Construction, Forestry, Mining and Energy Union v Hadgkiss

Federal Court of Australia (Full Court)|2009-07-01|Before: Buchanan JJ

Introduction 9 This is an appeal and a cross-appeal from orders made by a judge of this Court in relation to contraventions of s 298SC(c) of the Workplace Relations Act 1996 (Cth) (the WR Act). Section 298SC(c) is contained in Part XA of the WR Act. 10 I have had the advantage of reading in draft the reasons of Buchanan J. I adopt the recitation of the facts and history of the proceeding in his Honour's reasons. 11 The appellants were the respondents in the court below. Mr Lane, who was the fourth respondent and is the fourth appellant, was at the relevant times an organiser of the first and second appellant (the first and second respondents at the trial) who are respectively the Construction, Forestry, Mining and Energy Union (CFMEU) and the State Union. Mr Casper, the third appellant, is a delegate of the first and second appellants. 12 His Honour found that both Mr Lane and Mr Casper had made false or misleading representations on 19 January 2004, 17 February 2004 and 18 February 2004 about another person's obligation to join an industrial association. The misrepresentations were made at two sites in the Illawarra region of New South Wales: Woodhill Street, Fairy Meadow (the Fairy Meadow site) and the first and second appellants' Wollongong office (the Wollongong site). 13 The thrust of his Honour's findings were that four representations were made. The first representation was made by the third appellant on 19 January 2004 to four persons to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first and/or the second appellant. The second representation was made by the fourth appellant who, on 18 February 2004, told two of the four persons to whom the previous representation had been made, that in order to continue working on the Fairy Meadow site or to work on the Wollongong site or any site in Wollongong they were obliged to join the first appellant and/or the second appellant. The third representation was made on the same day to another person to the effect that in order to continue working on the Fairy Meadow site or to work on the Wollongong site that person was obliged to join the first appellant and/or the second appellant. The fourth representation was made by the fourth respondent on 17 February 2004 to each of the persons to whom the previous representations had been made that in order to work on the Wollongong site they were obliged to join the first appellant and/or the second appellant. 14 There was no evidence that there was any other conduct of the third or fourth appellants either before or after 19 January or 18 February which was proscribed by Part XA of the WR Act. 15 The primary judge found the first and second appellants to have contravened s 298SC by reason of the contraventions by the third and fourth respondents.

Orders made by the primary judge 16 His Honour made a number of orders; four of which, 11, 12, 13 and 14 required the first and second respondents to take various actions. Those orders were: 11. Orders that within 28 days of the date of this order the first respondent destroy all 'CFMEU Code of Conduct for Union Delegates' forms in its custody, possession or control which contain the following words or words to the following effect: 'To ensure that all workers on site are financial members of the relevant union' 12. Orders that within 28 days of the date of this order the second respondent destroy all 'CFMEU Code of Conduct for Union Delegates' forms in its custody, possession or control which contain the following words or words to the following effect: 'To ensure that all workers on site are financial members of the relevant union' 13. Orders that the first respondent cause to be published at its own expense on or before Friday 20 April 2007 in the Early General News section of the 'Illawarra Mercury' newspaper a full page advertisement in a font size not less than 16 point in the form (including layout) of the Notice which is set forth in Annexure 'A' to these orders. 14. Orders that the second respondent cause to be published at its own expense on or before Friday 20 April 2007 in the Early General News section of the 'Illawarra Mercury' newspaper a full page advertisement in a font size not less than 16 point in the form (including layout) of the Notice which is set forth in Annexure 'B' to these orders. 17 A contravention of s 298SC may also give rise to a civil penalty: s 298U(a). 18 The third appellant was found to have contravened s 298SC on one occasion. His Honour imposed a penalty of $1,250. The fourth appellant was found to have contravened s 298SC on three occasions and his Honour imposed a total penalty of $4,000. 19 In respect to the conduct of the third and fourth respondents, the maximum penalty which could have been imposed was $2,200 for each contravention. 20 The first and second appellants were found, by reason of the actions of the third and fourth appellants to have contravened s 298SC(c) on four occasions each. A civil penalty of $15,000 was imposed on each of them for the four separate contraventions. The maximum penalty in respect of contravention by the first and second appellants was $11,000 for each contravention.

The Notice of Appeal 21 Although the notice of appeal which was filed on 16 April 2007 sought wider relief, at the hearing the first and second appellants confined their grounds of appeal to paragraphs 11 to 14 of the orders made by the primary judge. 22 The third appellant appealed against the amount of the penalty imposed by the primary judge. The fourth appellant abandoned his appeal.

The Cross-Appeal - An extension of time should be refused 23 The respondent to the appeal purported to cross-appeal by a document filed on 29 August 2007. The cross-appeal was in the following form: NOTICE OF CROSS-APPEAL 1. The Cross-Appellant contends that in the event that Orders 11 and 12 of the Orders made by Justice Graham of the Federal Court in matter number NSD 1259 of 2005 on 26 March 2007 at Sydney are set aside as a result of the Cross-Respondents' appeal, then the Court should vary those Orders by making the orders originally sought by the Cross-Appellant. GROUNDS OF APPEAL: 2. In the event that the appeal against Orders 11 and 12 succeeds, the Court should make the orders originally sought by the Cross-Appellant because those orders were within power, appropriate in all the circumstances of the case, necessary to stop the conduct of the Cross-Respondents in contravention of Part XA of the Workplace Relations Act 1996 as found by his Honour or to remedy its effects and consequential on the other relief ordered by way of declarations. ORDERS SOUGHT: 3. That the Cross-Appeal be allowed. 4. That Orders 11 and 12 made by his Honour on 26 March 2007 be varied so that they are in the following terms: '11 Orders that the first respondent remove from any code of conduct or other instruction to be given to a delegate by the first respondent any requirement or direction that the delegate ensure that workers on a building or construction site be members of the first and/or the second respondent. 12 Orders that the second respondent remove from any code of conduct or other instruction to be given to a delegate by the second respondent any requirement or direction that the delegate ensure that workers on a building or construction site be members of the first and/or the second respondent.' 24 Order 52 rule 22 of the Federal Court Rules requires a respondent to an appeal who desires to appeal from a part of the judgment or to seek a variation of a part of the judgment to file a notice of cross-appeal within 21 days after service upon the respondent of the notice of appeal or within such further time as the Court fixes. Order 52 rule 22(2) requires the notice of appeal to state the part of the judgment the respondent cross-appeals from or contends should be varied. 25 In this case, the cross-appeal was not filed until 29 August 2007 and then in circumstances where an application for leave to file a cross-appeal was filed rather than an application for an extension of time within which to file the cross-appeal. The orders made by the primary judge were made on 26 March 2007. The appeal was filed on 16 April 2007. The cross-appeal was in the order of four months out of time. 26 In those circumstances, the respondent needs to obtain an extension of time pursuant to O 52 r 15(2) to file a cross-appeal. For simplicity sake, I shall continue to refer to the respondent as "respondent" rather than "cross-appellant". 27 No explanation was given by the respondent in the affidavit which accompanied the application for leave to file the cross-appeal as to why the cross-appeal was filed so late. The deponent to the affidavit confined herself to reasons why leave should be granted. The failure to explain the delay would be enough to refuse the application for an extension of time. 28 However, there is a better reason. In my opinion, the cross-appeal is incompetent. An appellant or a cross-appellant must appeal from the order or orders which were made by the primary judge. In this case, the respondent purports to cross-appeal only if this Court sets aside paragraphs 11 and 12 of the orders made by the primary judge. The respondent cannot appeal upon the basis of orders which might be made by this Court on the appeal. The respondent could have sought an order varying the orders made by the primary judge: O 52 r 22. However, the respondent does not seek any variation of the orders except in circumstances where the appellants' appeal has succeeded. 29 The respondent needed to take a position in relation to the orders made by the primary judge. He either supported the orders made by the primary judge, in which case the cross-appeal could not be pursued, or he, like the appellants, needed to contend that the orders should not have been made. The respondent was not entitled to take a position depending upon whatever orders might be made by this Court. 30 I would refuse the extension of time within which to cross-appeal from the orders made by the primary judge because there is no point in extending the time for filing of a cross-appeal which is incompetent.

