Victoria International Container Terminal Limited and Richard Simon Lunt

[2021] HCATrans 7

[2021] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M96 of 2020

B e t w e e n -

VICTORIA INTERNATIONAL CONTAINER TERMINAL LIMITED

Appellant

and

RICHARD SIMON LUNT

First Respondent

FAIR WORK COMMISSION

Second Respondent

AUSTRALIAN MARITIME OFFICERS UNION

Third Respondent

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Fourth Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 FEBRUARY 2021, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR S.J. WOOD, QC:   If it pleases the Court, I appear with my learned friend, MR N. BURMEISTER, for the appellant.  (instructed by Seyfarth Shaw Australia)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR C. TRAN and MS N.K. KAM for the first respondent.  (instructed by Maurice Blackburn Lawyers)

KIEFEL CJ:   Yes, Mr Wood.

MR WOOD:   Thank you, your Honour.  Does the Court have our three‑page outline of oral argument?

KIEFEL CJ:   Yes, we do.

MR WOOD:   In that outline we propose today to supplement what we have said in writing with some very short submissions orally and we start with the facts as found by the primary judge, that is, that the Union to avoid a defence based on its own conduct and to avoid scrutiny of that conduct recruited a front man, so‑called ‑ ‑ ‑

GAGELER J:   What does it mean?

MR WOOD:   Sorry, your Honour?

GAGELER J:   What does it mean, that descriptor?

MR WOOD:   It means a person on the basis of the findings made by his Honour who would not have otherwise commenced the proceeding who was used by the Union to further its aim of conducting that proceeding to seek that relief to avoid defences that could be raised against it.

GAGELER J:   What do you mean by used by the Union?

MR WOOD:   I mean in the sense that the Union organised for Mr Lunt to conduct the proceeding.  It funded Mr Lunt.  Mr Lunt would not have otherwise commenced the proceeding himself and, in those circumstances, the primary judge found that Mr Lunt was being used as the vehicle, the front man that the Union was the true moving party in relation to the litigation that had been commenced.

GAGELER J:   Mr Lunt gave instructions, did he not?

MR WOOD:   Yes, he did, your Honour.

KIEFEL CJ:   It is not unusual or it is not unheard of for persons to be the chosen plaintiff for others.

MR WOOD:   No, your Honour, not at all.

KIEFEL CJ:   Our constitutional cases would quite often find plaintiffs in that capacity.

MR WOOD:   There is no difficulty with that, your Honour.  We do not ‑ ‑ ‑

KIEFEL CJ:   What is the key element then?  What is the key element to the ‑ bringing the administration of justice into disrepute, is it that the discretions are not available, is it that the processes are ‑ ‑ ‑

MR WOOD:   It is both those things, your Honour.  It is that the discretions are not available against Mr Lunt in the circumstances in which the case was commenced.

KIEFEL CJ:   Are you actually submitting that the Court could not have regard to the position of the Union in relation to the grant or withholding of relief?

MR WOOD:   No, your Honour, we are not.  We are simply saying that when the proceeding commenced the Union conducted the litigation through Mr Lunt for the purpose of hiding its position and trying to prevent the defences being raised against it.  That was the point of, as the primary judge found, putting – arranging for Mr Lunt to conduct this litigation.

GORDON J:   Is the point that you seek to make any higher than this and that is that the Union had available to it a procedure within the Fair Work Commission by application for leave to appeal where it would have had to meet certain hurdles and they created some difficulties for the Union and instead chose to institute proceedings with the assistance of Mr Lunt where those hurdles were not available – did not exist?  Is it any higher than that?

MR WOOD:   No, your Honour, it is much higher than that.

GORDON J:   It is much higher?

MR WOOD:   Yes, your Honour.  In the sense that the Union could have brought this application at any stage after the approval of the agreement.  It could have brought ‑ ‑ ‑ 

GORDON J:   What application?

MR WOOD:   An application to the Federal Court seeking quashing of the enterprise agreement.  It could have sought an order in a nature of certiorari, just as Mr Lunt has done.  And it would have been confronted with a defence based on its conduct and its change of position, that is, had the Union brought this very application, a discretionary defence based on its acquiescence to the making of the agreement, its support for the making of the agreement, the fact that it in effect consented to the making of agreement and that it changed its position after a long period of time.  Now, those defences would have been available against the Union had this case been brought when it was brought by Mr Lunt.

KIEFEL CJ:   But those matters can be taken into account by the Court you acknowledged in Mr Lunt’s proceedings.  If there is an availability of – if the Court is able to address the matter which affects its processes, that usually means that a stay should not go.

MR WOOD:   Only because we uncovered what was going on.  When the proceedings started in the beginning of 2018, the position of Mr Lunt and the Union was that Mr Lunt was acting independently of the Union.  He gave evidence before the Court repeatedly to say he was doing this of his own volition, he was not the moving party, he was interested in overturning this agreement because some individuals at work had spoken to him.  All those things were found by the primary judge to be untrue.

KIEFEL CJ:   That might give rise to contempt or even perjury.  But the processes that were invoked by the Court to obtain relief remain true.  He sought the relief of certiorari and that was the intended outcome and that is what was being pursued.

MR WOOD:   But he sought it at the instigation of the Union to disguise the fact that the Union was behind this to prevent the defences being raised against the Union.

GORDON J:   I think that is where I take issue with you.  To prevent the defences being raised – the defences were still available, in the sense of not defences on behalf of the Union but facts and matters to be taken into account in Mr Lunt’s claim.

MR WOOD:   But only because these were challenged by the appellant here.  If there had been no challenge to the position that was being put forward by Mr Lunt – that he was the grieving party, that he was doing it by himself, that there was no influence of the Union – then the disguise that was attempted would have been affected.  That is, by the time it came to the determination of the case, there would have been no discretionary defences available against Mr Lunt based on the conduct of the Union. 

KIEFEL CJ:   In Mr Lunt’s proceedings, I understand that the backing of the Union, financially, was admitted in the reply.

MR WOOD:   I think so, your Honour.

KIEFEL CJ:   Yes.

MR WOOD:   It came out much earlier.

KIEFEL CJ:   I am just struggling a little to quite understand the secrecy which attended the commencement of proceedings.  That is really where you are putting the problem with the administration of justice at this ‑ ‑ ‑

MR WOOD:   Yes, your Honour, because when the proceeding was initiated, the proceeding was initiated as if Mr Lunt was doing this of his own volition and therefore none of what the Union had done could be taken into account against him.

KIEFEL CJ:   I do not think it was brought against his will when you say “of his own volition”.  He was a willing party.  I think the primary judge said it was out of a sense of loyalty that he brought the proceedings.

