Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

THE APPLICATION FOR LEAVE TO APPEAL 1 The Australian Building and Construction Commissioner (the Commissioner) has applied for leave to appeal a costs order made by the primary judge on 7 August 2018 (the costs judgment). Leave is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (see Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306; [2017] FCAFC 222 at [67] per Logan J, with whom Bromberg J agreed at [161], and at [170] per Charlesworth J dissenting, but not on this point). 2 To succeed in this application, the Commissioner must show that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by a Full Court and that substantial injustice would result if leave were to be refused, supposing the decision to be wrong (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ and Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97 at [13] per Dowsett, Tracey and Bromberg JJ). 3 For the reasons that follow, leave to appeal will be refused and the Commissioner will be ordered to pay the respondents' costs of this application.

THE FACTUAL CONTEXT 4 In his amended originating application, the Commissioner alleged that Mr Travers and Mr Hall, two Construction, Forestry, Mining and Energy Union (CFMEU) officials, and, by their conduct, the CFMEU itself, had contravened ss 500 and/or 348 of the Fair Work Act 2009 (Cth) (the FWA). In the Overview section of his liability judgment, the primary judge described, in the following terms, the background to, and issues that arose in respect of, those two sets of alleged contraventions and the Commissioner's failure to establish either contravention: 6 The critical issue in respect of the s 500 allegations is whether Mr Travers and Mr Hall were exercising or seeking to exercise a right under s 484 of the Act to enter the site for the purpose of holding discussions with an employee, Rodney Shane Duggan. The resolution of that issue depends on the evidence of the events in question. That evidence demonstrates that Mr Travers and Mr Hall visited the site solely for social purposes, to have a cup of tea with Mr Duggan, and were not exercising or seeking to exercise rights under s 484 of the Act. Thus, the allegations of contraventions of s 500 of the Act have not been made out. 7 The critical issue in respect of the s 348 allegation against Mr Travers is whether the Commissioner has established, on the balance probabilities, that Mr Travers said to David John White, in a phone conversation, that if he called the police he would be starting a war and it would be no different to what was done to Kane Constructions, that is to say, there would be disruption on the site. It has not been established on the balance of probabilities that the words were said. Hence the allegation of a contravention of s 348 of the Act has not been made out. (Errors in original) 5 The Commissioner's application proceeded to trial on 6 December 2016. After hearing evidence from the Commissioner's first witness and before the luncheon adjournment, the primary judge made the following observations about the Commissioner's case (set out at [6] of the costs judgment): The respondents relied on exchanges between counsel for the applicant and the Court at the hearing on 6 December 2016 in support of their claim for costs, namely: HIS HONOUR: So, Mr O'Neill, as at the moment, as the evidence stands, am I right in thinking that really the sole evidence that you have of these two men falling within section 500 as exercising rights under the division is the one reference to, "We're here because of some safety issue"? MR O'NEILL: With respect, your Honour, no. But there are - there is an issue of law involved in that answer. Our primary position, your Honour, is that by answering and speaking - with the intention of speaking to Mr Duggan, that the officials were exercising their right under section 484 to enter and hold discussions with a worker, albeit HIS HONOUR: Well, that might be so if they hadn't said that they're there for a cup of tea and in the context that's not - I'm just concerned, I'm very concerned to see that we had a presence onsite of two officials - for how long, half an hour or an hour - which has given rise literally to a federal case where you're in court with five supporters, we have four police attending, we have Mr Rose, we've had, like, a dozen people over what seems to be a very miniscule incident. Now, you know that I and the court hear a lot of cases involving the CFMEU. And there is, no doubt, a community concern which has given rise to the amendment which you announced earlier. But on the scale of things, it is a matter of some concern to me that we have this sort of resources committed to an incident of this nature. I mean, I'm wondering how this reflects on the Inspectorate's exercise of its prosecutorial discretion. And, I mean, it's early in the evidence and things might change. But, I mean, here - this is your first witness and we've explored to a limited extent where it goes. You know, there's court time as well as this whole group of people paid for by our society at the same time when in Victoria we're concerned about carjackings and other matters which the police might perhaps more profitably be involved in. You might just reflect on these things, and those instructing you might reflect upon them at lunchtime, because it's not a picture that I think does credit, at the moment as I see it - and I stress that, at the moment as I see it - uninstructed by argument. But I'm aware that you've got - you've put your best foot forward with this witness who was very honest and apparently explained why - how the matter came to arise. Well, anyway, those are matters for you to consider, and I would urge you to give careful consideration to them at the time that we break, because this is an area of the work of the court that I don't think should be trifled with. MR O'NEILL: I hear what your Honour says, and that consideration will be given, your Honour, and I will discuss it with those instructing