The Appeal 31 That leaves then for consideration the matters raised on the appeal. 32 Paragraphs 11 and 12 of his Honour's orders required the first and second appellants to destroy all CFMEU Code of Conduct for Union Delegates forms in their custody, possession or control which contain the words or words to the effect, "To ensure that all workers on site are financial members of the relevant union" (the destruction orders). 33 His Honour made the orders because he thought that the contravening conduct of the third and fourth appellants was "underpinned by the CFMEU's use of its quite improper Code of Conduct for Delegates form". 34 He thought that the Code of Conduct for Union Delegates form was quite inconsistent with Part XA of the WR Act in that it called upon the delegates to ensure all workers on the site to be financial members of the Union. His Honour thought that the forms themselves motivated the delegate and the organiser to engage in the impugned conduct. 35 His Honour said (at [66]) in considering whether to make the orders, which he ultimately made in paragraphs 11 and 12: Whilst the liability of the first and second respondents for contraventions by them of s 298SC(c) of the Act are constructive in nature, their culpability is demonstrable given the involvement of their organiser, the fourth respondent, and their imposition upon the third respondent of an apparent requirement that he provide a 'best endeavours' undertaking to 'ensure that all workers on site are financial members of the relevant union' in accordance with their printed 'CFMEU Code of Conduct for Union Delegates' form. The third respondent's signature on that form, which was dated 28 March 2003, was witnessed by the fourth respondent. (Original emphasis.) 36 He then considered whether there was a need for orders of the kind which he ultimately entered and said that "it is appropriate and necessary in all of the circumstances of the case to make orders for the destruction of Code of Conduct for Union Delegates forms". 37 He reached that conclusion notwithstanding that there was evidence before him that some time near the end of December 2006 the Code of Conduct for Union Delegates form was modified by deleting the word "ensure" and substituting the word "encourage" so that the instruction became "to encourage all workers on site to be financial members of the union ...". He however noted that there was no evidence before him as to whether new forms had been printed or executed and what procedure had been put in place for the destruction of the old forms. 38 For those reasons, his Honour made the destruction orders. 39 He also addressed the necessity of making the orders which he ultimately made in paragraph 13 and 14 and said simply that a requirement should be imposed on each of the first and second respondents to publish the advertisement which is identified in paragraph 13 and 14, and Annexures A and B to those orders (the publication orders). 40 The advertisements that had to be inserted were the same, except that Annexure A which is the subject of the order in paragraph 13 applies to the first appellant and Annexure B which is the subject of the order in paragraph 14 applies to the second appellant. Annexure A is in the form: ____________________________________________________________________ IMPORTANT NOTICE FROM THE CFMEU TO ALL BUILDING WORKERS ABOUT CFMEU MEMBERSHIP ____________________________________________________________________ No employee or contractor in the building industry is required to join the CFMEU in order to work in the industry. You should also know that: (a) all contractors and employees working or wishing to work on a building site have a choice whether or not to join the CFMEU, and (b) no CFMEU delegate or official can tell workers on a building site that they must join the CFMEU in order to work on the site. The CFMEU is publishing this notice after the Federal Court of Australia found that: (a) a CFMEU delegate made a false or misleading representation to 4 workers to the effect that they were obliged to join the Union in order to work on the Northgate Apartments building site at Fairy Meadow, and (b) a CFMEU representative made false or misleading representations to 3 workers to the effect that they were obliged to join the Union in order to continue working on that site or to work on other Wollongong building sites. This notice is published by the Construction, Forestry, Mining and Energy Union, an industrial association registered under the Workplace Relations Act 1996 (Cth). 41 The first and second appellants contended that there is no power to make the orders in paragraphs 11 to 14. They contended that the orders were in the nature of mandatory injunctions and were outside the powers given by s 298U of the WR Act. 42 In the alternative, the first and second appellants contended the destruction orders were made in circumstances where they were denied natural justice. Put simply, the respondent did not seek the destruction orders which were made by the primary judge and the first and second appellants were not given notice that the particular orders might be made. In fact, the respondent had sought the orders in paragraph 4 of the orders sought in the cross-appeal. The respondent had not sought the orders in paragraphs 13 and 14. 43 The third appellant contended that in imposing the civil penalty the primary judge made two errors. First, he failed to have regard to the fact that the third appellant had not previously contravened Part XA of the WR Act. Secondly, the penalty was "unreasonable and plainly unjust". 44 The respondent contended that the orders were within power and authorised by either s 298U of the WR Act or by s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 45 The respondent contended also that there was no denial of procedural fairness in the making of the orders notwithstanding that the orders made were not those sought by the respondent. 46 However, the respondent conceded that if the orders had the effect of requiring the destruction of any archived or historical matter and are thereby impracticable and go further than that required by any contravention of the Act, the orders which are identified in the cross-appeal should be made in substitution for paragraphs 11 and 12 of the orders made by his Honour. 47 The respondent contended that the third appellant's claim that the civil penalty was imposed in circumstance of appellable error should be rejected. 48 The respondent's position in relation to the orders made by his Honour in relation to paragraphs 11 and 12 changed from time to time. During the hearing of the appeal, at one stage, the respondent abandoned the written submission which I have identified above and contended that paragraphs 11 and 12 of the orders made by his Honour should be set aside because his Honour had not accorded the first and second appellants procedural fairness before making the orders. Later in the respondent's oral submissions, the respondent reverted to the position identified in his written submissions. 49 I think it clear that the respondent found himself in a difficult position. He recognised that the orders made by the primary judge might be impracticable. He was concerned however that if the orders were discharged, the orders of the kind referred to in those cross-appeals should be substituted.

