FEDERAL COURT OF AUSTRALIA Employment Advocate v Williamson [2001] FCA 1164 INDUSTRIAL LAW – organisation – freedom of association – freedom not to belong to trade union – shop steward on construction site – statements to representative of contractor – no particular employee or prospective employee in contemplation – whether statements constituted advice encouragement or incitement to take action which, if taken, would have constituted taking action for a prohibited reason EVIDENCE – improperly obtained – power to admit – whether discretionary – factors to be taken into account WORDS AND PHRASES – "propose" – "does not propose to" – "do not propose to" – "advise, encourage or incite" Workplace Relations Act 1996 (Cth) s 298A, 298K, 298L, 298P(3), 298U, 298V, 298X Evidence Act 1995 (Cth) s 55, 138 Conciliation and Arbitration Act 1904-1958 (Cth) Acts Interpretation Act 1901 (Cth) s 15AB Listening Devices Act 1969 (Vic) s 4 Federal Court Rules O 4 r 6, O 10 r 1 Burgess v John Connell-Mott, Hay and Anderson Pty Ltd (1979) 37 FLR 386, cited Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, followed Hamberger v Construction Forestry Mining & Energy Union [2000] FCA 1924, considered Employment Advocate v National Union of Workers [2000] FCA 710; 100 FCR 454, considered Bennett v Milliner (1959) 1 FLR 312, considered Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180, cited Bunning v Cross (1978) 141 CLR 54, applied R v Swaffield (1998) 192 CLR 159, followed Norbis v Norbis (1986) 161 CLR 513, cited Walton v Gardiner (1993) 177 CLR 378, cited Ridgeway v R (1995) 184 CLR 19, applied Dau v Emanuele (1995) 60 FCR 270, applied Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180, cited Flentjar v Repatriation Commission (1997) 48 ALD 1, cited Snook v London and West Riding Investments Ltd [1967] 2 QB 786, cited Saffron v Federal Commissioner of Taxation (1991) 91 ATC 4501, cited Banque Commerciale SA, en liquidation v Akhil Holdings Limited (1990) 169 CLR 279, cited Dare v Pulham (1982) 148 CLR 658, cited McCarthy v McIntyre [1999] FCA 784, cited Ting v Blanche (1993) 118 ALR 543, considered Igaki Australia Pty Ltd v Coastmine Pty Ltd (1996) 34 IPR 37, cited Cummings v Lewis (1993) 41 FCR 559, cited Metwally v University of Wollongong (1985) 60 ALR 68, cited Coulton v Holcombe (1986) 162 CLR 1, cited Water Board v Moustakas (1988) 180 CLR 491, cited Riseda Nominees Pty Ltd v St Vincent's Hospital (Melbourne) Ltd [1988] 2 VR 70, cited Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351, cited Macquarie Dictionary 3rd ed. 1998 JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE v IAN WILLIAMSON AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION V 955 of 2000 GRAY, BRANSON AND KENNY JJ 24 AUGUST 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 955 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPELLANT AND: IAN WILLIAMSON FIRST RESPONDENT THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION SECOND RESPONDENT JUDGE: GRAY, BRANSON AND KENNY JJ DATE OF ORDER: 24 AUGUST 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT the appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 955 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPELLANT AND: IAN WILLIAMSON FIRST RESPONDENT THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION SECOND RESPONDENT JUDGE: GRAY, BRANSON AND KENNY JJ DATE: 24 AUGUST 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT GRAY J: 1 This appeal is from the judgment of a single judge of the Federal Court of Australia, dismissing an application for the imposition on the respondents of penalties in respect of two alleged contraventions of s 298P(3) of the Workplace Relations Act 1996 (Cth) ("the Act"). 2 The appellant is the Employment Advocate, appointed pursuant to Pt IVA of the Act. The second respondent, the Construction, Forestry, Mining and Energy Union, is an organisation of employees, registered pursuant to Pt IX of the Act. When the events the subject of this proceeding took place, the first respondent was a member of the second respondent and was its shop steward at a building site in Muir Street, Hawthorn. The first respondent was employed by Abigroup Contractors Pty Ltd ("Abigroup"), the head contractor in respect of construction work in progress at that site. 3 Abigroup had entered into a contract with Carson Painting Contractors Pty Ltd ("CPC"), whereby CPC was obliged to supply labour, equipment and materials for the performance of all painting work at the site. The managing director of CPC was Mr Lee Carson. CPC employed various persons, including Mr Carson's son Craig, to perform painting work at commercial and domestic building sites. The numbers employed at any one time depended upon the workload of CPC. CPC had also engaged IJ Enterprises Pty Ltd ("IJ") to perform various functions for it. IJ was owned and controlled by Mr John Lyten, who appears to have been the only person through whom IJ acted. He performed estimating work for CPC and assisted CPC in securing painting contracts. He was heavily involved in on-site supervision of painters employed by CPC. At the Muir Street site, Mr Lyten worked as the supervisor of CPC's operations. 4 On an unknown date, either in late January or in early February 1999, there was a conversation between Mr Lyten and the first respondent at the site. The first alleged contravention of s 298P(3) of the Act is alleged to have occurred in that conversation. On 11 February 1999, a conversation took place at the site between Mr Lyten, Mr Lee Carson and the first respondent. That conversation was alleged to have given rise to the second contravention of s 298P(3) of the Act. The legislative provisions 5 Section 298P of the Act is found in Div 5 of Pt XA of the Act. Subs (3) provides: "An industrial association, or an officer or member of an industrial association, must not: (a) advise, encourage or incite an employer; or (b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer; to take action in relation to a person that would, if taken, contravene section 298K." 6 The phrase "industrial association" is defined in s 298B(1). The definition includes "an organisation". That term, in turn, is defined in s 4(1) of the Act to mean an organisation registered under the Act. Section 298B(1) also contains a definition of "industrial action", for the purposes of Pt XA: "industrial action means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or (b) a ban, limitation or restriction on the performance of work, or acceptance of or offering for work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work; but does not include: (e) action by employees that is authorised or agreed to by the employer of the employees; or (f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or (g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform." 7 Section 298K of the Act provides: "(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. (2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) terminate a contract for services that he or she has entered into with an independent contractor; (b) injure the independent contractor in relation to the terms and conditions of the contract for services; (c) alter the position of the independent contractor to the independent contractor's prejudice; (d) refuse to engage another person as an independent contractor; (e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor." 8 Section 298L provides: "(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or (b) is not, or does not propose to become, a member of an industrial association; or (c) in the case of a refusal to engage another person as an independent contractor: (i) has one or more employees who are not, or do not propose to become, members of an industrial association; or (ii) has not paid, or does not propose to pay, a fee (however described) to an industrial association; or (d) has refused or failed to join in industrial action; or (e) in the case of an employee - has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or (f) has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or (g) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or (i) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek: (i) compliance with that law; or (ii) the observance of a person's rights under an industrial instrument; or (j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or (k) has given or proposes to give evidence in a proceeding under an industrial law; or (l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or (m) in the case of an employee or an independent contractor - has absented himself or herself from work without leave if: (i) the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and (ii) the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or (n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules. (2) If: (a) a threat is made to engage in conduct referred to in subsection 298K(1) or (2); and (b) one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or proposing not to do a particular act; and (c) the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires; the threat is taken to have been made for that prohibited reason." 9 Section 298U provides: "In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - $10,000; or (ii) in any other case - $2,000; (b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor; (c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate; (d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat; (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects; (f) any other consequential orders." 10 Section 298V provides: "If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." 11 Section 298X makes it plain that a contravention of Pt XA is not an offence. An application seeking the imposition of a penalty is therefore a civil proceeding. 12 It is also necessary to note s 298A, which provides as follows: "As well as the objects set out in section 3, this Part has these objects: (a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations." 13 Section 3 of the Act contains the following: "The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association" It is unnecessary for present purposes to set out other provisions of s 3. 14 The provisions of Pt XA to which I have referred are not necessarily easy to construe. It seems from the terms of s 3(f) and s 298A that the provisions have been drafted on the assumption that the freedom not to join an association and the freedom to join an association are counterpart freedoms. In metaphorical terms, it is assumed that freedom to join and freedom not to join are two sides of the one coin. The attempt to carry this notion into specific provisions, however, has created some difficulty, especially in the context of the various kinds of action contemplated by s 298K and, to an even greater extent, the prohibitions on communication contemplated by s 298P(3). 15 An examination of s 298L reveals the frequent use of the verb "propose" in both its present and past tense. This gives rise to a question as to the meaning that the word is intended to have in this context. Among the meanings given in the Macquarie Dictionary 3rd ed. 1998 are the following that appear to be relevant: "1. to put forward (a matter, subject, case, etc.) for consideration, acceptance, or action … 2. to put forward or suggest as something to be done … 4. to put before oneself as something to be done; to design; to intend." The verb can therefore be used in the sense of to make a proposal, ie to put forward for consideration, acceptance or action. Alternatively, it can mean simply to intend or to form a purpose. It is possible for a person to propose to do something, in the sense of forming an intention to do that thing, without communicating the fact that he or she proposes to take that action. It is difficult to see, however, how an uncommunicated intention could be relevant to s 298K. It is impossible to envisage a situation in which an employer or other person could take action of any of the kinds contemplated by s 298K for the reason that an employee, other person or independent contractor had formed a secret intention to do something. 