Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson

[2020] FCAFC 208

FEDERAL COURT OF AUSTRALIA

Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCAFC 208  

Appeal from:

Tyson v Heiko Constructions T/A Heiko Constructions Pty Ltd [2019] FCCA 3643

File number:

QUD 788 of 2019

Judgment of:

COLLIER, LOGAN AND GRIFFITHS JJ

Date of judgment:

25 November 2020

Catchwords:

EMPLOYMENT AND INDUSTRIAL RELATIONS – where the Federal Circuit Court of Australia 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 the appellant was denied procedural fairness – whether a contravention of s 348 was proved – whether the object of the coercion can be characterised as a “workplace right”

Legislation:

Constitution Ch III

CommonwealthConciliation and Arbitration Act 1904 (Cth) ss 19, 22, 26, 55

Competition and Consumer Act 2010 (Cth) s 76

Corporations Act 2001 (Cth) s 1317G

Crimes Act 1914 (Cth) s 15C

Customs Act 1901 (Cth) ss 234, 247, 251

Evidence Act 1995 (Cth) s 140

Excise Act 1901 (Cth) ss 136, 140

Fair Work (Registered Organisations) Act 2009 (Cth)

Fair Work Act 2009 (Cth) ss 12, 340, 341, 343, 346, 347, 348, 350, 361, 484, 489, 539, 551, 793

Federal Circuit Court of Australia Act 1999 (Cth) s 42, 43

Federal Court of Australia Act 1976 (Cth) ss 23, 24, 37M, 38

High Court Procedure Act 1903 (Cth) s 23

Income Tax Assessment Act 1936 (Cth)

Industrial Relations Act 1988 (Cth)

Workplace Relations Act 1996 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 4.05, r 7.01, r 45.06

Federal Court Rules 1979 (Cth) O 13, r 2

Federal Court Rules 2011 (Cth) r 1.32, r 8.21, r 15.15, r 16.51

High Court Rules 2004 (Cth) r 3.01.1

Criminal Code 1899 (Qld) s 572

Justices Act 1886 (Qld) s 48

Trade Unions Act 1886 (Qld)

Summary Jurisdiction Act 1848 (UK)

The Combination Act 1824 (5 Geo. 4, c. 95) (UK)

The Combination Act 1825 (6 Geo. 4, c. 129) (UK)

The Conspiracy and Protection of Property Act 1875 (38 & 39 Vict. 86) (UK)

The Trade Union Act 1871 (34 & 35 Vict. 31) (UK)

The Trade Union Act 1876 (39 & 40 Vict. 22) (UK)

Cases cited:

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38

Amalgamated Society of Railway Servants v Osborne [1910] AC 87

Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (2018) 262 FCR 473

Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347

Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360

Australian Industry Group v Fair Work Australia (2012) 205 FCR 339

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161

Celand v Skycity AdelaidePty Ltd (2017) 256 FCR 306

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40

Curran v William Neill & Son (St Helens) Ltd [1961] 1 WLR 1069

Devries v Australian National Railways Commission (1993) 177 CLR 472

Diamond & Boart Ltd v Lanham (1985) 79 FLR 237

Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309

Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551

Fallon v Calvert [1960] 1 All ER 281

Forge v Australian Securities and Investments Commission (2006) 228 CLR 45

Fox v Percy (2003) 214 CLR 118

Hedberg v Woodhall (1913) 15 CLR 531

Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697

Hornby v Close (1867) LR 2 QB 153

John v Rees [1970] 1 Ch 345

L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Naismith v McGovern (1953) 90 CLR 336

Nobarani v Mariconte (2018) 265 CLR 236

Nottage v Jackson (1883) 11 QBD 627

Oldfield v Cahill (1987) 18 IR 50

Parmeter v Proctor (1948) 66 WN (NSW) 48

R v CAE [2008] QCA 177

R v Journeymen-Taylors of Cambridge (1721) 8 Mod 10

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Shahin Enterprises Pty Ltd v Mathew [2020] FCAFC 57

Stewart v Deputy Commissioner of Taxation (2010) 76 ATR 66

Tyson v Heiko Constructions T AS Heiko Constructions Pty Ltd [2019] FCCA 3643

Vines v Australian Securities and Investments Commission (2007) 233 FLR 1

Warren v Coombes (1979) 142 CLR 531

Division:

Fair Work Division

Registry:

Queensland

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

182

Date of hearing:

19 August 2020

Counsel for the Appellant:

Mr CJ Murdoch QC with Mr C Martin

Solicitor for the Appellant:

James Conomos Lawyers

Counsel for the Respondent:

Mr A Greinke with Mr S Mackie

ORDERS

QUD 788 of 2019

BETWEEN:

HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD

Appellant

AND:

JOHN ROBERT TYSON

Respondent

ORDER MADE BY:	COLLIER, LOGAN AND GRIFFITHS JJ
DATE OF ORDER:	25 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.The declaration made in paragraph 1 of the order of the Federal Circuit Court of Australia (Federal Circuit Court) made on 12 December 2019 (Order under appeal) be set aside.

3.In lieu therefore, it be declared:

On 27 April 2018, the respondent, Heiko Constructions Pty Ltd, contravened s 348 of the Fair Work Act 2009 (Cth) (FWA) in that it took action, namely, the making, by Mr Louis Barrios, of a threat to its employee, the applicant, Mr John Robert Tyson, to the effect that, if Mr Tyson re-joined the Construction, Forestry, Mining and Energy Union (CFMEU), he could enjoy, or continue to enjoy, the pay and benefits of an “EBA job” whereas, if he did not, he would have to find another job “for a wage that sucks” (“half the money”), ie half of Mr Tyson’s then EBA job based pay, with intent to coerce Mr Tyson to engage in industrial activity, namely, becoming a member of the CFMEU, an industrial association.

4.The matter be remitted to the Federal Circuit Court for the hearing as to penalty and compensation contemplated by paragraph 3 of the Order under appeal but in respect of the contravention of the FWA as declared by this order.

5.Save as aforesaid, the appeal be dismissed.

6.The cross-appellant have leave to amend his notice of cross appeal so as to include the additional ground relating to s 341(1)(a) of the FWA specified in the draft amended notice of cross appeal annexed to his submissions filed herein on 10 August 2020 (annexed draft).

7.The filing and service of a notice of cross appeal as so amended be dispensed with, the annexed draft being deemed to be the amended notice of cross appeal.

8.The cross appeal be dismissed.

9.Any application as to the costs of either or each of the appeal and cross appeal be filed within 7 days hereof and served forthwith thereafter.

10.In the event that no such application as to costs is filed, 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

COLLIER J:

1. I am indebted to Justice Logan and Justice Griffiths for their thoughts and thorough judgments, which I have had the great advantage of reading in draft.  Ultimately, like Justice Logan, I am not persuaded that there was practical injustice to the appellant in the conduct of the primary proceedings such as to constitute a denial of procedural fairness.

2. I respectfully concur with the judgment of Justice Logan and the orders his Honour proposes.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

Associate:       

Dated:       25 November 2020

REASONS FOR JUDGMENT

LOGAN J:

1. On 12 December 2019, after a three day trial in the Federal Circuit Court of Australia (Federal Circuit Court) which finished on 7 November 2019, the respondent, Mr John Tyson, was found to have proved a contravention of the Fair Work Act 2009 (Cth) (FWA) by the appellant, his by then former employer, Heiko Constructions Pty Ltd (Heiko): Tyson v Heiko Constructions T/A Heiko Constructions Pty Ltd [2019] FCCA 3643. The Federal Circuit Court declared that Heiko “contravened s.348 of the [FWA] in that [its foreman], Mr [Louis] Barrios attempted to coerce [Mr Tyson] into re-joining the [Construction, Forestry, Mining and Energy Union (as it was then known – CFMEU)] and paying his union dues by threatening [him] 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’”. The reference to an “EBA job” is a reference to a job thought by Mr Barrios to be covered by an enterprise bargaining agreement, the Heinrich Constructions Pty Ltd and CFMEU Union Collective Agreement 2015-2019 (EBA).

2. At the same time, the Federal Circuit Court dismissed allegations that Heiko had contravened s 340 and s 343 of the FWA.

3. It is not necessary further to advert to so much of the case brought by Mr Tyson as concerned an alleged contravention of s 340 of the FWA.

4. Mr Barrios was the relevant corporate actor. In relation to the alleged conduct, his acts and intentions were taken to be those of the company: s 793 of the FWA. He gave evidence at trial both by affidavit as well as orally. The learned primary judge made particular, adverse findings in relation to Mr Barrios’ credit.

5. A summary of the broad background to the proceeding was offered by the learned primary judge in the opening paragraphs of his lengthy and detailed judgment, on which the following account is based.

6. Mr Tyson is a very experienced building labourer who specialises in “patching”. On 25 September 2017, he was working for Heiko in Surfers Paradise on a building project known as the “Jewel project”. That day, he witnessed an accident involving a fellow worker in which that worker sustained a serious fracture to the leg. The learned primary judge was clearly impressed with Mr Tyson as a witness (“one of the more honest witnesses that I have seen”, at [13]), although he did not accept his evidence uncritically.

7. Mr Tyson was of the view that the state of the area of the building site in which that worker was working was responsible for this accident. Soon after the accident he saw that there were other workers going to the site of the accident to “tidy it up”.

8. Mr Tyson was quite vocal about what he had seen and raised the issue with both the CFMEU and management. Because he could see no progress, he eventually made phone calls to the Queensland Government’s Workplace Health and Safety Office and to the CFMEU “hotline” complaining, or “whistleblowing”, about what he had seen. These calls were made in the first week of October 2017, about 10 days after the accident.

9. Because he saw no subsequent action from the CFMEU, Mr Tyson resigned his membership of the union.

10. On 27 April 2018, Mr Tyson had a meeting with Mr Barrios in which the issue of his payment of union dues was discussed. Mr Tyson alleged that, during the course of this conversation, the prospect of a higher paying, (supposedly) EBA covered, job was held out if he resumed union membership with the alternative being lower pay and jeopardy in employment. Mr Tyson did not re-join the CFMEU.

11. On 1 May 2018, Mr Tyson had a discussion with CFMEU organisers in relation to membership of the union. On 10 May 2018, a senior delegate with CFMEU attended a meeting at the worksite. By this time, there had been another workplace accident at the Jewel project site. Again, Mr Tyson was vocal during this meeting. The following day, Mr Barrios terminated Mr Tyson’s employment with Heiko.

