Question:
<citphrase id="cp0.0">cited from="[2006] FCA 941">evidence</citphrase>
<citphrase id="cp0.1">cited from="[2006] FCA 941">application to question a witness called on subpoena ad test as though cross-examining him under s 38(1)(a), 38(1)(b) and/or 38(1)(c) of the evidence act</citphrase>
<citphrase id="cp0.2">cited from="[2006] FCA 941">meaning of 'unfavourable' in s 38(1)(a)</citphrase>
<citphrase id="cp0.3">cited from="[2006] FCA 941">permitted scope of questioning as though cross-examining under s 38(1)(c) where there has been a prior inconsistent statement made by the witness.</citphrase>
<citphrase id="cp1.0">cited from="[1998] HCA 24">samuel capper v andrew thorpe  real property</citphrase>
<citphrase id="cp1.1">cited from="[1998] HCA 24">notices</citphrase>
<citphrase id="cp1.2">cited from="[1998] HCA 24">default notice</citphrase>
<citphrase id="cp1.3">cited from="[1998] HCA 24">service by post</citphrase>
<citphrase id="cp1.4">cited from="[1998] HCA 24">contract deeming notice to be served 48 hours after posting</citphrase>
<citphrase id="cp1.5">cited from="[1998] HCA 24">whether consistent with legislative provisions as to notice.  real property</citphrase>
<citphrase id="cp1.6">cited from="[1998] HCA 24">notices</citphrase>
<citphrase id="cp1.7">cited from="[1998] HCA 24">default notice</citphrase>
<citphrase id="cp1.8">cited from="[1998] HCA 24">service by post</citphrase>
<citphrase id="cp1.9">cited from="[1998] HCA 24">"served on the purchaser in writing"</citphrase>
<citphrase id="cp1.10">cited from="[1998] HCA 24">whether service effected upon receipt of a postal notice advising that an article awaits collection.  real property</citphrase>
<citphrase id="cp1.11">cited from="[1998] HCA 24">notices</citphrase>
<citphrase id="cp1.12">cited from="[1998] HCA 24">default notice</citphrase>
<citphrase id="cp1.13">cited from="[1998] HCA 24">whether receipt of a copy of notice amounts to service.  statutes</citphrase>
<citphrase id="cp1.14">cited from="[1998] HCA 24">interpretation</citphrase>
<citphrase id="cp1.15">cited from="[1998] HCA 24">intention of the legislature</citphrase>
<citphrase id="cp1.16">cited from="[1998] HCA 24">use of legislative debates.</citphrase>
<citphrase id="cp3.0">cited from="[1988] HCA 31">customs</citphrase>
<citphrase id="cp3.1">cited from="[1988] HCA 31">forfeiture of goods</citphrase>
<citphrase id="cp3.2">cited from="[1988] HCA 31">false declaration</citphrase>
<citphrase id="cp3.3">cited from="[1988] HCA 31">declaration wrong in fact but not purposely untrue</citphrase>
<citphrase id="cp3.4">cited from="[1988] HCA 31">customs act 1901 (cth), s. 229(1)(i).</citphrase>
<citphrase id="cp4.0">cited from="[1981] FCA 35">misleading conduct</citphrase>
<citphrase id="cp4.1">cited from="[1981] FCA 35">false or misleading statement</citphrase>
<citphrase id="cp4.2">cited from="[1981] FCA 35">lease of shop</citphrase>
<citphrase id="cp4.3">cited from="[1981] FCA 35">damages</citphrase>
<citphrase id="cp4.4">cited from="[1981] FCA 35">subsisting claim by lessor in supreme court  secns 52(1), 53a(1)(b), 82 trade practices act 1974 .  trade practices</citphrase>
<citphrase id="cp4.5">cited from="[1981] FCA 35">lease of shop</citphrase>
<citphrase id="cp4.6">cited from="[1981] FCA 35">statements by agent</citphrase>
<citphrase id="cp4.7">cited from="[1981] FCA 35">misleading conduct</citphrase>
<citphrase id="cp4.8">cited from="[1981] FCA 35">false or misleading statement concerning lease of shop</citphrase>
<citphrase id="cp4.9">cited from="[1981] FCA 35">damages</citphrase>
<citphrase id="cp4.10">cited from="[1981] FCA 35">supreme court action by lessor for possession, rent and charges</citphrase>
<citphrase id="cp4.11">cited from="[1981] FCA 35">trade practices act 1974 (cth), ss. 52 , 53a, 82 . the applicants sought damages under s. 82 of the trade practices act 1974 from the respondents in respect of alleged breaches of ss. 52 and 53a thereof. in august 1979 the applicants entered into a lease for a three-year term of a shop in a shopping centre from the first respondent. the applicants alleged certain oral statements by a servant of the second respondent, agents for the owners of the centre, made in the course of explaining to them characteristics of the shop and the terms of the proposed lease. by a writ issued out of the supreme court of victoria in may 1980 the first respondent had claimed possession and arrears of rent and other charges. the applicants had surrendered the lease. the respondents filed a joint defence and appeared by the same counsel.</citphrase>
<citphrase id="cp5.0">cited from="[1978] HCA 11">trade practices</citphrase>
<citphrase id="cp5.1">cited from="[1978] HCA 11">consumer protection</citphrase>
<citphrase id="cp5.2">cited from="[1978] HCA 11">misleading or deceptive conduct</citphrase>
<citphrase id="cp5.3">cited from="[1978] HCA 11">name similar to that of company with established business</citphrase>
<citphrase id="cp5.4">cited from="[1978] HCA 11">passing off</citphrase>
<citphrase id="cp5.5">cited from="[1978] HCA 11">trade practices act 1974 (cth), ss. 4 (3), 52 *, 80 **, 82 .  injunction</citphrase>
<citphrase id="cp5.6">cited from="[1978] HCA 11">interim</citphrase>
<citphrase id="cp5.7">cited from="[1978] HCA 11">interlocutory</citphrase>
<citphrase id="cp5.8">cited from="[1978] HCA 11">principles to be applied.   * trade practices act 1974 (cth), s, 52 is set out at p. 22, post.  ** the relevant provisions of s. 80 are set out at pp. 221-222, post.</citphrase>
<citphrase id="cp6.0">cited from="[1965] HCA 46">evidence</citphrase>
<citphrase id="cp6.1">cited from="[1965] HCA 46">civil proceedings</citphrase>
<citphrase id="cp6.2">cited from="[1965] HCA 46">standard of proof</citphrase>
<citphrase id="cp6.3">cited from="[1965] HCA 46">facts amounting to commission of a crime</citphrase>
<citphrase id="cp6.4">cited from="[1965] HCA 46">proof upon a balance of probabilities.</citphrase>
<citphrase id="cp7.0">cited from="[1959] HCA 8">negligence</citphrase>
<citphrase id="cp7.1">cited from="[1959] HCA 8">action</citphrase>
<citphrase id="cp7.2">cited from="[1959] HCA 8">collision between motor vehicles</citphrase>
<citphrase id="cp7.3">cited from="[1959] HCA 8">no direct evidence of negligence</citphrase>
<citphrase id="cp7.4">cited from="[1959] HCA 8">matter of inference from proved facts</citphrase>
<citphrase id="cp7.5">cited from="[1959] HCA 8">sufficiency of facts to support inference.  practice</citphrase>
<citphrase id="cp7.6">cited from="[1959] HCA 8">direction to jury</citphrase>
<citphrase id="cp7.7">cited from="[1959] HCA 8">inference of negligence open on proved circumstances</citphrase>
<citphrase id="cp7.8">cited from="[1959] HCA 8">whether inference should be drawn</citphrase>
<citphrase id="cp7.9">cited from="[1959] HCA 8">defendant able to explain facts from which inference sought to be drawn</citphrase>
<citphrase id="cp7.10">cited from="[1959] HCA 8">failure of defendant to give evidence</citphrase>
<citphrase id="cp7.11">cited from="[1959] HCA 8">what reliance to be placed by jury on such failure in deciding whether or not to draw inference</citphrase>
<citphrase id="cp7.12">cited from="[1959] HCA 8">nature of direction to jury.  practice</citphrase>
<citphrase id="cp7.13">cited from="[1959] HCA 8">non-suit</citphrase>
<citphrase id="cp7.14">cited from="[1959] HCA 8">verdict by direction</citphrase>
<citphrase id="cp7.15">cited from="[1959] HCA 8">history</citphrase>
<citphrase id="cp7.16">cited from="[1959] HCA 8">application in new south wales.</citphrase>
<citphrase id="cp9.0">citing from="[2011] FMCA 66">industrial law</citphrase>
<citphrase id="cp9.1">citing from="[2011] FMCA 66">civil penalty proceedings</citphrase>