16 On the other hand, it seems unlikely that the legislative intention was to confine the relevant provisions of s 298L to situations in which an employee, other person, or independent contractor makes or has made a formal proposal to do something. The objects of the provision are more readily served by providing persons who have formed an intention to do something with the protection that Pt XA gives. The practicality, however, is that these provisions cannot operate in respect of a person whose intention remains secret from the person who acts. 17 Paragraphs (b) and (c) are the only paragraphs in s 298L(1) in which the negative form of the verb "propose" is used. The form chosen is "does not propose to" or "do not propose to". There are three possible states of mind to which such words might apply: · It may be said that a person who has never considered whether to do a particular act does not propose to do that act. It is apparent, however, that the negative form cannot have been used in that sense. The complete absence of consideration of a particular subject by a person provides no indication of what, if any, intention that person might form if he or she considers the subject. Further, it is difficult to see how the fact that a person's mind has never been directed to a particular subject can become known without directing that person's mind to the subject, for instance, by means of a question. A question may direct the mind to the subject without causing the formation of an intention. For example, the question "What do you propose to do about X?" might be answered by "I don't know", thereby indicating that the answerer has not formed an intention on that subject. · A person may have considered a subject but not, or not yet, have decided what to do about it. In one sense, it can be said that such an undecided person does not propose to do a particular thing. The phrases "does not propose to" or "do not propose to" in s 298L(1)(b) and (c) may be intended to apply to the case of a person who, having considered whether or not to do the specified act, has not formed an intention to do it or an intention to refrain from doing it. Such a person remains in a state of indecision. For the provisions to be operative, such a state of indecision would have to be communicated. A secret state of indecision could not form a reason on which someone else could act. · The third possible meaning of "does not propose to" or "do not propose to" is "proposes not to" or "propose not to". Such a meaning would cover the case of a person who has formed an intention not to do a particular act. 18 The third meaning would be more apt to satisfy the legislative intention to treat non-membership of an association as the counterpart of membership. Proposing not to join an association is the direct counterpart of proposing to join one. A state of indecision about whether to join is not the direct counterpart of proposing to join. The end of the state of indecision (if it were to occur) might result in the formation of an intention to join, just as it might result in the formation of an intention not to join. A communicated intention to refrain from doing an act could well form a reason for another person to act. 19 The form of s 298L(2)(b) suggests that parliament intends "does not propose to" and "do not propose to" in s 298L(1)(b) and (c) to mean "proposes not" and "propose not". In s 298L(2)(b), the legislative drafter has chosen to use "proposing not to do a particular act" as the counterpart of "proposing to do a particular act". 20 For these reasons, I am of the view that "does not propose to" in s 298L(1)(b) and (c)(ii) means "proposes not to", and "do not propose to" in s 298L(1)(c)(i) means "propose not to". Before it is possible to carry out conduct of any of the kinds referred to in s 298K, for the prohibited reason referred to in s 298L(1)(b), there must be an employee, independent contractor or other person who is not, or proposes not to become, a member of an industrial association. Before it is possible to carry out such conduct for the prohibited reasons referred to in s 298L(1)(c), there must be a person who has one or more employees who are not, or propose not to become, members of an industrial association, or the person must have not paid, or propose not to pay, a fee to an industrial association. In each case, of course, the intention constituted by the proposal cannot be secret. 21 The use of the disjunctive in each of these provisions also causes difficulty. It is easy enough to identify action taken by an employer against an employee on the basis that the employee is not a member of an industrial association. The absence of membership is a fact that can be proved. It must be assumed that a person who proposes not to become a member of an association is not already a member of the association. Similarly, it must be supposed that a person who proposes not to pay a fee to an industrial association has not paid such a fee. It is difficult to imagine a situation in which conduct is carried out in relation to a person who proposes not to become a member of an industrial association, or not to pay a fee to an industrial association, which is not carried out for the reason that the person is not such a member or has not paid such a fee. 22 To treat "or" in s 298L(1)(b), (c)(i) and (c)(ii) as if it meant "and" would be to read the provisions as creating dual requirements. Conduct could not be carried out for a prohibited reason unless the person concerned both is not a member and proposes not to become a member, or has not paid and proposes not to pay a fee. Such an interpretation would be consistent with the notion that non-membership and membership are counterpart notions in the sense that it would not be expected that action would be taken against someone who, for instance, is a non-member of an association if that person is happy to become a member. A dual requirement would mean, however, that a contravention would occur when an opportunity was given for the victim to consider his or her position first, but not when more precipitate action was taken. If action were taken against a person simply on the ground of non-membership, the perpetrator would escape liability on the ground that the second element of the dual requirement, that the victim did not propose to become a member, was absent. Plainly, such a dual requirement is not intended. The legislative intention is that conduct carried out for the reason that the victim is not a member of an industrial association, or has not paid a fee to an industrial association, is to be proscribed, even if the victim in fact intends to become a member or to pay the fee. The reason for the use of the word "or" and for the references to not proposing to do something, in s 298L(1)(b) and (c) must remain obscure. 23 What is clear, however, is that, for a contravention of s 298K to occur, there must be a person or persons who fall within the description in one or more of the prohibited reasons. To take a simple example, even if an employer believes he or she is dismissing an employee because the employee is a member of an industrial association, there will be no contravention of s 298K(1)(a) if it turns out that the employee is not a member of the industrial association. Compare Burgess v John Connell-Mott, Hay and Anderson Pty Ltd (1979) 37 FLR 386. Similarly, a threat to engage in conduct of one or more of the kinds referred to in s 298K(1) for what appears to be a prohibited reason will not be a contravention if there is no basis for the prohibited reason. 24 Section 298P(3) adds another dimension to Pt XA. I have had the benefit of reading in draft form the reasons for judgment of Branson J in this case. Her Honour has referred in [71] - [72] to the gradations of meaning involved in the use of the phrase "advise, encourage and incite". I agree with what her Honour says in those paragraphs. It may be that the legislative intention in adding the words "encourage" and "incite", when all would fall within the meaning of the word "advise", was to provide for different levels of seriousness as a guide to the selection of the appropriate penalty. 25 In construing s 298P(3), it must be borne in mind that the provision derogates from the right of free speech. For good reasons, the legislature has chosen to minimise the infringement of this right by limiting the prohibited expressions to those which, if carried out by the recipient, will lead to conduct in contravention of s 298K. The Act does not make it unlawful to advocate membership, or non-membership, of trade unions. The Act does not make it unlawful to express the view that a particular workplace should be entirely unionised, or entirely non-unionised. The purpose of the legislation is the protection of people from adverse consequences of their choices whether or not to be members of associations of a particular kind. 26 For these reasons, I am of the view that, for there to be a contravention of s 298P(3), it must be possible to identify some conduct by the recipient of a communication that the recipient is being advised, encouraged, incited or coerced to take, and which, if taken, would, contravene s 298K. It must be possible to identify some person or persons who answer the description in at least one of the prohibited reasons in s 298L(1). It must be possible to construe the communication as advising, encouraging or inciting the recipient to take some action which that person is in a position to take, or as threatening the recipient with intent to coerce the recipient to take that action. How the requisite elements would be proved will depend upon the facts of a particular case. The context of a communication is all important. Words that might be entirely outside s 298P(3) in one set of circumstances might fall squarely within it in another. A demand that an employer not employ non-union labour may be of no effect when the employer is not contemplating engaging further employees, but of a very different effect when the employer is engaged in the process of hiring additional employees. For there to be a contravention of s 298P(3), there needs to be in contemplation a person, or perhaps a class of persons, having the characteristics described in one of the prohibited reasons, in respect of whom the recipient of the communication could act in a way that would cause that recipient to contravene s 298K. 27 Against this legislative background, it is necessary to look at the particular facts of the two alleged contraventions in the present case. The first alleged contravention 28 The evidence tendered in support of the first alleged contravention was very minimal. It consisted of the following short passage in an affidavit of Mr Lyten that was tendered in evidence before the learned trial judge: "He [the first respondent] has 'No Ticket – No Start' stickers all over his office, and his hat, and has lots of CFMEU pamphlets and other documents throughout his office. [The first respondent] said to us words to the effect that: 'Everybody who comes here to work has to be in the union.'" Counsel for the appellant relied on what the first respondent was alleged to have said as constituting the contravention. They relied on the "No Ticket – No Start" stickers as providing the context for the first respondent's statement. 29 No other evidence was tendered with respect to the first alleged contravention. There was no evidence that there was any employee, or prospective employee, of CPC or IJ in respect of whom any kind of action referred to in s 298K could be taken. The learned trial judge found that Mr Lyten was not an employee of IJ. The appellant did not challenge this finding on appeal. Indeed, counsel for the appellant conceded that Mr Lyten was not an employee of IJ. Nor was Mr Lyten an employee, or an independent contractor, of CPC. IJ did not have any employees. CPC was not said to be in the process of engaging, or planning to engage, any more employees than it already had working on the site. The evidence did not suggest that CPC had any existing employee working on the site who was not a member of the second respondent, or that it contemplated bringing onto the site any such employee. There was therefore not in the contemplation of the parties to the conversation in late January or early February 1999 any relevant person who was not a member of the second respondent and proposed not to become a member of the second respondent. 30 I have also had the benefit of reading the reasons for judgment of Kenny J in draft form. I agree with what her Honour has said at [110] about the function and effect of statements of contentions of fact and law filed pursuant to an order be made in the course of the management of a case in this Court. 31 In relation to the first alleged contravention, in par 13 of the Amended Contentions of Fact and Law filed by the appellant, reference is made to the statement of the first respondent in a conversation in late January or early February 1999. In par 14, the first alleged contravention was particularised as follows: "The first [the first respondent] statement constituted conduct by [the first respondent] and the union that was: (a) advice, encouragement or incitement of [CPC] and/or [IJ]; or (b) the threat to organise or take industrial action against [CPC] and/or [IJ] with the intent to coerce [CPC] and/or [IJ] - to take action in relation to a person and/or entity that would, if taken, contravene s.298K(1) and/or s.298K(2) of the Act. PARTICULARS OF THE CONTRAVENTION OF S.298K(1) OF THE ACT The first [the first respondent] statement constituted conduct of [the first respondent] and the union intended to encourage, incite or result in [CPC] and/or [IJ] doing or threatening to do any of the following: (i) dismiss an employee or employees; (ii) injure any employee in their employment; (iii) alter the position of an employee or employees to their prejudice; (iv) refuse to employ a person or persons; (v) discriminate against another person in the terms and conditions on which [CPC] and/or [IJ] offered to employ the other person, by requiring, as a condition of that employment, the other person join the union - for a prohibited reason or for reasons that include a prohibited reason within the meaning of s.298L(1)(b) of the Act, namely, because an employee(s) or other person(s) was not, and did not propose to become, a member of the union. PARTICULARS OF THE CONTRAVENTION OF S.298K(2) OF THE ACT The first [the first respondent] statement constituted conduct of [the first respondent] and the union intended to encourage, incite or result in [CPC] doing or threatening to do any of the following: (i) terminate a contract for services it has entered into with the independent contractor, [IJ]; (ii) injure the independent contractor, [IJ], in relation to the terms and conditions of its contract for services; (iii) alter the position of the independent contractor, [IJ], to the independent contractor's prejudice; (iv) discriminate against another person in the terms and conditions on which the person offers to engage the other person as an independent contractor - for a prohibited reason or for reasons that include a prohibited reason within the meaning of s.298L(1)(c)(i) of the Act, namely, because an independent contractor has one or more employees who are not, or do not propose to become, members of an industrial association." 