case_text: The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a 'no case' submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the 'no case' submission turns solely on a question of law or jurisdiction ( Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud ( ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff's claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of 'no case' to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J.


case_outcome: cited

case_text: Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that 'no case' to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6). 91 Mr Hatcher, having made the election, made extensive submissions in support of the application. Counsel for the applicant responded and Mr Hatcher made submissions in reply. In dealing with the disposition of the matter, I propose to review all of the evidence and the issues with a view to making final dispositive determinations on all matters. In James v ANZ Bank (supra), Toohey J made these observations at pg 400: 'If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.' And in Prentice v Cummins (supra), Sackville J made these observations at [110]: 'In Rasomen Pty Ltd v Shell Co. of Australia Ltd (1997) 75 FCR 216, the Full Court held (at 228) that in addressing a no case submission the function of a judge sitting alone is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the usual way and who has to give final judgment. In particular, where the moving party (in this case the respondents) contends that the evidence does not give rise to the inferences of fact alleged by the opponent (in this case the Trustees), it is appropriate for the trial judge to decide what inferences he or she would draw from the evidence and to act on those conclusions, if necessary to determine finally the issues in the case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 360.' 92 Accordingly, I propose to address the totality of the evidence, examine the inferences that are open on the evidence, determine whether any inferences can be drawn from the failure by Mr Ramsey to give evidence, assess the submissions put to me concerning the evidence of Mr Davis and Mr Broadway and make dispositive findings. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the 'no case' submission rests on the grounds I have identified, '... it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298, by reason of the failure to call evidence' : Prentice v Cummins (supra) per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel . 370 The applicant contends that the evidence establishes contraventions of s 298K both independently of and having regard to s 298V. As to the state of the evidence generally, I am satisfied the evidence supports the inferences I have drawn. The evidence giving rise to those inferences and the ultimate facts in issue have not been the subject of any evidence from the respondents and in particular, from Mr Ramsey. It seems to me, consistent with the approach adopted by Sackville J in Prentice v Cummins (supra) that as a matter of principle, an election by the respondents in the circumstances of the foundation for the 'no case' submission provides a proper basis for drawing inferences consistent with the principles identified in Jones v Dunkel (supra), adverse to the respondents.


case_text: Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that 'no case' to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6). 305 See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act.


case_text: Because the starting point of an examination of the conduct of the respondents involves conduct concerning the termination of the entire cohort of employees at the South Grafton Abattoir at the material time, the respondents contend the termination conduct does not involve conduct directed to any one employee or a class of employees. Therefore, there is no conduct by an employer which can be characterised as discrimination or victimization of that employee. In other words, there is no conduct by a respondent employer qua an employee which attracts the operation of s 298K of the Act. That is said to be the end of the matter. 92 Accordingly, I propose to address the totality of the evidence, examine the inferences that are open on the evidence, determine whether any inferences can be drawn from the failure by Mr Ramsey to give evidence, assess the submissions put to me concerning the evidence of Mr Davis and Mr Broadway and make dispositive findings. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the 'no case' submission rests on the grounds I have identified, '... it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298, by reason of the failure to call evidence' : Prentice v Cummins (supra) per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel . 305 See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act. 370 The applicant contends that the evidence establishes contraventions of s 298K both independently of and having regard to s 298V. As to the state of the evidence generally, I am satisfied the evidence supports the inferences I have drawn. The evidence giving rise to those inferences and the ultimate facts in issue have not been the subject of any evidence from the respondents and in particular, from Mr Ramsey. It seems to me, consistent with the approach adopted by Sackville J in Prentice v Cummins (supra) that as a matter of principle, an election by the respondents in the circumstances of the foundation for the 'no case' submission provides a proper basis for drawing inferences consistent with the principles identified in Jones v Dunkel (supra), adverse to the respondents. 375 However, even if the view put by the respondents is accepted that such an evidential burden does not arise until the applicant establishes an hypothecated case of a prohibited reason, the evidence in this case establishes at least a basis for an hypothesis that the conduct was carried out for the prohibited reasons alleged. No recourse to inferences in accordance with the principles in Jones v Dunkel (supra) is necessary to make out a basis for such an hypothesis. The tests, for example, articulated by their Honours Barwick CJ and Mason J [340] [343] in the context of the formulation of the particular provisions in question in that case, reflect a slight threshold of evidence. 376 Accordingly, each of the respondents has failed to demonstrate the alleged prohibited reasons were not an operative reason for the dismissal conduct. The First, Second and Fourth Respondents have failed to demonstrate that the alleged prohibited reasons were not an operation reason for a refusal to employ any one of the 11 individuals in these proceedings (that is, all claimants apart from Susan Young). 377 I am satisfied that the evidence demonstrates there is no relevant differentiation between the respondents in terms of the dealings between employees and the broad operation of the South Grafton Abattoir. No doubt, particular entities associated with or related to Mr Ramsey or entities controlled by Mr Ramsey employ particular individuals and equally, there is very likely to be particular administrative or domestic arrangements between those companies in the provision or performance of services and tasks in connection with the operation of the abattoir. However, whatever the content of those internal arrangements might be, an abattoir requires individuals to perform work in order to function. Those individuals might be employed by any one of a number of companies and be supplied or deployed under contractual arrangements with other entities either related to or, in a practical sense, connected with the operator of the abattoir. For all practical purposes, the question is whether the abattoir as a functional operation, required a cohort of individuals in order to perform the various task specific functions and whether steps were put in place during the period of re-engagement to offer employment to individuals, irrespective of the particular recruiting vehicle or entity used for that purpose. The evidence does not establish whether the Third Respondent was seeking to employ any person in the relevant period. Accordingly, the conduct of refusing to employ is confined to conduct on the part of the First, Second and Fourth Respondents.


