Watersider’s Claim Decision Reserved After Hearing Of Addresses

Wanganui Chronicle, 17 October 1950, Page 6

Watersider’s Claim Decision Reserved After Hearing Of Addresses

Claim For Injunction Has Not Been Abandoned

AUCKLAND, Last Night (P.A.i After hearing final addresses from counsel. Mr. Justice Callan today reserved his decision in the claim brought by Noel Donaldson, former vicepresident of the Auckland branch of the New Zealand Walerside Workers’ Union, for £lOOO general damages from the union. Donaldson sued the union on the ground of his alleged wrongful illegal and invalid expulsion from the union.

He also sought an injunction restraining the union from enforcing his expulsion or interfering with his rights of membership. Mr A. K. North. K.C., and Mr A. K. Turner appeared for Donaldson in the case. Defendant union was represented by Mr T. A. Gresson and Mr R. K. Lavison. The hearing lasted five days. Mr T. A. Gresson, for the defendant union, submitted that under rule 11 of the union’s rules, the Auckland branch had power to suspend Donaldson, but the rules required that the branch should do that by a special meeting. “I must concede that the stop-work meeting of March 20, which suspended Donaldson, was not a special meeting within the meaning of rule 11,” Mr. Gresson proceeded. ‘‘On the other hand, the evidence shows that Barnes and the Auckland executive acted in good faith and in best interests byplacing before the stop-work meeting all the facts. As all work stops during these waterfront meetings, I submit that the rank and file were able to turn out in strength and gave Donaldson the widest opportunity to justify his conduct.” Mr. Gresson said the branch executive meetings in February, at which Donaldson’s telephone calls and the Kingston and Fawcett letters first came under official notice, were requested by Donaldson himself. Donaldson was given every opportunity to clear himself before the executive. BRANCH RI LE. “Under rule 10, the branch or the national executive could have suspended Donaldson out of hand, pending the special meeting,*’ Mr. Gresson stated. “If there was any truth in the allegation that Donaldson was being ‘railroaded,’ that would have been the obvious way to do it.” Donaldson had four weeks’ notice of the stop-work meeting, at which he knew his whole conduct would come under fire. He had ample opportunity' to prepare his answer. He knew he was under suspicion—admitted the men had sent him to Coventry—and had time to fully justify his conduct before the stop-work meeting. At this meeting Barnes (the chairman) had made no effort to throw- his not inconsiderable weight into the scales. He had not spoken to the motion. “If Barnes had intended to railroad Donaldson, surely he would have used his influence,” counsel submitted. “DEFECT IN PROCEDURE.” “The most that can be said against the union on the question of Donaldson’s suspension was that this action was taken at a stop-work meeting, instead of a special meeting. This action, I submit, is a defect in procedure only. Donaldson’s suspension had no financial consequences—he could still obtain w-ork as a watersider. and any perquisites he may have lost or any restriction that may have been placed on his bowling activities were due not to his suspension but to his failure to be re-elected to office. *’ Mr. Gresson said that Donaldson’s challenge against the validity of his expulsion was broadly a complaint that it was contrary to national justice in certain respects. Counsel submitted that it was of vital importance to sote that Donaldson did not and could not allege that his expulsion was contrary to union rules, or established union practice. Mr. Gresson referred His Honour to various authorities and submitted that a Court would only interfere in an action of this sort by a national executive if it was satisfied there had been a fundamental error in the proceedings. Dealing with Donaldson’s challenge to the national executive meeting, Mr Gresson submitted that rule 13, under which Donaldson was dealt with, did not in its terms require written notice of the charges. Regarding the assault charges, Mr. Gresson said it could be seen from th? evidence and the minutes that the assault was not in fact taken into account. “SERIOUS CHARGES.” “The only matters which w-ere treated as substantial,” Mr. Gresson said, “were the last two charges concerning the divulging of union business and. most important, the charges which Donaldson had elected to make in his circulars —serious charges against the union leaders and the executive. He was called on to justify these charges and failed to do so. He invited with his eyes open disciplinary action against himself.” Mr. Gresson submitted that no witnesses would halve helped him on that topic, and that by agreeing to continue with the hearing at 2.15, Donaldson waived his right to complain against any irregularity. Barnes had acted in Donaldson’s trial according to union’s rules, which gave the president the right to speak ar.d vote on all questions. Mr. Gresson submitted that on the question of damages the union was on very strong ground. “Donaldson has unequivocally abandoned any idea of returning to the waterfront, although the evidence established that his job would still be available to him,’’ Mr. Gresson concluded. “I therefore contend that any damages must be confined to Ihe period between his expulsion and the start of the present hearing.” “SMEAR CAMPAIGN.” “Seldom has there been unfolded in a Court of law an account of happenings which offend or outrage every principle of natural justice.” said Mr A. K. North, for plaintiff. “Donaldson was driven remorselessly from the union because Barnes and his friends decided that he must go. Both his suspension and expulsion were illegal, and a clear pattern emerged as the evidence was unfolded. The first attempt was to dislodge Donaldson from his branch vice-presidency by wrongly contending that he had resigned. The second was the seizing of the Leicester incident by those opposed to him to start a ‘smear campaign.’ Bob

