FEDERAL COURT OF AUSTRALIA Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697 Appeal from: Application for leave to appeal: Tyson v Heiko Constructions trading as Heiko Constructions Pty Ltd [2019] FCCA 3643 File number: QUD 788 of 2019 Judge: LOGAN J Date of judgment: 14 February 2020 Catchwords: EMPLOYMENT AND INDUSTRIAL RELATIONS – application for leave to appeal – where the Federal Circuit Court of Australia (Federal Circuit Court) made a declaration of contravention of s 348 of the Fair Work Act 2009 (Cth) – where the allegation which raised s 348 for consideration as a way of characterising the conduct as a contravention was struck out – whether a formal amendment for variance was made in the Federal Circuit Court to raise s 348 for consideration following the strikeout PRACTICE AND PROCEDURE – where the Federal Circuit Court made a declaration of contravention – where the hearing of the Federal Circuit Court matter for submissions on the question of penalty and compensation was adjourned to a date to be fixed – whether the declaration as to contravention is an interlocutory order – whether leave to appeal is required to appeal the declaration Legislation: Crimes Act 1914 (Cth) Fair Work Act 2009 (Cth) s 348 Federal Court of Australia Act 1976 (Cth) s 24 Judiciary Act 1903 (Cth) s 79 Trade Practices Act 1974 (Cth) s 55 Justices Act 1886 (Qld) s 48 Cases cited: Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCA 41 BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Hollis v Clark (1981) 40 ALR 179 Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2011] FCA 401 Tyson v Heiko Constructions Trading As Heiko Constructions Pty Ltd [2019] FCCA 3643 Date of hearing: 14 February 2020 Registry: Queensland Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Mr J Murdoch QC Solicitor for the Applicant: James Conomos Lawyers Counsel for the Respondent: The respondent appeared in person ORDERS QUD 788 of 2019 BETWEEN: HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD Applicant AND: JOHN ROBERT TYSON Respondent JUDGE: LOGAN J DATE OF ORDER: 14 FEBRUARY 2020 THE COURT ORDERS THAT: 1. Save for paragraphs 1, 2, 3, 4, 5, 26, 27, 28, 29, 36 and 37 (the admissible paragraphs), the respondent's affidavit filed 14 February 2020 be read as if the remaining paragraphs were struck out. 2. No person, other than a party to the proceedings or a lawyer acting as a representative of a party to the proceedings or a Judge or officer of the Court, may access a copy of the respondent's affidavit filed 14 February 2020, save for the admissible paragraphs, without leave of the Court or Judge. 3. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant be granted leave to appeal on the grounds set out in the draft notice of appeal annexed to the application for leave to appeal, against the declaration, being Order 1 of the Orders made in the Federal Circuit Court in proceeding BRG823/2018 Tyson v Heiko Constructions T/A Heiko Constructions Pty Ltd (FCC proceedings) on 12 December 2019 and Order 3 of the Orders made in those proceedings. 4. The application for a stay of Order 3 made in the FCC proceedings be adjourned to a date to be fixed, with liberty to apply for its relisting on two clear business days notice. 5. It is desirable that the respondent be represented under the Bar Association of Queensland Pro Bono Referral Service, if possible. The Registrar is to take such steps as may be necessary to facilitate the provision of representation via that service. 6. In relation to the application for leave to appeal, there be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 On 12 December 2019, for reasons published that day, the Federal Circuit Court of Australia (Federal Circuit Court) (his Honour Judge Vasta) made these orders (see: Tyson v Heiko Constructions Trading As Heiko Constructions Pty Ltd [2019] FCCA 3643): (1) The Court declares that the Respondent, Heiko Constructions Pty Ltd, contravened s.348 of the Fair Work Act in that Mr Barrios attempted to coerce the Applicant into re-joining the CFMEU and paying his union dues by threatening the Applicant that he could not work on an EBA job unless he paid the union and that if he didn't pay the union, he would be employed elsewhere for a wage that "sucked". (2) In all other respects, the Application filed on 13 August 2018 as amended on 9 November 2018, 20 December 2018 and 17 January 2019 be dismissed. (3) That the further hearing of the matter be adjourned to a date to be fixed for submissions on the question of penalty and compensation. 2 A sequel to those orders is that Heiko Constructions Pty Ltd (Heiko Constructions) has applied for leave to appeal against the declaration quoted and further, the order consequentially of adjournment for the hearing of submissions as to questions of penalty and compensation. The order that Heiko Constructions seeks in the alternative is one of dismissal of the proceeding in its entirety. It also seeks, perhaps ambitiously, although that would have to be determined later, orders for costs in respect of the appeal and proceedings in the Federal Circuit Court. As matters stand today, the Federal Circuit Court has yet to appoint a date for the hearing of submissions on the question of penalty and compensation. 3 The respondent, Mr John Robert Tyson (Mr Tyson), was, on the evidence below, an experienced formwork patcher. There was evidence in the trial of his having witnessed what he saw as a serious workplace accident while working for Heiko Constructions. Heiko Constructions is, it seems, a labour hire company. The incident occurred at the Multiplex Jewel worksite. Later that day, so Mr Tyson related, he saw the accident site being cleaned up. He formed the view that the accident had been caused by an unsafe work environment and that there had been what he saw as a coverup of the reasons for the accident. 