FEDERAL COURT OF AUSTRALIA

Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4

ORDERS

THE COURT ORDERS THAT:

1.    The appellant's application for leave to amend his notice of appeal be refused.

2.    The appellant's application for leave to tender further documentary evidence on the appeal be refused.

3.    The respondent's application for an extension of time to appeal be refused.

4.    The appeal be allowed.

5.    In place of order 4 made 13 April 2015, there be an order that "the penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the applicant forthwith".

THE COURT DECLARES THAT:

6.    The respondent's purported cross-appeal does not satisfy the requirements of Rule 36.21(1) of the Federal Court Rules 2011 (Cth) in that it is not an appeal from "part of a judgment or an order" of the primary judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Mr Muhammad Ali Sayed was employed by the Construction, Forestry, Mining and Energy Union (CFMEU or union) as an organiser for a little over three months in 2013. During the course of his employment allegations were made about his conduct which led, ultimately, to him being dismissed. He commenced a proceeding in this Court alleging that various disciplinary responses by the CFMEU, culminating in the termination of his employment, constituted adverse action within the meaning of Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act). He further alleged that such action had been taken against him because of his political opinion in contravention of s 351(1) of the FW Act. Mr Sayed sought relief which included compensation, reinstatement and the imposition of pecuniary penalties on the CFMEU.

2    Liability issues were tried first. On 30 January 2015 the primary judge made a declaration that three of the four actions taken by the CFMEU against Mr Sayed had been taken because of his political opinion and that, as a result, contraventions of s 351 of the FW Act had occurred: see Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27. The four disciplinary measures about which Mr Sayed complained were a direction to him to travel from Western Australia to Sydney to attend a meeting at which his conduct was to be discussed, and his subsequent redeployment, suspension and dismissal. Her Honour ordered that the CFMEU pay Mr Sayed $3,000 by way of compensation for the distress and humiliation caused to him by these contraventions. On 6 February 2015 her Honour made a further order that the CFMEU pay Mr Sayed $36,984.16, less tax, as compensation for loss of income caused by the termination of his employment.

3    Her Honour then considered written submissions from the parties relating to what, if any, pecuniary penalties should be imposed on the CFMEU in respect of these contraventions. In his written submissions Mr Sayed sought an order that any penalties imposed on the CFMEU should be paid to him. This claim was not dealt with by the CFMEU in its written submissions. On 13 April 2015 her Honour made orders imposing pecuniary penalties in respect to each of the three adverse actions which she had held had occurred. Penalties of $20,000, $10,000 and $15,000 were imposed respectively for the redeployment, the suspension and the dismissal of Mr Sayed. Her Honour further ordered that each of these penalties should be payable to the Commonwealth: see Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338.

4    On 30 April 2015 Mr Sayed filed an appeal against her Honour's order that the penalties be paid to the Commonwealth. He sought orders setting aside that order and the making of an order that the penalties be paid to him.

5    On 19 May 2015 the CFMEU filed a notice of cross-appeal. The cross-appeal was said to be against the compensation orders made on 30 January 2015 and 6 February 2015 and each of the orders imposing penalties made on 13 April 2015.

6    The appeal was case managed. Procedural orders were made by Jessup J on 14 May 2015 and 19 June 2015 and by Tracey J on 4 November 2015. One of these procedural orders required Mr Sayed to file an outline of submissions in support of his appeal and in response to the CFMEU's cross-appeal by 9 November 2015. Mr Sayed filed submissions on 10 November 2015. In those submissions Mr Sayed advanced arguments in support of his claim that the pecuniary penalties, imposed by the primary judge on the CFMEU, should be payable to him. In addition, however, he sought to challenge her Honour's finding that the direction, given to him, to return to Sydney to attend the meeting did not constitute adverse action. He also challenged her Honour's findings relating to the quantum of compensation and asserted an entitlement to payment of $120,188.77. Mr Sayed neither applied for nor foreshadowed an application to amend his notice of appeal to raise these additional grounds.

7    At the commencement of the appeal hearing Mr Sayed made oral applications for leave to amend his notice of appeal and to tender further documentary evidence in support of his appeal. The Court refused both applications and intimated that it would provide reasons for so ruling at a later date. Those reasons follow.

8    Senior Counsel for the CFMEU, in written submissions filed shortly before the appeal hearing, properly drew attention to the possibility that its proposed proceeding might not be a cross-appeal within the meaning of the Federal Court Rules 2011 (Cth) (Rules). He submitted that, if the Court did not consider that the purported cross-appeal met the requirements of the Rules, the CFMEU should be granted an extension of time within which to file an appeal in the same terms.

THE ISSUES

9    The following issues were raised by the pleadings and submissions:

(1)    Whether the CFMEU has cross-appealed and, if not, whether it should be granted an extension of time within which to file an appeal.

(2)    Whether Mr Sayed should be permitted to amend his notice of appeal to raise additional grounds.

(3)    Whether Mr Sayed should be given leave to file further documentary evidence in support of his appeal.

(4)    Whether her Honour erred in ordering that the penalties be paid to the Commonwealth, and not to Mr Sayed.

10    The first three procedural questions were disposed of at the hearing. The Court determined that the purported cross-appeal did not satisfy the requirements of r 36.21(1) of the Rules and made a declaration to that effect. It refused the CFMEU leave to file an appeal out of time. The Court also determined that Mr Sayed should not be permitted to amend his notice of appeal and refused leave to file further documentary evidence in support of his appeal. The Court indicated that it would publish its reasons for these decisions at a later date and then proceeded to hear Mr Sayed's appeal.

THE PROCEDURAL QUESTIONS

Preliminary observations on case management

11    Before dealing with the first three issues something should be said generally about the context in which the related applications came to be made. Section 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that the overarching purpose of the civil practice and procedure provisions which govern the operation of the Court is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. These provisions include the Rules. Section 37M(3) provides that such provisions "must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose." Section 37N of the FCA Act requires that parties and their legal advisers must conduct proceedings in a manner consistent with the overarching purpose.

12    The primary judge's findings relating to liability and her related orders were published on 30 January 2015 and 6 February 2015. Neither party appealed against her Honour's compensation orders or the declaration on which they were founded within the 21 days prescribed by r 36.03 of the Rules.