I Jones has made it clear that he regretted making his statement 'in anger and that he had no intention of inferring that Donaldson had been selling out union secrets.” Mr. North suggested that DonaldI son’s suspension was a “put up ’’ job l by Barnes, in collaboration with some 'members of the Communist Party. ' Counsel recalled that when he crossexamined Mitchell, who moved Don- ■ aldson’s suspension, he referred to his political allegience. He did so because lit was part of the case that Barnes | was wmrking in close collaboration with the Communist element. Mr North said it was hopelessly wrong to suspend Donaldson at the stop-work meeting. He had no warning that anything was going to happen. Only 1000 or 1200 of over 2000 voting members were at the meeting. Those not there could have no idea what was coming up and that their i vice-president was being suspended. Mr North submitted that Darnes knew Donaldson had not been selling out union secrets, that Mitchell was going to spring the resolution, and that he (Barnes) was determined to see that no interfering body stopped the thing going through. Mr North said that Donaldson’s whole attitude in connection w'ith the Kingston letter had been very proper. Barnes admitted he was not troubled by it. or that Donaldson ever tried to use it against him. When Donaldson was actually compelled to refer to the letter, he warned Barnes beforehand. QUESTION OF DAMAGES The question of damages was dealt with by Mr Turner for plaintiff in his closing address. He said the circumstances disclosed a tort as well as a breach of contract. Once the tort, was committed, damages w'ould be at large. Plaintiff should have substantial damages, including exemplary damages. If an injunction was granted the following claims would be made:—

(1) The difference between plaintiff’s earnings from the date of his expulsion to the present and those he would have earned in the union. (2) The amount lost of his contributions now forfeited to the benefit fund. (3) Damages for the loss of amenities which he would have enjoyed as a member. (4) Exemplary damages for wilful and wanton disregard of his rights for the insult offered and the malicious motive which had actuated his expulsion. If an injunction was not granted, additional claims would be made for future loss of earnings and amenities. “It has been said that he could go hack to the waterfront if he liked, but he chose not to do so. We ask your Honour to disregard that view altogether. Our submission is that Donaldson’s evidence justifies the conclusion that it would be unreasonable to suggest that he could go back tG his former life there. Against that there is the evidence of Barnes. We .-submit that Barnes was speaking with his tongue in his cheek when he said that Donaldson could go back satisfactorily. He could not.” His Honour: What inference do you invite me to take? Donaldson himself said that it would not be safe, that he might have an unfortunate accident. You are inviting me to agree with you?

Mr Turner: Yes. His Honour: I am to decide that he might have an accident, and to say that the fear he expressed has some substance, that it might be something physical or that the antagonisms that have arisen could not be lived down? Mr Turner: Not the first alternative. I say that the wrongful actions of the union have brought about antagonisms under which it w’ould be unreasonable to ask any man to live. His Honour: In view of w’hat has happened and has been said openly in this Court, it might be argued against you that if Donaldson went back to the wharf the odds against any accident happening to him are greater than t h °se for any other workers there because of the construction that could be put upon the happening. Concluding his address, Mr North said the conflict of evidence between Kingston and Barnes about the meetings put Barnes on the spot. The claim for an injunction had not been abandoned, although it was impossible for plaintiff to return. However it the Court held that damages would be less if an injunction was given, the plaintiff would prefer not to have an injunction. His Honour reserved his decision.