KENNY J:
108 I have had the advantage of reading in draft the reasons for judgment prepared by Branson J. Her Honour has set out the relevant facts and, save where it is expedient to do so, I do not repeat them. For the reasons expressed by her Honour, I agree that the appeal should be dismissed to the extent that it challenges the primary judge's finding that the first alleged contravention of s 298P(3) of the Workplace Relations Act 1996 (Cth) ("the Act") was not established. Further, although I am in substantial agreement with her Honour's description of the operation of s 138 of the Evidence Act 1995 (Cth), for the reasons that appear below, it is unnecessary for me to refer further to the issues raised in connection with s 138 and to express any concluded view on them. As appears below, I differ from her Honour as to the outcome of the second limb of the appeal regarding the second alleged contravention of s 298P(3).
109 On the hearing of the appeal, the respondents submitted that the case made by the Employment Advocate ("the Advocate") at trial with regard to the second alleged contravention of s 298P(3) was bound to fail, whether or not the tape recording and the transcript were admitted into evidence. For the reasons I am about to give, I accept that submission.
110 I turn to the case that the Advocate made below. I commence by noting that this was a proceeding begun by an application and accompanying affidavits: Federal Court Rules, O 4, r 6. There were no formal pleadings. Pursuant to an order of the Court, however, the parties filed contentions of fact and law on liability: Federal Court Rules, O 10, r 1. When an order of this kind is made, the parties are required to state the facts and law on which they rely with sufficient clarity and detail to enable other parties to know the actual case sought to be made against them. Whilst statements of contentions may not be pleadings, by identifying the real issues in dispute, they perform much the same function: see, e.g., Saffron v Federal Commissioner of Taxation (1991) 91 ATC 4,501 and compare, in relation to pleadings, Banque Commerciale SA, en liquidation v Akhil Holdings Limited (1990) 169 CLR 279 ("Akhil Holdings") at 286-7 and Dare v Pulham (1982) 148 CLR 658 at 664. Statements of contentions can therefore assist an appellate court in understanding the nature of the case advanced at trial: see, e.g., McCarthy v McIntyre [1999] FCA 784 at [36].
111 In this case, the Advocate filed a document entitled "Applicant's Amended Contentions of Fact and Law Confined to the Question of Liability Only". Under the heading "Particulars of the Contravention of S.298K(1) of the Act", the Advocate asserted:
Williamson's second statements constituted conduct by Williamson and the union intended to encourage, incite or result in [CPC] doing or threatening to do any of the following:
(i) dismiss Lyten from [CPC's] employment;
(ii) injure Lyten in his employment;
(iii) alter the position of Lyten to Lyten's prejudice;
(iv) discriminate against Lyten in the terms and conditions of his employment -
for a prohibited reason or for reasons which include a prohibited reason within the meaning of s.298L(1)(b) of the Act, namely, because Lyten was not, and did not propose to become, a member of the union.
112 In the same document, under the heading "Particulars of the Contravention of S.298K(2) of the Act", the Advocate alleged:
The [second] Williamson statement constituted conduct of Williamson and the union intended to encourage, incite or result in [CPC] doing or threatening to do any of the following:
(i) terminate a contract for services it has entered into with the independent contractor, [IJ];
(ii) injure the independent contractor, [IJ], in relation to the terms and conditions of its contract for services;
(iii) alter the position of the independent contractor, [IJ], to the independent contractor's prejudice;
(iv) discriminate against another person in the terms and conditions on which the person offers to engage the other person as an independent contractor -
for a prohibited reason or for reasons that include a prohibited reason within the meaning of s.298L(1)(c)(i) of the Act, namely, because an independent contractor has one or more employees who are not, or do not propose to become, members of an industrial association.
113 The respondents would ordinarily have been entitled to rely on these particulars as confining the wider allegation to which they related, namely, that the target of the respondents' alleged misconduct was "a person and/or entity". One may accept, as the Advocate claimed, that he inadvertently omitted to amend the particulars to mirror the broader allegation. Unless, however, the respondents knew of the broader case that the Advocate sought to advance, the Advocate's mistake would not disentitle the respondents from relying on the particulars as they in fact stood. As appears below, however, until closing address, the Advocate did nothing to put the respondents (or the Court) on notice that the particulars given on this limb of his case in respect of s 298K(1) or (2) were, so far as he was concerned, incorrect.
