Tucker v State of Victoria [2021] VSCA 120

PROCEDURAL FAIRNESS - Whether associate judge erred in finding that respondents did not breach any procedural fairness obligations in investigating and finding proven workplace allegations against applicant - Whether employer bound by findings of investigation into alleged workplace misconduct - Appeal allowed in respect of one aspect of disciplinary procedures adopted by respondents.

DECLARATION - Jurisdiction of Supreme Court to make declaration - Declaration that respondents failed to accord applicant procedural fairness not futile - Declaration made.

FEDERAL JURISDICTION - Fair Work Act 2009 (Cth) - Whether Supreme Court has jurisdiction to make declaration as to breach of enterprise agreement - Whether matter arising under Fair Work Act 2009 (Cth) - Judiciary Act 1903 (Cth) s 39(2) - Fair Work Act 2009 (Cth) s 539(2).

PRIVACY - Definition of 'personal information' in Privacy and Data Protection Act 2014 s 3 - Whether witness' evidence of what he or she heard or observed is 'about' the witness - Inappropriate reliance on privacy grounds to withhold relevant information from employee subject to serious allegations may result in denial of procedural fairness.

COSTS - Special costs regime - Fair Work Act 2009 (Cth) s 570 - Whether associate judge erred in finding applicant's pleaded reliance on enterprise agreement having force under Fair Work Act 2009 (Cth) insufficient for the proceeding to be 'in relation to a matter arising under' that Act - Stanley v Service to Youth Council Inc [No 3] [2014] FCA 716; (2014) 225 FCR 357, considered - Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [No 2] [2015] FCAFC 166; (2015) 235 FCR 366, Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342, applied - Appeal allowed.

DAMAGES - Undertaking as to damages given by applicant - Whether associate judge erred in rejecting applicant's contentions that respondents had failed to mitigate loss and did not have 'clean hands' - European Bank Ltd v Evans [2010] HCA 6; (2010) 240 CLR 432, applied - Leave to appeal refused.

COSTS - Offer of compromise - Whether ordinary cost rule applies in federal jurisdiction - Fair Work Act 2009 (Cth) s 570 - Judiciary Act 1903 (Cth) s 79 - Supreme Court (General Civil Procedure) Rules 2015 r 26.08 not applicable - Whether failure to accept offer 'unreasonable' for purposes of Fair Work Act 2009 (Cth) s 570(2)(b) - Offer included unspecified costs irrecoverable by virtue of FWA - Appeal allowed.

PRACTICE AND PROCEDURE - Extension of time - Applicant sought leave to file application for leave to appeal 262 days after publication of Trial Division judgment - Unsatisfactory explanation for delay - Readily apparent that one aspect of a proposed ground of appeal bound to succeed - No prejudice to respondents if that aspect of ground upheld - Proposed appeal relates to primary judgment already subject of extant application for leave to appeal - Extension of time granted.

PRACTICE AND PROCEDURE - Stay - Whether appeal proceedings in Court of Appeal should be stayed pending determination of defamation proceeding in Federal Court - Application for stay refused.

PRACTICE AND PROCEDURE - Fresh evidence - Whether leave should be granted to applicant to rely on evidence that was not relied upon at trial - Application for leave refused.

Applicant's employment with SRO - Contractual and statutory provisions

Broad overview of the proceeding and the associate judge's decisions

Nature and scope of fresh evidence application

Principles regarding admission of fresh evidence

Parties' submissions regarding fresh evidence application

PART C: INJUNCTION LEAVE APPLICATION; EXTENSION OF TIME

Decision on issues of applicant's delay and prejudice to respondents

Issues in proceeding and associate judge's decision regarding injunction claim

Ground 1: Construction of the employment contract

(b) Decision on ground 3 - Customer Search Investigation

(c) Decision on ground 3 - Harassment Investigation

Overall decision on Injunction Leave Application; extension of time

PART D: INJUNCTION COSTS LEAVE APPLICATION

Associate judge's decision and parties' submissions

Associate judge's decision on damages and costs

1 The applicant was employed by the first respondent, the State of Victoria, and worked as a senior solicitor at the State Revenue Office ('SRO'). The second respondent is the Commissioner of State Revenue and exercises delegated powers with respect to SRO employees. For convenience, we will treat the SRO as the applicant's employer and refer to the SRO and the State interchangeably.

2 The applicant's conduct as an employee of the SRO was subject to an investigation into allegations of harassment ('Harassment Investigation') and a separate investigation into allegations of improper searches of customer records ('Customer Search Investigation'). His employment was suspended with pay during the course of the investigations. After the allegations against the applicant were found to be largely substantiated, the SRO proposed to give him a warning in respect of the harassment allegations and to terminate his employment in respect of the customer search allegations.

3 The applicant commenced a proceeding in the Trial Division, seeking interlocutory and permanent injunctions prohibiting the respondents from making a final decision regarding the proposed disciplinary action against him.[1] The applicant also sought declarations that the respondents failed to comply with the procedural fairness and information provision requirements of cl 21 of the Victorian Public Service Enterprise Agreement 2016 ('VPSEA') in relation to the investigations. We will refer to the applicant's claims in the proceeding as 'the applicant's injunction claim'.

4 The State gave an undertaking to the Court that, until the determination of the proceeding or as otherwise agreed between the parties or by further order of the Court, it would not finalise proposed discipline outcomes relating to the two investigations ('SRO Undertaking'). The applicant gave an undertaking to the Court to pay any damages that the State may suffer by reason of giving its undertaking ('Undertaking as to Damages').[2]

5 An associate judge relevantly made four decisions in the proceeding:

(a) She refused leave for the applicant to file a third further amended statement of claim and dismissed the proceeding ('injunction judgment').[3] The third further amended statement of claim proposed to add an allegation that, by reason of the alleged breaches of the VPSEA, the respondents had contravened s 50 of the Fair Work Act 2009 (Cth) ('FWA').

(b) She decided that the proceeding was not 'a matter arising under [the FWA]' and that the costs provisions in s 570 of the FWA were not engaged. She ordered the applicant to pay the respondents' costs ('injunction costs judgment').[4]

(c) Following a separate hearing, she ordered the applicant to pay to the State the amount of $199,681.46 pursuant to his Undertaking as to Damages ('damages judgment').[5]

(d) She ordered the applicant to pay the respondents' costs of the separate hearing as to damages ('damages costs judgment').[6]

6 On 19 July 2019, three days after publication of the injunction judgment and the injunction costs judgment, the SRO terminated the applicant's employment with immediate effect on the basis of six of the allegations which the Customer Search Investigation found to be substantiated. It appears that no disciplinary action was taken against the applicant in respect of the substantiated harassment allegations.

7 The applicant filed three applications for leave to appeal to this Court in respect of the associate judge's four decisions.

8 The first application for leave to appeal (S APCI 2019 0091) concerns the injunction costs judgment ('Injunction Costs Leave Application'). It was prepared by the applicant's legal representatives and was filed on 27 August 2019. The sole ground of appeal[7] in that application is that the associate judge erred in not concluding that the proceeding was 'in relation to a matter arising under [the FWA]'.[8]

9 The second application for leave to appeal (S EAPCI 2020 0031) concerns the injunction judgment ('Injunction Leave Application'). The applicant seeks leave to appeal on the grounds that the associate judge:

(1) erred in concluding that cl 21 of the VPSEA was not incorporated into the applicant's employment contract;

(2) erred in concluding that the combined effect of ss 8 and 20(3) of the Public Administration Act 2004 ('PAA') did not require the respondents to comply with the processes prescribed by cl 21 of the VPSEA;

(3) should have concluded that, with respect to the two investigations, the respondents breached certain obligations arising under cl 21 of the VPSEA and s 20(3) of the PAA; and

(4) should have determined that the Supreme Court had jurisdiction to make the declarations and grant the interlocutory relief sought by the applicant with respect to the claimed breaches of the VPSEA, which also constituted breaches of the FWA.[9]

10 The Injunction Leave Application was prepared by the applicant personally and was submitted for filing on 3 April 2020, 262 days after the injunction judgment was published. The applicant has sought an extension of time within which to file the Injunction Leave Application.

11 The third application for leave to appeal (S EAPCI 2020 0041) concerns the damages judgment and the damages costs judgment ('Damages Leave Application'). The applicant seeks leave to appeal on the grounds that the associate judge erred by:

(1) failing to properly engage with his claim that the State had failed to mitigate its loss;

(2) failing to properly engage with his claim that the State was not entitled to damages because it lacked 'clean hands'; and

(3) not concluding that the proceeding was a matter arising under the FWA.[10]

12 The respondents have filed a notice of contention in each of the Injunction Costs Leave Application and Damages Leave Application seeking to uphold the associate judge's costs orders.

13 The respondents have given undertakings to the applicant that they will not seek to enforce the order for damages or the two costs orders, pending the outcome of the three applications for leave to appeal (collectively, 'appeal proceedings').

14 On 24 April 2020, the applicant instituted a defamation proceeding against the SRO and one of its officers, Paul McKee ('defamation proceeding defendants'), alleging that an email that Mr McKee sent to another SRO officer on 9 June 2017 - with a copy to a further officer - defamed him. That email set out allegations against the applicant, some of which became the subject of the two investigations. The applicant has applied to this Court for a stay of the appeal proceedings pending the determination of the defamation proceeding.

15 The applicant has also applied to this Court for leave to rely on fresh evidence in support of the appeal proceedings.

(a) The applications for a stay and for leave to rely on fresh evidence will be refused.

(b) The application for an extension of time in relation to the Injunction Leave Application will be granted.

(c) The Injunction Leave Application will be granted. The appeal against the injunction judgment will be allowed in respect of grounds 1, 3 and 4 and the judge's order dismissing the proceeding will be set aside. A declaration will be made that the respondents have failed to conduct the Harassment Investigation in accordance with the procedural fairness requirements of cl 21.11(a) of the VPSEA and s 20(3)(c) of the PAA, read together with s 8(b).

(d) The Injunction Costs Leave Application will be granted. The respondents' contentions in the notice of contention are not made out. The appeal against the injunction costs judgment will be allowed. The associate judge's costs order will be set aside.

(e) The Damages Leave Application will be granted in respect of ground 3 but will otherwise be refused. The respondents' contentions in their notice of contention are made out only in relation to a notice to produce. The associate judge's damages award will not be disturbed but her order for costs in respect of the Undertaking as to Damages will be set aside except in relation to the notice to produce.

(f) The parties will be given an opportunity to make submissions on the costs orders to be made in respect of the proceeding in the Trial Division and the appeal proceedings.

Applicant's employment with SRO - Contractual and statutory provisions

17 The applicant commenced employment with the SRO on 28 November 2011 as a legal officer in its Customer Services and Debt Management Branch. By letter dated 4 October 2013, the SRO offered the applicant employment as a senior solicitor in that branch ('covering letter'). The covering letter was accompanied by a document styled 'Acceptance of Employment Terms' ('acceptance document'). The applicant signed the acceptance document on the same day.

18 The covering letter was headed 'Offer of Employment - Ongoing Contract' and relevantly stated as follows:

Your conditions of employment will be in accordance with the Victorian Public Service Workplace Determination 2012 ('The Determination') or any subsequent determination (which applies of its own force and is not incorporated into this contract). This contract of employment may be terminated by either party in line with the Determination.

Please signify your acceptance of this offer by signing the enclosed Acceptance of Employment Terms form and returning it to Human Resources. ...

19 Clauses 8 and 10 of the acceptance document stated as follows:

8 Termination Clause

This contract of employment may be terminated at any time by either party in line with the Victorian Public Service Workplace Determination 2012 ('The Determination').

...

10 Duty to comply with all SRO policies and lawful directions

As an employee of the SRO you must comply with all SRO policies and procedures (which are not incorporated as terms of this contract but you must nonetheless abide by them because they are lawful and reasonable directions) including but not limited to:

• Electronic Communications Policy
• Equal Opportunity Policy
• Health, Safety and Wellbeing Policy and Procedures

• Information Privacy Policy
• SRO Code of Ethics
• VPS Code of Conduct; and
• Any lawful directions given

20 The Victorian Public Service Workplace Determination 2012 ('VPSWD') expired on 31 December 2015 and, from 18 May 2016, was replaced by the VPSEA. The VPSEA was approved by the Fair Work Commission under pt 2-4 of the FWA (ss 169-257) and had statutory force under that Act.

21 Clause 16 of the VPSEA deals with 'Termination of Employment'. It covers matters such as the grounds upon which an employer may terminate the employment of an employee and the period of notice that must be provided to the employee.

22 Clause 21 of the VPSEA deals with 'Management of Misconduct'.

23 Clause 21.3 of the VPSEA defines misconduct for the purpose of cl 21 to include:

(a) a contravention of a provision of the [PAA], the regulations to that Act, a binding code of conduct or a provision of any statute or regulation that applies to the Employee in the Employee's employment;

(b) improper conduct in an official capacity;

(c) a contravention, without reasonable excuse, of a lawful direction given to the Employee as an Employee by a person authorised to give that direction;

(d) an Employee making improper use of his or her position for personal gain; or

(e) an Employee making improper use of information acquired by him or her by virtue of his or her position to gain personally, or for anyone else, financial or other benefits or to cause detriment to the VPS or the public sector.[11]

24 Clause 21.5 of the VPSEA provides that an employee 'is entitled to be represented by a person of their choice ... at any stage of the misconduct process'.

25 Clause 21.6 of the VPSEA deals with procedural fairness and relevantly states as follows:

21.6 Procedural fairness to apply

(a) The process for managing Employee misconduct will be consistent with the principles of procedural fairness.

...

(c) The Employer will:

(i) advise the Employee of the purpose of any meetings;

(ii) provide the Employee with a copy of the formal process to be followed;

(iii) provide a reasonable opportunity for the Employee to seek advice from the Union or a representative of their choice at any stage of the misconduct process; and

(iv) allow the Employee the opportunity to provide details of any mitigating circumstances.

(d) The Employer must take into account any reasonable explanation of any failure by the Employee to participate before making a decision under this clause 21.

26 Clause 21.7 of the VPSEA specifies steps that an employer may take where employee misconduct is alleged. Clause 21.7 relevantly states as follows:

21.7 Directions

(a) Where Employee misconduct is alleged, the Employer may do any of the following:

(i) make an initial assessment of the alleged misconduct before commencing the formal process to determine if an investigation is required in accordance with clause 21.10;

(ii) determine that it is appropriate to immediately commence an investigation of the alleged misconduct in accordance with clause 21.10;

...

(v) suspend the Employee with pay.

...

(c) The Employer will ... review any decision regarding an Employee's suspension every four weeks ... until the end of the misconduct process in accordance with this clause 21.

27 Clause 21.8 of the VPSEA requires an employer to advise an employee as to an investigation into employee misconduct in the following terms:

21.8 Advising the employee

(a) As soon as practicable after an allegation of misconduct has been made and the Employer has determined in accordance with clause 21.7(a)(i) or clause 21.7(a)(ii) that an investigation is required, the Employer will advise the Employee of the alleged misconduct in writing.

(b) The written advice will contain the allegation/s of misconduct made about the Employee. Relevant information will only be withheld where it is necessary to withhold that information in order to protect the personal privacy of any other person consistent with Federal or State legislation.

28 Clause 21.10 of the VPSEA deals with the conduct of an investigation into alleged misconduct. It relevantly provides as follows:

21.10 Investigation of alleged misconduct

(a) Where an investigation is required, the Employer will appoint a person to conduct an investigation into the alleged misconduct. ...

(b) The Employer will provide the Employee with an opportunity to speak to the investigator if the Employee wishes to do so.

(c) The investigation may include:

(i) collecting any relevant materials;

(ii) speaking with the Employee;

(iii) speaking with any relevant witnesses;

(iv) providing the Employee with specific particulars to allow the Employee to properly respond to the alleged misconduct;

(v) seeking an explanation from the Employee; and

(vi) investigating any explanation made by the Employee for the purposes of verifying the explanation so far as possible.

(d) In relation to each allegation of misconduct, the investigator will make findings as to whether:

(i) the allegation is substantiated; or

(ii) the allegation is not substantiated.

(e) Where the investigator makes a finding that an allegation is not substantiated, which is accepted by the Employer, the misconduct process will conclude in relation to any such allegation and the Employee will be informed accordingly.

(f) Where the investigator makes a finding that the allegation is substantiated, the Employer will consider this information and propose a discipline outcome.

29 Clause 21.11 of the VPSEA requires that an employee have an opportunity to respond and states as follows:

21.11 Opportunity for response by Employee

(a) As soon as practicable after the investigator has made a finding that any allegation of misconduct is substantiated, the Employee will be provided with the findings of the investigator and the proposed discipline outcome. The Employee will be provided with sufficient information to allow them a reasonable basis to respond.

(b) The Employee will be given a reasonable time to respond to the findings or the material and the recommended discipline outcome. Any response must be provided within the above reasonable time.

30 Clause 21.12 of the VPSEA deals with the determination by an employer of possible discipline outcomes. It relevantly provides as follows:

21.12 Determination of discipline outcome

(a) The Employer will consider:

(i) the findings of the investigator; and

(ii) any recommendations as to the appropriate disciplinary outcome; and

(iii) any response of the Employee (including any admission of misconduct ...); and

(iv) any prior disciplinary outcomes,

and then determine the discipline outcome that is to apply to the Employee. The discipline outcome must not be disproportionate to the seriousness of the matter.

(b) The possible discipline outcomes are:

(i) no action;

...

(viii) termination of employment.

31 Section 4(1) of the PAA defines 'public sector employment principles' as those 'set out in section 8' and 'public sector values' as those 'set out in section 7'.

32 Paragraphs (a)-(g) of s 7(1) of the PAA set out 'public sector values' that public officials, including public sector employees, should demonstrate. Paragraph (b) refers to 'integrity' and para (e) refers to 'respect'.

8 Public sector employment principles

Public sector body Heads must establish employment processes that will ensure that -

(a) employment decisions are based on merit; and

(b) public sector employees are treated fairly and reasonably; and

(c) equal employment opportunity is provided; and

(ca) human rights as set out in the Charter of Human Rights and Responsibilities are upheld; and

(d) public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment; and

(e) in the case of public service bodies, the development of a career public service is fostered.

34 Section 20 of the PAA relevantly states as follows:

20 Employment and retirement

(1) A public service body Head, on behalf of the Crown, has all the rights, powers, authorities and duties of an employer in respect of the public service body and employees in it.

* * * * *

(3) A public service body Head, in exercising a right, power, authority or duty referred to in this section, must do so in conformity with -

(a) the public sector values; and

(b) any binding code of conduct; and

(c) the public sector employment principles; ...

35 Section 4(1) of the PAA defines 'public sector body Head' to include, in relation to a public service body, a 'public service body Head'. The distinction between the public sector body Head and the public service body Head was not in issue at trial because the respondents conceded that, if the Commissioner did not hold either position in respect of SRO employees, the State was required to comply with ss 8 and 20.

36 Pursuant to s 8(b) of the PAA, the SRO adopted a 'Managing Misconduct Policy' ('Misconduct Policy'). The stated purpose of the Misconduct Policy is to set out the SRO's 'processes which ensure that the investigation and management of allegations of misconduct are conducted in a fair and reasonable manner'. The Misconduct Policy adopts the definition of 'misconduct' in cl 21.3 of the VPSEA. Clause 4 of the Misconduct Policy notes that the procedures for managing alleged misconduct are set out in cl 21 of the VPSEA. Subsequent provisions of the Misconduct Policy describe some of those procedures. It follows that the processes in cl 21 of the VPSEA are incorporated into the Misconduct Policy.

37 As at 9 June 2017, Mr McKee was the Branch Manager, Customer Services and Debt Management of the SRO. On that day, he sent an email to Darren Joyce, Executive Director, Corporate Services of the SRO, with a copy to David Heywood, Branch Manager, Human Resources of the SRO. The email set out allegations concerning harassing conduct by the applicant towards a female work colleague ('AB') and allegations concerning searches by the applicant of customer records without any work purpose. Mr Joyce was asked to 'consider the [allegations] for appropriate action'.

38 On 9 June 2017, Mr Joyce sent a letter to the applicant, which was headed 'Misconduct allegations - Clause 21 [VPSEA]'. The letter set out allegations that the applicant had engaged in harassing conduct ('Harassment Allegations') and had searched customer records with no known SRO business purpose ('Customer Search Allegations'). The Harassment Allegations and the Customer Search Allegations were based on the allegations in Mr McKee's 9 June 2017 email. Mr Joyce's letter did not refer to that email and it was not provided to the applicant.

39 Mr Joyce's letter stated that the SRO regarded the Harassment Allegations and the Customer Search Allegations 'very seriously'. Accordingly, he said he had determined under cl 21.7(a)(ii) of the VPSEA that it was appropriate in the circumstances to immediately commence an investigation by an external investigator of the alleged misconduct and suspend the applicant with pay effective immediately. Mr Joyce's letter further stated as follows:

Following the completion of the investigation, I will consider the investigation findings and determine whether any action, such as disciplinary outcomes, are appropriate. You should be aware that, given the seriousness of the allegations, if they are proven the disciplinary outcome may include the termination of your employment.

40 Mr Joyce summarised the Harassment Allegations as follows:

• On or about 22 May 2017, you made inappropriate, harassing and offensive comments in the workplace to [AB], including by suggesting you were 'stalking' her via Facebook and by other unspecified means.
• In the period between 27 April 2017 and 20 May 2017, you made inappropriate and offensive comments in the workplace to [AB], in relation to an advertised selection process for Customer Service Officer roles, including by making inappropriate and offensive comments about [two other work colleagues].
• In the period between 24 October 2016 and 24 May 2017, you have engaged in inappropriate and harassing conduct in the workplace, by repeatedly requesting that [AB] accept your friendship request on Facebook, despite her initially declining and that you have regularly discussed this in the workplace in front of colleagues.
• On or about 2 June 2017, you told [AB] in a threatening manner that she needs to be 'careful' of [another colleague], that [the other colleague] has been 'causing him stress' and you invited [AB] for drinks to 'tell [AB] all about [the other colleague]'.

41 Mr Joyce stated that, if proven, the Harassment Allegations may constitute:

(a) a contravention of [s 7(1)(e)] (respect) of the [PAA];

(b) misconduct as defined in clause 21.3(a) of the [VPSEA];

(c) a contravention of the VPS Code of Conduct, including, but not limited to clauses 6.1 and 6.4 of the VPS Code of Conduct; and/or

(d) a contravention of the SRO Values and Behaviours, specifically by breaching and/or being inconsistent with the value of Respect.

42 On 14 June 2017, the applicant's solicitors wrote to Mr Joyce seeking the following particulars in respect of the Harassment Allegations:

the names of the person(s) who have lodged a complaint about the alleged comments;

a copy of all the complaint(s);

the dates and circumstances of each of the complaint(s);

a copy of all correspondence between the SRO and the complainants regarding the alleged comments;

details of all circumstances in which the alleged comments were made including dates and times;

the names of the persons present when those alleged comments were made;

the exact wording used in respect of each of the alleged comments made;

what are the 'other unspecified means' referred to in [Mr Joyce's] first bullet point; and

particulars of the alleged course of conduct constituting stalking.

43 On 21 June 2017, Mr Heywood wrote to the applicant to advise that Lisa Klug, Associate Director of Worklogic Pty Ltd, had been appointed to investigate the Harassment Allegations and the Customer Search Allegations.

44 On 29 June 2017, Ms Klug provided the applicant's solicitors with a document titled 'Investigations - A Guide for Participants'.

45 On 4 July 2017, Mr Joyce wrote to the applicant to advise him that, if proven, the Harassment Allegations may also constitute a contravention of the harassment provisions of the SRO's Equal Opportunity Policy. Whilst that policy makes reference to the complainant making a 'formal written complaint', it does not state that the SRO cannot investigate allegations of breaches of the policy in the absence of a formal written complaint by the complainant.

46 On 7 July 2017, Mr Heywood provided to the applicant particulars of the Harassment Allegations, which extended beyond the original allegations in Mr Joyce's 9 June 2017 letter. The allegations were numbered 1 to 10. The applicant's solicitors requested further particulars of the Harassment Allegations from Ms Klug on 12 July 2017. Ms Klug responded to that request on 19 July 2017 by refusing to provide the particulars sought.

47 On 1 August 2017, the applicant attended an interview with his solicitor and Ms Klug. He also provided her with a written statement in which he denied all of the Harassment Allegations. He attended a second interview with his solicitor and Ms Klug on 10 August 2017.

48 From 21 August 2017, Ms Klug was retained to investigate only the Harassment Allegations. Ms Klug ceased to be responsible for the Customer Search Investigation because the applicant raised concerns that, as a person who was not employed by the SRO, she would be exposed to confidential information in breach of the Taxation Administration Act 1997 in the course of that investigation.

49 On 25 and 29 August 2017, Ms Klug advised the applicant and his solicitors in writing of evidence collected in the Harassment Investigation which she alleged contradicted the applicant's evidence. Ms Klug did not refer to evidence which supported the applicant's evidence. The applicant provided a further written statement to Ms Klug on 4 September 2017 in which he responded to the contradictory evidence.

50 Ms Klug produced a 68-page report on the Harassment Investigation dated 12 September 2017 ('Harassment Report'). The Harassment Report contained 38 attachments, including transcripts and notes of interviews with witnesses. Ms Klug found that allegations numbered 4, 5, 6, 7 and 9 were proven or partly proven and amounted to misconduct as defined in cl 21.3(a) of the VPSEA. She found that allegations numbered 1, 8 and 10 were partly proven, but did not amount to misconduct as defined in cl 21.3(a).[12] She found that allegation numbered 3 was not proven and made no finding in respect of allegation numbered 2. One of the proven allegations - number 7 - is discussed in detail at [306]-[307] below.

51 On 25 October 2017, Mr Joyce sent a letter by email to the applicant and attached a six-page summary of Ms Klug's findings in relation to the Harassment Allegations. In his letter, Mr Joyce stated that he 'consider[ed] Ms Klug's reasoning to be sound and the investigative process undertaken to be thorough' and that he 'therefore determined to accept Ms Klug's findings, on behalf of the SRO'. He stated that the SRO had found that the substantiated misconduct amounted to a contravention of the VPS Code of Conduct, the SRO Values and Behaviours and the harassment provisions of the SRO Equal Opportunity Policy. Mr Joyce proposed a discipline outcome consisting of a formal warning and a direction that the applicant 'undertake appropriate training in relation to [his] obligations under the VPS Code of Conduct, SRO Values and Behaviours and the SRO Equal Opportunity Policy'. Mr Joyce stated that, before he finalised his decision with respect to the proposed discipline outcome, in accordance with cl 21.11 of the VPSEA, he was providing the applicant with 'an opportunity to respond to the findings and proposed discipline outcome' by 3 November 2017. Mr Joyce's letter is discussed in detail at [298]-[299] below.

52 On 27 October 2017, the applicant's solicitors requested that he be provided with a copy of the Harassment Report. On 13 November 2017, his solicitors received a redacted copy of the Harassment Report. The SRO also extended the timeframe for the applicant's response to 27 November 2017. On that day, the applicant's solicitors requested an unredacted copy of the Harassment Report. On 30 November 2017, Mr Joyce refused this request.

53 The Harassment Investigation and the applicant's contentions in relation to it are discussed in detail below under the heading 'Part C: Injunction Leave Application; extension of time'.

