FEDERAL COURT OF AUSTRALIA Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 686 File number: VID 1114 of 2012 Judge: JESSUP J Date of judgment: 8 June 2016 Catchwords: INDUSTRIAL LAW – penalties under Fair Work Act 2009 (Cth) for employer's contraventions of award – whether conduct constituted single contravention under s 557 – consideration of phrase "arose out of course of conduct" – contraventions held to be distinct in point of time and purpose – consideration of pecuniary penalties where contraventions at lower end of consequence INDUSTRIAL LAW – multiple, overlapping contraventions of ss 482 and 502 of Fair Work Act 2009 (Cth) – whether contraventions could be considered one episode of conduct – consideration of penalties for contraventions judged to be serious departures from norms – application of totality principle for penalties – application that penalties be paid to union COSTS – application for costs where no entitlement for successful applicant under Fair Work Act 2009 (Cth) unless "unreasonable act or omission under s 570(2) – consideration of respondents' conduct against legislative criterion – application for indemnity costs upheld COSTS – application under r 42.16 Federal Court Rules 2011 for contempt of court – consideration of r 42.16 – whether a party can apply for a direction under r 42.16 Legislation: Fair Work Act 2009 (Cth) ss 45, 482, 483AA, 502, 557 570 Federal Court Rules 2011 (Cth) rr 42.11, 42.16 Federal Court Rules (Cth) O 40 r 10 Supreme Court Rules 1970 (NSW) Pt 55, r 11 Cases cited: Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743 Hamod v New South Wales (2002) 188 ALR 659 Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140 Killen v Lane [1983] 1 NSWLR 171 Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4 Date of hearing: 8 April 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 65 Counsel for the Applicants: Mr E White with Mr Y Bakri Solicitor for the Applicants: Maurice Blackburn Counsel for the Respondents: Mr M Follett with Mr A Denton Solicitor for the Respondents: Gadens ORDERS VID 1114 of 2012 BETWEEN: INDEPENDENT EDUCATION UNION OF AUSTRALIA First Applicant GEORGIA BUTTERS CAIN Second Applicant AND: AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC First Respondent SALAH HAMED SALMAN Second Respondent ABDUL KARIM GALEA Third Respondent JUDGE: JESSUP J DATE OF ORDER: 8 JUNE 2016 THE COURT ORDERS THAT: 1. The first respondent pay a pecuniary penalty of $3,000 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by its failure, in the letter of appointment provided to Alison Burns in respect of the 2012 school year, to inform her of the reason her employment was fixed-term, contrary to cl 10.2(c) of the Educational Services (Teachers) Award 2010. 2. The first respondent pay a pecuniary penalty of $4,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by its failure, in the letter of appointment to the Professional Class provided to Anastasia Milionis in February 2012, to inform her of the reason her employment was fixed-term, contrary to cl 10.2(c) of the Educational Services (Teachers) Award 2010. 3. The first respondent pay a pecuniary penalty of $4,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by its failure, in the letter extending the replacement period of appointment provided to Georgia Butters Cain in respect of the 2012 school year, to inform her of the reason her employment was fixed-term, contrary to cl 10.2(c) of the Educational Services (Teachers) Award 2010. 4. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 5. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a second teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 6. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a third teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 7. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a fourth teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 8. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a fifth teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 9. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a sixth teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 10. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a seventh teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 11. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of an eighth teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 12. The first respondent pay a pecuniary penalty of $7,500 in respect of its contravention of s 45 of the Fair Work Act 2009 (Cth) constituted by the employment, in the 2012 school year, of a ninth teacher for the fixed period of that year other than in circumstances permitted by cl 10.6 of the Educational Services (Teachers) Award 2010. 13. The first respondent pay a pecuniary penalty of $25,000 in respect of its contraventions of s 502(1) of the Fair Work Act 2009 (Cth) on 23 November 2012 constituted by intentionally hindering or obstructing Denis Matson and Simon Schmidt, permit-holders for the purposes of Part 3-4 of that Act, exercising rights in accordance with that Part by altering the front page of the letter of appointment relating to each of Sumeyye Borova, Derya Onder, Filiz Cansiz, Clair Sheehan, Hanan Ahmed, Nour Awari, Sarah Oz and Nicole Daniel, in circumstances where the first respondent believed that the letters would become, and where the letters did later become, the subject of requirements by those permit-holders under s 482(1)(c) of that Act. 14. The first respondent pay a pecuniary penalty of $25,000 in respect of its contraventions of s 482(3) of the Fair Work Act 2009 (Cth) on 27 November 2012 constituted by its failure to comply with the requirements of Denis Matson and Simon Schmidt, permit-holders for the purposes of Part 3-4 of that Act, under s 482(1)(c) of that Act to allow them to inspect and to copy the letter of appointment relating to each of Sumeyye Borova, Derya Onder, Filiz Cansiz, Clair Sheehan, Hanan Ahmed, Nour Awari, Sarah Oz and Nicole Daniel. 15. The first respondent pay a single pecuniary penalty of $10,000 in respect of the following contraventions: its contraventions of s 482(3) of the Fair Work Act 2009 (Cth) on 17 December 2012 constituted by its failure to comply with the requirements of Denis Matson, Simon Schmidt and Andrew McMullin, permit-holders for the purposes of Part 3-4 of that Act, under s 482(1)(c) of that Act to allow them to inspect and to copy the letter of appointment which related to each of Rehab Chaarani and Haidi Badawi; its contraventions of s 502(1) of that Act on the same day constituted by intentionally hindering or obstructing the said permit-holders exercising rights in accordance with that Part by providing, in response to their said requirements, letters of appointment the front pages of which had been altered on 23 November 2012. 