114 It will be recalled that the Advocate alleged that, in a meeting with Mr Lee Carson of Carson Painting Contractors Pty Ltd ("CPC") and Mr John Lyten on site on 11 February 1999, the respondents, through Mr Ian Williamson, committed a second breach of s 298P(3) of the Act. According to the particulars, the Advocate's case was that Williamson made statements:
(1) advising, encouraging or inciting CPC to take action in relation to its employee, Lyten, because Lyten was not, and did not propose to become, a member of the union; and/or
(2) advising, encouraging or inciting IJ Enterprises Pty Ltd ("IJ"), an independent contractor to CPC, to take action in relation to its employee, Lyten, because Lyten was not, and did not propose to become, a member of the union.
115 On appeal, however, the Advocate contended that:
This confined approach as suggested in the particulars was not in fact how the case was argued by the Advocate.
The Advocate relied on his written submissions "provided at the time of closing" and on his oral submissions made in closing address to show that he had in fact conducted the trial on a broader footing.
116 The written submissions to which the Advocate referred indicated, however, that, even in closing, his primary submission (from which he ultimately resiled) was that Lyten was an employee of CPC and, in the alternative, of IJ. It is true that the Advocate also submitted to the trial judge that:
The effect of the second Williamson statements was that [CPC] would not be permitted to bring a non-union person such as Lyten on to the site and that if [CPC] attempted to do so, the site would be closed because members of the CFMEU would refuse to work at the site with [CPC].
Yet this passage was ambiguous. It was unclear whether or not the Advocate intended to shift his focus from Lyten to the broad class of "a non-union person" employed by CPC. A subsequent reference to "any employee (whether Lyten or otherwise)" employed by CPC or IJ tends to confirm the impression that, in closing address, the Advocate was seeking to mend a case that he thought might be failing by moving the focus from Lyten to any non-union employee.
117 In any event, the written submissions do not establish that the Advocate opened and conducted his case in evidence upon a broader footing than the particulars mentioned above indicate. Nor can this be inferred from the Advocate's closing address. On the contrary, when counsel for the Advocate sought in closing to broaden the basis of his case, counsel for the second respondent objected, saying:
[W]e're worried about the direction of this part of the submission because it is directly contrary to the case as particularised … . It would completely alter the way in which we cross-examine Carson and Lyten. It's unfair and improper, in our submission … .
Referring to the particulars set out above, the second respondent's counsel added:
It says, 'Williamson's second statement,' that's what we're concerned about. It was advice, etcetera, encouraging, etcetera, and … it gives particulars of the contravention of s 298K(1), which was sought to be incited, and in each instance it is directed to the consequences for Lyten in his employment. No reference to any other employee. We didn't touch any other employee. There was no evidence given about any other employee, in our submission, except we would say non-responsively in re-examination. This is quite improper, in our submission.
Counsel for the second respondent concluded:
Where this leads, then, is that first, if our learned friend wants to make the sort of submission he is now making he will have to amend the particulars … and he shouldn't be allowed to because it's too late. He would have to file further evidence-in-chief from these other people, whoever, they are, and the trial will then have to go back into evidence-in-chief of those people, cross-examination of them and cross-examination of Lyten and probably Carson, as a consequence.
The second respondent's counsel's objection was, in substance, that the Advocate "shouldn't be making submissions on a case that [he] ha[s]n't made".
118 The trial judge accepted, at least provisionally, the second respondent's submission that the Advocate had limited his case to Lyten and that, to the extent that he was seeking to enlarge the target beyond Lyten, he was departing from the case he had conducted up until closing address. Thus, in response to the second respondent, his Honour said:
Yes. … I tend to agree with you that the way the particulars are focused, in respect to the second contravention, they do focus on Mr Lyten alone. You have indicated that you would desire to further cross-examine if the particulars are to be in effect expanded.
It may be inferred from this that his Honour accepted, at least provisionally, that up until this point the trial had proceeded on the basis that the case against the respondents was indeed as defined in the Advocate's contentions of fact and law which, in particulars, alleged that Lyten was the target of the respondents' misconduct.