54 In his 9 June 2017 letter to the applicant,[13] Mr Joyce advised of the Customer Search Allegations. Specifically, he alleged that, in the period 24 November 2016 to 23 May 2017, the applicant 'made numerous searches of customer records on the SRO eSys database, which are not related to any known SRO business purpose'. He provided the details of 17 searches within that period. Mr Joyce stated that, if proven, the Customer Search Allegations may constitute:

(a) a contravention of [s 7(1)(b)] of the [PAA];

(b) misconduct as defined in clause 21.3(b) of the [VPSEA];

(c) a contravention of the VPS Code of Conduct, including, but not limited to clause 5.3 of the VPS Code of Conduct;

(d) a contravention of the SRO Values and Behaviours, specifically by breaching and/or being inconsistent with the value of Integrity;

(e) a breach of the SRO's Electronic Communications Policy, namely that [the applicant] obtained unauthorised access to information or data on SRO's computers, specifically eSys;

(f) a breach of the Privacy and Data Protection Act 2014; and/or

(g) a breach of the SRO's Information Privacy Policy, namely that [the applicant] used personal information collected by the SRO other than in accordance with the law and for the purpose for which it was collected, or for a purpose [the applicant] would reasonably expect associated with its revenue collection or revenue protection functions.

55 In their letter of 14 June 2017 to Mr Joyce,[14] the applicant's solicitors stated that the applicant's 'work includes conducting searches for customers to the SRO, which is performed on a daily basis and would be constituted by potentially hundreds of searches on a daily basis'. They requested the following particulars:

the date and time of the alleged unauthorised accesses;

all evidence of [the applicant] personally undertaking the alleged searches;

a record of all other searches undertaken by [the applicant's] PC between 24 November 2016 and 23 May 2017;

the evidence that [Mr Joyce relies] upon to allege misconduct;

an explanation of the time period and date range selected for the alleged unauthorised searches;

an explanation regarding the delay in bringing any such misconduct allegations considering the timeframe selected; and

an explanation as to what gave rise to the SRO initiating enquiries into [the applicant's] use of customer [searches].

56 On 19 June 2017, Mr Joyce wrote to the applicant's solicitors. He stated that they would be advised once an investigator was appointed and that, given that cl 21.6 of the VPSEA would apply to the investigation, it was not necessary to provide the applicant with the particulars sought at that time. The letter attached the Code of Conduct and SRO Values and Behaviours document and noted that the other policy documents had already been provided to the applicant.

57 In his letter of 4 July 2017 to the applicant,[15] Mr Joyce advised of further Customer Search Allegations relating to five customers whose records the applicant allegedly searched between 6 January 2015 and 24 November 2016. Mr Heywood provided the applicant with further particulars of the Customer Search Allegations on 18 July 2017.

58 In his statement dated 1 August 2017,[16] the applicant denied the Customer Search Allegations.

59 On 21 August 2017, Mr Joyce wrote to the applicant advising that Don Di Federico, Branch Manager, Investigations in the Compliance Division of the SRO, had been appointed to undertake the Customer Search Investigation.

60 By email dated 15 September 2017, Mr Di Federico provided the applicant with an outline and proposed timeline of the Customer Search Investigation. He invited the applicant to attend a meeting to give oral evidence or, alternatively, provide his evidence in writing.

61 On 19 September 2017, Mr Joyce wrote to the applicant advising of further Customer Search Allegations relating to five customers whose records the applicant allegedly searched between 5 January 2015 and 25 May 2015.

62 Mr Di Federico emailed the applicant on 22, 26 and 28 September 2017, noting that he had not received a response to his email of 15 September 2017.

63 On 2 October 2017, Mr Di Federico again emailed the applicant, stating that he had still not received a response and would progress the Customer Search Investigation. He attached a list of questions and a spreadsheet containing a detailed list of searches relating to the Customer Search Allegations. The spreadsheet contained an alphabetical identifier (A to Z) for each customer together with information such as the date and time of the search, the module description searched and the length of the search. The taxpayers' names corresponding with the identifiers were provided to the applicant in a separate document.

64 The questions posed by Mr Di Federico were as follows:

To be answered in respect of each search (including multiple searches of the same person/entity):

Did you undertake this e-Sys search on the date/time stated in the spreadsheet?

Was this search undertaken for a work purpose?

If this search was undertaken for a work purpose, what was the work purpose?

If this search was not undertaken for a work purpose, what was the purpose of the search?

To be answered in respect of each person searched:

Have you dealt with this person at any time during the course of your employment with the SRO?

If you have dealt with this person, what was the nature of your dealings with them?

Do you know this person personally?

If you do not know this [person] personally, what is your relationship to this person?

If you have not dealt with this person during the course of your employment with the SRO, and you do not know them personally, do you know of this person?

If you know of this person, how do you know of them?

65 On 6 October 2017, the applicant provided a written statement responding to the Customer Search Allegations and the questions asked by Mr Di Federico. The applicant stated that 'each and every search [he] performed on eSys during [his] time at the SRO has been for a legitimate work-related purpose'. He stated the following with respect to six customers:

[Customer] B. This may be my former manager at the SRO. This may have been an example search for me or one of my colleagues. Without access to my work records, I cannot say anything further.

...

[Customer] E. I do not know this person. Without access to my work records, I cannot say anything further.

...

[Customer] G. I am fairly confident that this is a legal advisor to a person I was bankrupting on behalf of the SRO. I vaguely recall an enquiry being made by this person whilst we were discussing that matter. Without access to my work records, I cannot say anything further.

...

[Customer] Q. I believe that this may be someone I went to law school with. I recall sending emails regarding this person using my work email address in relation to a sponsorship for my volunteer work on [a] Society. There may have been an enquiry made by this person. Without access to my work records, I cannot say anything further.

...

[Customer] V. I am fairly confident that this is a legal advisor to various liquidators who had commenced legal proceedings against the SRO. I vaguely recall an enquiry being made by this person whilst we were discussing that matter. Without access to my work records, I cannot say anything further.

[Customer] W. I believe I recognise this name, and if it is the person I believe, I do not know them well. I vaguely recall her making an enquiry about her property. Without access to my work records, I cannot say anything further.

...

66 On 13 November 2017, Mr Di Federico wrote to the applicant to invite him to attend the SRO on an agreed day to access work records relating to the Customer Search Allegations.

67 On 28 November 2017, the applicant's solicitors wrote to Mr Di Federico. They stated that the applicant was 'unaware of the basis upon which the SRO alleges he has committed "misconduct"' and asked for the following particulars of the Customer Search Allegations:

(a) all evidence of [the applicant] personally undertaking the alleged searches;

(b) a record of all searches undertaken by [the applicant's] PC from 5 January 2015 to 9 June 2017;

(c) the evidence the SRO relies upon to allege misconduct;

(d) an explanation of the time period and date range selected for the alleged 'unauthorised' searches;

(e) an explanation as to what gave rise to the SRO initiating enquiries into [the applicant's] use [of the] eSys database;

(f) providing the detailed explanation of which law, regulation, policy or term of [the applicant's] employment within the VPS, governed [his] use of the 'eSys database' for each of the alleged searches which spanned multiple years, including providing the specific clause, provision and text that:

(i) details what the SRO considers to be 'appropriate'/ 'inappropriate' and 'authorised'/'unauthorised' use of the eSys database, particularly noting [the applicant's] instructions that there are no security protocols associated with the eSys database; and

(ii) details of what the SRO considers is and is not a 'business purpose' for searches made by SRO staff using the eSys database.

68 In a letter to the applicant's solicitors dated 7 December 2017, Mr Di Federico stated that '[t]he SRO's position is that [the applicant] has been provided with sufficient particulars to properly respond to the [Customer Search] Allegations'.

69 In a separate letter to the applicant dated 7 December 2017, Mr Di Federico provided independent evidence which contradicted evidence given by the applicant in his statement dated 6 October 2017. Mr Di Federico invited the applicant's response to the contradictory evidence.

70 On 18 December 2017, the applicant and his solicitor attended the SRO's premises to inspect his work records to respond to the Customer Search Allegations.

71 On 22 December 2017 and 5 January 2018, Mr Di Federico offered the applicant a further opportunity to attend the SRO to search its systems. The applicant did not take up this offer.

72 On 6 February 2018, Mr Di Federico produced an 83-page report on the Customer Search Investigation ('Customer Search Report'). He found that 24 customer records were accessed by the applicant 'without a known SRO business purpose relevant to [his] employment' and therefore 24 of the 26 Customer Search Allegations against the applicant were substantiated. He determined that the substantiated allegations constituted misconduct as defined in cl 21.3(b) of the VPSEA.[17]

73 On 7 February 2018, Mr Joyce sent a letter by email to the applicant and attached a complete copy of the Customer Search Report. Mr Joyce stated that he had 'received and considered' the report and considered 'the investigative process undertaken to be thorough and Mr Di Federico's reasoning ... to be sound'. Accordingly, he had 'determined to accept Mr Di Federico's findings ... on behalf of the SRO'.

74 In his letter, Mr Joyce stated that the SRO had found that the 24 substantiated allegations of misconduct amounted to a contravention of: s 7(1)(b) of the PAA; the VPS Code of Conduct; the SRO Code of Ethics; the SRO Values and Behaviours; the SRO's Electronic Communications Policy; and the SRO's Information Privacy Policy. Mr Joyce stated that he had formed the view that the substantiated misconduct constituted 'serious misconduct' because, in the absence of any explanation to the contrary, the applicant had 'misused [his] access to taxpayers' private information for non-work related purposes, on a repeated basis'.

75 In his letter, Mr Joyce singled out six of the substantiated Customer Search Allegations which related to customers B, E, G, Q, V and W ('BEGQVW allegations'). Mr Joyce stated that, in relation to the BEGQVW allegations, evidence was obtained during the Customer Search Investigation which either contradicted the information the applicant had provided to Mr Di Federico or 'positively indicated that there was no SRO business purpose for [the applicant's] searches of those customers' records'. Mr Joyce stated that he considered that, in relation to the BEGQVW allegations, the applicant had 'provided misleading or untruthful responses'.[18]

76 In his letter, Mr Joyce stated that, in proposing a discipline outcome, he had only relied on the findings relating to customers B, E, G, Q, V and W, which he described as 'Key Misconduct'. He stated that '[t]he findings for the Key Misconduct were supported by the clearest evidence that [the applicant] did not have a business purpose for undertaking the relevant ... searches' and that 'it [was] not necessary to rely ... upon all of the other Substantiated Misconduct in proposing the discipline outcome, given the seriousness of the Key Misconduct alone'. Mr Joyce stated that, on the basis of the Key Misconduct, he proposed to recommend to the Commissioner that the applicant's employment be terminated with immediate effect. He stated that, before the proposed discipline outcome was finalised, in accordance with cl 21.11 of the VPSEA, he was providing the applicant with 'an opportunity to respond to the findings and proposed discipline outcome' by 16 February 2018.

77 In his letter, Mr Joyce stated that the proposed discipline outcome was unrelated to the proposed discipline outcome in the Harassment Investigation, in respect of which no final outcome had been reached.

78 Following further correspondence between Mr Joyce and the applicant's solicitors, the deadline for the applicant to respond to the Customer Search Report and the proposed discipline outcome was extended to 23 February 2018.

79 The applicant's solicitors requested the SRO to provide a redacted version of the Customer Search Report, which deleted confidential taxpayer information, so that they could review that version and advise the applicant on it. The SRO refused to provide a redacted version, stating that the applicant could prepare such a version himself.

80 No substantive response by the applicant to Mr Di Federico's findings in the Customer Search Report or to the proposed discipline outcome was in evidence at the trial, although the applicant stated during cross-examination that he conveyed to Mr Joyce his concerns regarding Mr Di Federico's findings and the proposed discipline outcome.

81 The Customer Search Investigation and the applicant's contentions in relation to it are discussed further below under the heading 'Part C: Injunction Leave Application; extension of time'.

Broad overview of the proceeding and the associate judge's decisions

82 On 12 December 2017, the applicant commenced the Trial Division proceeding, seeking interlocutory and permanent injunctions prohibiting the respondents[19] from proposing a discipline outcome under cl 21 of the VPSEA in respect of the Harassment Investigation. Alternatively, he sought declarations that the respondents failed to afford him procedural fairness and/or failed to provide him with all relevant material that was before the decision-maker. He also sought an unredacted copy of the Harassment Report and its 38 attachments. On 21 December 2017, he amended his originating motion so that the injunctions he sought would instead prohibit the respondents from reaching a final decision with respect to a discipline outcome.

83 On 13 March 2018, the applicant further amended his originating motion to seek analogous injunctive and declaratory relief in respect of the Customer Search Investigation. He did so pursuant to leave granted by the associate judge on 2 March 2018. The associate judge's order dated 2 March 2018 recorded the Undertaking as to Damages and the SRO Undertaking. Those undertakings are set out at [417] below.

84 On 15 March 2018, the applicant filed a statement of claim in the proceeding. On 10 April 2018, he amended his statement of claim by leave of the Court.

85 On 28 May 2018, the applicant made an interlocutory application in the proceeding seeking leave to file a further amended statement of claim ('Proposed FASOC'). Among other things, the Proposed FASOC pleaded that, by reason of the respondents' alleged breaches of the VPSEA, the respondents had contravened s 50 of the FWA. The applicant also sought to amend his prayer for relief to seek an order pursuant to the FWA that a pecuniary penalty be imposed on the respondents for their alleged contraventions of s 50 of the FWA.

50 Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

Note 1: This section is a civil remedy provision (see Part 4-1).

...

87 On 18 July 2018, McDonald J granted the applicant leave to further amend his statement of claim, save for the amendments relating to the FWA.[20] McDonald J held that, pursuant to s 539(2) of the FWA, the Supreme Court did not have jurisdiction to hear and determine the applicant's claims alleging contraventions of s 50 of the FWA.[21] He further held that it would not be an appropriate exercise of the Court's power to permit a party to amend a pleading if the amendment seeks to plead a cause of action which the Court has no power to hear and determine.[22]

88 Section 539 of the FWA is set out at [342] below. Columns 2 and 3 in respect of items 4 and 5 of the table in s 539(2) of the FWA relevantly provide that an application in relation to an alleged contravention of s 50, which is described in column 1 as a 'civil remedy provision', may be filed by an employee or an employer in the Federal Court, the Federal Circuit Court or 'an eligible State or Territory court'. Section 12 defines 'eligible State or Territory court' as including the Magistrates' Court and the County Court. The Supreme Court is not 'an eligible State or Territory court'.

89 On 20 July 2018, the applicant filed a further amended statement of claim pursuant to the leave granted by McDonald J on 18 July 2018.

90 On 31 January 2019, the applicant filed a second further amended statement of claim by leave of the Court ('2nd FASOC'). As discussed in detail at [214] below, by the 2nd FASOC, the applicant relied on three legal bases upon which the two investigations had to be conducted in accordance with the VPSEA. They were: his employment contract, the PAA and approval of the VPSEA by the Fair Work Commission pursuant to s 185 of the FWA. The applicant pleaded that the respondents had breached cl 21 of the VPSEA in their conduct of the two investigations and, as a result, they had breached the Misconduct Policy (which incorporated the processes in cl 21), his employment contract and ss 8 and 20(3) of the PAA.

91 The respondents filed a defence to the 2nd FASOC on 1 February 2019, in which they denied that the VPSEA had legal force either as an express term of the employment contract or under the PAA. However, as discussed at [217]-[218] below, they admitted that the VPSEA 'covered and applied' to the applicant and the SRO in their employment relationship by virtue of its approval under s 185 of the FWA. The respondents denied the breaches alleged by the applicant.

92 The proceeding was heard by the associate judge on 4-6 February and 7 May 2019. The applicant was represented by a solicitor and senior and junior counsel. On the last day of the trial, the applicant sought leave to file a third further amended statement of claim ('Proposed 3rd FASOC') pursuant to which he alleged that, by contravening the VPSEA, the respondents contravened s 50 of the FWA. No specific relief was sought in respect of the alleged breaches of s 50.

93 The associate judge refused leave for the applicant to file the Proposed 3rd FASOC.[23] She found that the application for leave to amend was an abuse of process because the application was made during the applicant's reply submissions at trial and McDonald J had already ruled that the applicant could not amend his pleading to include a claim for contravention of s 50 of the FWA.[24]

94 The associate judge held that neither the applicant's employment contract nor ss 8 and 20(3) of the PAA (via the Misconduct Policy) mandated that cl 21 of the VPSEA be followed.[25] In any event, she found that the respondents had not breached cl 21.[26]

95 The associate judge stated that it was common ground between the parties that s 20(3)(c) of the PAA imposed an obligation on the respondents to comply with the employment principles in s 8.[27] She found that the respondents had not breached the principle in s 8(b) that the applicant be treated fairly and reasonably and therefore they had not breached s 20(3).[28]

96 The associate judge made an order on 16 July 2019 dismissing the proceeding against the respondents.

97 The associate judge's reasons in the injunction judgment are discussed in more detail at [222]-[235] below.

98 Relying on the finding of abuse of process in the injunction judgment, the respondents sought the following indemnity costs order:

The [applicant] pay the [respondents'] costs of and incidental to his application for leave to amend his claim (including [his] attempt to rely on the Judiciary Act 1903 (Cth)), such costs to be taxed on an indemnity basis in default of agreement.

99 The applicant submitted that he should not be ordered to pay any of the respondents' costs by reason of s 570 of the FWA. Section 570 is set out at [365] below. In broad terms, s 570(1) provides that a party to proceedings 'in relation to a matter arising under [the FWA]' may be ordered to pay another party's costs only in the limited circumstances set out in s 570(2).

100 The associate judge found that the proceeding was not 'in relation to a matter arising under [the FWA]' and, accordingly, held that s 570(1) was not applicable.[29] She held that, because she made a finding that there was an abuse of process by the amendment application being made on the fourth day of the trial, it was appropriate that indemnity costs be limited to that issue. She ordered the applicant to pay the respondents' costs of and incidental to the written submissions on the application for amendment on an indemnity basis.[30] She otherwise ordered the applicant to pay the respondents' costs on the standard basis.

101 The associate judge's reasons in the injunction costs judgment are discussed in more detail at [366]-[369] below.

102 As we have already stated, the SRO terminated the applicant's employment on 19 July 2019, three days after the publication of the injunction judgment and the injunction costs judgment. The SRO's letter of termination dated 19 July 2019 stated that the reasons for the termination were those set out in Mr Joyce's 7 February 2018 letter.[31] Those reasons relate exclusively to the Customer Search Report. The SRO's termination letter also stated that no final outcome had been reached in relation to the proposed discipline outcome arising from the Harassment Report.

103 On 30 July 2019, the applicant lodged an unfair dismissal claim with the Fair Work Commission ('unfair dismissal proceeding').

104 Following the publication of the injunction judgment and the injunction costs judgment - and the termination of the applicant's employment - the State sought to enforce the applicant's Undertaking as to Damages. The State claimed that, by reason of the SRO Undertaking, it had incurred a loss of $199,681.46 between the date the SRO Undertaking was given (namely, 2 March 2018) and the date the applicant's employment was terminated (namely, 19 July 2019) ('SRO Undertaking Period'). This loss was said to comprise salary and accrued annual and long service leave paid to the applicant, as well as amounts of taxation remitted to the Australian Taxation Office ('ATO') and superannuation remitted to the applicant's superannuation fund during the SRO Undertaking Period.

105 The State's damages claim was heard on 24-25 September and 16 October 2019. The applicant represented himself at the hearing.

106 The associate judge rejected the various submissions the applicant made in seeking to resist the State's damages claim, including that the State had, by continuing his suspension and paying his salary rather than arranging work for him, failed to mitigate its loss, and that the State lacked 'clean hands'. She ordered the applicant to pay damages to the State in the gross amount of $199,681.46 that was claimed by the State.[32]

107 The associate judge's reasons in the damages judgment are discussed in more detail at [419]-[428] below.

108 The State sought an order that the applicant pay its costs of its damages claim on the indemnity basis from the date of an offer of compromise and on the standard basis for the preceding period. Both respondents also sought their costs on an indemnity basis in respect of a notice to produce served by the applicant on 10 October 2019, which the associate judge had set aside on 16 October 2019.[33]

109 The applicant again submitted that s 570 of the FWA was applicable to the proceeding. He contended that it was not unreasonable for him not to accept the offer of compromise.

110 The associate judge stated that, as she had already held that s 570 of the FWA was not applicable to the proceeding, a separate analysis of whether it was applicable was unnecessary.[34]

111 The associate judge held that the applicant's refusal to accept the respondents' offer of compromise engaged r 26.08 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules') in relation to the State's costs of its damages claim. She found that the State was entitled to indemnity costs for costs incurred after 11:00 am two business days after the offer was made and costs on the standard basis for costs incurred prior to that time.[35] She also found that the applicant should pay the respondents' costs of the applicant's notice to produce for various reasons, including that it was served late and had no forensic purpose.[36]

112 The associate judge's reasons in the damages costs judgment are discussed at [429]-[431] below.

113 The balance of this judgment is divided into the following parts:

• Part A: Stay application
• Part B: Fresh evidence application
• Part C: Injunction Leave Application; extension of time
• Part D: Injunction Costs Leave Application
• Part E: Damages Leave Application
• Part F: Conclusion

114 The applicant seeks an order that the appeal proceedings be stayed until the defamation proceeding he commenced in the Federal Court on 24 April 2020 is determined.[37]

[a] [a stay] is required to ensure the:

i just and efficient determination of the proceedings; and

ii efficient use of judicial and administrative resources;

[b] the issues, evidence and facts in dispute in the defamation proceeding are materially relevant to the issues in [the appeal] proceedings;

[c] to the extent that they are relevant, the applicant seeks to use documents, facts and evidence adduced in the defamation proceeding in support of his 'Further Evidence' and 'Extension Applications' filed on 3 April 2020 and 28 April 2020, respectively, in [the appeal] proceedings;

[d] there is an overlap of fact and issues with respect to the defamation proceeding; and

[e] there are risks of inconsistent rulings and findings in relation to the same facts.

116 The applicant also seeks orders pursuant to ss 26 and 65A of the Civil Procedure Act 2010 ('CPA'). As such orders would not provide any assistance to the applicant or to the Court in relation to the issues in the appeal proceedings, we will not discuss them.

117 By an amended statement of claim filed on 21 June 2020, the applicant claims that Mr McKee's 9 June 2017 email to Mr Joyce[38] carried various defamatory meanings, including the following:

(b) he had been a physical threat to AB and her children;

(c) he had scandalously stared at AB in a leering fashion in the SRO's offices;

(e) he had been a threat to the health and safety of AB and other SRO staff members;

(h) he had improperly used information acquired by virtue of his employment.

118 The applicant seeks aggravated damages and special damages from the defamation proceeding defendants (the SRO and Mr McKee). The particulars of aggravated damages upon which the applicant relies include: allegations that the defamation proceeding defendants failed to contact taxpayers whose privacy he was said to have breached; the absence of a complaint by any such taxpayer; and the absence of a 'filed' complaint by AB.

119 In their defence to the applicant's original statement of claim, the defamation proceeding defendants plead that the defamation proceeding is barred pursuant to s 5(1AAA) of the Limitation of Actions Act 1958 because it was not commenced within one year of the publication of Mr McKee's 9 June 2017 email. They also plead that the email was published in Victoria and that such publication is insufficient to invoke the jurisdiction of the Federal Court. They deny that Mr McKee's 9 June 2017 email was capable of carrying the defamatory meanings alleged by the applicant. Further or alternatively, they plead that, if Mr McKee's 9 June 2017 email carried any of the alleged defamatory meanings, then they rely upon the common law defence of qualified privilege. They do not plead the defence of justification.

120 We have not been provided with any amended defence that may have been filed in response to the amended statement of claim.

121 This Court has power to stay a proceeding.[39] In Sterling Pharmaceuticals Pty Ltd v The Boots Co (Australia) Pty Ltd,[40] Lockhart J summarised the considerations to be taken into account in deciding whether to grant a temporary stay of a proceeding pending the determination of a proceeding in another court in the following terms:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues.
• Generally balancing the advantages and disadvantages to each party.[41]

122 In Bella Products Pty Ltd v Creative Designs International Ltd, Finkelstein J stated that the following propositions may be drawn from the factors in Sterling Pharmaceuticals:

(a) it is undesirable that two courts should determine the same dispute; and

(b) practical considerations based on common sense and fairness should dictate which action should proceed first.[42]

123 The applicant submitted that the stay was required to ensure the just and efficient determination of the defamation proceeding and the appeal proceedings, as well as the efficient use of judicial and administrative resources.

124 The applicant contended that there was an overlap of facts, evidence and issues between the two sets of proceedings. He stated that documents he has obtained - and further documents he has sought - in the defamation proceeding are 'materially relevant' in the appeal proceedings to the extent that they demonstrate two matters. Those matters are that the respondents concealed information from him during the two investigations and gave false and misleading evidence in the Trial Division proceeding. Accordingly, so he argued, the documents support his fresh evidence application and his extension of time application in the appeal proceedings.

125 The applicant also submitted that a stay was warranted because there was a risk of inconsistent rulings and findings being made in the two sets of proceedings in relation to the same facts.

126 The respondents submitted that there was no relevant overlap between the appeal proceedings and the defamation proceeding because the issues to be determined in the two sets of proceedings are not the same or substantially the same.

127 The respondents contended that a stay in the appeal proceedings to enable the applicant to use documents he might receive in the defamation proceeding was not the appropriate way for the applicant to obtain documents for use in the appeal proceedings.

128 The respondents argued that staying the appeal proceedings would be prejudicial to the respondents because they have given undertakings to not enforce the orders for damages and costs against the applicant until the determination of the appeal proceedings. According to the respondents, the defamation proceeding may not be determined for a significant period of time, therefore the prejudice caused by the delay in enforcing the orders in their favour could be significant.

129 In our opinion, the principles in Sterling Pharmaceuticals require that the application for a stay of the appeal proceedings be refused.

130 The Injunction Costs Leave Application and Injunction Leave Application were commenced before the defamation proceeding and the entirety of the appeal proceedings have reached the stage where they can be heard and determined, whereas the defamation proceeding is still in the interlocutory stages. Further, the defamation proceeding defendants have pleaded threshold issues which, if determined in their favour, may result in the proceeding being dismissed without any adjudication on the merits.

131 The issues in the appeal proceedings are different from those in the defamation proceeding. As such, there is no real risk that the determination of the appeal proceedings will have a material impact on the defamation proceeding or that there might be inconsistent judicial rulings and findings on the same subject matter. The appeal proceedings do not involve the giving of oral evidence by any witness and there will be no impact on any witnesses who might be called to give evidence in the defamation proceeding.

132 It is in the interests of the administration of justice that the appeal proceedings be resolved as soon as possible rather than being delayed for a substantial period pending the outcome of the defamation proceeding. A stay of the appeal proceedings would be inconsistent with the overarching purpose in s 7(1) of the CPA, which is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in the proceeding.

133 The appeal proceedings can be determined on the basis of the materials before this Court. No work that has already been undertaken in either the appeal proceedings or the defamation proceeding would be wasted if the appeal proceedings are not stayed. Further, the applicant would not suffer any real prejudice if the stay is not granted whereas the respondents would suffer some prejudice if a stay is granted.

134 We reject the applicant's submission that the prospect of him obtaining additional evidence in the defamation proceeding which he could seek to use in the appeal proceedings is a proper basis for staying the appeal proceedings. The applicant has already obtained information in the defamation proceeding which he has sought to use in the appeal proceedings as part of his fresh evidence application.

135 The events that are the subject of the appeal proceedings occurred in 2017. It is in the public interest that the litigation arising from those events be finalised as soon as possible.

136 For the above reasons, practical considerations based on common sense and fairness require that a stay is refused and that this Court determine the appeal proceedings without any delay.