4 That motivated him to complain both to WorkSafe and also the hotline of the union of which he was then a member, the Construction, Forestry, Mining and Energy Union (CFMEU). He formed the view that no action was being taken in response to either of those complaints. He resigned his union membership. His experience, so he related, was that not long after that, the foreman to whom he reported terminated his employment. This he saw as adverse action in terms of the Fair Work Act 2009 (Cth) (Fair Work Act). Mr Tyson's evidence, and his related belief, was that he was coerced by the foreman to pay his union dues. Consequentially, Mr Tyson instituted proceedings in the Federal Circuit Court alleging that he had suffered adverse action. 5 As is apparent from the order ultimately made in December last year by the Federal Circuit Court after trial, those pleadings underwent a number of amendments. At one stage, in a reply, at [12], filed on 8 February 2019, the conduct concerned was characterised as constituting a contravention of s 348 of the Fair Work Act. However, in the course of interlocutory proceedings prior to trial and in response to a strikeout application made by Heiko Constructions, the Federal Circuit Court came, by order in June 2019, to strikeout materially the allegation in [12] of the reply which raised s 348 for consideration as a way of characterising the conduct as a contravention. 6 Ultimately though, as the Federal Circuit Court's declaration reflects, there was a contravention of s 348 of the Fair Work Act found. In the draft notice of appeal annexed to the application for leave to appeal, Heiko Constructions seeks to raise on appeal whether on the facts found there was ever a contravention of s 348 of the Fair Work Act, but in any event, whether the learned primary judge observed procedural fairness in the course of concluding that there was such a contravention. There was never any formal amendment of the application in the Federal Circuit Court. There was though, after the close of evidence, an exchange between his Honour and Mr Murdoch QC, who appeared for Heiko Constructions at trial. 7 In the course of that exchange, his Honour, at the very least, mused about the prospect that the conduct concerned raised a contravention of s 348 of the Fair Work Act. Quite what to make of that exchange is not for determination today. It must be said that the exchange occurred at a time when all of the evidence in the case, again the case as it had come to be pleaded, had been adduced, both for Mr Tyson as applicant as well as for Heiko Constructions. 8 As he did today in response to the leave application, Mr Tyson appeared on his own behalf at trial. That is not to say that at all stages of proceedings in the Federal Circuit Court he was without legal representation. However, prior to the proceeding in June 2019 which saw [12] of the reply struck out, lawyers previously acting for him withdrew. Earlier pleadings, though, were inferentially, at the very least, made with the benefit of some legal advice, if not authored by legal practitioners. 9 The approach in respect of proceedings in the Federal Circuit Court for civil penalties for contravention of the Fair Work Act is initially to make findings as to liability, if any, and then, if there be a finding of a contravention, to proceed at a later date, rather than on the date of judgment, to hear submissions as to penalty and compensation. 10 In turn, the approach in this Court, where that has occurred and the contravener as found by the Federal Circuit Court seeks to challenge the finding of contravention, is that such a challenge requires a grant of leave to appeal. That view is taken because the declaration as to contravention, although in some respects it might be thought to have a quality of finality, is nonetheless regarded as interlocutory. As an interlocutory order of the Federal Circuit Court, an appeal to this Court only lies by way of a grant of leave: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and also as to cases where that view has been taken: Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2011] FCA 401; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FCA 1495. 11 In determining whether or not to grant leave, it is not appropriate at all for the Court to reach any concluded view as to the ultimate merits of the proposed appeal on the grounds set out in a draft notice of appeal. Rather, one must, as a matter of impression, form a view as to whether the grounds, or at least one, upon which one might be disposed to grant leave, are sufficiently arguable to warrant a grant of leave to appeal. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [64] and [65], the Full Court observed: 64 Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) ("FCA Act"), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary. 65 The long and the short of it, then, is that, in a civil proceeding of a penal nature, a statement of claim must allege a contravention known to law and with a sufficient statement of material facts to alert a respondent to the case to be met. Nevertheless, where an applicant's pleading is ambiguous but a respondent has nonetheless meaningfully engaged with it in its defence, that engagement and the manner in which an applicant's case is consequentially opened and the trial conducted and defended can and ought to be considered in deciding whether a respondent has suffered any procedural unfairness. That is so even if there has been no formal application to amend the pleading. The obligations imposed on the Court and the parties by Pt VB of the FCA Act do not lead to any different conclusion. 