12. It was against this background that Mr Tyson claimed that Heiko committed “adverse action” against him.

13. Without more, one might consider that the case was just one in which a contravention of s 348, and, more particularly, an intent on the part of Heiko to coerce Mr Tyson to engage in an “industrial activity” particularised as rejoining the CFMEU, having been alleged, Heiko had, in light of s 361 of the FWA and Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, called the relevant corporate actor in what proved to be a failed endeavour to discharge the onus of proof that fell on it in relation to its otherwise presumed intention.

14. The provision of some further information about the allegation of a contravention of s 348 of the FWA by Heiko serves to explain its dissatisfaction with the declaration made by the Federal Circuit Court. Mr Tyson did once himself allege a contravention of s 348 but in an unorthodox way. The essence of his grievance with Heiko has always been that, by Mr Barrios, it sought to coerce him into (re)joining the CFMEU but the allegation that this conduct constituted a contravention of s 348 was first made in a reply pleading. That allegation was one of those struck out at an interlocutory stage, by another judge, on a challenge by Heiko to the adequacy of the then state of the pleadings.

15. The case proceeded to trial not in respect of an alleged contravention of s 348 of the FWA but rather, materially, in respect of an alleged contravention of s 343 of that Act. Further, Heiko had been insistent upon the trial being conducted on the basis of the pleadings, an insistence and related entitlement acknowledged by the learned primary judge at the time. The characterisation of the conduct as a contravention of s 348 of the FWA emanated from the learned primary judge after the close of evidence. Heiko claims that it was not given an opportunity to make submissions as to whether, in the circumstances, it was open to allege, much less to find, such a contravention.

16. So it is that, at the forefront of Heiko’s challenge in this appeal to the declaratory order made by the Federal Circuit Court, is an allegation, put in various ways in its grounds of appeal, that it was denied procedural fairness. Heiko in any event puts in issue whether, on the findings made by the learned primary judge, a contravention of s 348 was proved. It also seeks to impeach the credibility finding made in respect of Mr Barrios.

17. The Federal Circuit Court has yet to hear and determine the consequential questions as to the penalty, if any, which ought to be imposed and other orders, if any, which ought to be made in respect of the contravention found. Ordinarily, Heiko’s challenge would have to await the making of such final orders. Even though it determined liability, the declaration was interlocutory in character. However, the course adopted by the learned primary judge in the circumstances so as to reach his conclusion with respect to liability and the nature of Heiko’s related procedural fairness challenge raises issues of general importance in relation to a pecuniary penalty (“civil remedy”) proceeding in the Federal Circuit Court. These warranted the grant to it, notwithstanding the interlocutory stage of the proceeding, of leave to appeal: Heiko Constructions T/A Heiko Constructions Pty Ltd v Tyson [2020] FCA 697.

18. Heiko’s resultant appeal prompted Mr Tyson to cross appeal. The question raised by the cross appeal concerns the construction and application of s 343 of the FWA and whether it was at all necessary in any event for the learned primary judge to characterise the conduct as a contravention of s 348. The argument is that the object of the coercion can, either further or in the alternative, be characterised as a “workplace right”. One limb of Mr Tyson’s argument is directed to the interface between s 343 and s 341(1)(b). The point concerned was raised below. He alternatively seeks to rely upon s 341(1)(a) of the FWA. Heiko has opposed his being permitted to do that, because the alternative was not relied upon below. Heiko alleges that it would suffer prejudice if the alternative were permitted to be raised for the first time by way of cross appeal. It was convenient to hear substantive argument on the merits of the s 341(1)(a) point, without prejudice to the question as to whether leave to raise it should be given.

19. To deal with Heiko’s denial of procedural fairness related grounds of appeal, it is necessary now to detail particular aspects of the pleadings as they evolved over time and provisions in the FWA to which reference is made in them and to explore matters of practice and procedure as applicable in the circumstances of the trial, including the conduct of the parties.

20. Rule 45.06 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) requires, materially, that an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Pt 3-1 of the FWA be in accordance with the approved form and be accompanied by a claim in accordance with the approved form.

21. Mr Tyson commenced the proceeding in the Federal Circuit Court’s Fair Work Division on 13 August 2018 by an application in the approved form. The application was accompanied by a claim in Form 2, another approved form, also filed that day. At that stage, Mr Tyson was acting on his own behalf.

22. The contraventions which Mr Tyson then alleged were of s 340 and s 343 of the FWA. As originally filed, the claim as detailed in Part G of the Form 2 included the following allegation:

    With no explanation as to the ‘section criteria” for termination and numerous references made to my work ethic and estimated remaining time of employment as referenced in JT06_Transcript_Louis Barrios – page 4, paragraph 20, JT07_Transcript_CFMEU – page 14, paragraphs 5 through to 10 and page 17 paragraph 30; the only rational conclusion is that Heinrich Construction Pty Ltd have breached Section 346 of the General Protections Act in that I wished to exercise my right to not be a member of an Industrial Association namely the CFMEU with mitigating factors and breaches of other acts applied to force me to forgo my right of Freedom of Association.

    [emphasis added]

    The reference in this passage to “Heinrich Construction Pty Ltd” (Heinrich) is grounded in a misunderstanding by Mr Tyson, explained at [28], of the reasons for judgment of the learned primary judge and of no present moment, as to the identity of the entity which employed him. The references to “transcript” are references to a transcript of a recording of a conversation between, materially, Mr Tyson and Mr Barrios on 27 April 2018. Both that transcript and the recording were introduced into evidence at trial. It was in that conversation of 27 April 2018 that Mr Tyson claimed he had been coerced by Mr Barrios to rejoin the CFMEU. What to make of that conversation in the prevailing circumstances and Mr Barrios’ related intentions always lay at the heart of Mr Tyson’s claim.

23. Included in Part G of his Form 2, were the following statements by Mr Tyson:

    On the 11th of May 2018 my employment with Heinrich Constructions Pty Ltd was terminated citing lack of work however a series of events transpired and I allege Heinrich Constructions Pty Ltd beached the following:

    •Section 346 of the Fair Work Act.

    •A person must not take adverse action against another person for their membership (or not) of an industrial association, and for participating 9or not) in industrial activities.

    •Is or is not, or was or was not, an officer of an industrial association.

    Please refer to transcripts tendered as evidence referenced as JT06_Transcript_Luis Barrios and JT07_Transcript_CFMEU.

    [sic]

    There followed a reference to colour coding of the transcript and then:

    * Alleged breaches of Section 343 of the Fair Work Act.

    * Alleged breaches of Section 340 of the Fair Work Act.

    [sic]

    In a continuation of Part G in the original Form 2, Mr Tyson made the allegation quoted above in paragraph 22.

1. In relation to an alleged contravention of s 343 of the FWA, the reference to s 346 in the original Form 2 was always incongruous. That is because s 346 is found in Div 4 of Pt 3-1 of the FWA, as is s 348. By s 346(a), a person is prohibited from taking adverse action against another person because that other person is or is not, or was or was not, an officer or member of an industrial association. Given the definition of “engages in industrial activity” in s 347, it is readily possible to see how there may be a link between conduct prohibited by s 346 and conduct prohibited by s 348. Section 348 provides:

   Coercion

   A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

   Materially, by s 347(a) of the FWA, a person “engages in industrial activity” if the person “becomes or does not become, or remains or ceases to be, an officer or member of an industrial association”.

2. Section 343 of the FWA is also directed to the prohibition of particular coercive conduct. It is found not in Div 4 of Pt 3-1 of the FWA but rather in Div 3 of that Part. By s 343(1)(a) of the FWA it is provided:

   Coercion

   (1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   (a)exercise or not exercise, or propose to exercise or not exercise, a workplace right

3. The focus of the prohibition on coercion in s 343(1)(a) is with respect to a “workplace right”, as defined, not with respect to an “industrial activity”, as defined. The definition of “workplace right”, to which it will be necessary to give greater attention later in these reasons for judgment, is supplied not by s 347 but rather by s 341 of the FWA.

4. The factual basis of the claim as originally pleaded by Mr Tyson and the reference to s 346 in the Form 2 as filed are not without significance in relation to the complaint made by Heiko about a denial of procedural fairness.

5. The claim as originally pleaded underwent a number of later amendments. In respect of these amendments, Mr Tyson had the benefit of legal representation.

6. As filed on 17 January 2019, the Form 2 as amended included these paragraphs:

   14.On or about 27 April 2018, the Applicant:

   a.was directed to attend a meeting with the Respondent, through Mr Barrios;

   b.was directed by the Respondent through Mr Barrios to pay CFMEU Union Dues;

   c.told the Respondent through Mr Barrios that the CFMEU dues were not paid due to lack of action in relation to the Applicant’s safety complaint particularised referred to in paragraph 12;

   d.was told by the Respondent through Mr Barrios that the CFMEU needed to receive their dues;

   e.was told by the Respondent through Mr Barrios that if the CFMEU did not receive their dues:

   i.        the Applicant could no longer work on the Jewel Project;

   ii.        the Applicant could no longer work on an “EBA” job;

   f.was told by the Respondent through Mr Barrios, words to the effect of, if the CFMEU dues were not paid, there were “other jobs out there”.

   …

   21.On the premise of paragraph 14 herein, the Respondent has contravened section 343(1)(a) of the Act, as:

   a.the Applicant has exercised his workplace right within the meaning of section 341(1)(b) of the Act, namely ending Union membership;

   b.        on the premise of paragraph 14 herein, the Respondent did, either:

   i.threatened to take action to prevent the Applicant from exercising the workplace right;

   ii.did take action to coerce the Applicant from exercising the workplace right.

   [sic, emphasis in original]

7. Save for admitting the allegations in sub-paragraphs 14(a) and 14(f), Heiko denied the allegations made in [14] of the claim as amended in its responsive, amended defence. On the basis of those denials, it denied it had contravened s 343 of the FWA.

8. On 18 January 2019, the learned primary judge made a case management order which included an order that the proceeding continue as if commenced by pleadings. This case management order superseded an earlier case management order, made by the primary judge in November 2018, which had also contained an order that the proceeding continue as if commenced by pleadings.