Nature and scope of fresh evidence application

137 The applicant has applied for this Court to receive the following fresh evidence in the appeal proceedings pursuant to r 64.13 of the Rules:

(a) Mr McKee's 9 June 2017 email;[43]

(b) the questions that Ms Klug asked one of the applicant's colleagues at the SRO, Jonathan Kerr, during the Harassment Investigation;

(c) Mr Kerr's written responses to Ms Klug's questions;

(d) a letter from the respondents' solicitors to the applicant dated 14 January 2020 ('SRO's 14 January 2020 letter'), an affidavit sworn by Mr Joyce on 19 August 2019 in the State's damages claim and the transcript of the oral evidence of Mr Joyce and the Commissioner in the hearing of the State's damages claim;

(e) the defence of the defamation proceeding defendants dated 27 May 2020;[44]

(g) to the extent necessary, the applicant's affidavits affirmed on 11 December 2017 and 23 February 2018 filed in the Trial Division proceeding;

(h) witness statements of Mr Kerr and three other individuals filed in the unfair dismissal proceeding;

(i) a witness statement of the applicant's father filed in a VCAT proceeding the applicant brought against the SRO concerning privacy issues;

(j) documents released to the applicant by the SRO under the Freedom of Information Act 1982 ('FOI Act');

(k) a complaint made by the applicant against Mr McKee dated 31 May 2017 addressed to Mr Heywood and Tracey Gittins, Principal HR Consultant, Human Resources of the SRO;

(l) a complaint filed by a Victorian taxpayer against Mr McKee dated 23 October 2017; and

(m) a letter from the applicant to the Commissioner and the Attorney-General of Victoria dated 10 April 2020.

138 Set out below are brief comments on each of the above items of evidence:

(a) We have already referred to Mr McKee's 9 June 2017 email at [14] and [37]-[38] above. The applicant received it on 25 September 2019 during the hearing of the State's damages claim.

(b) The applicant received Ms Klug's questions to Mr Kerr and his responses on 31 August 2019, after the publication of the injunction judgment but before the hearing of the State's damages claim.

(c) Mr Kerr's responses to Ms Klug's questions were exculpatory of the applicant.

(d) The SRO's 14 January 2020 letter, which was sent to the applicant in response to his correspondence alleging privacy breaches by the SRO, relevantly stated as follows:

It is correct that the SRO has not notified the 26 taxpayers who were the subject of your searches, of the [Customer Search Investigation] or its findings. It is the State's firm position that it was not, and is not, required to do so.

Most importantly, there is no legal obligation to this effect. Even if your conduct as found to have occurred constituted a breach of the Privacy and Data Protection Act 2014 (Vic) ... or the Taxation Administration Act 1997 (Vic) ... neither act requires that affected individuals be notified of a breach.

Of course, if the SRO considered there to be any risk to taxpayers arising from your misconduct, it would have notified them immediately regardless of the absence of any legal obligation to do so. In that regard, it is relevant that you were alleged, and ultimately found, to have accessed the records without a known business purpose. It was not alleged that you used or disclosed this information. The SRO did not consider there to be any suggestion that taxpayers were at risk, and accordingly, investigated and addressed your misconduct as an internal matter. This was a decision open to the SRO under the relevant legal framework.[45]

In their oral evidence in the hearing of the State's damages claim, Mr Joyce and the Commissioner stated that the SRO maintained the applicant's suspension during the SRO Undertaking Period because of concerns that he might access customer information for non-SRO purposes. Mr Joyce made the same statement in his affidavit of 19 August 2019.

(e) In their defence in the defamation proceeding, the defamation proceeding defendants did not plead the defence of justification.

(f) The unredacted Customer Search Report cannot constitute fresh evidence because it was provided to the applicant on 7 February 2018 and was available to him prior to the hearing of his injunction claim.

(g) The applicant's affidavits were filed in the Trial Division proceeding by him and therefore cannot constitute fresh evidence.

(h) The witness statements filed in the unfair dismissal proceeding comprise a statement from Mr Kerr, a statement from another work colleague and statements from two taxpayers. The statement of one taxpayer was to the effect that she had authorised the applicant to access her records to assist her with a query, she had not complained about the applicant accessing her records, she was not informed of the Customer Search Investigation and she did not authorise the SRO to use her records for the purposes of the investigation. The statement of the other taxpayer was to the effect that he was aware that the applicant was alleged to have accessed his records, he had provided the SRO's investigator with two reasons why the applicant may have accessed his records and he would not object to the applicant accessing his records for those reasons. The two reasons suggested by that taxpayer do not have an SRO-business purpose.

(i) In his witness statement dated 29 September 2019, the applicant's father stated that he was not contacted by the SRO regarding either of the two investigations and did not authorise the SRO to use any of his records for any such investigation.

(j) The documents released by the SRO under the FOI Act show the legal costs and other expenses that the SRO had incurred in relation to the two investigations and the various legal disputes with the applicant.

(k) The applicant's complaint dated 31 May 2017 alleged that Mr McKee had engaged in bullying behaviour against the applicant at a meeting relating to the applicant's work performance that was held on that day.

(l) The taxpayer who, according to the applicant, made a complaint about Mr McKee's behaviour at the abovementioned meeting on 31 May 2017, had acted as a support person for the applicant during that meeting.

(m) The applicant's letter to the Attorney-General and the Commissioner dated 10 April 2020 alleged that 'the SRO has concealed key documents and facts from the Court, and the applicant'.

139 The ground upon which the applicant sought leave to adduce the fresh evidence was that the evidence:

tends to show that:

(i) a miscarriage of justice has occurred;

(ii) the respondents concealed significant facts, documents and evidence from the Court and the applicant with respect to [the Trial Division proceeding]; and

(iii) errors of [law] have occurred as a result of the respondents' concealment of [the] significant facts, documents and evidence from the Court and the applicant in the [Trial Division proceeding].

140 In an affidavit dated 28 April 2020, the applicant described the fresh evidence listed at [137] above and when he had obtained it. He stated that, had he been in possession of the fresh evidence, he would have tendered it as evidence in the Trial Division proceeding.

Principles regarding admission of fresh evidence

64.13 Further evidence in application for leave to appeal or appeal

(1) Unless the Court of Appeal otherwise orders, in an application for leave to appeal or an appeal -

(a) oral evidence shall not be adduced; and

(b) evidence which was not before the court or tribunal whose decision is sought to be appealed or is being appealed shall not be relied upon.

(2) A party may apply for the Court of Appeal to receive oral evidence or further evidence, as the case may be.

...

142 In Clark v Stingel, this Court summarised the principles for granting leave to introduce fresh evidence as follows:

• By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.
• It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.
• The evidence proposed to be adduced is reasonably credible.[46]

Parties' submissions regarding fresh evidence application

143 The applicant submitted that the fresh evidence he seeks to adduce demonstrates the following:

(a) The genesis of the two investigations was Mr McKee's 9 June 2017 email, which was provided to Ms Klug but not to him.

(b) AB did not make a written complaint against him, which was said to be required by the harassment provisions of the SRO's Equal Opportunity Policy.

(c) The taxpayers the subject of the Customer Search Allegations did not file a complaint against him.

(d) Having regard to the SRO's 14 January 2020 letter, the evidence that Mr Joyce and the Commissioner gave at the hearing of the State's damages claim - to the effect that the applicant remained suspended during the two investigations because he was a risk to taxpayer information - was false.

(e) Written testimonies of SRO staff members, including Mr Kerr, wholly discredited the SRO's allegations against him.

144 The applicant contended that the fresh evidence constituted significant facts, documents and evidence which the respondents had concealed from him and the Court. He argued that he had been requesting the concealed information since at least 14 June 2017, but it was not provided. It was said that he put the allegation of concealment directly to the respondents in his letter of 10 April 2020, but he has received no reply or explanation for their conduct. He submitted that his late production of the fresh evidence was a direct result of the respondents' improper concealment of it. He contended that, had he received the fresh evidence earlier, he would not have abandoned certain claims at the trial of his injunction claim.[47]

145 The applicant argued that, in concealing significant information, the respondents had breached cls 21.6, 21.8 and 21.11 of the VPSEA; the overarching obligation to disclose the existence of documents in s 26 of the CPA; cl 2(g)(i) and (l) of the Model Litigant Guidelines;[48] and the public sector values of 'accountability' and 'integrity' in s 7(1)(b) and (d) of the PAA.

146 The applicant submitted that he has suffered a miscarriage of justice by reason of the respondents' concealment of the fresh evidence. He contended that the outcome of his injunction claim and the State's damages claim would have been different had he been in possession of the fresh evidence earlier.

147 In oral submissions, the applicant addressed only the first five items of fresh evidence set out at [137] above. He argued that these items of evidence conclusively demonstrate that the respondents breached their procedural fairness obligations with respect to the two investigations.

148 In relation to the first item, Mr McKee's 9 June 2017 email, the applicant submitted that this was the core piece of adverse evidence in relation to the respondents' flawed investigative process. He contended that, in circumstances where he had recently lodged a workplace complaint against Mr McKee and where AB did not make a written complaint against him, Mr McKee's 9 June 2017 email reveals that the process was actuated by malice, underpinned by falsities and contrived to 'get rid of' him.

149 The applicant argued that the respondents denied him procedural fairness during the two investigations by not providing him with a copy of Mr McKee's 9 June 2017 email, which was said to be the complaint against him. He emphasised that the email contained additional allegations concerning his conduct towards AB, which the SRO did not pursue as part of the Harassment Investigation. According to him, he was prejudiced by Ms Klug being provided a copy of the email because the additional allegations 'poison[ed] [Ms Klug's] mind' against him and he was denied an opportunity to respond to them.

150 In relation to the second item, Ms Klug's questions to Mr Kerr, the applicant submitted that the questions were unfair to him because they were not neutral, but of a leading nature in relation to the Harassment Allegations. He contended that Ms Klug's questions reveal actual, not just apprehended, bias because the form of the questions shows that Ms Klug prejudged the allegations against him.

151 In relation to the third item, Mr Kerr's responses to Ms Klug's questions, the applicant submitted that Mr Kerr's evidence discredited the entirety of the Harassment Allegations and that this evidence was disregarded by Ms Klug. According to the applicant, disregarding Mr Kerr's evidence was especially serious because he was a key witness, as he sat between the applicant and AB in the SRO office. The applicant contended that the heavily redacted copy of the Harassment Report he received provided no explanation as to why Mr Kerr's evidence was disregarded. Accordingly, he argued that the redaction of Mr Kerr's evidence proved that the respondents had failed to provide him with sufficient information to respond to Ms Klug's findings and the proposed discipline outcome, in breach of cl 21.11(a) of the VPSEA.

152 In relation to the fourth item, the SRO's 14 January 2020 letter and the evidence of Mr Joyce and the Commissioner at the hearing of the State's damages claim, the applicant submitted that the letter contained concessions that the SRO had not notified the taxpayers the subject of the Customer Search Allegations about the Customer Search Investigation or its findings and that the SRO considered that he presented no risk to taxpayer information.[49] He contended that differentiating between a risk to taxpayers and a risk to taxpayer information was 'an exercise in splitting hairs'.

153 The applicant argued that, by not contacting the relevant taxpayers, the Customer Search Investigation was biased and 'farcical'. He submitted that taxpayers should have been contacted as a matter of courtesy and to verify whether he had a legitimate reason for accessing their records.

154 According to the applicant, the concessions in the SRO's 14 January 2020 letter show that the respondents accused him of breaching the Privacy and Data Protection Act 2014 ('Privacy Act') in circumstances where no taxpayers complained of a breach. He argued that the letter therefore demonstrates that the SRO had impermissibly initiated 'privacy complaints via proxy'.

155 The applicant submitted that the concessions in the SRO's 14 January 2020 letter revealed that Mr Joyce and the Commissioner had given false and misleading evidence about the reasons for his suspension during the investigations. It was said that the concessions in the letter demonstrate that the SRO failed to mitigate its losses in denying the applicant the ability to work during the SRO Undertaking Period.

156 In relation to the fifth item, the defence filed in the defamation proceeding, the applicant submitted that, by only pleading the defence of qualified privilege and not pleading the defence of justification, the defamation proceeding defendants unequivocally admitted the falsity of the allegations contained in Mr McKee's 9 June 2017 email. This was said to be because the defence of qualified privilege only applies if those allegations are untrue.[50] According to the applicant, the admitted falsity of the allegations that were the subject of the two investigations meant that the SRO must be taken to admit that there was no valid reason to conduct either investigation, suspend him or terminate his employment.

157 The applicant submitted that the fresh evidence shows that the Customer Search Report 'is entirely comprised [of] indirect inferences, inexact evidence and indefinite testimonies'. This was said to be because the concessions in the SRO's 14 January 2020 letter show that Mr Di Federico had not contacted taxpayers as part of the Customer Search Investigation.

158 We will not set out the applicant's submissions in relation to the items of fresh evidence summarised at [137(f)-(m)] above. That is because those items are not relevant to any issue in the Trial Division proceeding and could not have made any difference to any decision made by the associate judge in that[51]roceeding.51

159 The respondents submitted that this Court should not receive the fresh evidence because it was irrelevant to any issue in the appeal proceedings and it could not change the outcome of the claims determined by the associate judge. They also contended that the applicant could have chosen to rely upon some of the fresh evidence before the associate judge or otherwise sought discovery from them, but did not do so. They emphasised that these forensic decisions were made when the applicant was represented by senior and junior counsel.

160 The respondents argued that most of the evidence sought to be received either could have been produced by the applicant at first instance, or was produced by him in the hearing of the State's damages claim. They emphasised that Mr McKee's 9 June 2017 email was in evidence at the hearing of the State's damages claim; that Mr Joyce and the Commissioner were cross-examined by the applicant at that hearing; and the witness statements filed in the unfair dismissal proceeding were ruled inadmissible. The respondents argued that this evidence could not be 'further evidence' in the Damages Leave Application.

161 According to the respondents, the applicant's allegations that they improperly concealed evidence from him and the Court are tantamount to claims of fraud. They submitted that those serious allegations were made vexatiously and without a proper evidentiary basis. They contended that they were under no obligation to provide any of the items of fresh evidence to the applicant, either during the course of the two investigations or during the Trial Division proceeding.

162 With respect to the applicant's first item of fresh evidence, Mr McKee's 9 June 2017 email, the respondents submitted that cl 21 of the VPSEA did not require the applicant to receive the original complaint against him. They contended that the absence of a written complaint by AB was immaterial because the Harassment Investigation was conducted in accordance with the Misconduct Policy, not the SRO's Equal Opportunity Policy. In any event, they argued that there is an obligation on an employer to investigate serious complaints, even if they are not in writing.

163 With respect to the applicant's second item of fresh evidence, Ms Klug's questions to Mr Kerr, the respondents submitted that, as an external workplace investigator, she was not prevented from asking leading questions. In any event, they contended that her questions of Mr Kerr afforded him latitude to answer in a way that was fair to him and the applicant, which it was said that he did. They argued that there is no basis for the applicant's submission that Ms Klug was biased, as she found that many of the Harassment Allegations were not substantiated.

164 With respect to the applicant's third item of fresh evidence, Mr Kerr's responses to Ms Klug's questions, the respondents submitted that Mr Kerr's evidence was redacted consistently with that of the other witnesses.

165 With respect to the applicant's fourth item of fresh evidence, the SRO's 14 January 2020 letter and the evidence of Mr Joyce and the Commissioner in the State's damages claim, the respondents submitted that the letter merely confirmed that the Customer Search Investigation concerned taxpayers unknowingly having their privacy invaded, rather than suffering a specific loss from the misuse of their information. They also contended that five of the six taxpayers with the alphabetical identifiers B, E, G, Q, V and W[52] were in fact interviewed during the course of that investigation, as confirmed in the Customer Search Report.

166 The respondents argued that the evidence of Mr Joyce and the Commissioner in the State's damages claim was not inconsistent with the SRO's 14 January 2020 letter. This was said to be because, as recorded in the transcript and Mr Joyce's affidavit of 19 August 2019, Mr Joyce and the Commissioner referred to the applicant breaching confidentiality and misusing information in the sense that he accessed the information for a non-business purpose.

167 With respect to the applicant's fifth item of fresh evidence, the defence filed in the defamation proceeding, the respondents submitted that the forensic decision that the defamation proceeding defendants made to plead the defence of qualified privilege and not the defence of justification was 'unremarkable'. The respondents contended that qualified privilege was a 'simple defence' which, unlike the defence of justification, did not necessitate 'a huge battle' to prove every matter raised in Mr McKee's 9 June 2017 email.

168 In determining whether to grant the fresh evidence application, we will assume in the applicant's favour that the evidence satisfies the first and third of the criteria in Clark.[53] We make that assumption notwithstanding that some of the evidence could have been obtained by the applicant in time to be used at the hearing of the applicant's injunction claim by discovery processes and notices to produce, and some of it was in fact available at the hearing of the State's damages claim. We are prepared to make the assumption because we are firmly of the opinion that, if the evidence had been available at the trial, it could not have made any difference to the associate judge's decisions on the issues she determined.

169 We first consider Mr McKee's 9 June 2017 email. That email was not relevant to either of the investigations. That is because, although the email was the catalyst for the two investigations, the allegations in the email were not the allegations that became the subject of the investigations. The allegations that the applicant was required to address were those in Mr Joyce's 9 June 2017 letter, as subsequently expanded by the SRO.

170 It follows that, even if the applicant could establish that Mr McKee was motivated by malice due to the applicant's complaint against him on 31 May 2017, that had no bearing on the veracity or otherwise of the allegations that were ultimately the subject of the two investigations.

171 Further, we reject the applicant's submission that he was prejudiced by the contents of Mr McKee's 9 June 2017 email because it was provided to Ms Klug and potentially caused her to form an adverse impression of him based on serious allegations that ultimately did not form part of the Harassment Investigation. The allegations that were the subject of the Harassment Investigation were self-contained and there was no evidence at trial that Ms Klug took into account extraneous considerations. Further, the fact that Ms Klug found that some of the allegations were not proven and that, of those that were proven, some did not constitute misconduct, indicates that there was no basis for a finding of actual bias on her part.

172 We now consider Ms Klug's questions to Mr Kerr and Mr Kerr's responses. There is no substance to the applicant's complaint that Ms Klug asked leading questions. The Harassment Investigation was an administrative investigation rather than a judicial proceeding and Ms Klug was neither conducting examination-in-chief nor cross-examination of witnesses. She was entitled to ask direct questions about the allegations as part of her fact-finding task. Judging by Mr Kerr's responses to Ms Klug's questions, the manner in which the questions were framed did not cause any unfairness to the applicant.

173 Mr Kerr's responses were exculpatory of the applicant. However, the fact that Mr Kerr did not see any conduct or hear any statement of the applicant the subject of the allegations against him did not mean that he did not engage in that conduct or make that statement. That is because the conduct could have been undertaken or the statement made at a time when Mr Kerr was either absent from the relevant work area or was otherwise unable to see or hear the applicant. Further, Ms Klug had to consider Mr Kerr's exculpatory evidence in conjunction with the totality of the evidence she had obtained and, depending on the other evidence, her findings could be inconsistent with Mr Kerr's evidence. Such inconsistency does not mean that Ms Klug 'disregarded' Mr Kerr's evidence.

174 It is not possible for us to make any finding regarding the applicant's submission that the redacted copy of the Harassment Report he received failed to explain why Ms Klug did not accept Mr Kerr's evidence. Ms Klug may have done so in the redacted portions of the Harassment Report. The issue of whether the SRO's failure to provide to the applicant an unredacted version of the Harassment Report constituted a breach of cl 21 of the VPSEA is discussed under ground 3 of the Injunction Leave Application, below.

175 We now turn to the SRO's 14 January 2020 letter and the evidence of Mr Joyce and the Commissioner at the hearing of the State's damages claim.

176 The admission in the SRO's 14 January 2020 letter that the SRO did not inform the affected taxpayers of the Customer Search Investigation or its findings cannot assist the applicant.[54] That is because the applicant had an obligation to the SRO not to access customer records for a non-SRO business purpose. Accordingly, any unauthorised access could constitute misconduct irrespective of whether a customer knew about that access or, if a customer had such knowledge, he or she was not willing to lodge a complaint.

177 We reject the applicant's submission that the SRO's 14 January 2020 letter contains an admission that the SRO did not believe that he was a risk to taxpayer information. The letter states in terms that the SRO did not believe that the applicant was a risk to taxpayers. There is an obvious distinction between a risk to taxpayer information and a risk to taxpayers. Contrary to the applicant's submissions, reliance on the distinction does not constitute 'splitting hairs'.

178 We also reject the applicant's contention that the SRO's 14 January 2020 letter indicates that Mr Joyce and the Commissioner gave false evidence in the State's damages claim. Read in context, the evidence of Mr Joyce and the Commissioner was to the effect that the applicant remained suspended during the SRO Undertaking Period because he had misused his right of access to taxpayers' information - not that he had misused the information he had accessed - and thus he posed a risk to taxpayer information. As discussed above, the SRO's 14 January 2020 letter referred to a risk to taxpayers rather than to taxpayer information. There is also an obvious distinction between misusing a right of access to information and misusing the information. There is no inconsistency between the letter and the evidence of Mr Joyce and the Commissioner.

179 The applicant's complaint about the SRO's allegation that he had breached the Privacy Act does not assist him because this allegation was not substantiated.

180 Finally, we address the fact that, in their defence in the defamation proceeding, the defamation proceeding defendants pleaded the defence of qualified privilege, but not the defence of justification.

181 As is the case for all causes of action, the issues to be determined in a defamation proceeding are those raised by the parties in their pleadings. In such a proceeding, unless the pleading of one of the parties raises the truth of the defamatory imputations upon which the plaintiff relies - such as by a plea of justification by the defendant - the court need not make any findings about the truth or falsity of the imputations. If the plaintiff establishes all the elements of the cause of action - which do not include the falsity of the defamatory imputations - the court will grant relief on the assumption that the imputations are false.[55] However, such a case does not involve a finding of fact by the court that the imputations are false.[56]

182 A finding about the truth or falsity of the imputations would not be required where a defendant admits making the publication in question and that it carries the pleaded defamatory imputations, and relies only on the defence of qualified privilege.[57] That is because the sole issue that would be raised by the pleadings would be whether the relevant publication was made pursuant to a legal, moral or other relevant duty or interest to a person with a corresponding duty or interest to receive it.

183 In the present case, the defamation proceeding defendants have relied upon the defence of qualified privilege but not the defence of justification, and thus have not raised as an issue for determination in the defamation proceeding the truth of the defamatory imputations relied upon by the applicant. However, that does not mean that they are to be taken to admit for the purposes of the defamation proceeding - and certainly not for any purposes extending beyond the resolution of the issues in that proceeding - that the allegations in Mr McKee's 9 June 2017 email are false. There are two reasons for this.

184 The first reason is that the defamation proceeding defendants have denied that Mr McKee's 9 June 2017 email was capable of carrying the defamatory meanings alleged by the applicant. Having denied making the defamatory imputations upon which the applicant relies, the defamation proceeding defendants cannot be taken to have admitted that they were false.[58]

185 The second reason is that the explanation for the absence of a plea of justification may be other than an admission that the allegations are false. One obvious possible alternative explanation is a forensic decision on the part of the defamation proceeding defendants not to incur the additional cost and expense that would be involved in seeking to prove the truth of the allegations.

186 As we have stated at [158] above, the other items of evidence upon which the applicant sought to rely were irrelevant to the issues at trial.

187 For the above reasons, the fresh evidence application will be refused.

PART C: INJUNCTION LEAVE APPLICATION; EXTENSION OF TIME

188 It will be recalled that, although the injunction judgment was published on 16 July 2019, the applicant did not seek to file the Injunction Leave Application until 3 April 2020, 262 days later.

189 On 3 April 2020, the applicant filed an application for an extension of time within which to file the Injunction Leave Application. The applicant relied upon the following grounds in support of his application for an extension of time:

1. the prospects of the proposed application for leave to appeal are good;
2. significant information and evidence has only recently come to light which tends to show that the investigation and allegations [the] subject of the matter lacked substance;

1. there will be a substantial injustice if the extension application is refused.

190 The applicant filed an 18-page affidavit dated 3 April 2020 in support of the application for an extension of time, together with a large bundle of exhibits. The affidavit sets out various steps that the applicant took in his ongoing dispute with the SRO, including the filing of the unfair dismissal proceeding.[59] Although the applicant states in his affidavit that the taking of these steps 'prevented [him] from filing [the Injunction Leave Application] sooner than anticipated', he does not explain how or why he was not able to file that application within time. Accordingly, there is no need for us to summarise those steps.

191 The affidavit also sets out most of the fresh evidence which we have already discussed. It follows from our analysis of the fresh evidence, and our conclusion that it would not have made any difference to the outcome of the injunction judgment, that the steps taken by the applicant to obtain the fresh evidence do not provide a satisfactory explanation for his delay.

192 The affidavit also refers to matters which are not relevant to any issue in the appeal proceedings, including: allegations of impropriety by the SRO; attempts at settlement; the costs incurred by the SRO in relation to the two investigations; and requests for access to documents that the applicant made to the SRO under the FOI Act. The affidavit also contains the bald statement that 'the COVID-19 pandemic, including the lockdown, has acutely affected [the applicant's] ability to produce documents, file documents and seek advice'.

193 This Court may extend the time for a party to file an application for leave to appeal pursuant to r 64.08 of the Rules. In Song v Commissioner of the Australian Federal Police, Kaye JA summarised the principles relating to the extension of time under that rule as follows:

The power to grant an order for an extension of time is discretionary. In determining such an application, the Court takes into account the length of the delay, the reasons for the delay, the extent of any prejudice to the respondent, and the prospects of success of the substantive application for leave to appeal. Ordinarily, it is not appropriate that an appellate court enter into detail on the merits of the proposed appeal, because, at the stage of an application to extend time, it only has limited materials and arguments before it. On the other hand, a Court will refuse leave to extend time, notwithstanding that there has been a satisfactory explanation for the delay, if it concludes that the proposed appeal is so devoid of merit that it would be futile to extend time.[60]

194 The applicant submitted that the prospects of success of the Injunction Leave Application were good. He contended that he had been denied access to evidence which was credible, relevant and significant and which showed that the allegations against him lacked substance and that he was not afforded procedural fairness. He argued that the delay in the lodgement for filing of the Injunction Leave Application was due to this evidence coming to light shortly before the date of lodgement.

195 In particular, the applicant relied upon the following information coming to light:

(a) He became aware on 24 September 2019, during the cross-examination of Mr Joyce at the hearing of the State's damages claim (which took place after publication of the injunction judgment), that AB had not filed a harassment complaint and had departed the SRO within weeks of the Harassment Investigation commencing.

(b) He was provided with a copy of Mr McKee's 9 June 2017 email on 25 September 2019 pursuant to a notice to produce issued in the State's damages claim and understood that he was required to apply to the Court for leave to use the document in the Injunction Leave Application.

(c) The SRO conceded in its letter of 14 January 2020 that it had not notified the taxpayers the subject of the Customer Search Allegations about the Customer Search Investigation or its findings and that it considered that he presented no risk to taxpayers.[61]

196 The applicant also contended that the delay was caused by three additional factors. The first is that his time was being consumed by the hearing of the State's damages claim and by his unfair dismissal proceeding. The second is an ongoing request and complaint under the FOI Act relating to the SRO's refusal to provide him with an unredacted copy of the Harassment Report. The third is the COVID-19 pandemic.

197 In oral submissions, the applicant acknowledged that his decision to not file the Injunction Leave Application in time was also influenced by cost considerations.