case_text: On 10 May 2002, Madgwick J made a declaration that the Third Respondent had breached the order of Commissioner Redmond dated 29 March 2000 by failing to reappoint Mr Blackadder to the position he held immediately before the termination of his services on 5 October 1999. Madgwick J imposed particular penalties upon the Third Respondent and made other orders for the payment of certain monies. Madgwick J concluded that a reinstatement order in exercise of the power conferred by the Act impliedly involved a return of the employee to the workplace. In the light of this finding, Madgwick J felt it unnecessary to decide whether the AWA contained an implied contractual obligation requiring the Third Respondent to provide the applicant with actual work. See Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603. 228 The Full Court, allowed an appeal in part by the Third Respondent although Tamberlin and Goldberg JJ took a different view of the reinstatement power under the Act to that of Moore J. 229 The question of the order to be made by Madgwick J by way of injunctive relief was unable to be resolved between the parties and accordingly, Madgwick J on 21 May 2002 made further orders and published a supplementary judgment. The order of 21 May 2002 directed the Third Respondent to reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely, a boner performing chilled boning work in that part of the respondent's premises known as the big boning room. 233 Ultimately, on 27 April 2005, the High Court set aside the orders of the Full Court of the Federal Court and allowed in part an appeal by Mr Blackadder. The High Court concluded that the scope of the power conferred by s 170CH(3) of the Act was broader than simply a reinstatement of the contract of employment and extended to a restoration of the employment situation as it existed immediately before the termination. 'So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination' : Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 per McHugh J at [14]. 234 On 3 September 2002, Mr Blackadder received a letter dated 2 September 2002 in these terms: 'Dear Stephen, In accordance with our notice given on 21 August 2002, we now advise that there shall not be sufficient stock to kill on Monday 2 nd September 2002. You shall not be required to work Monday 2 nd September 2002. The lack of cattle suitable for our customers, caused by seasonal factors including the current drought and subsequent drop in cattle numbers, has caused this closure. The AMIEU has been appropriately advised. In accordance with your AWA, you are entitled to request payment of your entitlements, if you do make that request all your entitlements will be paid. If you wish to make this request please send your written application to our office. Yours faithfully S B Ramsey' 235 On 5 September 2002, Mr Blackadder responded in these terms: 'Ramsey Food Packaging Pty Limited Dear Sir, I refer to the notice of 2 nd of September 2002, which I received on the 3 rd of September 2002 advising that I would not be required for work Monday 2 nd September 2002. I did not receive any notice on the 21 st August 2002 and ask that you confirm when it is anticipated that there will be sufficient stock to resume work. I remain ready, willing and able to resume at that time and in the interim period request payment of my rostered days off. Yours faithfully S B Blackadder' 366 The respondents criticise the decision in AMIEU and Belandra on the basis that the evidentiary problem discussed by his Honour does not arise in the context of a lack of a vacancy because the applicant can readily show, by evidence, if there is a vacancy. The evidence would demonstrate that someone else was employed or there was an advertisement placed in a newspaper or other forum for a vacancy. Mr Hatcher puts it this way: 'It's not as if one needs to get inside the mind of the person making the decision to know what personally moved him, as it is when one alleges a prescribed reason' . The contention is that the applicant must adduce evidence of an actual, not theoretical, vacancy and demonstrate a refusal to employ that individual for that vacancy. Once that level of precision is made out, s 298V operates. In the absence of that evidence, s 298V has no role to play.


case_text: It seems to me that in these circumstances, although Mr Broadway gave evidence with total honesty and with a view to expressing opinions he had formed about the matters the subject of his analysis with a view to assisting the Court, it would be inappropriate to rely upon the opinions formed by Mr Broadway. In making that observation, I make no criticism of the individual who I believe genuinely sought to assist the Court. In making these observations, I am conscious of the comments of Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 at [676] , the remarks of Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at [39] to [43] and the observations of the Australia Competition Tribunal per Goldberg J (President) Mr Latta and Professor Round in Qantas Airways Limited [2004] ACompT 9 at [212] to [227]. The observations of the Australian Competition Tribunal on the use of expert evidence and particularly the role of the expert ought usefully be provided to any expert seeking to give evidence in Court proceedings. However, it seems to me that the underlying data drawn from the Australian Bureau of Statistics ("ABS" or "the Bureau") and material arising out of a 2001 study of the Australian beef industry by the Australian Bureau of Agricultural and Resource Economics ("ABARE") remains admissible and useful.


case_title: Qantas Airways Limited [2004] ACompT 9


case_title: Bradshaw v McEwans Pty Ltd 217 ALR 1

case_text: The statistical data does not exclude the possibility that the circumstances confronting the abattoir in August 2002 presented a stock shortage. However, the applicant has no obligation to exclude such a possibility. To the extent the statutory presumption applies, it is not rebutted by the respondents by reliance upon the evidence of Mr Davis, Mr Delaforce or Mr Broadway. Moreover, the circumstances appearing in the evidence as I have described give rise to reasonable inferences concerning a reason for termination and subsequent refusal to employ which are not merely conflicting inferences of equal degree of probability. In drawing such inferences, their Honours Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd 217 ALR 1 at pg 6 observed: 'All that is necessary (in drawing a particular inference) is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.' The general principle was put by their Honours at page 5 in these terms: 'Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.'


case_text: See also, Luxton v Vines [1952] HCA 19 ; (1952) 85 CLR 352 per Dixon, Fullagar and Kitto JJ at pg 358; Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at pgs 304 305 per Dixon CJ; pg 310 per Menzies J; and pgs 318 319 per Windeyer J; Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155 per Stephen J at pgs 161 162 and per Mason J at pg 168; The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6, 7 March 2006 per Gleeson CJ and Gummow, Hayne, Hayden and Crennan JJ at [33]. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act.


case_title: Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15 ; (1982) 149 CLR 155


case_text: It is true that wage slips for a number of the employees demonstrate that an entity other than the original employer was making wage payments. However, there is no evidence that any of the employees consented to an assignment or transfer of their employment. No new AWA was submitted to any of the employees which might have actively drawn to the attention of each individual the proposal to transfer their employment to a new entity and in the face of which an actual or implied consent might have arisen. The payment of wages by one Ramsey company might simply have reflected an administrative arrangement within the Ramsey group of companies for the discharge of that obligation. I can find no evidence which satisfies me that an assignment of the AWA occurred. In Noakes v Doncaster Amalgamated Collieries Ld (1940) A.C. 1014 at 1018 Viscount Simon L.C., observed: "Counsel for the appellant argued that a contractual right to personal service was a personal right of the employer and was incapable of being transferred by him to anyone else and that a duty to serve a specific master could not be part of the property or rights of that master capable of becoming, by transfer, a duty to serve someone else. It is, of course, indisputable that (apart from a statutory provision to the contrary) the benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A's consent, which is the same thing as saying that, in order to produce the desired result, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y. The rule is so strict that if the contract is between individuals on both sides and X dies, the contract of service is immediately dissolved Farrow v Wilson (citation omitted) ."


