FEDERAL COURT OF AUSTRALIA

Lunt v Victoria International Container Terminal Limited (No 2) [2019] FCA 1016

File number: VID 511 of 2018 Judge: RANGIAH J Date of judgment: 2 July 2019 Catchwords: PRACTICE AND PROCEDURE – application for dismissal of proceeding on ground of abuse of process – whether applicant is true moving party – predominant purpose in commencing proceeding – applicant commenced proceeding as “front man” for third respondent – proceeding dismissed as abuse of process EVIDENCE – credibility of witness – deliberate destruction of documents – inference that evidence would have tended against applicant’s case INDUSTRIAL LAW – application to quash approval of Enterprise Agreement by Fair Work Commission Legislation: Fair Work Act 2009 (Cth) ss 50, 186, 187, 188, 201(2) and 340 Fair Work Regulations 2009 (Cth) reg 3.46(3) Federal Court Rules 2011 (Cth) r 26.01 Cases cited: Allen v Tobias (1958) 98 CLR 367 Arrow Nominees Inc v Blackledge [2002] 2 BCLC 167 Campbells Cash and Carry v Fostif Pty Ltd (2006) 229 CLR 386 Clark v State of New South Wales (2006) 66 NSWLR 640 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181 Kermani v Westpac Banking Corporation (2012) 36 VR 130 Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244 Melbourne City Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 New South Wales v Kable (2013) 252 CLR 118 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 PNJ v The Queen (2009) 252 ALR 612; [2009] HCA 6 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 Re Majory [1955] Ch 600 Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 Research in Motion v Samsung Electronics Pty Ltd (2009) 176 FCR 66 The Ophelia [1916] 2 AC 206 Walsh v WorleyParsons Limited [2017] VSC 292 Walsh v WorleyParsons Ltd (No 4) [2017] VSC 292 Walton v Gardiner (1993) 177 CLR 378 Williams v Spautz (1992) 174 CLR 509 Date of hearing: 1–4 April 2019 Date of last submissions: 12 April 2019 (First Respondent) 18 April 2019 (Appellant) Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 136 Counsel for the Applicant: Mr H Borenstein QC with Mr E White Solicitor for the Applicant: Maurice Blackburn Lawyers Counsel for the First Respondent: Mr S Wood AM QC with Ms R Sweet and Mr N Burmeister Solicitor for the First Respondent: Seyfarth Shaw Counsel for the Second, Third and Fourth Respondents: The Second, Third and Fourth Respondents filed submitting notices

ORDERS

VID 511 of 2018 BETWEEN: RICHARD LUNT Applicant AND: VICTORIA INTERNATIONAL CONTAINER TERMINAL LIMITED (ACN 164 915 655) First Respondent FAIR WORK COMMISSION Second Respondent THE AUSTRALIAN MARITIME OFFICERS’ UNION (and another named in the Schedule) Third Respondent

JUDGE: RANGIAH J DATE OF ORDER: 2 July 2019

THE COURT ORDERS THAT:

1. The proceeding is dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1 In the principal proceeding, the applicant, Richard Lunt, seeks an order in the nature of certiorari quashing the approval by the second respondent, the Fair Work Commission (the Commission), of the Victoria International Container Operations Agreement 2016 (the Enterprise Agreement), and other related orders.

2 In the application presently before the Court, the first respondent, Victoria International Container Terminal Limited (VICT), seeks dismissal of the principal proceeding on the ground that it is an abuse of the process of the Court. VICT contends that the fourth respondent, Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), is the “true moving party” in the proceeding. VICT alleges that the proceeding has been brought in Mr Lunt’s name because it would fail if it were brought in the CFMMEU’s own name. That is because the CFMMEU’s predecessor, amongst other things, acquiesced in the approval of the Enterprise Agreement that is now sought to be challenged.

3 Mr Lunt denies that there is any abuse of process. He deposes that he genuinely seeks the quashing of the Commission’s approval of the Enterprise Agreement because he has concerns about conditions in the Enterprise Agreement and the manner in which it was made.

4 The CFMMEU has filed a submitting appearance, as have the Commission and the third respondent, the Australian Maritime Officers’ Union.

5 On 27 March 2018, the Maritime Union of Australia (MUA) amalgamated with the Construction, Forestry, Mining and Energy Union (CFMEU) to become the CFMMEU. The allegation of abuse of process is concerned with the actions and purpose of the MUA up to that date and the actions and purpose of the CFMMEU since then.