The Workplace Relations Act 50 At the relevant time, s 3 of the WR Act identified the principal objects of that Act. It relevantly provided: The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: ... (b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and (c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and ... (f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and ... 51 Part XA was directed to "Freedom of association". Section 298A of Part XA provided further objects relevant to that Part: As well as the objects set out in section 3, this Part has these objects: (a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations. 52 Division 2 of Part XA identified the "conduct" to which Part XA applied. Section 298D provided that the Part applied to conduct by an organisation, an officer of that organisation, and / or carried out with a purpose or intent relating to a person's membership or non-membership of an organisation. 53 Division 3 refers to "Conduct by employers etc."; Division 4 applies to "Conduct by employees etc."; and Division 5 applies to "Conduct by industrial associations etc.". Divisions 3, 4 and 5 of Part XA proscribe conduct by the relevant employer, employee or industrial association. 54 Division 5A addresses "False or misleading representations about bargaining services fees etc.". It, unlike the other Divisions, simply refers to a person and does not discriminate between employers, employees, or industrial associations. 55 Section 298SC which is part of Division 5A provides: A person must not make a false or misleading representation about: (a) another person's liability to pay a bargaining services fee; or (b) another person's obligation to enter into an agreement to pay a bargaining services fee; or (c) another person's obligation to join an industrial association. 56 Division 6 provides for remedies for breaches of Part XA. Section 298T empowers the persons referred to in s 298T(2) to apply to the Court for orders under s 298U "in respect of conduct in contravention of this Part": s 298T(1). 57 Section 298U provides for the "Orders that the Federal Court may make": In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - $10,000; or (ii) in any other case - $2,000; (b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor; (c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate; (d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat; (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects; (f) any other consequential orders. 58 The penalties provided for in s 298U(a)(i) and (ii) which were applicable at the time of the contraventions must be understood by reference to the Crimes Act 1914 (Cth) (the Crimes Act). Section 4AB of the Crimes Act provides: (1) A reference in a law of the Commonwealth or in a Territory Ordinance to a pecuniary penalty of D dollars, where D is a number, is taken to be a reference to a pecuniary penalty of P penalty units, where P is: (a) if D ÷ 100 is a whole number - that whole number; or (b) if D ÷ 100 is not a whole number - the next highest whole number. (2) Subsection (1) does not apply to a reference to the maximum amount of a penalty that is not imposed by a court, or by a service tribunal under the Defence Force Discipline Act 1982. (3) Subsection (1) does not apply to: (a) section 76 of the Trade Practices Act 1974; or (c) a provision of a law of the Commonwealth prescribed for the purposes of this subsection. (4) In this section: penalty includes a fine. Territory Ordinance has the same meaning as in section 4AA. 59 Section 4AB was enacted by the Crimes Legislation Amendment Act 1992 (Cth) and was in the terms set out above at the time of the contraventions. 60 "D" in this case, for the purpose of s 298U(a)(i), is $10,000 and, for the purpose of s 298U(a)(ii), is $2,000. Therefore "P" is 100 and 20 respectively. 61 "[P]enalty unit" is defined in s 4AA(1) of the Crimes Act: (1) In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears: penalty unit means $110. 62 The pecuniary penalty in s 298U(a) therefore is $11,000 and $2,200 respectively. 63 In those circumstances, the maximum penalty for each contravention which could be imposed upon the first and second appellants was $11,000 (s 298U(a)(i)) and in the case of the third and fourth appellants, $2,200 (s 298U(a)(ii)). 64 Section 298U(a) was the source of power for the penalty imposed on the appellants. No party argued that the primary judge could not impose penalties on the appellants. The issues in relation to penalty are whether the primary judge failed to take into account that this was the first contravention of this Part by the third appellant and whether the penalty imposed on the third appellant was, in all the circumstances, too high. 65 The respondent relied upon s 298U(e) and (f) for the power to make the orders made by his Honour in paragraphs 11 to 14 of his orders. 66 Part XA is concerned with conduct of employers, employees and industrial associations which is identified in the Divisions to which I have referred. The Part proscribes that conduct and provides for the remedies in s 298U in the event that an employer, employee or an industrial association contravenes the proscriptions in the Part. 67 The opening words of s 298U show that the remedies are to apply in respect of conduct in contravention of the Part. It would follow that the Court is not empowered to grant the orders in s 298U in relation to conduct not proscribed by the Part. 68 Insofar as the Court is empowered to make an order in the nature of an injunction in s 298U(e): first, it must be in respect of conduct in contravention of Part XA; secondly, the Court must consider it appropriate to make the order; and thirdly, it must be an injunction or other order that "the Court thinks necessary to stop the conduct or remedy its effects". 69 The order must be directed to the conduct which is proscribed in the Part because the Court must think that the injunction or order is appropriate and also necessary either to stop that conduct or remedy its effects. Relevantly, in this case, the conduct which was proscribed was the conduct in s 298SC(c). The question is whether the orders made in paragraphs 11 to 14 of the primary judge's orders are appropriate and also necessary to stop false or misleading statements about a person's obligation to join a union or to remedy the effects of that conduct. 70 The primary judge could have made an order in the nature of an injunction restraining the third and fourth respondents from making false or misleading representations about another person's obligation to join the first or second appellant union. Such an order would have been authorised because it would have been made to stop the conduct proscribed by s 298SC(c). Moreover, the primary judge could have made an order enjoining the first and second appellants from engaging through its servants or agents in conduct of the same kind. 71 However, I do not think the destruction orders made by his Honour were authorised by s 298U because they are not directed to stopping the conduct which is proscribed in s 298SC(c). The conduct there proscribed is the making of the false representations. In my opinion, the conduct which his Honour identified, ie the document, is not of the kind that can be made the subject of an order under s 298U(e). 72 On the other hand, I think that s 298U(e) would permit the judge to make the publication orders if those orders were, in the opinion of the Court, appropriate and also necessary to stop the conduct or remedy its effect. The proscribed conduct was the misrepresentations in relation to persons' obligations to join a union. The advertisements are directed to remedying that effect. The orders which were made would not have the effect of stopping the conduct which is not continuing but they may have the effect of remedying its effect. Whether the orders should have been made is another question. 73 The respondent contended that if the source of power to make the destruction orders was not s 298U(e), then it must be s 298U(f). In my opinion, that contention must be rejected. Section 298U(f) gives the Court power to make any other consequential orders. That power is limited to orders consequential upon any of the orders that might have been made under s 298U(a), (b), (c), (d) or (e). It is not a free-standing source of power for orders of a kind different to those that may be made under the other paragraphs of s 298U. If it were intended to allow the Court to make any other order that the Court in its discretion thought appropriate, the paragraph would not include the word "consequential". That word must be given some work to do: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. When that word is given its appropriate work, the paragraph must be understood as merely allowing the Court to make consequential orders after making an order under one of the other paragraphs: see Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. 2) [2001] FCA 1076. 74 Section 298U did not empower the primary judge to make the destructions orders.

Section 23 of the FCA Act 75 The respondent contended that if s 298U(e) and (f) do not empower the judge to make the destruction orders then the power to make those orders can be found in s 23 of the FCA Act. His Honour referred to s 23 when addressing the breadth of the relief from which s 298U provides and, when addressing the particular orders which he made. The primary judge had in mind s 23 as a source of power in addition to s 298U. I think that appears clear from what his Honour said in [8] of his reasons: The Act does not provide an exhaustive code in respect of the remedies available to a successful applicant (per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia ('Patrick Stevedores') (1998) 195 CLR 1 at 29 [27]). In the circumstances, regard may also be had to the powers of the Court under, inter alia, ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') in relation to conduct in contravention of Part XA of the Act. Those sections relevantly provide: "21(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. ... 23 The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." 76 The appellants contended that s 23 does not provide a source of power for granting a final injunction where there is otherwise no authority for granting an injunction under s 298U(e). The appellants contended that s 298U was a code at least in relation to final relief. The respondent agreed that the power to make any order consequential upon a contravention of s 298SC was limited to the powers given by s 298U: see Spencer v Australian Workers' Union (1983) 46 ALR 389. The respondent drew the Court's attention to a decision of the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161 where the majority said: The Federal Court of Australia Act sets up the Federal Court and arms it with certain powers, e.g. ss. 22 and 23. But generally speaking, and apart from s. 32, the Act does not invest the Court with jurisdiction. It leaves it to the Parliament to do so by other statutes (s. 19). This the Parliament has done by other statutes, such as the Trade Practices Act. When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act. 77 In Thomson Australian Holdings Pty Ltd v Trade Practices Commission 148 CLR 150, the High Court was referring to the maxim generalia specialibus non derogant; that is, where there is a conflict between general and specific provisions the specific provisions prevail. Such a principle "is not a technical rule peculiar to English statutory interpretation. Rather it represents simple commonsense and ordinary usage": Effort Shipping Company Ltd v Linden Management SA (the Giannis NK) [1998] 1 All ER 495 at 513 per Lord Cooke; Hoffman v Chief of Army (2004) 137 FCR 520 at 571. 78 However, in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, the High Court was called upon to consider whether orders in the nature of interlocutory injunctions in relation to conduct under Part XA could be supported by the power given to the Court under s 23 of the FCA Act. 79 The Court said at [27]: Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case. (Footnotes omitted.) 80 The Court considered Thomson Australian Holdings Pty Ltd v Trade Practices Commission 148 CLR 150 and a decision of the High Court in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (a decision dealing with the Federal Court's power to make a Mareva injunction) and said (at [29]): Both Thomson Australian Holdings Pty Ltd v Trade Practices Commission and Jackson v Sterling Industries Ltd concerned relief in respect of claims founded upon laws made by the Parliament. Here the claims are for relief under s 298U(e) and in the tort of conspiracy. For present purposes and as indicated later in these reasons, it may be taken that the common law claims in conspiracy are founded either in the accrued jurisdiction as explained in Fencott v Muller or as an associated matter within the meaning of s 32 of the Federal Court Act. (Footnotes omitted.) 81 The High Court concluded that, at least in interlocutory proceedings where a claim is presented outside the statutory framework of the WR Act in the form of a conspiracy, the Court has power to grant an interlocutory injunction pursuant to s 23 of the FCA Act. 82 The parties were obviously unaware of the decision of the Full Court in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, which followed the decision in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia 195 CLR 1 in concluding that the Court had power to grant interim relief restraining an employer from terminating an employee's employment in contravention of s 298K of the WR Act pursuant to s 23 of the FCA Act. 83 Wilcox and Cooper JJ rejected a submission that the sole source of power for a contravention of s 298K was s 298U by holding that the submission had been resolved by the decision in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia 195 CLR 1. In particular, the Full Court said that the High Court did not hold that s 23 was available only because there was an allegation of conspiracy but allowed for that source of power for any contravention of Part XA. Burchett J agreed with their Honours at least on this point. 84 I would not have arrived at the conclusion expressed by Wilcox and Cooper JJ. I do not understand Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia 195 CLR 1 to be saying however that where an application is made under s 298T for a remedy under s 298U in respect of conduct in Part XA and no other claim is presented and no other relief is sought under the general law, that the Court has jurisdiction to make any other orders apart from those contained in s 298U. On my reading of Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia 195 CLR 1, the High Court proceeded upon the fact that the proceeding in that case included a claim under the general law for an injunction to restrain a conspiracy. In those circumstances, it is not surprising that the High Court reached the conclusion that it did. 85 I would have thought that where the proceeding before the Federal Court is simply one of a contravention of Part XA of the WR Act that the power to make an order for that contravention is that contained in s 298U. 86 Although the statement by the Full Court must be considered obiter because it was not necessary for the purpose of the decision as the Court was concerned only with an interlocutory order, it would not be appropriate on this appeal to do other than follow the decision because no argument was addressed as to the correctness of the decision and neither party therefore sought to have the decision overruled. 87 The Court should therefore proceed upon the basis that the primary judge had jurisdiction to make the destruction orders under s 23 of the FCA Act.