32 It is obvious that whoever drew these particulars was not endeavouring to narrow the issues before the Court in relation to the first alleged contravention. The drafter was trying to ensure that every possible provision of s 298P(3) and s 298K was included, so that however the statement of the first respondent might be construed, it could be proved to have been a contravention. The reason for this strategy is obvious. It was not possible to identify from the evidence what action CPC or IJ was being advised, encouraged or incited to take or being coerced by threat of industrial action to take. It was impossible to identify what industrial action was being threatened from among the many elements of the broad definition of "industrial action" in s 298B(1). There was no person to whom the appellant could refer in particulars who would be likely to be affected by any action by CPC or IJ so as to bring about any contravention of s 298K. It was therefore necessary to cast the net as widely as possible and hope the Court would take the view that a contravention had occurred. 33 The appellant did not rely on the "No Ticket – No Start" stickers as themselves a contravention. Plainly, this was for the very good reason that the meaning conveyed by those stickers could not amount to a contravention of s 298P(3) in the absence of some context suggesting that they amounted to a message that some action should be taken that would amount to a contravention of s 298K. The statement of the first respondent added nothing to the stickers. Conversely, the stickers added nothing to the statement. In the absence of such a context, the statement could not be taken as suggesting that any particular action be taken against any actual person or class of persons, or any contemplated person or class of persons. The evidence led in relation to the first alleged contravention was quite incapable of sustaining it as a contravention of s 298P(3). The second alleged contravention 34 Kenny J has set out in [111] and [112] of her reasons for judgment the particulars relied on by the appellant in relation to the second alleged contravention. There is no need for me to repeat them. Like the particulars with respect to the first alleged contravention, those relating to the second alleged contravention were drawn as widely as possible, in the hope that some contravention could be found among the evidence. 35 The evidence tendered in relation to the second alleged contravention was, in substance, a tape recording of the conversation that occurred on 11 February 1999 and a transcript of the tape recording. The learned trial judge ruled the evidence of that conversation inadmissible under s 138 of the Evidence Act 1995 (Cth). It is unnecessary for me to consider whether his Honour correctly applied s 138, because I am of the view that, even if the evidence had been admitted, the second alleged contravention could not have been established. 36 My reasons for this view are similar to my reasons in relation to the first alleged contravention. As I have said, this Court was invited by counsel for the appellant to deal with the case on the basis that Mr Lyten was not an employee of IJ. The learned trial judge also found that Mr Lyten lied when he told the first respondent that CPC had "other blokes who don't want to join" the second respondent. His Honour found that there was no evidence about the existence of any such persons. This finding was not challenged by counsel for the appellant. As I have said, neither CPC nor IJ had any other relevant employees or prospective employees. There was simply no-one in respect of whom any act that would have been a contravention of s 298K could have been committed. There would be no point in returning the matter to the trial judge for further consideration of the admissibility of the evidence in support of the second alleged contravention when that alleged contravention could not be established in any event. Conclusion 37 For these reasons, I would order that the appeal be dismissed. The question of costs is governed by s 347(1) of the Act, which provides that a party to a proceeding, including an appeal, in a matter arising under the Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. It cannot be said that this appeal was so hopeless as to be described as vexatious or without reasonable cause. One member of the Court has reached the conclusion that it should be upheld in part. No order for costs can therefore be made. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 24 August 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 955 of 2000 BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPELLANT AND: IAN WILLIAMSON FIRST RESPONDENT THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION SECOND RESPONDENT JUDGES: GRAY, BRANSON & KENNY JJ DATE: 24 AUGUST 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT BRANSON J: INTRODUCTION 38 This is an appeal by the Employment Advocate from the dismissal by a judge of the Court of his application under s 298U of the Workplace Relations Act 1996 (Cth) ("the Act") for the imposition of penalties on the respondents for two alleged contraventions of Pt XA of the Act. By his application the Employment Advocate had also sought declarations that the respondents had engaged in conduct in contravention of s 298P(3) of the Act. THE PARTIES 39 Section 83BA of the Act provides that there is to be an Employment Advocate. The Employment Advocate, who is appointed by the Governor-General for a term of up to five years, holds office on a full-time basis (s 83BI of the Act). Section 83BB(1) of the Act specifies the functions of the Employment Advocate. Those functions include "investigating contraventions of Part XA". In addition, s 298T(2)(d) of the Act authorises, amongst others, the Employment Advocate to make an application to the Court for orders under s 298U of the Act in respect of conduct in contravention of Pt XA of the Act. 40 The first respondent ("Mr Williamson") was at all material times a member of the second respondent ("the Union") and a shop steward for the Union at a building site in Muir Street, Hawthorn, an inner-eastern suburb of Melbourne ("the Site"). 41 The Union is an organisation of employees registered under Div 1 of Pt IX of the Act. FACTUAL BACKGROUND 42 This summary of the facts is principally taken from the reasons for judgment of the learned primary judge. 43 The head contractor in respect of construction work conducted at the Site was Abigroup Contractors Pty Ltd ("Abigroup"). Carson Painting Contractors Pty Ltd ("CPC") had entered into a contract with Abigroup to supply labour, equipment and materials for the performance of all painting works at the Site. CPC usually employed between six and ten painters. The Managing Director of CPC was Lee Duncan Carson ("Mr Carson"). In the reasons for judgment of the primary judge, Mr Carson is referred to as "Mr Carson Snr". 44 From July 1998 until 11 February 1999, CPC purportedly engaged a company called IJ Enterprises Pty Ltd ("IJ") to perform certain work in connection with various of its painting contracts, including its contract with Abigroup. IJ was controlled by John Joseph Lyten ("Mr Lyten"). So far as IJ performed work in connection with CPC's contract with Abigroup, that work was done by Mr Lyten. Mr Lyten worked as a supervisor of CPC's operations on the Site although he undertook, in addition, some incidental painting work. 45 On a day which was probably in mid-January 1999, Mr Lyten was supervising the pre-coating of some doors on the Site. On that day Mr Lyten spoke with Mr Williamson. Mr Williamson was apparently aware at the time of Mr Lyten's role with respect to CPC's operations on the Site. Mr Williamson said words to the effect that "everybody who comes here to work has to be in the union". The Employment Advocate relied on this statement by Mr Williamson as constituting the first alleged contravention of s 298P(3) of the Act. 46 On 11 February 1999 an exchange took place between Mr Carson, Mr Lyten and Mr Williamson on the Site. The Employment Advocate sought to rely on this exchange as constituting the second alleged contravention of s 298P(3) of the Act. 47 On the previous day Mr Carson and Mr Lyten had gone to see Jeffrey Gordon Hanley ("Mr Hanley"). Mr Hanley was employed in the office of the Employment Advocate. Mr Hanley understood that Mr Lyten wanted advice about his rights as a non-union worker working on a union controlled construction site. Discussion ensued as to the sort of evidence required for the Employment Advocate to bring a case. Mr Hanley indicated that there was a need for a detailed record of any relevant contravention including any threats made. 48 Mr Lyten tape recorded the exchange which took place on 11 February 1999 without disclosing to Mr Williamson that he was doing so. The primary judge found that the exchange was the result of a confrontation deliberately contrived by Messrs Lyten and Carson with the intention of inciting Mr Williamson into making a comment which could be used against him in a proceeding under Pt XA of the Act. His Honour further found that Messrs Lyten and Carson deliberately lied to Mr Williamson in an attempt to inflame the situation. STATUTORY PROVISONS 49 Part XA of the Act is concerned with "Freedom of Association". It has, in addition to the general objects of the Act, the specific objects: "(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations." 50 Subsection 298P(3) of the Act provides: "An industrial association, or an officer or member of an industrial association, must not: (a) advise, encourage or incite an employer; or (b) organise or take, or threaten to organise or take, industrial action against an employer with intent to coerce the employer; to take action in relation to a person that would, if taken, contravene section 298K." 51 Section 298K is in the following terms: "(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. (2) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) terminate a contract for services that he or she has entered into with an independent contractor; (b) injure the independent contractor in relation to the terms and conditions of the contract for services; (c) alter the position of the independent contractor to the independent contractor's prejudice; (d) refuse to engage another person as an independent contractor; (e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor." 52 Conduct referred to in subs 298K(1) or (2) is for a "prohibited reason" if it is carried out because the employee, independent contractor or other person concerned, amongst other things: "(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or (b) is not, or does not propose to become, a member of an industrial association; or (c) in the case of a refusal to engage another person as an independent contractor: (i) has one or more employees who are not, or do not propose to become, members of an industrial association; or (ii) has not paid, or does not propose to pay, a fee (however described) to an industrial association …." 53 Section 138 of the Evidence Act 1995 (Cth) ("the Evidence Act") is headed "Discretion to exclude improperly or illegally obtained evidence". The section provides: "(1) Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may taken into account under subsection (1), it is to take into account: (a) the probative value of the evidence; and (b) the importance of the evidence in the proceeding; and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and (d) the gravity of the impropriety or contravention; and (e) whether the impropriety or contravention was deliberate or reckless; and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 54 Section 4 of the Listening Devices Act 1969 (Vic) ("the Listening Devices Act") at all relevant times provided: "(1) A person shall not – (a) use any listening device to overhear record monitor or listen to any private conversation to which he is not a party; or (b) except in the course of any legal proceedings or in accordance with the provisions of sub-section (2) communicate or publish the substance or meaning of any private conversation overheard recorded monitored or listened to by the use of any listening device, whether he was a party thereto or not – without the consent express or implied of the parties to the private conversation. Penalty: (a) if the person is a corporation – 500 penalty units; (b) in any other case – 40 penalty units or imprisonment for a term of 2 years or both. (2) Notwithstanding anything in paragraph (b) of sub-section (1) it is not an offence for a person who was a party to a private conversation to communicate or publish the substance or meaning of the private conversation which he has recorded by means of a listening device if the communication or publication is no more than is reasonably necessary in the public interest or in the course of his duty or for the protection of his lawful interests." REASONS OF THE PRIMARY JUDGE 55 The primary judge found that the first alleged contravention of the Act was not established. His Honour gave two reasons for this conclusion. First, that there was no evidence that Mr Williamson's statement that "everybody who comes here to work has to be in the union" was referred by Mr Lyten to Mr Carson so that "the comment did not reach the ears of CPC". Secondly, in so far as it was alleged that the statement of Mr Williamson constituted a breach of s 298P(3) in relation to IJ, there was no evidence that Mr Lyten was an employee of IJ. 56 As to the second alleged contravention, the primary judge accepted a submission made by counsel for the respondents that neither the tape recording of the exchange between Messrs Lyten, Carson and Williamson nor the transcript prepared from it should be received in evidence. His Honour does not in his reasons for judgment explicitly refer to the limited affidavit evidence which touched on the content of the exchange. However, counsel for the appellant conceded before this Court that his Honour is to be understood as having excluded that evidence along with the tape recording and the transcript. I will not in these reasons for judgment further refer to this limited affidavit evidence. 