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   That is not unheard of.

MR WOOD:   No, your Honour.

KIEFEL CJ:   So where does the secrecy take us in terms of the administration of justice?

MR WOOD:   In the sense that the way in which the – there were two alternatives available to the Union at the time.  One was to phase in to their change of position ‑ that is, for some reason, as yet unexplained, there was a change in position and they wanted to overturn a state of affairs that they had contributed to, that they had in effect created by their conduct. 

That was alternative number one available to them, to bring that proceeding in their own name, which would then immediately give rise to the defence that is being raised directly against the Union.  At that point in time, when the proceeding was initiated, none of the things the Union did would be, on a prima facie basis, able to be taken into account against Mr Lunt.

GAGELER J:   Why not?

MR WOOD:   Because he was not around at the time of the approval of the agreement.  He did not come to be employed until about a year later.  It is accepted that the Union and its members are separate legal entities that, except in special circumstances, the conduct of a member cannot be attributed to the corporate entity, the Union, and in almost no situation can the activity of the corporate entity, the Union, be attributed to the member, and there was no delay on Mr Lunt’s part.

So instead of coming to the court honestly and saying, we want to quash this agreement, and we accept there are things that could be said against us, and we will phase into them, they recruited Mr Lunt with, as the primary judge found, for the purpose of avoiding those defences that could be raised against the Union.  That is, the idea was to keep secret that this was the Union’s case by putting Mr Lunt in their place.  Now, as it turned out, that attempt failed ‑ ‑ ‑

KIEFEL CJ:   Well, it was probably doomed to failure, was it not, the secrecy?

MR WOOD:   Well, not necessarily, your Honour.  There was a year and a half that was spent litigating it, digging up all the evidence, discovery applications, one after another, to try to fight the proposition that Mr Lunt kept advancing that he was the true moving party.

KIEFEL CJ:   Now, this history that you have referred to, is it the subject of findings by the trial judge?  Is it the primary judge’s findings in this regard that you rely upon?

MR WOOD:   Yes, your Honour.  In the primary judge’s decision, I will go to it, I think in paragraph 42, he sets out what Mr Lunt said, initially, and I can take the Court to those, if required.  But Mr Lunt said at paragraph 42:

I am the true moving party –

. . . 

the union is not driving or controlling this proceeding in any way . . . I am driving and controlling this proceeding.

And at paragraph [55], the primary judge concludes:

He did not accept –

that is, Mr Lunt:

that he was merely doing the bidding of the MUA.

Now, that process of interrogating the Union, firstly to find out whether they were funding Mr Lunt ‑ which took a couple of months to determine that – and then through discovery, to find out the communications between Mr Lunt and the Union took another couple of months.  Then there was a big fight over the mobile phones that Mr Lunt destroyed.  And his Honour the primary judge at paragraph 43 sets out:

A significant part of VICT’s attack upon Mr Lunt’s credibility relates to its attempts to obtain discovery of documents stored on his mobile phone.

And then he explains that issue in some detail.  So it was not until ‑ ‑ ‑

GORDON J:   You did not seek a finding or to uphold the finding of abuse of process on the basis of destruction of evidence, did you?

MR WOOD:   No, your Honour, and we could not.  It would not have been a fair balancing of rights to ask for the whole proceeding to be knocked out on that basis merely ‑ and this is what the judge found – merely, because the destruction of documents was designed to defeat our argument that the Union was the true moving party, that Mr Lunt was a front man, that he was merely doing the bidding of the MUA.  The proper response to the destruction of documents would be in the proceeding to prevent Mr Lunt from challenging that finding.

KIEFEL CJ:   Mr Wood, if the wrong that was perpetrated in relation to the documents or discovery and the court’s processes could be dealt with by way of contempt or by giving the papers to the Attorney to consider, perjury, that is one thing, but that does not necessarily mean that a stay is appropriate of the proceedings.  They are different questions, are they not?

MR WOOD:   We accepted that, your Honour, we never pressed for a stay on that basis.  All we said about the destruction ‑ ‑ ‑

KIEFEL CJ:   I just do not know why they loom so large in the primary judge’s reasons.

MR WOOD:   Because he had been lied to for over 12 months.  He had been told repeatedly that ‑ ‑ ‑

KIEFEL CJ:   But what is the relevance of that to the question of whether the administration of justice is ‑ ‑ ‑

MR WOOD:   Because what that showed as at July 2019 was that what had been attempted to be put in place in April 2018 was an attempt to disguise what was really going on to prevent the defences being raised.

EDELMAN J:   The essence of your argument, as I understand it, really is that all of the conduct that you rely upon is conduct that involved an attempt to conceal from the court matters that would be relevant to the exercise of a residual discretion.

MR WOOD:   That is right, your Honour.

EDELMAN J:   So, the mobile phone, all of these matters are just part of the context that establishes that attempt.

MR WOOD:   That is right, and the ‑ ‑ ‑

KEANE J:   So, there was an attempt to abuse the process but it failed.

MR WOOD:   There was an attempt to abuse – there was an abuse of process because of the attempt – that is, what was the Union trying to do on the unchallenged facts in April 2018?  The only evidence or the only conclusion available on the findings of the primary judge was that it was attempting to avoid the defences being raised directly against it by interposing Mr Lunt.  Now, there is no other evidence as to why this was done.  That is the only conclusion that is available on the evidence.

GAGELER J:   That, in itself, is the abuse, is it?  That is the essence of the abuse?

MR WOOD:   The essence of the abuse, having regard to what had happened before, that is, the interposition of Mr Lunt in the circumstances – that is, the interposition of Mr Lunt to try to avoid defences based on the Union’s own conduct in bringing this state of affairs into place.

GAGELER J:   But that is the totality of the point.

MR WOOD:   That is the interposition of Mr Lunt without declaring that, in fact, the Union was the person behind it.

GAGELER J:   So, it is the secrecy or the lack of candour.

MR WOOD:   It is both of them, your Honour.  It the interposition with the lack of honesty about what was going on in the circumstances of the situation that the Union had created.

GAGELER J:   When was this honesty required?

MR WOOD:   Sorry, your Honour?

GAGELER J:   At what point in the process was this candour required?

MR WOOD:   We would say, having regard to the breadth of the doctrine of the abuse of process, that having an opportunity as at the time of instigating the proceeding to front up to what had happened and instead interposing someone else to disguise that was the start and it continued until the judge ‑ ‑ ‑

GAGELER J:   Really, I am asking, is the abuse in the commencement of the proceedings or is the abuse, as you put it, in failing to fess up at the first directions hearing and say, yes, the Union is standing behind this?