Conclusion on power 88 Section 298U(c) authorised the primary judge to make the publication orders because the effect of those orders might be to remedy the effects of the appellants' conduct. Section 298U(e) and (f) did not empower the primary judge to make the destruction orders because the orders which were made were not directed to stopping the conduct which was proscribed by s 298SC(c), which is conduct involving false or misleading representations about another person's obligation to join an industrial association. Section 23 of the FCA Act would empower the making of the destruction orders of the kind in paragraphs 11 and 12 if those orders were necessary to do justice.

Procedural fairness 89 Before dealing with the question whether the destruction orders or the publication orders should have been made under either s 23 of the FCA Act or s 298U of the WR Act, the question of denial of procedural fairness which was raised by the appellants should be addressed. 90 It may be accepted that the destruction orders made by the primary judge were not in exactly the terms sought by the respondent at trial. However, it is clear that at trial the primary judge let it be known that he was concerned about the existence of the Code of Conduct form. That, in fact, was the very reason why the appellants provided evidence to the effect that an administrative decision had been made to discard the Code of Conduct form which had been in existence at the time when the contravention occurred and to substitute the new form. The new form substituted the word "encourage" for the word "ensure". 91 When the destruction orders are compared to the orders which were contended for by the respondent, it can be seen that the issue before the primary judge was whether there ought to be an order of the kind that prevented the first and second appellants from retaining within their Code of Conduct forms a direction that a delegate ensure that workers on a building or construction site be members of the first and/or second appellant. In a sense, the orders made by the primary judge are narrower than those contended for in that the destruction orders only refer to the "CFMEU Code of Conduct for Union Delegates" form, whereas the respondent contended for "any Code of Conduct or other instruction". 92 However, the first and second appellants contended that the destruction orders would have the effect that the first and second appellants must destroy not only all unused CFMEU Code of Conduct for Union Delegates forms but, indeed, all forms which had been completed by a delegate in the past which were in the custody, possession or control of the first or second appellant. 93 I think that is the construction which the destruction orders require, although I do not think it was the intention of his Honour to make orders of such breadth. 94 I think if the destruction orders are construed that way, then they are wider than those contended for by the respondent at trial because the respondents only contended for orders in relation to any Code of Conduct or other instruction "to be given to a delegate" which would exclude forms which had previously been given to a delegate. 95 However, I am satisfied, like Buchanan J, that there was a live issue as to whether or not the first and second appellants should be subject to an order of the kind which was contended for or of a kind which was made by the primary judge. I do not think there has been any denial of procedural fairness.

The destruction orders 96 However, that does not mean that the destruction orders ought to have been made. Section 23 provides that: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 97 If the Court is to proceed under s 23 of the FCA Act, then it must act in accordance with principle before making an order in the nature of an injunction. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission 148 CLR 150, the majority said at 161: So also with s. 23; it arms the Court with power to make all kinds of orders and to issue all kinds of writs as may be appropriate, but it does not provide authority for granting an injunction where there is otherwise no case for injunctive relief. 98 The Court has power to grant an injunction to preserve a statutory right or prevent a statutory breach. Moreover, a party can involve the aid of a civil court to enforce the criminal law where it is established that the law is frequently breached in circumstances where there is an inadequate statutory penalty: Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 49-50. However, the jurisdiction to grant an injunction is not at large. The necessity for the relief must depend upon the need to protect a right or to restrain unlawful conduct and "to do justice in exercising the judicial power of the Commonwealth in matters over which it has jurisdiction": Hiero Pty Ltd v Somers (1983) 68 FLR 171 at 178. The Court must be satisfied that the making of an injunction is appropriate. 99 The destruction orders which were made do not protect any right or restrain any unlawful conduct. Moreover, they are not necessary to do justice between the parties. It is not unlawful to have a code of the kind which seeks to ensure that all members of a building site are members of a union. The destruction orders which were made seek to regulate the internal conduct of the first and second appellants so as to make it less likely that organisers and delegates will not make misrepresentations of the kind proscribed in s 298SC(c). 100 The primary judge had power to restrain the conduct which was the subject matter of the proceeding and, for the reasons which I have previously mentioned, could have fashioned orders accordingly. However, s 23 does not empower him to make an order to restrain conduct which is not unlawful and which does not impact upon any right reposing in any other party. Whilst the primary judge was of the opinion that the code was, as it were, the catalyst for the action which was undertaken by the third and fourth appellants, that is not a reason to order the destruction of the CFMEU Code of Conduct forms in which the word "ensure" was used. 101 There is another reason why in my respectful opinion the orders should not have been made. The primary judge found that there were four instances of a contravention of s 298SC(c) which occurred on three separate days more than three years before his Honour fashioned the orders which are the subject matter of the appeal. However, there was no evidence before his Honour that the unlawful conduct which is the conduct proscribed by s 298SC(c) had occurred at any time after 18 February 2004. Moreover, there was evidence that the CFMEU Code of Conduct form had been altered to remove the word "ensure" and replace it with the word "encourage". There was therefore no evidence that the document could lead to a contravention by an organiser or delegate of Part XV of the WR Act. In those circumstances, the factual foundation for the grant of a quia timet injunction was simply not made out. 102 Lastly, the orders should not have been made in their form because, in their form, they are far too wide. No order requiring a party to do something which contains a latent ambiguity should be made because the party to whom the order is directed may be charged with contempt for disobedience of that order: Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483; Australian Corporation and Consumer Commission v Dynacast (Int) Pty Ltd (formerly Phoneflasher.com Pty Ltd) ACN 061 234 642 [2007] FCA 429. In this case, the first and second appellants were called upon to destroy all CFMEU Code of Conduct Union Delegates forms in their custody, possession or control which contained the offending words. Read literally, that requires the first and second appellants to destroy all completed forms over a period which is unknown since the form was first created. It also requires the first and second appellants to obtain from any delegate or organiser or any other officer of the Union both completed and uncompleted forms if the first and second appellants have the power to require delegates to return those forms to them. The orders are not limited to the destruction of unused or uncompleted forms. The orders are too wide for the purpose for which they were made. 103 In my opinion, the destruction orders should not have been made.