case_text: In the present case there is no express assignment from the third respondent or the first respondent to the transferee entities. The evidence of the pay slips do not sustain an inference that the presumptive assignment was ever accepted by any of the employees. In Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd & Ors [1998] FCA 1465 , Ryan J at pg 9 expressed doubt whether the nomination of a new employer on pay slips, the issuing of group certificates and the payment of superannuation contributions could give rise to an inference that a presumptive assignment was ever accepted by the individual employees. Further, there is no evidence which demonstrates that the precise inter-relationship between the respondent entities or any other entity within the Ramsey group of companies relevantly associated with the abattoir operations, was ever brought to the active understanding of the employees. The much more likely inference is that any employee who became conscious of the title of a particular entity assumed that entity discharged an administrative organisational role on behalf of the relevant employer. There is no basis on the evidence for elevating those matters to the position of an actual or implied consent to an assignment. In addition, as between the abattoir operation and employees, the evidence does not suggest any conscious differentiation between particular entities. Exhibit 148 identifies the various methods adopted by the respondents for the description of the respondents. Examples are these. Deponent/Exhibit No. Description Delaforce 4 "NOTICE TO EMPLOYEES OF RAMSEY GROUP OF COMPANIES" RE proposed certified agreement Delaforce 9 "NOTICE TO EMPLOYEES OF THE SOUTH GRAFTON ABATTOIR" RE proposed certified agreement Delaforce 11 Letter 22-02-02 "SOUTH GRAFTON ABATTOIR" "the employing companies" "management" "we certainly encourage" "S B Ramsey Managing Director" Delaforce 12 Letter 08-03-02 "SOUTH GRAFTON ABATTOIR" "has come to our knowledge "R J Mortimer Abattoir Administration" Delaforce 16 Letter 22-02-02 Memo re certified agreement "SOUTH GRAFTON ABATTOIR" "S B Ramsey for and on behalf of South Grafton Abattoir " Delaforce 21 Letter 06-08-02 "SOUTH GRAFTON ABATTOIR" "Stuart Ramsey For and on behalf of the employers " Delaforce 24 Letter Stock shortage notice 29.08.02 "SOUTH GRAFTON ABATTOIR" "In accordance with our notice given on 21 August ..." 317 These references suggest that no particular differentiation as between the respondents was a matter of emphasis to Mr Ramsey in the dealings with the employees. The operation was the South Grafton Abattoir and the particular arrangements of entities and the roles they performed in the conduct of the abattoir was a matter of internal domestic organisation. 318 In support of the notion that invoking a stock shortage by the respondent employers was a construct to obfuscate the termination of the employees for a prohibited reason, the applicant says significant financial advantages accrued to the employers by invoking a stock shortage rather than making the employees redundant. The argument is put this way. Clause 17 deals with shortages of stock. Clause 17.1 concerning weekly employees is in these terms: 'Where the employer, on account of shortage of stock, gives notice of termination of employment to a weekly employee and immediately upon the expiration of that notice employs him as a casual employee, such employee shall be paid in any week after such expiration in which less than five days work is offered, at the rate of 1-5 th of the appropriate weekly rate plus 15% for each day worked.' Nothing in cl 171. requires the employer to effect the termination. The clause creates certain consequences in the circumstances of the clause. Clause 46 deals with termination, change and redundancy. The clause applies in respect of full time and part time employees in the classifications described within the AWA. Clause 46.2 provides: 'Where the employer terminates the services of employees as the direct result of seasonal factors affecting the meat industry or shortages of livestock, the employer shall not be required to pay severance pay to the employees so terminated.'


case_text: The conventional approach to this section is explained by Wilcox and Cooper JJ in David's Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at [109] , in these terms: 'Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it to be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny [1932] HCA 64 ; (1932) 48 CLR 487 at 507' 332 In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited & Ors v Maritime Union of Australia & Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'. 334 The point of distinction the respondents seek to demonstrate is this. The majority judgment in David's Distribution v NUW properly understood, is not authority for the proposition that a bare allegation of a prohibited reason in respect of proven or admitted conduct, for example, termination of employment, is sufficient to cast an onus of "proving otherwise" upon the respondents. The reasons [95] to [114] demonstrate, it is said, that evidence was available by reason of inferences that the dismissed picketers were actuated by dissatisfaction with their industrial conditions, that the employees banded together in part for that reason and that a statement by a David's Distribution management officer (Mr Johnson) provided evidence of at least a serious question to be tried of a reason for dismissals which was a prohibited reason. The evidence of a prohibited reason concerning Mr Johnson was not denied by him. David's further contended that the termination of employment affected all the picketers equally, no individual was selected and the only inference open was that termination was referrable to picketing conduct. David's contended that because the evidence was consistent with non-prohibited reasons, the mere allegation of a prohibited reason cannot operate to place an onus upon the respondents. Their Honours, Wilcox and Cooper JJ said: 'The difficulty with this submission is the uncontradicted evidence of Mr Joseph that, on 17 July 1998, Mr Johnson, informed him that David's intended to terminate another ten people. ... The statement of Mr Johnson was itself evidence that there was a serious question to be tried that there was a different or additional reason for the dismissals, which was a prohibited reason.'