9. In a reply of 8 February 2019, settled by counsel, to this amended defence, Mr Tyson stated, at paragraph 12:

   The applicant, in response to paragraph 21, says the respondent engaged in coercion within the meaning of s 348 of the Fair Work Act 2009 (Cth) and relies on paragraph 8 herein.

   Paragraph 8 of the reply contained this allegation:

   The applicant, in reply to paragraph 14 of the respondent’s defence, states that he recorded the conversation with Mr Barrios on the 27 April 2018 and Mr Barrios said words to the effect:

   a.        “Everyone gets a good wage on the job because you have an EBA; and

   b.        You don’t have to pay the union dues; but

   c.        if not, you will only get half the money you get now”.

   [sic, emphasis added]

10. On 15 April 2019, Heiko filed an interlocutory application to strike out particular paragraphs of the amended claim and the reply. These did not include either paragraphs 14 or 21 of the amended claim but did include, materially, paragraphs 8 and 12 of the reply.

11. On 24 June 2019, that interlocutory application was heard and determined. The order made that day (as amended on 16 October 2019) records that Mr Tyson appeared on his own behalf. By the Court’s order, paragraph 12 of the reply was struck out by consent. It is common ground on the appeal that this was because Mr Tyson conceded that the reference to s 348 was a typographic error. Paragraph 8 of the reply was not struck out. As envisaged by the interlocutory application, neither paragraph 14 nor paragraph 21 of the amended claim was struck out.

12. The learned primary judge found that an exchange as alleged by Mr Tyson had occurred between him and Mr Barrios, his “effective Boss”, on 27 April 2018. His Honour stated that he had listened to the audio recording of that conversation. He quoted, at [68], an excerpt from it, reproduced below, in his reasons for judgment.

13. His Honour noted, at [111], that “ending union membership” was the only “workplace right” which Mr Tyson had particularised. Section 348 of the FWA came to be introduced by the learned primary judge as a sequel to his conclusion that ending union membership was not a “workplace right” in terms of s 341 of the FWA and because he characterised doing so as an “industrial activity” within the meaning of s 347 of the FWA. His Honour stated, at [114] – [117]:

    114.It seems to me that “ending union membership” is not a workplace right under the FW Act but instead is “an industrial activity”.

    115.The protection afforded to an employee in relation to industrial activities can be found in ss.346-350 of the FW Act. In relation to the facts of this matter, it would seem that s.348 is most apposite. That section, also titled “coercion”, reads … [text of s 348 not reproduced]

    116.When that section is taken into account, it seems to me, that the facts of this matter more properly fit into an allegation that there had been a breach of s.348 rather than s.343. This fortifies my view that “ending union membership” is not “a workplace right” as that term is applied in the FW Act.

    117.Notwithstanding that I am satisfied that Mr Barrios threatened and applied pressure to the Applicant, in an unconscionable manner, in order for him to pay his union dues, I am not satisfied that the Applicant has proven the essential element of s.343 that “ending union membership” is a workplace right.

    [emphasis added]

14. Before elaborating further upon the reasons for judgment of the primary judge, some reference must now be made to the course of oral submissions after the close of evidence at the trial. This reveals that the reference in his Honour’s reasons for judgment to s 348 of the FWA was not entirely unheralded.

15. The transcript discloses that, after his Honour had raised whether what Mr Tyson had alleged as a workplace right was really an “industrial activity” in terms of s 347 of the FWA, s 348 was mentioned in response by Mr C Murdoch QC, who appeared with Mr C Martin of Counsel for Heiko both at trial and on the appeal. Mr Murdoch stated, what “your Honour is describing is – is, really … a breach of section 348”. A lengthy, related exchange then occurred between his Honour and Mr Murdoch. In the course of that exchange, Mr Murdoch put that the position was akin to a charge made in an indictment which was not made out and his Honour recalled that, “if the facts do this even though it’s not indicted you can actually be convicted for others”. His Honour then overtly reflected on whether the same position applied in the present situation. He stated:

    But I’m just not too sure here whether unless you have – unless you have – if you – if you talked about a particular section and it’s not the proper section, whether the facts enable, you know, a judge or – to – to look at it and say, “Well, yes, that – that section may not have been breached but this one might have.”

    In response, Mr Murdoch stated, and his Honour in response repeated, that, “We haven’t come to meet that”. To this, Mr Murdoch added, “... and particularly given the reverse onus, Mr Barrios hasn’t – hasn’t given evidence in respect of that.” and that he was not aware of any provision of the FWA that “allows a similar approach”. The latter, in context, was obviously a reference to the criminal jurisdiction practice mentioned by his Honour earlier in their exchange with the reference to “the reverse onus” being a reference to s 361 of the FWA. There was no elaboration as to the nature of the evidentiary prejudice which Heiko might suffer.

16. This exchange is important, because it serves to explain and to put in context a lengthy, consequential passage, at [118] – [157], in the learned primary judge’s reasons for judgment. In this, his Honour first addresses the question, “Does the failure to plead properly mean that the claim is doomed?” and then considers, under the heading, “History of the pleadings”, how the principles he derived should be applied in the circumstances.

17. The learned primary judge had regard to the FCC Rules and to the pleading rules of this Court in the Federal Court Rules 2011 (Cth) (FCA Rules), as well as to authorities concerning the role of pleadings, the ability of a court, even in the exercise of appellate jurisdiction, to uphold a judgment on the basis of a cause of action raised by the facts found to be proved at trial, even though not pleaded and to what was entailed in an obligation to observe procedural fairness. As to the latter, and notably, his Honour referred to this observation made by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam), at [37]: “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.

18. The learned primary judge concluded, at [152], that Heiko “… was well and truly aware that the facts as pleaded were capable of a positive finding that s.348 had been contravened”. He added, “They had been put on notice and did what they could to ensure that s.348 was not litigated”. The latter was, obviously, a reference to the strike out application heard and determined in June 2019.

19. The learned primary judge also concluded that it was open for the Court to find that s 348 of the FWA had been contravened, notwithstanding that Mr Tyson did not rely upon this section. In light of the history of the proceeding, his Honour concluded that it was not procedurally unfair to Heiko “to act in this manner”. In what was obviously a reference to the exchange which had occurred in the course of submissions, his Honour added, at [154], that it had been submitted that unfairness existed, “because s.348 is a reverse onus section and that Mr Barrios was denied the chance to give evidence in respect of a claim under s.348”. The learned primary judge rejected this submission. That was because, at [155] – [157]:

    155.… [The] claim made by the Applicant was, in effect, that he was coerced to pay his union dues by Mr Barrios who threatened that if he did not join the union then he could not work on an EBA job and would have to work other jobs where his pay would not be as lucrative.

    156.Mr Barrios gave evidence both in his affidavit, and in testimony before me, in answer to that allegation. Those are the facts upon which the claim is made whether it is a claim under s.343 or whether it is a claim under s.348. The facts do not change just because a Court may be looking at a claim under a different section. This is what underpins the line of authority to which I have already referred.

    157.There is no unfairness because Mr Barrios did not know that there could be a claim under s.348 rather than just s.343. After all, the affidavit of Mr Barrios was filed on 26 March 2019. At that time, the Applicant had pleaded paragraph 12 of the reply and it had yet to be “struck out”. This means that the affidavit of Mr Barrios, which was also his evidence in chief in the proceedings before me, was compiled in answer to the allegation made by the Applicant which, at that time, pleaded both s.343 and s.348.

20. In essence, the learned primary judge concluded that the factual foundation for the allegation made against Heiko by Mr Tyson had been consistently the same from the outset of the proceeding, that it was with that allegation that Heiko had engaged at an evidentiary level, including, so far as its affidavit evidence in chief was concerned, at a time when s 348 had featured in Mr Tyson’s pleadings, and that the only change now being visited upon it was the characterisation in law of the alleged conduct.

21. Sections 343 and 348 of the FWA are each what that Act terms “civil remedy provisions” (see s 539). The Federal Circuit Court was therefore obliged by s 551 of the FWA to apply the rules of evidence and procedure for civil matters when hearing the proceedings. The procedure of the Federal Circuit Court for civil matters, by virtue of s 43 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), was that specified in the FCC Rules (s 43(1), FCC Act) and, in so far as those rules were insufficient, that specified in the FCA Rules (s 43(2)(b), FCC Act).

22. A note (Note 3) to r 45.06 of the FCC Rules states that an application filed under that rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with r 4.05 of those rules.

23. Heiko submitted that the combined effect of the case management direction that the proceeding continue as if commenced by pleadings and the absence of provision in the FCC Rules for pleadings in such a proceeding was that there was an insufficiency such that this Court’s pleading rules in Pt 16 of the FCA Rules became applicable. The correctness of this submission was not gainsaid by Mr Tyson. There is no doubt that, in the circumstances, this Court’s pleading rules, with all they entail, were applicable but, generally, the FCA Rules were applicable only insofar as there was an insufficiency in the FCC Rules. As will be seen, that may be an important qualification in the circumstances of the present case.

24. It must be said at once that there is nothing either in Pt 16 of the FCA Rules or elsewhere in those rules which expressly contemplates that the Court may of its own motion amend for variance as between the evidence in a civil penalty proceeding and the contravention pleaded so as to allege a different contravention revealed by that evidence.

25. Amendment for variance is expressly recognised in local criminal practice by s 572(1) of the Criminal Code 1899 (Qld) (Code) in respect of trials on indictment. Analogous provision is made in respect of summary proceedings by s 48(1)(c) of the Justices Act 1886 (Qld) (Justices Act). The counterpart in relation to federal offences is s 15C(1) (formerly s 21A) of the Crimes Act 1914 (Cth) (Crimes Act).  It is obvious from the exchange between the learned primary judge, who had lengthy experience in criminal jurisdiction practice prior to his appointment, and Mr Murdoch during the course of closing submissions at the trial that it was this amendment for variance practice which his Honour had in mind.

26. In the criminal jurisdiction, the practice of amendment for variance is attended with a procedural fairness obligation.

27. In relation to prosecutions on indictment, this obligation is made manifest by the text of, for example, s 572(1) of the Code, which confirms a position which would be applicable in any event. In such prosecutions, the language of s 572 places the onus of applying for an amendment by reason of variance between the offence charged and the evidence on the prosecutor: R v CAE [2008] QCA 177, at [17], per Fryberg J, Muir JA agreeing. The stage of the trial when amendment is sought and whether the accused would suffer prejudice are always relevant considerations in relation to any such application.