Procedural history of the principal proceeding

6 On about 21 June 2017, Mr Lunt commenced employment with VICT. On 23 November 2017, VICT dismissed him from his employment.

7 On 14 December 2017, Mr Lunt commenced proceeding VID1364/17 against VICT in this Court. Mr Lunt alleged that VICT had committed a number of contraventions of s 340 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him, including by dismissing him, because he had exercised, or proposed to exercise, rights he held under the Enterprise Agreement. Mr Lunt also alleged that VICT had contravened s 50 of the FW Act by breaching a clause of the Enterprise Agreement that required payment of “1820 Annual Hours Salary” at a particular level. It is convenient to refer to VID1364/17 as the “First Proceeding”.

8 On 1 February 2018, Mr Lunt filed an interlocutory application seeking leave to amend his originating application in the First Proceeding. There were effectively three categories of amendments sought. The first was to include further claims based upon contraventions of the Enterprise Agreement, including non-payment of personal leave and annual leave. The second was to allege contraventions of reg 3.46(3) of the Fair Work Regulations 2009 (Cth) by failing to provide adequate payslips. VICT did not oppose those amendments. The third was to seek an order in the nature of certiorari quashing the Commission’s approval of the Enterprise Agreement and related declarations and other orders. VICT opposed those amendments.

9 Mr Lunt’s application for leave to amend in the First Proceeding was supported by an affidavit of his solicitor in which she deposed:

I am instructed by the Applicant that, in the event that leave is not granted to amend his Originating Application in the terms sought that he intends to issue in this Court further proceedings in respect of the proposed additional claims…

10 On 23 April 2018, I refused leave to amend to include relief quashing the Commission’s decision and related orders. Subsequently, on 4 May 2018, Mr Lunt commenced the current proceeding in which he seeks that relief. It is convenient to refer to the current principal proceeding as the “Current Proceeding”.

The MUA’s role in the approval of the Enterprise Agreement

11 On 6 October 2016, VICT made an application to the Commission for approval of the Enterprise Agreement. The application was supported by a Form 17 statutory declaration of Michael O’Leary, an employee of VICT. The statutory declaration attached the Enterprise Agreement.

12 Mr O’Leary declared that the agreement covered all employees (other than senior management) directly engaged in VICT’s activities at Webb Dock East, Melbourne, who would otherwise be covered by the Stevedoring Industry Award 2010. He declared that eight employees would be covered by the Enterprise Agreement and that all eight had voted to approve the Agreement. Mr O’Leary declared that he thought the agreement passed the “better off overall test”.

13 On 10 October 2016, the MUA filed with the Commission a form entitled “Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than greenfields agreement)”. That declaration was completed by Adam Jacka, national legal officer for the MUA. The form asked the question, “Does the Union support the approval of the Agreement by the Fair Work Commission?”. The answer, “Yes” was marked. In response to the notation on the form beginning, “With respect to the matters contained in the employer’s Form 17 statutory declaration that are within my knowledge”, the answer, “I agree with the statutory declaration” was marked. The MUA also gave notice pursuant to s 183 of the FW Act that it wanted to be covered by the Agreement.

14 On 12 October 2016, the Commission provided a notice of the listing of the application for hearing on 17 October 2016. Mr Jacka was listed as one of the persons to whom the notice was provided by the Commission. The notice indicated that, “in the absence of any person indicating that they wished to be heard, the application for approval of the agreement will be determined in accordance with requirements of the Fair Work Act 2009 on the basis of the materials lodged with the Fair Work Commission to date”.

15 On 17 October 2016, in response to a query from the Commission as to why the MUA should be covered by the Enterprise Agreement, the MUA wrote to the Commission saying:

The MUA represented members whose employment would be covered by the proposed agreement during bargaining for the proposed agreement.

16 On 19 October 2016, Vice President Watson published a decision approving the agreement. The Vice President stated that he was satisfied that each of ss 186, 187 and 188 of the FW Act had been met. The Vice President noted, in accordance with s 201(2), that the Enterprise Agreement covered the MUA and the Australian Maritime Officers’ Union.

17 The MUA, having supported the approval of the Enterprise Agreement, naturally made no application for permission to appeal against its approval.