13    The primary judge's orders imposing penalties on the CFMEU for contravening s 351(1) of the FW Act and the reasons for making those orders were published on 13 April 2015. Mr Sayed's appeal was filed on 30 April 2015. No appeal was filed by the CFMEU. Its notice of cross-appeal was not filed until 19 May 2015. There is a strong basis for inferring that, had Mr Sayed not appealed, the CFMEU would not have sought to challenge any of the orders. Similarly, it may readily be inferred, that, had the CFMEU not lodged its notice of cross-appeal, Mr Sayed would not have sought to add to his grounds of appeal.

14    Case management of the appeal commenced on 14 May 2015 at which time the CFMEU's proposed cross-appeal had been foreshadowed but not filed. Mr Sayed had six months' notice that the CFMEU was proposing to cross-appeal and of the orders which it was seeking to challenge. Despite this, the possibility of his expanding his grounds was first raised, somewhat obliquely, in his written submissions filed on 10 November 2015.

15    The CFMEU, for its part, did not alert Mr Sayed or the Court to the possibility that the efficacy of its cross-appeal might arise as an issue on the appeal until its written submissions were filed on 20 October 2015.

16    The result was that both parties were placed at a disadvantage when oral applications were made at the commencement of the appeal hearing.

17    The parties should have, but did not, raise these issues during the case management process. The failure to do so was inconsistent with the obligations imposed on them by s 37N of the FCA Act. Their conduct was antithetical to the overarching purpose.

Has the CFMEU cross-appealed and, if not, should it be granted an extension of time within which to file an appeal?

18    The CFMEU's notice of cross-appeal identified the orders which it sought to challenge as:

    The compensation order made on 30 January 2015;

    The compensation order made on 6 February 2015; and

    The three orders, made on 13 April 2015, imposing pecuniary penalties on it for contravention of s 351(1) of the FW Act.

19    Cross-appeals are dealt with in r 36.21 of the Rules. Relevantly that rule provides:

(1)    A respondent who wants to appeal from part of a judgment or an order must file a notice of cross-appeal, in accordance with Form 123.

(2)    The notice of cross-appeal must state:

(a)    the part of the judgment, or the order, to which the cross-appeal relates; and

(b)    …

(c)    …

20    The predecessor of r 36.21 was O 52 r 22, which facilitated an appeal by a respondent who desired "to appeal from a part of the judgment or to seek a variation of a part of the judgment" against which an appeal had been lodged. A "judgment" was defined to mean an order which was under appeal. The rule in this form was considered by a Full Court in Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 67 FCR 416; [1996] FCA 520. Branson J (with whom Sheppard and Spender JJ agreed) held that, while a cross-appeal could be brought against "part of a judgment" it could not be brought against "the whole judgment": see at 427.

21    The Explanatory Statement for the 2011 Rules said that the new Part 36 did "not substantially alter existing practice but streamlines, simplifies and consolidates some aspects of the former Rules …". It also stipulated that the Part dealt with notices of cross-appeal "in similar terms existing under the former Rules."

22    These statements are accurate. Although orders are specifically referred to in r 36.21(1) and (2) the reference to "the judgment" in the former O 52 r 22 picked up orders.

23    The CFMEU's notice of cross-appeal, in our view, seeks to challenge all of the orders made by the primary judge. The compensation order made on 30 January 2015 was the only coercive order made on that day. It was accompanied by a declaration that the CFMEU had contravened s 351 of the FW Act when it deployed, suspended and dismissed Mr Sayed and a number of procedural directions. The purpose of the declaration was to identify the legal basis for the making of the compensation order under s 545 of the FW Act. The only order made on 6 February 2015 was another order for compensation. The CFMEU also sought to challenge three of the four orders made on 13 April 2015. Each of these three orders imposed a pecuniary penalty for the contraventions. The fourth order was merely consequential: it directed that the penalties should be paid to the Commonwealth. In these circumstances we did not consider that the notice of appeal was confined to a part of a judgment or an order made by the primary judge.

24    We announced that a declaration to this effect would be made.

25    The CFMEU submitted that, if the Court considered that the purported cross-appeal was not limited to parts only of the primary judge's orders, it should be granted leave to file a notice of appeal in the same terms. The application was consented to, but only on a quid pro quo basis, that is to say, only if Mr Sayed were given leave to substantially amend his notice of appeal.

26    The CFMEU could have but did not appeal against any of the primary judge's orders until after Mr Sayed had appealed against the consequential order made on 13 April 2015. No doubt this was the result of forensic decisions. No evidence was tendered to explain the reason for the failure to appeal within the time limit prescribed by the Rules.

27    Again, any such application could have and should have been made in the course of the appeal management process. The CFMEU is a sophisticated and experienced litigant in this Court. No good reason was shown to justify extending to it the indulgence that it sought.

28    In these circumstances we determined that an extension of time to appeal should not be granted.

Should Mr Sayed be permitted to amend his notice of appeal?

29    Mr Sayed had been aware, for over nine months, of the quantum of compensation which had been awarded to him by the primary judge and the basis of the relevant calculations. He did not seek to challenge the adequacy of the awards or the legal reasoning which underpinned them. When he made his oral application Mr Sayed had not prepared a draft amended notice of appeal.

30    Mr Sayed failed to provide any adequate explanation for his late application. The additional grounds on which he proposed to rely had not been formulated. As a result the CFMEU would have been forced to speculate about the case it might belatedly be called on to meet.

31    The application was, therefore, refused.

Should Mr Sayed be given leave to file further documentary evidence in support of his appeal?

32    Mr Sayed applied for leave to tender and rely on eight documents which (with one exception) he said had been in the Court book at trial but had not been tendered. The exception was the bill of costs received from his solicitor on which he, initially, said that he proposed to rely to advance submissions relating to the quantum of compensation and his claim to be paid the pecuniary damages awarded against the CFMEU.

33    Mr Sayed produced a list which identified each of the eight documents. On examination it emerged that five of the documents had, in fact, been tendered at trial. A sixth document was said to be an e-mail and an attachment. The covering e-mail had not been tendered but the attachment had. That left two documents. The first was a bundle of job applications which had been in the Court book but had not been tendered. The final document was the solicitor's bill of costs.

34    Under questioning Mr Sayed abandoned any reliance on the bill of costs because he ultimately accepted that any costs burden which fell on him had no bearing on the amount of compensation to which he was entitled. Nor did it support his claim that the pecuniary damages should be paid to him.

35    Rule 36.57 requires that any application to the Court to receive further evidence on appeal must be filed at least 21 days before the hearing and be accompanied by an affidavit containing certain prescribed information. No such application was made to the Court.

36    Mr Sayed was represented by senior and junior counsel at trial. He was unable to explain why they chose not to tender particular documents, if, in fact, any such failure had occurred.