28. The local amendment analogue in relation to summary proceedings has its provenance in the Summary Jurisdiction Act 1848 (UK) (Summary Jurisdiction Act), one of a trilogy of enduringly important, mid-19th century, United Kingdom legislative reforms to summary jurisdiction practice, collectively called Jervis’s Acts after their promoter and principal drafter, the then Attorney-General and later judge, The Rt Hon Sir John Jervis. One purpose of the Summary Jurisdiction Act was to do away with numerous objections which were taken before magistrates in the first half of that century, as to want of form in charges, by providing for amendment for variance as between the charge laid and the evidence: Hedberg v Woodhall (1913) 15 CLR 531, at 534, per Griffith CJ, with whom Barton J agreed; and see, generally, as to the practice under such a provision, Parmeter v Proctor (1948) 66 WN (NSW) 48. In contrast with the provision in the Code, a provision of which s 48 of the Justices Act is an exemplar places a duty on the magistrate to make the requisite amendment, if that is “necessary or desirable in the interests of justice”, and to decide the charge as so amended on its merits. Implicit in that condition is that a defendant ought to be given an opportunity to be heard as to whether any prejudice would be entailed by the proposed amendment.

29. The notion that a duty may fall on a court to make an amendment where a variance is revealed between the evidence led at trial and the charge before the court is not unique to criminal practice, although the cases which highlight an interconnection with a like civil practice arose in the exercise of a summary criminal jurisdiction once conferred on this Court by the Industrial Relations Act 1988 (Cth). In Australian Federation of Air Pilots v Australian Airlines Ltd (1991) 28 FCR 360, at 370 – 372, Gray J, having upheld a submission by the defendant at the end of the prosecution case that there was no case to answer in respect of the offence charged and following a like practice to that earlier adopted by his Honour in Oldfield v Cahill (1987) 18 IR 50, felt constrained by both s 15C of the Crimes Act and O 13, r 2(2) of this Court’s then rules, the Federal Court Rules 1979 (Cth), to offer the prosecutor an opportunity to amend the charges so as to accord with the evidence. That now former rule was not confined in its application to the Court’s criminal jurisdiction but instead stated the general position in relation to the practice of the Court in relation to amendments. It provided:

    2.(1)       The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding in either case in such manner as the Court thinks fit.

    (2)All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.

    (3)Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.

    [emphasis added]

1. The emphasised reference to the Court’s own motion will be noted. The former O 13, r 2(2) has an obvious affinity of language with provisions, such as s 48 of the Justices Act, which follow the Jervis’s Acts model. Like provision was once made in relation to practice in the High Court of Australia (the High Court) generally by s 23 of the High Court Procedure Act 1903 (Cth).

2. For some reason, the former O 13, r 2(2) was not, in terms, taken up into the Court’s current rules, the FCA Rules.

3. The same is true in relation to the current practice of the High Court. It is not gratuitous to consider the position in relation to the High Court, because in s 38 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) is to be found an “insufficiency” analogue to s 43(2) of the FCC Act, which, in relation to this Court, looks to High Court practice to fill any insufficiency in the FCA Rules. In the High Court’s current practice, the generally expressed r 3.01.1 in the High Court Rules 2004 (Cth) permits that Court “at any stage of a proceeding, [to] allow a party to amend any document in the proceeding”.

4. In this Court, the preference under the FCA Rules is to make separate provision in respect of the amendment of originating applications (r 8.21), amendment of a cross-claim (r 15.15) and amendment of pleadings (r 16.51).

5. In none of these current rules of court, either in this Court or in the High Court, is there express reference to the making of an amendment of the Court’s own motion.

6. However, in relation to the particular FCA Rules just mentioned, each must be read subject to r 1.32 of those rules, which provides:

   Court may make any order it considers appropriate in the interests of justice

   The Court may make any order that the Court considers appropriate in the interests of justice.

   Rule 1.32 of the FCA Rules takes up or, perhaps better put, reiterates the power expressly granted by s 23 of the FCA Act, exercisable in respect of all matters within the Court’s jurisdiction, be they civil or criminal, “to make orders of such kinds … as the Court thinks appropriate”.

7. The FWA is by no means unique in conferring on the Court a jurisdiction to make civil penalty orders in proceedings governed by civil practice and procedure. The Court’s jurisdictions under s 76 of the Competition and Consumer Act 2010 (Cth) and s 1317G of the Corporations Act 2001 (Cth) to make pecuniary penalty orders offer other noteworthy examples.

8. These are but modern examples of a type of jurisdiction which has been conferred on Australian superior courts since the earliest days of Federation. Both the Customs Act 1901 (Cth) (Customs Act) and its inland revenue counterpart, the Excise Act 1901 (Cth) (Excise Act), each enacted shortly after Federation, made, and still make, provision for customs prosecutions or, as the case may be, excise prosecutions, which were and are prosecuted in accordance either with rules of court expressly covering Crown suits in revenue matters (none have ever been made by the courts upon which over time jurisdiction has been conferred) or in accordance with the civil practice of such courts (s 247, Customs Act; s 136, Excise Act). Express provision was, and still is, made (s 251, Customs Act; s 140, Excise Act), in relation to such penalty proceedings, for amendment for variance by the court itself in terms which follow the Jervis’s Acts model.

9. A striking example of the exercise by a court, even in the exercise of appellate jurisdiction, to direct an amendment pursuant to such a provision is offered by Diamond & Boart Ltd v Lanham (1985) 79 FLR 237 (Diamond & Boart Ltd v Lanham), at 242. In that case, one ground advanced on appeal was that a charge under the then s 234(e) of the Customs Act, of which the appellant company had been convicted, was a nullity because of a deficiency in its pleading. That ground was dismissed by Olsson J, then a judge of the Supreme Court of South Australia, with his Honour exercising the power conferred by s 251 of the Customs Act to direct an amendment so as to rectify any deficiency of form. His Honour expressed his amazement that the ground had been advanced, describing it as an “attempt to scrape the bottom of the appellate barrel”.

10. The practice of applying civil procedure rules to proceedings for the recovery of a pecuniary penalty is not an antipodean idiosyncrasy. Prior to Federation, in England and Wales, the Rules of the Supreme Court 1883 (Eng), introduced as a sequel to the merger of courts which followed the Judicature Acts 1873 and 1875 (Judicature Acts), provided, by O LXVIII, that the provisions of those rules applied to proceedings on the Crown side. Materially, this picked up and made applicable to a suit for the recovery of a pecuniary penalty the general provision for amendment found in O XXVIII, r 1, which provided:

    1.The Court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

    [emphasis in original]

    The view that this rule applied to the amendment of a claim for a pecuniary penalty was expressed in a leading contemporary text, Robertson, The Law and Practice of Civil Proceedings, by and Against the Crown and Departments of the Government (1908), p 213. Robertson’s work was regarded as an authoritative source of guidance in relation to civil penalty proceeding practice by Williams, Webb, Kitto and Taylor JJ in Naismith v McGovern (1953) 90 CLR 336, at 340, when considering another aspect (discovery) of pecuniary penalty practice under a regime for which provision was once made in the now former Pt VII of the Income Tax Assessment Act 1936 (Cth).

11. Once this feature of the then existing English practice in relation to suits for the recovery of a pecuniary penalty is understood, it can be seen that s 251 of the Customs Act and its Excise Act counterpart were not radical measures, merely declaratory of a, by then settled, practice in the United Kingdom in relation to that type of proceeding.

12. Section 551 of the FWA, with its express prescription not just that civil jurisdiction rules of practice are applicable but also that civil jurisdiction rules of evidence are applicable, together with more careful drafting elsewhere in the FWA as to the nature of a contravention for which a civil penalty remedy is provided, foreclose any question of a controversy occasioned by careless, uncritical drafting over time in the Customs Act and the Excise Act by the use, for example, of the description, “offence”, which saw the High Court conclude in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 that, although the civil rules of practice were applicable to a customs or excise prosecution in a superior court, the criminal law standard of proof was applicable.

13. The point of this excursion into the history of the practice of amendment for variance and how that practice was not unknown in civil penalty proceedings is that, while the practice of this Court for the majority of time to date since its establishment made express provision casting a duty on the Court to so amend if that would not visit an injustice on a party, the FCA Rules do not presently expressly contain a positive duty of this kind. That omission may well be a law reform issue, if only to give explicit voice to the reasons which motivated the enactment of the original provision in the Jervis’s Acts in the 19th century.

14. I doubt that there was an insufficiency in relation to amendment in the FCC Rules, for a reason supplied in the submissions made on behalf of Mr Tyson. By r 7.01(1) of the FCC Rules, a power to amend is conferred on the Federal Circuit Court in these terms:

    Power to amend

    (1)At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.

    [emphasis added]

    The words emphasised in r 7.01(1) indicate that the Federal Circuit Court has a discretionary power of amendment which is not merely reactive to an application by a party but which, as the alternative with the verb, “direct” indicates, may be exercised proactively by that Court itself, even after the close of evidence, if it is just so to do. Doubtless, the occasion for any such exercise of the power would be attended with a procedural fairness obligation and should be exercised sparingly by that Court, but the power does exist. Amendment for variance on the court’s own motion falls within the generality of the language in r 7.01(1) of the FCC Rules. In the absence of any evidentiary embarrassment and where opportunity is offered to address on any substantive point of law raised by the variation, occasion may well arise for the exercise of that power.

15. The relevant insufficiency in relation to the FCC Rules looks to me not to be with respect to the existence of a power to direct amendment but rather as to the manner in which a case is to be pleaded and the sequence of pleadings.

16. Even if the relevant power to amend were not that found in r 7.01(1) of the FCC Rules such that there was an insufficiency, r 1.32 of the FCA Rules is broad enough to accommodate the existence and exercise of a power to amend a pleading for variance on the Court’s own motion as part of the practice incorporated by reference via s 43 of the FCC Act. Once again though, the exercise of such a power by the Court of its own motion would be exceptional.

17. The reason why the use of a power to amend on the Court’s own motion ought to be exceptional is a corollary of the Court’s adjudicative role under the adversary system and a related need to be seen to be impartial, discussed below.