MR WOOD:   It is both, is it not?

GAGELER J:   I am asking you.

MR WOOD:   It is the behaviour from the beginning to the finding of the primary judge over that 14‑month period.  There was a continuation of a deception.

KIEFEL CJ:   On the Court.

MR WOOD:   On the Court.

KIEFEL CJ:   So, if one was considering this from the point of view of people in society looking at the court and what was happening with the court, you would say that they would consider the processes of the court were being abused from the time that the proceedings were filed, right through to the time when – through the hard work of the appellant – the matter was exposed.

MR WOOD:   Of course.  Yes, your Honour.

KIEFEL CJ:   But does that mean that a stay is appropriate for the future?  Or does it mean, as Justice Keane implied, that the abuse of process has come to an end?

MR WOOD:   The abuse of process has – that thing that was attempted – has not succeeded.  That is ‑ ‑ ‑

KIEFEL CJ:   The hard work of the appellant has overcome the abuse of process.  You do not need a stay anymore.

MR WOOD:   That is not quite right, your Honour.  It is probably right but it is not quite right because if the matter was to go on, then Mr Lunt would say – he would have the findings of the primary judge against him but there are certainly no admissions to this effect – he would say, you should not take into account the conduct of the Union in exercising your discretion against ‑ ‑ ‑

KIEFEL CJ:   But, at the outset, you recognise that the Court would not be bound by that.

MR WOOD:   No.

KIEFEL CJ:   The Court could perfectly well have regard to the conduct of the Union and, indeed, to its conduct during the proceedings.

MR WOOD:   We would certainly say that, your Honour.  If the matter went back to the primary judge ‑ ‑ ‑

KIEFEL CJ:   There is no finding to the contrary from the primary judge, is there?

MR WOOD:   It never got to that stage, your Honour.  But the position of Mr Lunt – it has never been his position that the actions of the Union can be visited upon him.  There is no admission to that effect, and he is free, when the matter goes back, if it went back ‑ ‑ ‑

KIEFEL CJ:   But it is not so much being visited upon him.  It is the court considering the relief that – if there is a discretion in terms of relief.  It is the court considering whether or not the court will grant relief, given that he effectively represents a body that has acted inconsistently in the past and has tried to disguise itself in relation to the court’s processes.  Are you saying that the court could or could not take those matters into account?

MR WOOD:   We would say that the court could, and it should.

KIEFEL CJ:   I do not understand the first respondent to say to the contrary.

MR WOOD:   Well, it would be the first time they have ever said it.  The whole point of this subterfuge has been to avoid saying that.  There are no admissions to that effect at any stage.  If the matter went back to Justice Rangiah, the first respondent would be free to say, “Having regard to your findings, nevertheless” – now, we would hope this argument would not succeed – “nevertheless the actions of the Union were not my actions.  I did not delay anything and true it is you have found that I am in effect the vehicle through whom the Union has moved and you might want to visit the actions of the Union upon me, but I reject that”.

Now, that is the position that remains and that was the idea from the very beginning.  The whole reason Mr Lunt was put in this position was to try to ensure that he would be free to make an argument that no discretionary defence should be raised against the quashing of the enterprise agreement.

KIEFEL CJ:   Mr Wood, is there another question – it has been an assumption in the argument thus far that either defences or discretionary considerations were in play but the application for certiorari depends on jurisdictional error.

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   If there was jurisdictional error, is there any room for the defences or the discretions?

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   How so?

MR WOOD:   Well, because of cases that go back as far as ozone theatres that ‑ ‑ ‑

KIEFEL CJ:   Because of the nature of prerogative relief?

MR WOOD:   Yes, your Honour.  That is really our point in the sense that the court can tick off on this behaviour and say, “Well, it has been uncovered, so that is okay, it can all be resolved at the end because you can weigh up the conduct of the Union and you attribute that to Mr Lunt and then you balance that against any errors that are found of a jurisdictional nature in the making of the agreement”.  Our point is the court should not countenance that.  It should say that that balance – that those things should be weighed in the balance at the beginning without subterfuge, that if the union ‑ ‑ ‑

EDELMAN J:   It is essentially a deterrence argument, is it not?  You do not say that, the court having made the findings, that, to use Justice Rangiah’s expression, the appellant was the front man for – or the respondent was the front man for the Union, that the court’s processes will be abused.  The essence of your argument is more that, because the possibility in a future case that such a finding might not be made or such evidence might not be discovered, the court needs to protect against that future possibility.

MR WOOD:   That is exactly the argument.  Going back to Chief Justice Kiefel’s point, right-thinking members of the public looking at this would say, “Is it right that a litigant, in coming to the courts of justice, can put someone in their place in order to attempt to disguise their involvement behind this, to attempt to ensure that a defence based on conduct that they have engaged in is never revealed?”  Or should the court say, “No, in those circumstances, rare as they may be, that sort of behaviour should not be countenanced” because, as Justice Edelman says, there is a risk that the true position does not come out.

EDELMAN J:   There is one difficulty with that argument though, that in the strong case – in cases of actual fraud, for example, like this Court considered in cases like Nelson v Nelson, the Court has said that one does not need to deprive parties of their rights entirely, provided that they can be put on terms or provided that the Court can deal with the parties in a manner that will ensure that the fraud in cases like that is not able to be accomplished.

MR WOOD:   That is exactly our point, your Honour.  Our point is that this proceeding should be dismissed.  The Union is free to bring a proceeding in exactly the same terms now and explain directly, without the subterfuge, without the position of Mr Lunt, what its conduct has been and to allow the Court to weigh that in the balance with whatever errors are said to have arisen in the making of the enterprise agreement.  That is the way that one fairly resolves the competing interests in this case.

KIEFEL CJ:   Does that mean that the purpose of the interlocutory processes undertaken by the appellant is to force the Union to bring proceedings where defences could be raised against ‑ ‑ ‑

MR WOOD:   Yes.

KIEFEL CJ:   Is that a proper purpose in instigating court processes?

MR WOOD:   Because the true position was that the Union was behind it; that is, we were trying to dispose what was a deceit, attempted to be implemented in ‑ ‑ ‑

KIEFEL CJ:   So the purpose of the appellant is not just to obtain the relief by way of stay of proceedings, but to force the Union into a position to have to bring other proceedings.

MR WOOD:   If it wants – if the Union wants to challenge this agreement, having regard to its conduct, it should be forced to do so directly and not to do so in a way in which its behaviour and its conduct might be covered up.  There are two alternatives here.  One was at the start that this was never uncovered.  The abuse was never detected.  The case goes all the way through.  Mr Lunt stands up and says, “You can’t raise anything the Union did in 2016 against me because I was never employed until 2017”, and the quashing arguments – that is, the discretionary arguments around the quashing, if any jurisdictional error is found ‑ are determined in the absence of the true position; that it, is in fact the Union doing this using Mr Lunt’s vehicle?  That is one scenario.  That did not come to pass, but that is what was attempted.  That is what they were trying to do.