37    Any application by Mr Sayed to tender further documents should have been made in accordance with the Rules and in the course of the appeal management process. In the absence of any explanation for the late application and any attempt to relate particular documents to issues arising on the appeal, the application was refused.

THE APPEAL

Did the primary judge err in ordering that the pecuniary penalties be paid to the Commonwealth, and not to Mr Sayed?

38    As explained above, on 13 April 2015, following consideration of the written submissions of the parties on penalties, and (by consent of the parties) without the need for an oral hearing, her Honour made the following orders as to penalties:

1.    In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by redeploying the applicant, the respondent pay a penalty of $20,000.

2.    In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by suspending the applicant, the respondent pay a penalty of $10,000.

3.    In respect of the contravention of s 351 of the Fair Work Act 2009 (Cth) by dismissing the applicant, the respondent pay a penalty of $15,000.

4.    The penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the Commonwealth, on or before 18 May 2015.

39    Mr Sayed now appeals against order 4, insofar as it required the CFMEU to pay the penalties to the Commonwealth. He contends that the primary judge, in the exercise of the power created by s 546(3) of the FW Act, should have ordered that the penalties be paid directly to him and erred in failing to do so.

40    Section 546(3) allows the Court to order that a penalty or part of a penalty, be paid to the Commonwealth, a particular organisation or a particular person.

The primary judge's reasons

41    The primary judge, in deciding that the penalties should be payable to the Commonwealth, and not Mr Sayed, reasoned as follows.

42    First, her Honour referred to her decision in Dafallah v Fair Work Commission (2014) 225 FCR 559 at [139]-[143]; [2014] FCA 328, where she dealt with a number of the authorities concerning payment of penalties under the FW Act. Her Honour noted that she had there agreed with the remarks of Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (No 4) (2006) 158 IR 181 at [108]; [2006] FCA 1302 (which her Honour said were endorsed by Branson and Lander JJ in Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357 at [70]; [2008] FCAFC 170, although their Honours there noted the remarks went to the issue of the appropriateness of ordering that any penalty be paid to the individual affected when that individual is not the applicant) as follows:

the imposition of a penalty under the Act is designed fundamentally to serve the public interest in acting as a deterrent to the particular Respondents and others generally from engaging in conduct of the kind the subject of the findings. In circumstances where an order has been made for compensation for both economic loss and a non-economic component concerning the disturbance, dislocation and loss of secure employment suffered by the individuals, there seems to be no good policy reason why the individuals should additionally have the benefit of an order for the payment to them of the penalty.

43    Her Honour said, at [77], that these remarks were "applicable and pertinent to this proceeding".

44    Her Honour considered, at [78], that the interrelationship between the rationale behind "common informer provisions", described in some detail by Moore J in Schanka v Employment National (Administration) Pty Ltd (No 2) (2001) 114 FCR 379 at [77]-[87]; [2001] FCA 1623, and the existence of compensation provisions such as s 545, had not been much explored. Her Honour considered that it "may be" that these rationales developed in contexts where the person who was the common informer was not the person directly affected by the contravention, or if she or he was, had no statutory right to compensation, nor to other remedies such as reinstatement, so that the only recompense or "reward" the person who brought the proceeding and exposed the unlawful behaviour could receive was what the Court ordered to be paid by way of penalty.

45    Her Honour then made a number of references to what she described as the "tensions" between the statutory right of a common informer to have an order that a pecuniary penalty be paid to them and their right to seek compensation for themselves or somebody else. In that regard, her Honour referred to the following paragraphs of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):

2157. Subclause 546(3) provides that the court may order pecuniary penalties (or part of a pecuniary penalty) to be paid to the Commonwealth, a particular organisation or a person. Ordinarily, any pecuniary penalty awarded by the court is paid to the applicant or, in the case of proceedings brought by a Commonwealth official such as an inspector, to the Commonwealth (on the basis that the applicant represents the Commonwealth).

2158. Also, it gives the court the flexibility to award the penalty to someone other than the plaintiff or applicant where the plaintiff or applicant requests. For example, where an inspector brings penalty proceedings against the director of a company that has gone into liquidation, the inspector might request the court to pay any penalty to an employee rather than the Commonwealth in circumstances where the employee is out of pocket as a result of the company being liquidated.

…

2160. Subclause 546(5) provides that a court can make a pecuniary penalty order in addition to one or more orders made under clause 545. The effect of this is that a court is not restricted to the making of only one order in respect of any contravention of a particular civil remedy provision.

2161. For example, in a case involving a contravention of a civil remedy provision related to underpayment of minimum wages under a modern award, the court may order that the employee is entitled to compensation for that underpayment and a pecuniary penalty may also be imposed on the employer for the contravention.

46    At [80], her Honour stated that the proposition that both compensation and penalties might be ordered by the Court was "straightforward", but the proposition that they might both be ordered to be paid to the same person was "more complex".

47    To her mention of the decisions in McIlwain and Plancor, her Honour added reference to Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241; [1985] FCA 368 and CPSU, The Community and Public Sector Union v Telstra Corporation Limited (2001) 108 IR 228; [2001] FCA 1364 (CPSU v Telstra), which her Honour said bore on the complexity issue, at least by reference to the concept of avoiding "windfalls". Her Honour also referred to Gibbs v The Mayor, Councillors and Citizens of The City of Altona (1992) 37 FCR 216; [1992] FCA 553 (Gray J).

48    In relation to Gibbs and CPSU v Telstra, the primary judge noted that the authorities appeared to refer to expenses and costs in a broader sense than simply legal costs, in order to justify what had been referred to in a number of those decisions as the "usual order", namely, that the entity or person who successfully brings a contravention proceeding is entitled to receive payment of any pecuniary penalty imposed.

49    But her Honour considered, at [87], that the current legislative policy concerning the payment of costs in proceedings under the FW Act, manifested in the FW Act by s 570(1), is that parties to proceedings such as the present are, subject to s 570(2), or ss 569 or 569A, to bear their own legal costs. Her Honour said that "[t]his adds a further tension in the appropriate approach when considering whether to order that penalties be payable to a person in the applicant's situation".

50    Her Honour added, at [88], that where the applicant is a union there will be a wide range of resources occupied in bringing a proceeding alleging contraventions of the FW Act, many of which are separate to any fees paid to solicitors and counsel for legal representation and advice in a proceeding and, to that extent, "the rationale remains for ordering a penalty to be paid to a union", even in the face of the "clear legislative policy" evinced in s 570 of the FW Act.