18. In the course of oral submissions on the appeal, Heiko came not to dispute that the learned primary judge had a power to amend of his own motion. Its contention was that such a power was exercised unfairly. No point was taken that the formal orders made by the Federal Circuit Court do not expressly include an order directing amendment so as to raise an alleged contravention of s 348 of the FWA. Perhaps that was because such a direction was regarded as implicit in the declaration made by the Court with any deficiency readily cured as in Diamond & Boart Ltd v Lanham, although, as will be seen, having regard to one of the appeal grounds pressed, that thought may be overly generous to Heiko.

19. In Fallon v Calvert [1960] 2 QB 201; 1 All ER 281, at 282, Pearce LJ, in delivering the judgment of the Court of Appeal, observed that, “In a civil suit the function of the court in this country … is not inquisitorial.” That observation was made with particular reference to the power of a court to call a witness on the court’s own motion but it reflects the general position in relation to the exercise of judicial power both in the United Kingdom and in Australia. Doubtless for that reason, this case was annotated in the White Practice (Supreme Court Practice, 1988, Vol 1, p 349) so as to sound a cautionary note in relation to the power of a court to amend a pleading of its own motion under the then O 20, r 8 of the Rules of the High Court of Justice for England and Wales, an equivalent of the former O 13, r 2(2) in this Court’s former rules. A similar sentiment in relation to judicial impartiality was voiced by the High Court in Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, at 76, [64]:

    64.… An important element ... in the institutional characteristics of courts in Australia is their capacity to administer the common law system of adversarial trial. Essential to that system is the conduct of trial by an independent and impartial tribunal.

    [footnote reference omitted]

20. The system under which the learned primary judge was exercising the judicial power of the Commonwealth was adversarial, not inquisitorial. In general, in an adversarial system, it is for the parties to define the issues for resolution at trial by the judge by their pleadings.  The Court has stressed the particular importance of accurate identification of the alleged contravention in a civil penalty proceeding so that a respondent knows the case which must be met: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298, at [63] – [65], and Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, at [50]. Nothing in the views I express in relation to the disposal of this appeal and cross-appeal is intended to detract from what was stated on that subject in those cases. This case illustrates the different points that pleadings are but the handmaiden of justice and that whether or not procedural fairness has been denied by the loss of an opportunity to know and meet, by submissions and evidence, an adverse allegation is always a matter of practical evaluation in the circumstances of a given case.

21. It must also be emphasised that there are no separate rules of court applicable to a case when a party conducts a case in person, as opposed to via a legal practitioner. It is in the very nature of the jurisdiction conferred on the Federal Circuit Court and, consequentially, of the types of cases which come before it that, of all of the courts established under Ch III of the Constitution, it is in that court that cases conducted by a litigant in person are most frequently encountered.  Such cases can present singular challenges for judges in maintaining their role of impartial adjudicator. The exercise on the court’s own motion of a power to amend a pleading offers a paradigm example of such a challenge. The very identification by a judicial officer of what appears to be the real issue raised by an ill-drawn statement of claim (or defence) may carry with it for that judge a persuasive quality in relation to its merits which, at least in terms of the appearance of doing justice, occasions a concern about judicial impartiality.

22. Overarchingly, however, pleadings are not an end in themselves, only a means of defining and narrowing issues and ensuring procedural fairness by identifying the case to be met: Stewart v Deputy Commissioner of Taxation (2010) 76 ATR 66, at [35], per Perram J. To conceive of them otherwise would be to return our system of justice to the arcane practices in relation to forms of action swept away by the great reforms made by the Judicature Acts and the rules of court made thereunder. It would also, materially, be to forget that amendment for variance has, for good reason, been a feature of civil penalty and criminal practice since the 19th century.

23. More generally, ever since the 19th century, even in the exercise of appellate jurisdiction, the courts have, in civil cases, permitted an amendment so as to determine the real question raised by the facts to be determined, providing that no injustice, by, for example, loss of an opportunity to lead other evidence, is occasioned by so doing. For example, in the Court of Appeal in Curran v William Neill & Son (St Helens) Ltd [1961] 1 WLR 1069, in respect of a claim for damages arising from an industrial accident, Holroyd Pearce LJ observed, at 1078, of a submission that the statutory duty breached was not that argued at trial but another:

    An amendment would have a very strong claim on our discretion, even at this late stage, if it could be shown that on the evidence the plaintiff was clearly entitled to succeed under a regulation on which he had omitted to rely.

    The other two members of the Court of Appeal, Willmer and Pearson L.JJ, approached the determination of the appeal on the same basis. The appeal failed not because it would not have been possible to amend at the appellate stage but rather because, on the true construction of the regulation concerned, an amendment would have served no purpose.

24. Nottage v Jackson (1883) 11 QBD 627 offers an interesting example of the use of the amendment power by a judge of his own motion so as to raise the real question in a case which arose early in the life of that practice. In a copyright case, the trial judge ordered amendment so as to raise the question as to whether the registered copyright holders were, in terms of the then legislation, the “authors” of the photographs in question and so entitled to be registered. There was no question of evidentiary embarrassment. The trial judge concluded that the registered copyright holders, who had not taken the photographs concerned, were not the authors. That view was affirmed on appeal. When it was submitted that no costs should be ordered in respect of the appeal, because the amendment had been made on the motion of the trial judge, that application was, at 638, peremptorily dismissed, with costs being ordered to follow the event in the usual way.

25. Lofty parliamentary statements made in modern times as to the “overarching purpose of the civil practice and procedure provisions”, as found in s 37M of the FCA Act, or parliamentary exhortations as to informality and avoidance of protracted proceedings, as found in s 42 of the FCC Act, are not a panacea for a denial of procedural fairness in the exercise of judicial power. However, the judicial identification and adjudication of a point of law or cause of action obviously present on the evidence may serve all of the ends specified in these sections for just the same reasons as motivated the United Kingdom’s Parliament to enact the provision in Jervis’s Acts and for like provisions that were replicated in legislation and rules of court in this country. The real issue is thereby not left undetermined by an exercise of judicial power with all of the ramifications in terms of finality and issue estoppel that entails. Further, recalling that the present is a workplace relations controversy, the leaving unresolved by the judicial branch of a general protections issue at least arguably present if particular evidence were accepted might well be thought antithetical to the object of the FWA, as expressed in s 3 of that Act.

26. Truly, when all is said and done, what is critical is not any question of availability of the requisite power but rather, as the learned primary judge recognised by his reference to the observation of Gleeson CJ in Lam, whether the exercise of that power in the prevailing circumstances would or, so far as this appeal is concerned, did occasion a denial of procedural fairness?

27. Reflecting, in the context of the history of the proceeding in the Court below, including the trial, on the exchange which occurred in the course of closing submissions, I doubt whether any practical injustice was occasioned to Heiko by the conclusion of the trial judge that it was s 348, not s 343, of the FWA which was raised on the evidence. As the earlier detailed excerpt from the exchange in closing submissions makes clear, Senior Counsel for Heiko, who is well-versed in industrial law, was obviously alive to the applicability of s 348 to “industrial activity”. He did not, then and there, point to any particular evidentiary embarrassment which Heiko would suffer were his Honour to conclude that the coercion of which complaint had always been made was related to “industrial activity”, as defined, not to a “workplace right”, as defined, and thus that it was s 348, not s 343, which was applicable. Neither was there any endeavour by Heiko on the hearing of the appeal to introduce either a body of evidence, or even a summary thereof, for the purpose of proving the evidence which it would have led had it been given a more particular indication that a conclusion that it was s 348 which was applicable might be made.

28. As was submitted on behalf of Mr Tyson, it is difficult to see how any such evidentiary particularity and related prejudice by loss of opportunity to introduce it might have been offered on behalf of Heiko. The reference by the learned primary judge to the fact that Heiko had filed its evidence in chief at a time when, however unorthodox or even unintended it may have been, s 348 was mentioned in Mr Tyson’s pleadings, was not irrelevant in this regard. Neither was the reference to s 346 of the FWA in Mr Tyson’s Form 2, incongruent to a s 343 coercion case but congruent with a s 348 coercion case, irrelevant. That s 346 reference was a signpost that the applicable prohibition of the alleged coercion might well be that in Div 4 of Pt 3-1, ie in s 348.

1. More fundamentally, however inelegantly, even with the benefit at one stage of legal representation, as Mr Tyson pleaded his case over time, its consistent theme at a factual level was always that coercion to (re)join the CFMEU occurred in the course of the conversation with Mr Barrios on 27 April 2018 and against the background of Mr Tyson raising concerns about a workplace accident which had earlier occurred at the Jewel project site and the adequacy of the reaction to that accident by the CFMEU. It was that case which Heiko met at an evidentiary level, calling such evidence as it chose, notably that of Mr Barrios, to demonstrate that coercion of Mr Tyson to rejoin the CFMEU was not its intention.

2. Reference was made for Mr Tyson to Vines v Australian Securities and Investments Commission (2007) 233 FLR 1 (Vines) (also reported in (2007) 73 NSWLR 451 but not as to that part of the judgments dealing with the procedural fairness issue) as offering an example of a case where Lam was applied in the context of a civil penalty case so as to hold that no practical injustice had resulted from a departure from the case as pleaded for an applicant. This is true but, as Heiko submitted, Vines concerned a departure from the pleadings in the conduct of the case by the parties, not a finding by a trial judge that a contravention of a provision other than that specified in the pleadings had occurred, in circumstances where the judge had raised the applicability of the provision of his own motion. The recently decided Shahin Enterprises Pty Ltd v Mathew [2020] FCAFC 57 (Shahin) offers another example of an absence of practical unfairness in a trial conducted, including evidence being led without objection and subjected to cross-examination, on the basis of an additional, unpleaded case identified in an opening address with objection to that alternative case only being raised in the respondent’s closing submissions. As I indicate below, the outcomes in Vines and Shahin which arose from the conduct of the parties at trial, do nonetheless carry with them ramifications in terms of whether Heiko has suffered any practical injustice in the circumstances of this case.