The publication orders 104 Whilst I am of the opinion that the primary judge had power to make the publication orders under s 298U(e), in my opinion, the orders should not have been made for the reason that there was no utility in making the orders. The contravening conduct had occurred in January and February 2004 completing on 18 February 2004. The conduct involved misrepresentations to a number of identified persons at the two sites. There was no evidence that misrepresentations of the same kind were made to a wider audience in the Illawarra. The orders to place the advertisements were made on 26 March 2007. As I have said, the orders could not have had the purpose of stopping the first and second appellants' conduct because there was no evidence that the conduct proscribed by s 298SC(c) was continuing. The orders could not also have had the effect of rectifying the conduct so long after the conduct had occurred. Moreover, the audience to which the publication orders were made was infinitely wider than the audience to which the representations were made. 105 In any event, there was no evidence that any of the parties to whom the advertisements would be directed had any knowledge of the conduct. There was no evidence that anyone, apart from the persons to whom the misrepresentations were made, had any knowledge of the conduct. In those circumstances, the publication orders should not have been made. 106 For those reasons, I would allow the appeal by the first and second appellants and would set aside paragraphs 11, 12, 13 and 14 of his Honour's orders.

The civil penalty 107 That leaves only for consideration the question of the penalty which was imposed by the primary judge on the third appellant. As already indicated, the penalty imposed was $1,250. The maximum penalty which could have been imposed by $2,200. 108 The question of the imposition of the penalty was the exercise of discretion by the primary judge. On appeal this Court must act in conformity when reviewing the exercise of a discretion to impose a penalty with the decision of the High Court in House v The King (1936) 55 CLR 499 at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough if the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 109 On this appeal, the third appellant contended that the primary judge had failed to take into account a relevant matter, namely that he had not previously contravened Part XA of the WR Act. Secondly, the third appellant argued that the penalty of $1,250 was so unreasonable and plainly unjust that this Court ought to infer that the exercise of the discretion reposing in the primary judge has miscarried: House v The King 55 CLR 499 at 505. 110 In my opinion, the first ground fails because it is clear that his Honour was aware that the third appellant had not previously contravened Part XA of the WR Act and, in his reasons, he described the third appellant as "a law abiding person". I reject the first ground. 111 I would also reject the second ground. There was no undisclosed error in his Honour imposing a penalty of $1,250 where the maximum penalty was $2,200. It may be at the higher end of the range but that does not permit this Court to interfere with his Honour's discretion. 112 I would dismiss the third appellant's appeal. 113 I would make the following orders: 1. The first and second appellants' appeal be allowed. 2. The third appellant's appeal be dismissed. 3. The fourth appellant's appeal be dismissed. 4. Paragraphs 11, 12, 13 and 14 of the orders made by the primary judge on 26 March 2007 be set aside. 5. Leave to file a cross-appeal be refused.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)

REASONS FOR JUDGMENT BUCHANAN J: 114 This appeal represents the culmination, in this Court, of a series of proceedings arising from events which occurred in the Illawarra region of New South Wales in January and February 2004. The judgments which are most directly relevant to an understanding of those events and the litigation which ensued are: Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87 (the "principal judgment" where the trial judge concluded that the present appellants each contravened s 298SC(c) of the WR Act), Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 (the "relief judgment" where the primary judge made each of the orders which remain for consideration in the present appeal, as well as other orders), Hadgkiss v CFMEU [2008] FCAFC 22 (where a Full Court allowed an appeal by the present respondent in part and remitted some matters for further consideration by the primary judge) and Hadgkiss v Construction, Forestry, Mining and Energy Union (No 5) [2008] FCA 1040 (where the primary judge considered the matters remitted to him and imposed some further penalties but not ones which require consideration in the present appeal). 115 The matters which require attention in the present appeal arise from the first two judgments to which I have referred; the principal judgment and the relief judgment. Those matters all concern orders made as a result of contraventions of the WR Act which the primary judge found to be established. In each case the orders were made ostensibly under the provisions of s 298U of the WR Act. Section 298U provided as follows: 298U In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - $10,000; or (ii) in any other case - $2,000; (b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor; (c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate; (d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat; (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects; (f) any other consequential orders. 116 The particular orders which require consideration on the appeal were imposed under ss 298U(a)(ii) and 298U(e). Section 298U(f) was also relied upon in the present appeal to defend the orders. The orders which require consideration in the present appeal fell into three categories which I shall describe as the destruction orders, the publication orders and the individual penalty ($1,250 imposed against the third appellant). It should be noted that the maximum penalty of $2,000 stated in s 298U(a)(ii), which was provided for contravention of Part XA of the WR Act in the case of an individual, had been increased, by the time of the events in question, to $2,200. A challenge to a penalty imposed on the fourth appellant was not pursued and needs no further attention. 117 The primary judge made findings which may be summarised in the following way. The events in question occurred when the fourth appellant, Mr Lane, an organiser of the first and second appellant (respectively "the CFMEU" and "the State Union") and the third appellant, Mr Casper, a delegate of the CFMEU and the State Union, spoke to some employees at a building site at Fairy Meadow. In broad terms, the primary judge found that Mr Lane and Mr Casper represented to those employees that they were obliged to join the CFMEU and/or the State Union in order to work or continue working at the Fairy Meadow site (and, in Mr Lane's case, at other sites in the Wollongong area). His Honour found that the representations were false or misleading and they contravened s 298SC(c). As a result contraventions of s 298SC(c) were also committed by the CFMEU and the State Union. 118 The primary judge made declarations to give effect to his findings that contraventions of the WR Act had occurred. In this appeal no challenge is made to the declarations. The primary judge imposed monetary penalties on Mr Lane, Mr Casper, the CFMEU and the State Union. It is only a penalty of $1,250 imposed upon Mr Casper (against a possible maximum penalty of $2,200) which is challenged on the appeal. 119 The primary judge made four further orders (two each against the CFMEU and the State Union) which require some further explanation. The primary judge found in the principal judgment that Mr Lane had arranged for the engagement of Mr Casper as an employee at the Fairy Meadow site on the understanding that he would also serve as the CFMEU site delegate. Pursuant to that understanding Mr Casper, in March 2003, completed a CFMEU delegate's registration form and, on 28 March 2003, signed a "CFMEU Code of Conduct for Union Delegates" form ("the Code of Conduct form") which was witnessed by Mr Lane. By subscribing to the Code of Conduct form Mr Casper agreed: 10. To ensure that all workers on site are financial members of the relevant union … (Emphasis added.) 120 In the relief judgment the primary judge addressed the significance of the Code of Conduct form. He said (at [66]): 66 Whilst the liability of the first and second respondents for contraventions by them of s 298SC(c) of the Act are constructive in nature, their culpability is demonstrable given the involvement of their organiser, the fourth respondent, and their imposition upon the third respondent of an apparent requirement that he provide a 'best endeavours' undertaking to 'ensure that all workers on site are financial members of the relevant union' in accordance with their printed 'CFMEU Code of Conduct for Union Delegates' form. The third respondent's signature on that form, which was dated 28 March 2003, was witnessed by the fourth respondent. (Original emphasis.) 121 The primary judge also referred to evidence relied upon by the present appellants on the question of what orders he should make, as follows: 71 Information and belief evidence was placed before the Court to suggest that towards the end of December 2006 the Union's 'Code of Conduct for Union Delegates' form was modified by, relevantly, deleting the word 'ensure' and substituting 'encourage' so that paragraph 10 came to read: 'To encourage all workers on site to be financial members of the union …' No indication has been provided as to whether new forms have been printed, any new forms have been executed and, if so, how many, or procedures put in place for the destruction of old forms. (Original emphasis.) 122 He took the instruction in the Code of Conduct form into account when imposing penalties upon the CFMEU and the State Union. He said: 76 …. the serious nature of the contraventions of Part XA of the Act by the first and second respondents and the complicity of those respondents in the contravening conduct of the third and fourth respondents through their provision and use of the 'CFMEU Code of Conduct for Union Delegates' form warrants the imposition of significant penalties against those respondents in respect of their conduct in contravention of Part XA of the Act. 123 He also took that matter into account in making the four further orders earlier referred to. The primary judge said: 80 The next matter for consideration is to determine what, if any, additional orders should be made under s 298U(e) and (f) of the Act to 'stop' the conduct in contravention of Part XA of the Act and/or to 'remedy its effects'. 81 Without going into any greater detail in relation to the Court's powers than that provided at [8]-[19] above, it is appropriate and necessary in all the circumstances of the case to make orders for the destruction of Code of Conduct for Union Delegates forms which call upon delegates to use their best endeavours to ensure that all workers on a site are financial members of the relevant union. Conduct which encourages and leads to the contravention of provisions such as s 298SC(c) should be stopped. (Original emphasis.) (Paragraphs [8]-[19] dealt generally with the source of the Court's power to make orders of the kind which he had in mind.) 124 The primary judge took a particularly serious view of the Code of Conduct form. He concluded that paragraph 10 of the form was in direct conflict with the objects of Part XA of the WR Act. He concluded that the particular conduct by Mr Casper, which he had found had occurred, should not be viewed in isolation and that: 87 The contravening conduct was, in large measure, underpinned by the CFMEU's use of its quite improper Code of Conduct for Delegates form (see paragraph 10 thereof). Accordingly the trial Judge made the following orders: 11. Orders that within 28 days of the date of this order the first respondent destroy all 'CFMEU Code of Conduct for Union Delegates' forms in its custody, possession or control which contain the following words or words to the following effect: 'To ensure that all workers on site are financial members of the relevant union' 12. Orders that within 28 days of the date of this order the second respondent destroy all 'CFMEU Code of Conduct for Union Delegates' forms in its custody, possession or control which contain the following words or words to the following effect: 'To ensure that all workers on site are financial members of the relevant union'