The second scenario is the one we are confronted with here today whereas that attempt has been discovered, it has been uncovered and Mr Lunt now says, “ Oh well, doesn’t matter, you found out about our plan, you uncovered it, you spent a lot of time and money doing, that but you still can’t dismiss it because it can all be weighed in the balance anyway”.

GAGELER J:   A third scenario might have been Mr Lunt commencing the proceedings and saying from the beginning, “I’m a loyal union man.  The Union is standing behind me.  I wouldn’t have brought these proceedings but for the Union.  They’re paying the costs.  Of course, I’m giving instructions but I’m doing that in consultation with my union colleagues”.  Now, if he had said all of that at the beginning, would there be a problem?

MR WOOD:   And one other thing too, that, “I admit that everything the Union did in 2016 and all its behaviours since can be visited upon me”.

GAGELER J:   Why would he have to say that?

MR WOOD:   Because he is doing it in the place of the Union.  He was not going to bring this proceeding.

GAGELER J:   So, in the scenario that I put to you which is absent that formal legal admission but an admission as to the facts as to the nature of the litigation and the way it has been conducted, would there be an abuse of process, in your submission?

MR WOOD:   Probably not, your Honour.

GAGELER J:   So it all comes down to the secrecy?

MR WOOD:   It comes down to the three things we have talked about, that is, the Union’s behaviour, its choice when it came to initiating the proceeding as to do so secretly or openly either in the way we have talked about, your Honour, or more directly, and then its continuation thereafter.  Now, on the scenario that you posited, your Honour, we would have a very small debate about whether or not the Union’s behaviour could be visited upon Mr Lunt, but in the scheme of things it probably would not rise to the level of an abuse of process because of the reasons you have given.

GORDON J:   Is that assumption right that it would not be possible to take into account – let us put it aside this language of visit on Mr Lunt - is it the position truly that the considerations you raise about how long the enterprise agreement has been on foot, the steps taken, the consent, the fact that parties have relied on is not taken into account, on Justice Gageler’s scenario?  They would have to be.  They are relevant considerations, are they not?

MR WOOD:   It could not be the case.  Remember that the Union did three things.  First of all it turned up to the Fair Work Commission and said, “We want this agreement approved”.  None of the employees said that.  None of the members said that.  They said that.  Secondly, the Union said, “We agree that the agreement on a factual basis passes the tests that are to be implemented”.  Thirdly, the Union said, “We want to be covered by this agreement”.  They then went on, consistent with that behaviour and did not appeal and did not do anything thereafter. 

Now, none of those behaviours, none of that conduct that, in effect, created this circumstance, can be visited upon employees, even if they are members thereafter.  They had nothing to do with that.  If the Union had not behaved in that way, had not said, “We want this agreement approved”, if they had not said, “We agree with the facts upon which you could move”, if they had have said then what they are saying now in this proceeding, that is, “You, the Commission should make more inquiries.  You should look at this further”, then, what would have happened?

What would have happened would have been that the employer would have said “all right” to the Commission, “here are some more facts” or “here are some undertakings we can give to assure you that this agreement passes the test”.  Those circumstances and the circumstances created by the Union’s behaviour, including their omissions, can not in any circumstance be visited on some employee who comes later.  That is not at all ‑ ‑ ‑ 

KEANE J:   But in relation to that, the scenario you put, that if this had come for final determination, why would not the discretionary consideration that Mr Lunt is just someone coming along almost as a busybody to complain about this agreement when all these third parties, including the Union, are on the face of things not interested in having the agreement set aside – why would not the discretionary considerations all weigh against the refusal of relief?

MR WOOD:   That particular discretionary consideration would, your Honour, if ‑ ‑ ‑ 

GORDON J:   That must pick up all the things I just put to you ‑ ‑ ‑ 

MR WOOD:   No, no, they are different, your Honour, with respect ‑ ‑ ‑ 

GORDON J:   They are not different, they are the same considerations.  It is the absence of them.  As Justice Keane put to you, it is the absence of the Union not complaining, it is the absence of everybody else bound by it not complaining, it is how long it has been on foot.

MR WOOD:   In those circumstances, there has been, in relation to the employee, no change of position.  It is the inducement of the situation, and the change of position, that causes the trouble.  Those other factual circumstances that Justice Keane referred to, the fact that the employees just won out does not appear to have a lot of support, that there was other support for the agreement, does not deal with the real difficulty here, that there has been an inducement by the Union of this state of affairs. 

That fact and the alteration or the change by the Union of its position in that regard is not something that could be taken into account in relation to some individual.  Some individual will turn up say “I do not think this agreement ever passed the test, there was not sufficient evidence put forward, this was an almost consent position where not enough effort was made to look at the underlying position”, there is no answer to that, to say it was the Union and the employer who engaged in that behaviour and therefore this employee who criticises the process has the favour of the process held against them.  That seems ‑ ‑ ‑ 

KEANE J:   Mr Wood, can I ask you another question that relates to the timing?  When one asks for relief in relation to an abuse of process, on one view, at least in Jago v District Court (NSW), on one view the Chief Justice Mason, Justice Brennan and Justice Deane at least express a view to the effect that if that of which the party asserting an abuse of process complains can be addressed or cured or otherwise dealt with, then the basis for a stay of proceedings disappears, what do you say about that?

MR WOOD:   I think my answer is very similar to the one I think I gave to the Chief Justice in that regard.  That is, there is a lot to that point in the sense that, if the matter went back to Justice Rangiah we would argue, having regard to his findings, that any discretionary argument we had against the Union, or the appellant had against the Union, should be raised and taken into account against Mr Lunt.

KEANE J:   That can happen.

MR WOOD:   That can happen.

KEANE J:   Therefore why, on the view of the reasons that I have suggested to you, if that be the correct view, then why is that not a basis for saying that whatever else one might say of the conduct of Mr Lunt and the Union in this case, there is not an abuse of process such that there should be an order for a stay?

MR WOOD:   For two reasons.  One of them is the one that we have just been discussing, that is, it is not necessarily the case – it is certainly not the case that Mr Lunt will accept that.  He is not going to admit that.  That was the point of interposing him, that the actions of the Union should be taken against him.  Now, you might say, having regard to the findings, that is going to be a pretty weak submission.  But more importantly, it gets back to the point that Justice Edelman made.  It is quite unfair to the – or it brings the administration of justice into disrepute.

