Cains, David James v. Jenkins, Eileen & Ors [1979] FCA 63

Cains, David James v. Jenkins, Eileen & Ors [1979] FCA 63

The committee that removed the claimant from office was not so biased, whether individually or corporately, as to vitiate their decisions, and even if it were so, the necessity principle required that only the committee could act under the rules. The refusal to allow the claimant to be represented by his chosen agent did not breach natural justice nor invalidate the decision, as there was no rule conferring a right to representation and the committee exercised a long-standing discretion/policy in that regard. The claimant did not waive his rights, but in any case, the claimant failed to establish invalidity of the committee’s decision to remove him from office.

Parties
Claimant: David James Cains; Respondent: Eileen Jenkins; Respondent: Carlo Frizziero; Respondent: Nick Pannagopoulos; Respondent: George Bissiotis; Respondent: Morgan Davis; Respondent: Paul Cooper; Respondent: Shirley Skidmore; Respondent: Alfred Gempton; Respondent: Elsie Hill; Respondent: Beverley Webber; Respondent: Shirley Birch; Respondent: Kim Hammerlund; Respondent: Brian Morel; Respondent: Megan Chalon
Jurisdiction
Australia
Judgment Date
26 June 1979
Procedural Posture
Application for Orders (industrial/union Context) / Judgment Following Hearing
Outcome
Application dismissed (rule nisi discharged)
Legal Topics
Natural Justice, Bias in Domestic Tribunals, Union Rules and Procedure, Removal From Office, Discretionary Representation, Principles of Necessity
Industrial Law Administrative Law Natural Justice Bias in Domestic Tribunals Union Rules and Procedure Removal From Office Discretionary Representation Principles of Necessity

Case Brief

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Parties

David James Cains

Claimant

Eileen Jenkins

Respondent

Carlo Frizziero

Respondent

Nick Pannagopoulos

Respondent

George Bissiotis

Respondent

Morgan Davis

Respondent

Paul Cooper

Respondent

Shirley Skidmore

Respondent

Alfred Gempton

Respondent

Elsie Hill

Respondent

Beverley Webber

Respondent

Shirley Birch

Respondent

Kim Hammerlund

Respondent

Brian Morel

Respondent

Megan Chalon

Respondent

Procedural Posture

Application for Orders (industrial/union Context) / Judgment Following Hearing

Legal Issues

  1. 1 Whether the claimant was denied natural justice due to alleged bias of committee members and refusal to allow legal representation before a union disciplinary committee
  2. 2 Whether decisions of the committee were vitiated due to alleged bias or failure to exercise discretion regarding representation
  3. 3 Whether the committee’s actions were otherwise invalid for failure to comply with association rules

Ratio Decidendi

The committee that removed the claimant from office was not so biased, whether individually or corporately, as to vitiate their decisions, and even if it were so, the necessity principle required that only the committee could act under the rules. The refusal to allow the claimant to be represented by his chosen agent did not breach natural justice nor invalidate the decision, as there was no rule conferring a right to representation and the committee exercised a long-standing discretion/policy in that regard. The claimant did not waive his rights, but in any case, the claimant failed to establish invalidity of the committee’s decision to remove him from office.

Court Disposition

Application dismissed (rule nisi discharged)

Orders

  • Rule nisi discharged.