case_text: The combined effect of these provisions is to introduce an additional element of discrimination into the conduct prohibited by s 298K so that it is not enough to establish, for example, the dismissal (conduct) of an employee for a prohibited reason to satisfy s 298K(1)(a). Rather the section, it is said, requires proof of the discriminatory dismissal of an employee for a prohibited reason. The essential difficulty with this construct is the failure to recognise that the legislative expression of the objectives of the Part is to be found in prohibiting nominated conduct by an employer carried out for a reason falling within s 298L(1). That is the formulation that captures prohibitions upon discriminatory conduct or victimisation. It is the conjunction of the conduct carried out for a prohibited reason (among others) that gives the s 298K conduct its discriminatory character. No other element need be superimposed upon the sections. That, however, is not to deny the relationship between the objects recited in s 298A and the language of implementation in s 298K and s 298L. Those sections might generally be described in terms of prohibiting the vice of discrimination and victimisation but the precise formulation of the method of implementation is to be found in 'conduct' for 'a prohibited reason'. The true role of Division 2 is not to impose a limitation upon the plain words of other provisions of the Act but to plot a point on the constitutional continuum of ensuring the Act in all its provisions is a valid law of the Commonwealth. See generally Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; [2001] 112 FCR 232 per Wilcox J at [57], [70] and [73]. 328 The respondents say that this notion of threshold discrimination has particular resonance in the application of s 298V also within Pt XA with the result that before s 298V can have any operation, the applicant must adduce evidence that demonstrates a reasonable hypothesis that conduct occurred for a prohibited reason and that such evidence was unchallenged or unaddressed. It will be recalled that s 298V casts an onus upon the respondents in these circumstances: 'S298V if: (a) in an application number this Div relating to a person's ... conduct, it is "alleged" that the "conduct" was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person ... to carry out the conduct for " that" reason or with that intent would constitute a contravention of this Part; it is "presumed" in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or that intent, unless the person ... proves otherwise.'


case_text: Branson J put the matter in these terms in Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 at pg 31, [56]-[57]: 'I gave consideration to the significance of s 298V of the Act in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [56]-[61]. In that case [at 59] I noted that s 298V reversed the onus of proof not only with respect to the dominant reason for the relevant conduct but with respect to all operative reasons for that conduct.' 364 Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party.


case_title: Laz v Downer Group Ltd (2000) FCA 1390

case_text: In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited & Ors v Maritime Union of Australia & Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'.


case_title: National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90


case_text: In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited & Ors v Maritime Union of Australia & Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'. 351 The respondents further rely upon Heidt v Chrysler Australia (supra) and National Union of Workers of Qenos Pty Ltd (supra) as authority for the proposition that there must be demonstrated "differential treatment" by an employer as against an individual employee or other person or an identified class of persons as against others. The decision in Heidt v Chrysler (supra) concerned a challenge to the dismissal of an employee on grounds that the dismissal was actuated by reason of the employee's membership of the Union, his entitlement to an award and his membership of a Union that was seeking better conditions about which he was dissatisfied. The respondents rely upon this passage from the judgment of Northrop J at page 270: 'Counsel for the informant did not argue that the defendant had failed to prove that, in dismissing the informant, it had not been actuated by reason of either of the circumstances that the informant was a member of an organisation or was entitled to the benefit of an award. To so argue would have been futile. It was a condition of his employment by the defendant that the informant become and remain a member of the organisation. The award was binding on the defendant with respect to all employees coming within the scope of the award, whether members of the organisation or not. I find that the defendant, in dismissing the informant, was not actuated by reason of the circumstance that the informant was a member of an organisation, nor by reason of the circumstance that the informant was entitled to the benefit of an ward.'


case_text: There is no doubt the applicant has the onus of establishing the causes of action on the balance of probabilities but s 298V effects a discharge of that onus once the relevant conduct is proven and the allegation of a prohibited reason made. Although the respondents rely upon observations of Ryan J in Transport Workers' Union v De Vito (2002) 140 IR 33 at 40, his Honour was simply observing that when the conduct itself is put in issue, the applicant has an evidentiary onus of establishing that matter before the respondent is called upon to satisfy an onus of proving a reason other than the alleged prohibited reason. The two classes of conduct asserted here are 'dismissing an employee' and 'refusing to employ another person'. It may be that the content of other classes of conduct, 'altering the position of an employee to the employee's prejudice' or 'discriminating against another person in the terms or conditions of an offer of employment', require greater forensic evidence of the character of the conduct before an onus as to a prohibited reason falls to the respondent. In any event, that is not the case here.


case_text: The respondents rely upon the observations of both Barwick CJ (in dissent) and Mason J (in the majority) in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. In that case, GMH dismissed an employee who was a member and delegate of the relevant union, on the articulated basis of the employee's unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act 1904-1976 (Cth) prohibited GMH from dismissing Bowling by reason of his being a member or delegate of the union. The majority of the industrial court convicted GMH of dismissing Bowling by reason of his position as a delegate. In considering the onus provision in GMH's appeal, Barwick CJ at 611 said this: 'I now turn to s 5(4) and the use which may properly be made of it. The precise terms of that subsection are:- "s.5(4) In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action are proved, it shall lie upon the defendant to prove he was not actuated by the reason alleged in the charge." It is a little difficult to state what are the element of the offence against s 5(1)(a) other than the reasons for the appellant's action: but, presumably, if effect is to be given to the provision, the dismissal itself is the other, and indeed the only other, element of the offence. In my opinion, before resort can be had to this onus provision, there must be before the court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.' 340 Accordingly, the respondents here say that there must first be some evidence that the reason alleged was 'possibly a reason' and if there is 'no basis' for concluding that the particular circumstance might have been a reason, the onus of demonstrating otherwise does not arise. Two things should be noted. First, this is nevertheless a slight basis for enlivening the operation of the respondents' onus and, secondly, the reason in question had to be a 'substantial and operative reason' . A requirement to demonstrate some evidence of such a circumstance before enlivening the respondents' onus is neither surprising in the context of a requirement to demonstrate a substantial and operative reason nor applicable to a position where the question is whether the prohibited reason was simply a reason for the conduct. 341 Mason J put the matter this way at pg 617: 'Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.' 342 Therefore, it is said, consistent with the views of Barwick CJ and Mason J, the applicant must adduce evidence 'consistent with the hypothesis' that the respondents were actuated by a prohibited reason. It seems to me that the hypothesis is the allegation and the evidence is consistent with it. However, his Honour, Mason J, also said at pg 617: 'To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the main purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.' 343 The notion that evidence must be consistent with a hypothesis and the recognition that the statutory objective is to place the onus on the defendant in respect of those matters peculiarly within his own knowledge, seems to me to not require actual evidence of purpose on the part of the applicant.


