Bahonko v Sterjov

Federal Court of Australia (Full Court)|2008-03-07|Before: Buchanan JJ

REASONS FOR JUDGMENT THE COURT: 1 The judgments under appeal (Bahonko v Sterjov [2007] FCA 1244 and Bahonko v Sterjov [2007] 163 FCR 318) dealt with applications under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act') alleging unlawful racial discrimination and under the Workplace Relations Act 1996 (Cth) ('the WR Act') alleging unlawful dismissal and other unlawful conduct. The claims based on statute were dismissed although the appellant was found, having regard to the pleadings, to have been defamed. She was awarded $50 nominal damages in the absence of evidence of harm. Although costs of the main proceedings and of various interlocutory applications were, in part, awarded against the appellant she was afforded a substantial measure of protection against costs as a result of the operation of s 170CS(1) of the WR Act (as it applied at the relevant time). 2 To reach his conclusions the primary judge undertook a painstaking examination of the evidence, including an assessment of the credibility of witnesses. The proceedings took many days to hear. They are ones in which the primary judge had the clearest of advantages over an appeal court in assessing the evidence and drawing conclusions. 3 Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (as trustee for the Baker Family Trust) (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error. 4 The main judgment under appeal is long and thorough. It appears to us that the appellant had the benefit of a patient and conscientious consideration of all her complaints and of the admissible evidence upon which she relied to advance her claims. The fact that the proceedings did not result in a more favourable outcome for her reflects the character and content of her case at first instance rather than any error in the approach taken by the primary judge. Any attempted summary of the factual matters with which the judgment deals would be inadequate. Those interested should refer directly to the judgment at first instance for a full understanding of the case. It is enough to record that the events in question occurred within days of the appellant commencing to work in a child care centre and kindergarten. She was there in charge of children aged 4 to 5 years. She commenced her employment on Monday, 7 November 2005. Her conduct on Thursday, 10 November 2005 resulted in her dismissal the following day. We can see no reason appearing from the judgment dealing with questions of liability, or elsewhere, to conclude that the primary judge made any error in his findings that the circumstances revealed by the evidence did not support the claims which the appellant had brought (except, technically, in respect of the claim for defamation which was, on the view taken by the primary judge, inadequately defended in the pleadings). Error was certainly not revealed by any matter advanced on the appeal by the appellant. 5 The second judgment under appeal dealt with costs. Again we see no error arising from the judgment or otherwise. 6 Ms Bahonko is an unrepresented litigant. Normally, the Court attempts to ensure that a circumstance of that kind does not lead to unnecessary disadvantage. However, it is appropriate to make it clear that such a circumstance brings no special privileges and cannot justify lack of proper attention to the interests of other parties. It provides no reason to permit procedural or other conduct outside the standards of behaviour reasonably expected when a litigant exercises a right of access to this Court and its processes, whether at first instance or on appeal. Those norms were exceeded by a large margin in this appeal. 7 The appeal was heard on 28 February 2008. After hearing oral argument, to the extent it could be said to be related to our task (that is to say, to deal with the appeal) we dismissed the appeal and ordered that the appellant pay the respondents' costs. What follows are our reasons for making those orders.