57 The basis of his Honour's ruling excluding the tape recording and the transcript was s 138 of the Evidence Act. It is necessary to set out at length his Honour's consideration of the admissibility of the tape recording and transcript which is found in [39]-[50] of his reasons for judgment: "Counsel for the respondents submitted that the Court should exercise its discretion pursuant to s 138 of the Evidence Act 1995 (Cth) ("the Evidence Act") to exclude from the evidence in the proceeding the tape recording and the transcript of it. It was submitted that the tape recording was obtained improperly or in consequence of an impropriety. I do not see how that submission can be seriously disputed. The conversation was an orchestrated confrontation engineered by Mr Lyten to deliberately provoke a dispute which would otherwise have, in all likelihood, not occurred. The conversation commenced with Mr Lyten and his co-conspirator, Mr Carson Snr, rehearsing their charade. The conversation contained a series of lies told by Mr Lyten. First, he lied by saying that he intended to paint (in the sense of doing so for the first time or as his substantive function) when he had already performed some painting duties on site. Any painting he performed was going to be incidental to his supervisory function and not in any way his main function and therefore unlikely to arouse Mr Williamson's interest as it had not done hitherto. Second, Mr Lyten lied when he told Mr Williamson that CPC had 'other blokes who don't want to join' the Union. There was no evidence about the existence of any such individuals. Third, he lied about losing a day's pay as a result of the stop work meeting on 9 February 1999. He secretly taped a conversation in which he inflamed the person he had decided to set up by a series of lies. How anyone could consider this conduct to be other than improper or designed to advance an impropriety defies rational consideration. Section 138(2) of the Evidence Act provides that: [the subsection is set out] Apart from constituting conduct which one would ordinarily consider to be improper, the false statements made by Mr Lyten also fit the description, referred to in s 138(2) of the Evidence Act,of statements 'likely to cause the person who was being questioned to make an admission'. Mr Lyten's lie that he intended to paint when he was already painting wrongly canvassed as truth a factual scenario where Mr Lyten's substantive role would be as a hands-on painter rather than as a supervisor. If Mr Lyten reaffirmed his true role to Mr Williamson, the issue of his union membership would, in all likelihood, never have arisen apart from Mr Lyten ensuring that it did by provoking a confrontation and lying in the course of that confrontation. Mr Lyten's lie about losing a day's pay was obviously intended to enrage Mr Williamson in order to engage him in a robust debate which would be likely to end acrimoniously, as actually occurred. In accordance with s 138(3) of the Evidence Act,I now pause to consider a range of matters referred to in that sub-section which have a bearing on the exercise of the Court's discretion. The important factors relevant to this proceeding to which reference is made in s 138(3) of the Evidence Act are as follows: · There would have been little difficulty obtaining the evidence required to successfully bring an application of the sort made in this proceeding, assuming the respondents to have no defence, if one of Mr Hamberger's officers had arranged to speak to the alleged transgressor (see s 138(3)(h)). · I consider the impropriety to have been deliberate on the part of Mr Lyten and Mr Carson Snr. Indeed, the evidence points to no other conclusion (see s 138(3)(e)). · The impropriety was grave given that it artificially manufactured a confrontation which would in all likelihood never otherwise have occurred. If such alleged behaviour of the Union and its various shop stewards was widespread, one might ask why there was no evidence of that. It reinforces my view that but for the artificially manufactured nature of the confrontation which was a result of Mr Lyten's distaste at the calling of the stop work on 9 February 1999, the conversation which was secretly taped would never have occurred (see s 138(3)(d)). · The evidence might otherwise have been probative and important in the proceeding given the nature of the proceeding (being one concerned with freedom of association) (see s 138(3)(a) to (c) inclusive). None of those factors makes it desirable to admit the evidence, given the undesirability of admitting it having regard to the way in which it was manufactured and obtained (see s 138(1)). This is particularly so in circumstances where the two key applicant witnesses gave generally unreliable viva voce evidence to the Court and showed a general lack of concern for probity. Mr Lyten, in the face of overwhelming evidence to the contrary, which ultimately led to a concession to the contrary, maintained in his oral evidence a position taken in his first affidavit that he was an employee of CPC. I suspect that he knew full well that he had attended at the Muir Street site as the proprietor of IJ and was never an employee of CPC. That he maintained such a position, in combination with his admission that he lied to Mr Williamson, makes the Court all the more reluctant to admit evidence of his concocted confrontation. I also view with great suspicion the fact that neither Mr Lyten [nor] Mr Carson Snr made any reference in their initial affidavits to their visit to Mr Hanley. It is unfortunate that the applicant's efforts to obtain interlocutory relief early in 1999 in this proceeding was made without all known relevant factual issues being disclosed to the Court, ie Mr Hanley's involvement with Mr Lyten and Mr Carson Snr. Further, in his viva voce evidence, Mr Lyten initially gave unacceptable evidence about whether there was anything secret about the recording. He also gave unacceptable evidence when he initially said that he did not decide to keep the fact of the tape recording secret. The same can be said of his evidence which denied that the confrontation was one which he expected to provoke. Additionally, his evidence that he needed to remind Mr Carson Snr about his views prior to embarking upon the confrontation was incredulous. Equally incredulous was his denial that he was trying to stir up a fight. The same applies to his evidence to the effect that Mr Williamson would have picked him out as a new-starter on 11 February 1999. Equally unacceptable was Mr Lyten's denial that he intended to provoke Mr Williamson into insisting that he, Mr Lyten, join the Union. I am reinforced in my view about the undesirability of admitting the evidence of the taped conversation having regard to the general unreliability of the person who orchestrated the confrontation and taped it. Mr Lyten's evidence is riddled with inconsistencies and in many respects, including those identified above, is not credible. His co-conspirator, Mr Carson Snr, was marginally more convincing. He gave oral evidence which conflicted with his affidavit evidence until reminded of his affidavit evidence in respect of his knowledge of the conversation with Mr Williamson being secretly taped. In his oral evidence he stated that he was unaware of Mr Lyten's reason for taping the conversation and 'unclear about exactly what was happening', when in his affidavit he stated that he knew that Mr Lyten was 'planning to tape record the conversation, and understood his reasons for doing so'. Given that the confrontational conversation and its taping in secret occurred with the co-operation and support of Mr Carson Snr, an additional consideration in the exercise of the discretion to refuse to admit into evidence the tape and the transcript of it is Mr Carson Snr's impugned incredibility. In short, Mr Williamson was set up by a highly artificially manufactured device arranged by two people who have a reckless indifference to probity and a propensity to give inconsistent and unacceptable evidence under oath. In all the circumstances, the Court will exercise its discretion to exclude the evidence which consists of the tape recording and the transcript of it pursuant to s 138 of the Evidence Act. Without such evidence there is no evidence at all to support the alleged second contravention. Consequently, the application will be dismissed." CONSIDERATION The First Alleged Contravention 58 The conduct relied on by the Employment Advocate as constituting the first alleged contravention of subs 298P(3) of the Act was the conduct of Mr Williamson in saying to Mr Lyten while he was on the Site the words "everybody who comes here to work has to be in the union". In respect of the first alleged contravention, the amended contentions of fact and law provided by the Employment Advocate asserted, amongst other things, that: "The first Williamson statement constituted conduct by Williamson and the union that was: (a) advice, encouragement or incitement of Carson Painting and/or [IJ]; or (b) the threat to organise or take industrial action against Carson Painting and/or [IJ] with the intent to coerce Carson Painting and/or [IJ] – to take action in relation to a person and/or entity that would, if taken, contravene s 298K(1) and/or s 298K(2) of the Act." 59 As is mentioned above, the primary judge gave two reasons for concluding that the first alleged contravention was not established. The first reason was, in effect, that in so far as CPC was said to be the relevant employer, there was no evidence that Mr Williamson's statement reached the ears of Mr Carson and thus of CPC. The second reason was, in effect, that in so far as IJ was said to be the relevant employer, there was no evidence that Mr Lyten was an employee of IJ. 60 The submissions of the Employment Advocate before this Court were advanced on the basis that CPC, and not IJ, was the relevant employer. It was argued that his Honour erred in not recognising that Mr Williamson's statement was made to Mr Lyten in his role as the representative on the Site of CPC. Reliance was placed on his Honour's finding that "[a]t the Muir Street site, Lyten worked as a supervisor of CPC's operations". The Employment Advocate submitted that because of Mr Lyten's supervisory role on behalf of CPC, Mr Williamson's statement was a statement by Mr Williamson to CPC which constituted advice, encouragement or incitement to CPC to take action in respect of a person (whether a current or possible future employee or Mr Lyten himself) that would, if taken, contravene s 298K of the Act. 61 The respondents accepted that his Honour had found that Mr Lyten was the representative of CPC on the site. However, the respondents pointed out that the evidence of Mr Lyten was that he could not remember the actual words said by Mr Williamson but that they were words to the effect that "everybody who comes here to work has to be in the union". The respondents contended that it would not have been open to his Honour to conclude in the light of this evidence that Mr Williamson's statement constituted advice, encouragement or incitement of CPC to do anything or a threat to organise or take industrial action against CPC. 62 The Employment Advocate argued that, given the setting in which Mr Williamson's statement was made, a finding that the statement did not at least amount to advice, encouragement or incitement to CPC to take action which, if taken, would have constituted a contravention of subs 298P(3) would have been highly artificial. The aspects of the setting upon which particular reliance was placed were that the statement was made at the Union's site office, which had 'No Ticket – No Start' stickers around it, by a union official who had a 'No Ticket – No Start' sticker on his hat. The Employment Advocate did not suggest, however, that the 'No Ticket – No Start' stickers could of themselves involve the Union, or one of its officers or members, in a breach of subs 298P(3). 63 Section 140 of the Evidence Act provides: "(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged." 64 The proceeding before his Honour, not being a criminal proceeding, was a civil proceeding within the meaning of the Evidence Act. (See the definitions of "civil proceeding" and "criminal proceeding" in the Dictionary forming part of the Evidence Act ("the Dictionary")). 