Federal Court Allows Union Bias Case to Proceed

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[APPELLANT] v [NAME] [1999] FCA 634 Industrial Law – notice of motion to discharge rule to show cause – motion dismissed – no point of principle. Workplace Relations Act 1996 (Cth), s 209 Federal Court Rules, O 20, r 2(a)

[NAME] v [NAME] (1947) 77 CLR 601 cited [NAME] v [NAME] (1910) 10 CLR 243 cited Matter No. SG 141 of 1998 [APPELLANT] v [NAME] and [NAME] J 10 MAY 1999 [APPELLANT]

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 141 OF 1998

BETWEEN: [APPELLANT]

Applicant

AND: [NAME] and [NAME]

Respondents

[APPELLANT] OF ORDER: 10 MAY 1999

[APPELLANT]

THE COURT ORDERS AND DIRECTS THAT:

1. Notice of motion filed on 13 April 1999 dismissed.

2. Question of costs, if any, reserved.

3. Direct the applicant to file and serve an affidavit identifying any further documents to be relied on in the applicant's case within seven days.

4. Liberty to the respondents and any of them to file affidavits in reply to the applicant's affidavits within twenty-one days.

5. Liberty to apply on three days' notice.

6. Confirm the date for trial as 21 June 1999 before Marshall J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 141 OF 1998

[APPELLANT]

Applicant

AND: [NAME] and [NAME]

Respondents

JUDGE: [NAME] J

DATE: 10 MAY 1999

PLACE: [APPELLANT]