51    Her Honour said, at [89], however, that "that rationale" had no application in the present case as:

whatever fees for solicitors and counsel the applicant has incurred, Parliament has determined that, unless the circumstances set out in s 570(2), or ss 569 or 569A, exist, he should bear his own costs of this proceeding. Once again, it would in my opinion introduce an inconsistency into the application of the present legislative scheme in the Fair Work Act to order that the respondent pay penalties to the applicant so that he could, in that way, recover his legal costs.

52    Her Honour went on to say, at [90], that the circumstances of the present case provided a good example of the tension she had identified between the exercise of the power under s 546(3)(c) and the fact that the Court had already made a final determination, on the basis of evidence adduced, as to the compensation appropriate to be paid for the contraventions.

53    Her Honour noted, at [91], that in her earlier judgment, she had observed (in the context of the claim for compensation) that little or no evidence of damage or harm to Mr Sayed had been adduced. The judge said that it was for this reason that, despite her findings of three serious contraventions resulting in Mr Sayed losing his job, there was a "relatively modest award of general compensation". Nor, her Honour added, was there any evidence about ongoing financial loss.

54    At [92], the primary judge said that, in combination, these factors explained why, despite the language she had used in her reasons for judgment about the seriousness of the contraventions, what the union had to that point been ordered to pay to Mr Sayed had been relatively modest.

55    Her Honour then concluded, at [93], that:

In my opinion, to order that the sums of money imposed by way of penalty on the respondent be paid to the applicant would to be to deliver to him a windfall which would not be appropriate in the circumstances, and would not serve the interests of the administration of justice. He would receive more in real terms through the penalty payment than I determined he was entitled to by way of compensation, yet would receive that $45,000 in addition to receiving payment from the respondent by way of compensation. The inherent requirement in the compensation provisions of the Fair Work Act that a person seeking compensation prove the loss he or she alleges he or she has suffered, and otherwise prove to the satisfaction of the Court the entitlement to the remedy sought (e.g., reinstatement) would be undermined, as would the legislative policy behind s 570(1).

56    Thus, her Honour, by order 4 of the orders made on 13 April 2015, ordered that the penalties be payable to the Commonwealth.

The grounds of appeal

57    Mr Sayed relied on the following grounds:

1.    In circumstances where the respondent did not submit that the penalty should be paid to consolidated revenue and no party raised or considered in submission the relevance of the principles applicable to a common informer the applicant was denied an opportunity to advance submissions and to lead evidence on the question of whether the penalty should be paid to the applicant or to the Commonwealth.

2.    The learned Primary Judge erred in holding that the payment of a penalty to the applicant would constitute a windfall in circumstances where:

a.    He had been the victim of a serious breach of the protection of the Act;

b.    The proceeding was not simply one for the recovery of lost wages;

c.    There was no other person or organisaiton (sic) that would bring the proceeding in order to vindicate the breach of the Act.

3.    The learned primary Judge erred in treating the question of the identity of the person to whom a penalty is to be made as being informed solely or primarily by the issue of compensation.

4.    The learned primary Judge erred in not finding that the public interest required that penalties be paid to the applicant, so as not to discourage those without financial means or support from bringing instances of contravention under s351 to the court.

The resolution of the appeal

58    The appeal should be upheld. In our view, the primary judge's focus on the question whether or not an order that the penalties be paid to Mr Sayed would deliver him a "windfall", which would not be appropriate in the circumstances, led to error in this case.

59    The nature of the power to direct payment of a penalty under s 546(3) is to be discerned from a consideration, not just of the text of the provision, but also of its context in Pt 4 of the FW Act which deals with civil remedies; its legislative history and the construction of like predecessor provisions; as well as by reference to the Explanatory Memorandum. While her Honour considered some matters of context, she overlooked others and, in particular, some important features of the legislative history and of Pt 4 of the FW Act.

60    The so-called "common informer" legislation that is now found in s 546(3) of the FW Act, in one form or another, has been a part of the industrial relations framework of the Commonwealth since the passage of the pioneering Conciliation and Arbitration Act 1904 (Cth) (1904 Act).

61    Sections 44 and 45 of the 1904 Act as enacted (renumbered ss 59 and 60 in a 1947 amendment to the 1904 Act and then subsequently renumbered ss 119 and 120 in a 1956 amendment to the 1904 Act) provided as follows:

44.(1)    Where any organization or person bound by an order or award has committed any breach or non-observance of any term of the order or award any penalties which the Court has power to impose may be imposed by any Court of summary jurisdiction constituted by a Police Stipendiary or Special Magistrate.

(2)    Any such penalty may be sued for and recovered by –

(a)    the Registrar; or

(b)    any organization which is affected, or whose members or any of them are affected, by the breach or non-observance; or

(c)    any member of any organization who is affected by the breach or non-observance.

45.    Where the Court, or any Court of summary jurisdiction, imposes any penalty for any breach or non-observance of any term of an order or award, it may order that the penalty, or any part thereof, be paid into the Consolidated Revenue Fund, or to such organization or person as is specified in the order.

62    Following the repeal of the 1904 Act with the introduction of the Industrial Relations Act 1988 (Cth) (1988 Act), ss 178 and 356 of the 1988 Act provided:

Imposition and recovery of penalties

178.(1)    Subject to section 182, where an organisation or person bound by an award or an order of the Commission breaches a term of the award or order, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

...

(5)    A penalty for a breach of a term of an award or order may be sued for and recovered by:

(a)    an inspector;

(b)    a party to the award or order;

(c)    a member of an organisation who is affected by the breach;

(d)    an organisation that is affected, or any of whose members are affected, by the breach; or

(e)    an officer of an organisation that is affected, or any of whose members are affected, by the breach where the officer is authorised, under the rules of the organisation, to sue on behalf of the organisation.

...

Application of penalties

356.    A court that imposes a penalty under section 178 or 311 may order that the penalty, or a part of the penalty, be paid:

(a)    into the Consolidated Revenue Fund; or

(b)    to a particular organisation or person.

63    Relevantly, s 178(5)(c) was amended in a 1990 amendment to the 1988 Act to read as follows:

(c)    an employer who is a member of an organisation and who is affected by the breach;

(ca)    a person:

(i)    whose employment is, or at the time of the breach was, subject to the award; and

(ii)     who is affected by the breach;

64    And s 178(5)(e) was amended in a 1993 amendment to the 1988 Act to read:

(e)    an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.