me. Can I make a couple of points, though, that arise from it. The first is that - without wishing to argue the point now - my submission will be that even if it was a social purpose, that still fits within the meaning of discussions pursuant to section 484. And HIS HONOUR: Well, I wouldn't want you to think that you could have a lot of confidence about that argument. I will think about it and consider it, but MR O'NEILL: Yes, I hear what HIS HONOUR: it's not immediately attractive. MR O'NEILL: I hear what your Honour says. Secondly, in any event, there is some evidence, as your Honour has pointed out, one statement only, but some evidence from this witness as to the possibility that there was an industrial representational aspect to the discussions. But, thirdly, your Honour, there is also the section 348 allegation which we haven't yet got to. That will be the subject of HIS HONOUR: Well, that was a latecomer, and I suspect for good reason. I mean, look, you can weave a case around facts. But, you know, I'm looking at the central reality of this case. It was an hour onsite. There was no aggravation, no stoppage of work, between people who got on well. I mean, really and truly, if this is what the Inspectorate thinks is worthy of its attention I would be amazed. Because, you know, its work is serious work in serious cases. And a dozen people should not, I think, from what I've presently heard, have been taken up with a case within these confines. But, you know, look, I throw out at the moment an impression, and I'm keen to do that so you understand my thought processes as we go along. It's not a final position. And I'm perfectly happy to listen to what you say. But it might be that those impressions strike a chord amongst those instructing you. And they should have the opportunity to consider it. Because, I mean, it is the way my mind is thinking. MR O'NEILL: Yes. HIS HONOUR: And, I mean, I might change. But if I don't, then there are consequences for a judgment which, you know, has this sort of view. MR O'NEILL: Yes. Your Honour, I hear what your Honour says. I don't propose to take it further with your Honour at the moment, but would ask not to be seen by not doing so as necessarily accepting HIS HONOUR: Of course. And, as I make quite clear, I will listen to what you say, but it's valuable, I hope, for you to see the way I'm presently thinking. I mean, it might be when the respondents get into the witness box, if they do, that the case changes complexion altogether. I mean, you might cross-examine them in a way which demonstrates that my views are perhaps not well founded. MR O'NEILL: Yes. I would just make this point in terms of resourcing, your Honour, which doesn't apply to the court case. But in terms of what happened on the day, the occupier had lawfully asked these officials to leave and they refused to leave. And my friend didn't cross-examine that that wasn't the case. Then the police are called. But, with respect, if they're refusing to leave, what option does an occupier have but to call the police when someone is either trespassing or exercising their rights in an unlawful manner? I ask that rhetorically, your Honour. I don't expect your Honour to answer the question. But HIS HONOUR: I think that if Mr Naughton had been left to his own devices without a protocol, he would have said, "Have your cup of tea and then F off," and no one would have heard another word about it. But there's a background, which he explained, where McConnell Dowell apparently, so far as the evidence currently is, was forced to make a stand. And it makes a stand in a case of this nature and it ends up in court. I mean, we have enough CFMEU cases without every mate visiting another for a cup of tea coming to our court. MR O'NEILL: I have an instructor in court from the Inspectorate - or, rather, the Commission, your Honour, and HIS HONOUR: Well, I hope he or she will contemplate what I've said. And, as I say, it's a view that's forming at the moment. It might be dispelled with your next two witnesses, it might not. If it's not, then it has consequences about how a judgment will read. That's all. MR O'NEILL: Yes, your Honour. HIS HONOUR: I think the community needs to know if a case is brought to court what the circumstances are. (Emphasis added) 6 After the luncheon adjournment, the Commissioner's counsel elected to proceed with the trial. Thereafter the primary judge heard the remainder of the evidence, including that given by the respondents' witnesses, and then adjourned to receive written and oral submissions. The hearing concerning the latter was held on 10 March 2017. In the meantime, the parties exchanged letters in which they made, what were expressed to be, Calderbank offers (Calderbank v Calderbank [1975] 3 All ER 333). Those offers did not result in a resolution of the Commissioner's application. 7 The primary judge delivered his liability judgment on 26 March 2018. As has already been mentioned, in that judgment his Honour rejected both sets of alleged contraventions and dismissed the Commissioner's application. In the penultimate paragraph of his reasons for judgment, consistent with the observations he had made on 6 December 2016 above, his Honour concluded by saying: The law has always had a fondness for expressions in Latin. In that vein, following Cicero in De Legibus, this case may be accurately described as excitare fluctus in simpulo. The expression "excitare fluctus in simpulo" translates to "waves in a ladle". It is the analogue of the aphorism "a storm in a teacup". 8 Subsequent to the delivery of the liability judgment, the respondents sought costs against the Commissioner. The Commissioner opposed that application. Negotiations ensued relating to that question. As is self-evident from this application, those negotiations did not result in a resolution of this costs issue. Accordingly, on 7 August 2018, the primary judge proceeded to hear oral submissions on the question of costs. As is already recorded above, his Honour delivered the costs judgment on the same day.