EX TEMPORE

REASONS FOR

DECISION 1 On 22 December 1998 I made an order to show cause based on an affidavit that had been filed by Ms [APPELLANT]. I limited the order to show cause to paragraph 6 of that affidavit which raised as a challenge to the decision of the State Council made on 26 November 1998, the fact that three members of the Council were, so it was alleged, invincibly biased. Other grounds for attacking the validity of the decision were rejected by me. 2 At the time that the rule to show cause was made I observed: "The allegations of invincible bias put forward in the affidavit are, to adopt the language of counsel for Mr [COUNSEL] and Mr [COUNSEL], very thin. Indeed part of it is hearsay and in some respects it is put forward in an argumentative way. If this were the trial of the action the evidence in the affidavit in support of those matters would probably not be admissible and certainly would be entitled to little weight. However, this is not the trial. The purpose of the affidavit is rather to identify whether there are grounds upon which the argument can be reasonably asserted. Taking the allegations at face value and without passing any comment about their veracity it seems to me that the matters raised, or at least some of them, would leave the inference of invincible bias open. In my opinion a proper course is to grant an order nisi limited to paragraph 6 of the supporting affidavit and give directions requiring that affidavits in an admissible form be filed within a reasonable time by Ms [APPELLANT] to support the allegations made in paragraph 6. It must be understood by Ms [APPELLANT] that she seeks to raise a very serious matter. Correspondingly the evidence that she advances in support of it must be admissible and must be in proper form. Further, it must be understood that when the matter next comes before the Court, and indeed if it proceeds to trial, the Court will hold Ms [APPELLANT] to the matters of fact which are asserted; that is the affidavits will operate as pleadings." 3 In the meantime, affidavits in addition to those that were before the Court at the time of the order to show cause have been filed by Ms [APPELLANT]. There are two substantial affidavits by her, one filed in February and one in March 1999, and there are other affidavits by witnesses that she proposes to call. In addition, she has given notice through her counsel that she proposes to subpoena three witnesses who will give oral evidence on certain issues. 4 In respect of that additional material a notice of motion has now been filed seeking an order discharging the order to show cause on the ground that no reasonable cause of action is disclosed: FCR O 20, r 2(a). 5 The purpose of the rule to show cause was to institute an application order under s 209 of the Workplace Relations Act 1996 (Cth) for an order to comply with the Rules of the Union. In a sense, the order to show cause institutes an inquiry into what has happened and it is in the nature of litigation taken in the interests of the members of the Union, rather than being limited to the interests of the particular parties before the Court. I am not sure that it is appropriate to speak in terms of there being no cause of action disclosed. However, it is open to the respondents to come forward now and say that the additional material is not such as to warrant the order to show cause, and that it ought to be discharged on the basis that the material taken at its most favourable from the applicant's point of view could not support the relief sought. I have approached the matter on that basis. 6 There are really two aspects to the matter today: the first is whether the material now available, taken at its most favourable to the applicant, could lead to findings of invincible bias against one or more of the persons concerned. If the answer to that were, as a matter of fact, yes, there would be a further question of law as to whether the finding that only one, two or three members of the Council were invincibly biased inevitably leads to the setting aside of the decision. It has been put to me today that there are authorities both ways, but it seems to me clear from [NAME] v [NAME] (1910) 10 CLR 243 and [NAME] v [NAME] (1947) 77 CLR 601 that there is strong authority for the proposition that if there is a person invincibly biased sitting on a discipline tribunal of this kind, where principles of natural justice in one form or another apply, that is sufficient to vitiate the whole exercise. 7 Secondly, a further matter has been raised today and it was also raised on 22 December 1998, namely whether in any event Ms [APPELLANT] should be taken to have waived the complaint she now makes about the invincible bias of the three persons that she has identified. It is said that she was aware of the facts well before the hearing, and by that I take the respondents to mean aware that the three people were proposing to sit, and she should have done something more than she did to complain about their presence. 8 I indicate to the parties that in advance of this hearing I thought it was probably inevitable that things would be said in the course of argument today which might give the appearance that I had formed some view about some of the facts. I indicate that I have not, but nevertheless, in case there is any perception to that effect I have arranged for another judge to hear this case on 21 June 1999. 9 My conclusion, having heard the arguments today and having read the additional affidavit material, is that there remains a basis upon which it could be inferred from that evidence, if no other evidence were called, that each of the three people that are named were invincibly biased in the sense that not only were they people actively and strenuously of the same political persuasion as Mr [NAME], but that they had become so involved with his cause that they would not be likely to be influenced by argument and reason to decide the matters before the State Council on their true merits. I emphasise that that is a view expressed in a theoretical sense having regard to the evidence put forward by one side only, and at this stage still unanswered. The only point that arises from my conclusion is that I think it is possible that adverse decisions to the respondent's interests could be made if the evidence remains as it is. Having said that, and because another judge is going to hear the case, I think the less said about the facts by me the better. 10 On the question of waiver, in making the order to show cause on 22 December 1998, I note, on re-reading what I said then, that I commented that the question of waiver was an open one but it was premature at that stage to address the facts. In the course of argument today it dawned on me that these proceedings are not strictly proceedings inter partes. They have the public interest element that I have already mentioned and I think there is a very serious question, worthy of debate and decision in a considered way, as to whether waiver is open at all. But even if it is, in my opinion it would be premature to strike out the proceedings on the basis that Ms [APPELLANT] had waived whatever rights might otherwise have existed under s 209. 11 Waiver is a matter that is customarily to be pleaded by the party that seeks to rely on it, not just by asserting in bald terms "waiver", but by giving particulars of the facts and circumstances that are said to give rise to that waiver. The plea is then followed by allowing the person against whom the allegation is made the opportunity to allege facts in answer to the particulars that are given and to offer any explanation. Then at trial the facts have to be determined. In the present case at this stage no answer has been given by Ms [APPELLANT] to the vague allegations of waiver that are being made against her. If waiver is to be raised that is something which needs to be raised by the respondents on the papers, and Ms [APPELLANT] should be given the opportunity to respond. That has not yet happened, so in my view, it is still premature to be taking any action that would determine the proceedings on the basis of waiver. 12 For those very brief reasons I think the notice of motion taken out by Mr [NAME] to discharge the order to show cause should be dismissed. The matter will proceed in the ordinary way to trial on 21 June 1999. 13 There is one further matter that I should mention. In the course of argument it was said by counsel for Ms [APPELLANT] that it would also be premature to discharge the order to show cause at this stage because discovery is still being given. It is true that discovery orders were made late and that there have been difficulties in complying with them. I can understand that the applicant is still receiving some papers by way of discovery, but it was the intention of the orders made on 22 December 1998, that Ms [APPELLANT]'s affidavits would stand, as it were, as pleadings intended to identify the topics upon which evidence might later be given. The parties should bear that in mind. Insofar as discovery is still being given it should be discovery relevant to issues that are identified in the affidavits and not generally at large. No doubt when the case is tried, the relevance of questions, cross-examination and so on, will also be decided according to the topics that are already identified in the affidavits. 14 I will make the following orders and directions:

1. Notice of motion filed on 13 April 1999 dismissed.

2. Question of costs, if any, reserved.

5. Liberty to apply on three days' notice.

6. Confirm the date for trial as 21 June 1999 before Marshall J. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] von [NAME].

Associate: Dated: 10 May 1999 Counsel for the Applicant: [redacted]

Solicitor for the Applicant: [redacted]

Counsel for Mr [COUNSEL]: Mr [COUNSEL] F [COUNSEL] QC with Mr [COUNSEL]

Solicitor for Mr [COUNSEL]: [COMPANY]

Counsel for [NAME]: Mr [COUNSEL]

Solicitor for [NAME]: [NAME]

Counsel for Mr [COUNSEL], Mr [COUNSEL] & Mr [COUNSEL]: Mr [COUNSEL]

Solicitor for Mr [COUNSEL], Mr [COUNSEL] & Mr [COUNSEL]: [COMPANY] of Hearing: 10 May 1999

Date of Decision: 10 May 1999