16. The first respondent pay a single pecuniary penalty of $11,000 in respect of the following contraventions: its contraventions of s 482(3) of the Fair Work Act 2009 (Cth) on 17 December 2012 constituted by its failure to comply with the requirements of Denis Matson, Simon Schmidt and Andrew McMullin, permit-holders for the purposes of Part 3-4 of that Act, under s 482(1)(c) of that Act to allow them to inspect records and documents as held by the first respondent in electronic form; its contraventions of s 502(1) of that Act on the same day constituted by intentionally hindering or obstructing the said permit-holders exercising rights in accordance with that Part by refusing to permit them to inspect records and documents as held by the first respondent in electronic form. 17. The second respondent pay a pecuniary penalty of $2,200 in respect of his contraventions of s 502(1) of the Fair Work Act 2009 (Cth) on 17 December 2012 constituted by intentionally hindering or obstructing Denis Matson, Simon Schmidt and Andrew McMullin, permit-holders for the purposes of Part 3-4 of that Act, exercising rights in accordance with that Part by refusing to permit them to inspect records and documents as held by the first respondent in electronic form. 18. The third respondent pay a pecuniary penalty of $25 in respect of his contraventions of s 502(1) of the Fair Work Act 2009 (Cth) on 17 December 2012 constituted by intentionally hindering or obstructing Denis Matson, Simon Schmidt and Andrew McMullin, permit-holders for the purposes of Part 3-4 of that Act, exercising rights in accordance with that Part by refusing to permit them to inspect records and documents as held by the first respondent in electronic form. 19. The said pecuniary penalties be paid to the first applicant within 30 days. 20. In relation to each of Sumeyye Borova, Derya Onder, Clair Sheehan, Nour Awari, Sarah Oz, and Nicole Daniel, the first and second respondents pay the applicants' costs incurred in connection with their allegation that that teacher was employed for a fixed period in 2012, being costs incurred between 10 September 2013 and the date when the respondents admitted that she was so employed or 15 October 2015, whichever was the earlier. 21. In relation to each of Rehab Chaarani and Hanan Ahmed, the first and second respondents pay the applicants' costs incurred in connection with their allegation that that teacher was employed for a fixed period in 2012, being costs incurred between 4 December 2014 and the date when the respondents admitted that she was so employed or 15 October 2015, whichever was the earlier. 22. If not agreed, the costs referred to in the two previous orders be taxed on an indemnity basis. 23. Save as aforesaid, the applicants' claims be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JESSUP J: 1 On 25 February 2016, I gave judgment on the substantive issues arising in this proceeding: Independent Education Union of Australia v Australian International Academy of Education Inc [2016] FCA 140. The only order which I then made was to list the proceeding for further hearing on the matter of the form of the orders appropriate to give effect to the court's reasons. When the proceeding was so listed, the applicants sought the imposition of penalties for the respondents' contraventions of the Fair Work Act 2009 (Cth) ("the FW Act") and, in some respects, orders for costs. They also sought an order directing the Registrar to move for contempt under r 42.16 of the Federal Court Rules 2011 (Cth) ("the Rules"). Those three matters are dealt with in the reasons which follow below, and in the orders made today. 2 The first respondent ("the Academy") contravened cl 10.2(c) of the Educational Services (Teachers) Award 2010 ("the award"), and therefore s 45 of the FW Act, on three occasions, namely, when a letter addressed to each of Ms Burns, Ms Milionis and Ms Butters Cain failed to inform her of the reason why her employment was fixed-term. It is submitted on behalf of the Academy that these contraventions are deemed to be a single contravention by the operation of s 557 of the FW Act, subs (1) of which provides as follows: For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if: (a) the contraventions are committed by the same person; and (b) the contraventions arose out of a course of conduct by the person. Section 45 is a provision referred to in subs (2). 3 The question is whether the three contraventions of cl 10.2(c) "arose out of a course of conduct" by the Academy. The contravention which related to Ms Burns involved a statement of the basis of her employment in her appointment letter which did not identify the reason why her employment was fixed-term. That letter was provided in January 2012. The contraventions which related to Ms Milionis and Ms Butters Cain involved a failure, in the relevant letters provided to them, to provide any reason why their employments were fixed-term. Those letters were provided in February 2012 (a Professional Class letter) and November 2011 (an extension letter) respectively. 4 It was submitted on behalf of the Academy that the contravening conduct, in the case of all three letters, was its own "genuine misunderstanding" as to the proper construction of cl 10.2(c) of the award. In the case of Ms Burns, I accept that the letter reflected a wrong view as to the meaning of the relevant provision, but whether this involved a "genuine misunderstanding", or merely an overly casual approach to the content of the Academy's award obligations, is not a question which can be answered, at least favourably to the Academy, on the evidence in the case. In the cases of Ms Milionis and Ms Butters Cain, the problem was not one of construction at all. Misunderstanding on the Academy's part there may have been, but no element of obscurity in the terms of the award contributed to it. 5 These letters were distinct events in point of time and purpose. Each reflected a conscious, separate, decision by the Academy to offer the recipient a particular kind of employment for a particular duration. There was, in my view, no single "course of conduct" out of which the writing of the letters arose. There were, therefore, three separate contraventions of s 45 of the FW Act. 6 While I do not depreciate the importance of compliance with a provision such as cl 10.2(c), the fact is that none of these contraventions was particularly serious. None resulted in any pecuniary or other loss to the teacher concerned. I accept that there was, in Ms Burns' letter, an ostensible, albeit inadequate, attempt at providing some kind of indication as to the reason for her employment