<citphrase id="cp9.2">citing from="[2011] FMCA 66">coercion.  industrial law</citphrase>
<citphrase id="cp9.3">citing from="[2011] FMCA 66">civil penalty proceedings</citphrase>
<citphrase id="cp9.4">citing from="[2011] FMCA 66">false or misleading statements about membership.</citphrase>
<citphrase id="cp10.0">citing from="[2009] FCA 865">industrial law</citphrase>
<citphrase id="cp10.1">citing from="[2009] FCA 865">consideration of a pecuniary penalty to be imposed on three respondent unions in respect of contraventions of s 767(1) and s 768(1) of the workplace relations act 1996 (cth) arising out of entry by officials of the unions to premises at the abbot point coal terminal on 13 february 2009 and entry to those premises by officials of two respondent unions on 5 march 2009</citphrase>
<citphrase id="cp10.2">citing from="[2009] FCA 865">consideration of the criteria to be applied in determining the amount of penalty</citphrase>
<citphrase id="cp10.3">citing from="[2009] FCA 865">consideration of previous contraventions</citphrase>
<citphrase id="cp10.4">citing from="[2009] FCA 865">consideration of the objects of the legislation, the counter-factual, context and circumstances</citphrase>
<citphrase id="cp10.5">citing from="[2009] FCA 865">consideration of whether a pecuniary penalty ought to be paid to the applicant or to the commonwealth</citphrase>
<citphrase id="cp10.6">citing from="[2009] FCA 865">consideration of whether an order for costs ought to be made in favour of the applicant under s 824 of the workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp10.7">citing from="[2009] FCA 865">consideration of the continuing application of that act by operation of the fair work (transitional provisions and consequential amendments) act 2009 (cth)</citphrase>
<citphrase id="cp11.0">citing from="[2009] FMCA 355">industrial law</citphrase>
<citphrase id="cp11.1">citing from="[2009] FMCA 355">freedom of association</citphrase>
<citphrase id="cp11.2">citing from="[2009] FMCA 355">false or misleading representation</citphrase>
<citphrase id="cp11.3">citing from="[2009] FMCA 355">standard of proof</citphrase>
<citphrase id="cp11.4">citing from="[2009] FMCA 355">hearing on liability</citphrase>
<citphrase id="cp11.5">citing from="[2009] FMCA 355">application dismissed.</citphrase>
<citphrase id="cp12.0">citing from="[2009] FCAFC 17">industrial law</citphrase>
<citphrase id="cp12.1">citing from="[2009] FCAFC 17">findings of contraventions of workplace relations act 1996 (cth)</citphrase>
<citphrase id="cp12.2">citing from="[2009] FCAFC 17">power of the court to make orders under s 298u</citphrase>
<citphrase id="cp12.3">citing from="[2009] FCAFC 17">whether orders made applied in respect of conduct in contravention of part xa</citphrase>
<citphrase id="cp12.4">citing from="[2009] FCAFC 17">whether s 23 of the federal court of australia act 1976 (cth) is an additional source of power</citphrase>
<citphrase id="cp12.5">citing from="[2009] FCAFC 17">primary judge made orders for union to destroy all code of conduct for union delegate forms in its custody, possession or control</citphrase>
<citphrase id="cp12.6">citing from="[2009] FCAFC 17">orders made for union to publish advertisement correcting misrepresentations made by union delegates</citphrase>
<citphrase id="cp12.7">citing from="[2009] FCAFC 17">penalties imposed  industrial law</citphrase>
<citphrase id="cp12.8">citing from="[2009] FCAFC 17">mandatory injunctions</citphrase>
<citphrase id="cp12.9">citing from="[2009] FCAFC 17">destruction orders</citphrase>
<citphrase id="cp12.10">citing from="[2009] FCAFC 17">whether procedural fairness afforded to appellants</citphrase>
<citphrase id="cp12.11">citing from="[2009] FCAFC 17">whether orders were too wide to be capable of compliance</citphrase>
<citphrase id="cp12.12">citing from="[2009] FCAFC 17">whether injunction could be amended to clarify purpose</citphrase>
<citphrase id="cp12.13">citing from="[2009] FCAFC 17">whether orders necessary to do justice between parties</citphrase>
<citphrase id="cp12.14">citing from="[2009] FCAFC 17">whether mandatory injunctions protect any right or restrain any unlawful conduct</citphrase>
<citphrase id="cp12.15">citing from="[2009] FCAFC 17">whether factual foundation for the grant of injunction existed  industrial law</citphrase>
<citphrase id="cp12.16">citing from="[2009] FCAFC 17">publication orders</citphrase>
<citphrase id="cp12.17">citing from="[2009] FCAFC 17">whether any utility in making orders</citphrase>
<citphrase id="cp12.18">citing from="[2009] FCAFC 17">orders stayed until hearing of appeal</citphrase>
<citphrase id="cp12.19">citing from="[2009] FCAFC 17">three years since orders made by primary judge</citphrase>
<citphrase id="cp12.20">citing from="[2009] FCAFC 17">whether orders have any practical effect industrial law</citphrase>
<citphrase id="cp12.21">citing from="[2009] FCAFC 17">penalties imposed on union delegates</citphrase>
<citphrase id="cp12.22">citing from="[2009] FCAFC 17">whether primary judge had failed to take account of third appellant's history of non-contravention</citphrase>
<citphrase id="cp12.23">citing from="[2009] FCAFC 17">whether primary judge had miscarried in exercise of discretion</citphrase>
<citphrase id="cp12.24">citing from="[2009] FCAFC 17">whether issue of parity arises in relation to difference in penalties  held: appeal allowed in part</citphrase>
<citphrase id="cp12.25">citing from="[2009] FCAFC 17">destruction orders and publication orders set aside practice and procedure</citphrase>
<citphrase id="cp12.26">citing from="[2009] FCAFC 17">leave to cross-appeal</citphrase>
<citphrase id="cp12.27">citing from="[2009] FCAFC 17">whether extension of time should be granted</citphrase>
<citphrase id="cp12.28">citing from="[2009] FCAFC 17">no explanation of delay</citphrase>
<citphrase id="cp12.29">citing from="[2009] FCAFC 17">whether cross-appeal incompetent</citphrase>
<citphrase id="cp12.30">citing from="[2009] FCAFC 17">no direct challenge to orders of primary judge held: cross-appeal incompetent</citphrase>
<citphrase id="cp12.31">citing from="[2009] FCAFC 17">leave to cross-appeal refused</citphrase>
<citphrase id="cp13.0">citing from="[2008] FCA 1040">workplace relations</citphrase>
<citphrase id="cp13.1">citing from="[2008] FCA 1040">scope and application of the reversal of onus under s 298v</citphrase>
<citphrase id="cp13.2">citing from="[2008] FCA 1040">imposition of penalties for additional contraventions of s 298sc(c) of the act</citphrase>
<citphrase id="cp13.3">citing from="[2008] FCA 1040">consideration of the totality principle</citphrase>
<citphrase id="cp14.0">citing from="[2008] FCA 466">industrial law</citphrase>
<citphrase id="cp14.1">citing from="[2008] FCA 466">breach of s 170nc of the workplace relations act by union officials and union</citphrase>
<citphrase id="cp14.2">citing from="[2008] FCA 466">level of penalties</citphrase>
<citphrase id="cp14.3">citing from="[2008] FCA 466">appropriate penalty where union vicariously liable damages</citphrase>
<citphrase id="cp14.4">citing from="[2008] FCA 466">where breach of s 45d of the trade practices act</citphrase>
<citphrase id="cp14.5">citing from="[2008] FCA 466">where interference with contract</citphrase>
<citphrase id="cp14.6">citing from="[2008] FCA 466">no practical difference as to calculation of damages between s 45d count and tort count in instant circumstances</citphrase>
<citphrase id="cp14.7">citing from="[2008] FCA 466">damages to be measured by loss of net revenue by contractor</citphrase>
<citphrase id="cp15.0">citing from="[2008] FCAFC 22">industrial law</citphrase>
<citphrase id="cp15.1">citing from="[2008] FCAFC 22">"false or misleading representation"</citphrase>
