SASR 546; McNab v Auburn Soccer Sports Club Ltd [1975] 1 NSWLR 54. 17 In Cains v Jenkins (1979) 28 ALR 219 the Federal Court, after referring to some of these cases, acknowledged that in general there is no right to representation before a committee exercising such powers as are here under consideration. But the Full Court did indicate that this was not an absolute rule. There may be cases were the seriousness of the matter, or the complexity of the issues involved, are such that to deny a person legal representation would offend natural justice. Whether or not in this case there are any such special circumstances is an issue that has not been covered in the evidence. Thus, at this stage, Mr Haritou has not demonstrated any basis for challenging the decision that he be denied legal representation. When the facts have been examined more closely at trial, a different view may prevail. 18 I need deal only briefly with the complaint that Mr Haritou was denied time properly to prepare for the hearing of the charges. If that were really the case, Mr Haritou would have explained in what precise respects he had been prejudiced. Put another way, if, for example, Mr Haritou needed time to prepare himself to question the witnesses (I assume he would have been given the opportunity to cross examine) or to locate and proof his own witnesses, he would have said so. That he did not suggests to me that he suffered no prejudice by lack of time. It is worthwhile noting in this regard that Mr Haritou was given the period of notice that was required by the rules. 19 Finally there is the complaint that the hearing was conducted in an unfair manner. I have looked at the minutes of the proceeding before the respondents and have reached the conclusion that there is nothing in the point. 20 The application for interim relief is refused. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.
Associate: Dated: 19 February 2002 Counsel for the Applicant: Ms S Jones
Solicitor for the Applicant: Gill Kane & Brophy
Counsel for the First to Third Respondents: Mr W Friend
Solicitor for the First to Third Respondents: Maurice Blackburn Cashman
Counsel for the Fourth Respondent: No Appearance
Solicitor for the Fourth Respondent: No Appearance
Date of Hearing: 5 February 2002
Date of Judgment: 8 February 2002
Haritou
Skourdoumbis
(1948) 77 CLR 601
(1979) 28 ALR 219
(1910) 10 CLR 243
(1999) 91 IR 352
(1974) 8 SASR 546
(1998) 195 CLR 1
(1916) 22 CLR 183
Application for interim relief dismissed; directions given for affidavits to be filed by both parties and matter listed for further directions (Orders, paras 1-4; judgment para 20).