being on the basis that it was. In point of inherent seriousness, this contravention must, therefore, be seen as located well towards the lower end of the scale. Although I would not rate the seriousness of the other two contraventions at the same level, nonetheless they too should be seen as less serious than many other categories of award breach that might be picked up by s 45 of the FW Act. 7 Evidence before the court indicates that, since the judgment of 25 February 2016, the Academy has made changes to its pro-forma appointment letter. The letter will now contain a section in which, by ticking boxes, it will be made clear whether the employment in question is to be full-time ongoing, part-time ongoing, or fixed-term, whether the reason for fixed-term employment is to undertake a specific project, or task, or to replace an employee, and, in a situation of the latter kind, whether the employee being replaced is on leave, is performing other duties temporarily or is someone whose employment has terminated after the commencement of the school year. On the basis of this evidence, it was submitted on behalf of the respondents that specific deterrence ought not to be a consideration in the determination of the penalties for the contraventions with which I am presently dealing. To the extent that specific deterrence relates only to the award clause found to have been contravened, I accept that. But I do not think that specific deterrence should be so confined: it relates to the Academy's compliance, in the future, with its award obligations of every description. In the penalties to which I refer below, I have taken that into account. 8 In a case of this kind, general deterrence is also a matter of significant importance. In an area of the kind dealt with by cl 10.2(c), there is always a risk that employers concerned with the demands of running businesses may come to regard their award obligations as substantially matters of red tape rather than of substantive entitlement. It would be most regrettable if the present judgment became the occasion for the reinforcement of such a view. Considerations of that kind have played their appropriate role in my rejection of a submission made on behalf of the respondents that no penalty should be imposed in respect of these contraventions. To take the course proposed by the respondents would, in my view, be to send the wrong message altogether. 9 Although the contraventions in this case might be described as purely instrumental – perhaps even clerical – ones, the letters were all signed by Mr Salman. Indeed, the evidence demonstrated that he took a very hands-on approach to human resources administration. I must, therefore, approach the matter on the footing that senior management, as it might be described, was involved in the contraventions. 10 The Academy is a medium-sized employer without a record of previous contraventions of industrial relations legislation. 11 Although, as I have held, the contraventions did not arise out of a single course of conduct on the part of the Academy, they were sufficiently related to each other to invoke the operation of the totality principle in the determination of appropriate penalties. Additionally to the matters, specific to the contraventions considered separately, to which I have referred, I should ensure that, overall, the penal outcome is not disproportionate to the gravity of the Academy's contravening conduct. 12 The maximum penalty for each contravention is $33,000. 13 I propose to impose a penalty of $3,000 for the contravention which relates to Ms Burns' letter, and a penalty of $4,500 for each of the contraventions which relate to the letters addressed to Ms Milionis and Ms Butters Cain. 14 The Academy contravened cl 10.6 of the award, and therefore s 45 of the FW Act, on nine occasions, namely, by employing 14 teachers for fixed periods in the 2012 school year when it was entitled so to employ five teachers only. The difficulty is, however, that the applicants' case was not run on the basis of identifying which of the 14 fell into the group of nine as opposed to the group of five. In the submission of the respondents, this makes the court's task of determining whether there was one course of conduct problematic, if not impossible. 15 I would say two things about this submission made on behalf of the respondents. First, s 557 is not, as it were, a default provision which operates disadvantageously to an applicant whenever he or she is unable to exclude the prospect that nominally discrete contraventions arose out of a single course of conduct. To the contrary, the better view is that a respondent who seeks to rely on s 557 should conduct his or her case in a way that provides a firm evidentiary footing for a finding that the contraventions did arise out of a single course of conduct. Secondly, it was, I would hold, the Academy's own lack of attention to the requirements of cl 10.6 of the award that has left the applicants with no alternative but to conduct their case at the high level that they did. Having led evidence sufficient to sustain the conclusion that nine teachers must have been employed in contravention of cl 10.6, they had done enough. If the Academy then desired to seek findings in relation to particular teachers, it bore the onus of leading the necessary evidence. 16 The fact that it was not possible to match the five teachers whose circumstances opened the door to the Academy employing others for fixed periods with five of the 14 whom it did so employ does not mean that the court cannot now be confident that there must have been nine distinct occasions, each involving a failure to pay attention to the requirements of the award, when a contravention occurred. The situation differs in this respect from one, for example, in which an employer fails to pass on a single award wage adjustment to many hundreds of employees. In the present case, the award required a decision to be made on every occasion that an individual teacher was to be engaged for a fixed period. By its very conduct in overlooking what the award required, the Academy cannot produce a situation in which all of its separate omissions become, in effect, a single contravening blancmange. 