3. Heiko put that a denial of procedural fairness entailed the loss of the possibility of a favourable outcome, citing in support Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, at [58] – [60] (WZARH). So much may be accepted as a matter of legal principle. But that does not detract, as was plainly recognised in that case by Gageler and Gordon JJ, by their Honours’ reference in WZARH, at [57], to the abovementioned observation by Gleeson CJ in Lam, from the proposition that practical injustice must be demonstrated.  In WZARH, that practical injustice could be, and was, sufficiently demonstrated by the loss of an opportunity for an oral hearing and, with that, a related lost opportunity to impress upon the administrative decision-maker by demeanour in oral testimony that the factual foundation for a visa claim should be accepted. 

4. In the present case, and if only out of an abundance of caution, the better course, with respect, may have been either to call the parties back for, or at least to require in writing, supplementary submissions as to whether s 348 might be raised by the Court and, if so, why it was not applicable on the evidence. Equally however, some might, with good cause, consider that the exchange after the close of evidence had already in substance served that purpose; hence the doubt earlier voiced by me.

5. In any event, on analysis, any such lost opportunity for Heiko was more apparent than real. There was no loss of opportunity to present a further or different evidentiary case. At most, there was a loss of an opportunity for Heiko to make submissions as to why, depending on credibility findings, s 361 did not yield a presumption adverse as to it in relation to an intention to coerce, had it been alleged solely, or in the alternative to s 343, that it had contravened s 348 of the FWA. Even with this, when due allowance is made for its submission that the object of the alleged coercion was not a “workplace right”, I find it difficult, if not impossible, to see how it could have made any different submission in relation to s 361 if the object of the alleged coercion were instead to be characterised as an “industrial activity” such that s 348 was the applicable provision in respect of contravention.

6. This conclusion seems to me necessarily to follow from this passage in the joint judgment of Kiefel CJ, Keane J, Nettle and Edelman JJ in Esso Australia Pty Ltd v Australian Workers' Union (2017) 263 CLR 551 (Esso Australia v AWU). Their Honours stated, at [55] – [58]:

   55. Section 343 provides that [text of section set out].

   56.      Section 348 is in similar terms and provides [text of section set out].

   57. For the purposes of s 343, a “workplace right” is defined by s 341(1) and (2) to include making, varying or terminating an enterprise agreement. For the purposes of s 348, “engage in industrial activity” is defined by s 347 to include complying with a lawful request made by an industrial association, for example, as here, a request to enter into an enterprise agreement. It is not in issue that the AWU banned the performance of equipment testing, air freeing and leak testing with intent to influence Esso to enter into a proposed enterprise agreement on terms stipulated by the AWU.

   58. Section 361 of the Fair Work Act relevantly provides that where it is alleged that a person took action for a particular reason or with a particular intent, and taking the action for that reason or with that intent would constitute a contravention of Pt 3-1 (which includes ss 343 and 348), it is presumed that the action was taken for that reason or with that intent unless the person proves otherwise. Thus the burden of proof was on the AWU to establish the absence of coercive intent in relation to ss 343 and 348.

   [emphasis added – footnote references omitted]

7. What was said by Mr Barrios on 27 April 2018 was not in issue. How he said it and what, in context, he intended were very much in issue. Section 361 applied to an alleged contravention of s 343 as well as to an alleged contravention of s 348. Save for their coercive object, s 343 and s 348 of the FWA are indeed in similar terms as to their constituent elements. Whether Mr Barrios intentionally conveyed coercion with respect to the particularised object when the recording of the conversation he had with Mr Tyson was listened to and its content read in the context of wider events could not have been affected by how the alleged object, consistently particularised as rejoining the CFMEU, was correctly to be characterised in law.

8. Heiko’s grievance, as expressed in its grounds of appeal and confirmed by its opposition to Mr Tyson’s cross appeal, has never been with the correctness in law of the conclusion of the learned primary judge that not becoming a member of an industrial organisation was an “industrial activity” as defined by s 347 of the FWA, not a “workplace right” as defined by s 341 of that Act. Indeed, the proposition that it was not a “workplace right” was always one essential plank of Heiko’s defence to the alleged contravention of s 343.

9. Whatever injustice was visited upon Heiko by a loss of opportunity to be heard in relation to the characterisation of the alleged conduct as a contravention of s 348, rather than s 343, and whether there should be an amendment, was wholly remedied by the opportunity offered by the hearing of submissions from it on the appeal as to why any amendment to raise a contravention of s 348 was unjust and why a related conclusion that such a contravention was made out was not open in law.

10. One of Heiko’s grounds was that, “the material facts necessary to establish [a contravention of s 348] were not alleged in the application”. It submitted that Mr Tyson had “failed to allege either the intent element or the conduct element of coercion”. It was further submitted that “[n]o facts were pleaded to identify how the relevant action involved an intent to negate Mr Tyson’s choice concerning union membership or payment of union dues”. Heiko submitted that, in respect of the conduct element, Mr Tyson had failed to plead any facts to identify how the relevant action “gave rise to the unlawfulness, illegitimacy, or unconscionability involved in the conduct element of coercion”.

11. Related to this submission was a further ground of appeal (ground 5), which put that, because the material facts necessary to allege a contravention of s 348 had not been stated in the pleading, the reverse onus for which s 361 of the FWA provides had not been engaged.

12. Heiko particularly relied, in aid of its submissions, on the following statements by the Full Court in Hall, at [25] – [27]:

    25 It is well-established that the expression “intent to coerce” in ss 343 and 355 carries within it a requirement to establish two discrete elements: the negation of choice; and the use of unlawful, illegitimate or unconscionable conduct to do so (see Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39 at [174] (Buchanan J, with whom Siopis J agreed at [1])). We interpose that this conclusion and the line of authorities relied upon to reach it do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers’ Union (2017) 92 ALJR 106; 350 ALR 404 at [61] (Kiefel CJ, Keane, Nettle and Edelman JJ)).

    26Furthermore, and most importantly for present purposes, the Full Court also  held in Esso that the intent aspect of the expression “intent to coerce” applies to the negation of choice element. This contrasts with the other element, the use of unlawful, illegitimate or unconscionable conduct, which is to be assessed objectively (see Esso at [194]). It follows that the relevant particular intent for the purposes of a contravention of ss 343 and 355 is an intent to negate choice. It follows further that, for the presumption in s 361 to operate with respect to a contravention of those sections, the particular intent that must be alleged in the application is an intent to negate choice. Conversely, alleging that the particular intent was an “intent to coerce” creates ambiguity because that expression does not refer to an intent per se, but rather, as discussed above, refers to the two elements of coercion, only one of which relates to the alleged contravener’s intent.

    The pleadings at trial

    The allegations made and pleaded by the Commissioner

    27In this proceeding, the words in s 361, “an application in relation to a contravention of this Part”, apply to the originating application the Commissioner filed with this Court on 26 June 2015, together with the statement of claim which accompanied it. Accordingly, the persons to whom the provisions of s 361 potentially applied were the eight individual respondents to the Commissioner’s application. The CFMEU, itself, is not included here because s 361 was not relied on in the Commissioner’s pleaded case against it. It is therefore necessary to examine those two documents to ascertain whether the necessary allegations were made and whether sufficient information was provided to meet the two pre-conditions in s 361(1) discussed above. Specifically, it is necessary to ascertain what particular reasons and what particular intents were alleged with respect to the four respondents who are respondents to this appeal and what material facts were pleaded with respect to their alleged contraventions of ss 340, 343 and 355 of the FWA.

    [emphasis in original]

13. The reference, at [25], in Hall to observations made by Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia v AWU, at [61], will be noted. In Esso Australia v AWU, at [61], their Honours observed:

    61The idea that the action must be unlawful, illegitimate or unconscionable to amount to coercion within the meaning of s 343 or s 348 of the Fair Work Act derives from McHugh JA’s statement in Crescendo Management Pty Ltd v Westpac Banking Corporation of the elements of common law economic duress. It has since been held that the same applies to ss 343 and 348; although it is not immediately apparent why that should be so. Apart from anything else, s 343(2) provides that s 343(1) does not apply to protected industrial action. That suggests perhaps that the statutory conception of coercion is otherwise broad enough to embrace protected industrial action, and thus coercion by lawful or legitimate means. If that is so, it would assume significance in relation to s 348, which has no express exclusion of protected industrial action. In this case, however, it is unnecessary to decide whether that is so. Either way, it is clear that a person taking coercive action need not have an accurate appreciation of the legal nature of the action. As Gleeson CJ said in Electrolux Home Products Pty Ltd v Australian Workers’ Union in relation to s 170NC of the Workplace Relations Act, it was sufficient to establish an intent to coerce to demonstrate that the person organising, taking or threatening the action intended it to negate the other person’s choice and that the person organising, taking or threatening the action had actual knowledge of circumstances that made his or her conduct coercive:

    “The elements of the conduct prohibited by s 170NC, so far as presently relevant, are action, or threats of action, with intent to coerce another to agree, or not to agree, to the making of an agreement under Div 2 or Div 3. An accurate appreciation of the legal nature of the agreement in question is not an element of the intent required by s 170NC.”

    The fact that a person may be acting under a mistake of law as to whether industrial action is protected industrial action is no more relevant than would be the fact that the person neither knew nor cared whether the industrial action was protected industrial action. The same applies to ss 343 and 348 of the Fair Work Act.

    [emphasis added; footnote references omitted]

14. In my respectful view, having regard to the words emphasised in this passage from Esso Australia v AWU, at [61], particular care now needs to be taken in relation to the notion that action must also be unlawful, illegitimate or unconscionable to amount to coercion as prohibited either by s 343 or s 348 of the FWA. In the passage just quoted, Kiefel CJ, Keane, Nettle and Edelman JJ sounded an interrogative note about the correctness of such a view, one admittedly evident in a line of earlier cases in this Court, although their Honours did not consider it necessary in the circumstances of that case finally to determine the correctness of that view. I do not, with respect, subscribe to the position that the sounding of an interrogative note by four judges of the High Court about the correctness of views earlier expressed by this Court leaves those views “unaffected”.

15. The learned primary judge was plainly aware (see [104] of his Honour’s judgment) of the interrogative note sounded in Esso Australia v AWU about whether coercion must additionally be unlawful, illegitimate or unconscionable. Quite properly, given that Hall had not been over-ruled, his Honour decided the case on the basis that it remained good law. It is not necessary in this case to decide whether that is so. Even conceding the textual indications to which reference is made in Esso Australia v AWU, the difficult question as to whether a contravention of s 348 occurs even where there is an intention to coerce, by lawful, legitimate or conscionable means, a person to engage in an “industrial activity” is best left to a case where that arises on the facts.