<citphrase id="cp15.2">citing from="[2008] FCAFC 22">whether pleaded allegation sufficiently established by the evidence</citphrase>
<citphrase id="cp15.3">citing from="[2008] FCAFC 22">whether representation a statement of future intention or objective</citphrase>
<citphrase id="cp15.4">citing from="[2008] FCAFC 22">allegation sufficiently within contraventions pleaded</citphrase>
<citphrase id="cp15.5">citing from="[2008] FCAFC 22">"eligible person"</citphrase>
<citphrase id="cp15.6">citing from="[2008] FCAFC 22">whether a member of a partnership may be an eligible person</citphrase>
<citphrase id="cp15.7">citing from="[2008] FCAFC 22">whether reverse onus in s 298v applied by primary judge</citphrase>
<citphrase id="cp15.8">citing from="[2008] FCAFC 22">appeal allowed in part</citphrase>
<citphrase id="cp15.9">citing from="[2008] FCAFC 22">case remitted to primary judge for further consideration</citphrase>
<citphrase id="cp16.0">citing from="[2007] FCA 1047">industrial law</citphrase>
<citphrase id="cp16.1">citing from="[2007] FCA 1047">union officials seeking to enter enterprise bargaining agreement under div 2 of pt vib of the workplace relations act with developer-contractor</citphrase>
<citphrase id="cp16.2">citing from="[2007] FCA 1047">threat of disruption to work and disruptive conduct with intent to coerce developer-contractor</citphrase>
<citphrase id="cp16.3">citing from="[2007] FCA 1047">whether unlawful, illegitimate or unconscionable pressure</citphrase>
<citphrase id="cp16.4">citing from="[2007] FCA 1047">liability of unions for conduct of officials  industrial law</citphrase>
<citphrase id="cp16.5">citing from="[2007] FCA 1047">freedom of association</citphrase>
<citphrase id="cp16.6">citing from="[2007] FCA 1047">whether false and misleading representation made about a person's obligation to join an industrial association  trade practices</citphrase>
<citphrase id="cp16.7">citing from="[2007] FCA 1047">restrictive trade practices</citphrase>
<citphrase id="cp16.8">citing from="[2007] FCA 1047">secondary boycotts</citphrase>
<citphrase id="cp16.9">citing from="[2007] FCA 1047">conduct of union officials which hindered or prevented services being acquired by contractor from subcontractor</citphrase>
<citphrase id="cp16.10">citing from="[2007] FCA 1047">subcontract terminated</citphrase>
<citphrase id="cp16.11">citing from="[2007] FCA 1047">whether with purpose or likely effect of injuring subcontractor</citphrase>
<citphrase id="cp16.12">citing from="[2007] FCA 1047">liability of unions for conduct of officials tort</citphrase>
<citphrase id="cp16.13">citing from="[2007] FCA 1047">inducing breach of contract</citphrase>
<citphrase id="cp16.14">citing from="[2007] FCA 1047">union officials inducing breach of contract for services made between contractor and subcontractor</citphrase>
<citphrase id="cp16.15">citing from="[2007] FCA 1047">union officials' knowledge of existence of contract</citphrase>
<citphrase id="cp16.16">citing from="[2007] FCA 1047">vicarious liability of unions for actions of its officials</citphrase>
<citphrase id="cp16.17">citing from="[2007] FCA 1047">nature of contract</citphrase>
<citphrase id="cp17.0">citing from="[2007] FCA 425">workplace relations</citphrase>
<citphrase id="cp17.1">citing from="[2007] FCA 425">breadth of relief available for conduct in contravention of part xa of the act</citphrase>
<citphrase id="cp17.2">citing from="[2007] FCA 425">circumstances in which declaratory relief should be granted</citphrase>
<citphrase id="cp17.3">citing from="[2007] FCA 425">principles governing the imposition of penalties</citphrase>
<citphrase id="cp17.4">citing from="[2007] FCA 425">when orders are appropriate and necessary to stop the contravening conduct and/or remedy its effects</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 66" id="cs0">In Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [11] the Federal Court considered the meaning of "false and misleading" in what was then s.298SC(c) of the WR Act and observed as follows: 288 Whilst the wording of s 298SC is not identical to that employed in s 52 of the Trade Practices Act 1974 (Cth), there is a sufficient correspondence between the two to enable a conclusion to be drawn that it is unnecessary to establish an intent on the part of the alleged contravener to make a false or misleading misrepresentation (see Hornsby Building Information Centre Pty Limited v Sydney Building Information Centre Limited [1978] HCA 11 ; [1978] HCA 11 ; (1978) 140 CLR 216 at 228 and Brown v Jam Factory Pty Limited [1981] FCA 35 ; (1981) 53 FLR 340 at 349). It must be acknowledged that the word 'false', when viewed in isolation, is a latently ambiguous one (see per Deane, Dawson and Gaudron JJ in Murphy v Farmer ('Murphy') [1988] HCA 31 ; (1988) 165 CLR 19 at 26). 'False' is not a precise adjective (per Brennan and Toohey JJ in Murphy at 22).</sentence>
<sentence from="[2009] AIRC 868" id="cs1"/>
<sentence from="[2009] FCA 865" id="cs2">To similar effect are Hadgkiss v CFMEU (No 3) [2007] FCA 87 ; (2007) 160 IR 263 (the substantive proceeding); Hadgkiss v CFMEU (No 4) [2007] FCA 425 ; (2007) 161 IR 338 (a penalty proceeding); Hadgkiss v CFMEU (No 5) [2008] FCA 1040 ; (2008) 178 IR 123 (a penalty proceeding) and CFMEU v Hadgkiss (No 2) [2009] FCAFC 17 ; (2009) 174 FCR 237. Reliance is placed on Inspector Cruse v CFMEU [2008] FCA 1267 ; (2008) 175 IR 447 (the substantive proceeding) and Cruse v CFMEU (No 2) [2008] FCA 1637 (the penalty proceeding) as an example of contraventions of ss 298SC and 170NC of the Act by the CFMEU. The Union was vicariously liable for the conduct of its delegate, Mr Fry. The conduct involved Mr Fry falsely telling a self-employed building contractor engaged to do work on a building site that he was required to join the CFMEU (the s 298SC breach) and falsely telling the contractor that he was required to enter into an enterprise bargaining agreement (the s 170NC breach). </sentence>
<sentence from="[2009] FMCA 355" id="cs3">In Hadgkiss v Construction, Forestry, Mining and Energy Union (No.3) (2007) FCA 87 (" Hadgkiss ") Graham J considered the meaning of false and misleading in what was section 298SC of WR Act. At paragraph 288 His Honour said: "False can mean merely 'untrue' or 'wrong' or it can involve both subjective and objective elements and mean 'purposely untrue'... In the context in which it is used, I am satisfied that 'false' means no more than erroneous in fact. Similarly, no element of intent is required under s298SC before a representation that are misleading. Section 298SC proscribes the making of representations which are false in the sense of being untrue and, what might be thought to be a lesser form of transgression, representation can be found to have been misleading. </sentence>
<sentence from="[2009] FCAFC 17" id="cs4">This appeal represents the culmination, in this Court, of a series of proceedings arising from events which occurred in the Illawarra region of New South Wales in January and February 2004. The judgments which are most directly relevant to an understanding of those events and the litigation which ensued are: Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87 (the "principal judgment" where the trial judge concluded that the present appellants each contravened s 298SC(c) of the WR Act), Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 (the "relief judgment" where the primary judge made each of the orders which remain for consideration in the present appeal, as well as other orders), Hadgkiss v CFMEU [2008] FCAFC 22 (where a Full Court allowed an appeal by the present respondent in part and remitted some matters for further consideration by the primary judge) and Hadgkiss v Construction, Forestry, Mining and Energy Union (No 5) [2008] FCA 1040 (where the primary judge considered the matters remitted to him and imposed some further penalties but not ones which require consideration in the present appeal). </sentence>