17 For those reasons, I take the view that the Academy's contraventions of cl 10.6 of the award did not arise out of a single course of conduct within the meaning of s 557 of the FW Act. 18 The seriousness of these contraventions is not to be located as far towards the lower end of the spectrum as I considered appropriate in the case of the contraventions of cl 10.2(c). The evil to the avoidance of which cl 10.6 appears to be directed is the unrestrained use of fixed-term employment contracts, with the self-evident consequences for security of employment which that would bring with it. Whatever the purpose of the provision, it must be accepted that the award-maker considered it desirable to place strict limits on such a practice. The administration of those limits in practical settings must necessarily be the responsibility of the employer concerned. The way it was done in the present case, and the terms of the Academy's appointment letters, tended to conceal the extent of its entitlement to proceed in this way consistently with cl 10.6. The fact that the Academy put the applicants to their proof, while undoubtedly its entitlement in penal litigation, did nothing to lay the groundwork for a submission that the court should take a lenient view of the contraventions. 19 It was submitted on behalf of the respondents that no individual employee could be said to have suffered loss as a result of the Academy's contraventions of cl 10.6. Indeed, it was said that the nine teachers in respect of whom the contraventions occurred might not have been employed at all if the Academy had carefully attended to its obligations under the award. Since the contravening acts were ones of commission - involving the employment of teachers - that point was, strictly, well-made so far as it went. But it went nowhere towards addressing considerations of the kind referred to in the previous paragraph. The inherent seriousness of the contraventions is not, in my view, to be measured only, or even mainly, by reference to the material impact which they had on the teachers concerned. 20 The more general considerations which I mentioned above in relation to the Academy's contraventions of cl 10.2(c) of the award apply equally here. 21 In all the circumstances, and after applying the totality principle within this group, I consider that a penalty of $7,500 should be imposed in respect of each of these nine contraventions of cl 10.6 of the award. 22 I turn next to the contraventions of ss 482(3) and 502(1) of the FW Act to which I referred in paras 301-330 of my reasons of 25 February 2016. I need to commence with some matters of organisation. Section 557 has no relevance to contraventions of these kinds, but the applicants accepted that, in accordance with general principles, the respondents should not be effectively penalised more than once for a single culpable act or course of conduct just because it happened to be penalisable under two or more statutory provisions. Conformably with that approach, the applicants submitted that I might find that contraventions in each of the following groups answered that description: (a) contraventions of s 502(1) by the Academy on 23 November 2012 constituted by intentionally hindering and obstructing Messrs Matson and Schmidt (one contravention in respect of each permit holder) by altering the first page of the appointment letters of Ms Borova, Ms Onder, Ms Cansiz, Ms Sheehan, Ms Ahmed, Ms Awari, Ms Oz and Ms Daniel; (b) contraventions of s 482(3) by the Academy on 27 November 2012 constituted by the failure to comply with the requirements of Messrs Matson and Schmidt (one contravention in respect of each permit holder) to allow them to inspect and to copy the contracts of Ms Borova, Ms Onder, Ms Cansiz, Ms Sheehan, Ms Ahmed, Ms Awari, Ms Oz and Ms Daniel; (c) contraventions of s 482(3) by the Academy on 17 December 2012 constituted by the failure to comply with the requirements of Messrs Matson, Schmidt and McMullin (one contravention in respect of each permit holder) to allow them to inspect and to copy the contracts of Ms Chaarani and Ms Badawi, together with the contraventions of s 502(1) on the same day constituted by the intentional hindering and obstruction of Messrs Matson, Schmidt and McMullin (one contravention in respect of each permit holder) by providing altered copies of the contracts of Ms Chaarani and Ms Badawi; (d) contraventions of s 482(3) by the Academy on 17 December 2012 constituted by the failure to comply with the requirements of Messrs Matson, Schmidt and McMullin (one contravention in respect of each permit holder) to produce for inspection contracts in electronic form, together with the contraventions of s 502(1) on the same day constituted by the intentional hindering and obstruction of Messrs Matson, Schmidt and McMullin (one contravention in respect of each permit holder) by refusing to permit them to inspect the electronic form of documents and records held on the Academy's computers; (e) contraventions of s 502(1) by Mr Salman on 17 December 2012 constituted by intentionally hindering and obstructing Messrs Matson, Schmidt and McMullin (one contravention in respect of each permit holder) by directing Mr Galea to refuse to permit them to inspect the electronic form of documents and records held on the Academy's computers; (f) contraventions of s 502(1) by Mr Galea on 17 December 2012 constituted by intentionally hindering and obstructing Messrs Matson, Schmidt and McMullin (one contravention in respect of each permit holder) by refusing to permit them to inspect the electronic form of documents and records held on the Academy's computers. 23 It was submitted on behalf of the respondents that groups (a) and (b) in the list above should be grouped together. The essence of the Academy's culpability, it was submitted, was to alter the contracts on 23 November 2012. All that happened on 27 November 2012 was the provision of the altered contracts to the permit holders. It could also be said that the only thing which made the alteration of the contracts on 23 November 2012 unlawful under s 502(1) was the Academy's intention to hinder and obstruct the permit holders. It was only by the choice of the permit holders that four days fell between each episode of conduct: had the alterations been made in the back office while Messrs Matson and Schmidt were entering by the front door, there would only have been one episode, and one contravention. So the respondents submitted. 24 The applicants maintained their position that there was a conscious act on each of 23 and 27 November 2012, and that each such act amounted to a contravention in its own right. Altering the contracts was a conscious act which should be penalised, and failing to provide the true contracts to Messrs Matson and Schmidt was another. This was not a case, it was submitted, where a single act or omission amounted to a contravention of two different provisions. 