16. Esso Australia v AWU is relevant for another reason in any event. With all respect to an expression of views about pleadings by the members of the Full Court in the last sentence of [27] in Hall, it is by no means clear to me why, having regard to the express approval by Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia v AWU, at [61], of the observation by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 (Electrolux Home Products), at [26], about the elements of a contravention of the then s 170NC of the Workplace Relations Act 1996 (Cth) and to the actual text of s 348 of the FWA, it was not both necessary and sufficient from a pleading point of view to follow the wording of that provision and just to allege in a statement of claim that the intent of Heiko was to coerce Mr Tyson to engage in the particularised “industrial activity”.

17. But it was submitted for Heiko, relying on Hall and also Auimatagi v Australian Building and Construction Commissioner (2018) 267 FCR 268 (Auimatagi), that more than adherence to the language of the FWA was required in order to engage s 361 of that Act. That section provides:

    Reason for action to be presumed unless proved otherwise

    (1)      If:

    (a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

    (b)taking that action for that reason or with that intent would constitute a contravention of this Part;

    it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

    (2)Subsection (1) does not apply in relation to orders for an interim injunction.

    [emphasis added]

    In Auimatagi, at [135], the self-evident point is made that the words used by Parliament in s 361 are “particular intent” and that a particular intent must therefore be pleaded to engage s 361. However, and with all respect to those who have expressed a contrary view, quite why it is not, from a pleading point of view, a complete answer to this requirement to do no more than plead the particular intent in turn specified by Parliament in the text of s 348 itself is elusive. It seems not to have been put to the Court either in Hall or Auimatagi that the High Court had in Esso Australia v AWU, at [61], expressly approved the formulation of the elements of an earlier analogue of s 348 by Gleeson CJ in Electrolux Home Products and done so in a case where, as is evident from [58] in the joint judgment, especially from the last sentence of that paragraph, the interface between s 343 and s 348 with s 361 was under consideration.

18. There, doubtless, is particularity which must be given in relation to the “particular intent” in s 348, as there is for that matter in relation to a “particular reason” in relation to other kinds of Pt 3-1 contraventions. But the subjects for particularity are supplied by the text of the FWA itself. In relation to s 348, particularity must be given to the target of the intended coercion – the “other person” or the “third person” – and to the intended coercive end, ie the particular “industrial activity”.

19. I do not just prefer but consider myself duty bound to adhere to a view approved by a majority in the High Court. Further, to hold otherwise would, with respect, be to substitute a pleading pedant’s paradise for what should be a straightforward prelude, by alleging the material facts in accordance with the elements expressed in the text of the provision concerned, to an evaluation of evidence. If it be that there are subtleties about an intent to coerce such that all that Heiko had to disprove to discharge its onus under s 361 was that it was not its intention to negate choice, then the limits of its onus would be a matter of law in that evaluation.

20. However this may be, in terms of any practical injustice, whatever deficiency there was from a pleading point of view in relation to the pleading of material facts so as to allege a contravention of s 348, there was an analogous deficiency to that promoted by Heiko in the way in which the alleged contravention of s 343 was pleaded. Paragraph 21 of the statement of claim as amended was never struck out. Yet, Heiko did not choose to rest its defence to the alleged contravention of s 343 on the basis that it had not been charged with a contravention known to law and that it need not go into evidence, because s 361 was not engaged. It engaged fully at trial both in evidence and submissions with the claim as pleaded in relation to s 343. The bases upon which it conducted its case at trial included that s 361 of the FWA was applicable to it and that it had to discharge, and had on the evidence discharged, an onus of proof that fell on it under s 361. In this sense, the position is analogous to Vines and Shahin.

1. To similar effect, in Australian Building and Construction Commissioner v Hall[2018] FCAFC 83; 261 FCR 347, after referring to the well-known statement of principle by Mason CJ and Gaudron J in Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 286-287 regarding the function of pleadings in ensuring basic requirements of procedural fairness, the Full Court (the Court (Tracey, Reeves and Bromwich JJ), said at [50] (emphasis added):

   In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide. 

2. The reasons why the appellant’s complaint of procedural unfairness should be upheld are as follows.  First, the Court below ordered that the case be conducted on the pleadings.  Consistently with what was said in Banque Commerciale and Hall, the appellant was entitled to expect that the case would be conducted on the basis of the claims made in the pleadings.  There is nothing to suggest that the parties elected by their conduct to have the case below conducted on a different basis. 

3. Secondly, as is pointed out by Logan J, Mr Tyson’s claim of a contravention of s 348 was not raised until he filed his reply. Importantly, however, in the course of hearing the appellant’s interlocutory application to have parts of Mr Tyson’s pleadings struck out, Mr Tyson acknowledged that the reference to s 348 in his reply was a typographical error and the reference was struck out. When the proceeding went to trial, the only contravention of the Fair Work Act alleged by Mr Tyson concerning coercion was that relating to s 343. In those circumstances, I consider that the appellant was entitled to proceed on the basis that this was the only alleged contravention involving coercion made against it.

4. Thirdly, and with respect, I do not think that any particular significance attaches to the fact that when the appellant filed its evidence in chief below, s 348 was expressly mentioned in Mr Tyson’s reply. The primary judge appears to have concluded that, in those circumstances, the appellant suffered no “practical injustice” because it should be assumed that its evidence would not have changed. I respectfully disagree. If the s 348 allegation remained, the possibility cannot be ruled out that the appellant may have sought leave before the trial to adduce further evidence in chief in response to that claim. It may well have made a considered forensic decision to limit its response to the s 348 claim when it filed its evidence in chief. In any event, procedural fairness is not confined to having an opportunity to adduce evidence in response to a particular adverse claim. It extends to having an opportunity to provide submissions. Accordingly, even if it is correct to say that the appellant had the opportunity to adduce evidence, the same cannot be said in respect of the making of submissions during the course of the proceeding when the s 348 claim had been struck out (see further at [175] ff below).

5. Fourthly, and with respect, I disagree with Logan J that the appellant experienced no practical injustice because of the exchange which occurred between the primary judge and senior counsel for the appellant below regarding s 348. It is desirable to set out the relevant parts of the transcript of closing addresses on 7 November 2019 relating to this matter.

6. The primary judge raised a scenario of an employee being told either by management or a union that, if the employee was not going to be a member of the union anymore, their work would end. The primary judge then asked whether such a worker would be protected by s 343. The following exchanges then occurred between Mr Murdoch QC (for the appellant) and the primary judge [T 221, L 18 ff] (emphasis added):

   MR MURDOCH:   That worker has the protection under, arguably, section 348. Which is not the section that’s relied on here.

   HIS HONOUR:     No. I – well, arguably, because that – that’s – you can’t threaten to take any action again the person with intent to coerce the other person to engage in industrial activity.  Well, whether ---

   MR MURDOCH    And then industrial activity ---

   HIS HONOUR:     Is that – is that engaging in industrial activity saying, well ---

   MR MURDOCH:   That’s ---

   HIS HONOUR:     --- I’m going to have – I’m going to exercise my freedom of association.

   MR MURDOCH: Section 347 defines engagement in justrial activity. 347A:

   A person engages in industrial activity with the person becomes or does not become or remains or ceases to be an officer or member of an industrial association.

   So the work – the – the circumstance in which your Honour describes is one that – and I say arguably because, you know, the facts would have to be more fully considered. But – but what ---

   HIS HONOUR:     Yes.

   MR MURDOCH:   --- your Honour is describing is – is, really, an allegation of a breach of section 348.

   HIS HONOUR:     Yes.

   MR MURDOCH:   So there’s not a – there’s not a vacuum, as it were, there.

   HIS HONOUR:     Yes. And that’s – both 343 and 348 are headed coerce – are titled “coercion”.

   MR MURDOCH:   Well, this is - - -

   HIS HONOUR:     It’s - - -

   MR MURDOCH:   This is a big Act, your Honour.

   HIS HONOUR:     I know. And that’s the hard thing – that’s the hard thing in navigating it, and I think that’s, you know, that – that really crystallises in some ways your initial submission that 343 has become extremely complex.

   MR MURDOCH:   Well – and I hesitate to say this to your Honour because your Honour knows this, but it’s not the – it’s just – it’s just like the Criminal Code. It’s a large piece of legislation. There are many provisions, and if – if there’s an indictment in respect of a particular charge and the – the ..... aren’t made out, that’s – that’s the reality.

   HIS HONOUR:     Yes. I understand that. There are, though – there are some – some aspects in the criminal code that says, well, if the facts do this even though it’s not indicted you can actually be convicted for others. But I don’t know that there’s – I don’t know that it – it gets that – that same way. So, for example, in the Criminal Code, if you’re charged with rape you can be convicted of unlawful carnal knowledge if the circumstances allow that. Notwithstanding that unlawful carnal knowledge is not on the indictment. But I’m just not too sure here whether unless you have – unless you have – if you – if you talked about a particular section and it’s not the proper section, whether the facts enable, you know, a judge or – to – to look at it and say, “Well, yes, that – that section may not have been breached but this one might have.”

   MR MURDOCH:  Well, if - - -

   HIS HONOUR:     Because you haven’t – you haven’t come here to - - -

   MR MURDOCH:  We haven’t come to meet that.

   HIS HONOUR:     You haven’t come here to meet that.

   MR MURDOCH:  Mr – and particularly given the reverse onus, Mr Barrios hasn’t – hasn’t given evidence in respect of that.

   HIS HONOUR:     Yes. All right. Look, I understand. I understand what you’re saying, but that’s - - -

   MR MURDOCH: And I’m not aware – I’m not aware of any provision in the Fair Work Act that allows a similar - - -

   HIS HONOUR:     Yes. I - - -

   MR MURDOCH:  - - - approach.

   HIS HONOUR:     That – that’s what I’m saying, you know, here. It’s – you – you plead – that’s why sometimes you plead too many things in case other things fail.

   MR MURDOCH:  So that was all we wished to say about the – in addition to what’s in the written submissions about the coercion.

