HpBkson v 4 icone v By Carton 2204 Durair-

HpBkson v 4 icone v By Carton 2204 Durair- - [1948] HCA 35 - HCA 1948 case summary — Zoe

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His Honour Judge Kelly held in the first place that no proper ground of misconduct had been shown to exist. The bringing of a suit to ascertain and enforce the rights of members of the New South Wales branch under the rules of the branch was not miscon- duct (Macqueen v. Frackelton (1)). But the allegations made by the plaintiffs in this suit, and supported by all the present respon- dents, were made in order to establish the contention that the New South Wales branch was completely independent of the A.W.U. The Executive Council could not take evidence on oath (Leeson v. General Council of Medical Education and Registration (2)), but the course of proceedings in the suit was clearly established. In my opinion the facts which were stated to the Executive Council were such as to make it possible for reasonable men to conclude that the respondents did endeavour to break the New South Wales branch away from the union. If the respondents had succeeded the union would have been deprived of one of its largest and most powerful branches, and action of this character could certainly be regarded by the Executive as contrary to the interests of the union and disloyal to the union. Further, Bowen and his supporters had definitely refused to obey the directions given with respect to abstaining from holding the ballot and had also refused to comply with the instructions to insert a notification to candidates in " The Worker". It was also true that the members of the New South Wales Branch Executive refused to dismiss Renwick when they were directed to do so by the Executive of the union. The branch Executive did use the property and funds of the union to the extent of over £700 in the course of the litigation against the A.W.U. The facts alleged against Renwick were also established. In relation to all these matters it cannot, in my opinion, be said that they were not such as reasonable men might regard as amounting to misconduct, that is conduct which was not consistent with observ- ance of the rules of the A.W.U. and with loyalty to the union. Accordingly, in my opinion it should not be held that the expulsion

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Executive Council and of the committee of three were void, that the committee could not act in the management of the branch and that Bowen and the other members of the council of the State union formed the executive; and secondly, a set of injunctions restraining the defendants from acting on the resolutions and from interfering with the management of the branch. By a counterclaim the defendants sought declarations and injunctions to the contrary effect. They asked for a declaration that the Australian Workers' Union, New South Wales branch, was a branch of the union registered federally and subject to its constitution and rules, and a declaration that the rule-making power of the branch was subject to such con- stitution and rules and was limited to making by-laws. They sought injunctions restraining the plaintiffs from depriving the members of the defendant union of property and funds and from breaking the New South Wales branch away from the union and from impeding or resisting the defendants from taking over the control and management of the New South Wales branch. In answer to the counterclaim of the defendants the plaintiffs pleaded that (in virtue of its State registration) the Australian Workers' Union, New South Wales branch, was a separate legal entity having exclusive rights of government and control with a complete con- stitution and rules and not subject to the constitution and rules of the Australian Workers' Union federally registered, and with authority to appoint its own officers and to conduct its own business. The plaintifis had not made any such assertion in their statement of claim, which seems to have been based on the view that the defendants had proceeded irregularly and outside the provisions of the Federal rules. The defendants in their counterclaim had not taken very distinctly the ground upon which they maintained that, in spite of the character of its State registration, the New South Wales body was nothing but a subordinate branch of the Federal union. However, in the course of the hearing of the suit before Roper J., the fact appeared that, at the time of the registration under the State Act of the New South Wales body, the formal sanction of neither the Convention nor the Executive Council of the main body had been obtained. Roper J. held that, by reason of the provisions of the State Act, without the authority of one or other of these bodies it was not competent to submit the rules of the New South Wales branch for registration. Accordingly the registration of the branch as a State union was void and as a branch or division of a voluntary association or Federal industrial organization it could not sue. His Honour pronounced a decree dismissing the plaintiffs' suit and granting to the defendants the relief which they prayed by

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their counterclaims. The decree was pronounced on 11th Septem- ber 1944. On the same day Dougherty as general secretary notified Bowen as secretary of the New South Wales branch that the Executive now took over the management of the branch and would take the necessary steps to carry on its business pending an inquiry under the rules. At the same time a notice was sent to Bowen that the Executive Council would on 19th September hold an inquiry as to whether the Branch Executive had failed to comply with rules deemed essential to the good government of the union and with the instruction of the Executive Council in certain respects which the notice proceeded to particularize. Like notices were sent to the respondents Moss, Dalton, Hearne, King and Irvine. The inquiry notified was to be held under the rule already mentioned, by which in the event of a branch not complying with the instructions of the Executive Council or the rules deemed essential to the good govern- ment of the union the Executive Council may after inquiry super- sede all or any of the officers and members of the Executive of the branch and appoint others in their stead to manage the affairs of the branch pending a fresh election. The particulars stated in the notice made the following charges against the members of the executive of the branch. First that they endeavoured to break the branch away from the union and claimed it was a separate legal entity not subject to the control of the convention or Executive Council ; second that Bowen as secretary with the consent of the others failed to observe the directions of the Executive to go no further with the ballot and to advise the candidates by advertise- ment; third that they refused to comply with the direction to dismiss Renwick ; fourth that they used the property and funds of the branch otherwise than for the benefit of the members of the union generally ; fifth that they failed to comply with the union pledge. The promises of the pledge are: (a) to obey the constitu- tion and policy of the union as declared ; (6) to abstain from joining bodies opposed to the union; (c) to abstain from assisting in the advocacy of a policy in contravention of that of the union.