KEANE J:   But that is on the basis that you take the view that abuse of process has a deterrent element about it, that it is to deter others because of the risk that the bad behaviour, the concealment and so forth, might not come out.  Now, the notion that abuse of process can be used for these deterrent purposes does seem, at least on one view of what was said in Jago v District Court to be contrary – to be outside the scope of what abuse of process is used for.

MR WOOD:   Well, your Honour, there is the argument we have just discussed about whether Mr Lunt would accept that the activities the Union…..upon him.  There is the other argument – I will come back to deterrence in a moment ‑ there is the other argument that there has been a great deal of effort put in in dealing with this proceeding to get to the true position in circumstances where the true position could have been put from the beginning.

KEANE J:   One can understand that in response to that it may well be that the other side ought to be made to pay costs on an indemnity basis.  But that is the point of what was being said in Jago, that there are remedies.

MR WOOD:   Thirdly, your Honour, the court – and this is in a sense contrary to what your Honour is putting to me – there is an important public interest in trying to ensure that the processes of the courts of justice are not abused and not seen to being abused.  That is not to say, having regard to what you have said, there could be a way of resolving this issue in the way that you have identified, your Honour, that is, with a large costs order and Mr Lunt being in effect required to wear in the balancing process the conduct of the union.

But what that does is it does not – it in effect green lights this behaviour.  What the court is refusing to do by doing that is to say, “This sort of thing should not happen.  This is an affront to the administration of justice”.  Notwithstanding that the wrongs can be dealt with in another way, this has got to such a level that what this Court should do is strike this proceeding out as an abuse of process because the community would not want to see the courts of justice used in this way.  It also has the effect - as I think I said to perhaps Justice Gageler or the Chief Justice, it also has the effect of balancing up the interests of the parties.  By that I mean the true parties.

The Union is then free, if it wants, to bring a proceeding quashing the agreement.  It does not have to, but it is free to.  The defences are then directly raised against the Union, not in this indirect way through this process whereby Mr Lunt may or may not fight if the matter went back to Justice Rangiah, whether or not these defences are liable – whether he is liable for the Union’s behaviour.

Now, that achieves three aims.  It achieves the aim of giving the community confidence in the administration of justice, in the sense of this case, but also the deterrence effect.  It achieves a balancing of the rights, because the Union is free to start this proceeding tomorrow, if it wants.  And it protects – perhaps in a way a costs order would - but it protects the interests of the parties, or particularly the appellant, in having to deal with this abuse to date.

Now, in our submission, that is a much more appropriate and also – an appropriate way, and also consistent with the way in which the public would think the courts of justice should be used.  It should not be a game.  It should not be an opportunity for deceit.  Having been discovered, the remedy for that behaviour should be one of some approbation by this Court, so that people do not do it again. 

KEANE J:   One can understand the sense of disapproval that you are putting to us, but we do know that in many pieces of litigation that occur in the courts every day, one side or the other mounts a case that is sometimes deliberately false.  The parties lose.  But we do not declare them outlaws and decline to hear the case because it might emerge at some early stage that the case has been put forward on a false basis.  The case is dealt with on the merits, and falsehoods are dealt with in the way in which – they may be dealt with by contempt or by other proceedings, or by costs orders.  But to say that a case that involves misleading conduct on the part of a litigant brings the thunder of the medieval declaration of outlawry upon the miscreant, seems to be going a bit far.

MR WOOD:   But this was a deception that was perpetrated on the court.  This was an attempt to prevent the court weighing in the balance ‑ ‑ ‑

KEANE J:   I think, Mr Wood, the difficulty I have got with that is it is an attempt – it was an attempt – and through your client’s good offices, the attempt was exposed and the court can look after itself once the falsehood is revealed. 

MR WOOD:   That is true, your Honour.  But, as I said before, there were two alternatives in relation to this attempt ‑ one, that it remained undiscovered, which would have been the more likely event because it requires a lot of effort to discover it.  The second, that it is discovered.  Having been discovered, is it fair – that is, is there no issue with the administration of justice by just waving it on and saying, this can all be dealt with in the wash.  Or, should the court say, no, this is not the sort of behaviour that should be attempted.

KEANE J:   But that, then, raises sharply the question that Justice Edelman was putting to you, and that is, are we talking about punishment and deterrents as an aspect of the doctrines of abuse of process?

MR WOOD:   We are talking about how the public would view this behaviour manifested in this proceeding.  That is, what would they think the appropriate – whether they would think it is an affront to the administration of justice to allow this sort of proceeding to continue knowing what we know now.  In those circumstances, that assessment does have an aspect of deterrence to it because, by applying that test, one is looking at – imaging – what the public think about this behaviour and saying that this behaviour is not of a type that this Court should countenance and that would, of course, have a knock‑on effect – a deterrence effect.  But that is just a consequence of the broad nature of the test, is it not, your Honour? 

KEANE J:   I think we are probably talking about just how broad the test is.

MR WOOD:   Also about – as the cases say ‑ community values and where the line should be drawn, that this particular category of abuse of process is designed to reflect, in the Court’s opinion, how it thinks the courts of justice should be used, and there can be different views on that.  It might be that this Court thinks that this sort of behaviour can be countenanced in the way – I do not mean that in a sort of just wave through but in the way that we have discussed, Justice Keane.  It might be that this Court thinks, no, this is not the sort of behaviour that should be countenanced and the Court needs to explain to the public that this sort of subterfuge should not be attempted even if it has been discovered.

GORDON J:   It is an interesting question, when you actually step back from it to work out how it is that Mr Lunt would have had to disclose it.

MR WOOD:   I beg your pardon, your Honour?

GORDON J:   It is an interesting practical question of how it is that Mr Lunt would have had to expose it when he commenced the proceeding.  There is nothing on the statement of claim to suggest or require it.

MR WOOD:   There certainly is not, your Honour, but the point was ‑ ‑ ‑

GORDON J:   I mean, he had a cause of action which was genuine in the sense that he had an available cause of action.

MR WOOD:   He did, your Honour, one that he was not minded to bring himself but for being asked to by the Union and the Union’s purpose in asking him was to avoid the defences.  Now, if that purpose did not exist we would not be here.  If the Union had just asked Mr Lunt to bring this proceeding because we like the cut of your jib or because you are an individual and prefer an individual to run this case rather than the Union, we would have no complaint about that.  But the point was to try to hide the Union’s conduct and prevent it being weighed in the balance in the final assessment and ‑ ‑ ‑

GAGELER J:   If you and I have a claim against another party but I recognise that if I were to bring the claim a defence could be raised, at least, arguably against me, it would not be available against you.  So, if you and I get together and decide we will pool our resources, you bring the claim, say nothing about me, see how you go, is there something wrong with that?