case_text: It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69: 'In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" that is it would have to be a reason'. That passage has been approved by Goldberg J in Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58]. 347 There must be, therefore, it is said, some demonstrated element of 'singling out' of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140, per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra). In Health Services , the actual conduct of singling out a union member for denial of a wage increase was held to constitute an 'injury' for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority , an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection.


case_text: It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69: 'In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" that is it would have to be a reason'. That passage has been approved by Goldberg J in Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58].


case_text: Reliance is also placed on the judgment of the Full Court of the Federal Court in BHP Iron-Ore Pty Ltd v Australian Workers' Union & Ors [2000] FCA 430 ; (2000) 102 FCR 97. In so doing, the respondents press their contention that some element of discriminatory conduct must be demonstrated (as an additional element of the section), not merely conduct coupled with an allegation of a prohibited reason, there must be some evidence consistent with the discriminatory hypothesis and the conduct must be intentional conduct directed to 'an employee' or 'other person'. 346 At pg 108, their Honours Black CJ, Beaumont and Ryan JJ made this observation: 'It has to be borne in mind, in construing s 298K, that it proscribes conduct by "an employer" directed to "an employee" or "other person" . That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used). It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ" and "discriminate" . That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.' 348 There can be no doubt that s 298K(1) addresses, consistent with the Full Court's observations in BHP Iron-Ore Pty Ltd v Australian Workers' Union & Ors (supra), bilateral conduct between an employer and an employee or an employer and another person. That simply means however that the circumstances of the conduct (dismissal, injury, alternation of position, refusal to employ or discrimination in terms and conditions of that offer of employment), affecting each individual must be examined to determine whether the conduct was undertaken for a prohibited reason. If the expression of the conduct involves a group of affected individuals, the circumstances of each individual within the group must be examined. The broader the group, the less likely as a matter of logic and probability that individuals within it are the subject of prohibited reasons for the conduct. A group of individuals will generally exhibit a unifying characteristic that defines the boundaries of the group and it may well be that that characteristic provides an explanation of the reason for the conduct affecting the group. Nevertheless, individuals within the group, upon examination, may on a bilateral basis, be the subject of conduct for a reason prohibited by the Act, as alleged. In other words, the dismissal of 50 employees would not provide an answer to a contravention of s 298K(1)(a) if 12 of those 50 were dismissed because they elected to take up membership of a union, act as a delegate, express dissatisfaction with conditions of employment supported by the union, or secured an order of the AIRC to address constructive dismissal in harsh and unjust circumstances. The question is always what was the conduct of the employer qua the employee, in the circumstances ? In many cases, where a broader group or class is the subject of the conduct, the employer will be in a position, and uniquely so, to demonstrate persuasively that the circumstances affecting the group reflect a level of abstraction that removes qua any member, a circumstance constituting a prohibited reason. Although the section requires an analysis of the bilateral circumstances between the employer and the individual, conduct applying to a group does not, by that circumstance alone , extinguish any operation for the section. Justice Kenny put the notion slightly differently but to the same effect when her Honour said in Australian Workers' Union and Others v BHP Iron-Ore Pty Ltd [2001] FCA 3 at [53] upon remitter from the Full Court: 'Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees . The relevant inquiry is whether an employer has, by the employers conduct, injured the position of an employee individually. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees. Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.' (emphasis added)


case_text: There must be, therefore, it is said, some demonstrated element of 'singling out' of an employee or if a class of employees is involved, the class must be singled out for special treatment as a class: Health Services Union of Australia v Tasmania (1996) 73 IR 140, per Marshall J; and Maritime Union of Australia v Geraldton Port Authority (supra). In Health Services , the actual conduct of singling out a union member for denial of a wage increase was held to constitute an 'injury' for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority , an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection.


case_title: Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998 - 1999) [1998] HCA 30 ; 195 CLR 1

case_text: In considering s 170CQ of the Act which provided a defence in relevant proceedings, if an employer proved that the termination of employment was for a reason or reasons that did not include a prescribed reason, Moore J in Laz v Downer Group Ltd (2000) FCA 1390 at [26] , concluded that s 170CQ enables 'the allegation that a reason was a proscribed reason to stand as sufficient proof of the fact unless the employer proves otherwise' , relying upon David's Distribution and R v Hush . In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited & Ors v Maritime Union of Australia & Ors (1998 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. Finally, in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 267, Northrop J considered the operation of s 5(4) of the Conciliation and Arbitration Act 1904-1975 (Cth) which provided that in any proceeding for an offence against the section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge and observed: 'The circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly within the knowledge of the employer. It is for this reason that s 5(4) is of such importance it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'. 354 Weinberg J recognises at [121] and [122] the susceptibility of what I might call distributed conduct (and not merely bilateral conduct) to the reach of s 298K, illustrated in the circumstances of Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (supra). His Honour said this: 'There, the conduct impugned was a decision by the employers to dismiss all members of the MUA in their employ, and to ensure that no funds were available to meet the legal obligations owed to those employees. It is one thing for an employer to decide to dismiss all the employees forthwith because of their membership of a particular union. That conduct falls squarely within s 298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in BHP Iron-ore Pty Ltd v Australian Workers' Union, albeit all individual employees.'