198 The applicant argued that there would be a substantial injustice if the extension application was refused. He submitted that, given the severity of the Harassment Allegations and the Customer Search Allegations, the proceeding has had a deleterious impact on his health, wellbeing, reputation and career. He contended that, if the Harassment Allegations and the Customer Search Allegations were false and the subsequent investigations flawed, a grave injustice had befallen him.

199 According to the applicant, this Court has an overarching obligation under s 7(1) of the CPA to provide justice and should accordingly allow the extension of time.

200 The respondents submitted that the lodgement for filing of the Injunction Leave Application 262 days after the injunction judgment was published was an extraordinary period of delay on any objective assessment. They contended that the significance of the delay was compounded by the applicant making a deliberate forensic decision to seek leave to appeal the injunction costs judgment within time and not the injunction judgment, in circumstances where he retained solicitors and barristers and was himself an experienced lawyer.

201 The respondents argued that the applicant's explanation that he did not initially file the Injunction Leave Application due to cost considerations 'does not hold water'. They contended that he considered that he had a basis for attacking the injunction judgment prior to receiving the fresh evidence, but chose not to do so.

202 The respondents submitted that the purported significant evidence was in the applicant's possession for an inordinate period of time before he lodged the Injunction Leave Application for filing and that he had not explained the reason for that delay.

203 The respondents contended that the applicant did not explain how, if he had possessed the purportedly significant evidence at the time of the trial, it would have changed the outcome. They argued that the new evidence would have been inadmissible because it was not relevant to the issues at trial.

204 The respondents submitted that they would suffer prejudice if the applicant was granted an extension of time, granted leave to appeal and the appeal allowed, namely, the cost and expense of proving the State's damages claim. That was said to be because, if the applicant had filed an application for leave to appeal against the injunction judgment within time, the hearing of the State's damages claim would have been deferred pending the outcome of that application. Further, such an outcome was said to be contrary to the overarching purpose of the CPA because the hearing of the State's damages claim would have had no proper foundation if the injunction judgment had been overturned on appeal.

205 The respondents contended that, in the event that leave to appeal was granted, such an appeal would lack any meaningful prospects of success. According to the respondents, the applicant's written case in the Injunction Leave Application merely rehearses many of the arguments he advanced at trial, without providing any analysis as to why the associate judge's reasons for rejecting those arguments should be doubted.

206 The respondents argued that there was 'extremely limited' utility in the applicant pursuing the Injunction Leave Application. This was said to be because the only relief he could obtain are declarations; he could not reverse his dismissal.

Decision on issues of applicant's delay and prejudice to respondents

207 If the issues of the length of the delay and the reasons for it were considered in isolation, they would require that the application for an extension of time be refused. That is because the delay of 262 days is inordinate and the applicant has not provided any real explanation for the delay.

208 In his affidavit and written submissions, the applicant refers in detail to the events that occurred between the publication of the injunction judgment on 16 July 2019 and the lodgement for filing of the Injunction Leave Application on 3 April 2020. However, those events do not explain why the applicant was not able to file the Injunction Leave Application within time or much earlier than 3 April 2020. As discussed above in relation to the fresh evidence application, the additional information that the applicant obtained after 16 July 2019 does not have any bearing on the correctness or otherwise of the injunction judgment. In any event, as these events did not prevent the applicant from filing the Injunction Costs Leave Application within time, we are not satisfied that they prevented him from filing the Injunction Leave Application within time.

209 The following facts lead to the irresistible inference that, when the injunction judgment and the injunction costs judgment were published on 16 July 2019, the applicant made an informed forensic decision not to apply for leave to appeal against the injunction judgment:

(a) the applicant is a legal practitioner with experience in litigation;

(b) the applicant was, at that time, represented by solicitors and counsel and continued to be legally represented until 29 January 2020;

(c) the applicant filed an application for leave to appeal against the injunction costs judgment on 27 August 2019, within the applicable time period.

210 Ordinarily, where a legally qualified party, who is also represented by a solicitor and counsel, makes a deliberate forensic decision not to seek leave to appeal against a judgment, and maintains that position for 262 days, an extension of time will be refused unless there are circumstances which demonstrate that it would be in the interests of justice to grant it. The absence of any actual prejudice to an opposing party would ordinarily not constitute such a circumstance. That is because the administration of justice requires finality in litigation and would be undermined if a party were permitted to challenge a decision many months out of time simply because the party changed its mind.

211 One situation in which an extension of time might be justified in such a situation is where it is readily apparent that: a proposed ground of appeal is bound to succeed; substantial injustice would be caused to the applicant if an extension is not granted; and no actual prejudice would be caused to the opposing party if an extension is granted. The case for an extension of time being granted in such a situation would be strengthened if some parts of the primary judgment which is the subject of the late application for leave to appeal are already the subject of an extant application for leave to appeal.

212 For the reasons discussed below, one aspect of ground 3 of the Injunction Leave Application satisfies the above criteria.[62] Accordingly, in the very unusual circumstances of this case, we have concluded that an extension of time should be granted.

Issues in proceeding and associate judge's decision regarding injunction claim

213 Before discussing the grounds of appeal, we will set out the issues in the proceeding insofar as they relate to the applicant's injunction claim, and the associate judge's decision on those issues.

214 By the 2nd FASOC, the applicant relevantly alleged as follows:

(a) His employment contract with the SRO comprised the covering letter and the acceptance document.

(b) It was an express term of the employment contract that the contract 'may be terminated ... in line with the [VPSWD]', which was replaced by the VPSEA.

(c) It was an implied term of his employment contract that:

(i) the SRO would adhere to internal policies, including the Misconduct Policy; and

(ii) the respondents would exercise any power over him under the Misconduct Policy in good faith.

(d) The respondents had an obligation under s 20(3)(c) of the PAA to exercise any power over him in conformity with the public sector employment principles and an obligation under s 8(b) to establish employment processes that ensured that he was treated fairly ('Fairness Obligation'). As the Misconduct Policy, which provides that disciplinary processes must be conducted in accordance with cl 21 of the VPSEA, is one of the employment processes the respondents have established, the respondents had an obligation under the PAA to comply with cl 21.

(e) The VPSEA 'covered and applied' to him and the SRO in their employment relationship by virtue of its approval by the Fair Work Commission pursuant to s 185 of the FWA.

(f) Under cl 21 of the VPSEA, in investigating any allegation of misconduct against him, the respondents were obliged to:

(i) afford him procedural fairness ('Procedural Fairness Obligation');

(ii) ensure he was entitled to representation of his choosing ('Representation Obligation');

(iii) appoint an investigator who had no prior personal involvement in the matter ('Investigator Obligation');

(iv) provide him with the findings of the investigation ('Findings Obligation');

(v) provide him with sufficient information to allow him to respond to any findings made ('Information Obligation'); and

(vi) as soon as practicable after an allegation of misconduct had been made, advise him of the alleged misconduct in writing ('Advice Obligation').

(g) In the conduct of the Harassment Investigation, the respondents breached the Findings Obligation, the Fairness Obligation, the Information Obligation and the Procedural Fairness Obligation under the employment contract, the VPSEA and the PAA by:

(i) failing to provide him with full particulars of the Harassment Allegations;

(ii) failing to provide him with an unredacted copy of the Harassment Report or any of its attachments;

(iii) failing to provide him with sufficient information to respond to the Harassment Allegations; and

(iv) failing to provide him with a real opportunity to be heard.

(h) In the conduct of the Customer Search Investigation, the respondents breached the Investigator Obligation, the Representation Obligation, the Advice Obligation, the Fairness Obligation, the Information Obligation and the Procedural Fairness Obligation under the employment contract, the VPSEA and the PAA by:

(i) appointing Mr Di Federico to investigate the Customer Search Allegations;

(ii) communicating directly with the applicant, instead of his lawyers;

(iii) failing to provide him with a redacted version of the Customer Search Report which did not disclose confidential taxpayer information, to enable legal advice to be sought;

(iv) failing to provide him with particulars of the allegation that he had no work purpose in conducting the relevant searches;

(v) failing to provide him with any, or sufficient, access to his work records to enable him to provide a meaningful response to the Customer Search Allegations; and

(vi) casting the onus of proof on him as to whether the relevant searches were conducted for no legitimate work purpose.

215 The applicant sought two injunctions prohibiting the respondents from reaching a final decision with respect to each of the investigations. The injunctions are no longer relevant in the light of the implementation of the disciplinary action resulting from the Customer Search Investigation and the apparent decision of the SRO to not impose the foreshadowed disciplinary action in relation to the Harassment Investigation.

216 The applicant also sought nine declarations. As discussed later in these reasons, we would uphold some of the applicant's grounds of appeal. The declarations he has sought that are relevant to the issues raised in those grounds, may be summarised as follows:

(a) A declaration that the respondents have contravened cl 21.6 of the VPSEA in that they failed to conduct the Harassment Investigation in accordance with the requirements of procedural fairness.

(b) Further or in the alternative, a declaration that the respondents have contravened cl 21.11(a) of the VPSEA in that they have failed to provide the applicant with the findings of the Harassment Investigation.

(c) Further or in the alternative, a declaration that the respondents have contravened cl 21.11(a) of the VPSEA in that they have failed to provide to the applicant sufficient information to allow him to respond to the Harassment Allegations.

(d) A declaration that, contrary to s 20(3)(c) of the PAA, the respondents have, in relation to the Harassment Investigation, failed to exercise the rights, powers, authorities and duties of an employer in conformity with the public sector employment principles referred to in s 8 of the PAA in that they:

(i) failed to ensure that the applicant was treated fairly and reasonably; and/or

217 In their defence to the 2nd FASOC, the respondents admitted the matters set out at [214(a), (e), (f)] above and denied the other matters.

218 In relation to the applicability of the VPSEA to the applicant, the respondents pleaded the following:

(a) to the extent that the applicant alleged that the VPSWD or the VPSEA, or any part of those documents, were incorporated as a contractual term of the applicant's employment contract, the respondents denied that allegation;

(b) it was an express term of the applicant's employment contract that the VPSWD or any subsequent determination applied of its own force and was not incorporated into the contract; and

(c) 'the processes for termination of the employment relationship between the [applicant] and the [SRO] were and are governed by the VPSWD and its successor instruments, which are in turn governed by the [FWA]'.

219 In relation to the PAA, the respondents admitted that the Misconduct Policy was established in compliance with s 8(b) of the PAA and that s 20(3)(c) required the Commissioner to conduct any disciplinary process against the applicant in conformity with the principle that public sector employees be treated fairly and reasonably. However, they denied that the PAA imposed an obligation on them to conduct any disciplinary process against the applicant in accordance with cl 21 of the VPSEA.

220 In relation to the respondents' failure to provide to the applicant an unredacted version of the Harassment Report or any of its attachments, the respondents pleaded that they were not required to provide him with a copy of the report but nevertheless did so and made redactions in order to avoid the disclosure of 'personal information' within the meaning of the Privacy Act.

221 At trial, contrary to his pleading, the applicant submitted that his employment contract was contained in the acceptance document and did not include the covering letter. He also abandoned a number of his claims, including that the respondents had breached their obligations in the following ways:

(a) by failing to provide him with full particulars of the Harassment Allegations;

(b) by appointing Mr Di Federico to investigate the Customer Search Allegations;

(c) by communicating directly to him, instead of his lawyers;

(d) by failing to provide him with a redacted version of the Customer Search Report which did not disclose confidential taxpayer information; and

(e) by failing to provide him with any, or sufficient, access to his work records to enable him to provide a meaningful response to the Customer Search Allegations.

222 The associate judge stated that the applicant had impermissibly changed his position with respect to the documents which constituted his employment contract. However, for completeness, she found that the written terms of the employment contract were contained in both the covering letter and acceptance document.[63]

223 The associate judge held that, consistently with the express words in the covering letter, cl 21 of the VPSEA was not incorporated into the applicant's employment contract.[64] She found that the words 'which applies of its own force and is not incorporated into this contract' were not limited to 'any subsequent determination', but also applied to the VPSWD.[65] Further, she stated that the reference to 'any subsequent determination' included the VPSEA.[66] She rejected the applicant's submission that there would be no way to dismiss him or terminate the employment contract without incorporating cl 21, because the VPSEA applied to his employment by virtue of industrial legislation.[67] In any event, she said that cl 16 of the VPSEA was the termination clause, not cl 21.[68]

224 The associate judge held that ss 8(b) and 20(3)(c) of the PAA, read together, did not require the respondents to comply with the Misconduct Policy, which was established under s 8(b) and which incorporated the processes in cl 21 of the VPSEA.[69] She found that the obligation imposed on a public sector body Head by s 8 does not extend beyond establishing processes that meet the description in that section.[70] She also found that s 20(3)(c) obliges a public service body Head to act in conformity with the public sector employment principles set out in s 8 but not with the processes established under that section.[71] She added that, although s 8 does not expressly impose an obligation that those processes must be complied with in respect of particular employees, a failure to comply with a process established pursuant to s 8 might mean that the process was not properly established and therefore a breach of s 8.[72]

225 The associate judge concluded that neither a breach of the Misconduct Policy nor a breach of cl 21 of the VPSEA constituted a breach of s 20(3) of the PAA.[73]

226 The associate judge held that, even if cl 21 of the VPSEA was incorporated into the applicant's employment contract or had statutory force under the PAA, the respondents had not breached it or s 20(3) of the PAA insofar as it required the respondents to comply with the public sector employment principles in s 8.[74]

227 The associate judge found that the applicant was given an opportunity to be heard in respect of the Harassment Allegations against him because he was provided with the full allegations and the contradictory evidence against him - including the names of the witnesses - and was given an opportunity to provide written and oral responses before Ms Klug made her findings.[75] She stated that, in the circumstances, it was unnecessary for Ms Klug to provide him with witness statements or notes of witness interviews.[76] Accordingly, the associate judge found that the respondents had not failed to act in conformity with the public sector employment principle that required that the applicant be treated fairly and reasonably, and therefore had not breached s 20(3)(c) of the PAA.[77]

228 The associate judge found that the respondents had not breached s 20(3) of the PAA or cl 21.6 of the VPSEA by their failure to provide the applicant with an unredacted copy of the Harassment Report or its attachments. This was because, having received the full Harassment Allegations and the contradictory evidence during the investigation and the redacted Harassment Report at the conclusion of the investigation, the applicant had sufficient information to respond to the allegations, adverse material and Harassment Report.[78] She also found that the respondents did not breach cl 21.11 of the VPSEA because the applicant was provided with Ms Klug's findings, initially in the summary attached to Mr Joyce's 25 October 2017 letter[79] and subsequently in the redacted Harassment Report.[80] She further found that these documents, together with Mr Joyce's 25 October 2017 letter, furnished him with sufficient information to respond to the proposed discipline outcome in accordance with cl 21.11(a).[81]

229 The associate judge concluded that the applicant had failed to establish that receipt of the unredacted Harassment Report or its attachments would have made any practical difference to the outcome of the investigation or the proposed discipline outcome and therefore he had not suffered any practical injustice.[82]

230 The associate judge found that the applicant was provided with sufficient particulars to allow him a reasonable basis to respond to the Customer Search Allegations, including the relevant customers' names and the date and time of each alleged search. He was also informed of the policies and statute which may have been contravened if the allegations were proven and was given notice that, if the allegations were proven, the discipline outcome might include termination of employment.[83] She therefore held as follows:

(a) It was not necessary for the 'non-work purpose' of the searches to be particularised in order for the applicant to respond to the Customer Search Allegations.[84]

(b) Provision of particulars of the 'non-work purpose' would not have made any practical difference to the outcome of the Customer Search Investigation or the proposed discipline outcome and therefore the applicant did not suffer any practical injustice.[85]

(c) The respondents' failure to particularise the 'non-work purpose' did not shift the burden of proof to the applicant because the investigator could not find the Customer Search Allegations proven unless he made a positive finding on the evidence before him that the searches were for a non-work purpose.[86]

231 Consequently, the associate judge found that the respondents had not breached s 20(3) of the PAA or cls 21.6 or 21.11 of the VPSEA by their failure to provide the applicant with particulars of the 'non-work purpose' of the relevant searches.[87]

232 The associate judge stated that, as the applicant had failed to establish his claim under the VPSEA, it was not necessary for her to determine whether the Supreme Court has jurisdiction to make a declaration concerning the VPSEA under the FWA.[88]

233 The associate judge held that it was necessary for the applicant to amend the 2nd FASOC to plead contravention of s 50 of the FWA in order to seek consequential relief.[89] She held that the 2nd FASOC did not comply with r 13.02(1)(b) of the Rules, which requires every pleading to 'identify the specific provision relied on' where a claim arises under an Act.[90] She stated that, if a case is conducted on grounds which are different to the pleadings, the pleadings must be amended to accord with the case as conducted.[91] However, she rejected the applicant's submission that the trial had proceeded on a mutual understanding between the parties that the case involved an allegation of breach of s 50 of the FWA.[92]

234 The associate judge refused leave for the applicant to file the Proposed 3rd FASOC because she found the application for leave to appeal to be an abuse of process for the following reasons.[93] First, in the light of McDonald J's interlocutory decision, the application theoretically risked different judges making inconsistent findings on the same issue in the same proceeding in circumstances where the applicant elected not to appeal against McDonald J's decision.[94] Secondly, McDonald J had already made 'the ultimate finding' on whether the applicant should be given leave to plead s 50 of the FWA and the underlying issue of jurisdiction.[95] Thirdly, the application was 'extraordinarily late and unfair', having been made during the applicant's reply submissions at trial.[96] Fourthly, the applicant's delay in seeking the amendment was inconsistent with ss 7 and 25 of the CPA.[97]

235 Having found that the respondents had not breached cl 21 of the VPSEA or ss 8 or 20(3) of the PAA, the associate judge dismissed the proceeding.

236 The applicant's grounds of appeal in the Injunction Leave Application are in the following terms:

Ground 1 - construction of the employment contract

1. The learned primary judge erred in concluding that ... clause 21 of the [VPSEA], an agreement arising under Part 2-4 of the [FWA], was not incorporated into the applicant's contract of employment dated 4 October 2013.

1. The learned judge erred in concluding that the combined effect of sections 8 and 20(3) of the [PAA] did not require the respondents to comply with [the] processes prescribed by cl 21 of the VPSEA.

Ground 3 - breaches of employment obligations

1. The learned primary judge should have concluded that the respondents breached the 'procedural fairness obligation',[98] the 'advice obligation',[99] and the 'information obligation'[100] (collectively 'the breaches'), arising under clause 21 of the VPSEA, with respect to their workplace investigation ('Investigation') into the applicant's alleged misconduct.
2. In particular, the learned primary judge should have concluded that the breaches were substantiated by the following matters:
   1. with respect to the allegations that the applicant harassed [AB], by

(i) failing to provide details of the allegations to the applicant including their failure to provide a copy of the email of Paul McKee dated 9 June 2017, which gave rise to the investigation;

(ii) failing to inform the applicant that in fact, [AB] did not lodge any complaint against the applicant;

(iii) failing to provide the transcripts of the investigator's interviews of the employees who provided evidence consistent with the applicant's account;

(iv) failing to provide the applicant with testimonies of witnesses relied upon by the investigator which were adverse to him;

(v) failing to give the applicant an opportunity to respond to the testimonies of witnesses which were adverse to him before the conclusion of the investigation;

(vi) failing to provide ... the applicant with an unredacted copy of the investigator's report; and

(vii) disregarding, without explanation, the witness testimonies that corroborated the applicant's account.

1. with respect to the allegations that the applicant had breached taxpayer privacy, including the allegation that the applicant had breached the [Privacy Act], by accessing records for no known 'SRO business purpose', by:

(i) failing to provide the applicant with sufficient particulars of the allegations, in particular, what constituted ... SRO 'business purposes';

(ii) failing [to] provide the applicant with the reasons why the alleged access was improper;

(iii) failing to provide the applicant with any supporting evidence that [the] alleged access was improper and provide the applicant an opportunity to respond;

(iv) erroneously putting the onus on the applicant to prove the alleged access was proper without allowing the applicant to access ... his work records;

(v) failing to inform the applicant that no taxpayer had filed a complaint against the applicant, in circumstances where section 57(1) of the Privacy Act required same for the allegations to be raised against the applicant;

(vi) failing to provide the applicant access to work records necessary for him to respond to the allegations;

(vii) failing to provide the applicant with testimonies of witnesses relied upon by the investigator which were adverse to him;

(viii) failing to inform the applicant that it did not inform any of the taxpayers of the allegations, findings and investigation report; and

(ix) disregarding, without explanation, the witness testimonies that corroborated the applicant's account.

1. By reason of the above matters, the learned primary judge should have additionally concluded that the respondents concurrently breached their 'Managing Misconduct Policy' and, in doing so, concurrently breached their statutory duty under s 20(3) of the [PAA] which obliged them to exercise a right, power, authority or duty of the employer, in respect of the employment of the applicant, in conformity with the public sector employment principles contained in s 8 of the PAA.

Ground 4 - the jurisdiction of the Supreme Court to make declarations and order injunctions with respect to matters arising under the [FWA]

1. The learned primary [judge] should have determined that the Court had jurisdiction to make the declarations and grant the interlocutory relief sought by the applicant with respect to the claimed breaches of the VPSEA which also constituted breaches of the [FWA]. The learned primary judge's reasoning for failing to do so was flawed in that;

1. the learned primary judge erred in concluding that it was necessary for the applicant to amend his [2nd FASOC] to plead a contravention of section 50 of the [FWA]; 2. the learned primary judge erred in failing to grant leave to the applicant to file [the Proposed 3rd FASOC] which included a claim that the alleged breaches of the VPSEA amounted to breaches of section 50 of the [FWA], as they were breaches of the VPSEA; and

1. the learned primary judge erred in concluding that the applicant's application seeking leave to file the [Proposed 3rd FASOC] was an abuse of process.[101]

Ground 1: Construction of the employment contract

237 The applicant submitted that the acceptance document was his employment contract and that the covering letter was a separate document.[102] Accordingly, the applicant contended that the words 'the [VPSWD] or any subsequent determination ... applies of its own force and is not incorporated into this contract' in the covering letter did not override the express term contained in cl 8 of the acceptance document that '[t]his contract of employment may be terminated at any time by either party in line with the [VPSWD]'.

238 The applicant argued that cl 8 of the acceptance document constituted a 'bridging term' which incorporated by reference cl 21 of the VPSEA into his employment contract. He submitted that, absent its incorporation, there was no mechanism in the contract for it to be terminated, either by consent or via a disciplinary process.

239 The respondents submitted that the associate judge correctly held that the applicant had impermissibly changed his position at trial as to the documents said to comprise the employment contract. In any event, they contended that the associate judge was correct to find that the employment contract was contained in both the covering letter and acceptance document.

240 The respondents argued that the associate judge's conclusion that the employment contract did not incorporate cl 21 of the VPSEA was correct in law on established principles and the plain meaning of the words in the covering letter. They contended that the associate judge correctly found that the reference in cl 8 of the acceptance document to termination 'being "in line with" the VSPEA'[103] did not assist the applicant.

241 In our opinion, the associate judge was correct in concluding that the applicant's employment contract comprised the covering letter as well as the acceptance document. The covering letter did not simply enclose an employment contract but contained substantive provisions relating to the applicant's employment which, together with the acceptance document, contained the terms of the employment contract. The fact that the covering letter contains the expression 'this contract' rather than 'the enclosed contract' supports this conclusion.

242 The associate judge was also correct, strictly speaking, in concluding that the provisions of the VPSEA were not incorporated as terms of the applicant's employment contract. That conclusion was inevitable having regard to the express words that the VPSWD and any subsequent determination 'applies of its own force and is not incorporated into this contract'. Those words indicate that the provisions of the VPSWD and its successors apply to the employment relationship between the applicant and the SRO, not as terms of their employment contract, but by force of the FWA.

243 However, that is not the end of the matter. Although the applicant's ground of appeal and his submissions were framed in the language of incorporation of contractual terms, his pleaded case was not so limited. The thrust of his arguments in this Court, with which the respondents joined issue, was that the employment contract required the SRO to act 'in line with' the VPSWD and its successors, in respect of termination of employment. Especially since the applicant represented himself, we consider we should address the substance of the case so advanced.

244 Incorporation of the provisions of a document into a contract as express terms of that contract is one way in which a party may contractually bind itself to comply with those provisions. The effect of incorporation is that the provisions in the incorporated document become terms of the contract. However, incorporation is not the only means by which a party may contractually bind itself to comply with the provisions of a document. Where a contract contains an express term stating that a party will comply with the provisions of a document but those provisions are not incorporated into the contract, a failure by that party to comply with those provisions would constitute a breach of that express term. The other party to the contract may seek remedies for breach of the express term even though it could not seek remedies directly for breach of the provisions of the document, as those provisions are not terms of the contract.

245 The above proposition can be illustrated by an example. Assume that a statutory provision requires employers to purchase an insurance policy for the benefit of employees in a particular industry, but that employees cannot legally enforce that provision. Assume also that a contract of employment between an employee and an employer contains a term which states that the employer must purchase an insurance policy for the benefit of the employee in accordance with the statutory provision. Assume further that, on its proper construction, the contractual term does not incorporate the statutory provision into the contract. There can be no doubt that, if the employer fails to purchase an insurance policy for the benefit of the employee, the employee could sue the employer for breach of the contractual term notwithstanding that the employee could not sue the employer for breach of the statutory provision.[104]

246 In the present case, although none of the provisions of the VPSEA were incorporated into the applicant's employment contract, that contract drew a distinction between the applicant's general conditions of employment - such as leave entitlements - and termination of his employment. In relation to the general conditions, the contract referred to the VPSWD and its successors as the source of the SRO's obligations and did not contain any express term imposing any obligation on the SRO. In relation to termination of the applicant's employment, the contract contained an express term by which the SRO contractually promised to act 'in line with', and therefore to comply with, the provisions of the VPSWD. It was not in issue between the parties that such an obligation, if established, readily extended to the VPSEA.[105] In this context, 'termination' is not to be read narrowly as referring to the act of termination but as including any disciplinary procedures that are invoked which could lead to termination. Accordingly, the applicable provisions included cls 16 and 21 of the VPSEA.[106]

247 It follows that the SRO was contractually bound to comply with the disciplinary and termination procedures in the VPSEA in relation to the processes that culminated in the termination of the applicant's employment.

248 Understood in this way, ground 1 is made out. The applicant had a cause of action in contract for any breach of cl 21 of the VPSEA by the SRO in relation to the termination of his employment.

249 The applicant submitted that it was illogical to suggest that the combined effect of ss 8 and 20(3) of the PAA required the respondents to establish, yet not comply with, their employment processes. He contended that the associate judge's interpretation was contrary to Bromberg J's reasoning in Quinn v Overland.[107]

250 The respondents submitted that the associate judge was correct to find that s 8 of the PAA simply required a public sector body Head to establish processes and did not require him or her to comply with those processes. Similarly, they contended that the associate judge correctly found that s 20(3) required compliance with the principles set out in s 8, rather than the processes established under s 8. It was said that this approach was consistent with Bromberg J's decision in Quinn.[108]

252 The relevant provisions of the PAA are set out at [31]-[35] above. Four features of those provisions are noteworthy. First, paras (a)-(e) of s 8 set out six public sector employment principles. Secondly, s 8 imposes an obligation on public sector body Heads to establish employment processes that will ensure that the six public sector employment principles are realised. Thirdly, s 20(3)(c) imposes an obligation on public service body Heads to act in conformity with the six public sector employment principles set out in s 8. Fourthly, whereas the obligation in s 8 is imposed on public sector body Heads, the obligation in s 20(3) is imposed on public service body Heads. The fourth feature is immaterial for present purposes because the definition of public sector body Head in s 4(1) includes the public service body Head of a public service body.