The Amended Notice of Appeal 8 The appellant proceeded upon an Amended Notice of Appeal. It was manifestly unsatisfactory, as had been the original Notice of Appeal. It sought, so far as the main judgment was concerned, to challenge virtually every conclusion and many other observations of the primary judge. It may fairly be said, as the appellant herself said in a written submission to which we will come, that her contention was that 'all findings of fact are incorrect except for one instance of defamation which he [the primary judge] had to acknowledge'. The grounds of appeal were stated as follows: '2(a) This is a Constitutional matter. - slavery - systemic criminal discrimination - inequality in the face of law - racism - denial of the fundamental right to appeal in previous applications - breach of the adversary legal system 0principles - abandonment of natural justice by the Courts - moral perversion ant [sic] anti-justice in the legal system - unconstitutional Acts: WRA or its perverse application - criminal matters in civil proceedings - refusal of jurisdiction - lack of judiciary independence - political duress - State and Commonwealth parties to the proceedings - Contravention of the international conventions on human rights - Discrimination and psychological violence by proxy (b) Non-consented trial (c) Abuse of the Court processes & psychological abuse of the appellant. (d) Final judgment fixed prior to trial (e) Demonstrated & obvious bias of [the primary judge] (f) Contempt of the Court (g) Conflict of Interest affecting [the primary judge] and [counsel for the respondents] (h) Criminal offences in the administration of justice (i) Malice on the part of [the primary judge] (j) Wilful & corrupt perjuries by the Defendants & their witnesses (k) Defamations & racial vilification of the appellant in the face of the Court. (l) Miscarriage of justice. (m) Travesty of Justice. (n) Perversion of justice. (o) Wilful omissions of facts & evidence, misrepresentation of facts, evidence & racial vilification of the appellant in the Reasons for Judgement of 15 August 2007. (p) Multiple errors of facts in the Reasons for Judgment of 15 August 2007. (q) "Bizarre", vexatious & frivolous conclusions & orders ($50 damages ordered). (r) Demonstrated pattern of cover up for and protection of the offenders' witnesses & Defendants and lack of moral & judiciary responsibility in relation to the victims; applicant & the children under the Defendants care. (s) Decline to perform fully his judiciary function & role by [the primary judge] (t) Decline by [the primary judge] to deal with the matters, which arose, in & from the proceedings thus became an integral part of the proceedings. (u) Protection of sources of defamatory information & incitement of violence (both physical & psychological) by the Defendants & [the primary judge]. (v) Demonstrated service & subservient to the corrupt Executive Governments (VGS) & [counsel for the respondents] and failure to serve justice by [the primary judge] (w) Final judgment obtained by deception by [counsel for the respondents]/Appearance of [a witness] in the witness box on 30 July 2007. (x) [The primary judge] upheld the slavery status of the appellant. (y) Corruption involving the primary judge, his associate [the primary judge's associate], legal representatives of the Defendants & other parties. (z) Misconduct of the primary judge & unfitness of the primary judge to perform judiciary function with an application being made to the both houses of the Australian Parliament for his removal.' 9 The only grounds which, in some measure, approach an intelligible form of challenge available in an appeal are grounds 2(d), (e), (i), (y), (z) (which suggest bias and other forms of failure to observe judicial standards), 2(p) (which is an unparticularised allegation of factual error) and 2(q) (which, on a generous reading, challenges the damages awarded for defamation). Otherwise, in our view, no cogent attempt can be discerned to identify anything that might, even generously, be regarded as appellable error. 10 So far as the Amended Notice of Appeal suggested any failure by the primary judge to adhere to usual standards of judicial conduct the allegations were serious ones. They are properly to be regarded as scandalous unless there was a firm foundation for them. Such a foundation is not to be found in the fact that a litigant, like the present appellant, is dissatisfied with the outcome of litigation she has commenced. The necessity for such a foundation should not be disregarded either by reason of the circumstance that a litigant is unrepresented. The identification of error as part of the appeal process (if necessary in plain terms so that an appeal bench is alert to the gravity of an otherwise properly expressed allegation) does not provide a licence to lay on the Court's files extravagant, unsupported (and, in other circumstances, defamatory) accusations of malfeasance. There was no foundation of any kind identified for these aspects of the Amended Notice of Appeal. 11 The generalised assertion of factual error raised no case for attention in the form it was advanced. No more substantial support for it was forthcoming. 12 The suggestion of error in the quantification of damages for defamation was made again, in very general terms, in oral submissions by the appellant and we shall deal with it in that context. 13 No suggestion was made, in the Amended Notice of Appeal, of any specific error concerning the award of costs (although the appeal was brought also against the judgment awarding costs). This subject was mentioned, however, in oral submissions and we will return to it also in that context. 14 The Amended Notice of Appeal asserted that questions of law arose for attention in the appeal. They were identified as follows: 'Questions of Law:

Whether trial run at the date non-consented by the applicant & when applicant ill & exhausted can be valid?
Whether it would be abuse of Court process to conduct trial when the final judgment fixed already?
Whether it is lawful to run trial if the final judgment is precluded entirely by the pre-trial orders and value judgments?
Can trial be valid without the proper parties to trial?
Is it lawful to refuse jurisdiction which is applicable and relevant or can be applicable and relevant?
Can privilege be claimed for a criminal conduct and criminal defamation within the proceedings?
Can criminal defamation be a lawful or a proper Defence or is it a contempt of the Court?
Are criminal means to win trial compatible with justice?
Whether protection of Sources of defamatory information & incitement of various form of violence against the appellant in these proceedings amounts to Contempt of the Court?
Whether final orders obtained by deceptions can be valid?
Whether demonstrable corruption of the primary Judge and an obvious bias demands a new trial expeditiously?
Whether defamatory & vilifying matters should be removed from the Reasons for judgments immediately upon the 1st reporting by the Appellant?
What portions of new, extended damages for defamation published in the Reasons are due to the Defendants and what Portion is due to the Federal Court of Australia and the Commonwealth?' 15 Apart, perhaps, from the third last item, no relevant question of law was identified by this list. 16 The respondents elected to challenge the Amended Notice of Appeal directly rather than become embroiled in any answer to its contents. They filed and served a written submission putting in issue whether any case had been raised for them to answer. They were correct to do so. No such case had been raised.

The appellant's written submissions 17 The appellant filed written submissions. They made various procedural complaints which do not need consideration here. The part of the written submissions which comes closest to addressing any issue relevant to an appeal, was as follows: '2.1 Constitutional Issues 2.1.2 Direct contravention of the Constitution. - racial discrimination of appellant in the face of the Court 2.1.3 Contravention of the Constitution by the relevant sections of the relevant Acts 2.1.4 Unconstitutional application of the relevant Acts 2.2 Jurisdictional issues 2.2.1 If judiciary refusal to evoke relevant jurisdiction can be justified. 2.2.2 Acquired jurisdiction of the Federal Court 2.2.3 Original jurisdiction of the Federal Court 2.3 Contempt of the Court by the Respondents, their witnesses & legal representation 2.3.1 Direct contempt 2.3.2 Contempt as willfully deposing false evidence 2.3.3 Intimidation of witness-appellant 2.3.4 Deception before the High Court Judge by [the respondents' counsel] in relation to adjournment of the primary trial 2.4 Criminal aspects of the matter 2.4.1 Willful perjury 2.4.2 Criminal wilful damage & assault on appellant & her house 2.4.3 Criminal defamation 2.4.4 Incitement of violence. 2.4.5 Willfully taking part in a larger commission of crimes. 2.5 Fraud 2.5.1 Common law fraud 2.5.2 Applicability of a Trade Practices Act 2.6 Non-consented trial 2.6.1 If emotional abuses of the appellant in the face of the Court can be justified. 2.6.2 Liability for abuse in the face of the Court 2.7 Conflict of interest 2.7.1 Whether Barrister working for the Federal Court should represent a party in that Court. 2.8 Extraneous factors determined outcome of the matter. 2.8.1 Interference by the Victorian Government Solicitors 2.9 Errors of the primary judge's finding of facts The errors are demonstrated in the Reason for Judgment of 15 August 2007 & 31 August 2007 & other judgments in which documents [the primary judge] merely repeats false deposition by the Defendants & their witnesses. I informed [the primary judge] that those depositions are false & defamatory. Further, I gave evidence demonstrated falsity of those false depositions, therefore [the primary judge's] reproduction of those perjuries statements in the public records cannot be excused & constitute a wilful act to cause further damages to me & to do his part in depriving me of any chances of employment & means for living. It can be generally stated that [the primary judge] all findings of facts are incorrect except for one instance of defamation which he had to acknowledge. Such total failure to find the truth & acknowledge facts & evidence points to the existence of special reasons, circumstances & condition for a travesty of justice. Those must be explored. 2.10 [What appeared here concerned accusations against other judges of the Court which have no present relevance] 2.11 Failure to call essential witness [a potential witness] 2.12 Inadmissibility of certain evidence & incompetence of witnesses. 2.12.1 Allegations & defamations are not evidence. 2.12.2 [Two witnesses] demonstrated mental health problems & not possible to alter confusion 2.13 Lack of a proper analysis of evidence 2.13 Procedural unfairness 2.14 Costs issued in contravention of the WRA thus demonstrate punishment, intimidation & abuse of me. 2.15 Failure of the judge to duly consider the Constitutional issues & add parties to the proceedings. 2.16 The crucial piece of evidence - A letter from the Minister for Children in response of my letter of 14 Nov. 2005 refused to be admitted to evidence. 2.17 Failure to call back witnesses to answer contradictions in their statements.' 18 Only 2.9, 2.13 and 2.14 raise, even obliquely, any question of possible relevance for the appeal. The remarks made earlier apply to them in equal measure. The written submissions were, both by their form and content, also highly unsatisfactory. There were further parts of them which we directed be removed from the Court file. 19 In our view, having regard to the matters we have mentioned already, the Amended Notice of Appeal and the written submission each represented an abuse of the processes of the Court.