case_text: His Honour concluded that the "spill and fill" proposal for the selection of certain employees within a group for involuntary redundancy was not "sufficiently proximate" to any of the forms of contravening conduct contained within s 298K. Dismissal of all employees for a prohibited reason is squarely within s 298K notwithstanding that they represent potentially a large group. Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose. It seems to me that the observations of Gray J in Employment Advocate v Williamson [2001] FCA 836 ; (2001) 111 FCR 1 at [23] : 'What is clear, however, is that for a contravention of s 298K to occur, there must be a person or persons who fall within the description in one or more of the prohibitive reasons.' and at [26]: 'It must be possible to identify some person or persons who answer the description in at least one of the prohibitive reasons in s 298L(1).' does not contradict the notion that an individual may fall within the description of the conduct even though such an individual forms part of a group such as that identified in the illustration by Weinberg J. 356 In this case, the employer entities dismissed a cohort of employees. Some of those employees, from their individual standpoint, contend the dismissal was for a prohibited reason. They say the circumstances that give rise to that apprehension can be seen in the attitude of Mr Ramsey to the AMIEU, his hostility to the participation of the Union in the workplace and the consequences of Union engagement in various processes before the AIRC and the dissatisfaction nine of the 12 individuals were articulating about conditions of employment against the background of the steps taken by the Union. As to three of the individuals, their concern lies in the chronology of events arising out of their constructive dismissal and the subsequent treatment of the individuals consequent upon obtaining orders from the AIRC and particularly orders for reinstatement. 357 The dismissal of the entire cohort of employees does not provide an answer to the essential character of the contravening conduct in respect of the particular individuals. The legislation provides a mechanism for an employer to demonstrate that the apprehended and thus alleged reasons for the dismissal are misplaced and incorrect by casting an onus upon the respondent to demonstrate otherwise. 358 The same position obtains in relation to the conduct of refusing to employ the relevant individuals. In essence, the respondents say that in the case of each individual, the particular person was not available for employment, did not seek employment and was not denied employment. Moreover, before a refusal to employ an individual for a prohibited reason can arise, the individual must demonstrate that a vacancy was available to be filled. 359 As to these matters, it is clear that the individuals did seek employment. Enquiries were made of management staff as to the availability of the work. Steps were taken to refuse immediate employment by some, but expressly for the purposes of trying to secure a return to work for all employees. Mr Delaforce and Mr Moss formulated a compromise proposal directed to securing the return to work for all employees. Some individuals were episodically offered employment on a day, sometimes after the event. Enquiries were made of management and in the immediacy of the dispute and enquiries were made at the gate as to those persons who were on the list for employment. The evidence demonstrates that jobs were available and vacancies were being filled. Subsequent offers, even though episodic, demonstrate that vacancies were there to be filled. Notwithstanding the lengthy period of employment on the part of the 12 individuals with the South Grafton Abattoir from the commencement of operations by Mr Ramsey and the pre-existing historical connection with the abattoir in the Gilbertson's days, none of these individuals (leaving aside Susan Young) were offered full time employment or any sustained period of casual employment.


case_text: On this issue, the respondents say this. In Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117, Moore J, sitting in the Industrial Relations Court of Australia, said: '... the expression "refuse to employ" deals with ... actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. It concerns actual and not theoretical employment'.


case_text: In Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 , Wilcox J observed at [50] that: 'A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy." 363 The respondents say that the applicant has not demonstrated that a vacancy existed or might arise. Moreover, there is no evidence that actual employment might otherwise arise but for the alleged refusal. The allegation of refused employment is thus entirely theoretical.


case_text: Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party.


case_text: The reasons pleaded by the Employment Advocate as the prohibited reasons for carrying out the dismissal conduct and the refusal to employ in respect of each individual are these: Mr Stephen Blackadder • On 27 September 1999, Mr Blackadder gave evidence in a proceeding commenced by Mr Swain under the Act in which Mr Swain sought a reinstatement order against the First Respondent, among other orders (s 298L(1)(k)). • On 18 and 19 January and 17 February 2000, Mr Blackadder prosecuted a proceeding under the Act against the Third Respondent seeking a reinstatement order, among other orders (s 298L(1)(j)). • On 29 March 2000, Mr Blackadder obtained the benefit of a reinstatement order of the Australian Industrial Relations Commission ('AIRC') (s 298L(1)(h)). Colin James Hambly • On 21 July 1999, Mr Hambly commenced proceedings under the Act against the Third Respondent seeking, among other things, a reinstatement order. • On 30 January 2000, Mr Hambly prosecuted that proceeding (s 298L(1)(j)). • On 14 February 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)). Paul Gerard Swain • On 6 May 1999, Mr Swain commenced proceedings under the Act against the First Respondent seeking, among other things, a reinstatement order and prosecuted that proceeding (s 298L(1)(j)). • On 6 June 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)). Alick James Delaforce • On 17 February 2000, Mr Delaforce gave evidence and participated in a proceeding commenced by Mr Blackadder under the Act by which Mr Blackadder sought a reinstatement order against the Third Respondent (s 298L(1)(j)). • Mr Delaforce was both a member of the Australasian Meat Industry Employees' Union ('AMIEU') and a delegate of the Union at the workplace (s 298L(1)(a)). • Mr Delaforce was dissatisfied with his conditions and was seeking improved conditions of employment for himself and other employees at the abattoir (s 298L(1)(l)). Paul Francis McKenzie • On 23 June 1999, Mr McKenzie proposed to give evidence and participate in a proceeding under the Act commenced by Mr Jason Robertson against the First Respondent seeking, among other things, a reinstatement order (s 298L(1)(j) and (k)). • Mr McKenzie was a member of the AMIEU (s 298L(1)(a)); and • Mr McKenzie was dissatisfied with his conditions of employment (s 298L(1)(l)). Trevor Glen Moss • Mr Moss was both a member of the AMIEU and a delegate of the Union at the abattoir (s 298L(1)(a)); and • Mr Moss was dissatisfied with his conditions and was seeking improved conditions both for himself and other employees at the abattoir (s 298L(1)(l)). Terence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, John Kevin Young and Susan Jane Young • In respect of all of these individuals, the prohibited reasons are said to be that each of them was a member of the AMIEU and each was dissatisfied with his or her working conditions and in particular, wage levels paid by the relevant abattoir employer (s 298L(1)(a) and (l)). In respect of each allegation concerning dissatisfaction with working conditions, the allegation is made against the background of the Union seeking improved conditions for its members. 10 The Employment Advocate contends that although the conduct of dismissal occurred in September 2002, it was carried out for a prohibited reason deriving from a series of events of engagement between Mr Stuart Ramsey as the guiding mind of the employer entities and, in particular, Mr Justin Davis on behalf of the AMIEU, Mr Moss and Mr Delaforce as workplace delegates of the AMIEU and employee members of consultative committees formed to negotiate aspects of working conditions with Mr Ramsey, which occurred over a lengthy period. 11 The applicant contends that Mr Ramsey acquired, reopened and commenced operating the abattoir in April 1998 expressly on the footing that particular workplace arrangements could be negotiated and approved by the AIRC and that Mr Ramsey's view as to the content and formulation of those conditions would, from time to time as he thought appropriate, endure so as to secure the profitable operation of the abattoir. 364 Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party. 366 The respondents criticise the decision in AMIEU and Belandra on the basis that the evidentiary problem discussed by his Honour does not arise in the context of a lack of a vacancy because the applicant can readily show, by evidence, if there is a vacancy. The evidence would demonstrate that someone else was employed or there was an advertisement placed in a newspaper or other forum for a vacancy. Mr Hatcher puts it this way: 'It's not as if one needs to get inside the mind of the person making the decision to know what personally moved him, as it is when one alleges a prescribed reason' . The contention is that the applicant must adduce evidence of an actual, not theoretical, vacancy and demonstrate a refusal to employ that individual for that vacancy. Once that level of precision is made out, s 298V operates. In the absence of that evidence, s 298V has no role to play.