   …

7. There was then a lengthy discussion about the operation of the reverse onus of proof, which led to the following exchange:

   HIS HONOUR: In other cases where – you know, where there has been “Yes. You sack me because I – you know, I complained about my employment and complained about my rights etcetera”. If you chose that (a) you weren’t actually employed in the first place, and, therefore, you couldn’t have been dismissed, then you don’t even get to the reverse onus.

   MR MURDOCH:   That’s right. And it’s the same here, we say, in respect of the elements that the applicant has to prove - - -

   HIS HONOUR:     Yes.

   MR MURDOCH:   - - - in respect of a test for coercion.

   HIS HONOUR:     Yes. Yes. And that’s the point. You’re – you can – what you’re saying is you – if you really have a look at the difference between the 343 coercion and the 348 coercion, with the 343 – 348 coercion, you don’t – you know – but, realistically, that’s all you need to say, is “Yes. I didn’t want to do this”.

   MR MURDOCH:   Correct.

   HIS HONOUR:     And that’s sufficient to particularise it, but when you go to 343, you have to particularise what was your workplace right and, in effect, how did it come - - -

   MR MURDOCH:   What was the process?

   HIS HONOUR:     Yes. What was the process.

   MR MURDOCH:   Yes.

   HIS HONOUR:     Yes.

   …

8. I do not regard these exchanges as having the effect of putting the appellant on sufficient notice below that it was at risk of a finding that it had contravened s 348 of the Fair Work Act.  To the contrary, I regard these exchanges as indicating in no uncertain terms that the appellant had not come to Court to defend any such alleged contravention because none was pleaded against it. 

9. The passage from Assistant Commissioner Condon set out at [158] above makes clear that the notion of “practical injustice”, as an essential element of procedural fairness, applies in the context of both administrative and judicial decision-making. Given that the present proceeding is an appeal from the Federal Circuit Court of Australia, it is unnecessary for the appellant to establish jurisdictional error. That is to be contrasted with the position pertaining to judicial review of administrative decision-making. In the latter context, the current law in Australia appears to be that, for procedural unfairness to give rise to jurisdictional error on the part of an administrative decision-maker, “the breach must give rise to a ‘practical injustice’” (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [38] per Bell, Gageler and Keane JJ).

10. Practical injustice is also an integral aspect of procedural unfairness for the purposes of appellate review of judicial decision-making, although it is not always expressed in those terms.  In such cases, the notion of “practical injustice” is encapsulated in the requirement for an appellant to demonstrate that a denial of procedural fairness has deprived him or her of the possibility of a successful outcome.  That is reflected in the following passage in Nobarani v Mariconte [2018] HCA 36; 265 CLR 236 at [38] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) (footnotes omitted):

    The catch-all, “on any other ground”, includes circumstances of a denial of procedural fairness.  Those circumstances were not encompassed by the equivalent South Australian rule that was in force at the time of this Court’s decision in Stead v State Government Insurance Commission.  Nevertheless, the common law applied in that case, and the earlier case of Balenzuela v De Gail, contains an equivalent requirement to a “substantial wrong or miscarriage” before the power to order a new trial would arise.  That requirement, reflected also in the usual requirement before an error will be considered to be jurisdictional and certiorari will lie, is that the error must usually be material in the sense that it must deprive the party of the possibility of a successful outcome.  As this Court said in Stead:

    “All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome.  In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”

11. In Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [58] ff, Gageler and Gordon JJ addressed the question of what a person seeking to establish procedural unfairness in an administrative decision-making context needed to show. Their Honours emphasised that this depended upon “the precise defect alleged to have occurred in the decision-making process” (at [58]). In some cases, a person may need to establish that he or she would have taken some step if the procedural unfairness had not occurred. That is to be contrasted, however, with a situation where the procedure adopted by an administrator, by its very nature, meant that the person was not afforded a fair opportunity to be heard. In those circumstances:

    “… a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome.  The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given” (at [60]).

12. Although those observations were made in the context of judicial review of administrative action, I see no reason why they are not generally applicable in the context of appellate review of a Court decision, as is the case here.  Where, as here, a trial judge adopts a procedure which, by its own nature, means that a party was deprived of a fair opportunity to be heard, such a party is likely to have little difficulty in demonstrating that he or she was deprived of the possibility of a successful outcome. 

13. In my view, the primary judge’s failure to provide the appellant with an opportunity to make submissions and/or adduce evidence in respect of the primary judge’s decision to, in effect, amend the pleadings without notice by adding a claimed contravention of s 348 to the pleaded contravention of s 343, and then upholding the s 348 claim, involved practical injustice. That is because this significant change in the pleaded case was not accompanied by any meaningful opportunity for the appellant to make submissions and/or adduce evidence in respect of the new case. More particularly, I am satisfied that the primary judge’s denial of procedural fairness deprived the appellant of the possibility of a successful outcome.

14. In John v Rees [1970] 1 Ch 345, in the context of judicial review of administrative decision-making, Megarry J said at 402 (emphasis added):

    It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice.  “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.”  Those who take this view do not, I think, do themselves justice.  As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.  Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events”. 

15. Putting to one side for the moment any additional evidence which the appellant may have sought to adduce if it had been informed that the focus of the case it had to meet had shifted from a claimed contravention of s 343 to a claimed contravention of s 348, it is not difficult to imagine the kind of legal submissions which it might have made regarding possible differences between ss 343 and 348. The point is well illustrated by the following passage from the majority’s reasons for judgment in Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 at [61] (emphasis added and footnotes omitted):

    The idea that the action must be unlawful, illegitimate or unconscionable to amount to coercion within the meaning of s 343 or s 348 of the Fair Work Act derives from McHugh JA’s statement in Crescendo Management Pty Ltd v Westpac Banking Corporation of the elements of common law economic duress. It has since been held that the same applies to ss 343 and 348; although it is not immediately apparent why that should be so. Apart from anything else, s 343(2) provides that s 343(1) does not apply to protected industrial action. That suggests perhaps that the statutory conception of coercion is otherwise broad enough to embrace protected industrial action, and thus coercion by lawful or legitimate means. If that is so, it would assume significance in relation to s 348, which has no express exclusion of protected industrial action. In this case, however, it is unnecessary to decide whether that is so. Either way, it is clear that a person taking coercive action need not have an accurate appreciation of the legal nature of the action. As Gleeson CJ said in Electrolux Home Products Pty Ltd v Australian Workers’ Union in relation to s 170NC of the Workplace Relations Act, it was sufficient to establish an intent to coerce to demonstrate that the person organising, taking or threatening the action intended it to negate the other person’s choice and that the person organising, taking or threatening the action had actual knowledge of circumstances that made his or her conduct coercive:

    “The elements of the conduct prohibited by s 170NC, so far as presently relevant, are action, or threats of action, with intent to coerce another to agree, or not to agree, to the making of an agreement under Div 2 or Div 3. An accurate appreciation of the legal nature of the agreement in question is not an element of the intent required by s 170NC.”

    The fact that a person may be acting under a mistake of law as to whether industrial action is protected industrial action is no more relevant than would be the fact that the person neither knew nor cared whether the industrial action was protected industrial action. The same applies to ss 343 and 348 of the Fair Work Act. 

16. The emphasised passages from Esso highlight the possibility that there may be a difference between conduct which amounts to coercion for the purposes of 343, in contrast with conduct which amounts to coercion for the purposes of s 348. Although the High Court did not need to determine the matter in Esso, the majority acknowledged that there may be a broader concept of “coercion” in s 343 as opposed to s 348 because there is no explicit provision in relation to s 348 which is comparable to that in s 343(2) (which expressly provides that s 343(1) does not apply to protected industrial action – see Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 at [70] per Flick J, with whom Allsop CJ agreed at [2] and see also White J at [149]-[153]). It is reasonable to assume that the appellant here would have wished to make submissions in respect of this possible difference between the two provisions and seek to have the matter determined by the trial judge. It is equally reasonable to assume that the appellant may have tailored its evidence on the issue of “coercion” on the basis of its assessment of the likelihood of the Court ruling in its favour on the issue of whether there is a narrower concept of “coercion” in s 348.

1. If the appellant had been given notice of the alleged s 348 contravention, it may also have wished to make submissions on other issues, including the significance (if any) of the fact that ss 343 and 348 are located in different Divisions of Ch 3 of the Fair Work Act. 

2. For all these reasons, I would allow the appeal on the basis that the appellant has established procedural unfairness in relation to the primary judge’s finding that it had contravened s 348 of the Fair Work Act. 

   Other grounds of appeal

3. Grounds 4 to 7 of the notice of appeal raise issues such as whether the primary judge erred in not finding that the material facts necessary to establish a contravention of s 348 were not pleaded and other questions relating to the application of s 361 of the Fair Work Act. Ground 7 is tied to the appellant’s claims regarding the primary judge’s errors relating to s 361.

4. Grounds 4 to 7 are predicated on an assumption that there was no procedural unfairness. They are properly viewed as being alternative to grounds of appeal 1 to 3, which all relate to procedural unfairness. Because I consider that there was procedural unfairness, I think it unnecessary to determine grounds 4 to 7. The matter should be remitted to the primary judge for a retrial and determination according to law, including in the light of how Mr Tyson pleads any contravention of s 348 of the Fair Work Act and the grant of such leave as may be required. 

   Conclusion

5. For these reasons, I would allow the appeal and set aside the orders dated 12 December 2019 of the Federal Circuit Court of Australia.  The proceeding should be remitted to the Federal Circuit Court of Australia for a new trial according to law. 

6. The cross-appellant should have leave to amend his notice of cross-appeal so as to include the additional ground relating to s 341(1)(a) of the Fair Work Act specified in the draft amended notice of cross-appeal annexed to his submissions filed herein on 10 August 2020 (annexed draft).  The filing and service of the notice of cross-appeal as so amended should be dispensed with and the annexed draft should be deemed to be the amended notice of cross-appeal.  The cross-appeal should be dismissed. 

7. As requested, the parties should have an opportunity to be heard on costs, both of the proceeding below and the costs of and incidental to both the appeal and the cross-appeal.  Each should do so by filing an outline of submissions, not exceeding five pages, to be exchanged and filed within 14 days hereof.  Each party should indicate in its outline of submissions whether it considers that any application for costs should be heard and determined on the papers and without a further oral hearing.  In the event that no party seeks costs, there will be no order as to costs. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.

Associate:       

Dated:       25 November 2020