The appellant's oral submissions 20 At the hearing of the appeal the appellant appeared to think she would be permitted to proceed upon a path of her own and to repeat her complaints and allegations as she wished and without restraint. She was wrong. We required her to identify, if she could, any appellable error which might warrant attention on the appeal. From the discussion which ensued, which was not without its own difficulties, only the following matters emerged which required attention:

a complaint that $50 only was awarded as damages for defamation;
an assertion that the award of costs was made contrary to the WR Act;
a contention, as we understood it, that the respondents' case below was rendered entirely unsustainable by their failure to call a particular witness. The first and third of these arguments is without merit. The second is incorrect.

Damages 21 During the course of proceedings initiated by the appellant to challenge the termination of her employment on 11 November 2005, the parties attended a conciliation conference before a Commissioner of the Australian Industrial Relations Commission ('the AIRC'). The Commissioner was, at the conciliation conference, handed a report made about the appellant's conduct by a staff member of the child care centre on 11 November 2005. The primary judge recorded (at [126]) that the imputations in the report, which he accepted were defamatory, were true. Nevertheless, although the appellant had appeared to make a competent claim of defamation the respondents had not, by their pleaded case, raised a defence either of truth or qualified privilege. The trial judge said: 'The applicant was entitled to go to trial upon the assumption that the only issues that arose between the parties were publication and defamatory meaning. The respondents made no attempt to deal with the applicant's evidence of publication, and, by their conduct of the case in other respects, left no doubt but that the report, in relevant respects, would have lowered the applicant in the estimation of right-thinking members of society. In the circumstances, I consider that the applicant has made good her claim in defamation against La Kosta, and I shall return to the question of damages later.' 22 When he dealt with the question of damages his Honour found that showing the report to the Commissioner of the AIRC had not caused damage to the appellant. He referred to the fact that the conciliation conference before the Commissioner was not a public occasion. He concluded (at [185]): 'I consider that the probability that the publication of the report to the Commissioner had, of itself, an effect upon the outcome of the conciliation proceeding which was negative for the applicant is negligible.' The appellant was awarded nominal damages of $50. 23 The appellant therefore succeeded on a pleading point which she had not identified. A defence was readily available. The award of nominal damages gave full credit to her technical success on this issue. In the circumstances identified by the trial judge more was not warranted. So far as the appeal is concerned the appellant's complaint about this matter has no substance. 24 The respondents filed a cross-appeal which challenged the award of even nominal damages and the primary judge's conclusion that a case of defamation had been established on the evidence. However, they indicated in their written submissions that the cross-appeal was not pressed. It is therefore not necessary for us to express any view about the primary judge's findings on those issues. The cross-appeal should, however, be formally dismissed. We will make that order.