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or specific ground of bias attaching to him or to them all. But Dougherty appears to me to have assumed altogether a different position. In the first place, he began the attack, on 21st June, with his report and his proposal to supersede the branch officers on the pretext of the failure of the outgoing branch council to comply with the direction of 1938. From that time onwards he led in the controversy. He was the author of the charges heard on 19th September and of the proposal to supersede the branch executive. He acknowledged in his evidence that he was the originator in actual fact of the charges preferred by his letters of 26th October and heard on 20th-23rd November. He had been engaged in bitter public attacks on the respondents, particularly on Bowen, and had exhibited the most intense and extreme opinion about the respond- ents' conduct concerning the matters in question. Then at the hearing of the charges he assumed the functions of a prosecutor and so to speak presented the case in support of the charges to the Council. Itis true that the rules make him a member of the Council as general secretary and require the general secretary's attendance. But they do not make his presence indispensable and do not neces- sitate his participation in the decision of questions in which his interest or concern makes it improper. "In interpreting rules conferring jurisdiction to any tribunal, there is always to be read into them the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of natural justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence" : per O'Connor J. in Dickason v. Edwards (1). It is not in accordance with the principles of natural justice to have present as a member of the tribunal a person who has promoted the charge and supports it as the prosecutor or one who is invincibly biassed against the accused as a result of his participation in the controversy, and this was the case with Dougherty. If a person disqualified by such considerations sits with the tribunal and takes part in the decision, that is enough to vitiate it: Dickason v. Edwards (2).

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These rules provided that the rules of the new trade union could be altered or rescinded by that body and therefore without the consent of the parent body. But until 1944 the affairs of the branch continued to be carried on precisely as before, that is to say as a semi-autonomous branch of the union subject to the directions of convention and the executive council. As his Honour said tickets were issued to persons applying to officers of the branch for membership purporting to evidence their membership of the New South Wales branch of the union. Contributions were regularly made to head-office expenses. Members of the New South Wales branch elected delegates to convention and members of the executive council in accordance with these rules, and generally the business of the branch in New South Wales was conducted as though no change had occurred in its constitution as one of the branches of the union. In 1944 the executive of the New South Wales branch, which included all the respondents except Renwick, without the consent of the executive council, commenced to take the necessary steps to alter several rules of the branch and in particular to reduce the quorum at general meetings from fifteen financial members to ten. The executive council objected to these amendments and to other conduct of the affairs of the New South Wales branch, and in June 1944 resolved to take over the control and management of this branch for the purpose of reconstruction, and also resolved that a committee of three be appointed including the respondent Bowen to carry out the terms of the previous resolution. This led to the suit in equity in which the plaintiffs were the Australian Workers' Union, New South Wales branch, Bowen as branch secretary and treasurer, Moss, Hearne and Dalton as president and vice-presidents of the branch, and Renwick, a member of the branch, representing himself and all other members of the branch. It is unnecessary to discuss the proceedings in any detail. His Honour

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It was contended for the respondents before us that the suit was brought because the individual plaintiffs believed and were advised by counsel that the attempt by the executive council to supersede them was a breach of the rules of the New South Wales branch, and that it could not be misconduct for the members of the executive and members of the branch to insist upon their legal rights under the rules of the branch and to bring legal proceedings to have those legal rights determined and enforced. But there was ample evidence tendered before 'Roper J. to justify the executive council honestly and bona fide finding that the real purpose of the suit was to break the New South Wales branch away from the union. Further the executive council, in exercising its powers under rule 13, was not confined to the evidence given before his Honour. Its members were entitled to inform their minds from other sources as well, and they were justified and indeed bound to consider the whole of the available material for themselves (General Medical Council v. Spackman (1)). In my opinion on the whole of these materials it was clearly open to the executive council acting honestly and in good faith to arrive at the conclusion that the respondents were not really seeking to uphold the legal rights of the New South Wales branch as a semi-autonomous body, but were seeking to establish that it was a completely autonomous and independent body and to break it away from the union. There is less material against Renwick than against the other respondents but he was a plaintiff in the suit and it is, in my opinion, impossible to hold that there was no material on which the executive council could have arrived at such a conclusion in his case. The respondents were given proper notice in accordance with rule 13 of the acts of mis- conduct with which they were charged. They attended the meeting of the executive council at which these charges were considered, they were given every opportunity of stating their case, and there was no evidence on which Judge Kelly could in my opinion find that the rules had not been observed.