case_title: Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19


case_title: Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440


case_text: FKP submitted that the creation of intellectual property rights in contravention of the legal or equitable rights of a person can give rise to a constructive trust in favour of that person. Reference was made to what was said by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 at 246. In an appropriate case, so much may be conceded. Reference was also made to what was said by Williams J in dissent in Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 50 ; (1943) 68 CLR 525 at 546. 23 Spirits submitted that FKP's motion for leave to amend its FACC by filing a pleading in the form of the draft SFACC should be refused for the following three reasons: (a) FKP's proposed amendment is so obviously futile that it would be struck out had it appeared in the original pleading; there were at least two elements to this an alleged mistaken reliance on s 44 of the Act and the absence of any pleading that, by making the trade mark applications, Spirits has invaded any presently existing legal or equitable right of FKP, or has breached any alleged obligation owed to FKP, such as would be necessary to attract any principle in the terms stated in Lenah Game Meats ; (b) to allow the amendment would lead to substantial prejudice being suffered by Spirits which could not be cured by an order for costs, because registration of the trade mark applications would be held up indefinitely, pending the outcome of this (already lengthy and complicated) proceeding; and (c) there are powerful considerations militating against an exercise of the Court's discretion in favour of allowing the amendment. 24 Each of these reasons was elaborated on in Spirits' written and oral submissions, but it is the reliance on s 44 of the Act in the pleadings which are at the forefront of Spirits' argument which is put in the following way. 25 Paragraphs [68] [70] of the draft SFACC, which lead up to para [71] plead that: (a) the Stolichnaya trade mark applications are substantially identical with or deceptively similar to each of the Stolichnaya Label Mark, the Stolichnaya Word Mark, the Stoli Word Mark, the Ohranj Label Mark, the Ohranj Word Mark and the Blue Salyt Mark ('the Stolichnaya currently disputed marks') (para [68] of the draft SFACC); (b) the Stolichnaya trade mark applications are in relation to similar goods to the Stolichnaya currently disputed marks (para [69] of the draft SFACC); and (c) each of the Stolichnaya trade mark applications has a priority date which is not earlier than the priority date for the Stolichnaya currently disputed marks (para [70] of the draft SFACC).


case_text: FKP submitted that the creation of intellectual property rights in contravention of the legal or equitable rights of a person can give rise to a constructive trust in favour of that person. Reference was made to what was said by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 at 246. In an appropriate case, so much may be conceded. Reference was also made to what was said by Williams J in dissent in Federal Commissioner of Taxation v United Aircraft Corporation [1943] HCA 50 ; (1943) 68 CLR 525 at 546.


case_title: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1025

case_text: It is common ground that the requirements for the Court to grant leave to amend are accurately set out in a passage from SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 4) [2007] FCA 1035 at [14] [18] in relation to an application by Spirits to amend: '[14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 rule 2(2) of the Rules makes explicit reference to this principle: 'All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings.' [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths.' 13 FKP's constructive trust claim is pleaded in the following terms. 14 First, the trade mark applications are derivative of the currently disputed marks in that they incorporate the words STOLICHNAYA, STOLI or MOSKOVSKAYA, and are sought to be registered in respect of 'similar goods', within the meaning of s 44 of the Act, as the goods in respect of which those trade marks are registered.


case_outcome: followed

case_text: In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 Brennan CJ, Toohey, McHugh and Gummow JJ referred to the practical constraints on judicial review. They noted that a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons, they said, for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. They cited an earlier decision of the Full Court of this Court: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 19 Brennan CJ, Toohey, McHugh and Gummow JJ also said that this was a well-settled proposition which recognised that in reality the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Their Honours warned against the Court, on judicial review, turning the process into a review on the merits of the decision.


case_text: More recently in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 598 [25] , Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that what is required by procedural fairness is a fair hearing, not a fair outcome and that it was not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question was about whether the Tribunal's processes, not its actual decision, were in accordance with law. 21 Here, there is not the slightest doubt that Mr Goo gave to the Tribunal for the purpose of his application for review the information in the website printout of 2 May 2005. It said that he was the production manager of DSP. That information was congruent with and identical to the information in the website printout of 4 September 2002, albeit that the two printouts contained other information which was different.