253 The above features indicate that s 8 has two purposes: to set out six public sector employment principles; and to impose an obligation on public sector body Heads to establish employment processes that will ensure that those principles are realised. The fact that s 8 imposes an express obligation on public sector body Heads to establish such processes but no obligation to comply with the processes once they are established means that the latter obligation cannot be implied. That is particularly so having regard to s 20(3), which sets out express obligations on public service body Heads in exercising powers in relation to public sector employees.

254 It follows that the associate judge was correct in concluding that the obligation imposed on public sector body Heads by s 8 of the PAA is confined to establishing employment processes that will ensure that the public sector employment principles set out in that section are realised, and that s 8 does not impose an additional obligation of compliance with those processes. Accordingly, although the SRO's Misconduct Policy - which incorporates the processes in cl 21 of the VPSEA - contains processes to give effect to the principle in s 8(b), s 8 did not oblige the respondents to comply with those processes in relation to the applicant.

255 The same conclusion applies in relation to s 20(3)(c) of the PAA. Neither the VPSEA nor the SRO's Misconduct Policy is included in the list of matters in conformity with which a public service body Head must exercise a right, power or duty in an employment context. Section 20(3)(c) refers to only one feature of s 8, namely, the six public sector employment principles the section sets out, and makes no reference to the other feature, namely, the processes that public sector body Heads must establish. The fact that s 20(3)(c) imposes an express obligation on public service body Heads to act in conformity with the public sector employment principles means that an obligation to also act in conformity with the processes established under s 8 cannot be implied. Accordingly, although the SRO's Misconduct Policy - which incorporates the processes in cl 21 of the VPSEA - contains processes to give effect to the principle in s 8(b), s 20(3)(c) did not oblige the respondents to comply with those processes in relation to the applicant.

256 We agree with the associate judge that if the processes that are established under s 8 of the PAA are not complied with - resulting in the public sector employment principles not being realised - a finding might be open that the processes do not meet the requirements of s 8 and therefore the public sector body Head has breached the duty imposed by that section. However, that is not to say that either s 8 or s 20(3) - or a combination of both sections - imposes a direct obligation on public sector body Heads (or public service body Heads) to comply with the processes established under s 8.

257 We note that, at trial, it was common ground between the parties that s 20(3)(c) of the PAA imposed an independent obligation on the respondents to comply with the public sector employment principles in s 8.[109] That is an obligation distinct from those advanced under ground 2, and we shall return to it in connection with ground 3.

258 It is not necessary for us to refer to Bromberg J's discussion of ss 8 and 20(3) of the PAA in Quinn. That is because he was dealing with an interlocutory application which required him to decide whether certain issues were seriously arguable rather than to reach definitive views on those issues.[110]

259 The applicant submitted that the respondents breached their obligation to comply with procedural fairness principles during the course of the investigations, contrary to cl 21.6(a) of the VPSEA, for the following reasons.

260 First, the applicant contended that, in breach of the 'hearing rule', the respondents denied him access to the following information that was said to be credible, relevant and significant to the decision to terminate his employment:

(b) an unredacted copy of Ms Klug's findings in the Harassment Investigation;

(c) the evidence upon which the respondents relied to assert that the alleged customer searches were 'not related to any known SRO business purpose';

(d) copies of the transcripts of interviews and witness testimonies considered by the investigators in making their findings which were adopted by the respondents; and

(e) access to his co-workers and other work records necessary to respond to the allegations and the proposed discipline outcome.

261 According to the applicant, provision to him of a paraphrase of the contradictory evidence - representing the investigators' interpretation of the evidence given by the witnesses - rather than the evidence itself was not sufficient compliance with the hearing rule.

262 Secondly, the applicant argued that the respondents reversed the onus of proof in the Customer Search Investigation by requiring him to prove that the alleged searches were not undertaken for an improper purpose. This was also said to be a breach of the 'hearing rule'.

263 Thirdly, the applicant submitted that the respondents offended the 'evidence rule' by adopting findings that were not based on logically probative evidence. With respect to the Harassment Allegations, he contended that the evidence was not logically probative because AB did not file a complaint against him and the only unredacted witness testimonies that were produced corroborated his account. With respect to the Customer Search Allegations, he argued that the evidence was not logically probative because the SRO admitted that it did not contact the taxpayers about the Customer Search Investigation and findings and it failed to produce any evidence that the alleged searches were undertaken for an improper purpose.

264 According to the applicant, the investigations were tainted by, at the least, an apprehension of bias because:

(a) The Harassment Investigation was not instigated by AB but by Mr McKee, who was the subject of a complaint by the applicant.

(b) The investigators disregarded and downplayed, without explanation, the witness testimonies that corroborated the applicant's account.

(c) Mr Di Federico and the applicant's team leader, John Cahir, conceded under cross-examination that they had not previously seen the applicant's written statement dated 1 August 2017.

265 The applicant submitted that these matters also demonstrated that he was not provided sufficient, if any, information to enable a proper response to the proposed discipline outcome and was not provided sufficient particulars of the allegations, in breach of cls 21.8 and 21.11(a) of the VPSEA.

266 The applicant contended that he was not provided with Ms Klug's findings, as required by cl 21.11(a) and 21.6(a) of the VPSEA, but merely her bare conclusions. He argued that the copy of the Harassment Report he received was so heavily redacted as to be unintelligible, making it difficult for him to grapple with the conclusions, even when read in conjunction with the contradictory evidence.

267 The applicant submitted that cl 21.11 of the VPSEA should be construed in the light of the SRO's statutory obligation in s 8(b) of the PAA to treat employees 'fairly and reasonably'. He contended that, construed in this way, he was denied the information necessary to provide a fair response to Ms Klug's conclusions.

268 The applicant argued that, under cl 21 of the VPSEA, misconduct is not conclusively proven when the investigator finds the misconduct to be substantiated, because the employer is not obligated to accept the investigator's findings. Rather, he submitted that misconduct is proven once the employer considers the employee's response to the investigator's findings and determines that the misconduct is proven and some disciplinary action should be imposed in relation to it. Accordingly, so it was said, the employee is entitled to challenge both the foundation of the findings as well as the proposed discipline outcome. He contended that the employee therefore has a right under cl 21.11(a) to receive sufficient information to do so.[111]

269 According to the applicant, the Victorian Public Sector Commission's 'Guide to Managing Poor Behaviour in the Workplace' policy requires an employee to be provided with reasons explaining the decision, a statement of evidence (including witness statements) and reasons explaining what evidence has been accepted or rejected and on what basis. He noted that the default position under that policy was for the employee to receive a copy of the report. He submitted that the respondents were required by the Model Litigant Guidelines to act consistently with that policy, including in their submissions as to the construction of cl 21.11 of the VPSEA.[112]

270 The applicant contended that the associate judge was not furnished with an unredacted copy of either the Harassment Report or the Customer Search Report, thereby impugning her reasoning in relation to the claimed breaches of cl 21 of the VPSEA.

271 The applicant argued that the Harassment Allegations and the Customer Search Allegations were 'quasi-criminal in nature' and that the respondents relied upon inexact evidence, indefinite testimony or indirect inferences. This was said to be impermissible in accordance with Briginshaw v Briginshaw.[113]

272 According to the applicant, the respondents' breaches of cl 21 of the VPSEA were also breaches of the Misconduct Policy and ss 8 and 20(3) of the PAA.

273 The respondents submitted that the associate judge undertook a detailed examination of the evidence and correctly concluded that they had not failed to treat the applicant fairly and reasonably. It was said that the applicant did not identify how the associate judge's factual conclusions were incorrect.

274 The respondents contended that most of the matters set out in para 4 of ground 3 go beyond the applicant's pleaded case or were abandoned at trial. They objected to the applicant seeking to broaden the scope of his claim on appeal and submitted that these matters could not demonstrate any error at first instance because they were not pursued and therefore were not the subject of any findings in the injunction judgment. It was said that sub-paras 4(a)(iv) and (vi) and (b)(i) - and (iv) to the extent that it related to the onus of proof - were the only matters which were pursued at first instance.

275 The respondents submitted that a number of the additional matters concerned evidence which was not before the associate judge and they opposed such evidence being introduced on appeal. Further, they contended that evidence relating to sub-paras 4(a)(vii) and (b)(ix) of ground 3 (if it existed) would not have been material to the applicant's claims because his claims concerned procedural matters, not the merits of the findings that were ultimately made.

276 The respondents argued that the associate judge did not err in finding that they did not breach cl 21 of the VPSEA by failing to provide the applicant with full witness testimonies or an unredacted copy of the Harassment Report. They submitted that she correctly held that it was sufficient for him to be provided with the full allegations against him, the contradictory evidence against him and the opportunity to provide written and oral responses to the allegations and contradictory evidence. They contended that it was incorrect for him to suggest at sub-para 4(a)(v) of ground 3 that he was not given an opportunity to respond to witness evidence that was adverse to him before the conclusion of the Harassment Investigation. According to the respondents, cl 21 did not require the applicant to receive evidence that was favourable to him, such as Mr Kerr's answers to Ms Klug's questions.

277 The respondents argued that misconduct investigations under cl 21 of the VPSEA consisted of three stages. The first stage was said to be the advice stage (cls 21.8-21.9). The second stage was said to be the investigation stage conducted by an appointed investigator (cl 21.10). The third stage was said to be the determination of the discipline outcome, which was directed to the employer (cls 21.11-21.12).

278 The respondents contended that the employee is to be provided with procedural fairness during the investigation stage so that he or she may respond to the alleged misconduct. Accordingly, they argued that it was at this stage that each allegation, and any adverse material, must be put to the employee in sufficient particularity to enable the employee to properly respond, including making submissions as to why any allegations should not be made out.

279 The respondents submitted that, in the final stage, the employer is not tasked with determining if the findings are correct, but what is the appropriate discipline outcome having regard to the findings. They contended that, once findings are made by the investigator, cl 21 of the VPSEA does not contemplate that those findings can be reopened or appealed. They argued that cl 21.10(d) simply requires that an investigator make findings as to whether each allegation is substantiated or not. They submitted that cl 21 did not require reasons for those findings to be provided to either the employer or the employee. According to the respondents, the employee's right to respond to the findings is directed to the appropriateness of the proposed discipline outcome in the light of the findings and does not include challenging the correctness of the findings. Therefore, so it was said, the employee is not entitled to seek to reopen or disturb the investigator's findings.

280 The respondents submitted that it was 'raising the bar too high' during the final stage for employers to be obliged to provide the investigator's report in its entirety to an employee. They contended, for example, that protecting witnesses' confidentiality may preclude the entire report being disclosed to the employee. According to the respondents, cl 21 seeks to balance the expeditious resolution of misconduct allegations against considerations of procedural fairness, and compliance with cl 21 must be assessed 'in a practical way'.

281 The respondents argued that they had complied with the requirements of cl 21 because Ms Klug provided to the applicant the contradictory evidence during her investigation and, at the end of the investigation, he was provided with her findings and the SRO's proposed discipline outcome.

(b) Decision on ground 3 - Customer Search Investigation

282 In our opinion, ground 3 must be rejected in relation to the Customer Search Investigation.

283 The Customer Search Allegations were unambiguous: the applicant was not authorised to access customer records unless it was for the purpose of carrying out his duties; there were a number of instances in which he had access to customer records for purposes other than the carrying out of his duties; and those instances of unauthorised access constituted serious breaches of his obligations to the SRO.

284 In order to establish those breaches, it was not necessary for the SRO to prove the purposes for which the applicant had access; all it needed to establish was that the access was not for the purpose of carrying out the applicant's duties. Whether access was for a work-related authorised purpose could be determined by an analysis of whether the access was relevant to a taxpayer query or dispute that the applicant was handling on behalf of the SRO. The particulars that were provided to the applicant, and the inspection of his records which he and his solicitor were granted by the SRO, were sufficient to enable him to respond to the allegations. There was no reversal of onus.

285 The applicant responded to the Customer Search Allegations and Mr Di Federico's questions on 6 October 2017[114] and he was given an opportunity to respond to the contradictory evidence. It appears from Mr Di Federico's evidence at trial that he was not provided with a copy of the applicant's statement of 1 August 2017, which was prepared prior to Mr Di Federico's appointment as investigator. However, this omission is inconsequential, as that statement dealt mainly with the Harassment Allegations. The final form of the Customer Search Allegations was settled after Mr Di Federico's appointment and the applicant responded to the allegations in his statement of 6 October 2017.

286 As a lawyer, the applicant was aware of the importance of maintaining confidentiality of taxpayer records and the need to limit access to those records to work-related purposes. The SRO was not obliged to explain to him why unauthorised access to customer records was improper.

287 For the above reasons, unauthorised access to customer records could constitute misconduct irrespective of whether any taxpayer was aware of the unauthorised access or, if a taxpayer was aware, he or she did not wish to complain about the unauthorised access.

288 By its very nature, the alleged unauthorised access effected by the applicant using his computer could be achieved in a clandestine fashion without any witnesses. In these circumstances, the allegations against the applicant could be proved in accordance with the principles in Briginshaw by showing that the applicant's password-protected computer accessed the customer records and that those records were not relevant to any work being undertaken by the applicant. But, in any event, the ground upon which the applicant's employment was terminated was narrow, namely, that he had misled Mr Di Federico in his specific responses with respect to customers B, E, G, Q, V and W.[115] It follows that there is no substance to the applicant's complaint about the non-provision of evidence given by witnesses or the complaint that Mr Di Federico disregarded the witness testimonies that corroborated his evidence. Those complaints did not relate to the ground upon which the termination decision was based.

289 The applicant was provided with an unredacted copy of the Customer Search Report. That report provided sufficient information to the applicant to enable him to understand why Mr Di Federico made adverse findings against him.

290 As we have already stated, the applicant's complaints about the Privacy Act do not assist him because the allegation that he had breached that Act was not substantiated.

291 For the above reasons, the applicant has failed to establish that the respondents breached any provision of the VPSEA, the Misconduct Policy or the PAA in relation to the conduct of the Customer Search Investigation or the termination of his employment as a result of the findings of misconduct by that investigation.

(c) Decision on ground 3 - Harassment Investigation

292 The position is otherwise in relation to the Harassment Investigation, essentially because the copy of the Harassment Report that the SRO provided to the applicant was heavily redacted.

293 In order to appreciate the significance of the redactions, it is necessary for us to describe the course of the Harassment Investigation and the structure of the Harassment Report in more detail than we provided at [37]-[53] above.

294 It appears that AB made a verbal complaint of harassment against the applicant but never submitted a written complaint. Mr McKee's 9 June 2017 email to Mr Joyce set out allegations which were attributed to AB. Mr Joyce's letter of the same day to the applicant set out some of the allegations in Mr McKee's 9 June 2017 email and advised the applicant that those allegations would be the subject of an investigation. Following the appointment of Ms Klug as the investigator and correspondence between the applicant's solicitors and the SRO, particulars of the Harassment Allegations numbered 1 to 10 were provided to the applicant on 7 July 2017. The applicant was not provided with a copy of Mr McKee's 9 June 2017 email and was not informed that AB had not made a written complaint.

295 The applicant responded to the Harassment Allegations numbered 1 to 10 in writing and orally in meetings with Ms Klug on 1 and 10 August 2017. Ms Klug then questioned staff of the SRO, including Mr Kerr. Mr Kerr provided exculpatory information to Ms Klug.

296 On 25 and 29 August 2017, Ms Klug provided to the applicant summaries of the evidence that she had obtained in relation to the Harassment Allegations which contradicted the applicant's evidence. She did not provide him with a summary of any evidence which supported the applicant's evidence. On 4 September 2017, the applicant responded to the contradictory evidence.

297 On 12 September 2017, Ms Klug provided the Harassment Report to the SRO. The report comprises 68 pages and 38 attachments, including 12 transcripts of interviews with witnesses, six notes of meetings and two documents provided by witnesses.

298 On 25 October 2017, Mr Joyce sent a letter by email to the applicant advising that he had 'received and considered' the Harassment Report. He attached a

six-page summary of the Harassment Report with the names of SRO staff redacted. In his letter, Mr Joyce provided the following summary of the findings in the Harassment Report:

1. Allegation 5, Allegation 6, Allegation 7, and Allegation 9 are proven and found to amount to misconduct as defined in clause 21.3(a) of the [VPSEA].
2. Allegation 4 is partly proven and found to amount to misconduct as defined in clause 21.3(a) of the [VPSEA].

1. Allegation 1, Allegation 8 and Allegation 10 are partly proven, but found not to amount to misconduct as defined in clause 21.3(a) of the [VPSEA]. Therefore, in accordance with Clause 21.12(b) of the [VPSEA], I determine that there is to be no disciplinary action taken in relation to those allegations and the misconduct process in relation to those allegations is now concluded.

1. Allegation 3 is not proven. Therefore, in accordance with clause 21.10(e) of the [VPSEA], the misconduct process in relation to that allegation is now concluded.
2. No findings were made in respect of Allegation 2.

Therefore, your proven behaviour as set out in Allegation 4, Allegation 5, Allegation 6, Allegation 7, and Allegation 9 has been found to constitute misconduct (the Substantiated Misconduct).

299 In his letter, Mr Joyce stated that he 'consider[ed] Ms Klug's reasoning to be sound and the investigative process undertaken to be thorough' and that he 'therefore determined to accept Ms Klug's findings, on behalf of the SRO'. He stated that the SRO has found that the substantiated misconduct amounted to a contravention of the VPS Code of Conduct, the SRO Values and Behaviours and the harassment provisions of the SRO Equal Opportunity Policy. Mr Joyce proposed a discipline outcome consisting of a formal warning and a direction that the applicant 'undertake appropriate training in relation to [his] obligations under the VPS Code of Conduct, SRO Values and Behaviours and the SRO Equal Opportunity Policy'. Mr Joyce stated that, before he finalised his decision with respect to the proposed discipline outcome, in accordance with cl 21.11 of the VPSEA, he was providing the applicant with 'an opportunity to respond to the findings and proposed discipline outcome' by 3 November 2017.

300 Following receipt by the applicant of Mr Joyce's letter, his solicitors engaged in correspondence with the SRO in which they requested that the applicant be provided with a copy of the Harassment Report. The SRO did not accede to that request. However, on 13 November 2017, Mr Heywood sent a letter by email to the applicant's solicitors attaching a heavily redacted copy of the Harassment Report.

301 In his letter, Mr Heywood stated that the SRO 'has now fully considered its privacy obligations ... and has redacted personal information contained in the [Harassment Report] as appropriate'. He stated that the attachments to the report were not provided to the applicant because 'they either constitute personal information or [the applicant] already has them'. He requested the applicant's 'written response to the findings and proposed discipline outcome' by 5:00 pm on 27 November 2017.

302 On 27 November 2017, the applicant's solicitors wrote to Mr Joyce stating that the applicant could not make any meaningful response to Ms Klug's findings unless he received an unredacted version of the Harassment Report. On 30 November 2017, Mr Joyce refused to provide an unredacted version. The unredacted version was not in evidence before the associate judge or before us.

303 As we have already stated, the applicant's employment was terminated on 19 July 2019, three days after publication of the injunction judgment and the injunction costs judgment, on the basis of six of the substantiated allegations in the Customer Search Report. It appears that, in the light of the termination of the applicant's employment, no final decision was made by the SRO in relation to the substantiated Harassment Allegations. There is no evidence before us that the applicant was given a warning or required to undertake training as a result of those allegations.

304 The Harassment Report contains six sections headed 'Overview of Report' (section 1), 'Scope of Investigation' (section 2), 'Evidence Collected' (section 3), 'Issues Arising' (section 4), 'Alleged Policy Breaches' (section 5) and 'Analysis of Evidence - Allegations of Harassment' (section 6).

305 In section 4 of the Harassment Report, Ms Klug stated that AB made a verbal complaint against the applicant, but not a written complaint. In section 5, she concluded that, apart from allegations 6, 7 and 9, the applicant's behaviour 'is considered to be at the lower end of seriousness' and that, in respect of all the allegations, there was 'no evidence ... that [the applicant] intended to be deliberately malicious, demeaning or offensive, rather ... he exercised poor judgement and went too far'.

306 Section 6 of the Harassment Report deals with each of the 10 allegations in turn. For each of the allegations, Ms Klug set out the allegation, an analysis of the evidence and her findings. The parts of the report dealing with the analysis of the evidence for each of the allegations were heavily redacted by the SRO. In order to convey the significance of those redactions, we set out the part of the Harassment Report which deals with one of the allegations, allegation 7:

6.7 Allegation 7

On or about Monday 22 May 2017, you made inappropriate, harassing or offensive comments in the workplace to [AB] when she asked you how you knew she had [a named work colleague] as a friend on Facebook, and asked you if you were stalking her and you responded, 'Yes, and I don't just stalk you on Facebook. I stalk you in other ways as well.'

Analysis of Evidence.

Mr Tucker denies this allegation.

Mr Tucker's written response was that, 'I deny each and every allegation in this paragraph. I believe that there was a discussion between [AB] and myself on the afternoon of 22 May 2017. However, that conversation concerned the fact that [the named work colleague] had been "liking" and "wowing" numerous photos on her Facebook. I otherwise expressly deny making each and every one of the statements purportedly attributed to me.'

The alleged behaviour, according to [AB], happened on the morning as the comments discussed in allegation 6 and while Mr Tucker was 'ranting and raving' about [AB] being friends with [the named work colleague] on Facebook, at one point, she claims she asked Mr Tucker how he knew that [the named work colleague] was on her Facebook and that she asked him 'Are you stalking me?' and that Mr Tucker responded, 'Yeah, I don't just stalk on you Facebook. I stalk you other ways as well.'

As discussed above, at this time, according to Mr Tucker, he had never accessed her Facebook page, until [AB] accepted his friend request at 1.10 pm on 22 May 2017. As discussed above, this appears to be implausible [two lines redacted] and given that it has been found proven above (in relation to allegation 1, 5 and 6) that Mr Tucker had looked at her page before she accepted his friend request.

Until this time, it is also clear from all the evidence that Mr Tucker had not openly disclosed to [AB] that he had seen her page, [1.5 pages redacted]

In conclusion, the investigator finds this allegation is proven based on [one line redacted] and the relevant and proven context that Mr Tucker had been looking at [AB's] Facebook page all morning and making teasing comments about [AB] being friends with [the named work colleague] in a way that was intrusive and inappropriate.

Although the alleged comment is found proven, there is no evidence that Mr Tucker was in fact stalking [AB] [30 per cent of page redacted]

the investigator finds that suggesting he was stalking her and had other means to do so, apart from Facebook, is objectively inappropriate, harassing and offensive.

Findings

The investigator finds, on the balance of probabilities, that allegation 7 is proven.

Comment on breach of policy

The investigator comments, from the perspective of a layperson, that the behaviour found proven is an apparent breach of policy.

In relation to whether Mr Tucker's behaviour towards [AB] was disrespectful or harassing, the investigator has firstly considered how [AB] reacted and was observed to have reacted to the incident. [two lines redacted]

With respect to the language used, the investigator has determined, based on the available evidence, and on the balance of probabilities, that by saying he was stalking [AB] on Facebook and other ways as well, even if it was said in a laughing or joking way, was both disrespectful and harassing and did not demonstrate respect for her privacy and sense of safety. As stalking is a crime and is a serious, intrusive, aggressive course of conduct, the proven comment could reasonably be interpreted as intimidating, and harassing in nature.

The investigator comments that the proven behaviour is therefore an apparent breach of Clause 7.1(e) of the [PAA] and the VPS Code of Conduct part 6.1 and SRO Values and Behaviours, specifically, the requirement to demonstrate respect for his colleague.

The investigator comments that as the proven behaviour is an apparent breach of the [PAA] and the binding VPS Code of Conduct, the behaviour apparently falls within the meaning of 'misconduct' in clause 21.3 of the [VPSEA].

The investigator comments that the proven behaviour is also an apparent breach of the Equal Opportunity Policy (and hence a breach of the VPS Code of Conduct, part 6.4 and SRO Values and Behaviours - Respect to ensure and create an environment [free] from harassment) because it is behaviour that appears to meet the definition of harassment because it was behaviour that a reasonable person would have anticipated [AB] would find offensive, humiliating or intimidating.[116]

307 It is readily apparent that the nature of the redactions is such that, whilst AB's allegations and the applicant's evidence were disclosed to him, the evidence of other witnesses was not and, critically, Ms Klug's analysis of that evidence and reasons for finding that allegation 7 was proven were withheld. As a result, it was impossible for the applicant to determine the evidentiary basis for the finding. This precluded him from making any meaningful submissions as to why the finding was unsound - and therefore should not be accepted by the SRO - or as to why the proposed discipline outcome was not warranted on that basis. The redactions in relation to allegation 7 are illustrative of the approach taken to redaction of the document as a whole.

308 We reject the respondents' submission that the right of an employee under cl 21.11(a) of the VPSEA to 'be provided with sufficient information to allow them a reasonable basis to respond' does not extend to the making of submissions as to why the findings should not be accepted and therefore the employee is not entitled to receive the reasons for the findings. Implicit in the submission is that, under cl 21.11(a), the investigator's findings are binding on the employer and the employee and that the only remaining issue for submissions and decision is whether the proposed discipline outcome is warranted in the light of the findings. However, cl 21.11(a) does not expressly state that the findings are binding on the employer and the employee and there is nothing in the wording of the clause that suggests that the findings should be treated as binding. To the contrary, cl 21.10(e) raises the question whether the employer will 'accept' a finding that an allegation is not substantiated. Further, cl 21.10(f) provides that, where the investigator makes a finding that an allegation is substantiated, the employer must 'consider this information'.

309 In our opinion, cl 21.11(a) of the VPSEA does not treat the investigator's findings as binding on the employer and the employee.[117] Clause 21.10(e) and (f) and cl 21.12(a) support our construction.[118] If it had been intended for the findings to be binding on the employer, those clauses would not have used the words 'a finding ... which is accepted by the Employer' or '[t]he Employer will consider ... the findings'. This wording indicates that it is the employer, not the investigator, who decides whether any of the allegations of misconduct against the employee are proven and what, if any, discipline outcome should flow from the established misconduct. More fundamentally, cl 21.11 gives the employee the opportunity to give the employer a response to the investigator's findings. This opportunity would be meaningless if the employer was bound by those findings.

310 Further, it would be contrary to common sense and fairness to require an employer who is not persuaded by the investigator's analysis that the evidence obtained in the investigation is sufficient to warrant the adverse findings made by the investigator to accept the findings and discipline the employee on the basis of those findings. The better view is that, in such a situation, the employer could inform the employee that the employer rejects the findings and withdraws the allegations against the employee. Alternatively, the employer could propose findings which are less serious from the employee's perspective and a less severe discipline outcome than originally contemplated, and seek the employee's response to the alternative findings and discipline outcome.

311 An employer who forms the view that the investigator's analysis of the evidence obtained in the investigation warrants more serious findings against the employee than those made by the investigator could not reject the findings and propose making more serious findings and imposing a more severe discipline outcome. That is because the employee would not have had notice during the investigation that such findings were contemplated and a proper opportunity to present evidence or make submissions on the more serious potential findings. It is not necessary for us to decide whether an employer in this type of situation could reject the investigator's findings and commence a new investigation into the allegations.

312 It would also be contrary to common sense and fairness to preclude an employee who forms the view that the investigator's analysis of the evidence obtained in the investigation is insufficient to warrant the adverse findings made by the investigator from making submissions to the employer as to why the findings should not be accepted.