25 I am not prepared to treat these contraventions of ss 482(3) and 502(1) of the FW Act as, or as effectively, involving only one episode of culpable conduct. Albeit that the timing was the choice of the permit holders, the fact is that those responsible in the administration of the Academy had four sleeps between the time the contracts were altered and the time they failed to comply with the requirements of Messrs Matson and Schmidt. To that extent I accept the applicants' submission that this was not a case of a single act or omission amounting to a contravention of two different provisions. But, in point of inherent culpability, I likewise accept the respondents' submission that these contraventions are very closely related, if not tied together. 26 The approach which I propose to take, in the circumstances, is to impose a separate penalty for each of the groups of contraventions in (a) and (b), but to reduce the amount of each such penalty below what would have been appropriate in the case of either group considered in isolation. 27 The respondents go further and submit that the contraventions in group (c) should be grouped with those in groups (a) and (b), since it was no more than happenchance that the names of Ms Chaarani and Ms Badawi were not mentioned at the inspection on 27 November 2012. I did not understand counsel for the applicants to make any submission in reply to this, separate from what they had submitted in relation to groups (a) and (b). There is merit in what the respondents say here, and I propose to acknowledge it by taking the same approach as I shall in relation to those groups, namely, by reducing what would otherwise be the appropriate penalty for group (c) considered in isolation. 28 Otherwise, the respondents did not resist the applicants' groupings. 29 Turning to the amount of the penalty to be imposed in respect of the contraventions in groups (a), (b) and (c), the starting point is that these were very serious departures from the norms established by ss 482(3) and 502(1). The Academy's conduct was intentional not only in the immediate instrumental sense, but also in the sense that what the Academy set out to do, and successfully did, was to frustrate the achievement of the very purposes for which these provisions were enacted. The Academy's conduct bespeaks a determination to ensure that the permit holders did not secure access to documentary information of the kind that the community has said, through its legislation, must be accessible. 30 But the situation revealed by the findings made on 25 February 2016 is more serious yet. At base, the Academy's conduct involved a calculated deception. In anticipation of the permit holders' visit, the Academy artificially created the appearance of regularity with a view, no doubt, to giving the permit holders to believe that all was in order. The risk that conduct of this nature might achieve its odious objective is all too great when those conducting the inspection are, necessarily by reason of their positions outside the tent, limited in their ability to distinguish truth from falsity. The importance of deterrence, both specific and general, in such a setting needs hardly to be emphasised. 31 On the findings which I made on 25 February 2016, it can only be concluded that senior management of the Academy not only was involved in, but constituted the initiating force behind, these contraventions. The contraventions were not the result of a subordinate employee overstepping the mark in some respect: they were the doing of the chief executive himself. 32 Aside from the fact that the Academy has not, so far as is known, previously contravened an industrial law, nothing can be said by way of mitigation. The submission made on behalf of the respondents that this contravening conduct "occurred very much on the spur of the moment and under pressure" cannot, with respect to those involved, be taken seriously. 33 Taking everything into account, I consider that, for each of groups (a) and (b) above considered in isolation, a penalty of $30,000 would be appropriate. Because these groups are not, however, isolated from each other, I propose to impose a penalty of $25,000 in respect of each. In relation to group (c) considered in isolation, a penalty of $25,000 would be appropriate, since that group involves the circumstances of two teachers only. In acknowledgement of the respondents' submission that the separate treatment of this group has little or nothing to do with the overall level of the Academy's culpability, I propose to reduce this notional starting point substantially. For that group, I shall impose a penalty of $10,000. 34 As a matter of totality within this general area of the case, the result of what I have decided above is that the Academy would be required to pay a total penalty of $60,000. Given the number of teachers involved, the number of nominal contraventions and the considerations which I have taken into account as laid out above, on no view could this figure be regarded as overly punitive, or burdensome, in the context of the Academy's overall culpability. 35 Turning to group (d), the contraventions here were intentional in the sense that the Academy knew what it was being required to do and consciously determined not to do it. They were serious in the sense that the conduct in question lay at the core of the relevant statutory prohibitions. On the other hand, they did not involve the deceptive element to which I have referred in other contexts above: presumptively, the electronic information to which the permit holders sought access might indeed have revealed breaches of the FW Act and/or the award on the part of the Academy, but, by refusing to provide that access, the Academy was not, as I would assess it, pursuing a project of calculated deception. 36 The significant factor upon which the respondents relied as mitigatory in this part of the case was the circumstance that the Academy sought legal advice as to its obligations under the FW Act and under the second s 483AA order made by FWA. The applicants submitted that this was no shield to liability under ss 482(3) and 502(1), and neither it is. But, in the essentially discretionary exercise in which I am presently engaged, it is a matter to be taken in account. The fact is that here, as distinct from other occasions referred to above, the Academy was minded to comply with the law, against a background in which it had obvious, and legitimate, concerns about exposing the private details of many people to inspection by those who may have had no right to proceed in the way proposed. 37 I propose to impose a penalty of $11,000 in relation to group (d). 38 That leaves the contraventions of the two individuals involved, Mr Salman and Mr Galea. Each arises under s 502(1) only. For an individual, the relevant maximum penalty is $6,600. 39 In relation to Mr Salman, I can see no basis upon which I should see the matter differently from the way I have in the case of the Academy under group (d). I propose to impose a penalty of $2,200 in respect of the contraventions in group (e). 