65    Then, under the Workplace Relations Act 1996 (Cth) (WR Act) as introduced by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), ss 178 and 356 were amended as follows:

Imposition and recovery of penalties

178.(1)     Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction.

...

(5)    A penalty for a breach of a term of an award or order may be sued for and recovered by:

(a)    an inspector;

(b)    a party to the award or order;

(c)    an employer who is a member of an organisation and who is affected by the breach;

(ca)    a person:

(i)    whose employment is, or at the time of the breach was, subject to the award; and

(ii)    who is affected by the breach;

(d)    an organisation that is affected, or any of whose members are affected, by the breach; or

(e)    an officer or employee of an organisation that is affected, or any of whose members are affected, by the breach where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.

(5A)    A penalty for a breach of a term of a certified agreement may be sued for and recovered by:

(a)    an inspector; or

(b)    an employee whose employment is subject to the agreement; or

(c)    a person or organisation that is bound by the agreement; or

(d)    an organisation:

(i)    that has at least one member whose employment is subject to the agreement; and

(ii)    that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or

(e)    an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation.

...

Application of penalty

356.    A court that imposes a monetary penalty under this Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid:

(a)    into the Consolidated Revenue Fund; or

(b)    to a particular organisation or person.

66    Following amendments in 2005 to the WR Act, s 178 was renumbered as s 719, and s 718 set out, in a table to subs 718(1), those persons who could apply for a penalty or other remedy under Div 2 of Pt 14, in relation to a breach of an applicable provision. Section 356 was renumbered s 841. Section 841 provided as follows:

841    Application of penalty

A court that imposes a pecuniary penalty under this Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid:

(a)    to the Commonwealth; or

(b)    to a particular organisation or person.

67    In the current FW Act s 546(3) provides:

Payment of penalty

(3)    The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

(a)    the Commonwealth; or

(b)    a particular organisation; or

(c)    a particular person.

68    Section 539(2), which appears in Pt 4.1, Div 2, Subdiv A dealing with applications for orders, authorises the persons referred to in the table to that subsection to apply to the courts referred to in the table for orders in relation to a contravention or proposed contravention of a relevant provision, including the maximum penalty referred to in the table. By subs (1) a provision referred to in column 1 of the table is a "civil remedy provision".

69    Section 351(1), upon which Mr Sayed relied and succeeded in this proceeding, is one of the general protection provisions referred to in item 11 of the table.

70    The table further identifies the persons or entities who may apply for the imposition of a penalty for contravention of s 351(1), namely:

(a)    a person affected by the contravention;

(b)    an industrial association;

(c)    an inspector[.]

71    Mr Sayed brought the proceeding against the union as "a person affected by the contravention". While it may be said that s 351(1) has something in common with the "common informer" provisions to which the primary judge alluded, it is different from such provisions in that the Parliament has directly authorised "a person affected by the contravention" – not just any person – to bring an enforcement proceeding.

72    One may begin to understand, therefore, why it is that s 546(3), in Pt 4.1, Div 2, Subdiv B, empowers the Court to order that a pecuniary penalty, or a part of the penalty, be paid to the Commonwealth, a particular organisation, or a particular person. If a proceeding for contravention of s 351(1) is brought by the inspector, the inspector being a public official of the Commonwealth, it may be expected that ordinarily the pecuniary penalty would be paid to the Commonwealth. If a union were to bring the proceeding successfully, for the benefit of its members, it may be expected that the penalty would be paid to the union. If the union brought the proceeding for the benefit of a particular member, there might be payment of the penalty to that member, on the basis he or she is a particular person to whom it should be paid; or part payment to that member and the balance to the union. If a person individually affected by a contravention brought the proceeding, then the penalty may be paid to him or her as a particular person. There is a certain symmetry between the person or entity authorised to prosecute an enforcement proceeding and the person or entity to whom the penalty, if imposed, might be paid. This symmetry is recognised by the Explanatory Memorandum and authority.

73    For example, the Explanatory Memorandum, by para 2157 (set out above) expressly notes that:

Ordinarily, any pecuniary penalty awarded by the court is paid to the applicant or, in the case of proceedings brought by a Commonwealth official such as an inspector, to the Commonwealth (on the basis that the applicant represents the Commonwealth).

74    Paragraph 2158 then goes on to point out that s 546(3) gives the court the flexibility to award the penalty to someone other than the applicant, "where the plaintiff or applicant requests". The example given is where an inspector brings penalty proceedings against the director of a company that has gone into liquidation and asks the court to pay any penalty to an employee, rather than the Commonwealth, in circumstances where the employee is out of pocket. That example, it might be noted, in passing, comprehends that a particular person may, in a sense, be compensated for being "out of pocket".

75    Paragraph 2160 further observes that, by s 546(5), the court can make a pecuniary penalty order in addition to one or more orders made under s 545 (being an order that the court considers appropriate, including but not limited to injunctions, compensation and reinstatement under s 545(2)). Paragraph 2160 states that the effect of this is that a court is not restricted to the making of only one order in respect of any contravention of a particular civil remedy provision. This lends support to the view that a compensation order is not intended to be a surrogate for a penalty order.

76    In that regard, s 546(5) provides:

To avoid doubt, a court may make a pecuniary penalty order in addition to one or more orders under section 545.

77    This subsection, of course, does not say anything about to whom a penalty should be paid.

78    The concept of the "usual order" – to which para 2157 of the Explanatory Memorandum alludes – is a long standing principle governing the exercise of the discretion to make an order directing the payment of a penalty under s 546(3).

79    In Plancor, referred to above, an industrial magistrate, following the non-appearance of the appellant, Plancor Pty Ltd, gave summary judgment for the union which had brought the proceeding on behalf of its member, Ms Baker, and awarded three penalties for three separate breaches of the relevant award, totalling some $19,000. The magistrate then ordered, pursuant to s 841 of the then operative WR Act, set out at [66] above, that the total amount of the penalty be paid, in part ($2,000) to Ms Baker, in part ($4,000) to the union, and the balance ($13,000) to the Consolidated Revenue Fund.

80    At that time, s 718(1) of the WR Act, by item 4(c) of the table to that subsection, authorised an organisation of employees to bring an enforcement proceeding. Item 4(c) of the table to s 718(1) also allowed an employer or employee bound by the relevant collective agreement and an inspector to bring a proceeding.

81    In their joint judgment, Branson and Lander JJ, at [63], observed that the decision to order that the penalties imposed be paid to Ms Baker, the union and the Consolidated Revenue Fund was "not uncontroversial" and that the magistrate ought to have provided reasons for making the order.