65 In my view, subs 140(2) of the Evidence Act is intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 Mason CJ, Brennan, Deane and Gaudron JJ observed: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: 'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …'." (footnotes and citations omitted) 66 Although it has been said that in a case of this kind a "standard of proof above mere satisfaction on the balance of probabilities is appropriate" (see Hamberger v Construction Forestry Mining & Energy Union [2000] FCA 1924 at [30] and The Employment Advocate v National Union of Workers 2000 FCR 454 at [25]-[29]), the position is, in my view, better reflected by an acknowledgment that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities in a case of this kind might, depending on the nature of the particular fact or facts, be greater than would be required to establish a fact in issue on the balance of probabilities in a proceeding of a different kind. 67 By way of illustration, it is an entirely proper and common thing in the context of the Australian society for a person to join an industrial association. It is not in any way inherently unlikely that a particular individual in Australia will be a member of an industrial association. For this reason, the strength of evidence necessary to establish, in a case of this kind, the truth of an allegation that an individual was, at the relevant time, a member of an industrial association, will not ordinarily exceed to any great degree the strength of evidence required to establish a fact of a similar kind in a proceeding of a less significant nature. The allegation is not a grave one. However, it is not regarded as proper, nor is it common, in Australian society for people to engage in conduct proscribed by an Act of Parliament. An allegation that someone has done so is ordinarily a grave allegation particularly where, if made out, the allegation could lead to the imposition of a significant penalty. For this reason, the strength of the evidence required to establish that an individual had, in his or her capacity as an officer or member of an industrial association, engaged in conduct of the kind proscribed by s 298P(3) of the Act, would be greater than the strength of evidence that would be required, whether in the same or in a different proceeding, to establish that a person had engaged in conduct of a kind that is not legally proscribed and that is engaged in regularly by people of good standing in the community. 68 In considering whether the evidence as to the statement made by Mr Williamson was sufficient to support a finding, on the balance of probabilities, that subs 298P(3) of the Act had been contravened, his Honour would have been required to take into account the nature of the cause of action (ie that it was a proceeding brought by the Employment Advocate for a declaration that there had been a contravention of the Act and for the recovery of a penalty). He would also have been required to take into account the nature of the subject matter of the proceeding (ie that the proceeding was concerned with a matter of public interest, namely freedom of association in the workplace) and the gravity of the conduct alleged. 69 In my view the Employment Advocate was right to concede, as I think that by inference he did, that the evidence concerning the statement made by Mr Williamson was insufficient to support a finding that Mr Williamson thereby threatened to organise or take industrial action against CPC. While words to the effect of those attributed to Mr Williamson could, in my view, if delivered in a particular manner in a particular context, constitute a threat to organise or take industrial action, the evidence before his Honour was insufficient to support a finding that the statement made by Mr Williamson constituted such a threat. 70 The issue of whether the statement made by Mr Williamson could have been found to constitute advice, encouragement or incitement to CPC to take any action is a more difficult question. In Employment Advocate v National Union of Workers at [30], Einfeld J gave consideration to the meaning of the words "advise, encourage or incite" appearing in subs 298P(3) of the Act. His Honour took the view that a relatively synonymous meaning should probably be given to each but that it would probably not be fatal to an application that the conduct complained of might be characterised, say as "encouragement" but not as "incitement". 71 The same words (ie "advise, encourage and incite") appeared in s 138(1) of the Conciliation and Arbitration Act 1904-1958 (Cth). In Bennett v Milliner (1959) 1 FLR 312 at least the words "advise" and "incite" were treated by the Commonwealth Industrial Court as bearing different shades of meaning. At 317 Dunphy J observed: "Words used in an advisory manner could become inciting if used in a different tone of voice or in different circumstances." At 322 Morgan J said: "The meaning of the word 'incite' is not the same as the meaning of the word 'advise', although I think that the meanings of the two words are not mutually exclusive. A person could advise a course of conduct without inciting, but perhaps he could seldom incite without also advising. Meanings of the verb incite are 'To urge or spur on, to stir up, instigate, stimulate' (Shorter Oxford Dictionary)." 72 In my view the words "advise, encourage or incite" in s 298P(3) of the Act are intended to carry the same meanings as the identical words carried in s 138(1) of the Conciliation and Arbitration Act 1904-1958 (Cth). That is, that they bear different shades of meaning but with advice being intended to encompass conduct somewhat more lenitive than conduct which could be characterised as encouragement or incitement. 73 It is for this reason sufficient to concentrate on whether it would have been open to his Honour to have found that Mr Williamson's statement constituted advice to CPC to take any action. The issue of the significance of the words "in relation to a person" appearing in the final line of subs 298P(3) may, for present purposes, be left aside. 74 Plainly enough, words to the effect of those attributed to Mr Williamson could, assuming them to be delivered in a certain manner and in a certain context, constitute advice to an employer to take action. On the other hand, circumstances can be envisaged in which the same words would constitute nothing more than an expression of aspiration or, indeed, I suppose, of exasperation. Although those aspects of the setting in which Mr Williamson's statement was made which were relied upon by the Employment Advocate make this, in my view, a borderline case, I have concluded that the total absence of evidence as to (a) the conversational context, if any, in which the statement was made; (b) the manner in which the statement was made; and (c) the apparent impact of the statement on those present when it was made, means that it would not have been open to his Honour to conclude that the first alleged contravention of subs 298P(3) was established. That is, having regard to the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matter alleged, the evidence called by the Employment Advocate was insufficient to establish, on the balance of probabilities, that the statement made by Mr Williamson constituted conduct of the kind proscribed by subs 298P(3) of the Act. 75 The appeal, to the extent that it seeks to have set aside the primary judge's finding that the first alleged contravention was not established, should, in my view, be dismissed. The Second Alleged Contravention 76 The evidence upon which the applicant sought to rely to establish the second contravention was, for practical purposes, the tape recording and the transcript prepared from the tape recording. There was no suggestion that the tape recording had been interfered with or for any other reason did not accurately record the relevant conversation. The tape recording, if admitted, would have constituted evidence of the conversation recorded on it (Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 per Mason CJ, Brennan and Deane JJ at 184). The transcript would equally, if admitted, have constituted evidence of the conversation recorded on the tape recording (s 48(1)(c) of the Evidence Act). 77 As the conversation was relevant in the proceeding (see s 55 of the Evidence Act), the tape recording and the transcript were admissible "except as otherwise provided by [the Evidence] Act" (s 56 of the Evidence Act). Section 138 of the Evidence Act was the only provision relied upon to justify the decision not to admit them. As the Australian Law Reform Commission Report No 26, ("ALRC 26"), Vol 1, par 964 makes plain, s 138 of the Evidence Act is intended to provide a procedure whereby the fundamental dilemma between the public interest in admitting reliable evidence and the public interest in vindicating individual rights, deterring misconduct and maintaining the legitimacy of the judicial system can be resolved (see also Bunning v Cross (1978) 141 CLR 54 per Stephen and Aickin JJ at 74-75). 78 Subsection 138(1), the terms of which are set out in [16] above, imposes on a court a two staged task. At the first stage, the court is to determine whether the evidence was obtained in one of the ways identified in pars (a) or (b) of the subsection. If the court concludes that the evidence was so obtained, then the court is not to admit the evidence "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". The balancing exercise which constitutes the second stage of the task imposed on the court by subs 138(1) is, as the heading to the section recognises, commonly regarded as the exercise by the court of a discretion (see also ALRC 26, Vol 1, par 964; R v Swaffield (1998) 192 CLR 159 per Toohey, Gaudron and Gummow JJ at [68]). However, the type of discretion given to a court by subs 138(1) differs from the type of discretion which authorises a court to take, for example, such course of action as it thinks fit or as the justice of the case requires. Under s 138(1), evidence which was obtained in one of the ways identified in pars (a) or (b) is not to be admitted unless the balancing exercise referred to in the subsection produces the result there specified. If the balancing exercise produces that result, s 56 of the Evidence Act dictates that the evidence must be admitted. That is, the balancing exercise which subs 138(1) requires the court to undertake involves the court in an exercise of judgment (ie the reaching of a conclusion based on the application of very general standards such that different minds might reasonably reach different conclusions on the same material) rather than in an exercise of simply identifying the preferable of two or more available options. So far as appellate review is concerned, this distinction does not lead to different principles becoming applicable (Norbis v Norbis (1986) 161 CLR 513 per Mason and Deane JJ at 518; Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 399). However, the distinction is an important one so far as the proper operation of s 138 of the Evidence Act is concerned. 79 As to the first stage of the task imposed on the primary judge by s 138(1) of the Evidence Act, his Honour concluded that "the tape recording was obtained improperly or in consequence of an impropriety". That is, his Honour considered that the evidence fell within either par (a) or par (b) of subs 138(1). Although it is not material to the outcome of this appeal, it seems to me that the ordinary meaning of the provision indicates that par (a) of subs 138(1) is intended to cover evidence obtained directly as the result of conduct that was improper or in contravention of an Australian law and par (b) is intended to cover evidence which, although not obtained directly as a result of improper or illegal conduct, would not have been obtained but for illegal or improper conduct. That this is the intended meaning of the provision is confirmed by ALRC 26. An example given in ALRC 26, Vol 1, par 966 of the kind of evidence intended to be covered by par (b) is real or other evidence obtained as a consequence of an admission secured during an interrogation in which the interrogator acted improperly. On this basis, on the view taken by his Honour, the tape recording fell within par (a) of subs 138(1). 80 The Evidence Act contains no definition of "improperly" or of "impropriety". In my view, those words in the context of s 138 are to be understood in the sense discussed by Mason CJ, Deane and Dawson JJ in Ridgeway v R (1995) 184 CLR 19 at 36-37. Their Honours there said: "[T]he Bunning v Cross discretion to exclude illegally procured evidence provides, by analogy, support for the conclusion that the discretion to exclude evidence of an offence or an element of an offence procured by unlawful conduct on the part of law enforcement authorities extends to evidence of an offence or an element of an offence procured by conduct which, while not unlawful, is improper. Thus, in R v Ireland, Barwick CJ made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by 'unfair' as well as 'unlawful' conduct on the part of law enforcement officers. In their judgment in Bunning v Cross, Stephen and Aickin JJ did not qualify their acceptance of Barwick CJ's judgment in Ireland by confining the discretion to a case of unlawful conduct. To the contrary, their Honours plainly accepted that the discretion extended to 'unfair … conduct on the part of the authorities'. Their Honours did, however, indicate a preference for the phrase 'improper conduct' pointing out that 'unfair' is largely meaningless when considering certain types of evidence (eg improperly obtained finger print evidence). In subsequent cases, the words 'improper' and 'impropriety' have been generally preferred to the words 'unfair' and 'unfairness' and it has been accepted as established that the Bunning v Cross discretion extends to cases of either unlawful or improper conduct on the part of the authorities. The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community." (citations omitted) 81 It is to be observed that subs 138(1) contains no express limitation restricting it to evidence obtained by the police or other law enforcement agencies. It was not suggested in argument before this Court that any such limitation should be found in the subsection by implication. No such limitation is, in my view, to be implied into subs 138(1). 