MR WOOD:   It would depend what the defence was, your Honour.  If the defence was, as it was in this case, a defence that was based entirely upon the Union’s conduct in circumstances where the other person to the case would not have – the plaintiff would not have otherwise brought proceedings then, in our submission, that does take it outside that category of cases.  If the facts change, there would not need to be very many facts that changed in this case for it not to be an abuse of process.  It might be, for example, that this was not done in secret.  It might be that there was nothing significant in what the Union had done.  It might be that Mr Lunt actually in part wanted to bring the proceeding.

Now, if those facts changed then the overall complexion that one puts on it changes.  But it is because of the combination of facts together over a period of time that it paints a picture that this was, from the beginning and continued to be, an abuse of process though, in other situations similar but not identical it may not be.

Now, I think I got to 1(a) in my introduction but I think I have dealt with the main issues.  Unless the Court wants to – I think we have dealt with everything I have said in 1 and 2 and ‑ ‑ ‑

KIEFEL CJ:   It is just a question ‑ the question of costs then.

MR WOOD:   The costs.  I can perhaps deal with that in reply if we need to.

KEANE J:   Section 570 I think the Chief Justice was referring you to – the section 570 issue.

MR WOOD:   Yes, your Honour.  Well, just that ‑ in the sense that there is a cost protection that is available to Mr Lunt in this case and we say, if we are right, that we fall within the exceptions.  The proceeding was either instituted unreasonably or there was an unreasonable act by the Union in instituting this proceeding through Mr Lunt.

We think that the test of whether or not a proceeding has been instituted unreasonably or there was an unreasonable act must be, by definition, at a lower level of seriousness than an abuse of process, if the abuse of process is made out.

KIEFEL CJ:   Except we are not at this point looking at the proceeding brought by Mr Lunt; we are looking at the proceedings brought by your client with respect to those proceedings, the interlocutory proceedings.  The question of costs in the principal proceedings may or may not remain for the primary judge to consider if the matter proceeds further.

MR WOOD:   If the matter proceeded further, then of course the primary judge would deal with that, but on the assumption that we were to prevail on appeal ‑ and that might be a brave assumption having regard to the questions I have been receiving ‑ we should get our costs, the appellant

should get its costs from the initiation of the proceeding before Justice Rangiah all the way to this Court on the basis that, if we are correct, it was either an unreasonable act for the Union to initiate the proceeding in the way we have discussed or Mr Lunt’s initiation of the proceedings unreasonable, and that would be the initiation of the proceeding and everything that followed, including our interlocutory application and the appeal to the Full Court and the appeal to this Court.

EDELMAN J:   Just before you sit down, a very brief question.  As you are aware, this Court has characterised abuse of process as giving rise to a number of different broad categories.  Is the best characterisation of the circumstances of this case one where the abuse of process that is alleged would be described as going to the integrity of the Court?

MR WOOD:   Yes, your Honour, in the way that we have discussed – that is, viewed by the public.  Unless there are any questions, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Wood.  Yes, Mr Williams.

MR WILLIAMS:   Your Honours, it is not now said that the appeal should be allowed because the notice of appeal below was not wide enough to encompass an attack on the primary judge’s paragraph 134 so I do not need to say any more about the matter that we referred to in paragraph 2 of our outline.

Going directly then to the abuse of process question in paragraph 3 of the outline, the Union could have brought the same action as Mr Lunt ‑ that was common ground below and it is common ground today – but no defence was available against the Union that was not also available against Mr Lunt.

It is, of course, quite inapt to use the word “defence” when speaking of discretionary factors because discretion, in its very nature, involves a whole range of circumstances that might be relevant and they are not in truth a defence at all.  But working through some of the possibilities that have been raised, the appeal right of the Union to a Full Bench of the Commission is contingent on obtaining permission, using the words of 604(1).

Mr Lunt had exactly the same right.  He was on the hypothesis in the 39B AD(JR) proceeding, a person aggrieved and he had exactly the same right as the Union.  So there was no difference there in the rights that were available.  But such a contingent right, one dependent on permission, does not preclude prerogative relief.  We refer in that respect to Dranichnikov, which we have supplied to the Court this morning, at paragraph [33] – I do not need to go to it.

Certiorari is, of course, discretionary, and will be refused “if good reason is shown”, and that is the words of R v Kelly; Ex parte Victorian Chamber of Manufactures, which we have also supplied this morning.  The Union’s acquiescence in the approval, and the delay in bringing a challenge, as well as its funding of the proceedings, which were of course admitted in the reply, will be relevant on Mr Lunt’s application and they would be relevant whether Mr Lunt was bringing the application independently, as he asserted, albeit with the Union’s financial support, or on behalf of the Union.  They would be relevant in each case, and we would say indeed equally so.

GORDON J:   So, Mr Williams, I put to Mr Wood ‑ and as I understood his submission, he did not accept it ‑ that absent knowledge of the fact that Mr Lunt had commenced this proceeding in a sense with the encouragement of the Union and would not have commenced the proceeding in his own name but for that encouragement.  So putting to the side that is not known, so assume for the moment he had commenced it as he had with one purpose, and that was to get his own right vindicated, would those matters have been relevant absent that knowledge?

MR WILLIAMS:   Absolutely.

GORDON J:   So your submission is that the things that would have been the subject of consideration by the Fair Work Commission, the fact that the agreement was approved, consented to by the Union, not the subject of challenge, would have all been considerations open and available?

MR WILLIAMS:   Yes.  We said that.  It was said, I think, “This has never been said before”, but it is in paragraph 28 of our written submissions, and we said the same thing on the special leave application.  The enterprise bargaining agreement is a statutory artefact.  It is the outcome of a statutory process in which there is a bargaining representative.  In this case, the Union was the default bargaining representative.  Mr Lunt pleaded in his initiating process that he was a long‑time member of the Union; he had been a member at all relevant times. 

If he brought a case independently, as he asserted, or indeed on behalf of the Union, it would equally be put at the end of the case, well, Mr Lunt, you have established that the approval was a contrivance obtained through the agreement of eight management employees who were not then working in stevedoring positions; you have established that the better off overall test was not satisfied, perhaps that it was not apparent on the face of the document that it was not satisfied; you have proved that there were other vitiating errors which deprived the Commission of jurisdiction, that is all well and good but why should you get relief in circumstances where there was a statutory process, the Union of which you were at the time a member, participated in this and signed off on the form, put in the form that said, we agree, and did not seek to bring a proceeding – why should you get relief?