12 The present case, as was put by Mr Murdoch QC for the applicant, Heiko Constructions, is not one, so it was submitted, where the parties could be seen to have conducted the case in a particular way which departed from the pleaded case such that there was no particular injustice in resolving the case by reference to the way in which it had been conducted. Rather, so the submission went, the course of interlocutory proceedings revealed a very specific endeavour, vindicated by the order made in June, to put a particular case for trial and for Heiko Constructions to meet that case. 13 It seems to me, from the exchange which occurred after the close of evidence, that his Honour the learned primary judge had in mind the practice of amendment for variance, which is sometimes encountered in the criminal jurisdiction. By that practice, if facts as found reveal not the charge pleaded in the indictment or other initiating document but, rather, another offence known to law, it is permissible for a Court to amend the indictment so as to allege the offence revealed by the evidence. Formal provision for that practice in summary proceedings in Queensland is found in s 48 of the Justices Act 1886 (Qld) (Justices Act). 14 In Hollis v Clark (1981) 40 ALR 179, in the context of proceedings in this Court in respect of contraventions of the then s 55 of the Trade Practices Act 1974 (Cth), Fox J was disposed to apply, pursuant to s 79 of the Judiciary Act 1903 (Cth), provisions of the Justices Act, in respect of default imprisonment, to those proceedings in relation to penalty. There is also provision in the Crimes Act 1914 (Cth) for amendment for variance. Even allowing for this, and on the assumption that there may be a power so to amend, no such formal amendment was made, only a consequential declaration of contravention. 15 Even if that be regarded as a deficiency of form rather than substance, there is, as the applicant Heiko Constructions promotes, at least an arguable case that whatever may be the source, if any, of a power to amend for variance, that power must nonetheless be exercised in a procedurally fair way. In circumstances where the Fair Work Act provides for, effectively, a reversal of an onus of proof in relation to some contraventions of which s 348 of the Fair Work Act would be one, Heiko Constructions puts forward that to amend for variance after the close of evidence, assuming it was put on notice at all, carried with it, nonetheless, procedural fairness deficiencies. In other words, it was not given any opportunity to decide, so the submission goes, whether to lead evidence in relation to that particular contravention as alleged and, if so, what evidence. 16 These propositions strike me, at least, as arguable, as indeed is Heiko Constructions' challenge as to whether there was any ability at all on the part of the learned primary judge to find a contravention of s 348 of the Fair Work Act in the circumstances. All of this, it must be said, is the subject of a contrary submission made by Mr Tyson, although, quite fairly and candidly, Mr Tyson acknowledged that as a layman, he did not in any way suggest a sophisticated knowledge of practice and procedure in relation to civil penalty proceedings. 17 The point, as to any ability to amend either at all or in the circumstances is, in my view, an important point of practice and procedure in relation to civil penalty proceedings in the Federal Circuit Court. Heiko Constructions has, in my view, raised an arguable case concerning the availability, either at all or in the circumstances prevailing, to find such a contravention where none had been pleaded. 18 Of course, to grant leave at this stage has about it the quality of fragmenting a proceeding in the Federal Circuit Court. There are considerations which tell against such an interruption in terms of the potential for an elongation of a proceeding. Equally, though, there are considerations which tell in favour in terms of shortening, if an appeal is successful, a proceeding. So I am very conscious that to grant leave is to interrupt a continuum of a civil penalty proceeding. Nonetheless, the grounds promoted by Heiko Constructions for a grant of leave persuade me that the present is a case where such leave ought to be granted at this stage. 19 Initially, Heiko Constructions was also disposed to seek a stay of further proceedings in the Federal Circuit Court. However, in the course of an exchange with Mr Murdoch QC, and upon my making it plain that I did not see an impediment to a renewal of a stay application if the Federal Circuit Court, upon being informed of a grant of leave to appeal and a consequential appeal, was nonetheless disposed to proceed to hear civil penalty and compensation submissions, Mr Murdoch QC indicated that Heiko Constructions was content to have the stay application stood over. 20 The position may well be different in circumstances where a date for the hearing of submissions on penalty and compensation will shortly occur. Indeed, as Perry J makes plain in Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCA 41 (Australian Red Cross Society v Queensland Nurses' Union of Employees), there is no fixed approach as to whether or not to stay proceedings in the Federal Circuit Court as a sequel to a grant of leave to appeal. In the ordinary course, a person who has succeeded in the original jurisdiction is entitled to the fruits of the judgment, but that does not necessarily mean that a stay must always be refused. Her Honour canvassed, insofar as there are principles which attend whether or not to grant a stay, those principles in Australian Red Cross Society v Queensland Nurses' Union of Employees. It may be, depending upon the approach taken by the Federal Circuit Court, that it later falls to consider how to apply those principles, but that is not for today. 21 It is, to say the least, desirable that Mr Tyson have the benefit of legal representation on the hearing of an appeal. He indicated a willingness to be represented pro bono if such representation could be secured. I propose, in light of that, to make an additional order which will see the Registrar canvas with the Queensland Bar Association whether any such representation is available. There can be no guarantee in that regard. 22 It only comes to this. I am persuaded, having regard to the submissions made, that the grounds of appeal set out in the draft notice of appeal enjoy a sufficient prospect of success to warrant a grant of leave to appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 May 2020