119 It is also relevant to the outcome of this appeal that, notwithstanding the challenge made by the second respondent, the Advocate made no application to amend (or, as he would have it, correct) the particulars of the second alleged contravention. Had the Advocate successfully made such an application, then it appears that the respondents would at the least have sought to reopen their cross-examination.
120 It is not to be assumed, however, that any such application on the Advocate's part would have been succeeded. On the contrary, had such an application been made, its outcome was uncertain. In Ting v Blanche (1993) 118 ALR 543 at 551, for example, Hill J refused an application to amend a statement of claim after the evidence had closed and written submissions had been made by both parties. His Honour said at 551:
Although in modern litigation pleadings are often perceived as a technicality they retain their significance as defining the issues between the parties. If amendment were now to be allowed the respondents would, or at the very least could, unless allowed to reopen their case, suffer prejudice, because the case had been fought on the basis that the issue was whether a particular set of representations were made, when the issue in the event of amendment of the pleadings would become whether an entirely different set of representations were made. As the applicants submitted, it would be possible, even at this late stage, to reopen the evidence, thereby removing this prejudice or potential prejudice, subject, perhaps, to an appropriate cost order. However, I am of the view that I should not exercise my discretion to permit this to be done. I must take into account in so doing the public interest in finality of litigation as well as the private interests of the parties in endeavouring to do justice as between them.
…
It was simply too late for an amendment to the pleadings to be made after the evidence had closed and submissions were virtually completed where the amendment of necessity required the evidence to be reopened.
Given that in this case, the Advocate's contentions of fact and law were intended to fulfil a similar function to a statement of claim, considerations similar to those mentioned by Hill J would have applied on any application on the Advocate's part to recast his case.
121 In response to the objection that it was too late for the Advocate to broaden his case beyond his particulars, his Honour ultimately indicated that he would hear any submissions the Advocate wished to make, observing that if the objection were upheld, then "all it means in the end is that I'm hearing submissions that won't ultimately assist me". His Honour concluded the debate on this point by saying to the Advocate:
I don't think it's productive to go down this track. I'll hear you on whatever you want to put to me. If I form a view about an aspect of the matter favourable to you which on re-reading the transcript, gives me any concern about whether I'm denying natural justice to the respondents, I'll call the matter on for mention ….
It may be inferred from all that relevantly passed between his Honour and counsel, as recorded in transcript, that whilst his Honour provisionally accepted the second respondent's submission as to the nature of the Advocate's case, he was prepared to hear the Advocate out in full. His Honour is to be understood as reserving to himself the opportunity to reconsider his provisional view at the conclusion of the hearing. As his Honour did not call the case on for mention subsequently, and his reasons for judgment addressed the case as it had been particularised and conducted up until the Advocate's closing address, it may be assumed that he did not alter the view that he provisionally expressed.
122 It is clear that the Advocate failed to establish the case as particularised. Towards the conclusion of the trial, the Advocate conceded that Lyten was not an employee of CPC. This accorded with the primary judge's view of the evidence. His Honour also held that there was no evidence that Lyten was an employee of IJ. His Honour described the evidence concerning Lyten's relationship with IJ in two passages. At [7], his Honour said:
From July 1998 until 11 February 1999, CPC engaged a company called IJ Enterprises Pty Ltd ('IJ') for the performance of certain work in connection with various of CPC's painting contracts. IJ was owned and controlled by a Mr Lyten. Although Mr Lyten occasionally performed actual painting work, he was overwhelmingly engaged on behalf of IJ to perform estimating work for CPC and in assisting CPC in securing contracts for the performance of painting work. He was also heavily involved in on site supervision of the work of painters employed by CPC. … . Mr Carson Snr also said that it was intended, at the outset of the work, that Mr Lyten would perform some painting duties at the Muir Street site in addition to his supervisory role. However, the evidence does not disclose that this work was anything other than incidental to the primary role for which he had been engaged at $1,000 net per week through IJ.
At [37], his Honour further stated:
There is no evidence that Mr Lyten was an employee of IJ. For what it is worth, he denied that possibility himself. The evidence is that he was a director of IJ and traded as IJ but that does not make him an employee of IJ. His relevant income tax records do not refer to him being employed by IJ.