THE COSTS JUDGMENT 9 The primary judge began his reasons for judgment by summarising what it was that the substantive proceedings related to (at [1]). He then quoted ss 570(2)(a) and (b) of the FWA (at [2]) and noted that the Commissioner had failed on all the contentious issues raised by his application (at [3]-[4]). Next, his Honour outlined the two alternative grounds upon which the respondents sought costs, namely "… the applicant either instituted the application vexatiously or without reasonable cause or continued to the proceeding unreasonably, causing the respondents to incur costs". He then quoted from the transcript of the trial on 6 December 2016 (at [6], see above at [5]). After recording the terms of the exchange of Calderbank offers (at [7]-[9]), the primary judge rejected the respondents' first alternative ground in the following terms: 10 Section 570(2)(a) is concerned with the institution of proceedings. It utilises two concepts, namely, the unreasonable institution of proceedings and the vexatious institution of proceedings. Proceedings may be instituted vexatiously even if not unreasonably. It is not necessary to examine the distinction in this case. 11 When the proceeding was instituted, the applicant had witnesses whose evidence, if accepted, would have established the contraventions alleged. Those contraventions, although minor, were not such that their pursuit by the applicant could be seen as vexing the respondents … 10 His Honour then turned to consider the respondents' second alternative ground, which relied upon s 570(2)(b). He began by remarking on the change that occurred at the conclusion of the trial on 6 December 2016 as follows: 11 … However, the situation was different when the evidentiary hearing concluded on 6 December 2016. By then the applicant had observed the course of all of the evidence and also had some preliminary observations from the Court. The applicant responded to those circumstances by offering to settle the proceeding on the basis that the case be dismissed or discontinued with no order as to costs. 12 The question arises whether at that point there was an unreasonable act of the applicant which caused the respondents to incur costs pursuant to s 570(2)(b) of the Act. It is noteworthy that the concept of vexation does not apply in the case of circumstances arising under s 570(2)(b). 11 His Honour answered the question he posed at [12] in two parts: the period from 6 December 2016 to 10 March 2017 (at [13]-[17]); and the period from 10 March 2017 (at [18]-[22]). In the process, he summarised the Commissioner's submissions with respect to the operation of s 570, highlighting "the need for caution in applying s 570" and citing Construction, Forestry, Mining and Energy Union & Ors v Clarke [2008] FCAFC 143 at [29] as authority for the need to "be careful not to exercise the discretion with too much haste" (at [15]). His Honour also noted the Commissioner's submissions that "s 570 was available only in exceptional cases" and that it "reflected the policy of the [FWA] that generally, in cases subject to the section, no costs should be ordered" (at [16]). 12 In providing his answer with respect to the first period referred to above, His Honour placed particular emphasis on the fact that, after 6 December 2016, the respondents continued to incur costs, including drafting closing submissions and, despite knowing this was occurring, the Commissioner's solicitors did not offer to pay those costs in their letter dated 25 January 2017. This conduct lead him to conclude that (at [14]): … In the circumstances, it was unreasonable of the applicant not to offer to pay those costs. The result was that the respondents were put to the expense of finalising the written submissions and appearing on 10 March 2017 to make oral submissions. 13 Then, after noting the Commissioner's submissions on the operation of s 570, which have already been summarised above (at [11]), his Honour reiterated the above sentiments, as follows (at [17]): However, in the circumstances prevailing on 25 January 2017, the action of the applicant in failing to offer costs to that date was an unreasonable act which caused the respondents to incur further costs. For that reason, the applicant should pay the respondents' costs incurred from the date after the conclusion of the evidentiary hearing being 7 December 2016 until and including 10 March 2017 when oral submissions were finalised. 14 With regards to the second period, the primary judge first recorded a summary of the negotiations that occurred between the delivery of the liability judgment on 10 March 2017 and the costs hearing on 7 August 2018 (at [18]-[20]). Having done so, his Honour came to the following conclusions (at [23]-[24]): 23 In my view, the unreasonable refusal of the applicant to pay the costs incurred by the respondents from 7 December 2016 until and including 10 March 2017 was sufficiently connected to the need for the application for costs that the applicant should pay the respondents' costs of and incidental to the application for costs. However, there is no basis for such costs to be awarded on an indemnity basis. 24 The orders for costs which will be made are for the purpose of compensating the respondents for costs incurred. They do not punish the applicant for bringing the application.