82 The trial judge took into account, in determining that the tape recording was obtained improperly, that: (a) the recording was made secretly (ie without the knowledge of Mr Williamson); (b) the conversation recorded was an orchestrated confrontation engineered by Mr Lyten deliberately to provoke a dispute which would otherwise, in all likelihood, not have occurred; (c) during the course of the recorded conversation deliberate lies were told by Mr Lyten for the purpose of inflaming Mr Williamson; and (d) the lies told by Mr Lyten were "statement[s] likely to cause [Mr Williamson] to make an admission" within the meaning of par 138(2)(b) of the Evidence Act. 83 I turn first to consider his Honour's reliance on subs 138(2) of the Evidence Act. No party before this Court sought to place reliance on subs 138(2). The term "admission" is defined in the Dictionary in general accord with its common law meaning. The conversation recorded by Mr Lyten does not include any relevant admission made by Mr Williamson or any evidence obtained in consequence of any such admission. Subsection 138(2) does not provide any assistance in the determination of whether the tape recording was obtained improperly within the meaning of s 138(1) of the Evidence Act. However, his Honour appears to have called in aid subs 138(2) as a secondary source of support for his conclusion that the tape recording was obtained improperly. It seems plain that his Honour's conclusion that the tape recording was obtained improperly is capable of standing independently of his Honour's views as to the relevance of subs 138(2). 84 Having regard to the terms of s 4 of the Listening Devices Act as in force at the relevant time, I incline to the view that it would not have been open to his Honour to conclude that the mere fact that a private individual had secretly tape recorded a conversation to which he was a party was sufficient to characterise the recording as evidence that was improperly obtained within the meaning of s 138(1)(a) of the Evidence Act. However, his Honour did not rely on the clandestine way in which the tape recording was obtained in isolation. He relied on it in combination with the factors identified in subpars (b) and (c) in [45] above. 85 The factors identified in subpars (b) and (c) of [45] above indicate that his Honour took the view that Messrs Lyten and Carson deliberately engaged in conduct, which included telling lies, first for the purpose of creating an opportunity for Mr Williamson to engage in conduct in contravention of s 298P(3) of the Act, and then having created that opportunity, for the purpose of tempting or goading him into doing so. 86 The weight of authority suggests that conduct of this kind, engaged in by law enforcement officers or other holders of public office, leading to the commission of a criminal offence would at common law be characterised as improper and give rise to a judicial discretion to exclude the evidence obtained as a consequence of such conduct (Ridgeway per Mason CJ, Deane and Dawson JJ at 36-37; Dau v Emanuele (1995) 60 FCR 270 (FC) at 286-289). As is noted above, in my view, subs 138(1) of the Evidence Act is not qualified by any requirement that the evidence be obtained by a law enforcement officer or by another holder of public office. 87 I conclude that it was open to the primary judge to find that the tape recording was obtained improperly within the meaning of subs 138(1)(a) of the Evidence Act. 88 I turn to consider his Honour's conclusion that the tape recording and transcript should not be admitted in evidence. 89 Having concluded that the tape recording was improperly obtained, his Honour was not entitled to admit it (or to allow evidence of its contents to be adduced by admitting the transcript) unless he was satisfied that the desirability of admitting the tape recording outweighed the undesirability of admitting evidence that was obtained in the way in which the tape recording was obtained. In reaching a decision as to whether or not he was so satisfied, his Honour was required to take into account each of the matters identified in pars (a)-(h) of subs 138(3). As ALRC 26, Vol 1, par 964 confirms, subs 138(3) is intended to serve the purpose of indicating "precisely the nature of the conflicting interests which should be balanced" and articulating "the factors which should be taken into account in the exercise of the discretion". 90 However, as the opening words of subs 138(3) make clear, the primary judge was entitled to take into account, for the purpose of undertaking the balancing required by subs 138(1), such additional matters, relevant to his determination of whether the desirability of admitting the tape recording and transcript outweighed the undersirability of admitting evidence that had been obtained in the way that the tape recording was obtained, as he thought fit. 91 I turn first to consider whether his Honour did take into account each of the matters identified in subs 138(3) of the Evidence Act. The facts that, first, that his Honour indicated that he would consider "a range of matters" referred to in subs 138(3) (as opposed to "the range of matters") and, secondly, that he went on to identify "the important factors relevant to this proceeding", do not necessarily establish that his Honour failed to take into account all of the matters identified in subs 138(3). It is necessary to give consideration to the totality of his Honour's reasons for refusing to admit into evidence the tape recording and the transcript. 92 As to the matters identified in pars (a)-(c) of subs 138(3), his Honour said, as is set out above (in [20]), only that "[t]he evidence might otherwise have been probative and important in the proceeding given the nature of the proceeding (being one concerned with freedom of association)". His Honour's use of the words "might otherwise have been probative and important" is puzzling. It was not in issue that the tape recording and the transcript were probative: they constituted evidence of the saying of the very words which were said to constitute the second alleged contravention of s 293P(3) of the Act. Similarly it was not in issue that the tape recording and the transcript were important: without their being admitted there was, as his Honour found, no evidence to support the second alleged contravention. It seems likely that his Honour simply intended to convey that the evidence would be probative and important if admitted. 93 The term "probative value", which appears in par (a) of subs 138(3), is defined in the Dictionary to mean "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Evidence without probative value is not relevant (s 55 of the Evidence Act) and thus not admissible (s 56 of the Evidence Act). As to evidence that is admissible, the greater its probative value the greater is the desirability of admitting it. In taking into account simply that the tape recording and the transcript were probative, without having regard to the extent to which they could affect the assessment of the probability of the existence of one or more of the facts in issue in the proceeding, his Honour did not, in my view, take into account in a real sense the matter identified in par (a) of subs 138(3) (Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180 per Toohey J at 184; Flentjar v Repatriation Commission 48 ALD 1 per Branson J, with whom Beaumont and Merkel JJ agreed). 94 The importance of the tape recording and the transcript in the proceeding (see par (b) of subs 138(3)) was plainly high in that, as his Honour subsequently concluded, without their being admitted in evidence there was no evidence to support the second alleged contravention. That is, this was not a case in which the desirability of admitting the evidence was reduced by reason of there being available to the Employment Advocate evidence, untainted by impropriety, probative of the same fact or facts in issue. By simply noting that the evidence was important, without assessing the degree of its importance, his Honour again, in my view, failed to take into account in a real sense a matter which he was required to take into account. 95 It is not clear that his Honour gave separate consideration to "the nature of the relevant … cause of action … and the nature of the subject-matter of the proceeding" (see par (c) of subs 138(3)) as matters to be taken into account for the purposes of his decision under subs 138(1), as opposed to giving consideration to the nature of the proceeding for the purpose of assessing whether the evidence was probative and important. Had his Honour given separate consideration to the matters identified in par (c) of subs 138(3), his Honour would have been expected to note that the nature of the relevant causes of action were first, causes of action for the recovery of penalties under the Act and, secondly, a claim for a declaration under the Federal Court of Australia Act 1976 (Cth). His Honour did note the subject matter of the proceeding: that is that it was concerned with freedom of association. However, relevant aspects of the nature of the proceeding were, in addition, that it was a civil, rather than a criminal, proceeding and that it was a proceeding brought by the Employment Advocate in the exercise of his statutory functions. In my view, his Honour failed to take into account in a real sense the matters identified in par 138(3)(c) in making the judgment required by subs 138(1). 96 In my view, a reading of the totality of his Honour's reasons for refusing to admit into evidence the tape recording and the transcript reveals that he did not take into account the matters identified in pars (f) and (g) of s 138(3). While these matters might not in the circumstances be regarded as amongst the most weighty that his Honour was required to consider, they were not without significance and they ought not to have been overlooked. If the impropriety associated with the obtaining of the evidence were contrary to, or inconsistent with, a right of person recognised by the International Covenant on Civil and Political Rights, this would have been an important factor telling against the desirability of admitting the evidence. If any other proceeding, whether or not in a court, had been or was likely to be taken in relation to the impropriety, this could have told in favour of admitting the evidence as there would have been a corresponding lesser need for the Court to demonstrate disapproval of the impropriety. 97 I conclude that his Honour did not comply with the requirement of subs 138(3) of the Evidence Act to take into account each of the matters identified in pars (a)-(h) of the subsection. 98 His Honour's reasons for judgment reveal that in reaching his decision not to admit the tape recording and the transcript, his Honour took into account matters in addition to those identified in pars (a)-(h) of subs 138(3). It is plain that he was entitled to take relevant additional matters into account. However, one additional matter that his Honour took into account was his strongly adverse view of the respective credibilities generally of Messrs Lyten and Carson. Messrs Lyten and Carson were not parties to the proceeding before his Honour; they were witnesses called by the Employment Advocate. The potential value of their evidence was, no doubt, limited by the view which his Honour took of their credibility. However, it was not suggested that the tape recording had been interfered with or that the transcript was not accurate. Had his Honour not concluded that Messrs Lyten and Carson had acted improperly in obtaining the tape recording there would have been no occasion for subs 138(1) of the Evidence Act to be invoked. However, once his Honour came to undertake the balancing exercise required by subs 138(1), the respective credibilities generally of Messrs Lyten and Carson (that is, their general level of concern for probity and their credibility on issues not touching on their obtaining of the tape recording) were, in my view, insufficiently germane to the exercise being undertaken to be regarded as relevant considerations. That is, they did not provide any real assistance when his Honour came to weigh the two competing public policy interests with which s 138 of the Evidence Act is concerned. 