82    At [64], their Honours then discussed the exercise of the power conveyed by s 841 of the WR Act. Their Honours first noted the observations of Gray J (the third member of the Full Court in Plancor) in Gibbs at 223-224, where his Honour had said that the "usual order" in such a proceeding, when not brought by an inspector, is for payment to the person or organisation applying for the penalty (citing authority, as discussed further below). Their Honours noted that Gray J then stated:

In the present case, the applicant has brought the proceeding on behalf of the Union, to enforce the Award for the benefit of the Union and its members. Had the applicant brought the proceeding in his personal capacity, and at his own expense, it would have been appropriate to order that the penalties be paid to him. It is unlikely that the applicant has become responsible personally for the costs of the proceeding and more likely that those costs will be met by the Union. In the circumstances, it is appropriate that the Union should be the recipient of the penalties.

(Emphasis added.)

83    We interpolate that the costs provisions in the WR Act were not materially different from the costs provisions in the FW Act.

84    Branson and Lander JJ noted, at [65], that that approach had been adopted in a number of other cases, although they also observed, at [66], that in CPSU v Telstra, Finkelstein J, at [22]-[28], queried the appropriateness of the "usual order" in every case.

85    In those paragraphs, set out by their Honours, Finkelstein J referred to "common informer" legislation which, by the time of Henry VIII, gave informers the right of action to recover a penalty in their own name. His Honour did not doubt that employer and employee organisations play a legitimate and important role in seeing that there is compliance with the provisions of industrial legislation, and noted that an individual employee will rarely have the ability to fund a proceeding for a contravention. His Honour said that if unions do not bring the proceedings, contraventions will go unpunished.

86    Finkelstein J added:

Perhaps the 'usual' order is to be explained on the basis that often an industrial organisation brings proceedings for a contravention of the … Act to protect the legitimate interests of its individual members. In such a case, it is appropriate for the organisation to receive the penalty, to defray its actual costs and to provide some compensation for the time lost by its staff.

…

However, there is no reason to make 'the usual order' if that will result in a windfall to an organisation. Proceedings for pecuniary penalties are not to be used for profit …

An appropriate order (if there be enough funds) would allow the unions a sufficient sum to meet their costs and expenses, including the expense of staff time. The balance (if any) should be paid into the Consolidated Revenue Fund.

87    Branson and Lander JJ then referred, at [67], to some remarks of Wilcox J in Finance Sector Union of Australia v Australia & New Zealand Banking Group Limited [2002] FCA 1035. There, at [16], Wilcox J said that he was not sure that he agreed with what Finkelstein J had said in CPSU v Telstra. Wilcox J considered the rationale of the "usual order" practice is that it tends to encourage a "common informer" to police the relevant legislation. His Honour added that he considered the rationale was likely to be defeated if the common informer is not allowed to make a profit.

88    Branson and Lander JJ, at [68], referred to conflicting authorities expressing agreement with the observation of Wilcox J, or approval of the observation of Finkelstein J. It may be said, in passing, as indeed the judgment of the primary judge reveals that this division of opinion has endured.

89    Their Honours then made observations, at [69] of the joint judgment, as to what a "windfall" might mean, in the context in which it had been used by Finkelstein J:

In our view, neither the total penalty actually imposed in this case, nor the amount of the penalty likely to be imposed on reconsideration of that penalty, is sufficient to give rise to concerns about a 'windfall'. We understand a 'windfall' in this context to involve an unexpected and relatively large financial benefit. Within an organisation such as the respondent, the true cost of bringing a legal proceeding is likely to prove substantial if the time of all staff involved is appropriately accounted for and other costs, possibly including overheads, identified. Before a penalty could constitute a 'windfall' in the relevant sense it would need to exceed the total amount of that cost by a significant margin.

90    But their Honours refrained from expressing a concluded view on whether, in a case in which it would otherwise be appropriate for the "usual order" to be made, such an order should not be made if it would be likely to result in a windfall to an applicant (in the sense they had described it). In other words, their Honours refrained from deciding the issue that apparently now arises for consideration in this appeal.

91    In Plancor, Gray J observed, at [38], that in Vehicle Builders' Employees' Federation of Australia v General Motors Holdens Pty Ltd (1977) 32 FLR 100 at 113, the Full Court had recognised that:

each of the persons entitled to institute proceedings under s. 119 of the [1904] Act (see s. 119 (2)) can be said to be an appropriate person selected by the legislature to police the legislation. In other words, each has a special interest to institute proceedings, and in our opinion s. 119 (2) has a limiting effect: cf. Commonwealth Crimes Act 1914, s. 13.

We interpolate that s 13 of the Crimes Act 1914 (Cth) then authorised any person to institute a proceeding for a criminal offence against the law of the Commonwealth.

92    Returning to Plancor, Gray J further observed, at [39], that in Seymour Northrop J had described a proceeding brought under s 119 as "based on the concept of an action brought by a common informer", and added that normally in proceedings for a penalty brought by a common informer "any penalty imposed is ordered to be paid to the person who brought the proceedings".

93    Gray J then referred, at [41], to what he had said in Gibbs, to the effect that the Vehicle Builders' Employees' Federation case and Seymour were the foundation for his view that, when a proceeding is not brought by an inspector, the "usual order" is for payment to the person or organisation applying for the penalty. His Honour added, at [41], that where the applicant has not brought the proceeding in his personal capacity, but on behalf of an organisation, it was more appropriate to exercise the power to order payment of the penalty to that organisation. His Honour noted (as did Branson and Lander JJ in their joint judgment in the same case) that, in expressing this exception, he had said:

In the present case, the applicant has brought the proceeding on behalf of the Union, to enforce the Award for the benefit of the Union and its members. Had the applicant brought the proceeding in his personal capacity, and at his own expense, it would have been appropriate to order that the penalties be paid to him.

94    Gray J went on to observe, at [42], that unfortunately the references to the applicant's "own expense" and to "the cost of the proceeding" seemed to have been subsequently relied on as a foundation for the notion that an order that the penalty be paid to the initiating party is made in order to compensate that party for the cost of bringing the proceeding. His Honour said that was "not the view that [he] intended to express", nor was it the correct view, and stated:

Nothing in the reasoning in the Vehicle Builders' Employees' Federation … case or Seymour … suggests that the legislative intention behind the power to order payment of a penalty to an organisation or person was compensatory.