And that would turn on, well, what was the quality of the Union’s acquiescence?  Was the Union on notice that these people were management employees, or did they simply have a list of names without their true positions being identified to the Union?  Was it apparent on the face of the agreement that the better off overall test was not satisfied?  Were these matters manifest, such that the Union’s approval was indeed an act of acquiescence on your behalf by your bargaining representative?

If those matters are shown, then of course he would fail.  If on the other hand it was shown that the Union was not ‑ had not acquiesced in the true sense, that is acquiesced with knowledge of relevant matters, then the position would be quite different.  But it would be no different if Mr Lunt brings the case independently, without any assistance from the Union, or whether he brings it on behalf of the Union.  The discretionary factors would be same, and they would focus on the statutory process that was involved in the EBA process.

And so, in our submission, in a sense that is a complete answer, the entire process taking many months and engaging substantial resources was misconceived.  There was no abuse here of the improper purpose kind.  Mr Lunt wanted this relief, albeit that the primary judge held that he wanted it for the Union.  So, there was no abuse of that kind, nor was there any bringing of the process of justice into disrepute because the factors would be considered in each case, and we would say equally in each case.  Mr Lunt, if anything, would face an additional discretionary hurdle which is that he is an individual seeking an outsider, seeking to challenge a statutory ‑ ‑ ‑ 

GORDON J:   I think I put those to Mr Wood.  It seems to me that it is the negative aspects that would go into the mix.  That is, that nobody else has complained, you have not got the Union before you – before the Court, supporting the application. 

MR WILLIAMS:   The Union would have been better placed from the point of view of discretionary relief than Mr Lunt.  So, the point is wholly misconceived.  Now, we know that the primary judge has made a finding to that effect, that is, that the Union brought it in order to avoid these discretionary offences.  If that is the case, then the Union was acting under a fundamental misapprehension because ‑ ‑ ‑

GAGELER J:   Well, that seems to be the entire case and the problem with it seems to be, it is said, the secrecy of that. 

MR WILLIAMS:   Well, we would say your Honour raised some of this.  In one of the examples that is given of course in Williams v Spautz, this is the plurality in Williams v Spautz, is that of the alderman who prosecutes another alderman because he wants him thrown off council.  Provided the first alderman is bringing the prosecution to secure the conviction of the second alderman, then there is no problem.  The alderman does not have to fill in a declaration when he initiates the process in the Local Court ‑ by the way, I am actually doing this because I do not like him, he is from the opposing faction or the opposing party and I want him thrown off. 

Nor when parties – your Honour the Chief Justice referred to parties in this Court choosing a particular litigant in constitutional cases.  In environmental cases, of course, it is commonplace that the most – that the party with the best standing, the party with the best claim to discretionary relief, perhaps a neighbour who says, look, I do not particularly care about this, I am too old to walk in the forest, or I do not like going to the beach, but I understand that the community is against this and I have the best case for discretionary relief or standing and I am willing to bring the case if you will fund me and indemnify me, provided the person genuinely seeks the relief, albeit for others, there is no difficulty.

Unions bring cases on behalf of their members from which the Union does not itself benefit.  Consumer organisations bring cases, defective product cases for consumers, even though they do not use the products.  There is no difficulty whatsoever in bringing a case on behalf of another and, in doing so, there is absolutely no obligation whatsoever to declare that it is being brought for an ultimate purpose of having the alderman thrown off the council or achieving a benefit that I, personally, am a bit indifferent about but that I appreciate is important to my neighbours and my family.

KEANE J:   Even in cases where an impecunious plaintiff is organised to be the plaintiff for a group making a claim for damages, there is no question about abuse of process.  It may well be that an order for costs should be made against the parties who actually stand to benefit.

MR WILLIAMS:   Yes.

KEANE J:   An order for security for costs might be made against them.  But all of that is falling a long way short of stopping the proceedings because there an abuse of process.

MR WILLIAMS:   Yes.  It is commonplace across the range of litigation.  So, in that sense, the entire process that was devoted to discovering this material below was misconceived because it would make, in my submission – first of all, putting it at its lowest, it would clearly be relevant on Mr Lunt’s independent application that the Union had taken steps in this process and the question of relief would turn on the quality of the Union’s acquiescence and what it knew at relevant times.  That would clearly be relevant on the independent application.  I, indeed, go further and say, it makes no difference on an application that is brought on behalf of the Union.

KIEFEL CJ:   Mr Williams, why do you say it would have been clear that Mr Lunt’s proceeding involved the Union?  Is that what you are saying?  It would have been clear from the outset that the Union was involved?

MR WILLIAMS:   He did in a sense.  From the outset, he said, I am a long‑time Union member.

KIEFEL CJ:   Yes, but that does not mean the Union is backing you ‑ ‑ ‑

MR WILLIAMS:   No.

KIEFEL CJ:   ‑ ‑ ‑ and has promoted you to bring the proceedings.

MR WILLIAMS:   No.  He did, of course, admit in the reply that the Union was funding him. 

KIEFEL CJ:   Yes.

MR WILLIAMS:   But, hypothetically, if neither of those things had been the case – if he had simply brought the proceeding – the fact that he was a Union member is, undoubtedly, relevant but he pleaded that at the outset – if he had brought the proceeding without saying anything about it and without any assistance from the Union, the discretionary factors would be entirely the same.

The judge would say at the end, there is a statutory process here and your individual claim – I think Justice Keane used the word “intermeddling” – your individual claim has to contend with the collective process that is mandated here and it is designed to catch people just like you who might be members of the Union at the particular time the agreement is reached but do not go to work in a relevant position under the agreement until later.  It is a collective bargaining process.  That is what it is all about.  That is how the process works and you need to show why your individual claim should now succeed where the Union does not bring such a claim.

If you were able to say, there was no acquiescence, there was no proper notification, matters of that kind, and it is clear that there is jurisdictional error that vitiates the decision, it would likely succeed, notwithstanding those collective matters.  On the other hand, if he could not show that, then he would fail.  So, that is the way in which we put that point.

So, in terms of where we focus in the judgment I should just briefly call attention to the particular passages of the primary judge that we – and this is on page 26 of the book.  Paragraph [133] is essentially introductory to [134] from about line 20 of the page:

VICT has been deprived of the opportunity to defend the proceeding on the basis that the MUA acquiesced in the approval that is now sought to be quashed, failed to exercise its right to apply for permission to appeal and delayed in bringing –

et cetera.  Now, we say, with respect, that is just not so.  It is that that the primary judge refers to in [134] as avoiding scrutiny of its acquiescence of the approval.  We say, of course, that there was no avoidance of scrutiny.