<sentence from="[2008] FCA 1040" id="cs5"/>
<sentence from="[2008] FCA 466" id="cs6">9 The relevance of that question is emphasised by noting the facts found in relation to his activities in relation to another site in the Wollongong area not long after these events ( Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87 , (2007) 160 IR 263 ; Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 , (2007) 161 IR 338 ; Hadgkiss v Construction, Forestry, Mining and Energy Union [2008] FCAFC 22). </sentence>
<sentence from="[2008] FCAFC 22" id="cs7">51 This appeal is one of two against a judgment of a judge of this Court in Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87. In that judgment the primary judge found that each respondent had contravened the provisions of s 298SC(c) of the Workplace Relations Act 1996 (Cth) ('the Act') as in force in January and February 2004. The present appeal is by the applicant at first instance who was an inspector appointed under s 84 of the Act to whom the Employment Advocate (referred to in Part IVA of the Act) had delegated certain powers and functions including the power to make the application. The other appeal was brought by the respondents at first instance (now the respondents to the present appeal) who appealed against certain findings in the judgment and also against penalties imposed and other orders later made by the primary judge ( Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425). Because the present appeal raised the possibility that, if the appellant succeeds on some of its arguments, it may be necessary to remit issues to the primary judge for further attention and as that might possibly affect the penalties imposed, the second appeal was adjourned pending the outcome of the present appeal.</sentence>
<sentence from="[2007] FCA 1047" id="cs8">74 There are some questions as to the proper construction of the section. It is contended for the respondents that intention to make a false and misleading representation is a necessary element of the offence. There is no direct authority in favour of that proposition. It is submitted that the reasoning in relation to other sections included in Pt 10A would be applicable (cf BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [77] ; Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [70] ---[78]). Indeed, such authority as exists is against the proposition contended for by the respondents ( Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346 at [31] ---[34]; Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263 , [2007] FCA 87 at [288] ---[289]; see also Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561 ; (1977) 31 FLR 129 per Bowen CJ at 134; Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439 ; (1977) 29 FLR 212). The presence of s 4(7) also tends against it. There is also a question as to whether the section only applies where the false or misleading representation about another's obligation to join an industrial association must be made to that other person. Graham J was of the opinion that the section was not so limited ( Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263 ; [2007] FCA 87 at [287] ---[291]). Although not raised here, there may also be a question as to the meaning of "obligation" --- does it refer to legal obligation or practical obligation?  74 There are some questions as to the proper construction of the section. It is contended for the respondents that intention to make a false and misleading representation is a necessary element of the offence. There is no direct authority in favour of that proposition. It is submitted that the reasoning in relation to other sections included in Pt 10A would be applicable (cf BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [77] ; Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [70] ---[78]). Indeed, such authority as exists is against the proposition contended for by the respondents ( Hadgkiss v Sunland Constructions Pty Ltd [2007] FCA 346 at [31] ---[34]; Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263 , [2007] FCA 87 at [288] ---[289]; see also Riley McKay Pty Ltd v Bannerman (1977) 15 ALR 561 ; (1977) 31 FLR 129 per Bowen CJ at 134; Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439 ; (1977) 29 FLR 212). The presence of s 4(7) also tends against it. There is also a question as to whether the section only applies where the false or misleading representation about another's obligation to join an industrial association must be made to that other person. Graham J was of the opinion that the section was not so limited ( Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) (2007) 160 IR 263 ; [2007] FCA 87 at [287] ---[291]). Although not raised here, there may also be a question as to the meaning of "obligation" --- does it refer to legal obligation or practical obligation? </sentence>
<sentence from="[2007] FCA 425" id="cs9">1 The primary purpose of this judgment is to determine what relief should be ordered in respect of certain contraventions of s 298SC(c) of the Workplace Relations Act 1996 (Cth) ('the Act') by the first, second, third and fourth respondents which were found to have occurred on 19 January 2004 and/or 18 February 2004 (see Hadgkiss v Construction, Forestry, Mining and Energy Union (No. 3) [2007] FCA 87 ('the primary judgment') at [294(a), (c), (d), (e), (g), (h), (i), (k) and (l)]). </sentence>
</citances>
<legistitles>
<title id="l0">A NEW TAX SYSTEM (AUSTRALIAN BUSINESS NUMBER) ACT 1999 </title>
<title id="l1">COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT </title>
<title id="l2">EVIDENCE ACT 1995 </title>
<title id="l3">EVIDENCE ACT 1995 - SECT 11 General powers of a court</title>
<title id="l4">EVIDENCE ACT 1995 - SECT 38 Unfavourable witnesses</title>
<title id="l5">FEDERAL COURT RULES </title>
<title id="l6">INDUSTRIAL RELATIONS ACT 1996 </title>
<title id="l7">INDUSTRIAL RELATIONS ACT 1996 - SECT 127 Liability of principal contractor for remuneration payable to employees of subcontractor</title>
<title id="l8">INDUSTRIAL RELATIONS ACT 1996 - SECT 209 Freedom of association</title>
</legistitles>
</case>


Question:
<citphrase id="cp0.0">cited from="[1980] FCA 49">industrial law</citphrase>
<citphrase id="cp0.1">cited from="[1980] FCA 49">dismissal of employee allegedly by reason of the circumstance that he was entitled to the benefit of an award</citphrase>
<citphrase id="cp0.2">cited from="[1980] FCA 49">award binding upon employer with respect to employees whether members of the organisation or not</citphrase>
<citphrase id="cp0.3">cited from="[1980] FCA 49">whether duty owed to non-member</citphrase>
<citphrase id="cp0.4">cited from="[1980] FCA 49">informant a non-member</citphrase>
<citphrase id="cp0.5">cited from="[1980] FCA 49">whether "employee . . . entitled to the benefit of" an award</citphrase>
<citphrase id="cp0.6">cited from="[1980] FCA 49">conciliation and arbitration act 1904 s.5(1)(b).  conciliation and arbitration</citphrase>
<citphrase id="cp0.7">cited from="[1980] FCA 49">dismissal of employee</citphrase>
<citphrase id="cp0.8">cited from="[1980] FCA 49">information for offence laid by employee against employer</citphrase>
<citphrase id="cp0.9">cited from="[1980] FCA 49">dismissal allegedly by reason of circumstance that employee was entitled to benefit of award</citphrase>
<citphrase id="cp0.10">cited from="[1980] FCA 49">award binding employer with respect to all employees</citphrase>