95    His Honour then noted, at [43], that the maximum penalty that could be imposed for many years would have been highly unlikely to compensate a party bringing a proceeding for the costs incurred in doing so. His Honour observed that, for many years, the industrial legislation had provided that there be no order for costs in a proceeding arising under that legislation, save in circumstances specifically defined. His Honour added, at [43]:

To utilise the power to award payment of a penalty to the party initiating the proceeding as a way of compensating for that party's costs would be to undermine this policy. It cannot be the case that, in choosing to increase the maximum penalty that can be imposed, Parliament intended to substitute a new rationale for the power to order payment of a penalty to a particular organisation or person.

96    His Honour concluded, at [44], that:

The correct view is that the initiating party is normally the proper recipient of the penalty as part of a system of recognising particular interests in certain classes of persons … in upholding the integrity of awards and agreements the subject of penal proceedings. Where a public official vindicates the law by suing for and obtaining a penalty, it is appropriate that the penalty be paid to the Consolidated Revenue Fund. Otherwise, the general rule remains appropriate, that the penalty is to be paid to the party initiating the proceeding, with the Gibbs … exception that the penalty may be ordered to be paid to the organisation on whose behalf the initiating party has acted.

97    Gray J added, at [45], that the notion that the penalty was designed to compensate for the costs of the proceeding has in turn led to the notion that the Court should avoid ordering a payment which would produce a "windfall" to the initiating party, referring to what was said by Finkelstein J in the CPSU v Telstra case. He also referred to what French J (as his Honour then was) said in Municipal Officers Association of Australia v City of Bayswater (1987) 22 IR 45 at 51, in referring to s 120 of the 1904 Act (as amended in 1956):

I have not been persuaded that there is any reason that this penalty ought to be paid to the applicants. The applicants' interests in respect of these particular redundancies have not been seriously affected. There is no suggestion that the employees concerned have been in any way under compensated for the redundancies to which they have been subjected.

98    Gray J considered that French J was in error in seeing the purpose of the order as compensatory. Gray J added that the passage he had previously cited from Seymour contained a refutation of that proposition and provided no support for the proposition that proceedings for pecuniary penalties are not to be used for profit. His Honour added that, "[t]he question of profit simply did not arise".

99    Gray J concluded:

The notion that the order to pay a penalty to the initiating party could produce a windfall is a false notion. If the true purpose of such an order is taken into account, and the order is not regarded as compensatory in any way, any notion of a windfall disappears.

100    We respectfully agree.

101    Given the legislative history of ss 539(2) and 546(3) of the FW Act, since the enactment of ss 44 and 45 in the pioneering 1904 Act, and the manner in which the "usual order" was articulated in such early cases as the Vehicle Builders' Employees' Federation case and Seymour, which is reflected in the Explanatory Memorandum, we consider that the power conveyed by s 546(3) is ordinarily to be exercised by awarding any penalty to the successful applicant. We accept that there may be cases (of which this is not one) where the penalty, or a part of the penalty, should be paid to another person in the circumstances described by Gray J in Plancor at [44] (as set out at [96] above).

102    The examples given in the Explanatory Memorandum and by Gray J in Gibbs as to when a payment (or a part payment) might be made to a particular person support the view that, depending on the factual circumstances of a particular case, a particular person for whose benefit, in effect, the contravention proceeding was brought may be the beneficiary of a s 546(3) order in the types of cases there referred to.

103    However, the circumstance that a beneficiary of such an order is no longer "out of pocket" (to use the language of the Explanatory Memorandum) does not, in our view, support the articulation of a principle that a successful applicant is only entitled to such an order if they can demonstrate they have incurred costs, not being legal costs within s 570 of the FW Act; or where they can show that if the penalty is paid to them they would not receive a "windfall" — however that term should properly be understood.

104    In our view, the legislative history of s 546(3), older authority and the terms of the Explanatory Memorandum show that no immediate or obvious connection was intended to be drawn between the exercise of the s 546(3) power and the exercise of the power under s 545 of the FW Act to order compensation.

105    Moreover, s 546(5) makes it plain the Court may make a pecuniary penalty order in addition to a s 545 order. The fact that a compensation order has also been made should not control the exercise of the s 546(3) power with respect to the payment of the penalty.

106    There is no necessary tension, as the primary judge put it, between the application of the "usual order", where a person affected by the contravention succeeds in a court proceeding and a penalty is imposed, and the separate entitlement of that person to be compensated under s 545. Nor is there any necessary relationship between the s 570 limitation on the recovery of legal costs in proceedings under the FW Act, except in prescribed circumstances, and the application of the "usual order".

107    Rather, s 546(3) has a long and well-understood operation. The FW Act enables, amongst others, a person affected by a contravention to initiate an enforcement proceeding and to receive the penalty, where one is imposed.

108    We note that this understanding as to how the power to award the payment of a penalty should be exercised was preferred by Gilmour J in Woodside Burrup Pty Ltd v Construction, Forestry, Mining and Energy Union (2011) 220 FCR 551; [2011] FCA 949.

109    That case dealt with s 49(5) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), which provided:

A pecuniary penalty is payable to the Commonwealth or some other person if the Court so directs.

110    Gilmour J noted, at [125], that applications under the BCII Act differed from those under the WR Act (in effect at that time) in that a successful applicant was entitled to an order for costs. Nonetheless, his Honour considered the authorities referred to above.

111    At [133]-[134], his Honour accepted what Gray J had said in Plancor at [45] that the power to award payment of a penalty to an applicant is not regarded as compensatory and that:

It is a distinct power of a kind historically construed as intended to encourage common informers.

112    His Honour said that save, perhaps, for the question of a windfall, there was no reason why such an order should not be made even where an applicant is awarded both costs and compensation. However, Gilmour J further added, as to the "windfall" question, that his view accorded with what Gray J had said in Plancor at [45], to the effect that properly understood, because such an order is not regarded as compensatory in any way, "any notion of a windfall disappears". In the event, however, Gilmour J found it unnecessary to resolve the "windfall" issue, finding, at [136], that no question of a windfall arose in that case.

113    The decision of Jessup J in Murrihy v Betezy.com.au Pty Ltd (No 2) (2013) 221 FCR 118; [2013] FCA 1146 also generally supports the approach we have identified above. Referring to Plancor, Jessup J made the following points in relation to the case before him, at [116],:

    First, the case did not call for a consideration of the situation in which a registered organisation is the applicant.

    Secondly, in the words of Branson and Lander JJ in Plancor, the applicant was "the individual affected by the conduct so penalised", so the circumstance that she may, in some instances, have been compensated for some of the loss which she had sustained would not necessarily stand in the way of her receiving all or some of the penalties to be imposed.