125 The primary judge next gave consideration to a further order against each of the CFMEU and the State Union. He said: 90 It may reasonably be inferred that the effects of the contravening conduct, in all the circumstances of the case, were to induce in workers at the Fairy Meadow site a belief that the CFMEU was entitled to insist on compulsory unionism and that little, if anything, could be done about it. 91 Such effects render necessary the making of orders requiring the first and second respondents, at their own expense, to publish notices in the local 'Illawarra Mercury' newspaper acknowledging the right of workers to enjoy the freedom of association for which the Act provides. The publication of such notices should reinforce in the minds of the CFMEU's officers and delegates, who should know better, that unionism is voluntary and also allay the fears amongst workers in the area that they must become union members if they are to secure work in the building industry. 92 An Affidavit which was read at the hearing on relief and costs indicates that the cost of a full page advertisement in the Early General News section of the 'Illawarra Mercury' newspaper on Monday to Friday is $4,548.60 plus GST per advertisement. 93 A requirement should be imposed on each of the first and second respondents that they cause to be published in the 'Illawarra Mercury' newspaper a full page advertisement containing a notice drawing attention to the rights to freedom of association for contractors and employees working or wishing to work on a building site in the Wollongong area and also the reason for the advertisement. 126 As a result he made the following further orders: 13. Orders that the first respondent cause to be published at its own expense on or before Friday 20 April 2007 in the Early General News section of the 'Illawarra Mercury' newspaper a full page advertisement in a font size not less than 16 point in the form (including layout) of the Notice which is set forth in Annexure 'A' to these orders. 14. Orders that the second respondent cause to be published at its own expense on or before Friday 20 April 2007 in the Early General News section of the 'Illawarra Mercury' newspaper a full page advertisement in a font size not less than 16 point in the form (including layout) of the Notice which is set forth in Annexure 'B' to these orders. The terms of the advertisements required by these orders are set out in the judgment of Lander J. It is not necessary to set them out again. 127 Orders 11 and 12 are the ones I earlier referred to as the destruction orders. Orders 13 and 14 are the ones I earlier referred to as the publication orders. The order that Mr Casper pay a penalty of $1,250 is the order I earlier referred to as the individual penalty.

The destruction orders 128 The appellants argued that there was no power to make the destruction orders. They also argued that the orders had been made in circumstances which denied them procedural fairness. If necessary, they argued further that the orders should not have been made as a matter of discretion. One matter of particular concern was that the destruction orders were viewed as requiring the CFMEU and the State Union to destroy historical records and to search them out in the possession or control not only of the CFMEU or the State Union but delegates present and past throughout New South Wales and, presumably, throughout Australia. That is not the view I take of the intended effect of the orders but I shall return to that aspect of the argument after dealing with the arguments about whether there was any power to make orders in the terms made. 129 The position taken on the appeal by the respondent about the destruction orders was ambivalent. The respondent had asked, in the proceedings below, for orders requiring the removal from Code of Conduct forms, or other instructions given to a delegate, of "any requirement or direction that the delegate ensure that workers on a building or construction site be members of the [CFMEU] and/or the [State Union]." The respondent agreed on the appeal that orders should not have been made in the form determined by the primary judge if they went so far as to require the destruction of completed Code of Conduct forms. 130 The respondent sought to rely upon a cross-appeal which was conditioned upon the destruction orders being set aside. Leave was required to rely upon the cross-appeal because it was filed out of time. The principal ground upon which leave to file the cross-appeal out of time was sought was that it would present no inconvenience or prejudice to deal with it and it would not add to the length or complexity of the appeal. However, the proposed cross-appeal faces a fundamental problem. I am not able to accept that the cross-appeal should be permitted to be filed upon the conditional basis proposed. Unless the respondent proposed to challenge the destruction orders directly there was no foundation for any appeal by the respondent against those orders. In truth, the cross-appeal was not brought for the purpose of challenging the destruction orders. It did not represent an appeal against those orders but an endeavour to suggest replacement orders if, but only if, the appellants succeeded against them. 131 In my view the cross-appeal, as proposed, was not competent. In any event I do not think that the delay in attempting to file it was satisfactorily explained. In the circumstances I would refuse leave to file the cross appeal out of time.