<citphrase id="cp0.11">cited from="[1980] FCA 49">employee not member of registered organization</citphrase>
<citphrase id="cp0.12">cited from="[1980] FCA 49">employee's entitlement to benefit of award by reason of contract of employment</citphrase>
<citphrase id="cp0.13">cited from="[1980] FCA 49">proof of facts and circumstances constituting offence</citphrase>
<citphrase id="cp0.14">cited from="[1980] FCA 49">conciliation and arbitration act 1904 (cth), ss. 5 (1) (b), (4), 123. the informant laid an information against the defendant, his former employer, alleging that it dismissed him "from its employ by reason of the circumstance that (he) was entitled to the benefit of an industrial award". it was established: (a) that the defendant was bound by the national building trades construction award 1975 ("the award") in respect of its employees whether members of an organization of employees bound by the award or not, and (b) that the informant was neither bound by the award nor a member of any registered organization. the defendant entered a plea of not guilty. section 5 of the conciliation and arbitration act 1904 provides in relevant parts:  "(1) an employer shall not dismiss an employee . . . by reason of the circumstances that the employee</citphrase>
<citphrase id="cp0.15">cited from="[1980] FCA 49">(b) is entitled to the benefit of . . . an award . . . (4) in any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge."  held: (1) the informant was not an employee "entitled to the benefit of . . . an award" within the meaning of s. 5 (1) (b) of the act and accordingly could not have been dismissed "by reason of" that circumstance as: (a) section 5 (1) (b) of the act referred to an employee who was entitled in the relevant sense as a matter of legal right. r. v. austin; ex parte farmers' and graziers' co-operative co. ltd. [1964] hca 48 ; (1964), 112 clr 619 ; sterling engineering co. ltd. v. patchett, (1955) ac 534 ; re miller's agreement: uniacke v. attorney-general, (1947) 1 ch 615 , referred to. graziers' association of new south wales v. labor daily ltd. [1930] hca 23 ; (1930), 44 clr 1 , distinguished. (b) the award did not confer any rights upon the informant. the duty imposed by the award upon the defendant in respect of the informant was not a duty owed to the informant who was not a party to the dispute in settlement of which the award was made. long v. chubbs australian company ltd. [1935] hca 11 ; (1935), 53 clr 143 ; metal trades employers' association v. amalgamated engineering union [1935] hca 79 ; [1935] hca 79 ; (1935), 54 clr 387 ; r. v. kelly; ex parte state of victoria [1950] hca 7 ; (1950), 81 clr 64 ; r. v. graziers' association of new south wales; ex parte australian workers' union [1956] hca 31 ; (1956), 96 clr 317 , applied. (c) the fact that the wages and conditions prescribed by the award were applicable to the informant stemmed not from the award but from his contract of employment.</citphrase>
<citphrase id="cp1.0">citing from="[2011] FMCA 66">industrial law</citphrase>
<citphrase id="cp1.1">citing from="[2011] FMCA 66">civil penalty proceedings</citphrase>
<citphrase id="cp1.2">citing from="[2011] FMCA 66">coercion.  industrial law</citphrase>
<citphrase id="cp1.3">citing from="[2011] FMCA 66">civil penalty proceedings</citphrase>
<citphrase id="cp1.4">citing from="[2011] FMCA 66">false or misleading statements about membership.</citphrase>
<citphrase id="cp2.0">citing from="[2010] FMCA 817">human rights</citphrase>
<citphrase id="cp2.1">citing from="[2010] FMCA 817">alleged racial discrimination</citphrase>
<citphrase id="cp2.2">citing from="[2010] FMCA 817">membership of ethnic literary association on christmas island</citphrase>
<citphrase id="cp2.3">citing from="[2010] FMCA 817">requirement of chinese descent</citphrase>
<citphrase id="cp2.4">citing from="[2010] FMCA 817">whether discrimination on ground of race</citphrase>
<citphrase id="cp2.5">citing from="[2010] FMCA 817">effect on remedies of amendment to constitution of association to include persons supporting objects of association and who are residents of christmas island.</citphrase>
<citphrase id="cp3.0">citing from="[2010] FMCA 411">industrial law</citphrase>
<citphrase id="cp3.1">citing from="[2010] FMCA 411">termination</citphrase>
<citphrase id="cp3.2">citing from="[2010] FMCA 411">penalty proceedings</citphrase>
<citphrase id="cp3.3">citing from="[2010] FMCA 411">summary judgment</citphrase>
<citphrase id="cp3.4">citing from="[2010] FMCA 411">quantum of penalty</citphrase>
<citphrase id="cp3.5">citing from="[2010] FMCA 411">factors for consideration in assessing quantum of penalty.</citphrase>
<citphrase id="cp4.0">citing from="[2010] FMCA 389">industrial law</citphrase>
<citphrase id="cp4.1">citing from="[2010] FMCA 389">alleged unlawful termination of employment</citphrase>
<citphrase id="cp4.2">citing from="[2010] FMCA 389">temporary absence or illness</citphrase>
<citphrase id="cp4.3">citing from="[2010] FMCA 389">non-membership of a trade union</citphrase>
<citphrase id="cp4.4">citing from="[2010] FMCA 389">filing of a complaint or participation in proceedings and recourse to competent administrative authority</citphrase>
<citphrase id="cp4.5">citing from="[2010] FMCA 389">political opinion, national extraction or social origin.  practice and procedure</citphrase>
<citphrase id="cp4.6">citing from="[2010] FMCA 389">application for summary dismissal</citphrase>
<citphrase id="cp4.7">citing from="[2010] FMCA 389">principles.  practice and procedure</citphrase>
<citphrase id="cp4.8">citing from="[2010] FMCA 389">industrial law</citphrase>
<citphrase id="cp4.9">citing from="[2010] FMCA 389">alleged unlawful termination</citphrase>
<citphrase id="cp4.10">citing from="[2010] FMCA 389">onus of proof.</citphrase>
<citphrase id="cp5.0">citing from="[2010] FMCA 342">industrial law</citphrase>
<citphrase id="cp5.1">citing from="[2010] FMCA 342">termination of employment</citphrase>
<citphrase id="cp5.2">citing from="[2010] FMCA 342">whether termination based on race by reason of applicant being a registered native title claimant</citphrase>
<citphrase id="cp5.3">citing from="[2010] FMCA 342">whether contravention of s.659(2)(f) of the workplace relations act .  contract</citphrase>
<citphrase id="cp5.4">citing from="[2010] FMCA 342">unpaid employment entitlements</citphrase>
<citphrase id="cp5.5">citing from="[2010] FMCA 342">terms of contract based on industrial award</citphrase>
<citphrase id="cp5.6">citing from="[2010] FMCA 342">interpretation of award</citphrase>
<citphrase id="cp5.7">citing from="[2010] FMCA 342">termination of employment</citphrase>
<citphrase id="cp5.8">citing from="[2010] FMCA 342">whether fixed term contract or contract terminable on notice.</citphrase>
<citphrase id="cp6.0">citing from="[2009] FMCA 463">industrial law</citphrase>
<citphrase id="cp6.1">citing from="[2009] FMCA 463">application alleging injury and termination of employment for prohibited reason</citphrase>
<citphrase id="cp6.2">citing from="[2009] FMCA 463">employee claimed entitlement to return to work after maternity leave</citphrase>
<citphrase id="cp6.3">citing from="[2009] FMCA 463">referral of matter to union</citphrase>
<citphrase id="cp6.4">citing from="[2009] FMCA 463">commencing conciliation proceedings against employer</citphrase>
<citphrase id="cp6.5">citing from="[2009] FMCA 463">employer alleges poor performance by employee</citphrase>
<citphrase id="cp6.6">citing from="[2009] FMCA 463">damages for breach of contract.  industrial law</citphrase>
<citphrase id="cp6.7">citing from="[2009] FMCA 463">award entitlement</citphrase>
<citphrase id="cp6.8">citing from="[2009] FMCA 463">maternity leave</citphrase>