    Thirdly, their Honours' treatment of the "windfall" point was consistent with it being appropriate to take into account the costs and expenses to which the applicant, as applicant, had obviously been exposed in the assertion of her contractual and statutory rights in the proceeding. That was not to suggest that the s 546(3) discretion should be exercised in a way that provides a substitute for costs which are unavailable under s 570 of the FW Act, but, where there have clearly been such costs and expenses, it may serve to counter any suggestion that the applicant would walk away from the case with a "windfall" or "profit".

    And fourthly, provisions of the kind now found in s 546(3)(b) and (c) of the FW Act — in the case of (c), to the extent that it refers to an applicant — have a considerable history in federal industrial legislation, and have for many years been recognised as setting up a presumptive entitlement in the nature of that of a common informer.

114    At [118]-[119], Jessup J further noted that:

    First, there were some areas of the case before his Honour in which the applicant would receive compensation (or damages). There were, however, areas in which she would not.

    Secondly, the case before him was not a case in which non-economic loss had been either alleged or proven. But that was not to say that the applicant should not be regarded as a victim of the respondents' contraventions whose position was affected for the worse by their conduct.

    Thirdly, his Honour had upheld the applicant's claims for costs in some areas. While a payment under s 546(3)(c) should not be regarded as a back-door method of securing costs, nonetheless the recovery of costs to some extent has the potential to bear upon any consideration of whether such a payment would deliver a "windfall" to the applicant.

    Fourthly, the "common informer" policy considerations which are ingrained into s 546(3)(c) and its statutory predecessors were said to "speak loudly" in the circumstances of the case before his Honour. For the applicant — an individual employee in a responsible position in a non-industrialised workplace — to have advanced, and persisted with, claims which the Court had held to be legitimate, and to have done so in the face of the deferrals and procrastinations of the respondents, could only have constituted a substantial, continuing, burden for her. In a forensic and evidentiary environment which would have tested the most seasoned of litigators, the applicant maintained her focus and, ultimately, achieved the success which was always her due. His Honour considered it to be "four-square" within the policy of s 546(3)(c) that an employee in the position of the applicant should be encouraged to proceed as she had done, thereby making it the more likely that the applicable provisions of the FW Act will be more than mere words on the statute book.

115    We agree generally with the observations made by Jessup J.

116    In this appeal, as Jessup J said of the case before him, the policy considerations of s 546(3) "speak loudly" in the circumstances to justify the payment of the penalty imposed to the individual affected by the contravention who, under the authority of the FW Act, commenced and maintained this enforcement proceeding. If Mr Sayed had not pursued the action, it is unlikely that it would have been pursued. He took on the proceeding at obvious cost to himself.

117    It is as clear today, as it was in 1904, that unions will not always, or invariably, be the prosecutor in an enforcement proceeding under industrial legislation. Yet the principle adopted by the primary judge would have the effect of stultifying civil penalty proceedings by persons affected by a contravention who are not backed by industrial power of one sort or another.

118    There is, in any event, something problematic about not applying the "usual order" because of an apprehended "windfall" to the successful applicant. In the joint judgment of Branson and Lander JJ in Plancor, at [69], their Honours considered that neither the total penalty actually imposed in that case, nor the amount of the penalty likely to be imposed on reconsideration, was sufficient to give rise to concerns about a "windfall". Having just referred to what Finkelstein J said in CPSU v Telstra, suggesting a "windfall" factor may be relevant to the exercise of the power in that case, their Honours made the observations about the concept of "windfall" set out above at [89].

119    In our view, it is not at all clear on the evidence in this case that, if the primary judge had chosen to direct payment of the penalties to him Mr Sayed would have received a windfall in the sense described by Branson and Lander JJ. We say this because, although Mr Sayed did not lead evidence himself about the extent of costs he had incurred in maintaining his prosecution of the CFMEU, it was obvious, on the face of the proceeding, that he had significant personal involvement in the maintenance of the proceeding where he was represented over a three day hearing by senior and junior counsel, instructed by solicitors he had retained, who also prepared the submissions as to penalty. Accepting that legal expenses should not be taken into account in considering "the true cost" of bringing such a prosecution because of the stipulation in s 570 that a party's legal costs are not recoverable except in circumstances not applicable here, there can be no doubt that Mr Sayed, in bringing and maintaining the prosecution of the union, and in dealing with the solicitors he instructed and the counsel they briefed, must have incurred considerable time, trouble and lost opportunity, not to mention the real risk to his career that Mr Sayed assumed in running the proceeding.

120    To the extent that the primary judge appears to have drawn a distinction, at [88]-[89], between a case prosecuted by a union or other representative organisation and one prosecuted by the person directly affected by the contravention(s), we fail to see how that distinction, of itself, should lead to any immediate assumption or conclusion that the individual, by contrast to an organisation, has not, or has not necessarily, incurred significant time, trouble and lost opportunity costs in maintaining the prosecution, so that in the absence of some disentitling feature, the usual order for payment of the penalty to the prosecutor is appropriate.

121    Furthermore, it is not apparent to us why the receipt of a penalty should not operate as an incentive to an affected person to bring a prosecution like this under the FW Act. After all, as Wilcox J noted in Finance Sector Union, it ensures the enforcement of the legislative scheme. Moreover, as Jessup J put it in Murrihy, this incentive to bring and maintain such a proceeding makes it more likely that the applicable provisions of the FW Act "will be more than mere words on the statute book". As Gray J said in Plancor, the question of "profit" does not arise on a proper construction of the power.

122    For these reasons we would allow the appeal and vary order 4 made on 13 April 2015 so that:

The penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the applicant forthwith.

Conclusion and order

123    The following orders and declaration should be made:

(1)    The appellant's application for leave to amend his notice of appeal be refused.

(2)    The appellant's application for leave to tender further documentary evidence on the appeal be refused.

(3)    The respondent's application for an extension of time to appeal be refused.

(4)    The appeal be allowed.

(5)    In place of order 4 made 13 April 2015, there be an order that "the penalties payable by reason of paragraphs 1 to 3 inclusive of these orders be payable to the applicant forthwith".

The Court declares that:

(6)    The respondent's purported cross-appeal does not satisfy the requirements of Rule 36.21(1) of the Federal Court Rules 2011 (Cth) in that it is not an appeal from "part of a judgment or an order" of the primary judge.

Associate:

Dated:    22 January 2016