THE ALLEGED ERRORS IN THE COSTS JUDGMENT 15 It should first be noted that the Commissioner did not seek to challenge the manner in which the primary judge had exercised his discretion to award costs and, instead, this application for leave to appeal was confined to three alleged errors made by the primary judge. In his written and oral submissions, the Commissioner identified those errors in the following terms: (a) an error in the construction of the phrase "unreasonable act or omission" in s 570(2)(b) of the FWA; (b) an error in finding that the applicant's Calderbank offer was an "unreasonable act"; and (c) an error in being satisfied that the applicant's Calderbank offer "caused the other party to incur costs". 16 In support of these alleged errors, the Commissioner contended that, at [14] and [17] of the costs judgment, the primary judge did not state the correct test for unreasonableness under s 570(2)(b) of the FWA. He contended that the primary judge had instead, without explanation, held that his Calderbank offer (set out at [7] of the costs judgment) was unreasonable. Further, he contended that the primary judge had "asserted his own personal and unexplained view as to what is an 'unreasonable' act and would have been a reasonable Calderbank offer (namely, including an offer of costs for the period 6 December 2016 to 25 January 2017)". He also contended that his failure to offer to pay the respondents' costs between 6 December 2016 and 25 January 2017, or during the exchange of offers that occurred prior to the costs hearing in August 2018, did not themselves cause the continuation of the proceeding, or cause the respondents to incur further costs. 17 With respect to the comments the primary judge made on 6 December 2016, the Commissioner highlighted the repeated qualifications his Honour expressed during those comments, including that he was "uninstructed by argument", that he was providing "an impression", and that it was not "a final position". He also referred to some other comments the primary judge made later on 6 December 2016 to the effect that he might still come to "a different view" and that "it may well be you're able to persuade me". The Commissioner also contended that the question of unreasonableness had to be assessed prospectively and that, at the time of his solicitors' letter dated 25 January 2017, "there was litigation risk for all parties on whether the Court would find the alleged contraventions proven". Finally, he sought to emphasise that the issues raised in the substantive proceeding involved "finely balanced factual contests between opposing credible witnesses, and a legal question that had not been previously decided".

NONE OF THE ALLEGED ERRORS EXISTS 18 The short answer to the Commissioner's first alleged error is that the primary judge did not attempt to construe the phrase "unreasonable act or omission", and nor did his Honour state any test for unreasonableness under s 570(2)(b). Accordingly, he could not have committed any error in a construction he did not make, nor in a test he did not state. The primary judge's failure to undertake either of these tasks most likely stemmed from the fact that he was well aware that the word "unreasonable", which is central to the phrase "unreasonable act or omission" is not capable of precise definition and is "inherently sensitive to context" (see Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713; [2018] HCA 30 (SZVFW) at [59] per Gageler J). Instead of undertaking these superfluous tasks, the primary judge examined the context or circumstances of the Commissioner's conduct of this proceeding to ascertain whether that conduct could be characterised as unreasonable. This approach was entirely appropriate because, as Gageler J observed in SZVFW at [59], "[i]n the discernment of unreasonableness, '[t]here are no talismanic words that can avoid the process of judgment'" (footnote omitted). 19 The primary judge undertook that process in the costs judgment. It is quite apparent from his Honour's reasons for that judgment that he did so having regard to the provisions of s 570(2) and the relevant principles. His starting point was his exchange with the Commissioner's counsel on 6 December 2016. It is perfectly clear from the transcript of that exchange that his Honour had reached the firm, but preliminary, view that the Commissioner would be trifling with the Court if he were to continue pursuing, what his Honour described, among other things, as "a very miniscule incident". The qualifications his Honour expressed in the course of those remarks do not assist the Commissioner because they were essentially statements of the obvious. Specifically, that if the Commissioner persisted in his pursuit of the "miniscule incident" in issue, he would, as he was duty bound to do as a judicial officer, consider the matter according to law and bring an open and fair mind to its determination. In due course, that is what his Honour did. That, in turn, resulted in the Commissioner's case being dismissed. Even if the Commissioner had succeeded in his application, those unremarkable statements would not have detracted from the force of his Honour's comments on 6 December 2016. 