<citphrase id="cp6.9">citing from="[2009] FMCA 463">whether award applied</citphrase>
<citphrase id="cp6.10">citing from="[2009] FMCA 463">whether employer receiving recurrent funding from state or federal government.  industrial law</citphrase>
<citphrase id="cp6.11">citing from="[2009] FMCA 463">contract of employment</citphrase>
<citphrase id="cp6.12">citing from="[2009] FMCA 463">notice of termination</citphrase>
<citphrase id="cp6.13">citing from="[2009] FMCA 463">statutory guarantee of maternity leave</citphrase>
<citphrase id="cp6.14">citing from="[2009] FMCA 463">whether notice of termination can run concurrent with maternity leave.  contract</citphrase>
<citphrase id="cp6.15">citing from="[2009] FMCA 463">breach</citphrase>
<citphrase id="cp6.16">citing from="[2009] FMCA 463">contract of employment</citphrase>
<citphrase id="cp6.17">citing from="[2009] FMCA 463">notice of termination</citphrase>
<citphrase id="cp6.18">citing from="[2009] FMCA 463">damages</citphrase>
<citphrase id="cp6.19">citing from="[2009] FMCA 463">mitigation.</citphrase>
<citphrase id="cp7.0">citing from="[2009] FMCA 32">industrial law</citphrase>
<citphrase id="cp7.1">citing from="[2009] FMCA 32">alleged unlawful termination of employment</citphrase>
<citphrase id="cp7.2">citing from="[2009] FMCA 32">matters to be proved by employee</citphrase>
<citphrase id="cp7.3">citing from="[2009] FMCA 32">whether applicant employee has proved that her temporary absence was within the meaning of the regulations.  industrial law</citphrase>
<citphrase id="cp7.4">citing from="[2009] FMCA 32">alleged unlawful termination of employment</citphrase>
<citphrase id="cp7.5">citing from="[2009] FMCA 32">onus on employer to prove that termination was not for a reason that includes a proscribed reason</citphrase>
<citphrase id="cp7.6">citing from="[2009] FMCA 32">whether reason for termination need be a valid reason</citphrase>
<citphrase id="cp7.7">citing from="[2009] FMCA 32">onus satisfied.</citphrase>
<citphrase id="cp8.0">citing from="[2008] FMCA 1490">industrial law</citphrase>
<citphrase id="cp8.1">citing from="[2008] FMCA 1490">alleged unlawful termination of employment</citphrase>
<citphrase id="cp8.2">citing from="[2008] FMCA 1490">principles discussed.  industrial law</citphrase>
<citphrase id="cp8.3">citing from="[2008] FMCA 1490">evidence</citphrase>
<citphrase id="cp8.4">citing from="[2008] FMCA 1490">onus on employer to prove termination not for a proscribed reason</citphrase>
<citphrase id="cp8.5">citing from="[2008] FMCA 1490">how such onus is discharged.  industrial law</citphrase>
<citphrase id="cp8.6">citing from="[2008] FMCA 1490">costs</citphrase>
<citphrase id="cp8.7">citing from="[2008] FMCA 1490">whether proceedings instituted vexatiously or without reasonable cause.  evidence</citphrase>
<citphrase id="cp8.8">citing from="[2008] FMCA 1490">onus of proof under workplace relations act ss.664 and 809</citphrase>
<citphrase id="cp8.9">citing from="[2008] FMCA 1490">how onus is discharged</citphrase>
<citphrase id="cp8.10">citing from="[2008] FMCA 1490">what matters must still be proved by applicant.</citphrase>
<citphrase id="cp9.0">citing from="[2008] FMCA 1191">industrial law</citphrase>
<citphrase id="cp9.1">citing from="[2008] FMCA 1191">alleged unlawful termination</citphrase>
<citphrase id="cp9.2">citing from="[2008] FMCA 1191">claims for breach of contract</citphrase>
<citphrase id="cp9.3">citing from="[2008] FMCA 1191">breach of agreement</citphrase>
<citphrase id="cp9.4">citing from="[2008] FMCA 1191">negligence</citphrase>
<citphrase id="cp9.5">citing from="[2008] FMCA 1191">termination for serious neglect of duty</citphrase>
<citphrase id="cp9.6">citing from="[2008] FMCA 1191">application dismissed.</citphrase>
<citphrase id="cp10.0">citing from="[2008] FMCA 715">industrial law</citphrase>
<citphrase id="cp10.1">citing from="[2008] FMCA 715">practice  procedure</citphrase>
<citphrase id="cp10.2">citing from="[2008] FMCA 715">summary dismissal of proceedings</citphrase>
<citphrase id="cp10.3">citing from="[2008] FMCA 715">unlawful termination claim.</citphrase>
<citphrase id="cp11.0">citing from="[2008] FCAFC 30">appeal</citphrase>
<citphrase id="cp11.1">citing from="[2008] FCAFC 30">amended notice of appeal and written submissions an abuse of process</citphrase>
<citphrase id="cp11.2">citing from="[2008] FCAFC 30">appeals made available for the correction of error</citphrase>
<citphrase id="cp11.3">citing from="[2008] FCAFC 30">obligation on appellant to identify error</citphrase>
<citphrase id="cp11.4">citing from="[2008] FCAFC 30">no proper grounds of appeal identified</citphrase>
<citphrase id="cp11.5">citing from="[2008] FCAFC 30">no error in the findings of primary judge</citphrase>
<citphrase id="cp11.6">citing from="[2008] FCAFC 30">appeal dismissed costs</citphrase>
<citphrase id="cp11.7">citing from="[2008] FCAFC 30">consideration of costs limitations under the workplace relations act 1996 on other federal proceedings</citphrase>
<citphrase id="cp11.8">citing from="[2008] FCAFC 30">costs of half the consolidated proceedings awarded at first instance</citphrase>
<citphrase id="cp11.9">citing from="[2008] FCAFC 30">no error of law</citphrase>
<citphrase id="cp11.10">citing from="[2008] FCAFC 30">institution of appeal an unreasonable act</citphrase>
<citphrase id="cp11.11">citing from="[2008] FCAFC 30">costs of appeal awarded practice and procedure</citphrase>
<citphrase id="cp11.12">citing from="[2008] FCAFC 30">unrepresented litigant</citphrase>
<citphrase id="cp11.13">citing from="[2008] FCAFC 30">usual standards of behaviour required</citphrase>
<citphrase id="cp11.14">citing from="[2008] FCAFC 30">scandalous accusations of judicial misbehaviour</citphrase>
<citphrase id="cp11.15">citing from="[2008] FCAFC 30">parts of written submissions removed from the court file</citphrase>
<citphrase id="cp12.0">citing from="[2008] FMCA 35">industrial law</citphrase>
<citphrase id="cp12.1">citing from="[2008] FMCA 35">unlawful termination</citphrase>
<citphrase id="cp12.2">citing from="[2008] FMCA 35">university suspended and terminated employment of tenured senior lecturer without notice</citphrase>
<citphrase id="cp12.3">citing from="[2008] FMCA 35">refusal to accept new undergraduate teaching allocations</citphrase>
<citphrase id="cp12.4">citing from="[2008] FMCA 35">serious misconduct justifying immediate dismissal</citphrase>
<citphrase id="cp12.5">citing from="[2008] FMCA 35">complaints of harassment, discrimination and victimisation</citphrase>
<citphrase id="cp12.6">citing from="[2008] FMCA 35">no ground of unlawful termination found</citphrase>
<citphrase id="cp12.7">citing from="[2008] FMCA 35">complaints were not a reason for termination</citphrase>
<citphrase id="cp12.8">citing from="[2008] FMCA 35">application dismissed.</citphrase>
<citphrase id="cp13.0">citing from="[2007] FCA 1717">practice and procedure</citphrase>
<citphrase id="cp13.1">citing from="[2007] FCA 1717">application for leave to appeal from interlocutory order of single judge of this court refusing to grant stay order</citphrase>
<citphrase id="cp13.2">citing from="[2007] FCA 1717">whether decision attended with sufficient doubt</citphrase>
<citphrase id="cp13.3">citing from="[2007] FCA 1717">application for leave to appeal from order of single judge of this court refusing leave to appeal from interlocutory decision</citphrase>
<citphrase id="cp13.4">citing from="[2007] FCA 1717">whether appeal lies from a decision to grant or refuse leave</citphrase>
<citphrase id="cp13.5">citing from="[2007] FCA 1717">application to amend reasons of another judge of this court</citphrase>
<citphrase id="cp13.6">citing from="[2007] FCA 1717">whether power to amend reasons exists</citphrase>