The operation of s 298U 132 I earlier set out the terms of s 298U. The primary judge indicated in the relief judgment (at [8] to [19]) that in his view the powers of the Court under s 23 of the FCA Act would be available, if necessary, in addition to the express powers under s 298U. Section 23 of the FCA Act provides: 23 The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 133 Although the primary judge identified s 23 of the FCA Act as a source of possible power for the orders he might make he appears to me, in the end, to have relied on s 298U for all the orders which he made. I propose therefore to deal first with the power granted by s 298U(e) and (f). Then it will be necessary to examine the availability and possible significance of the wider grant of power under s 23 of the FCA Act to make such orders as the Court thinks "appropriate". 134 Section 298U provides a direct grant of power for orders of the kind contemplated by paragraphs (a) to (f) where there has been "conduct in contravention" of Part XA. It might be noted that paragraph (a) contemplates, before a penalty is imposed, a finding that particular conduct has "contravened or is contravening" a relevant provision. Section 298U(a) proceeds therefore upon an acceptance that the conduct may have occurred in the past or may be continuing. The relevant conduct for the purpose of imposing penalties was identified in the findings stated by the primary judge in Order 1 made on 26 March 2007 in the following terms: (a) By making a representation on 19 January 2004 to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr to the effect that in order to work on the Fairy Meadow site [a site in Woodhill Street, Fairy Meadow at which Lanskey Constructions Pty Limited ('Lanskey') was the head contractor] workers were obliged to join the first respondent and/or second respondent, the third respondent contravened s 298SC(c) of the Workplace Relations Act 1996 (Cth) ('the Act'). (b) By making a representation on 18 February 2004 to Norm Philipp and Reinhard Philipp to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site [a site at the corner of Bank and Harbour Streets, Wollongong at which Hansen Yuncken Pty Limited ('Hansen Yuncken') was the head contractor] or any other site in Wollongong, each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act. (c) By making a representation on 18 February 2004 to Anthony Summers to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site he was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act. (d) By the action of the third respondent referred to in (a) above, the first respondent contravened s 298SC(c) of the Act. (e) By the action of the fourth respondent referred to in (b) above, the first respondent contravened s 298SC(c) of the Act. (f) By the action of the fourth respondent referred to in (c) above, the first respondent contravened s 298SC(c) of the Act. (g) By the action of the third respondent referred to in (a) above, the second respondent contravened s 298SC(c) of the Act. (h) By the action of the fourth respondent referred to in (b) above, the second respondent contravened s 298SC(c) of the Act. (i) By the action of the fourth respondent referred to in (c) above, the second respondent contravened s 298SC(c) of the Act. 135 All of the conduct identified by the primary judge had ceased by the time of the trial. It occurred on particular days at particular places. None of that conduct was continuing. 136 The conduct to which s 298U(e) refers (the conduct) is conduct which has been found to be in contravention of the Part XA. Like s 298U(a), s 298U(e) also contemplates that the conduct might be continuing. In my view it is only the identified contravening conduct which might be stopped (if it was continuing) or whose effects might be remedied under s 298U(e). Further, a remedial order would require attention to the specific and particular effects of the identified conduct which, in this case, was found to be constituted by representations to particular individuals that they were required to be members of the CFMEU or the State Union. The destruction orders were not addressed to such matters. The destruction orders were intended by the primary judge to address, as he said (at [81] of the relief judgment), "[c]onduct which encourages and leads to the contravention of provisions". In my respectful view conduct which encourages and leads to contravention is not sufficiently connected with the conduct constituting the contravention of Part XA to support the destruction orders by reference to s 298U(e). 137 As a result, in my view, s 298U(e) does not provide a grant of power adequate to support the destruction orders. I take a narrower view of that power than did the primary judge. 138 The other possibility is that the destruction orders might be supported under s 298U(f) as "consequential orders". I agree with the observation of Madgwick J in Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. 2) [2001] FCA 1076 (at [10]) that "any other consequential orders" in s 298U(f) "refers to orders consequential upon any order of a kind falling within" preceding paragraphs of s 298U. It is not a free-standing grant of power. Rather, it permits machinery orders. 139 A consequential order might be one, for example, which directed where a penalty was to be paid, the time by which it was to be paid or perhaps whether it was to be paid all at once or by instalments. Another kind of consequential order might be an order imposing a condition of some kind or suspending an order made under one of the earlier paragraphs until the happening of a particular event. I do not see the destruction orders as consequential upon any orders earlier made under s 298U(a) to (e). The only such earlier orders which would be relevant are the penalty orders imposed upon Mr Lane, Mr Casper, the CFMEU and the State Union. That is not the character of the destruction orders. The destruction orders were clearly intended to have effect in their own right, rather than consequentially. 140 On the appeal the parties were agreed that the provisions of s 298U were a specific and exclusive statement of the remedies available for contravention of Part XA of the WR Act. If that view is correct then, for that reason, the destruction orders were beyond power and must be discharged. Our attention was drawn by the respondent to the judgment of the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 ("Thomson") where (at 161) the following was said: The Federal Court of Australia Act sets up the Federal Court and arms it with certain powers, e.g. ss. 22 and 23. But generally speaking, and apart from s. 32, the Act does not invest the Court with jurisdiction. It leaves it to the Parliament to do so by other statutes (s. 19). This the Parliament has done by other statutes, such as the Trade Practices Act. When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act. (Emphasis added.) 141 Relying on this passage the respondent accepted on the appeal (as the appellants argued) that s 298U provided an exclusive statement of the relief available for breach of Part XA of the WR Act and that the validity of the orders made by the primary judge was to be tested solely against s 298U. 142 The principle stated in Thomson was referred to in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 ("Patrick Stevedores") at [28]. Immediately before, at [27], the majority judgment said: 27 Once the jurisdiction conferred on the Federal Court by the Act is invoked, that Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") to make "orders of such kinds, including interlocutory orders ... as the Court thinks appropriate". That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the Court in that class of proceeding. It cannot be invoked to grant an injunction where the Court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case. 143 One reason why the principle stated in Thomson did not apply in Patrick Stevedores ("this is not such a case") was that the final relief sought in that case arose from a claim in tort of conspiracy, as well as from an application seeking relief under s 298U(e) (see at [31]). Another reason was that the relief which had been granted, and was under challenge, was interlocutory (see at [26] and [35]). 144 Were it a matter for me alone, I would read the words "[b]ut this is not such a case" (in [27] of Patrick Stevedores), in the light of the other observations in the judgment, as reflecting a conclusion, in that case, that s 298U was not "an exhaustive code of the available remedies" because of the immediate nature of the relief which had been granted and the fact that the final relief sought was not only "founded upon laws made by the Parliament" but also upon the common law (cf. at [29]). Had a case of the kind presented by this appeal arisen for consideration, I do not read the majority judgment in Patrick Stevedores as preserving the operation of s 23 of the FCA Act at the point of final relief. On this view, as I have said, the relief which the primary judge might order was confined by the terms of s 298U. 145 However, the position is not that straightforward. In National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530, North J applied Patrick Stevedores to reject an argument that s 298U(b) excluded a power of interim relief. On appeal (Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 ("Davids Distribution")) Wilcox and Cooper JJ (with whom Burchett J agreed at [119]) seemed to put the matter more broadly. They said (at [36]): Like North J we think this submission is resolved against Davids by the decision of the High Court in Patrick Stevedores. Contrary to counsel's submission to us, the High Court did not hold s 23 of the Federal Court of Australia Act to have been available in that case only because there was an allegation of conspiracy. After quoting the passage from the judgment in Patrick Stevedores which I set out earlier they said: In using the words "this is not such a case", their Honours were referring to a case in which the Federal Court had been asked to restrain a threatened breach of s 298K by employers. They held, in effect, that par (e) of s 298U of the Workplace Relations Act did not exclude the general powers conferred on the Court by s 23 of the Federal Court of Australia Act. 146 Spender J accepted this analysis in McCann v Mt Isa Mines Limited [2003] FCA 1031 (at [3] to [5]). 147 With respect, I think there is room to doubt the correctness of the analysis if their Honours were intending to apply it to the question of final relief in a case based wholly on an allegation of contravention of Part XA of the WR Act. However, no application was made asking that Davids Distribution be overruled, or departed from, on this issue. There was no discussion about the point at all from either side. Notwithstanding, therefore, the agreed position of the parties, and despite any personal view of my own about the matter, in my view the argument put by the appellant to the effect that s 298U was the only source of power for the orders should not be accepted. That has consequences, as will be seen, for my view about the appropriate disposition of the appeal as it should be accepted, for present purposes, that the destruction orders were not beyond the Court's power. Although the primary judge explained the reasons for the destruction orders by reference to s 298U(e) of the WR Act it is clear that he had in mind also the power granted by s 23 of the FCA Act. In any event, even if his Honour had relied upon s 298U of the WR Act without mentioning s 23 of the FCA Act that would not render his orders invalid (see e.g. R v Graham; Ex parte Moore (1977) 138 CLR 164 at 173 and 177-8). 148 This ground of challenge on the appeal must therefore be rejected.