Costs 25 The primary judge dealt with the question of costs in the second judgment under appeal. He was conscious of the operation of s 170CS(1) of the WR Act. By the time of the main judgment two different proceedings had been consolidated. One was an application under the HREOC Act. The other was a proceeding under the WR Act which included claims in the Court's accrued jurisdiction. The proceedings were consolidated on 6 November 2006. The primary judge accepted (following Seven Network (Operations) Limited v Media Entertainment and Arts Alliance (2004) 148 FCR 145) ('Seven Network') that the separate federal proceedings under the HREOC Act were not directly affected by the restriction on costs put in place by the WR Act. Accordingly he awarded the respondents their costs of proceedings under the HREOC Act before consolidation. Costs of two notices of motion brought in the HREOC Act proceedings before consolidation were also awarded, in part. An award of three-quarters of the costs associated with a notice of motion filed on 22 September 2006 was based on relative success and failure in relation to that notice of motion. Costs of a notice of motion filed on 27 October 2006 were also awarded on conventional grounds. None of the matters so far referred to attracted the possible operation of s 170CS(1) of the WR Act. 26 So far as the consolidated proceedings after 6 November 2006 were concerned the primary judge said the following: 'From my observation, the issues which occupied the parties both at trial and during the interlocutory stages of the proceeding were either wholly undifferentiated as between the two statutory bases of jurisdiction, or about equally referable to each. In all the circumstances, I think that justice would be done, and that the true costs of the respondents with respect to the HREOC Act claims would be reflected, fairly albeit approximately, if I were to give them half their costs incurred subsequent to the consolidation of the proceedings.' 27 In reaching that conclusion the primary judge rejected, in favour of the appellant, submissions by the respondent that he should treat the proceeding under the WR Act as one vexatiously instituted or that the appellant had caused costs to be incurred because of an unreasonable act or omission. In those respects the appellant obtained the full protection of the costs limitations. 28 As to interlocutory steps after consolidation, the primary judge awarded the respondents costs of one notice of motion (filed on 5 February 2007) and refused costs of another (filed on 22 February 2007)). The primary judge concluded that pursuit of the notice of motion filed on 5 February 2007 was an unreasonable act but pursuit of the other was not. He applied s 170CS(1) of the WR Act. It is only the first of those two conclusions which falls within the scope of any challenge on the present appeal. 29 The issues with respect to costs reduce themselves to two only, neither of which was identified by the appellant in the Amended Notice of Appeal or her written submissions:

Did s 170CS(1) of the WR Act shield the whole of the consolidated proceedings from a costs order?
Did the primary judge err in concluding that pursuit of the notice of motion of 5 February 2007 was an unreasonable act? 30 The question whether costs with respect to separate federal claims within the original jurisdiction of the Court are affected by the restrictions on the award of costs appearing in the WR Act has not received prior attention by a Full Court. In Seven Network it was held that separate federal proceedings are not shielded from costs by s 347 of the WR Act (now s 824) notwithstanding earlier decisions of the Court to the effect that common law causes of action heard together with claims under the WR Act were so protected (see e.g. Maritime Union of Australia v Geraldton Port Authority (No 2) (2000) 94 IR 404 at [61]-[70] and the cases there referred to). Seven Network was followed by the primary judge in the decision under appeal and in McDonald v Parnell Laboratories (Aust) Pty Ltd (No 2) [2007] FCA 2086. 31 A separate federal claim does not come before the Court in its 'accrued' or 'associated' jurisdiction. It stands on its own, even if for convenience it is consolidated with other claims within the Court's jurisdiction for the purpose of hearing. The ordinary principles concerning costs apply in the absence of a statutory restriction applying to those proceedings. Such a restriction does not, in our view, arise from the administrative act of consolidating separate federal proceedings for hearing. 32 In any event, so far as the present case is concerned we see no room for argument about the point. So far as s 170CS(1) of the WR Act (as it then was - see now s 666) is concerned, what was restricted was an award of costs in 'a proceeding under section 170CP' (now s 663). No protection was given by s 170CS(1) to proceedings under the HREOC Act. Although it may be accepted that after consolidation the proceedings were, as the trial judge said, 'wholly undifferentiated' that did not mean that the HREOC Act proceedings had become completely subsumed within the WR Act proceedings or vice versa. The extent to which that might happen in any particular proceedings would require assessment according to the circumstances of an individual case. 33 In the present case the trial judge took the view that 'justice would be done' and that true costs with respect to the HREOC Act claims would be reflected if half of the costs incurred subsequent to consolidation were awarded. Unless there was a legal bar to such a course that part of the primary judge's award of costs involved the exercise of a judicial discretion. No basis has been offered to interfere with it. The only contention advanced by the appellant was that the award of costs was contrary to the WR Act. We reject that contention. 34 The award of costs in relation to the notice of motion filed on 5 February 2007 proceeded, in accordance with s 170CS(1) of the WR Act, upon the footing that the appellant acted unreasonably. The primary judge recorded his reason (at [22]) as follows: 'On 5 February 2007, the applicant gave notice that she would move the court for orders in the following terms: 1. Counsel for the respondents [counsel's name] stand down from representing respondents in this matter due to a conflict of interest. 2. The respondents are given warning in relation to the contempt of the court. 3. The jurisdiction of the court be extended to include criminal jurisdiction and defamation law. In my reasons for judgment dated 7 February 2007, I explained in detail why each claim in their Notice of Motion was dismissed: see [2007] FCA 115. I shall not elaborate upon the matters covered by those reasons, since I take the view that this Notice of Motion was an obvious instance of an unreasonable act on the part of the applicant. The bases upon which the applicant sought to achieve the relief set out in her Notice of Motion were misconceived in point of principle and without merit in point of fact. Lest there be any misunderstanding, I make it clear that there was nothing in the circumstances of the present case, or of the defence of the applicant's claims by the practitioners engaged by the respondents, which would even remotely justify the unusual, serious and almost bizarre forms of relief which the applicant sought in this Notice of Motion. From my observation, there was nothing that would suggest that the respondents' legal representatives were conducting themselves other than in accordance with their professional responsibilities. It was, in my view, quite inappropriate for the applicant to have made serious accusations of the kind which were implicit in this Notice of Motion. The Notice of Motion was, I consider, an unreasonable act within the terms of s 170CS(1)(b) of the WR Act. I note that, while claiming their costs in relation to this Notice of Motion, the respondents did not submit that those costs should be taxed other than as between party and party.' 35 The appellant did not specifically identify the order for costs which flowed from these findings as one contrary to the WR Act. We have assumed that contention from the general nature of her attack on the costs orders. It is apparent, however, from the matters referred to by the trial judge that the appellant's conduct was unreasonable and deserved no better outcome.