The Advocate did not challenge these findings on appeal.
123 Notwithstanding these findings, however, the Advocate submitted on appeal that the second alleged contravention of s 298P(3) could be made out if the tape recording and the transcript were admitted in evidence. In written submissions, the Advocate said:
The content of the relevant evidence was to the effect that no person, whether being Lyten or others, including any possible current or future employee of [CPC], could work at the site unless they joined the Union. …
The effect of the relevant evidence is that if [CPC] brought any non-union persons, whether Lyten or others onto the site, the site would be closed because members of the CFMEU would refuse to work at the site with [CPC].
…
The threats [made by Williamson] were of a general nature and would have included any persons who were independent contractors who were not in the union or employees at the site who were not in the union.
124 If the case particularised and conducted by the Advocate at trial (at least until closing address) is compared with the case that he sought to make on appeal, it is evident that the case advanced on appeal departs from the case at trial in various material respects. The Advocate's case on appeal is no longer that Williamson's target was Lyten as an employee of either CPC or IJ. Instead, the Advocate's case on appeal is that Williamson's target was "any possible current or future employee of [CPC]", though not necessarily Lyten. Further, whilst the case at trial was that Williamson had targeted an employee of CPC or IJ, on appeal the Advocate's case grew to include a submission that Williamson's target "would have included" independent contractors, not just an employee, or even employees, of CPC or IJ.
125 Critically perhaps, the Advocate did not make any allegation at the commencement of the trial or during running that the relationship between CPC and IJ was a sham and that Mr Lyten was in fact retained personally by CPC as an independent contractor. On the contrary, as already noted, the Advocate's case was that CPC and IJ had entered into a genuine contractual relationship, pursuant to which IJ undertook, as an independent contractor, to perform services for CPC. Only when the hearing had all but concluded, did counsel for the Advocate touch on the possibility that the real independent contractor may have been Lyten. That possibility was not, however, further explored at trial, although it was revisited on this appeal.
126 I do not consider it open to the Advocate to advance a case on appeal that is substantially different from that conducted by him at trial (at least until closing address) in order to meet the respondents' submission that the case fought below was bound to fail. The circumstances attending the Advocate's attempt below to depart from the case as he had conducted it confirm me in this view. The Advocate had an opportunity to apply to his Honour to recast his case, as the second respondent suggested he might. Had the Advocate successfully done so, then it appears that the respondents would have sought to meet the reformulated case by reopening their cross-examination. The Advocate chose not to make any such application. In effect, the second respondent successfully opposed the Advocate's attempt to expand his case in closing address, upon the basis that the respondents had defended themselves against the case as particularised in the Advocate's contentions of fact and law.
127 Considerations of the kind mentioned in Igaki Australia Pty Ltd v Coastmine Pty Ltd (1996) 34 IPR 37 arise in this case. In Igaki, the Full Court of this Court refused an appellant's application to amend pleadings on appeal in circumstances where the respondents had invited the appellant to amend at trial. The Court observed at 49:
At the very least, it cannot be said that the respondents would have conducted their case in the same way had the amendment been sought and allowed at trial. That is sufficient to refuse the amendment.
See also Cummings v Lewis (1993) 41 FCR 559 at 567, 574-579. Although the Advocate has made no application to amend pleadings on this appeal (there being no pleadings) and no like application, he effectively sought to depart from the case he conducted at trial, notwithstanding that he made no formal application below to recast his case when challenged by the second respondent to do so.
128 The rule that an appellant is bound by the conduct of his case below is well established and regularly applied in appellate courts: see Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-11; Water Board v Moustakas (1988) 180 CLR 491 at 497; Akhil Holdings at 287; and Riseda Nominees Pty Ltd v St Vincent's Hospital (Melbourne) Ltd [1998] 2 VR 70 at 76. There are no exceptional circumstances that would justify departing from the rule in this case: contrast Electricity Commission of New South Wales v Yates (1991) 30 NSWLR 351 at 357.
129 For the reasons already given, the case litigated at trial was bound to fail, even if the tape recording and the transcript were admitted in evidence. This was because the Advocate could not establish that Mr Lyten was an employee of either CPC or IJ.