40 Mr Galea is in a different situation. He was purely instrumental in the contraventions of s 502(1) which occurred on 17 December 2012. He had the misfortune to be the senior member of the Academy's staff who happened to be present when the permit holders arrived at the secondary campus without an appointment. He made what I would hold to be a conscientious attempt to comply with his obligations, but he was constrained by the instructions which he received from Mr Salman. As he made clear to the permit holders at the time, and as he repeated in his evidence, he was, in effect (although he did not use this metaphor) between a rock and a hard place. 41 In the circumstances, I propose to impose a nominal penalty only in Mr Galea's case. That penalty will be $25. 42 On the determination of penalties, it remains to consider whether the penalties imposed on the Academy in all of the areas dealt with above would, when summed, offend the totality principle. In my view they would not. 43 The applicants sought an order that the penalties imposed in this case be paid to the Union. Such a course is appropriate: Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4. 44 The applicants sought their costs incurred in connection with their claims under cl 10.6 of the award, their claims relating to the alteration of documents on 23 November 2012, their claims arising from the provision of incorrect documents on 27 November 2012, their claims related to the Academy's failure to provide the contracts of Ms Chaarani and Ms Badawi and their claims relating to the Academy's failure to provide access to electronic documents on 17 December 2012. 45 Normally, a successful applicant in a matter which arises under the FW Act is not entitled to costs: s 570. But there is an exception, arising under subs (2) of that section, where the costs sought to be recovered have been incurred because of the "unreasonable act or omission" of another party. Most obviously, the prospect of an act or omission being regarded as unreasonable in this context will be an essentially procedural one, such as where there has been a failure to comply with case management directions given by the court. But the subsection is not so limited, and it has, at times, been applied in a substantive setting, such as where the other party makes or denies allegations without any arguable basis for doing so. 46 Commencing with the applicants' claims under cl 10.6 of the award, it was submitted on behalf of the applicants that, on what is now known, the Academy's own records demonstrated that Ms Borova, Ms Sheehan, Ms Onder, Ms Awari, Ms Oz, Ms Daniel, Ms Chaarani and Ms Ahmed were employed for fixed terms in 2012, and did so from the outset of this proceeding. Rather than denying this fact, or putting the applicants to their proof, the respondents should have admitted the truth of what would have been apparent from the Academy's own records. 47 The major premise of the applicants' argument must be accepted: at all relevant times, Mr Salman (and therefore the Academy) knew, or had the means readily to inform himself, that these nine teachers were employed for fixed periods in 2012. As I have found, it was on his initiative that their contracts were altered to conceal that fact. It was in that environment that the Academy filed its Defence on 10 September 2013 – at which time the applicants alleged only that Ms Awari, Ms Oz, Ms Daniel, Ms Borova, Ms Sheehan and Ms Onder were so employed – and its Amended Defence on 4 December 2014 – by which time Ms Chaarani and Ms Ahmed had been added to the applicants' allegations. At all times, the position was taken by the Academy that Ms Awari was employed on a permanent basis in reliance on the letter signed by her on 21 July 2011. In the cases of the other teachers, either it was contended that they were employed on a permanent basis in reliance on letters which I found were altered on 23 November 2012, or, by reference to documents which were said to leave the position unclear including letters of that character, it was said that the Academy was unable to affirm what the true position was. 48 Against the knowledge which Mr Salman must have had at all relevant times, the position which the respondents thus adopted was disingenuous at best. Indeed, the conclusion that he not only concealed the truth from the Union's permit holders but proceeded to give instructions for the conduct of the case upon the strength of what he could only have known were false records, at least in one respect, is inescapable. The truth of what was happening in the Academy's own organisation has been revealed to the court not by the Academy itself but by the untiring efforts of the applicants. In some respects, when it became as plain as a pikestaff that the position for which the applicants contended represented the truth of the matter, admissions were made. Until then, however, the applicants were obliged to do all the spade work themselves. 49 It will not, of course, be an unreasonable omission for a respondent to withhold an admission (where it does not know) or to deny an allegation (where it reasonably believes the allegation to be ill-founded). It was submitted on behalf of the respondents that s 570(2)(b) of the FW Act cannot be engaged on nothing more than a respondent's placing in contest a fact or matter upon which it ultimately fails. I accept that submission. The circumstance which places the present case apart, however, is the Academy going to trial on the basis of documents which it knew to be false – indeed, which it had itself falsified – the result of which was that it was left to the applicants to establish the true position. In my view, the costs which they incurred in doing so arose from the unreasonable act or omission of the Academy and Mr Salman. Insofar as it was an act, the act was constituted by their reliance on the false documents. Insofar as it was an omission, the omission was constituted by their failure to file a Defence containing honest responses to the applicants' allegations. 50 In relation to Ms Awari, Ms Oz, Ms Daniel, Ms Borova, Ms Sheehan and Ms Onder, the applicants should have their costs incurred in connection with their allegation that each was employed for a fixed period in 2012 between the date of the filing of the Defence (10 September 2013) and the date when the Academy admitted that she was so employed or the final day of the trial, whichever was the earlier. In relation to Ms Chaarani and Ms Ahmed, the applicants should have their costs incurred in connection with their allegation that each was employed for a fixed period in 2012 between the date of the filing of the Amended Defence (4 December 2014) and the date when the Academy admitted that she was so employed or the final day of the trial, whichever was the earlier. Those costs will be the responsibility of the Academy and Mr Salman. 