Denial of procedural fairness 149 I do not agree that the appellants were denied procedural fairness in relation to the destruction orders. Although the destruction orders were not in the form sought by the respondent to the appeal, they should be regarded as a development of the same concept. It should have been, and I think it was, apparent that the primary judge was concerned about the existence of the Code of Conduct form. It was in that context that the appellants provided evidence to the general effect that a new form was in use and the previous form had been discarded. The appellants led evidence specifically, on the question of relief, to the effect that the word "ensure" in paragraph 10 of the Code of Conduct form had been removed. As earlier indicated, the primary judge made the following observations about that evidence: 71 Information and belief evidence was placed before the Court to suggest that towards the end of December 2006 the Union's 'Code of Conduct for Union Delegates' form was modified by, relevantly, deleting the word 'ensure' and substituting 'encourage' so that paragraph 10 came to read: 'To encourage all workers on site to be financial members of the union …' No indication has been provided as to whether new forms have been printed, any new forms have been executed and, if so, how many, or procedures put in place for the destruction of old forms. (Emphasis added - original emphasis removed.) 150 I do not think that the destruction orders were intended to require the destruction of historical records. Rather, I think the primary judge intended that it would not be possible for the old Code of Conduct form to be used again. The primary judge appears to have taken the view that was the intended effect, also, of the orders sought by the respondent to the appeal. At one point the following exchange occurred: HIS HONOUR: What about the proposal that you are required to take out of your code of conduct the "ensure" wording - - - MR PEARCE: It has already gone, hasn't it, your Honour? HIS HONOUR: No, no, but why shouldn't there be an order that stops you from going back to it? (Emphasis added.) 151 The reference to "the proposal" seems clearly to be a reference to the orders proposed by the respondent to the appeal but the primary judge was not strictly constrained by the terms of the relief suggested by a party. There will be no denial of procedural fairness if it should reasonably have been apprehended that an "issue was or might become a live issue" (see Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305). 152 Destruction of historical records would obviously be a matter of great significance to the CFMEU and the State Union. If the primary judge intended, contrary to my view of the matter, that the CFMEU and the State Union would be required to search out and destroy historical records then some discussion of that possibility was called for. The primary judge conducted a wide-ranging discussion of various forms of relief with counsel. The fact that no reference was made to the destruction of historical records is another indication supporting the view that the destruction orders were not intended to be directed to that end. 153 On the other hand if, as I think, the primary judge did not intend the destruction of historical records but intended only to ensure that the offending form was not able to be used again, there does not seem to be much significance in the complaint which was made on the appeal, either about the character of the order or about whether it was outside the range of permissible possibilities. 154 As a result I would not uphold this ground of appeal.

Discretion 155 If the destruction orders had been intended to require the destruction of historical records I would have accepted the contention that they were too drastic and they should be set aside for that reason. 156 However, as I have indicated, I do not accept that was the primary judge's intention. To put the matter beyond doubt I would simply amend Orders 11 and 12 made by the primary judge. I would insert the word "unused" in each order after the word "all".

The Publication Orders 157 There is no doubt that the possibility of such orders was debated during the course of the proceedings leading to the orders which were made. For the reasons given earlier, I do not think that these orders can be supported by reference to either s 298U(e) or (f). It is clear that the primary judge intended that the publication orders would operate on a more general level than just addressing the particular contraventions which he found established. However, there can be no doubt about the power of the Court under s 23 of the FCA Act to order remedial advertising in appropriate circumstances. 158 The circumstances of the present case, though, do present particular issues about the intended effect of the advertisements. The publication orders were, with other orders, stayed until the hearing of the appeal. When the orders were made more than three years had passed since the contravening conduct which the primary judge found established. Now around five years have passed. Normally the Court would be slow to conclude, in favour of an appellant, that a stay had rendered orders stale but, in the present case, part of the delay was due to the necessity to dispose of an earlier appeal by the respondent to the present appeal. It was not the result of tactical manoeuvring by the appellants. I do not think the practical effect of the publication orders can be overlooked. 159 In my view the publication orders would not now do their intended work. It is too long since the contravening conduct occurred for the publication orders to be regarded as addressed to that conduct. At this remove they would serve only as instruments of embarrassment rather than, as the primary judge intended, publications which would address or remedy the conduct which was the subject of the principal proceedings. The Court's findings about the conduct of the appellants are contained in its judgments. They represent a more lasting record than the advertisements could possibly be. I would uphold the appeal against the publication orders and set them aside.

The Individual Penalty 160 The complaint made about the penalty of $1,250 imposed upon Mr Casper was twofold. First, it was suggested that it was manifestly excessive. Secondly, it was suggested that the primary judge did not take into account the fact that Mr Casper had no prior record of contravening the provisions of Part XA. 161 In Dinsdale v R (2000) 202 CLR 321 Gleeson CJ and Hayne J said (at [6]), in the context of imposing a sentence in a criminal matter: 6 … Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. 162 In House v The King (1936) 55 CLR 499 (a case in which a term of imprisonment had been imposed) the High Court said (at 505), in a passage which is taken to apply to the exercise of judicial discretions generally: It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 163 The penalty imposed upon Mr Casper was about 57% of the available maximum penalty. Viewed in that way it is in the top half of the available range. The primary judge found that Mr Casper's contravention was serious, even though it was a single contravention. Although, viewed in percentage terms, the penalty seems a high one it does not seem to me that the penalty of $1,250 can be said, in all the circumstances, to be manifestly excessive. 164 The primary judge was aware that prior conduct, if any, in contravention of Part XA of the WR Act was a relevant factor to take into account. He recorded a submission by the appellants that no penalty should be imposed upon Mr Casper. His attention was also drawn in submissions to the fact that Mr Casper did not have any prior record of contravention of Part XA of the WR Act. The primary judge made no explicit mention of that fact in his judgment but he did record the contention that "he is a law abiding person". 165 I am not persuaded that the trial judge overlooked any relevant factor. I would not interfere with the exercise of his discretion or set aside the individual penalty.

Conclusion 166 I would uphold the appeal in part. I would make the following orders: 1. Orders 11 and 12 made on 26 March 2007 be varied by inserting the word "unused" after the word "all" in each order. 2. Orders 13 and 14 made on 26 March 2007 be set aside. 3. The appeal be otherwise dismissed. 4. Leave to file a cross-appeal be refused. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Counsel for the Respondent: Mr J J E Fernon SC and Mr M S White

Crimes Act 1914(Cth)s 4AA

Workplace Relations Act 1996(Cth)ss 298SC, 298U

Crimes Legislation Amendment Act 1992(Cth)

Construction, Forestry, Mining and Energy Union v Hadgkiss [2009] FCAFC 17

Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 Australian Corporation and Consumer Commission v Dynacast (Int) Pty Ltd (formerly Phoneflasher.com Pty Ltd) ACN 061 234 642 [2007] FCA 429 Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. 2) [2001] FCA 1076 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Dinsdale v R (2000) 202 CLR 321 Effort Shipping Company Ltd v Linden Management SA (the Giannis NK) [1998] 1 AC 605 Hadgkiss v Construction, Forestry, Mining and Energy Union (No 3) [2007] FCA 87 Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 Hadgkiss v Construction, Forestry, Mining and Energy Union (No 5) [2008] FCA 1040 Hadgkiss v CFMEU [2008] FCAFC 22 Hiero Pty Ltd v Somers (1983) 68 FLR 171 Hoffman v Chief of Army (2004) 137 FCR 520 House v The King (1936) 55 CLR 499 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 Lowe v The Queen (1984) 154 CLR 606 McCann v Mt Isa Mines Limited [2003] FCA 1031 National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Postiglione v The Queen (1997) 189 CLR 295 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Graham; Ex parte Moore (1977) 138 CLR 164 Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 Spencer v Australian Workers' Union (1983) 46 ALR 389 Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (4)

Cases Cited (25)