20 It also does not assist the Commissioner to claim, as his counsel did on numerous occasions and in various forms at the hearing of this application, that the Commissioner had only "just lost" in the liability judgment. As that judgment shows, the Commissioner failed to discharge his onus to prove, on the balance of probabilities, that either of the contraventions occurred as he claimed they did. By any measure, that means that the Commissioner lost the litigation. 21 The Commissioner's second alleged error reflects a similar misconception of the judgment task that was undertaken by the primary judge. His Honour did not make an assessment of the reasonableness of the Commissioner's Calderbank offer dated 25 January 2017 by reference to Calderbank principles. Instead, having regard to the Commissioner's awareness of the fact that the respondents were continuing to incur costs after 6 December 2016, his Honour quite properly took account of the terms of the offer contained in that letter. This conclusion is reinforced by the fact that his Honour's reasons at [11]-[17] (in particular) are a consideration of the impact upon the respondents of the Commissioner's pursuit of the litigation after the comments made on 6 December 2016 up to 25 January 2017. Of concern to the primary judge was the absence of any attempt on the part of the Commissioner to address the view previously expressed as to whether the case was anything other than one directed to a "miniscule incident" and one not "worthy of … attention". It was within that context that the primary judge considered the offer made on 25 January 2017 and concluded that the failure in that offer to pay the costs "to that date was an unreasonable act which caused the respondents to incur further costs". 22 As to the claim that the primary judge had asserted his own "personal and unexplained view as to what is an 'unreasonable' act", this ignores his Honour's detailed and careful consideration of the relevant circumstances bearing on the Commissioner's conduct and his explanation as to why he came to the view that that conduct was, in the circumstances, unreasonable. He did that over 11 paragraphs of the costs judgment (from [14]-[24]). In essence, the primary judge found that, notwithstanding the comments he made on 6 December 2016, there was no indication at any stage that the Commissioner had developed any insight in respect of the triviality of the claim he was pursuing, nor the costs burden he was imposing on the respondents in the process. 23 The third alleged error is rejected for similar reasons. The primary judge did not find that the Commissioner's Calderbank offer caused the other party to incur costs. Instead, he started from the uncontroversial proposition that the Commissioner must have been aware that the respondents would be incurring costs for so long as he, the Commissioner, continued to pursue his claim against them. In that assessment, his Honour had regard to the negotiations leading up to the closing submissions on 10 March 2017, and leading up to the costs submissions on 7 August 2018, to determine whether they evidenced any change of attitude on the Commissioner's part to that which he had adopted after the luncheon adjournment on 6 December 2016. If, for example, the Commissioner had, in the course of those negotiations, offered to file a notice of discontinuance of the proceedings and to argue any question of costs that may arise, that offer would most likely have weighed against a conclusion that his conduct was unreasonable. Regrettably, no such offer was ever made by the Commissioner.

THE APPLICATION FOR LEAVE TO APPEAL IS REFUSED 24 For these reasons, none of the Commissioner's three alleged errors in the costs judgment has any merit. It follows that the costs judgment is not attended by sufficient doubt to warrant it being reconsidered by a Full Court. His application for leave to appeal must therefore be dismissed. 25 Unsurprisingly, the respondents have sought an order for the costs of this application. The Commissioner has again sought to rely upon the provisions of s 570 of the FWA to avoid that order. By its terms, s 570(1) expressly includes an appeal. Other than by reference to the constraints imposed by s 570(2), no submission was advanced on behalf of the Commissioner that s 570 precluded an order for costs being made in respect of an application for leave to appeal. Submissions were directed to the exercise of an accepted discretion to make an order for costs in respect of the present application. 26 Having concluded that there was no error in the primary judge's conclusion that the Commissioner had acted unreasonably in this proceeding since 6 December 2016 and given that this application reflects a continuation of that course of conduct, it necessarily follows that this application is tainted by the same unreasonableness. That unreasonableness, coupled with the obvious inference that the respondents must have incurred costs in opposing this application, is sufficient for this Court to conclude that the constraints imposed by s 570 do not apply. Hence the Commissioner should pay the respondents' costs of and incidental to this application. In reaching this conclusion, account has been taken of the apposite principles, including those summarised by the primary judge in the costs judgment (see at [11] above). 27 The orders will be:

1. That the application for leave to appeal filed 22 August 2018 is dismissed.
2. That the applicant pay the respondents' costs of and incidental to that application to be taxed failing agreement. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick, Reeves and O'Callaghan.