99 As is mentioned above, his Honour was required to take into account the matters identified in pars (a)-(h) of subs 138(3), together with such other relevant matters as he thought fit, for the purpose of reaching a judgment as to whether "the desirability of admitting the evidence outweighs the undersirability of admitting evidence that has been obtained in the way in which the evidence was obtained". A reading of the totality of his Honour's reasons for refusing to admit into evidence the tape recording and the transcript reveals that his Honour may have overlooked the precise nature of the judgment that subs 138(1) required him to make and proceeded on the basis that he had a simple discretion to admit or to decline to admit the tape recording and the transcript into evidence. Subsection 138(1) imposes on a court, which has found that evidence was obtained in one of the ways identified in the subsection, an obligation to take into account all of the matters identified in subs 138(3), together with such other matters relevant to the judgment that it is required to make as it considered appropriate, and having done so, to form a judgment based on the totality of the matters which it has taken into account as to whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that had been obtained in the way that the evidence was obtained. However, in view of my earlier conclusions, it is not necessary for me to reach a concluded view on whether his Honour did overlook the precise nature of the judgment that subs 138(1) of the Evidence Act required him to make. 100 In my view, the contention of the appellant that his Honour's exercise of the discretion under subs 138(1) of the Evidence Act miscarried must be upheld. It is therefore necessary for consideration to be given to whether this Court should itself determine the admissibility of the tape recording and transcript, whether the issue of the second alleged contravention should be remitted for rehearing or whether, as the respondents contend, the appeal should in any event be dismissed. 101 In my view, it would not be appropriate for this Court to determine the admissibility of the tape recording and transcript. The nature of the judgment required to be made under s 138 of the Evidence Act suggests that in all but very clear cases the judgment should be made by a judge who has heard the evidence and seen the witnesses. 102 It was contended by the respondents that, even if his Honour had admitted the tape recording and the transcript, no contravention of subs 298P(3) would have been established so that the appeal should in any event be dismissed. This contention was advanced on the basis that Mr Lyten was not an employee of either CPC or IJ so that the statements made by Mr Williamson which are recorded on the tape recording did not concern Mr Lyten in his capacity as an employee and thus could not give rise to a contravention by either CPC or IJ of s 298K of the Act. 103 It is true that his Honour found, and the finding was not, as I understand it, challenged before this Court, that Mr Lyten was not an employee of CPC or of IJ. However, the learned trial judge, because of his ruling under s 138 of the Evidence Act, was not required to give detailed consideration to evidence that touched upon Mr Lyten's relationship with IJ. Mr Lyten's evidence in cross-examination was that he personally was paid by CPC, generally in cash, although occasionally by a cheque made out to cash. It appears to be a fair inference from Mr Lyten's evidence that the monies paid to him by CPC did not ever come under the control of IJ but were retained by him. 104 In my view, it may well have been open to his Honour to conclude, had the tape recording and the transcript been admitted in evidence, that the purported relationship between CPC and IJ was a sham (see Snook v London and West Riding Investments Ltd [1967] 2 QB 786) and that Mr Lyten was in fact retained personally by CPC as an independent contractor. I do not mean to convey any opinion as to whether such a conclusion would, in all of the circumstances, have been the appropriate conclusion. However, the fact that such a conclusion may have been open indicates that, even if the construction of s 298P(3) for which the respondents contend (see [70] below) is correct, the appeal should be allowed to the extent that his Honour dismissed the application in respect of the second alleged contravention so as to allow a rehearing with respect to the second alleged contravention. That is, I do not regard this as a case in which it is clear beyond doubt that, even had his Honour received the tape recording and transcript in evidence, the second alleged contravention would not have been established. 105 I have been able to reach the above conclusion without giving consideration to the issue of whether the Employment Advocate was bound by the particulars provided by him in respect of the second alleged contravention. This does not appear to be an issue on which the primary judge gave a definitive ruling. As, in my view, there should be a rehearing in respect of the second alleged contravention, this is an issue which could, if necessary, be dealt with at the rehearing. 106 I have also been able to reach the above conclusion without giving consideration to whether, as the respondents contended, on the proper construction of s 298P(3) of the Act, the words "a person" appearing therein are to be understood as meaning an identifiable person or a member of an identifiable class of persons. This difficult issue of construction should, in my view, be left for a case in which it requires determination. CONCLUSION 107 In my view, the appeal should be allowed, the orders of his Honour made on 23 November 2000 and 9 March 2001 set aside, a rehearing by a different judge of the Further Amended Application ordered to the extent only of the contravention of s 298P(3) alleged to have occurred on 11 February 1999 and the question of the costs of the proceeding referred to the judge who conducts the rehearing. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 24 August 2001 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 955 of 2000 BETWEEN: JONATHAN HAMBERGER, THE EMPLOYMENT ADVOCATE APPELLANT AND: IAN WILLIAMSON FIRST RESPONDENT THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION SECOND RESPONDENT JUDGES: GRAY, BRANSON & KENNY JJ DATE: 24 AUGUST 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT KENNY J: 108 I have had the advantage of reading in draft the reasons for judgment prepared by Branson J. Her Honour has set out the relevant facts and, save where it is expedient to do so, I do not repeat them. For the reasons expressed by her Honour, I agree that the appeal should be dismissed to the extent that it challenges the primary judge's finding that the first alleged contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) ("the Act") was not established. Further, although I am in substantial agreement with her Honour's description of the operation of s 138 of the Evidence Act 1995 (Cth), for the reasons that appear below, it is unnecessary for me to refer further to the issues raised in connection with s 138 and to express any concluded view on them. As appears below, I differ from her Honour as to the outcome of the second limb of the appeal regarding the second alleged contravention of s 298P(3). 109 On the hearing of the appeal, the respondents submitted that the case made by the Employment Advocate ("the Advocate") at trial with regard to the second alleged contravention of s 298P(3) was bound to fail, whether or not the tape recording and the transcript were admitted into evidence. For the reasons I am about to give, I accept that submission. 110 I turn to the case that the Advocate made below. I commence by noting that this was a proceeding begun by an application and accompanying affidavits: Federal Court Rules, O 4, r 6. There were no formal pleadings. Pursuant to an order of the Court, however, the parties filed contentions of fact and law on liability: Federal Court Rules, O 10, r 1. When an order of this kind is made, the parties are required to state the facts and law on which they rely with sufficient clarity and detail to enable other parties to know the actual case sought to be made against them. Whilst statements of contentions may not be pleadings, by identifying the real issues in dispute, they perform much the same function: see, e.g., Saffron v Federal Commissioner of Taxation (1991) 91 ATC 4,501 and compare, in relation to pleadings, Banque Commerciale SA, en liquidation v Akhil Holdings Limited (1990) 169 CLR 279 ("Akhil Holdings") at 286-7 and Dare v Pulham (1982) 148 CLR 658 at 664. Statements of contentions can therefore assist an appellate court in understanding the nature of the case advanced at trial: see, e.g., McCarthy v McIntyre [1999] FCA 784 at [36]. 111 In this case, the Advocate filed a document entitled "Applicant's Amended Contentions of Fact and Law Confined to the Question of Liability Only". Under the heading "Particulars of the Contravention of S.298K(1) of the Act", the Advocate asserted: Williamson's second statements constituted conduct by Williamson and the union intended to encourage, incite or result in [CPC] doing or threatening to do any of the following: (i) dismiss Lyten from [CPC's] employment; (ii) injure Lyten in his employment; (iii) alter the position of Lyten to Lyten's prejudice; (iv) discriminate against Lyten in the terms and conditions of his employment – for a prohibited reason or for reasons which include a prohibited reason within the meaning of s.298L(1)(b) of the Act, namely, because Lyten was not, and did not propose to become, a member of the union. 112 In the same document, under the heading "Particulars of the Contravention of S.298K(2) of the Act", the Advocate alleged: The [second] Williamson statement constituted conduct of Williamson and the union intended to encourage, incite or result in [CPC] doing or threatening to do any of the following: (i) terminate a contract for services it has entered into with the independent contractor, [IJ]; (ii) injure the independent contractor, [IJ], in relation to the terms and conditions of its contract for services; (iii) alter the position of the independent contractor, [IJ], to the independent contractor's prejudice; (iv) discriminate against another person in the terms and conditions on which the person offers to engage the other person as an independent contractor – for a prohibited reason or for reasons that include a prohibited reason within the meaning of s.298L(1)(c)(i) of the Act, namely, because an independent contractor has one or more employees who are not, or do not propose to become, members of an industrial association. 113 The respondents would ordinarily have been entitled to rely on these particulars as confining the wider allegation to which they related, namely, that the target of the respondents' alleged misconduct was "a person and/or entity". One may accept, as the Advocate claimed, that he inadvertently omitted to amend the particulars to mirror the broader allegation. Unless, however, the respondents knew of the broader case that the Advocate sought to advance, the Advocate's mistake would not disentitle the respondents from relying on the particulars as they in fact stood. As appears below, however, until closing address, the Advocate did nothing to put the respondents (or the Court) on notice that the particulars given on this limb of his case in respect of s 298K(1) or (2) were, so far as he was concerned, incorrect. 114 It will be recalled that the Advocate alleged that, in a meeting with Mr Lee Carson of Carson Painting Contractors Pty Ltd ("CPC") and Mr John Lyten on site on 11 February 1999, the respondents, through Mr Ian Williamson, committed a second breach of s 298P(3) of the Act. According to the particulars, the Advocate's case was that Williamson made statements: (1) advising, encouraging or inciting CPC to take action in relation to its employee, Lyten, because Lyten was not, and did not propose to become, a member of the union; and/or (2) advising, encouraging or inciting IJ Enterprises Pty Ltd ("IJ"), an independent contractor to CPC, to take action in relation to its employee, Lyten, because Lyten was not, and did not propose to become, a member of the union. 115 On appeal, however, the Advocate contended that: This confined approach as suggested in the particulars was not in fact how the case was argued by the Advocate. The Advocate relied on his written submissions "provided at the time of closing" and on his oral submissions made in closing address to show that he had in fact conducted the trial on a broader footing. 116 The written submissions to which the Advocate referred indicated, however, that, even in closing, his primary submission (from which he ultimately resiled) was that Lyten was an employee of CPC and, in the alternative, of IJ. It is true that the Advocate also submitted to the trial judge that: The effect of the second Williamson statements was that [CPC] would not be permitted to bring a non-union person such as Lyten on to the site and that if [CPC] attempted to do so, the site would be closed because members of the CFMEU would refuse to work at the site with [CPC]. Yet this passage was ambiguous. It was unclear whether or not the Advocate intended to shift his focus from Lyten to the broad class of "a non-union person" employed by CPC. A subsequent reference to "any employee (whether Lyten or otherwise)" employed by CPC or IJ tends to confirm the impression that, in closing address, the Advocate was seeking to mend a case that he thought might be failing by moving the focus from Lyten to any non-union employee. 