51 Turning next to the applicants' claims relating to the alteration of documents on 23 November 2012, it will be apparent that some of the relevant costs may be the applicants' entitlement under the order which will give effect to what I have decided above in relation to cl 10.6. Beyond that, however, I would not go. Save in the conventional sense that it became part of the applicants' evidentiary case, the Academy's conduct on 23 November 2012 did not cause them to incur costs. At that time, the proceeding did not exist. The applicants were under no obligation to sue, and they might have saved themselves costs by choosing not to do so. When they did sue, they assumed the obligation to prove that more teachers were employed for fixed terms than was the Academy's entitlement. By its manoeuvres on 23 November 2012, the Academy made that task somewhat more complicated, but the point of reference of that conduct was not this proceeding but the anticipated entry of the permit holders. The conduct laid the foundation for the applicants' cases under ss 482(3) and 502(1), but acts or omissions which are unlawful in the sense that they provide the very cause of action upon which an applicant sues are not, in my view, the stuff of s 570(2)(b). 52 The applicants advance no additional basis upon which they should recover their costs of their claims arising from the provision of incorrect documents on 27 November 2012 or their costs of their claims related to the Academy's failure to provide the contracts of Ms Chaarani and Ms Badawi. They relied on the submissions they had made in respect of the matter dealt with in the previous paragraph. I would likewise reject these aspects of their claim for costs. 53 As to the applicants' claims relating to the Academy's failure to provide access to electronic documents on 17 December 2012, their position was stated in their written outline as follows: The ostensible basis on which the Respondents relied to deny access to the electronic documents, namely, legal advice and preservation of privacy did not concern or address the fact of the existence of the FWA order nor was there a reliance at the time on any allegation of the legal ineffectiveness of the FWA orders. It should be apparent from what I have said above in relation to penalties that I take the view that this was an area of the case where the respondents' conduct was less egregious than elsewhere. The applicants' submission is not responsive to the requirements of s 570(2)(b), and should not be accepted. 54 Finally in the area of costs, the applicants made the following submission in their outline: If the Court is against the [a]pplicants' contentions as to costs above, specific unreasonable conduct by the [r]espondents during the proceeding caused the [a]pplicants to incur costs. That specific conduct included the destruction of computers and the creation and alteration of receipts, (as to which the applicants rely on paragraphs 533-585 and 602-623 of the [a]pplicants' outline of closing submissions), the interference with subpoenas and the disputation of facts 1-36, 39-50, 57-63, 73-78, 80-81, 83-88, 91-92, 93-96 contained in the Notice to Admit filed 21 November 2014 by the filing of the Notice of Dispute dated 4 December 2014. It may be noted that reference is made to 75 paragraphs of previous written submissions and to 75 disputed facts. Had it been expected that the court would take this submission seriously, something more than the following oral elaboration would have been forthcoming: In the alternative, in our written outline we had sought costs in respect of specific matters. A large amount of work, we say, flowed from the destruction of documents and the creation and alteration of receipts. Large amounts of work, we say, flowed from proper documents not being returned to court in answer to subpoena. We had to prove each of the contentious teacher's status, in circumstances where the respondent had at all times altered documents and retained possession of them. We had in our written outline referred to the cost of proving those matters set out in our notice to admit. Your Honour, I won't take your Honour to this in detail, insofar as that it is self-explanatory. There are a number of - we have considered the respondent's submissions, and there are a number of matters which we have removed from the list. But they should be seen, these matters, your Honour, in the context of, once again, wholesale alteration and destruction of documents and a course of conduct thereafter designed to obfuscate and to hide the truth. It was not. The basis upon which the court would find that some, and if so what, act or omission on the part of the respondents engaged s 570(2)(b) was not, with respect to those concerned, "self-explanatory" at all. I do not hold that nothing in the wide range of aggravations here referred to, by incorporation, by the applicants could have so engaged the provision. It is just that I am not prepared to act on the strength of such an undeveloped submission as that set out above. 55 The only other comment I would make about this aspect of the applicants' costs case is that it was expressed to be in the alternative. Since I have upheld the applicants' primary case under s 570(2)(b) in what would have to be regarded as a substantial respect, perhaps this latter submission is to be regarded as having fallen away. On the other hand, since there are respects in which I have not upheld that case, perhaps it is not. That too was not made clear. 56 To the extent that their application for costs is successful, the applicants also submit that those costs should be taxed on an indemnity basis. An indemnity costs order is made "when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs": Hamod v New South Wales (2002) 188 ALR 659, 665 [20]. Since the very basis of the applicants' entitlement to these costs is the holding that the need to incur them arose from the Academy's, and Mr Salman's, unreasonable act or omission, it is not readily apparent why the further conclusion that those costs should be taxed on an indemnity basis should not follow almost as a matter of course. Whether or not that be so, I do hold it to have been unreasonable of the Academy and Mr Salman to have conducted their defence to the applicants' allegations under cl 10.6 of the award in the way that they did (to the extent outlined previously in these reasons). For the applicants to be entitled only to their party and party costs would not, in my view, represent a just outcome on this part of the case. 57 I turn finally to the applicants' application under r 42.16 of the Rules. That rule provides as follows: (1) If it is alleged that a person is guilty of contempt of the Court, a party may apply to the Court for an order directing the Registrar to make application in the proceeding, or to start a proceeding, for punishment of the contempt. (2) Subrule (1) does not affect any right of a person to make application in the proceeding for, or to start a proceeding for, punishment of contempt. 