<citphrase id="cp13.7">citing from="[2007] FCA 1717">application for leave to initiate contempt proceedings where leave previously denied</citphrase>
<citphrase id="cp13.8">citing from="[2007] FCA 1717">application to join the commonwealth of australia as a party</citphrase>
<citphrase id="cp13.9">citing from="[2007] FCA 1717">applications dismissed.</citphrase>
<citphrase id="cp14.0">citing from="[2007] FCA 1555">practice and procedure</citphrase>
<citphrase id="cp14.1">citing from="[2007] FCA 1555">application for leave to appeal interlocutory orders</citphrase>
<citphrase id="cp14.2">citing from="[2007] FCA 1555">where interlocutory orders dismissing an application for stay of substantive orders pending the determination of an appeal</citphrase>
<citphrase id="cp14.3">citing from="[2007] FCA 1555">where stay was without utility and / or inappropriate because substantive orders were the subject of a pending appeal</citphrase>
<citphrase id="cp14.4">citing from="[2007] FCA 1555">application to amend substantive notice of appeal</citphrase>
<citphrase id="cp14.5">citing from="[2007] FCA 1555">where additional grounds were without merit</citphrase>
<citphrase id="cp14.6">citing from="[2007] FCA 1555">where additional grounds did not involve an appellable decision</citphrase>
<citphrase id="cp15.0">citing from="[2007] FCA 1341">costs</citphrase>
<citphrase id="cp15.1">citing from="[2007] FCA 1341">consolidated proceeding involving claims under different federal statutes</citphrase>
<citphrase id="cp15.2">citing from="[2007] FCA 1341">one statute containing prohibition upon award of costs</citphrase>
<citphrase id="cp15.3">citing from="[2007] FCA 1341">whether costs available to extent of claims made under other statute. costs</citphrase>
<citphrase id="cp15.4">citing from="[2007] FCA 1341">statute containing prohibition upon costs unless proceeding instituted vexatiously or without reasonable cause</citphrase>
<citphrase id="cp15.5">citing from="[2007] FCA 1341">proceeding included claims in accrued jurisdiction</citphrase>
<citphrase id="cp15.6">citing from="[2007] FCA 1341">judgment for applicant on one only of many claims in accrued jurisdiction</citphrase>
<citphrase id="cp15.7">citing from="[2007] FCA 1341">whether proceeding instituted vexatiously or without reasonable cause. costs</citphrase>
<citphrase id="cp15.8">citing from="[2007] FCA 1341">whether party's costs incurred because of unreasonable act or omission of other party.</citphrase>
<citphrase id="cp16.0">citing from="[2007] FCA 1377">practice and procedure</citphrase>
<citphrase id="cp16.1">citing from="[2007] FCA 1377">stay of orders of trial judge pending appeal</citphrase>
<citphrase id="cp16.2">citing from="[2007] FCA 1377">stay pursuant to o 52 r 17(1) of federal court rules</citphrase>
</citphrases>
<citances>
<sentence from="[2011] FMCA 66" id="cs0">In relation to the onus of proof, having reviewed judgments of the Federal Court in Bahonko v Sterjov [14] and Rojas v Esselte Australia Pty Ltd (No 2) , [15] and of this Court in Buckingham v KSN Engineering Pty Ltd  Anor , [16] this Court observed in Hayward v Rohd Four Pty Ltd (2008) [17] that: 34. From the above review of the authorities I conclude that the determination of this proceeding requires the following: (a) The applicant proving the fact of employment and its termination; (b) The applicant proving such of the facts as he intends to rely upon to invoke one or more of the ... [relevant] provisions ... of the Act; (c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant's employment; (d) In discharging that onus the respondents do not have to prove that the applicant's employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason. [18] </sentence>
<sentence from="[2010] FMCA 817" id="cs1"/>
<sentence from="[2010] FMCA 411" id="cs2">In Bahonko v Sterjov [2007] FCA 1244 per Jessup J at [95] --- [100] the onus of proof under the preceding WR Act as follows: [95] The Applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided: In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the Applicant's political opinion, social origin or physical or mental disability.</sentence>
<sentence from="[2010] FMCA 389" id="cs3">Otherwise a respondent would have to devote resources to proving a negative that could never arise on the facts.
 ... 17. In Bahonko v Sterjov [2007] FCA 1244 Jessup J said: "95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided: In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant's political opinion, social origin or physical or mental disability.</sentence>
<sentence from="[2010] FMCA 342" id="cs4">However, this says nothing of whether it is a requirement for the applicant to prove, by evidence, as opposed to assertion, facts such as: (a) The fact of a temporary absence from work because of illness or injury; (b) The fact of the filing of a complaint or having recourse to competent administrative authorities; (c) The fact of having a disability; (d) The fact of being entitled to the benefit of an industrial instrument; (e) The fact that he had made or proposed to make an inquiry or complaint to a capable body; (f) The fact that he proposed to participate in proceedings under an industrial law. 17. In Bahonko v Sterjov [2007] FCA 1244 Jessup J said: "95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided: In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant's political opinion, social origin or physical or mental disability.</sentence>
<sentence from="[2009] FMCA 463" id="cs5">However, this says nothing of whether it is a requirement for the applicant to prove, by evidence, as opposed to assertion, facts such as: (a) The fact of a temporary absence from work because of illness or injury; (b) The fact of the filing of a complaint or having recourse to competent administrative authorities; (c) The fact of having a disability; (d) The fact of being entitled to the benefit of an industrial instrument; (e) The fact that he had made or proposed to make an inquiry or complaint to a capable body; (f) The fact that he proposed to participate in proceedings under an industrial law. 17. In Bahonko v Sterjov [2007] FCA 1244 Jessup J said: "95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided: In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant's political opinion, social origin or physical or mental disability.</sentence>
<sentence from="[2009] FMCA 32" id="cs6">In Bahonko v Sterjov [2007] FCA 1244 Jessup J said: "95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided: In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant's political opinion, social origin or physical or mental disability.</sentence>
<sentence from="[2008] FMCA 1490" id="cs7">In Bahonko v Sterjov [2007] FCA 1244 Jessup J said: "95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided: In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant's political opinion, social origin or physical or mental disability.</sentence>
<sentence from="[2008] FMCA 1191" id="cs8">I am mindful that for the purposes of an application alleging a breach of s.659(2) of the WR Act the applicant must establish in this Court, that: their employment was terminated; and the facts sufficient to prove as an objective fact the proscribed reason relied on in that subsection. ;
before the onus shifts, pursuant to s.664, to the respondent to prove that the applicant's employment was not terminated for a reason or for reasons including that proscribed reason (see Bahonko v Sterjov [2007] FCA 1244 at 100).  Section 664 is substantially identical to s.170CQ of the WR Act as it stood prior to the Workplace Relations (Work Choices) Act 2005. The authorities on section 170CQ and the predecessor provisions are therefore relevant: (see e.g., Laz v Downer Group Ltd [2000] FCA 1390 ; (2000) 108 IR 244 (' Laz ') at 255 per Moore J and Bahonko v Sterjov [2007] FCA 1244 at 100 (" Bahonko ")). </sentence>