case_outcome: discussed

case_text: One of the items which the tribunal recorded as having been put to the delegate in support of the original application was a print out (created on 4 September 2002) of the website of DSP and which identified Mr Goo as the production manager. It gave an address of DSP in Granville, New South Wales. Another item that was before the delegate and referred to by the Tribunal as such was a pithy sole agency agreement dated 10 April 2002 between Dongsung and DSP. Neither of those two documents was given by Mr Goo to the Tribunal for the purpose of his application within the meaning of s 359A(4)(b) as interpreted by the authorities culminating in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. So much is common ground. 7 Mr Goo's then migration agent wrote to the tribunal on 2 May 2005 enclosing, among other things, a service seller agreement dated 26 August 2003 between Dongsung and Mr Goo. Among other things, that contained an entire agreement clause specifically providing for contents of the service seller agreement to supersede any and all prior agreements or understandings between those parties. Also included in the material supplied with the letter of 2 May 2005 to the tribunal was another copy of the printout of the DSP website created on 2 May 2005 which again showed Mr Goo as the production manager. That printout gave an address for DSP's business at Riverstone in New South Wales. 8 It is clear that the printout of the website before the delegate was of a different document and it contained different information from that which was provided to the Tribunal by Mr Goo in the letter of 2 May 2005. This distinction, if it had a difference, is said to be critical to the outcome of the appeal. 13 Mr Goo's argument is that had the tribunal had regard to and used as the reason or part of the reason the description of Mr Goo as production manager in the printout provided as part of the submission of 2 May 2005, it would have said so. In SZEEU 150 FCR at 255 [178]-[180] Weinberg J discussed the highly refined and extraordinarily sophisticated reasoning which the analogue of s 359A (s 424A) has engendered. To say that this legislation has created a technical minefield not only for tribunals but for applicants is an understatement. However, it is the role of the Court to apply the law, not to comment on the wisdom of its provisions. 14 Weinberg J indicated that the source of information may be critical to determining whether or not a notice in writing needs to be given for the purposes of the analogue of s 359A. And, he identified some odd results that can flow. Mr Goo in particular relies upon his Honour's discussion of the possible use of information given to the delegate in support of a visa applicant's case which is affirmed by the applicant for review at the hearing before the tribunal. In the example that his Honour gave (150 FCR at 255 [179]), the applicant for review repeated or adopted what he or she had said to the delegate in the course of giving evidence to the Tribunal. If the Tribunal chose the original statement, as opposed to its reaffirmation in the evidence before it, as the reason or part of the reason for its conclusion of disbelieve or lack of credibility on the basis of inconsistency between that information and some other information before it, different results would follow. He said (150 FCR at 255 [179]): '[179] In the same way, the present position can lead to odd results. As can be seen from the appeal in SZEEZ , if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy: see generally SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 per Bennett J. This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the Tribunal proposes to use the earlier statement as the " reason ", or "a part of the reason " for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1).' 15 Mr Goo focuses on the last sentence of this passage and says that by referring to the website description of him as production manager in [17] of its reasons, the Tribunal was using that information (i.e. the website printout of 4 September 2002) as the reason or part of the reason for affirming the decision of the delegate. He says that because the Tribunal did not set out in its reasons, in terms, the same description, albeit in a different document (i.e. the website printout of 2 May 2005) with some other different information it must have relied on the 'information' before the delegate. 16 Mr Goo says that the Tribunal was under a duty under s 368(1)(d) of the Act to refer to the evidence or any other material on which its findings of fact were based and the omission to refer to the printout of the website enclosed with the letter of 2 May 2005 demonstrated that it was the earlier printout which was the information upon which the Tribunal proceeded. 22 The critical information to which the Tribunal had regard was Mr Goo's self-description as a production manager. Unlike the situation discussed by Weinberg J in SZEEU 150 FCR at 255 [178]-[180], there is no question here of any inconsistency in information which Mr Goo was providing as to his status of production manager. The Tribunal referred in its reasons to 'available evidence' as showing Mr Goo as production manager of DSP. It did not have to set out the source of every repetition of that evidence. I am of opinion that it would expose the Tribunal's reasons to an overzealous review to conclude that the reason or part of the reason for its decision was specifically that contained in the source of the description 'production manger' which was before the delegate. There is no reason to think that the Tribunal did not also read and consider the submission given to it on 2 May 2005 in which the same information, patently uncontroversial in the instant case, was provided to it by Mr Goo for the purposes of the review. 23 I am of opinion that the Tribunal did not have to set out every reference in the material before it to a source for that description, which was uncontroversial and was a self-description. It is not suggested to be in any way inaccurate. What Weinberg J was addressing in SZEEU at 150 FCR at 255 [179] was a situation in which the Tribunal was using information given variously at an earlier occasion and later to it as a basis for not accepting that information or not accepting other information from Mr Goo that was relevant to that information. 24 Here, the source of the description 'production manager' was on each occasion Mr Goo's provision of the material in the website printout, first, to the delegate and second, to the Tribunal. There was no inconsistency between that material. Mr Goo intended that the Tribunal act on the information he provided, including the website printout of 2 May 2005, and because of the operation of s 359A(4)(b)that was information which the Tribunal did not have to give back to him. 25 There was no part of the reasoning of the Tribunal which relied upon any distinction between the times at which that same information was provided to the delegate or to the Tribunal. A fair reading of [20] of the Tribunal's reasons indicates that it had regard to the overall position of DSP including that it was a business name he owned and Mr Goo's relationship with Dongsung.


case_outcome: applied

case_text: In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ), Gibbs CJ at 199 in a frequently quoted passage said: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or course depend on all the circumstances. That passage was referred to with approval by the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ) at [102]-[103].


case_text: In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ), Gibbs CJ at 199 in a frequently quoted passage said: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or course depend on all the circumstances. That passage was referred to with approval by the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ) at [102]-[103]. 89 In Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ( Taco ), in the joint judgment of Deane and Fitzgerald JJ, their Honours at 200 said: In truth, of course, no conduct can mislead or deceive unless the representee labours under some erroneous assumption. Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them. The nature of the erroneous assumption which must be made before conduct can mislead or deceive will be a relevant, and sometimes decisive, factor in determining the factual question whether conduct should properly be categorized as misleading or deceptive or as likely to mislead or deceive. Again, that passage was cited with apparent approval by the High Court in Campomar at [104]. 91 Their Honours then provided certain guidance in considering and determining whether the suggested misrepresentation has been made, and is or is likely to be misleading or deceptive of the public. The first item of guidance was to identify the relevant section or sections of the public by reference to whom the question of whether conduct is, or is likely to be, misleading or deceptive falls to be tested. The second, having identified the relevant section of the public, was to consider the issue by reference to all who come within it, "including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations". That quotation was adopted from the judgment of Lockhart J in Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93. In Campomar , the High Court confirmed at [105] that the Court may well decline to regard as controlling the application of s 52 assumptions by persons whose reactions are "extreme or fanciful". 92 In Campomar , the High Court then said at [105]: The initial question which must be determined was whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. Their Honours emphasised at [106] as had been said in Taco Bell at 201, that the question whether particular conduct causes confusion or wonderment, or is misleading or deceptive, cannot be substituted for the question whether the conduct answers the statutory description contained in the section under consideration.