313 In our opinion, once an investigator completes an investigation and his or her findings are provided to an employee, the employee has at least three options. One option is to accept the findings and make submissions on the appropriateness of the employer's proposed discipline outcome in the light of the findings. A second option is to make submissions to the employer as to why the findings should not be accepted and no disciplinary action should be taken. A third option is to make submissions to the employer as to why less serious findings than those made by the investigator should be adopted and why less severe disciplinary action than that proposed by the employer should be taken.

314 For the above reasons, the phrases in cl 21.11 of the VPSEA 'the Employee will be provided with the findings of the investigator and the proposed discipline outcome' and '[t]he Employee will be provided with sufficient information to allow them a reasonable basis to respond' do not mean that the employee must treat the findings as set in stone. Nor do they mean that the only issue for response is whether the proposed disciplinary action should be taken in the light of the findings. Rather, the employee is entitled to respond to the findings as well as to the proposed discipline outcome and must be given sufficient information to allow the employee a reasonable basis to respond in relation to both.

315 Where an investigator's report provides reasons for the findings set out in the report, the employee will not be provided with sufficient information to allow him or her a reasonable basis to respond to the findings unless he or she is provided with the reasons (subject of course to legal restrictions such as those that may be applied by privacy laws). Armed with the reasons, the employee might be able to make submissions that the findings should not be adopted by the employer because they lack a proper foundation. There may be various bases for such a submission, such as that the investigator's reasons: are internally inconsistent; misstate undisputed facts; rely exclusively upon the incriminating evidence that was obtained and make no reference at all to important exculpatory evidence that was obtained; are based on an erroneous interpretation of the definition of 'misconduct' in cl 21.3 of the VPSEA; or proceed on a misunderstanding of the law.

316 Our construction of cl 21.11(a) of the VPSEA would not have the effect of reopening the investigation and enabling an employee to re-agitate issues upon which he or she has already made submissions. The main focus of the submissions to be made under cl 21.11(a) is on whether the findings should be accepted on the basis of the evidence and other material that was before the investigator and whether the proposed discipline outcome should be adopted. It is not necessary to consider the extent to which other matters, such as previously unavailable evidence, might also be addressed.

317 In the present case, the redaction of Ms Klug's reasons for making the findings resulted in a breach of cl 21.11(a) of the VPSEA because the applicant was not provided with sufficient information to allow him a reasonable basis to make submissions on whether the findings should be accepted and whether the proposed discipline outcome should be adopted. That breach was contrary to the principles of procedural fairness with which the SRO was obliged to comply under cl 21.6. It was also contrary to the respondents' obligation under s 20(3)(c) of the PAA to act in conformity with the public sector employment principle in s 8(b), that is, to treat the applicant fairly and reasonably.

318 The redaction of the reasons in the copy of the Harassment Report that was provided to the applicant meant that he and the SRO were not placed on an equal footing - in terms of the information available to them - to make an assessment as to whether the findings had a sound foundation in Ms Klug's reasons. Mr Joyce, who had an unredacted copy of the report, was able to state in his letter of 25 October 2017 that he 'consider[ed] Ms Klug's reasoning to be sound'. On the other hand, the redaction of the reasons from the copy of the report provided to the applicant meant that he was not able to assess the soundness of the reasoning. This inequality in the information that was available to the parties was unfair to the applicant.

319 In his letter of 25 October 2017, Mr Joyce also stated that, as a result of his assessment that Ms Klug's reasoning was sound, he had 'determined to accept Ms Klug's findings, on behalf of the SRO'. He made a similar statement in relation to Mr Di Federico's findings.[119] These statements suggest that Mr Joyce considered that he had a choice whether to accept the investigators' findings and that he accepted them only after satisfying himself that they were sound. Mr Joyce's conduct is consistent with our conclusion that an investigator's findings are not binding on either the employer or the employee.

320 The statement in Mr Heywood's letter of 13 November 2017 set out at [301] above implies that the redactions to the Harassment Report were made solely to remove personal information. The fact that entire pages of the report are redacted strongly indicates that the redacted material extended beyond personal information and included much of Ms Klug's reasons for her findings.

321 Section 3 of the Privacy Act defines 'personal information' as information 'about' an identifiable individual. Where a witness gives evidence to an investigator about what he or she heard or observed a work colleague say or do, neither the identity of the witness nor his or her evidence is 'about' the witness.[120] Accordingly, redaction of the evidence would not be appropriate on privacy grounds. Employers must avoid being over-zealous in invoking privacy as a basis for withholding relevant information from an employee who is the subject of serious allegations. As this case demonstrates, inappropriate withholding of information may result in a denial of procedural fairness.

322 Contrary to the associate judge's conclusion summarised at [228] above, the fact that the applicant was provided with particulars of the Harassment Allegations and the adverse evidence during the course of the Harassment Investigation and was given an opportunity to respond does not mean that the withholding of Ms Klug's reasons for her findings did not constitute a breach of cl 21.11(a), and thus cl 21.6(a), of the VPSEA, and a breach of s 20(3)(c) of the PAA. The right to respond to allegations arises during the course of an investigation, whereas the right to make submissions on whether the investigator's findings should be accepted arises at the conclusion of the investigation. Compliance with the principles of procedural fairness at one stage of a disciplinary process does not preclude a finding of noncompliance with those principles at a later stage of the process.

323 It follows from the above discussion that the SRO's redaction of Ms Klug's reasons for her findings constitutes a breach of cl 21.11(a), and thus cl 21.6(a), of the VPSEA, and a breach of s 20(3)(c) of the PAA.

324 We reject the applicant's submissions that any other aspect of the Harassment Investigation constituted a breach of cl 21 of the VPSEA, the Misconduct Policy or s 20(3) of the PAA. In particular:

(a) For the reasons discussed at [169]-[171] above, the non-provision to the applicant of Mr McKee's 9 June 2017 email did not constitute such a breach.

(b) The SRO's failure to inform the applicant of the fact that AB did not lodge a written complaint against him did not constitute such a breach. The SRO was entitled to act upon AB's verbal complaint, provided that the SRO properly particularised the allegations against the applicant and gave him a fair opportunity to respond to the allegations. In our opinion, the SRO complied with those obligations.

(c) The SRO's failure to provide the applicant with the transcript of Ms Klug's interviews with witnesses who gave evidence consistent with his account did not constitute such a breach. Procedural fairness requires that a person who is the subject of a disciplinary investigation be provided with the allegations against him or her and the substance of material the decision-maker proposes to rely upon in support of the allegations. The investigator must conduct the investigation fairly and take into account evidence that is both favourable and unfavourable to the relevant person. We do not need to consider the circumstances in which a failure to provide favourable information to the relevant person might constitute a denial of procedural fairness.[121] When the Harassment Investigation is viewed holistically, the non-provision of favourable evidence - such as the evidence of Mr Kerr - to the applicant did not constitute a denial of procedural fairness.

(d) The applicant has not demonstrated that he was not provided with the substance of any evidence that was adverse to him or that he was deprived of an opportunity to respond to that evidence before the conclusion of the Harassment Investigation.

325 We are not in a position to form any view on the applicant's submission that Ms Klug disregarded, without explanation, the witness testimonies that corroborated his account. That is because it is not possible for us to determine whether, in the redacted portions of the Harassment Report, Ms Klug analysed the evidence that was favourable to the applicant and explained why she preferred the evidence that was unfavourable to him. Our inability to make this determination reinforces our conclusion that the redactions constitute a denial of procedural fairness.

326 For the above reasons, ground 3 is made out solely in relation to the inappropriate redactions to the Harassment Report.

327 We have already decided in the context of grounds 1 and 3 that the applicant's employment contract contained an express term requiring the SRO to comply with cl 21 of the VPSEA and that the respondents breached that term. We have also decided in the context of ground 3 that the respondents breached s 20(3)(c) of the PAA, read together with s 8(b). Accordingly, subject to anything to the contrary in the FWA, the Supreme Court has jurisdiction to make declarations in relation to those breaches. It follows that, unless the FWA takes away the jurisdiction of the Supreme Court that would otherwise arise under the employment contract and the PAA, the applicant need not establish an independent conferral of jurisdiction under the FWA.

328 There are three aspects to the applicant's arguments under ground 4. First, he submitted that the Supreme Court had jurisdiction to make declarations and grant interlocutory relief with respect to the claimed breaches of the VPSEA under the case pleaded in the 2nd FASOC. Secondly, he contended that the associate judge erred in refusing leave to file the Proposed 3rd FASOC, which would have added an allegation that the breaches of the VPSEA were contraventions of s 50 of the FWA. Thirdly, he argued that the associate judge erred in finding that the application to file the Proposed 3rd FASOC was an abuse of process.

330 The argument as to jurisdiction focused on the FWA. The applicant submitted that, subject to any inconsistent operation of that Act, the Court had jurisdiction to hear and determine the claims based on breach of his employment contract and breach of the PAA. However, if neither the employment contract nor the PAA gave the relevant provisions of the VPSEA legal force, the applicant sought to rely instead on the FWA.

331 The associate judge did not address this issue, because she had found that the claims were not sustained in any event. On one view, we do not need to decide it either, because the Court has jurisdiction in respect of the breach of contract and the breach of s 20(3) of the PAA which we have identified and it is not necessary to decide whether there is an independent cause of action based on breach of the VPSEA standing alone. However, the issue should be addressed because it is desirable that we identify whether the matter is in federal jurisdiction before addressing the respondents' argument that the FWA operates to preclude relief for breach of the VPSEA.

332 The applicant submitted that the Court had jurisdiction to decide whether the breaches of the VPSEA had occurred, and to grant appropriate relief, derived from s 39(2) of the Judiciary Act 1903 (Cth). Section 39(2) relevantly invests the 'Courts of the States ... with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it'. That includes the matters set out in s 76(ii) of the Constitution, which permits the Parliament to confer original jurisdiction on the High Court 'in any matter ... arising under any laws made by the Parliament'. Section 77(iii) of the Constitution relevantly permits the Parliament to make laws, of which s 39(2) of the Judiciary Act is an example, 'investing any court of a State with federal jurisdiction' with respect to the matters in s 76.

333 The question is therefore whether the applicant's claims that the respondents breached the VPSEA constituted a matter arising under a law made by the federal Parliament, specifically the FWA. In this context, a 'matter' is a justiciable controversy, meaning the subject matter for determination in a legal proceeding, encompassing all claims within the scope of the controversy.[122]

334 Here, the subject matter of the proceeding is whether or not the respondents breached the VPSEA in the ways alleged. The issue is whether that matter is one 'arising under' the FWA. Argument before the associate judge appears to have proceeded on the assumption that the matter would only 'arise under' the FWA if the applicant specifically alleged breach of the FWA, which the 2nd FASOC did not do. The respondents submitted in this Court that, because the applicant had not pleaded a breach of s 50 of the FWA, 'the proceeding was not a matter arising under' the FWA.

335 This submission misconceives the scope of the expression 'arising under' in this context. It is well established that, if a claimed right or duty owes its existence to a federal statute, then the controversy as to whether the right was infringed or the duty was performed is a matter arising under that federal statute. As Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ explained in LNC Industries Ltd v BMW (Aust) Ltd:[123]

The conclusion reached by Latham CJ in [R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[124]], and stated in a passage that has often been cited with approval, is 'that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law'. Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth.

When it is said that a matter will arise under a law of the Parliament only if the right or duty in question in the matter owes its existence to a law of the Parliament that does not mean that the question depends on the form of the relief sought and on whether that relief depends on federal law. A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law.[125]

336 The respondents submitted that the FWA had only a 'background' role, such that it arose only in an incidental way in the proceeding. They relied upon the following passage in Moorgate Tobacco Co Ltd v Philip Morris Ltd:

The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion.[126]

However, the High Court went on to identify two ways in which federal jurisdiction is attracted, both of which are relevant to the present case. The relevant passage continues:

So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds.[127]

337 In other words, if the matter involves an asserted right or duty based on a federal statute, then a federal question arises in a way that, by definition, is not incidental. That is so, even if the court need not decide whether the asserted right or duty is established. The same issue can equally be posed in the language used in LNC Industries, namely, whether the matter involves an asserted right or duty that owes its existence to a federal statute.

338 In the present case, as we have already indicated,[128] the applicant alleged in terms that a right or duty based in, or owing its existence to, federal law existed. Paragraph 11 of the 2nd FASOC stated:

1. covered and applied to the [applicant] in his employment with the [State];

b. covered and applied to the [State].

PARTICULARS

The VPSEA was approved by the Fair Work Commission pursuant to section 185 of the [FWA] by order made 11 May 2016 and commenced 18 May 2016.

339 Paragraph 12 then alleged a series of specific obligations of the respondents '[u]nder clause 21 of the VPSEA'. The respondents admitted these allegations.

340 This pleading makes it clear that it was being alleged that the source of the rights and obligations upon which the applicant relied was the FWA. Put differently, the rights and obligations owed their existence to the FWA. Part 2-4 of the FWA empowers the Fair Work Commission to approve an enterprise agreement that is submitted for approval under s 185. Section 54(1) then provides that an enterprise agreement approved by the Fair Work Commission operates from seven days after the agreement is approved, or some later day specified in the agreement.

341 The applicant's reliance on s 185 of the FWA as the legal foundation of the obligations of the respondents under the VPSEA meant that the matter was one arising under the FWA. It is not to the point that no specific claim for relief provided for under the FWA was made. In particular, nothing turns on the absence of any claim for relief as a result of breach of s 50 of the FWA. It will be recalled that s 50 provides that a person must not contravene a term of an enterprise agreement. Breach of that provision has consequences provided for by the FWA. However, subject to any exclusionary operation of the FWA, breach of a term of an enterprise agreement having legal force by virtue of the FWA may also found declaratory or other relief not specified in the FWA itself. A claim for such relief is a matter arising under the FWA.

342 The respondents further submitted that, in any event, the jurisdiction of the Supreme Court under s 39(2) of the Judiciary Act was limited by virtue of s 539(2) of the FWA. Section 539 relevantly reads as follows:

1. Applications for orders in relation to contraventions of civil remedy provisions

(1) A provision referred to in column 1 of an item in the table in subsection (2) is a civil remedy provision.

(2) For each civil remedy provision, the persons referred to in column 2 of the item may ... apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

...

343 As discussed at [88] above, the table in s 539(2) contains a number of items which describe s 50 as a 'civil remedy provision' and enable an employee to seek a penalty in certain courts which do not include the Supreme Court of any State or Territory. Section 546 empowers certain courts, which do not include Supreme Courts, to order payment of pecuniary penalties for contravention of a civil remedy provision. In addition, s 545 permits the Federal Court and the Federal Circuit Court to make any order they consider appropriate if satisfied that a person has contravened a civil remedy provision, including (without limitation) an injunction, an order for compensation or an order for reinstatement. Section 545(3) also empowers eligible State and Territory courts, which do not include Supreme Courts, to order an employer to pay an employee an amount required to be paid and not paid, in breach of a civil remedy provision.

344 The respondents submitted that these provisions evince an intention to exclude the general conferral of jurisdiction on the Supreme Court otherwise effected by s 39(2) of the Judiciary Act. They relied upon the decision of the High Court in R v Ward.[129] That case concerned s 27 of the Bankruptcy Act 1966 (Cth), which invested jurisdiction in bankruptcy in various courts, relevantly excluding the District Court of Queensland. The question was whether that court had jurisdiction to try and convict a person for offences committed against s 269 of the Bankruptcy Act. That in turn concerned the question whether s 39(2) of the Judiciary Act was displaced by the provisions of the Bankruptcy Act. In that context, the High Court drew attention to the following passage in the joint judgment of Rich, Dixon and Evatt JJ in Adams v Cleeve:

[Section] 39 is expressed in terms of perfectly general application, and such an application accords with the principles upon which the enactment proceeds. To exclude its operation upon any part of Federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which sec. 39 also confers. If the special provision conferred a different authority, or imposed conditions or restrictions or otherwise disclosed an intention at variance with the full operation of sec. 39, an intention to exclude it might be inferred.[130]

345 The High Court in Ward explained that the test for inferring an intention to exclude the s 39(2) jurisdiction of a court is more rigorous than this passage might at first suggest. The Court said:

We do not think that by the last sentence their Honours were saying that wherever the 'special provision' confers a jurisdiction different from that conferred by s 39 of the Judiciary Act s 39 is thereby totally excluded. No doubt their Honours had in contemplation a contradictory or inconsistent authority from which it might be deduced that the Parliament was displacing pro tanto the grant of jurisdiction contained in s 39. As Gibbs J said in R v Bull,[131] 's 39(2) invests the several courts of the States with federal jurisdiction in any matter arising under any Commonwealth law'. In our opinion, this grant of jurisdiction will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s 39.[132]

346 In the present case, s 539(2) of the FWA provides for specific penalties, enforceable in particular courts, for breach of s 50. Its operation is confined to provisions such as s 50 which are defined as civil remedy provisions. In the case of those provisions, it is plain that only the specified courts have jurisdiction to impose the identified penalties. The respondents go further, and submit that the provisions identified constitute an exhaustive statement of the course to be followed in respect of contraventions of civil remedy provisions. It is said that the specific conferral of jurisdiction on identified courts in respect of that matter cannot sit with the general conferral of jurisdiction in s 39(2) of the Judiciary Act. But that question need not be decided, because in the present case the 2nd FASOC seeks no relief for contravention of s 50 or any other civil remedy provision. Indeed, s 50 is not mentioned at all. Nor does it seek any payment or order for reinstatement, as to which it might be said that the statutory scheme in s 539(2) was intended to be exhaustive.[133] In our opinion, it is drawing far too long a bow to suggest that s 539(2), read with the related provisions, reveals an intention to exclude from the jurisdiction of the Supreme Court conferred by s 39(2) of the Judiciary Act, not only cases seeking any relief for contravention of s 50 of the FWA, but a case in which a claim is advanced seeking only declaratory relief for breach of obligations created by an enterprise agreement without reliance of any sort on s 50.

347 Accordingly, s 539(2) of the FWA did not operate to detract from the full operation of s 39(2) of the Judiciary Act in the present case. The Court had jurisdiction in the present case because it had before it a matter arising under the FWA.

348 This conclusion suffices for the purpose of upholding ground 4. However, it is convenient briefly to mention the second and third aspects of the applicant's submissions under this ground.

349 The second argument was that the associate judge had erred in failing to grant the applicant leave to file the Proposed 3rd FASOC. As indicated at [92] above, the relevant amendment which that document sought to make to the 2nd FASOC was the addition of paragraph 37A, to the following effect:

Further, the breaches alleged in paragraphs 34 to 37 above were contraventions of section 50 of the [FWA] as they were contraventions of the VPSEA.

350 No amendment was sought to be made to the prayer for relief. In other words, the applicant was not seeking to introduce a claim, either for a civil penalty or for a declaration or other relief, for the contraventions of s 50 that were alleged. In one sense, the amendment was unnecessary because, as explained above, even without it the matter was one arising under the FWA in which the Court had jurisdiction. However, that would not afford a reason not to permit the amendment. The associate judge refused the amendment on the principal basis that it was an abuse of process. She also found that the application for amendment was not timely or fair to the respondents. In our view, the associate judge was in error in reaching these conclusions.

351 The associate judge placed particular reliance on the ruling of McDonald J refusing the applicant leave to further amend his statement of claim to plead a contravention of s 50 of the FWA. The proposed pleading on that occasion involved seven separate contraventions and contained a prayer for relief seeking the imposition of penalties in respect of those contraventions. McDonald J held, as is no longer in contention, that the Supreme Court has no jurisdiction to hear and determine a claim for penalties for contravention of s 50. He held that it was not an appropriate exercise of the Court's power to allow an amendment to plead a cause of action which the Court had no power to hear and determine. The associate judge held that, rather than seek to appeal against that decision, the applicant was seeking to re-agitate the same issue.

352 For the reasons given above, this was not so. Rather than pleading a cause of action relying on s 50, the Proposed 3rd FASOC sought only to allege contravention of s 50 without seeking any specific relief in relation to it. Certainly, the Proposed 3rd FASOC did not seek the imposition of any civil penalty in relation to s 50. The application was therefore markedly different from that which McDonald J refused.

353 Further, there would have been no unfairness to the respondents in allowing the amendment. The associate judge accepted that any prejudice to them could be met with an appropriate costs order. There was no difficulty with timeliness. The effect of the amendment would merely have been to put beyond doubt the question of the Court's jurisdiction. Although the application itself no doubt caused delay and costs, that could readily have been dealt with by an order for the costs of the application and costs thrown away to be borne by the applicant.

354 In our opinion, therefore, the associate judge's discretion miscarried and the Proposed 3rd FASOC should have been allowed to be filed. It is inherent in that conclusion that we also uphold the applicant's contention that the Proposed 3rd FASOC and the application for leave to amend the 2nd FASOC did not constitute an abuse of process.

Overall decision on Injunction Leave Application; extension of time

355 For the reasons set out above, we have reached the following conclusions in relation to the Injunction Leave Application:

(a) The applicant will be granted an extension of time to file that application.

(b) The applicant will also be granted leave to appeal.

(c) The appeal will be allowed in respect of ground 1 on the basis that the associate judge erred in not finding that the employment contract required the respondents to comply with cl 21 of the VPSEA in relation to the possible termination of the applicant's employment.

(d) The appeal will be allowed in respect of ground 3 on the basis that the associate judge erred in not finding that the respondents breached cl 21.11(a) (and thus cl 21.6) of the VPSEA, and breached s 20(3)(c) of the PAA (read together with s 8(b)). The respondents breached those provisions because, by providing to the applicant a heavily redacted Harassment Report, they failed to provide him with sufficient information to allow him a reasonable basis to respond to the findings in that report and the proposed discipline outcome.

(e) The appeal will be allowed in respect of ground 4 on the basis that the associate judge erred in failing to conclude that the applicant's pleading engaged the jurisdiction of the Supreme Court under s 39(2) of the Judiciary Act to make a declaration in respect of the claimed breaches by the respondents of cl 21 of the VPSEA.

356 We now deal with the issue of what relief should be granted to the applicant in the light of the above conclusions.

357 The applicant submitted that the granting of a declaration to the effect that the respondents had denied him procedural fairness, unaccompanied by any other relief, would not be futile because such a declaration would vindicate him and go some way to restoring his reputation and employment prospects. He also submitted that, if the declaration extended to the Customer Search Investigation, which resulted in the termination of his employment, such a declaration would assist him in his unfair dismissal proceeding in the Fair Work Commission. In the light of our conclusion that the applicant was not denied procedural fairness in relation to the Customer Search Investigation, we need not consider the latter submission.

358 The respondents submitted that a declaration at this point in time would be futile because the applicant is not seeking to set aside the disciplinary action that was taken against him as a result of the Customer Search Investigation.

359 The Court has jurisdiction to make a binding declaration of right without granting consequential relief.[134]

360 In our opinion, it is appropriate for this Court to make a declaration based on the third and fourth declarations sought by the applicant, as set out at [216] above, namely, that the respondents have failed to conduct the Harassment Investigation in accordance with the procedural fairness requirements of cl 21 of the VPSEA and s 20(3)(c) of the PAA (read together with s 8(b)).

361 Even though the findings of harassment were on the lower end of the spectrum of seriousness and did not in fact result in any disciplinary action being taken against the applicant,[135] they nevertheless affect his reputation and employment prospects. Harassment in the workplace is a serious matter and it is likely that many employers may be reluctant to employ someone who has been found to have engaged in such conduct. That reluctance may be ameliorated by a declaration by this Court that the findings of harassment against the applicant resulted from an unfair investigative process.

362 In addition, as the applicant's complaints about the unfairness of the Harassment Investigation have been upheld in part by this Court, the applicant is entitled to feel vindicated. Such vindication would be enhanced by the making of a formal court order in his favour.

363 Further, compliance with the principles of procedural fairness by

decision-makers is an important aspect of the rule of law and therefore it would be in the interests of the administration of justice for this Court to declare that the principles were breached in the present case. Such a declaration may assist the SRO - as well as any other State agency which is bound by the VPSEA - to avoid similar breaches in the future.

364 We note that the limited nature of the proposed declaration means that the SRO will not suffer any material prejudice from the granting of an extension of time to the applicant to file the Injunction Leave Application.

PART D: INJUNCTION COSTS LEAVE APPLICATION

Associate judge's decision and parties' submissions

365 The Injunction Costs Leave Application turns on the operation of s 570 of the FWA. That section provides as follows:

570 Costs only if proceedings instituted vexatiously etc.

(1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.

Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.

(2) The party may be ordered to pay the costs only if:

(a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or

(c) the court is satisfied of both of the following:

(i) the party unreasonably refused to participate in a matter before the FWC;

(ii) the matter arose from the same facts as the proceedings.

366 The associate judge held that the proceeding was not 'in relation to a matter arising under [the FWA]' and that, as a result, s 570(1) was not applicable. She ordered that the applicant pay the respondents' costs on the standard basis, apart from the costs of his application to file the Proposed 3rd FASOC, which she ordered to be paid on the indemnity basis.

367 The associate judge relied on two cases which are referred to later in these reasons: Melbourne Stadiums Ltd v Sautner[136] and the first instance decision in Bannon v Nauru Phosphate Royalties Trust.[137] She held that the causes of action in the proceeding were a breach of a common law contract and a breach of the PAA. She held that there was 'an insufficient nexus between the proceeding and a matter arising under the FWA'.[138]

368 The associate judge went on to say that the decision of the High Court in LNC Industries could be distinguished because the contracts in that case were concerned solely with entitlements under Commonwealth regulations and existed only by reason of the provisions of such regulations and legislation. In contrast, here the employment contract was a common law contract existing independently of the FWA, having 'a life of its own'.[139]

369 The associate judge held that the applicant had not relied upon the FWA to establish a right being vindicated. He had conceded before McDonald J that the Supreme Court was not the appropriate forum to agitate a claim under s 50 of the FWA and the associate judge had disallowed an amendment to include such a claim, finding that it was an abuse of process.[140]

370 The applicant advanced a single ground of appeal in relation to the injunction costs judgment, as follows:

The learned primary judge erred in not concluding that the proceeding was 'in relation to a matter arising under' the [FWA], and thereby engaged s 570(1) of the [FWA], in circumstances where the applicant alleged in his 2nd FASOC that the [VPSEA] applied to the first respondent, the VPSEA imposed six procedural obligations on the respondents in investigating any allegations of misconduct against the applicant, the respondents failed to comply with the six procedural obligations arising under the VPSEA and the applicant claimed declaratory relief in relation to those alleged failures.

371 The respondents filed a notice of contention which relied upon the following ground:

Should the Court of Appeal determine that s 570 of the [FWA] did apply to the proceeding, the Court should nevertheless affirm [the associate judge's costs orders in relation to the proceeding (other than the Undertaking as to Damages)] by reason of the Applicant having engaged in an 'unreasonable act ... that caused [the Respondents] to incur' costs (s 570(2)(b)), namely, by the Applicant seeking leave to file [the Proposed 3rd FASOC] and for the Respondents thereafter having to incur costs to oppose such application.

372 The applicant submitted that cl 21 of the VPSEA had legal force and effect because it was part of an enterprise agreement approved under, and given statutory force by, the FWA. He contended that an enterprise agreement is 'a creature of statute having force by virtue of the statute'.[141] Accordingly, each of the rights relied upon by the applicant were said to have arisen under the FWA. In this way, the applicant argued, the rights and obligations which formed the subject matter of the justiciable controversy 'owed their existence' to the FWA. This was said to be so, irrespective of whether the Court had jurisdiction to grant the declaratory relief sought.[142]

373 The applicant submitted that it did not matter that he also sought to enforce the respondents' obligations as terms of his employment contract and by means of the PAA.