<sentence from="[2008] FMCA 715" id="cs9">I am mindful that for the purposes of an application alleging a breach of section 659(2) of the WR Act the applicant must establish in this Court, that: their employment was terminated; and the facts sufficient to prove as an objective fact the proscribed reason in that subsection
before the onus shifts, pursuant to section 664, to the respondent to prove that the applicant's employment was not terminated for a reason or for reasons including that proscribed reason (see Bahonko v Sterjov [2007] FCA 1244 at 100). </sentence>
<sentence from="[2008] FCAFC 30" id="cs10">1 The judgments under appeal ( Bahonko v Sterjov [2007] FCA 1244 and Bahonko v Sterjov [2007] FCA 1341 ; [2007] 163 FCR 318) dealt with applications under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act') alleging unlawful racial discrimination and under the Workplace Relations Act 1996 (Cth) ('the WR Act') alleging unlawful dismissal and other unlawful conduct. The claims based on statute were dismissed although the appellant was found, having regard to the pleadings, to have been defamed. She was awarded $50 nominal damages in the absence of evidence of harm. Although costs of the main proceedings and of various interlocutory applications were, in part, awarded against the appellant she was afforded a substantial measure of protection against costs as a result of the operation of s 170CS(1) of the WR Act (as it applied at the relevant time).</sentence>
<sentence from="[2008] FMCA 35" id="cs11">If an employee establishes that she has taken an action falling within paragraph (e), or has one of the characteristics identified within (f), then an onus of proof under s.170CQ moves to the employer to show that the termination was not motivated by, or did not occur by reason of, that proscribed ground. [51] It provides: 170CQ Proof of issues in relation to alleged contravention of section 170CK In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason ) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). </sentence>
<sentence from="[2007] FCA 1717" id="cs12">7 In reasons published on 15 August 2007, that part of the consolidated proceedings seeking relief under the two statutes was dismissed by Jessup J. However, Jessup J found that the fourth respondent had defamed the applicant and awarded the applicant $50 in damages: Bahonko v Sterjov [2007] FCA 1244. </sentence>
<sentence from="[2007] FCA 1555" id="cs13">5 The two applications were consolidated on 6 November 2006. The hearing of the applications occupied 9 separate hearing days before Jessup J between April and July 2007. Evidence relating to Ms Bahonko's appointment at La Kosta, the period of her employment and the termination of her employment were considered at length by Jessup J: see [2007] FCA 1244 at [24] - [93]. Jessup J dismissed the applications. 4. Appellant has leave to amend her Notice of Appeal of 16 August 2007 to include Justice Goldberg's orders of 27 August 2007, Justice Jessup's orders and reasons given to the Registrar in the VID 114/06 and Justice Finkelstein's orders and reasons given to the Registrar in VID 114/06. "

2 For the reasons below, I would dismiss the Notice of Motion. BACKGROUND
 Substantive Proceedings

3 The events which give rise to the Notice of Motion have a long and complicated history. In general terms, they relate to Ms Bahonko's employment at a kindergarten operated by the first and second respondents which was managed by the third respondent ("Ms McEwan"). Ms Bahonko had been employed, on a trial basis, at La Kosta Child Care Centre  Kindergarten Pty Ltd ("La Kosta") on 7 November 2005. Her employment was terminated just 4 days later on 10 November 2005 on grounds of "serious misconduct" relating to allegations of physical and psychological abuse by Ms Bahonko of children at the kindergarten and verbal abuse of other staff members, including Ms McEwan: see [2007] FCA 1244 at [3] - [8]. 4 Ms Bahonko filed two applications:

 (1) an application pursuant to s 170CP of the Workplace Relations Act 1996 (Cth) ("the WR Act ") (in the form it took in November 2005) alleging contraventions of ss 170CK(2) and 170CM of the WR Act and other unlawful or tortious conduct ("the WR Act application"); and
 (2) an application pursuant to s 46PO of the Human Rights and Equal Opportunity Act 1996 (Cth) ("the HREOC Act") alleging unlawful discrimination under the Racial Discrimination Act 1975 (Cth) ("the RD Act "). </sentence>
<sentence from="[2007] FCA 1341" id="cs14">1 On 15 August 2007, I gave final judgment in this proceeding, and gave the parties leave to file written submissions as to costs: [2007] FCA 1244. The respondents have done so, and these reasons deal with their application for costs. </sentence>
<sentence from="[2007] FCA 1377" id="cs15">1 In this matter the applicant has applied by way of notice of motion seeking relief arising out of orders made by Jessup J on 15 August 2007: Bahonko v Sterjov [2007] FCA 1244. The application was originally filed on 20 August 2007. It was supported by an affidavit filed on the same day. On 21 August 2007 a Deputy District Registrar of the Court wrote to the applicant as follows:

 "I refer to the Notice of Motion received by the court on 20 August 2007 and supporting affidavit.

 I write to advise that, pursuant to Order 46 rule 7A(2) of the Federal Court Rules , I have been directed by a Judge of the Federal Court not to accept Items 1 and 2 of the Notice of Motion for filing or issuing. However, the Judge has directed that Item 3 of the Notice of Motion be accepted for filing and issuing.

 I now return the documents to you. If you wish, you may simply strike out Items 1 and 2 of the Notice of Motion and then file the further amended Notice of Motion and affidavit. " </sentence>
</citances>
<legistitles>
<title id="l0">FREEDOM OF INFORMATION ACT 1982 </title>
<title id="l1">RACIAL DISCRIMINATION ACT 1975 </title>
<title id="l2">RACIAL DISCRIMINATION ACT 1975 - SECT 2 Commencement [see Note 1]</title>
<title id="l3">RACIAL DISCRIMINATION ACT 1975 - SECT 3 Interpretation</title>
<title id="l4">RACIAL DISCRIMINATION ACT 1975 - SECT 6B Application of the Criminal Code</title>
<title id="l5">RACIAL DISCRIMINATION ACT 1975 - SECT 9 Racial discrimination to be unlawful</title>
<title id="l6">RACIAL DISCRIMINATION ACT 1975 - SECT 10 Rights to equality before the law</title>
<title id="l7">RACIAL DISCRIMINATION ACT 1975 - SECT 15 Employment</title>
<title id="l8">RACIAL DISCRIMINATION ACT 1975 - SECT 17 Unlawful to incite doing of unlawful acts</title>
<title id="l9">RACIAL DISCRIMINATION ACT 1975 - SECT 18 Acts done for 2 or more reasons</title>
<title id="l10">RACIAL DISCRIMINATION ACT 1975 - SECT 18A Vicarious liability</title>
<title id="l11">FEDERAL COURT RULES </title>
<title id="l12">INDUSTRIAL RELATIONS ACT 1988 </title>
<title id="l13">INDUSTRIAL RELATIONS ACT 1988 No. 86 of 1988 - SECT 5 Additional operation of Act</title>
<title id="l14">INDUSTRIAL RELATIONS ACT 1988 No. 86 of 1988 - SECT 334 Certain offences in relation to members of organisations etc.</title>
<title id="l15">CRIMES ACT 1958 </title>
<title id="l16">DEFAMATION ACT 2005 </title>
<title id="l17">Defamation Act 2005 - SECT 34 Damages to bear rational relationship to harm</title>
<title id="l18">FREEDOM OF INFORMATION ACT 1982 </title>
<title id="l19">FAIR TRADING ACT 1999 </title>
<title id="l20">Fair Trading Act 1999 - SECT 13 Application of Australian Consumer Law</title>
</legistitles>
</case>