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has been described as "sadly lacking in precision" (1) but in essence it would appear to require that the tribunal which is exercising the quasi-judicial function should be impartial and that the person whose conduct is impugned should be given a full and fair opportunity of being heard. The respondents were given proper notice of the charges and were allowed to present their cases in person so that there was no failure of natural justice in this respect. But his Honour found that the executive council was not impartial because it had already determined in prior proceedings that the respondents were guilty of the same charges, and therefore had in the words of Lord Thankerton in Franklin v. Minister of Town and Country Planning (2), " forejudged any genuine considera- tion of the objections." His Honour's finding referred to the proceedings of the executive council of 21st September 1944 when resolutions were passed under rule 37 superseding the respondents other than Renwick as officers and members of the executive of the New South Wales branch. But the principles of natural justice cannot override the express provisions of the rules, and it could not be "contrary to the essence of justice" for the executive council honestly and bona fide to exercise all its powers and duties under the rules. Accordingly, if the same conduct authorized the executive council so to supersede the respondents under rule 37 and also to expel them for misconduct under rule 13, the executive council could act under both rules, and could meet for these purposes at the same time, provided proper notice had been given under rule 13, or at different times. It would be no disadvantage and well might be an advantage to the respondents that the hearings should take place on separate occasions. But, be that as it may, the rules authorize the executive council to supersede officers and members of the executive of branches and to dismiss persons who have been guilty of misconduct from membership. It cannot be a failure of natural justice for the executive council to exercise both powers when the rules expressly provide that they may do so. It js simply a question in relation to each power whether there has been an honest and bona-fide exercise of that power. If the conduct complained of is such as to justify the executive council superseding members as executive officers of branches and also dismissing them from membership, then the executive council has

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prosecutor of the charges, Mr. Dougherty, the general secretary of the union, also participated in the deliberations of the tribunal. This was an invocation of the principle that it is contrary to natural justice for a person to be both prosecutor and judge at the same time. In Frome United Breweries Co. Ltd. v. Bath Justices (1), Viscount Cave L.C. said, " My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially ; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others." It will be seen that bias need not be proved in fact. It is sufficient if the person who is to sit as judge is in such a position that a bias must be assumed. It is necessary not only that justice should be done but that it should appear to have been done. It is not therefore necessary to prove bias in fact, it is sufficient if a litigant might reasonably believe that the tribunal was biassed (Cottle v. Cottle (2)). But this principle must also give way to express or implied provisions to the contrary. It happens over and over again that the rules of voluntary associations impose both administrative and quasi-judicial functions on the body set up by the rules to manage its affairs, and entrust to the same body the duty of deciding whether to call upon a member to show cause why he should not be expelled, and then determining whether his conduct warrants his expulsion or not. In the present case the charges were originated and prepared by Dougherty and approved by the executive council. All the members of the executive council were therefore prosecutors. Rule 33 of the rules of the union provides that the general secretary of the union shall be a member of the executive council. Rule 47 (6) provides that the general secretary shall have the right of speech on all occasions. Rule 47 (c) provides that it shall be the duty of the general secretary to attend all meetings of the executive council and take minutes of same. Dougherty was therefore entitled under the rules to sit as a member of the executive council when the charges against the respondents were under review, and it was part of his duties as general secretary

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to attend the meeting and place before the executive council the whole of the material which he considered to have a bearing on the investigation. After Roper J. had given judgment, Dougherty published a pamphlet entitled " The truth about the attack by the New South Wales branch executive on the Australian Workers' Union," which was described as " a synopsis of a series of articles published in the Australian Worker, in which the general secretary, Mr. Tom Dougherty, refutes the attack made by certain individuals who were members of the New South Wales branch executive on the Australian Workers' Union." In this pamphlet the conduct of the respondents was bitterly attacked. But the respondents had not hesitated to make equally bitter attacks on Dougherty. This controversy was not sufficient to place Dougherty in a different category to that of the other members of the executive council. They were all made by the rules prosecutors and judges. There was probably more personal bitterness between Dougherty and the respondents than there was between the other members of the executive council and the respondents. Dougherty would only have been disqualified if there were special circumstances which made the proceedings before the executive council proceedings in the nature of a lis between himself and the respondents : Maclean's Case (1). Illustrations of such a lis are afforded by R. v. London County Council; Ex parte Akkersdyk and Fermenia (2), and Law v. Chartered Institute of Patent Agents (3) where some of the members of the quasi-judicial body had already litigated the very question on which they had to adjudicate with the person charged before another tribunal. A further illustration is afforded by a case in this Court, Dickason v. Edwards (4), where a member was charged with using abusive language to the district chief ranger before the District Judicial Committee and the district chief ranger presided as chairman during the hearing of the charge. There was no quasi-lis between Dougherty and the respondents which made Dougherty a judge in a matter in which he was per- sonally interested. The investigation related to matters which con- cerned the affairs of the union. As a matter of good taste it might have been better if Dougherty had not taken part in the delibera- tions, but I am unable to find any evidence on which Ji udge Kelly could find that Dougherty was legally disqualified from doing so (Maclean's Case (5) ). For these reasons I would allow the appeal.

At a glance

Court

Decision date

Before

Source

Judgment (192 paragraphs)