A great deal has been said about deceit and deception.  Of course, Mr Lunt pleaded that he was a long‑time Union member when he initiated the proceedings.  The Union had at that time ‑ and it was common knowledge to the parties ‑ brought a couple of applications on his behalf, explicitly on his behalf, in the immediately preceding period.  He admitted in the reply that the Union was funding his case.  His evidence was that as far as he was concerned he was controlling the proceeding. 

I have no doubt that he would say exactly the same thing today.  The primary judge on the whole of the evidence took a different view about whether he was controlling the proceeding but that did not make Mr Lunt a perjurer.  It simply reflected that there was other evidence that the primary judge gave greater weight to.  The judge formed a very negative view of his credit but that is commonplace in litigation and it does not go anywhere, in our submission, to show deceit on his part beyond the question of destruction of evidence. 

Now, the primary judge made a particular finding about the reason for that.  There may well have been other findings available as to what Mr Lunt meant by “there were things on there I did not want other people to see”, but the destruction of evidence was very properly, with respect, only ever put as a matter going to credit.  It was never asserted below ‑ and your Honours will find it in the written submissions that are in the second part of the book ‑ it was never asserted below that the destruction of evidence was something that rendered this proceeding an abuse, nor that it was a factor in rendering the proceedings an abuse.  Very properly again in the reply ‑ in 15, I think, in the reply it is expressly eschewed one more time by VICT.

KIEFEL CJ:   That might be a convenient time for the morning break.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

KIEFEL CJ:   Yes, Mr Williams.

MR WILLIAMS:   Yes, thank you, your Honour.  Your Honour, I think I have but two points left to make.  And the first really is in paragraph 11 of our speaking note, it is a drastic remedy, as your Honour Justice Gordon observed in Strickland, to stay a proceeding.  Plainly enough, the balance of that paragraph has been the subject of oral submissions, but perhaps I could just take the Court briefly to the key paragraphs of Strickland. It is found in volume 5 of the authorities book, page 1133, the citation is 266 CLR 325.

The first paragraph that I wish to go to is really paragraph 85 in the reasons of the plurality at page 360 of the CLR pagination, and at the end of paragraph 85, the plurality is applying a test of incurable prejudice.  Going next to paragraph 113, which is on page 372 of the CLR, Justice Gageler in paragraph 113, dissenting in the result but not on the principles:

The power of a superior court to stay its own proceedings . . . is a power to protect the integrity of its own processes.  The power is in that limited respect and to that limited extent a power to “safeguard the administration of justice”.

And then through to paragraph 115, we rely, really, on the second half of paragraph 115:

A permanent stay has not been shown now to be necessary –

and is therefore:

inappropriate.

Going through, then, to paragraph 203 in the reasons of Justice Gordon, dissenting in the outcome but not as to principles, in 203 her Honour refers to the remedy as a:

drastic remedy.  Often there are less drastic steps available –

And then in the last sentence of 204:

if a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute?

And then the conclusion at 265.  And then, finally, paragraph 264 and following in the reasons of your Honour Justice Edelman, under the heading “Less extreme measures to protect the integrity of the court”.  In 264:

Before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that could be taken to address any systemic incoherence that would be caused by a trail of the accused.  This must be considered because the court’s ability to protect its integrity is not confined to orders that grant a permanent stay –

And in 266 your Honour gives a couple of other examples of measures to reduce the unfairness, and in the final sentence on that page:

The first, commonly used in civil proceedings, is allowing the proceeding to continue but refusing to enforce a plaintiff’s right.

That is, of course, especially apt where the civil proceeding is one for a remedy which is discretionary.  No specific power of stay is necessary in that case, because all of the relevant factors are ones that can be addressed within the remedial discretion.

That is what I wish to say about the substantive issues in the proceedings.  I wish to say only a couple of brief things about costs.  First, the investigation that VICT places such reliance on was an investigation into something that was not, in law, an abuse.  Since motive is irrelevant, or ultimate purpose, motive, whatever term is to be used, concealment of motive or ultimate purpose was also irrelevant.  And the purpose arguments were misconceived, and so, indeed, are the administration of justice arguments.

Even if it is not the case that the discretionary factors are identical in the case of Mr Lunt bringing an independent case without any assistance, as against the Union, we would say there is no basis for concluding that there

was any difference in the discretionary factors that would be applied at the end of this case.

So, in those circumstances, the investigation into whether Mr Lunt was, as he thought, or as he gave evidence, controlling the case himself, or whether the Union was controlling the case, as the trial judge thought, albeit that the trial judge was not willing to find that the Union was exclusively giving instructions, he specifically found, contrary to what he was asked to find, that Mr Lunt was also giving instructions, there is no basis, in our submission, for a costs order.  A costs application is, indeed, as we point out in 12(b), extant before the primary judge, and his Honour should be left to rule on it.

Now, your Honours, unless there are matters with which I can assist, those are our submissions.

KIEFEL CJ:   Thank you, Mr Williams.  Anything in reply?

MR WOOD:   A very short reply, Chief Justice.  My learned friend, Mr Williams, said that the discretionary defences available against Mr Lunt were stronger than those available against the Union, and that proposition is wrong for three reasons.  The first, when the agreement was made and approved, in October 2016, Mr Lunt was not employed, he was not employed until some nine months later, and as a bargaining representative, the Union was not bargaining on his behalf or for him, he was not being represented in that process.

Secondly, relevantly to delay, having regard to the initiation of the quashing proceeding in early 2018, had it been initiated by the Union, the delay on their part would have been about 15 months.  In relation to Mr Lunt, the delay, on the evidence before the primary judge, was a few months.  The factors are different.

But lastly, thirdly, in relation to acquiescence, from the position of Mr Lunt in early 2018, true it is the acquiescence of the Union could be taken into account against him.  He would then be able to say, I was not employed, and this bargain was reached by the Union on behalf of those members that were employed at the time.

It would still be raised against him in the manner that Justice Gordon indicated.  But if it was raised against the Union in early 2018, it bites to a very significant degree because you not only have the acquiescence of the Union, you have at that point a change in position, which is open, and that change of position is the gravamen of the detriment that the appellant faces, and it is that which the Union was seeking to avoid.

And my learned friend is quite wrong to say that the discretionary defences available against Mr Lunt in that counterview would be much stronger than those available against the Union.  The contrary position was right, the primary judge was right to find that, and it was unchallenged that the Union was seeking to avoid that by engaging in this subterfuge.  If the Court pleases.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow for pronouncement of orders, and otherwise to 9.45 am.

AT 11.37 AM THE MATTER WAS ADJOURNED