58 The conduct which, in the submission of the applicants, could be held to amount to contempt of court was the following: • knowing that Ms Onder was required by subpoena to send her contract to the court, Mr Salman's asking her to substitute the existing front page of her contract with an altered version (reasons, paras 180-181); • having advised Ms Cansiz that her contract, as provided by her, would be returned to the Court on her behalf in answer to a subpoena addressed to her, Mr Salman's returning a different document (reasons, paras 182-183); • in a context in which Ms Daniel had been served with a subpoena, providing her with a contract different from that which she had previously signed (reasons, para 257); • in a context in which Ms Daniel had been served with a second subpoena, providing her with a contract different from that which she had previously signed (reasons, para 258); • a "concern" about the circumstances in which Ms Oz's appointment letter was sent to the court (reasons, para 271); and • in a context in which Ms Chaarani had been served with a subpoena, providing her with a contract different from that which she had previously signed (reasons, paras 285-287). 59 In what I was told was the only previous instance of recourse to the procedure for which r 42.16 provides, Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743 at [11], Besanko J said: The applicant's application raises four matters. First, it is necessary to consider whether the respondents' conduct could constitute a contempt of court. Secondly, it is necessary to consider whether there is a more appropriate procedure for enforcing the orders of the Court. Thirdly, it is necessary to consider whether on the material before the Court there is a sufficient case of contempt. Finally, it is necessary to consider whether there are reasons which in the exercise of the Court's discretion militate against the making of the order sought by the applicant. As will appear presently, I take the view in the present case that there is a more appropriate procedure dealing with the applicants' allegations (if that is what they could be called) of contempt. But I propose first to say something about the provenance of r 42.16. 60 The corresponding provision of the Federal Court Rules (Cth) (ie the rules which predated the commencement of the Rules in 2011, to which I shall refer as "the old Rules") was O 40 r 10, which provided as follows: (1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court, the Court may, by order, direct the Registrar to apply by motion for, or to commence a proceeding for, punishment of the contempt. (2) Subrule (1) does not affect such right as any person other than the Registrar may have to apply by motion for, or to commence a proceeding for, punishment of contempt. Rule 10 had been part of the old Rules from the outset, having been based on Pt 55 r 11 of the Supreme Court Rules 1970 (NSW). That provision was purely ministerial, and did not contemplate a procedure in which a party might "apply" for the making of a direction to the Registrar: Killen v Lane [1983] 1 NSWLR 171. 61 The formula now to be found in r 42.16 of the Rules expressly enables a party to apply for the making of such a direction. Whether that change was intended to be by way of law reform may be doubted. In the Explanatory Statement which accompanied the making of the Rules, the whole of Pt 42 was covered by the rather anodyne observation that the Part – … adopts, simplifies and streamlines the process and procedures which operated under the former Rules and does not substantially alter existing practice. It depends, I suppose, what was meant by "substantially". 62 Notwithstanding the change, in my view it remains the law that a party applying under r 42.16 is not entitled to have a direction made, however strong his or her case for contempt may be. The decision whether to make such a direction is entirely a matter for the discretion of the court – a discretion which may be exercised one way or the other by reason of circumstances which have nothing to do with what might be called the merits of the case, such as the resources available to the Registrar for a proceeding of the kind contemplated and his or her exposure to an order for costs in such a proceeding. 63 Returning to the applicants' application under r 42.16 as such, r 42.11(1) provides as follows: (1) If a party alleges that a contempt has been committed by a person in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by the party by interlocutory application in the proceeding. In their submissions made on the present occasion, the only explanation which the applicants offered for not applying under this rule was that the Union was a small organisation whose funds had been significantly stretched by the demands of this litigation, not least by reason of having been obliged to uncover the truth in areas where the Academy appeared set on concealing it. However much substance there may be in that grievance, it does not, in my view, justify recourse to the procedure for which r 42.16 provides. 64 One way or the other, the contempt allegations made by the applicants relate to conduct by way of interference with compliance with subpoenas issued by the court. The applicants caused those subpoenas to be issued, and they did so in order to gather evidence in their case. In most (albeit not all) instances, the applicants proceeded to call the addressees as witnesses. The applicants and their professional advisers are, I am entitled to infer, already most of the way along the path of putting together such evidentiary material as would be necessary to make good their allegations. By contrast, the Registrar would be obliged to brief counsel who knew nothing about the case and to take proofs from the ground up, as it were. If, as appears to be the situation, the applicants are keen to see justice done in relation to the contempts which they allege, they are themselves, in my view, the ones most naturally placed to conduct such a case before the court. 65 For those reasons, I propose to reject the applicants' application under r 42.16 of the Rules. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 8 June 2016