374 According to the applicant, this conclusion was consistent with the purpose of s 570 of the FWA, which he identified as being to prevent genuine litigants being discouraged from pursuing cases with reasonable cause.[143]

375 The respondents submitted that the terms of an enterprise agreement were binding under the FWA only by virtue of s 50 of that Act. They submitted that the relevant duty, sourced in the FWA, was to comply with an enterprise agreement made and approved in accordance with the FWA. It was said that the relevant right was to have the benefit of that compliance. They contended that, as a result, any rights that the applicant had under the VPSEA disciplinary process, to the extent that they arose under the FWA, necessarily owed their existence to s 50. They emphasised, however, that s 50 was not part of the applicant's case.

376 The respondents contended that, because the applicant made no claims under s 50 of the FWA, there were no rights or duties in question in the matter which owed their existence to the FWA. Accordingly, so it was said, there were no matters arising under the FWA and the proceeding was not one in relation to such a matter. Instead, it was argued that it was simply a 'background matter' that the VPSEA had originally been made pursuant to the FWA. It was said that this fact was not relied upon to assert any right on the part of the applicant. The respondents submitted that, in order to discover the content of the alleged duties under the employment contract and the PAA, no regard needed to be had to the FWA. They contended that, on the applicant's case, the rights claimed by him were based solely upon the contract and the PAA.

377 The expression 'matter arising under this Act' in s 570 of the FWA mirrors the language in s 76 of the Constitution which is picked up by s 39(2) of the Judiciary Act. The short answer to the respondents' submissions in relation to the Injunction Costs Leave Application is that, for the reasons given in relation to ground 4 of the Injunction Leave Application, the matter in the proceeding was one 'arising under' the FWA. It follows that the proceeding was one 'in relation to a matter arising under [the FWA]' and that s 570(1) applied.

378 Accordingly, subject to the notice of contention, the Injunction Costs Leave Application should be upheld and the associate judge's costs order set aside. However, it is desirable to explain this conclusion at somewhat greater length, given that: we are dealing with a different statutory provision to those relevant to the question of jurisdiction; the associate judge decided the point; and the parties addressed arguments based on authorities specific to s 570 of the FWA and its predecessors.

379 It should first be noted that there have in recent times been three relevant forms of the provision governing costs with respect to proceedings involving Commonwealth industrial relations law. Each has used different language to describe the requisite connection to engage the special costs regime:

(a) from March 1989 to July 2009, the expression used was 'in a matter arising under this Act' ('first formulation');[144]

(b) from July 2009 to January 2013, the phrase was 'in a court ... exercising jurisdiction under this Act' ('second formulation');[145] and

(c) since January 2013, the present formulation ('in relation to a matter arising under this Act') has been operative.[146]

First formulation: 'in a matter arising under this Act'

380 Section 347(1) of the Industrial Relations Act 1988 (Cth) commenced on 1 March 1989 and provided as follows:

A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.[147]

Second formulation: 'in a court ... exercising jurisdiction under this Act'

381 Section 570(1) of the FWA came into operation on 1 July 2009. As originally enacted, it provided as follows:

A party to proceedings (including an appeal) in a court (including a court of a State or Territory) exercising jurisdiction under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569.[148]

382 The explanatory memorandum to the Fair Work Bill 2008 (Cth) explained that the replacement of the phrase 'in a matter arising under this Act' with the phrase 'in a court ... exercising jurisdiction under this Act' was designed to give the new provision a narrower operation. It stated as follows:

[T]he 'matters arising' language has been interpreted broadly. A proceeding not brought under the [Workplace Relations Act 1996 (Cth)] could still arise under the [Workplace Relations Act]. The broad application of the costs provision has given rise to technical arguments that the provision does not apply in a range of proceedings not involving exercise of jurisdiction under the [Workplace Relations Act] and its predecessors ... Given the nature and complexity of 'matters arising' that are determined before State Supreme Courts, the Federal Court and the High Court, it is not appropriate that the limitation on costs orders apply to matters arising under the Bill which do not involve the exercise of jurisdiction under the Bill.[149]

Present formulation: 'in relation to a matter arising under this Act'

383 Less than four years later, s 570(1) of the FWA was amended in a way which significantly broadened its scope beyond that of the earlier provisions. The amendment deleted the phrase 'exercising jurisdiction under this Act' and substituted for it the phrase 'in relation to a matter arising under this Act.'[150]

384 As appears from [365] above, s 570(1) of the FWA now provides as follows:

A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.[151]

385 The explanatory memorandum to the amending Act confirmed that the intention was to widen the scope of s 570(1) of the FWA, stating as follows:

Item 1 amends section 570(1) of the [FWA] so that it operates in relation to matters arising under the [FWA], rather than in relation to courts exercising jurisdiction under the [FWA]. This amendment confirms that the [FWA] is generally a 'no costs' jurisdiction (including in appeal proceedings).[152]

386 Turning to the case law, it is convenient to start with cases addressing the first formulation, before coming to cases concerning the present provision. It is not necessary to examine decisions made under the second formulation.

387 Re Polites; Ex parte The Hoyts Corporation Pty Ltd [No 2][153] concerned the costs of a proceeding before the High Court in which a writ of mandamus was successfully sought against a member of a Full Bench of the Australian Industrial Relations Commission. The Court (Brennan, Gaudron and McHugh JJ) held that s 347(1) of the Industrial Relations Act was applicable. The Court considered that, notwithstanding that it was exercising its constitutional writ jurisdiction under s 75(v) of the Constitution, the proceeding before it was a proceeding in a matter arising under the Act. This was because: the duties of the member the subject of the writ were created by the Act; the appointment of the member to the Full Bench was done pursuant to the Act; the appointed member was subject to a duty under the Act to hear and determine the industrial dispute; and the writ was issued to enforce that duty, which 'owe[d] its existence to the Act'. The controversy between the parties, as to the enforcement of that duty, therefore constituted a matter arising under the Act.[154]

388 The High Court articulated a clear test for the application of former s 347(1) of the Industrial Relations Act in McJannet. The Court (Brennan CJ, McHugh and Gummow JJ) held that earlier Federal Court proceedings were outside that Court's jurisdiction under the Act and made an order prohibiting it taking further steps in the proceeding. The Court held as follows:

The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act.[155]

389 The Court held, in reliance on R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett,[156] that s 347(1) of the Industrial Relations Act applied to the earlier proceeding before the Federal Court even though that Court had lacked jurisdiction, because a right was being claimed under the Act. In contrast, s 347(1) was inapplicable to the proceeding in the High Court itself, because the controversy there was whether the Federal Court had jurisdiction, which was a matter arising under the Constitution. Polites was distinguished on the basis that, whereas the writ of mandamus positively required compliance with duties sourced in the Act, the writ of prohibition negatively enforced a constitutionally-based duty not to exceed jurisdiction.[157]

390 There has been no relevant High Court case in respect of the present formulation, but a series of Federal Court decisions usefully charts its scope.

391 First, Stanley v Service to Youth Council Inc [No 3][158] concerned costs in a proceeding in which the applicant, Ms Stanley, alleged four contraventions of the Sex Discrimination Act 1984 (Cth) and three contraventions of the FWA_._ All of the former claims were dismissed. One of the three FWA claims was upheld. The Court gave declaratory relief and ordered that a modest pecuniary penalty ($4,000) be paid by the respondent Council to Ms Stanley.[159] The Council sought orders that Ms Stanley pay some of its costs in respect of the dismissed Sex Discrimination Act claims. It contended that s 570(1) of the FWA did not limit the Court's costs power in respect of those claims because they were not brought under the FWA_._ White J rejected this argument, holding that s 570(1) was applicable to the proceeding, encompassing both sets of claims.

392 White J held that, by including the phrase 'in relation to', the present form of s 570(1) of the FWA charted a necessarily larger scope than its predecessors. If the added phrase 'in relation to' was to have any work to do, it had to cause the provision to apply to proceedings to which the first formulation would not.[160]

393 White J considered that the phrase 'in relation to' extends the reach of the provision to proceedings which have a sufficiently close connection or relationship with a 'matter arising' under the FWA_._ The statutory context would determine what was a sufficiently close relationship.[161] White J went on to state:

Ordinarily, the requisite degree of connection in the context of s 570 will be satisfied when an applicant seeks to enforce an entitlement for which the [FWA] provides.[162]

394 In making this observation, in our opinion, White J was not intending to lay down a test at odds with (and narrower than) that adopted by the High Court in respect of the first formulation. He was doing no more than making the obvious point that the usual way in which a proceeding can be said to be 'in relation to a matter arising under [the FWA]' is when a party seeks to enforce a right provided for by the FWA.

395 Ultimately, after reviewing authorities as to the meaning of a 'proceeding' (as encompassing each of the matters, claims or causes of action raised, as well as interlocutory processes), White J concluded that the s 570(1) costs limitation applied to the proceeding as a whole, including the Sex Discrimination Act claims.[163]

396 The second case is Melbourne Stadiums, in which five judges of the Federal Court (Tracey, Gilmour, Jagot and Beach JJ, White J relevantly agreeing) addressed a proceeding encompassing three causes of action: two under the FWA and a common law contractual claim. The applicant in that case had succeeded in the County Court in respect of each of the claims. The primary judge relevantly considered that s 570(1) of the FWA applied to the two claims under the FWA but not to the contractual claim.

397 The Full Federal Court allowed the substantive appeal, so that it was not strictly necessary to address the appeal against the costs orders. However, the Court held that the trial judge had been incorrect in treating the contractual claim as outside the scope of s 570(1) of the FWA.[164] It noted the difference in language consisting of the additional words 'in relation to',[165] and stated that a 'proceeding' may encompass multiple 'matters', being the claims, causes of action or underlying controversies raised.[166] The Court concluded:

There was a single proceeding which was commenced and prosecuted to judgment in the County Court. Mr Sautner made claims under the [FWA] and at common law. The claims under the [FWA] were 'matters' within the meaning of s 570(1) of the [FWA]. The proceeding was, as a result, a proceeding in relation to a matter arising under that Act. Section 570(1) operated to preclude the Court from ordering [Melbourne Stadiums Ltd] ('another party to the proceedings') to pay any costs incurred by Mr Sautner in prosecuting his claims unless he could satisfy the Court that one of the exceptions, provided for in s 570(2), applied.[167]

398 Thirdly, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [No 2][168] was a decision of the Full Federal Court (Dowsett, Tracey and Katzmann JJ). The union had unsuccessfully sought a writ of certiorari quashing an appeal decision of a Full Bench of the Fair Work Commission, and a writ of mandamus directing the Commission to hear and determine the appeal in accordance with law.[169] The union's application relied upon two main grounds: (a) that the Commission had failed to consider relevant context in construing an enterprise agreement ('context ground'); and (b) that the Commission had failed to comply with its obligation under s 577(d) of the FWA to promote harmonious and cooperative workplace relations ('obligation ground'). The Court concluded that the Commission's arbitration powers (which it was exercising in the appeal in question) were part of a private, contractual dispute resolution process not involving the exercise of public power. The writs sought could not be issued.

399 The company, ALS, then sought its costs in the application for judicial review, contending that s 570(1) of the FWA did not apply to the proceeding because the Commission's public law powers under the FWA were not engaged. It also contended that, even if s 570(1) were to apply to the obligation ground (which made reference to an obligation under the FWA), it still did not apply to the context ground.

400 The Court rejected these submissions. Consistently with earlier authorities, it confirmed that the word 'matter' in s 570(1) of the FWA refers to the claims, causes of action or underlying controversies raised in the proceeding.[170] A proceeding is therefore one 'in relation to a matter arising under [the FWA]' if at least one of its component claims or controversies arises under the FWA.[171] The Court confirmed that the phrase 'in relation to' is one of broad connection requiring a 'relevant relationship, having regard to the scope of the Act'.[172] The present formulation, by introducing the words 'in relation to' marked wider boundaries than the first formulation and disclosed an intention that the FWA generally be a 'no costs' jurisdiction.[173]

401 The Court concluded that there was a 'relevant and sufficient connection between the judicial review proceeding and matters arising under' the FWA.[174] The enterprise agreement, with s 604 of the FWA, was the source of the right to appeal to the Full Bench of the Fair Work Commission. The union's appeal to the Full Federal Court sought a writ of mandamus to direct the Commission to hear and determine, according to law, the appeal 'under [s] 604' of the FWA. The Full Federal Court's substantive decision made reference to various powers and functions conferred on the Commission by the FWA. The obligation ground alleged that the Commission had failed to comply with an obligation under the FWA. Collectively, these factors were sufficient to give the entire proceeding - including the context ground - the requisite connection with a matter arising under the FWA.[175]

402 The fourth and final case is Yallourn. Energy Australia sought declaratory relief as to the remuneration of casual employees under an enterprise agreement made in 2013 between the company and its employees, as well as five unions. A dispute had previously arisen as to the enterprise agreement's applicability to casual employees and been finally resolved between the parties (which included one of the unions) under the dispute resolution procedure prescribed by the agreement, namely, conciliation and arbitration in the Fair Work Commission. This culminated in a decision by the Commission in the union's favour.

403 The primary judge held that the Court lacked jurisdiction to entertain Energy Australia's application. Energy Australia was ordered to pay the unions' costs on the basis that s 570(1) of the FWA was inapplicable because, without a justiciable controversy, there was no 'matter' in the present proceeding. Therefore, the proceeding could not be one 'in relation to a matter arising under [the FWA]'.

404 The Full Court of the Federal Court dismissed the company's substantive appeal, but upheld its appeal against the costs order. The Court (Rares and Barker JJ, Flick J relevantly agreeing) held that the proceeding, although not raising a justiciable controversy, was nonetheless one in relation to a matter arising under the FWA: namely, the legal effect of the decision of the Commission given under the FWA, including as to which parties to the enterprise agreement remained bound by it.[176]

405 The Court considered that the proceeding was in the same category as the Federal Court proceeding in McJannet. Notwithstanding that the proceeding was ultimately outside jurisdiction, the claims raised were a matter arising under the FWA because a right under the FWA was claimed.[177] In that context, the Court reasoned that, because the present case would engage the narrower formulation in s 347(1) of the Industrial Relations Act, it plainly also engaged the wider formulation in s 570(1) of the FWA, concluding:

The critical fact is that Energy Australia claimed relief under the [FWA], not whether its claim was one that the Court had jurisdiction to determine. Indeed, the reason that this Court lacks jurisdiction is because s 739(4) [of the FWA] authorised the Commission to make a decision in the arbitration that resolved the controversy. Therefore, the proceeding in this Court was both 'in a proceeding arising under this Act' and 'in relation to' such a proceeding.[178]

(a) The present provision will be engaged in circumstances in which the first formulation would also have been engaged: Yallourn.

(b) The present provision will therefore be engaged if a right or duty sought to be enforced owes its existence to the FWA: Polites, McJannet.

(c) The test will be satisfied whether or not the proceeding in which the right or duty claimed is one which the Court has jurisdiction to determine: Yallourn, McJannet.

(d) The present provision, including the additional words 'in relation to', is also deliberately broader than the first formulation and so extends to a larger category of cases. What is required is a relevant relationship between the proceeding and a matter arising under the FWA, having regard to the scope of the FWA: ALS Industrial.

(e) A proceeding in which a matter directly arising under the FWA (seeking to enforce a right or duty owing its existence to the FWA) is a component, even only as one matter amongst others not arising under the FWA, will be sufficiently related. That a proceeding encompasses multiple matters, claims, or causes of action, only some of which arise under the FWA, will not take the proceeding as a whole, or any part of it, outside the scope of the provision: Stanley, Melbourne Stadiums, ALS Industrial.

407 It is convenient then to return to the associate judge's costs ruling in which, as noted, she referred to the principles in Melbourne Stadiums as well as the decision of McDonald J in Bannon.

408 In Bannon, McDonald J, as part of a costs decision after giving judgment on the merits, struck out portions of Mr Bannon's claim which sought relief under the FWA but had not been pressed at trial. The defendant trust had effectively conceded during the trial that the relevant portions were arguable, electing not to pursue a foreshadowed strike-out application. McDonald J inferred that both parties wished to keep s 570 of the FWA 'in the ring' as insurance against an adverse costs outcome.[179]

409 McDonald J struck out the FWA components of the claim as an abuse of process (on the basis they were devoid of merit). They were struck out with effect from the commencement of the proceeding. He then turned to the question of costs. By reference to Stanley, he concluded as follows:

Whether the current proceeding is 'in relation to' a matter arising under the FWA requires consideration of whether there is sufficient nexus between the proceeding and a matter arising under the FWA. In circumstances where the FWA claims pleaded at paras [36] to [38] are plainly unarguable, there is insufficient nexus between those claims and the FWA for the proceeding in the Supreme Court of Victoria to be in relation to a matter arising under the FWA. ...

...

I agree with White J that 'ordinarily' the requisite degree of connection in the context of s 570 would be satisfied where an applicant seeks to enforce an entitlement for which the FWA provides. However, the requisite degree of connection is not made out in the circumstances of the present case where the pleaded claims under the FWA were, from the outset, plainly untenable. This conclusion is reinforced by the fact that ultimately Mr Bannon did not seek to enforce an entitlement under the FWA.[180]

410 After the costs ruling in the present matter, this Court (Emerton and Osborn JJA and Kennedy AJA) held that McDonald J's order striking out the FWA claims was affected by the erroneous view that s 570 of the FWA did not apply to FWA claims which failed for want of jurisdiction or were otherwise untenable (referring to Yallourn and Melbourne Stadiums).[181]

411 As noted, the associate judge relied in part on the reasoning of McDonald J in Bannon. That reasoning cannot be sustained in the light of the later decision of this Court. It is, in any event, at odds with the authorities earlier referred to, which make it clear that the fact that a claim fails is not a ground for deciding that the claim does not arise under the FWA (or that the proceeding is not one in relation to that claim).[182]

412 The cases including ALS Australia, Polites, McJannet and Yallourn all show that it is not necessary to have a claim for relief under the FWA in order for there to be a matter arising under the FWA_._ The associate judge erred, in our view, in approaching the case on the basis that the applicant needed to plead a case based on s 50 of the FWA in order for s 570(1) to apply. With respect to the associate judge, we do not think that Melbourne Stadiums can be distinguished on the basis that it involved claims made under the FWA.[183]

413 The fact that, in one way the case was pleaded, the rights relied upon by the applicant owed their existence to the FWA (specifically, ss 54 and 185) sufficed to mean that the matter constituting the justiciable controversy arose under the FWA. The whole proceeding was one in relation to that matter even though it included claims based in common law or the PAA. The fact that the associate judge did not need to deal with any claim relying upon, or specifically brought under, the FWA does not alter that position.

414 It remains to address the notice of contention. The respondents contended that, even if s 570(1) of the FWA is applicable, the associate judge's indemnity costs order should be sustained on the basis that the applicant's late application to amend the 2nd FASOC was an abuse of process, and so engaged the special costs exception in s 570(2)(b).

415 The short answer to the contention is that, as held earlier in relation to ground 4 of the Injunction Leave Application, the application to file the Proposed 3rd FASOC was not an abuse of process.

416 In the Injunction Costs Leave Application, leave to appeal should be granted and the appeal allowed. The costs orders in paras 3 and 4 of the order made by the associate judge on 16 July 2019 will be set aside. The parties will be given an opportunity to make submissions on the orders that should be made for the costs of the proceeding (other than in respect of the Undertaking as to Damages, which costs are the subject of the Damages Leave Application).

Associate judge's decision on damages and costs

417 As we have already stated, the Damages Leave Application concerns orders the associate judge made for the enforcement of the applicant's Undertaking as to Damages in response to the SRO Undertaking. The undertakings were recorded in the associate judge's order of 2 March 2018 in the following terms:

1. Upon the [applicant] by his solicitor undertaking to the Court to abide by any order that the Court may make as to damages in the event the Court is hereafter of the view that the [State] suffered any [loss] by reason of giving the undertaking referred to herein that the [applicant] ought pay.
2. And upon the [State] by [its] counsel undertaking to the Court that the [State] will not, until the determination of this proceeding, or as otherwise agreed between the parties or by further order of the Court, finalise the proposed discipline outcomes set out in the letters of 25 October 2017 and 7 February 2018 to the [applicant].

418 After the publication of the injunction judgment and the injunction costs judgment - and the termination of the applicant's employment - the State sought to enforce the Undertaking as to Damages. It was submitted that the State incurred a loss of $199,681.46 by reason of the costs of the ongoing employment of the applicant during the SRO Undertaking Period, that is, from 2 March 2018 (the date of the Undertaking as to Damages) until 19 July 2019 (the date of termination of the applicant's employment). As we have already stated, that sum was said to comprise salary and accrued annual and long service leave paid to the applicant, as well as amounts of taxation remitted to the ATO and superannuation remitted to the applicant's superannuation fund, during the SRO Undertaking Period. There was no challenge to the judge's acceptance of this figure in the Damages Leave Application.

419 The respondents submitted that, had it not been for the SRO Undertaking, the applicant's employment would have been terminated in late February 2018. The associate judge accepted that the Commissioner would have terminated the applicant's employment within 48 hours of the 23 February 2018 deadline for the applicant to respond to Mr Di Federico's findings and the proposed discipline outcome,[184] but for the fact that the applicant's solicitors wrote indicating that an injunction would be sought.[185] The associate judge accepted that the State's loss flowed directly from the SRO Undertaking given approximately one week later.[186]

420 The associate judge was satisfied that, but for the SRO Undertaking, the applicant would not have received remuneration during the SRO Undertaking Period. His employment would instead have been terminated. She found that the loss in the form of remuneration paid in respect of the applicant was reasonably foreseeable.[187]

421 The associate judge then turned to other factors relevant to the assessment of compensation. She noted submissions by the applicant to the effect that the loss could have been avoided. He submitted that he had been ready, willing and able to work during the SRO Undertaking Period and that, by choosing to pay him for services not rendered, the State failed to mitigate its loss. He submitted that it was the preferred approach under Victorian public sector policy for an employee to remain in a workplace during an investigation. He contended that he could have been deployed into another role or elsewhere within the public sector. He argued that he could also have worked from home, and had been willing to do so. The applicant said that he could have performed SRO work which did not require him to access taxpayer information, or could have been provided with specific taxpayer information in order to perform his normal duties.

422 The applicant also submitted that, if the allegations against him had substance, his position should have been terminated much earlier. He argued that the State had also failed to mitigate its loss by expending a disproportionate and unreasonable amount of legal fees in the litigation.

423 The associate judge accepted that the applicant was ready, willing and able to work.[188] However, he had been suspended with pay under cl 21.7(a)(v) of the VPSEA. The associate judge found that this arrangement did not contemplate working from home; it was a 'suspension from duties'.[189]

424 The associate judge said that the question was whether or not the State had mitigated its loss for the SRO Undertaking Period. She accepted evidence given by Mr Joyce that allowing the applicant to return to the workplace in any capacity would have posed an unacceptable risk to the security of taxpayer information held by the SRO and to the integrity of the SRO as the public service body entrusted to protect that information.[190]

425 The associate judge also accepted that, given the investigators' findings, it was inappropriate to redeploy the applicant elsewhere within the Victorian Public Service. She held that it was reasonable and appropriate not to redeploy him in circumstances where the findings were accepted and the proposed discipline outcome in respect of the Customer Search Investigation was immediate termination of employment.[191]

426 The associate judge found that there was no evidence that the State did not have 'clean hands' in respect of the proceeding.[192]

427 The associate judge rejected a submission made by the applicant to the effect that there had been delay on the part of the State in seeking to enforce the Undertaking as to Damages.[193] She also rejected a number of other contentions advanced by the applicant to which it is not necessary to refer.

428 In the result, the applicant was ordered to pay damages to the State in the sum of $199,681.46.

429 The associate judge made orders as to costs, having found that the case was not one within the scope of s 570 of the FWA.[194] She ordered that the applicant pay the respondents' costs of and incidental to the applicant's notice to produce dated 10 October 2019, including costs of an application to set aside that notice, on an indemnity basis. She also ordered the applicant to pay the State's costs of its damages claim on the indemnity basis from 11:00 am on 24 August 2019 and on the standard basis for costs incurred prior to that time.

430 In respect of the notice to produce, the associate judge found that the applicant's conduct in serving it and persisting in agitating it was unmeritorious and inconsistent with the overarching purpose in s 7 of the CPA. The notice was served after the closing of the respondents' case at the hearing of the State's damages claim. The associate judge held that there was no forensic purpose for the notice.[195]

431 The broader order for indemnity costs was based on the fact that the applicant had not accepted an offer of compromise served by the respondents on 22 August 2019, by which they offered to compromise the State's damages claim by the applicant paying $150,000 together with costs on the standard basis. The offer was served under O 26 of the Rules. The associate judge found that the applicant had not displaced the prima facie rule in r 26.08 as to the costs consequences of his failure to accept the offer.[196] She found that the offer was a genuine compromise of almost 25 per cent of the damages ultimately awarded. The offer was in an amount slightly less than the gross salary amount of the applicant for the relevant period. At the time the offer was served, the respondents had already filed substantial materials including affidavits and their outline of argument. The associate judge held that the applicant was in a position to assess the likelihood of him successfully defending the State's damages claim, despite not yet knowing the evidence that the Commissioner would give. She held that it was evident on the correspondence that, by 23 February 2018, all parties proceeded on the basis that termination of employment was imminent.[197] The associate judge also addressed submissions made by the applicant regarding the reasonableness of the respondents' expenditure on legal costs. It is not necessary to address that matter, which is properly the subject of taxation.

432 The applicant relies on three grounds of appeal as part of the Damages Leave Application. Omitting particulars given by way of elaboration, they are:

1. The learned primary judge erred in failing to properly engage with the issue of mitigation.

1. The learned primary judge erred in failing to properly engage with the issue of 'clean hands'.

Ground 3 - matter arising under federal law

1. The learned primary judge erred in not concluding that the matter was a matter arising under the [FWA].

433 The respondents filed a notice of contention which relied upon the following ground:

Should the Court of Appeal determine that s 570 of the [FWA] did apply to the proceeding, the Court should nevertheless affirm [the associate judge's costs orders in relation to the Undertaking as to Damages] by reason of the Applicant having engaged in 'unreasonable act[s] ... that caused [the State] to incur' costs (s 570(2)(b)), namely, by the Applicant:

(a) seeking, and continuing to press for, the production of documents by a notice to produce served 10 October 2019; and

(b) not accepting the Respondents' offer of compromise dated 22 August 2019.

434 It is not necessary, in this already lengthy set of reasons, to articulate at any length the submissions of the respondents in respect of the Damages Leave Application. For the reasons shortly to be set out, grounds 1 and 2 are entirely without merit and leave to appeal will be refused in relation to them. Ground 3, however, will be upheld for the reasons given in respect of the Injunction Costs Leave Application. The respondents' notice of contention will be discussed in that context.

435 The applicant submitted that he was ready, willing and able to work for the period of the SRO Undertaking and that the failure of the respondents to put him to work amounted to a failure to mitigate the State's loss arising from that undertaking. Reliance was placed on Love v Thwaites.[198] It was submitted that the reasons given for excluding the applicant from the workplace were baseless.

436 The applicant contended that the associate judge did not answer the question whether or not the State had mitigated its losses for the SRO Undertaking Period, or apply any principle of law with respect to her reasoning at para 111 of the damages judgment.[199] It was said that the associate judge did not provide reasons as to why she accepted or even preferred the evidence cited at the same paragraph, especially in the light of what was said to be a significant body of contradictory evidence. This was said to amount to a failure to provide adequate reasons.