117 In any event, the written submissions do not establish that the Advocate opened and conducted his case in evidence upon a broader footing than the particulars mentioned above indicate. Nor can this be inferred from the Advocate's closing address. On the contrary, when counsel for the Advocate sought in closing to broaden the basis of his case, counsel for the second respondent objected, saying: [W]e're worried about the direction of this part of the submission because it is directly contrary to the case as particularised … . It would completely alter the way in which we cross-examine Carson and Lyten. It's unfair and improper, in our submission … . Referring to the particulars set out above, the second respondent's counsel added: It says, 'Williamson's second statement,' that's what we're concerned about. It was advice, etcetera, encouraging, etcetera, and … it gives particulars of the contravention of s 298K(1), which was sought to be incited, and in each instance it is directed to the consequences for Lyten in his employment. No reference to any other employee. We didn't touch any other employee. There was no evidence given about any other employee, in our submission, except we would say non-responsively in re-examination. This is quite improper, in our submission. Counsel for the second respondent concluded: Where this leads, then, is that first, if our learned friend wants to make the sort of submission he is now making he will have to amend the particulars … and he shouldn't be allowed to because it's too late. He would have to file further evidence-in-chief from these other people, whoever, they are, and the trial will then have to go back into evidence-in-chief of those people, cross-examination of them and cross-examination of Lyten and probably Carson, as a consequence. The second respondent's counsel's objection was, in substance, that the Advocate "shouldn't be making submissions on a case that [he] ha[s]n't made". 118 The trial judge accepted, at least provisionally, the second respondent's submission that the Advocate had limited his case to Lyten and that, to the extent that he was seeking to enlarge the target beyond Lyten, he was departing from the case he had conducted up until closing address. Thus, in response to the second respondent, his Honour said: Yes. … I tend to agree with you that the way the particulars are focused, in respect to the second contravention, they do focus on Mr Lyten alone. You have indicated that you would desire to further cross-examine if the particulars are to be in effect expanded. It may be inferred from this that his Honour accepted, at least provisionally, that up until this point the trial had proceeded on the basis that the case against the respondents was indeed as defined in the Advocate's contentions of fact and law which, in particulars, alleged that Lyten was the target of the respondents' misconduct. 119 It is also relevant to the outcome of this appeal that, notwithstanding the challenge made by the second respondent, the Advocate made no application to amend (or, as he would have it, correct) the particulars of the second alleged contravention. Had the Advocate successfully made such an application, then it appears that the respondents would at the least have sought to reopen their cross-examination. 120 It is not to be assumed, however, that any such application on the Advocate's part would have been succeeded. On the contrary, had such an application been made, its outcome was uncertain. In Ting v Blanche (1993) 118 ALR 543 at 551, for example, Hill J refused an application to amend a statement of claim after the evidence had closed and written submissions had been made by both parties. His Honour said at 551: Although in modern litigation pleadings are often perceived as a technicality they retain their significance as defining the issues between the parties. If amendment were now to be allowed the respondents would, or at the very least could, unless allowed to reopen their case, suffer prejudice, because the case had been fought on the basis that the issue was whether a particular set of representations were made, when the issue in the event of amendment of the pleadings would become whether an entirely different set of representations were made. As the applicants submitted, it would be possible, even at this late stage, to reopen the evidence, thereby removing this prejudice or potential prejudice, subject, perhaps, to an appropriate cost order. However, I am of the view that I should not exercise my discretion to permit this to be done. I must take into account in so doing the public interest in finality of litigation as well as the private interests of the parties in endeavouring to do justice as between them. … It was simply too late for an amendment to the pleadings to be made after the evidence had closed and submissions were virtually completed where the amendment of necessity required the evidence to be reopened. Given that in this case, the Advocate's contentions of fact and law were intended to fulfil a similar function to a statement of claim, considerations similar to those mentioned by Hill J would have applied on any application on the Advocate's part to recast his case. 121 In response to the objection that it was too late for the Advocate to broaden his case beyond his particulars, his Honour ultimately indicated that he would hear any submissions the Advocate wished to make, observing that if the objection were upheld, then "all it means in the end is that I'm hearing submissions that won't ultimately assist me". His Honour concluded the debate on this point by saying to the Advocate: I don't think it's productive to go down this track. I'll hear you on whatever you want to put to me. If I form a view about an aspect of the matter favourable to you which on re-reading the transcript, gives me any concern about whether I'm denying natural justice to the respondents, I'll call the matter on for mention …. It may be inferred from all that relevantly passed between his Honour and counsel, as recorded in transcript, that whilst his Honour provisionally accepted the second respondent's submission as to the nature of the Advocate's case, he was prepared to hear the Advocate out in full. His Honour is to be understood as reserving to himself the opportunity to reconsider his provisional view at the conclusion of the hearing. As his Honour did not call the case on for mention subsequently, and his reasons for judgment addressed the case as it had been particularised and conducted up until the Advocate's closing address, it may be assumed that he did not alter the view that he provisionally expressed. 122 It is clear that the Advocate failed to establish the case as particularised. Towards the conclusion of the trial, the Advocate conceded that Lyten was not an employee of CPC. This accorded with the primary judge's view of the evidence. His Honour also held that there was no evidence that Lyten was an employee of IJ. His Honour described the evidence concerning Lyten's relationship with IJ in two passages. At [7], his Honour said: From July 1998 until 11 February 1999, CPC engaged a company called IJ Enterprises Pty Ltd ('IJ') for the performance of certain work in connection with various of CPC's painting contracts. IJ was owned and controlled by a Mr Lyten. Although Mr Lyten occasionally performed actual painting work, he was overwhelmingly engaged on behalf of IJ to perform estimating work for CPC and in assisting CPC in securing contracts for the performance of painting work. He was also heavily involved in on site supervision of the work of painters employed by CPC. … . Mr Carson Snr also said that it was intended, at the outset of the work, that Mr Lyten would perform some painting duties at the Muir Street site in addition to his supervisory role. However, the evidence does not disclose that this work was anything other than incidental to the primary role for which he had been engaged at $1,000 net per week through IJ. At [37], his Honour further stated: There is no evidence that Mr Lyten was an employee of IJ. For what it is worth, he denied that possibility himself. The evidence is that he was a director of IJ and traded as IJ but that does not make him an employee of IJ. His relevant income tax records do not refer to him being employed by IJ. The Advocate did not challenge these findings on appeal. 123 Notwithstanding these findings, however, the Advocate submitted on appeal that the second alleged contravention of s 298P(3) could be made out if the tape recording and the transcript were admitted in evidence. In written submissions, the Advocate said: The content of the relevant evidence was to the effect that no person, whether being Lyten or others, including any possible current or future employee of [CPC], could work at the site unless they joined the Union. … The effect of the relevant evidence is that if [CPC] brought any non-union persons, whether Lyten or others onto the site, the site would be closed because members of the CFMEU would refuse to work at the site with [CPC]. … The threats [made by Williamson] were of a general nature and would have included any persons who were independent contractors who were not in the union or employees at the site who were not in the union. 124 If the case particularised and conducted by the Advocate at trial (at least until closing address) is compared with the case that he sought to make on appeal, it is evident that the case advanced on appeal departs from the case at trial in various material respects. The Advocate's case on appeal is no longer that Williamson's target was Lyten as an employee of either CPC or IJ. Instead, the Advocate's case on appeal is that Williamson's target was "any possible current or future employee of [CPC]", though not necessarily Lyten. Further, whilst the case at trial was that Williamson had targeted an employee of CPC or IJ, on appeal the Advocate's case grew to include a submission that Williamson's target "would have included" independent contractors, not just an employee, or even employees, of CPC or IJ. 125 Critically perhaps, the Advocate did not make any allegation at the commencement of the trial or during running that the relationship between CPC and IJ was a sham and that Mr Lyten was in fact retained personally by CPC as an independent contractor. On the contrary, as already noted, the Advocate's case was that CPC and IJ had entered into a genuine contractual relationship, pursuant to which IJ undertook, as an independent contractor, to perform services for CPC. Only when the hearing had all but concluded, did counsel for the Advocate touch on the possibility that the real independent contractor may have been Lyten. That possibility was not, however, further explored at trial, although it was revisited on this appeal. 126 I do not consider it open to the Advocate to advance a case on appeal that is substantially different from that conducted by him at trial (at least until closing address) in order to meet the respondents' submission that the case fought below was bound to fail. The circumstances attending the Advocate's attempt below to depart from the case as he had conducted it confirm me in this view. The Advocate had an opportunity to apply to his Honour to recast his case, as the second respondent suggested he might. Had the Advocate successfully done so, then it appears that the respondents would have sought to meet the reformulated case by reopening their cross-examination. The Advocate chose not to make any such application. In effect, the second respondent successfully opposed the Advocate's attempt to expand his case in closing address, upon the basis that the respondents had defended themselves against the case as particularised in the Advocate's contentions of fact and law. 127 Considerations of the kind mentioned in Igaki Australia Pty Ltd v Coastmine Pty Ltd (1996) 34 IPR 37 arise in this case. In Igaki, the Full Court of this Court refused an appellant's application to amend pleadings on appeal in circumstances where the respondents had invited the appellant to amend at trial. The Court observed at 49: At the very least, it cannot be said that the respondents would have conducted their case in the same way had the amendment been sought and allowed at trial. That is sufficient to refuse the amendment. See also Cummings v Lewis (1993) 41 FCR 559 at 567, 574-579. Although the Advocate has made no application to amend pleadings on this appeal (there being no pleadings) and no like application, he effectively sought to depart from the case he conducted at trial, notwithstanding that he made no formal application below to recast his case when challenged by the second respondent to do so. 128 The rule that an appellant is bound by the conduct of his case below is well established and regularly applied in appellate courts: see Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-11; Water Board v Moustakas (1988) 180 CLR 491 at 497; Akhil Holdings at 287; and Riseda Nominees Pty Ltd v St Vincent's Hospital (Melbourne) Ltd [1998] 2 VR 70 at 76. There are no exceptional circumstances that would justify departing from the rule in this case: contrast Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 at 357. 129 For the reasons already given, the case litigated at trial was bound to fail, even if the tape recording and the transcript were admitted in evidence. This was because the Advocate could not establish that Mr Lyten was an employee of either CPC or IJ. 130 Accordingly, for the reasons given, I would dismiss the whole of the appeal. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 24 August 2001 Counsel for the Appellant: Mr N Green QC and Mr J L Bourke Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondents: Mr J W K Burnside QC and Mr H Borenstein Solicitor for the Respondents: Slater & Gordon Date of Hearing: 21 May 2001 Date of Judgment: 24 August 2001