Failure to call a witness 36 The final matter to be dealt with concerns the appellant's suggestion that the respondents' case at first instance should have failed because a potential witness did not give evidence. The primary judge referred to the circumstances in the main judgment (at [16]) as follows: 'There is one matter of procedure that should be mentioned at this stage. It concerns the absence from the witness box of another childcare worker employed by La Kosta in November 2005, [the potential witness]. Her evidence would have been relevant. The applicant expected the respondents to call her, as well she might have. [The potential witness] would have been in the respondents' camp more so than in the applicant's. However, the respondents led evidence that [the potential witness] had left the employ of La Kosta in May 2006, and that Mr Sterjov had gone to the address of [the potential witness] as known to the respondents, but was told by a resident there that [the potential witness] no longer lived at that address, and that her whereabouts were unknown. Mr Sterjov also telephoned [the potential witness], using the phone number on La Kosta's records, but [the potential witness] was no longer on that number. On the strength of that evidence, I am satisfied that there are no grounds for me to draw any inference adverse to the respondents by reason merely of [the potential witness] absence. The applicant herself was anxious to call [the potential witness], but did not know her whereabouts. I indicated that I would give leave for the issue of a subpoena directed to [the potential witness], but nothing came of that since no party to the proceeding knew how [the potential witness]might be contacted.' 37 To set the matter fully in context it is instructive to refer to an earlier interlocutory judgment (Bahonko v Sterjov [2007] FCA 867) where the primary judge said: '1 Subject only to the possibility of further evidence being called today, the trial of this proceeding has concluded. On 27 April 2007, I gave the applicant an opportunity to contact a person whose evidence she submitted was important to the case and who she anticipated would have been called on behalf of the respondents. That person, a former employee of the fourth respondent, [the potential witness], had not been called by the respondent and the applicant desired to have the opportunity to make an attempt to contact her for the purpose of bringing her before the court. I required the applicant to file and serve a brief summary of the evidence which she proposed to lead from [the potential witness], and she has done so. However, the applicant did not call [the potential witness] today for the reason, as she explained to me, that she did not know the whereabouts of [the potential witness] and had no way of contacting her. 2 That would have been the end of the matter so far as [the potential witness] is concerned, were it not for an affidavit sworn yesterday by the first respondent deposing to attempts which he had made to contact [the potential witness] at the address shown on her Group Certificate. The first respondent said that he himself went to that address on 12 May 2007 and was told by a person who identified herself as Danielle, or a similar name, that she did not know [the potential witness], that [the potential witness] did not live at that address, that she did not know the whereabouts of [the potential witness], that she had no means of contacting [the potential witness] and that she did not know [the potential witness's] telephone number. The first respondent also deposed that he telephoned the number which he had on his records for [the potential witness], but discovered that the number now relates to a business known as Endeavour Timber. He concluded his affidavit by stating that he had no means known to him of contacting [the potential witness]. 3 The first respondent was cross-examined by the applicant on his affidavit, but substantially the state of the evidence remains as I have indicated. Counsel for the respondents accepted that, in the light of the reading of that affidavit, it would be reasonable to allow the applicant a further opportunity to make such use as she is able of the information which she now has a result of that affidavit to renew her attempts to contact [the potential witness] and to bring her before the court for the purpose of giving evidence. In the circumstances, I shall make adjustments to the timetable previously set out in directions which I gave on 27 April 2007, such as would permit the applicant an opportunity to follow up that matter.' 38 As the primary judge subsequently recorded, nothing came of the matter. The approach which the trial judge took to this issue, of declining to draw an inference adverse to the respondents' case, was perfectly conventional and, may we say, correct. No appellable error arises in relation to this issue.

Costs of the appeal 39 That brings us to the question of the costs of the appeal. Accepting that the appeal proceedings themselves continue to attract the operation, in part, of the costs protections in the WR Act (see now, so far as the present appeal is concerned, s 666 of the WR Act) we are satisfied that the institution and pursuit of the appeal, as disclosed by the matters to which we have already referred, caused the respondents to incur costs because of the unreasonable acts of the appellant. The appellant has no protection from costs in these circumstances. We decided that the respondents were entitled to the usual measure of protection and should have their costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 7 March 2008 Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondents: Mr Felix A Vitiello

Date of Orders: 28 February 2008, 7 March 2008

Human Rights and Equal Opportunity Commission Act 1986(Cth)

Workplace Relations Act 1996(Cth)

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