437 The applicant argued that he had been denied procedural fairness by being prevented from testing the merits of allegations made against him. By way of example, he had sought to examine the Commissioner about statements filed on behalf of taxpayers in the Fair Work Commission relating to the Customer Search Allegations.[200] According to the applicant, the merits of the investigations and findings made against him were relevant to the issues before the Court. He submitted that the respondents themselves had relied upon those investigations and findings in response to the applicant's mitigation submissions. It was said to therefore be an error of law for the associate judge to set aside the notice to produce dated 10 October 2019 seeking production of evidence which substantiated the allegations and findings made against the applicant, and a further error to have ruled as to what issues were relevant to the hearing of the State's damages claim in that regard, in advance of evidence being given.

438 The applicant contended that the respondents had conceded in the SRO's 14 January 2020 letter[201] that the applicant was not a threat to taxpayer information. That suggested concession was said to be directly inconsistent with evidence given by the Commissioner and by Mr Joyce.

439 The applicant further submitted that the associate judge should have concluded that the allegations and findings made against him lacked merit based on evidence that was before the Court.

441 As the associate judge pointed out,[202] the principles of mitigation of damage do not apply directly in this context. At best, they apply by analogy.[203] The High Court explained the proper approach to an undertaking as to damages in European Bank Ltd v Evans, in the following terms:

[T]he undertaking as to damages is given to the court, for enforcement by the court; it is not a contract between parties or some other cause of action upon which one party can sue the other. ...

The undertaking as to damages and its origins in equity practice of the nineteenth century, if not earlier, were explained by Aickin J in Air Express [Ltd v Ansett Transport Industries (Operations) Pty Ltd] and by Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ in Mansfield v Director of Public Prosecutions (WA). The authorities discussed in Mansfield included Russell v Farley, where Bradley J had explained the requirement of the undertaking as a response to the anxiety entertained by the court that otherwise its interlocutory order might lead to damage for which there could be no redress except by an order for costs.

In Air Express, Mason J said that there was little to be gained from an examination of the authorities dealing with causation of damage in contract, tort and other situations; the Court was better advised to look to the purpose which the undertaking as to damages is to serve and to identify the causal connection or standard of causal connection which is most appropriate to that purpose.

A party seeking an equitable remedy is required to 'do equity' and this is the origin of the requirement that the party giving an undertaking as to damages submit to such order for payment of compensation as the court may consider to be just. Given its origin and application to varied circumstances in particular cases, the process of assessment of compensation cannot be constrained by a rigid formulation.[204]

442 Once it is appreciated that the purpose of enforcing an undertaking as to damages is to compensate the party who has suffered loss by reason of the interlocutory order of the Court (or here, the giving of an undertaking in place of such an order), the question becomes, not whether the State ought to have mitigated its loss, but whether the respondents established that the State suffered loss as a result of giving the SRO Undertaking not to terminate the applicant's employment pending the determination of the proceeding.

443 The plain answer is that the loss was established. By virtue of the SRO Undertaking, the State had to continue paying the applicant entitlements he would not have received if not for the undertaking. He had been suspended from his position pending the outcome of the investigations. There was no obligation on the respondents to reverse that suspension during the pendency of the undertakings. To have done so would have fundamentally altered the status quo which it was the obvious purpose of the undertakings to preserve. Equally, to suppose that the respondents should have lifted the suspension or, failing doing so, should suffer a reduction in damages recoverable under the applicant's Undertaking as to Damages would deprive that undertaking of all content. The applicant's contention that he should have been given gainful work to do during the SRO Undertaking Period invited the Court, in effect, to negate his undertaking to pay damages. Whilst that might, strictly speaking, be open as a matter of discretion, we see no error in the associate judge's conclusion in this regard and we would in any event decline to

re-exercise the discretion in the manner for which the applicant contends.

444 We add that we reject the contention that the associate judge failed to provide adequate reasons. The applicant's submissions were fundamentally at odds with the whole purpose of the undertakings and their rejection did not call for elaborate reasoning. The same may be said for the applicant's ancillary arguments concerning procedural fairness and the merits of the respondents' position that it was not appropriate to lift the suspension of the applicant's employment. In that context, we consider that the associate judge was plainly correct not to permit the applicant to venture into that issue by means of the notice to produce. The question before her was one of causation of loss to the State as a result of not having terminated the applicant's employment, in circumstances where he was suspended from employment. This was not the occasion for revisiting the merits of that suspension.

445 The applicant submitted that the SRO was responsible for 'the worst episode of mass taxpayer privacy breaches in this State's history', that it had spent, as at 30 August 2019, $1.8 million in legal fees litigating the employment dispute against him and that, as a result of political pressure and despite legal advice of senior counsel, it had declined to recoup $50 million of taxpayer funds that had previously been paid in error. The applicant submitted that the associate judge failed to address this evidence and had irrationally found that there was no evidence before the Court establishing that the respondents did not have 'clean hands' in respect of the present proceeding.

446 Ground 2 may be dealt with shortly. The equitable doctrine of 'clean hands' applies by virtue of the respondents' obligation to 'do equity'.[205] However, the matters invoked by the applicant under this head have nothing to do with the conduct of the respondents toward him, except for the allegation that undue legal fees had been spent litigating the dispute. That issue, if it is to be pursued, is one for taxation of costs rather than assessment of damages. The associate judge was correct to find that there was no relevant evidence that the respondents lacked 'clean hands' in their dealings with the applicant.

448 It follows that the challenge to the associate judge's order that the applicant pay damages of $199,681.46 to the State fails.[206]

449 The applicant referred to and repeated his previous written case in respect of the Injunction Costs Leave Application.

450 We accept, for the reasons given in respect of the Injunction Costs Leave Application, that the State's damages claim formed part of a proceeding 'in relation to a matter arising under [the FWA]', such that s 570 of the FWA applies to the costs of the State's damages claim. Subject to the notice of contention, therefore, ground 3 is upheld.

451 The question under the notice of contention involves the application of s 570(2)(b) of the FWA and, in particular, whether costs were incurred by the respondents as a result of an 'unreasonable act' of the applicant. In this context, 'unreasonable' must be read in the context of the fact that s 570 is intended to promote access to justice by making the FWA, generally, a 'no costs' jurisdiction.[207] The fact that a party has conducted litigation inefficiently or adopted a misguided approach will be relevant, but not determinative.[208]

452 The notice of contention involves two issues. The first is the indemnity costs order made in connection with the notice to produce. We have referred to the notice to produce above. It was wholly misconceived, bordering on vexatious, for the applicant to seek to ventilate the merits of the respondents' decision to suspend him from employment, in the context of assessing the damages caused by virtue of the undertaking not to terminate his employment. In our view, to serve the notice, persist in seeking to sustain it and cause costs to be incurred in doing so amounted to an 'unreasonable act' within the meaning of s 570(2)(b) of the FWA. That is especially so when it is recalled that the notice was served two weeks after the closing of the respondents' case at the hearing of the State's damages claim, and six days before the hearing was due to finish.[209]

453 The power under s 570(2)(b) of the FWA being enlivened, the matter becomes an ordinary exercise of the costs discretion, bearing in mind of course that the question arises in a 'no costs' jurisdiction. We agree with the associate judge that the case warranted a costs order on the indemnity basis.

454 The second aspect of the notice of contention concerns the offer of compromise. The offer was made under O 26 of the Rules. Since the matter is in federal jurisdiction, that order applies, if at all, by virtue of s 79 of the Judiciary Act, which relevantly provides that the laws of a State, including as to procedure, bind courts exercising federal jurisdiction in that State, except as otherwise provided by the Constitution or the laws of the Commonwealth.

455 Here, s 570 of the FWA 'otherwise provides'. It provides for a 'no costs' presumption with limited exceptions whereas r 26.08 of the Rules attaches costs consequences to an unreasonable failure to accept an offer of compromise unless the court otherwise orders. Although the provisions both require an evaluation of the reasonableness of the conduct of the relevant party, they proceed on very different bases. So, r 26.08 requires the party to pay costs on the standard basis up to 11:00 am on the second business day after the offer was made, with indemnity costs after that time (unless the court otherwise orders), whereas s 570(2)(b) permits costs to be awarded where those costs have been incurred as a result of the unreasonable act (here, the failure to accept the offer). In that way, s 570(2)(b) operates prospectively, and subject to a requirement to establish causation. It 'otherwise provides' because r 26.08 applies to all costs, past and future, without imposing a causation test.

456 It follows that, to the extent that the notice of contention seeks to sustain the order that the applicant pay the respondents' costs incurred before 11:00 am on the second business day after the offer of compromise was served, it cannot succeed. Those costs, by definition, cannot have been caused to be incurred by the failure of the applicant to accept the offer.

457 We therefore turn to consider whether the order for indemnity costs to be paid in respect of costs incurred after that day can be upheld under s 570(2)(b) of the FWA.

458 The question is then whether the applicant's failure to accept the offer of compromise was an 'unreasonable act or omission' that caused the respondents to incur those subsequent costs. The word 'unreasonable' in this context imports a higher standard than it does in the usual context of considering offers of compromise, including under r 26.08 of the Rules. That is because the treatment of offers of compromise takes into account the desirability of such offers acting as effective incentives to settlement. In contrast, the question of reasonableness under s 570(2)(b) of the FWA arises in the context of an exception to a 'no costs' rule which is intended to encourage parties to pursue their claims under the FWA.[210] Again, s 570 'otherwise provides'. Accordingly, r 26.08 had no application in this case.

459 Be that as it may, in our opinion, it was not unreasonable, either according to the higher standard applicable under s 570(2)(b) of the FWA or as the term is used in r 26.08 of the Rules, for the applicant not to accept the offer.

460 More specifically, applying s 570(2)(b), it will be recalled that the offer was in the sum of $150,000 plus costs taxed on the standard basis. The offer therefore required the applicant to pay the respondents' costs incurred to date. But, for the reasons set out above, s 570 of the FWA did not require him to pay those costs. No prior unreasonable act or omission was suggested that could have altered that position. The offer was made at a time when the respondents had incurred substantial legal expense, including in preparing affidavits and their outline of submissions for the hearing of the State's damages claim. No figure was provided to the applicant to quantify the amount of those costs, which were plainly not negligible. Nor do we have any basis for doing so. In that context, we are not satisfied that it was unreasonable for the applicant not to have accepted an offer of $150,000 plus costs. He was not in a position to quantify that offer so as to compare it with the amount of $199,681.46 which, in the absence of some future unreasonable act or omission on his part, would be the total amount the State could recover if entirely successful in its damages claim. An educated guess might, rather, have suggested that the two figures would not have been far apart. But, in either case, the respondents have not discharged the onus of showing that s 570(2)(b) applied in this context.

461 The respondents' notice of contention therefore succeeds only insofar as it seeks to sustain the costs order made with respect to the notice to produce. Ground 3 is otherwise upheld. Paragraph 2 of the associate judge's order made on 21 April 2020 (which deals with the notice to produce) should not be disturbed but para 3 (which deals with the offer of compromise) should be set aside.

462 For the above reasons, we have reached the conclusions set out at [16] above.

[1] The initial defendants to the proceeding were the State and Darren Joyce, Executive Director, Corporate Services of the SRO. Mr Joyce was removed as a party on 13 April 2018. In July 2018, the Commissioner was added as a new second defendant.

[2] At the time the undertakings were given, Mr Joyce was the second defendant in the proceeding. He gave the SRO Undertaking alongside the State and was also a beneficiary of the Undertaking as to Damages. As nothing turns on Mr Joyce having been a party to the undertakings, for convenience, we will refer only to the applicant and the State as parties to the undertakings.

[3] Tucker v Victoria [2019] VSC 420.

[4] Tucker v Victoria [Costs Ruling] [2019] VSC 481.

[5] Tucker v Victoria [Undertaking as to Damages] [2020] VSC 121.

[6] Tucker v Victoria [Costs Ruling No 2] [2020] VSC 192.

[7] All references in these reasons to grounds of appeal are to proposed grounds of appeal.

[8] The ground is set out at [370] below.

[9] The grounds are set out in full at [236] below.

[10] The grounds are set out in full at [432] below.

[11] 'VPS' means Victorian Public Service.

[12] Clause 21.3 is set out at [23] above.

[13] See [38] above.

[14] See [42] above.

[15] See [45] above.

[16] See [47] above.

[17] Clause 21.3 is set out at [23] above.

[18] Those responses are set out at [65] above.

[20] Tucker v Victoria [2018] VSC 389 ('McDonald J's judgment').

[21] McDonald J's judgment [16]-[17].

[24] Injunction judgment [313]-[326].

[25] Injunction judgment [74], [94].

[26] Injunction judgment [144]-[174], [231]-[248], [261]-[271].

[28] Injunction judgment [160]-[166], [231]-[244], [261]-[271].

[31] See [73]-[77] above.

[33] Tucker v Victoria [Notice to Produce] [2019] VSC 689.

[35] Damages costs judgment [32], [37].

[36] Damages costs judgment [55]-[56].

[37] See [14] above.

[38] See [37] above.

[39] Supreme Court Act 1986 s 30 ('SC Act').

[40] (1992) 34 FCR 287; [1992] FCA 72 ('Sterling Pharmaceuticals').

[41] Sterling Pharmaceuticals [1992] FCA 72; (1992) 34 FCR 287, 291; [1992] FCA 72, approved in Lawrence & Hanson Group Pty Ltd v Young [2016] VSCA 69, [22] ('Lawrence & Hanson').

[42] [2009] FCA 868; (2009) 258 ALR 538, 543 [23]; [2009] FCA 868, approved in Lawrence & Hanson [2016] VSCA 69, [23].

[43] See [37] above.

[44] See [119] above.

[46] [2007] VSCA 292, [25] (citations omitted).

[47] See [221] below.

[48] Clause 2(g)(i) of the Model Litigant Guidelines requires the State, its departments and agencies to keep the costs of litigation to a minimum by 'not requiring the other party to prove a matter which the State or the agency knows to be true'. Clause 2(l) requires the State or the agency to 'consider apologising where the State or the agency is aware that it or its representatives have acted wrongfully or improperly'.

[49] See [138(d)] above.

[50] The applicant relied upon Horrocks v Lowe [1975] AC 135.

[51] Item (k) is discussed at [170] below. See also [192] below.

[52] See [75]-[76] above.

[53] See [142] above.

[54] The SRO's 14 January 2020 letter is not entirely accurate. The Customer Search Report indicates that Mr Di Federico did contact some affected taxpayers in the course of his investigation.

[55] The Age Co Ltd v Elliott [2006] VSCA 168; (2006) 14 VR 375, 378 [14]-[16]; [2006] VSCA 168 ('The Age'); Stone v Moore (2016) 125 SASR 81, 89-90 [55]-[58]; [2016] SASCFC 50 ('Stone').

[56] Stone (2016) 125 SASR 81, 90 [57]-[58]; [2016] SASCFC 50.

[57] See The Age [2006] VSCA 168; (2006) 14 VR 375, 378 [14]-[16]; [2006] VSCA 168.

[58] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 86, 98; [1990] HCA 31.

[59] See [103] above.

[60] [2019] VSCA 206, [20] (citations omitted), approved in Collis v Bank of Queensland Ltd [2021] VSCA 17, [126].

[61] See [138(d)] above.

[62] As to prejudice, see [364] below.

[63] Injunction judgment [55]-[64]. See [17]-[19] above.

[64] Injunction judgment [73]-[74].

[68] Injunction judgment [71]-[72].

[69] Injunction judgment [118], [126].

[70] Injunction judgment [94], [105]. See [31]-[35] above.

[74] Injunction judgment [144]-[174], [231]-[248], [261]-[271].

[75] Injunction judgment [155], [158].

[76] Injunction judgment [157]-[158].

[78] Injunction judgment [161]-[168].

[79] See [51] above.

[81] Injunction judgment [171]-[174].

[87] Injunction judgment [244]-[246].

[92] Injunction judgment [317]-[323].

[93] Injunction judgment [313], [326].

[95] Injunction judgment [315]. See [87] above.

[96] Injunction judgment [316]-[323].

[97] Injunction judgment [324]-[325]. Section 7 of the CPA is discussed at [132] above. Section 25 imposes an obligation on parties to a civil proceeding to use reasonable endeavours to act promptly and minimise delay.

[98] The applicant relied upon cl 21.6(a) of the VPSEA. See [25] above.

[99] The applicant relied upon cl 21.8 of the VPSEA. See [27] above.

[100] The applicant relied upon cl 21.11(a) of the VPSEA. See [29] above.

[101] The grounds are worded slightly differently in the applicant's written case.

[102] See [17]-[19] above.

[103] The quotation is from the respondents' written case.

[104] See Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union [2019] FCAFC 84; (2019) 270 FCR 359, 368 [21]; [2019] FCAFC 84.

[105] The succession of an enterprise agreement upon a workplace determination is confirmed by s 278 of the FWA.

[106] Under the VPSEA, an employee's employment can be terminated under cl 16 or as the outcome of a disciplinary process under cl 21. In the present case, the applicant's employment was terminated under cl 21.12(b)(viii), which is set out at [30] above.

[107] [2010] FCA 799; (2010) 199 IR 40, 52 [55]; [2010] FCA 799 ('Quinn').

[108] [2010] FCA 799; (2010) 199 IR 40, 52 [57]; [2010] FCA 799.

[110] Quinn [2010] FCA 799; (2010) 199 IR 40, 53 [60]; [2010] FCA 799.

[111] The applicant relied upon Tucker v Victoria [2020] FWC 3159, [103], [108], [116]-[118]; Tucker v Victoria [2020] FWCFB 4971, [49].

[112] The applicant relied upon cl 2(b) of the Model Litigant Guidelines, which requires the State, its departments and agencies to 'act consistently in the handling of claims and litigation'.

[113] [1938] HCA 34; (1938) 60 CLR 336, 362; [1938] HCA 34 ('Briginshaw').

[114] See [65] above.

[115] See [75]-[76] above.

[116] Bolding and underlining in original. Comments in bold italics in square brackets added.

[117] We note that the associate judge found that '[i]t was ultimately the decision of the employer ... as to whether to accept the investigator's findings': injunction judgment [172].

[118] Clause 21.10 is set out at [28] above. Clause 21.12 is set out at [30] above.

[119] See [73] above.

[120] Police Force of Western Australia v Ayton [1999] WASCA 233, [43]; Privacy Commissioner v Telstra Corporation Ltd [2017] FCAFC 4; (2017) 249 FCR 24, 36 [63]-[64]; [2017] FCAFC 4; Turnbull v Strange (2018) 98 NSWLR 248, 250 [5]; [2018] NSWCA 157. Even if such information constituted 'personal information', it is arguable that disclosure of the evidence to a person who is the subject of the investigation in order to comply with the procedural fairness requirements of the VPSEA would not infringe the privacy principles in the Privacy Act. That is because it is arguable that the disclosure would be 'required or authorised by or under law': Privacy Act sch 1 cl 2.1(f). However, it is not necessary for us to decide this issue.

[121] See, eg, Shields v Overland [2009] VSC 550; (2009) 26 VR 303, 332 [109]; [2009] VSC 550.

[122] Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478, 490-1 [26]; [2017] HCA 5.

[123] (1983) 151 CLR 575; [1983] HCA 31 ('LNC Industries').

[124] [1945] HCA 50; (1945) 70 CLR 141, 154; [1945] HCA 50.

[125] LNC Industries [1983] HCA 31; (1983) 151 CLR 575, 581; [1983] HCA 31 (citations omitted).

[126] [1980] HCA 32; (1980) 145 CLR 457, 476; [1980] HCA 32 ('Moorgate').

[127] Moorgate [1980] HCA 32; (1980) 145 CLR 457, 476; [1980] HCA 32.

[128] See [214(e)] above.

[129] [1978] HCA 27; (1978) 140 CLR 584, 587-9; [1978] HCA 27 ('Ward').

[130] [1935] HCA 12; (1935) 53 CLR 185, 190-1; [1935] HCA 12.

[131] [1974] HCA 23; (1974) 131 CLR 203, 257; [1974] HCA 23.

[132] Ward [1978] HCA 27; (1978) 140 CLR 584, 589; [1978] HCA 27. See also Brackenridge v New Zealand [2000] 1 Qd R 1, 2-3 [5]-[6]; [1998] QCA 301.

[133] Cf Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 425; [1995] HCA 24.

[134] See Constitution Act 1975 s 85; SC Act s 36; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581-2, 596-7; [1992] HCA 10; Sarkis v Deputy Commissioner of Taxation (2005) 59 ATR 33, 42 [20]; [2005] VSCA 67; CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339, 346-7 [13], 359 [51]; [2016] HCA 2.

[135] See [303], [305] above.

[136] [2015] FCAFC 20; (2015) 229 FCR 221, 253-4 [151]-[157]; [2015] FCAFC 20 ('Melbourne Stadiums').

[137] (2018) 339 FLR 225, 233-4 [30]-[32]; [2018] VSC 643 ('Bannon').

[138] Injunction costs judgment [20].

[139] Injunction costs judgment [21].

[140] Injunction costs judgment [22].

[141] The applicant relied upon ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325; (2002) 127 FCR 1, 18 [33]; [2002] FCAFC 325.

[142] The applicant relied upon Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] [1997] HCA 40; (1997) 189 CLR 654, 657; [1997] HCA 40 ('McJannet'); Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342; [2018] FCAFC 146 ('Yallourn') and Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1, 15-16 [55]; [1999] FCA 1584 ('Hooper').

[143] The applicant relied upon Trustee for The MTGI Trust v Johnston [No 2] [2016] FCAFC 190, [8] ('MTGI Trust').

[144] Industrial Relations Act 1988 (Cth) s 347(1); Workplace Relations Act 1996 (Cth) s 347(1) and later s 824(1).

[145] FWA s 570(1).

[146] FWA s 570(1). An earlier formulation, found in the Conciliation and Arbitration Act 1904 (Cth) s 197A from 1973 to 1989, is not necessary to mention.

[147] Emphasis added. The Industrial Relations Act was later retitled the Workplace Relations Act. Section 347, which by then had been amended in minor respects which are not relevant, was retained in the retitled Act. It was renumbered as s 824 of the Workplace Relations Act by the Workplace Relations Amendments (Work Choices) Act 2005 (Cth).

[149] Explanatory Memorandum, Fair Work Bill 2008 (Cth) 339 [2229].

[150] Section 570(1) was amended by sch 10 pt 1 of the Fair Work Amendment Act 2012 (Cth). The amendment came into operation on 1 January 2013.

[152] Explanatory Memorandum, Fair Work Amendment Bill 2012 (Cth) 56 [306].

[153] (1991) 173 CLR 78, 93; [1991] HCA 31 ('Polites').

[154] Polites (1991) 173 CLR 78, 93; [1991] HCA 31.

[155] McJannet [1997] HCA 40; (1997) 189 CLR 654, 656; [1997] HCA 40.

[156] [1945] HCA 50; (1945) 70 CLR 141, 154; [1945] HCA 50.

[157] McJannet [1997] HCA 40; (1997) 189 CLR 654, 657; [1997] HCA 40. See also Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645, 660 [42]-[44]; [2001] HCA 16.

[158] (2014) 225 FCR 357; [2014] FCA 716 ('Stanley').

[159] Stanley v Service to Youth Council Inc (2014) 225 FCR 317; [2014] FCA 643.

[160] Stanley [2014] FCA 716; (2014) 225 FCR 357, 362-3 [23]-[25]; [2014] FCA 716.

[161] Stanley [2014] FCA 716; (2014) 225 FCR 357, 363 [26]; [2014] FCA 716.

[162] Stanley [2014] FCA 716; (2014) 225 FCR 357, 363 [27]; [2014] FCA 716.

[163] Stanley [2014] FCA 716; (2014) 225 FCR 357, 364 [34]-[36]; [2014] FCA 716.

[164] Melbourne Stadiums [2015] FCAFC 20; (2015) 229 FCR 221, 253 [150]-[151]; [2015] FCA 20.

[165] Melbourne Stadiums [2015] FCAFC 20; (2015) 229 FCR 221, 253 [155]; [2015] FCA 20.

[166] Melbourne Stadiums [2015] FCAFC 20; (2015) 229 FCR 221, 253-4 [156]; [2015] FCA 20.

[167] Melbourne Stadiums [2015] FCAFC 20; (2015) 229 FCR 221, 254 [157]; [2015] FCA 20.

[168] (2015) 235 FCR 366; [2015] FCAFC 166 ('ALS Industrial').

[169] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; [2015] FCAFC 123.

[170] ALS Industrial [2015] FCAFC 166; (2015) 235 FCR 366, 368 [10]; [2015] FCAFC 166.

[171] ALS Industrial [2015] FCAFC 166; (2015) 235 FCR 366, 369 [16]; [2015] FCAFC 166, citing Melbourne Stadiums [2015] FCAFC 20; (2015) 229 FCR 221, 252-4 [147]-[158]; [2015] FCA 20.

[172] ALS Industrial [2015] FCAFC 166; (2015) 235 FCR 366, 368 [11]; [2015] FCAFC 166, quoting O'Grady v The Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 367; [1990] HCA 16.

[173] ALS Industrial [2015] FCAFC 166; (2015) 235 FCR 366, 368 [12]; [2015] FCAFC 166, citing Stanley [2014] FCA 716; (2014) 225 FCR 357, 363 [25]; [2014] FCA 716.

[174] ALS Industrial [2015] FCAFC 166; (2015) 235 FCR 366, 369 [15]; [2015] FCAFC 166.

[175] ALS Industrial [2015] FCAFC 166; (2015) 235 FCR 366, 368-9 [13]-[15]; [2015] FCAFC 166.

[176] Yallourn (2018) 264 FCR 342, 365 [98]; [2018] FCAFC 146.

[177] Yallourn (2018) 264 FCR 342, 366 [101]-[102]; [2018] FCAFC 146.

[178] Yallourn (2018) 264 FCR 342, 366 [103]; [2018] FCAFC 146 (citations omitted).

[179] Bannon (2018) 339 FLR 225, 232 [26]; [2018] VSC 643.

[180] Bannon (2018) 339 FLR 225, 233 [30], 234 [32]; [2018] VSC 643 (emphasis added) (citations omitted).

[181] Bannon v Nauru Phosphate Royalties Trust [2019] VSCA 303, [280]-[283].

[182] See Victorian Xray Group Pty Ltd v Ho (2020) 293 IR 231, 238 [30]; [2020] FCA 27.

[183] Injunction costs judgment [23].

[184] See [78] above.

[194] Damages costs judgment [9], [44].

[198] [2014] VSCA 56, [46], [47] ('Love'); see also Sanofi-Aventis Deutschland GmbH v Alphapharm Pty Ltd [2019] FCAFC 28, [44].

[199] See [424]-[425] above.

[200] See [138(h)] above.

[201] See [138(d)] above.

[203] Love [2014] VSCA 56, [44], [47].

[204] [2010] HCA 6; (2010) 240 CLR 432, 438-9 [14]-[17]; [2010] HCA 6 (citations omitted) ('European Bank').

[205] European Bank [2010] HCA 6; (2010) 240 CLR 432, 439 [17]; [2010] HCA 6, quoted at [441] above.

[206] Paragraph 1 of the associate judge's order dated 21 April 2020.

[207] MTGI Trust [2016] FCAFC 190, [8].

[208] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, 582 [29]; [2008] FCAFC 143.

[210] Melbourne Stadiums [2015] FCAFC 20; (2015) 229 FCR 221, 255 [168]; [2015] FCAFC 20, citing Stratton Finance Pty Ltd v Webb [2014] FCAFC 110; (2014) 314 ALR 166, 180 [80]; [2014] FCAFC 110; Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306, 342-3 [164]-[165], and the cases there cited; see also 325 [74], 344 [171]-[175]; [2017] FCAFC 222.