18 Between June and December 2017, the MUA made three applications for the Commission to deal with disputes in accordance with cl 1.1 of Sch 2 of the Enterprise Agreement. In the first two, the MUA alleged that a number of employees, including Mr Lunt, had been offered employment at wage rates lower than the rates provided under the Enterprise Agreement. In the third, after Mr Lunt was dismissed on the basis that he did not have a valid Maritime Security Identification Card, the MUA alleged that there had been a failure to consult in breach of the Enterprise Agreement. Mr Lunt also made an application to the Commission alleging that he had been subjected to threats and abuse because he refused to sign an offer of employment that failed to provide for the rate of wages required under the Enterprise Agreement. He made a further application alleging that he had been dismissed because he refused to sign the offer of employment and because the MUA had filed its applications. Mr Lunt was represented by the MUA in each of his applications.

The emergence of the MUA’s opposition to the Enterprise Agreement

19 From about November 2017, the MUA began publically criticising the process by which the Enterprise Agreement was made and the wage rates it provided for.

20 On 13 November 2017, Will Tracey, the MUA Deputy National Secretary, sent an email to a number of employees of VICT saying:

Further to my earlier email, attached is the flyer we have produced in relation to the issues that had been raised at VICT.

The key issue is the offshoring of Victorian waterside worker jobs to Manilla…This issue will now form the basis of a public campaign which starts with tomorrow’s rally at the front gate of VICT at 7.30.

I have also added in the issues around the agreement that Mick O’Leary put together and which undermines generations of struggle by Waterside Workers.

21 I infer that the “agreement” referred to by Mr Tracey was the Enterprise Agreement. The flyer attached to the email was entitled “VICT: The Mick O’Leary Betrayal”. Under the heading, “How did we get here?”, the following appeared:

MUA meets to negotiate a new Enterprise Agreement because it is essential that we have a presence in Australia's first fully automated container terminal in our traditional areas of work.

• MUA refuses to endorse an agreement that decimates the current industry rates and conditions.

• VICT, through Mick O'Leary, exclude the MUA from negotiations.

• VICT vote up a CUB type agreement with five employees before any other workers are employed.

• Agreement seeks to exclude MUA from the terminal through underhand reclassification process that sought to exclude MUA coverage in the terminal. As an example in order to implement “new” classifications and remove MUA coverage, roles such as Lasher are now classified as Auxiliary Automation Employee - Level 1, under the VICT agreement.

22 From 27 November to 15 December 2017, a blockade was established at the Webb Dock terminal. Mr O’Leary deposes that the blockade was established, “during an industrial dispute with the MUA following the dismissal of Mr Lunt on 23 November 2017”. However, the evidence does not clearly indicate that Mr Lunt’s dismissal was the cause, or a cause, of the blockade. There were broader issues at play, including “offshoring” of work by VICT.

23 On 29 November 2017, the MUA published a post on its Facebook page stating that:

VICT is continuing a disturbing trend by employers who want to engage in a race to the bottom by accepting a workplace agreement voted on by five staff chosen by the company that slashes penalty rates and casual loading. The MUA has been seeking to establish minimum standards for wages and conditions but the company has refused to negotiate with the Union.

24 On 6 December 2017, the MUA distributed a message urging people to attend a rally at VICT’s premises to “take a stand against VICT”.

25 On 13 December 2017, Mr Tracey made a statement that:

VICT have undercut the wages and conditions that we have established across the industry by about 40%.

26 On 21 December 2017, Joe Italia, the Victorian Branch Secretary of the MUA, sent an email to members attaching a flyer, which stated:

The recent upheaval in our port around the sacking of our MUA delegate, oppression of the workforce and substandard working conditions recently introduced by VIC… will continue to be a threat to all of us.

Together we must not allow this company to decimate our conditions and threaten our families.

…

27 On 19 February 2018, the MUA made the following statement on its Facebook page:

Today we face a challenge as great as any we have faced before and certainly the most significant since the Patrick dispute in ‘98. It is a dispute with a new entrant into the Australian Waterfront—a foreign multinational called VICT that seeks to take the industry back decades and undermine generations of struggle to decimate the future wages and conditions of Australian Waterfront workers.

28 It is clear from these statements that by November 2017, the MUA had become dissatisfied with the Enterprise Agreement.

Mr Lunt’s relationship with the MUA/CFMMEU

29 Mr Lunt was a member of the MUA for more than two decades before it amalgamated with the CFMEU. In 2013, Mr Lunt brought an unfair dismissal proceeding in the Commission following the termination of his employment with a company called “Qube”. A listening device was discovered at a conciliation conference and Mr Lunt was blamed. The proceeding ended badly for Mr Lunt, with a costs order being made against him.

30 On 27 March 2014, Mr Lunt posted a statement on his Facebook page criticising the MUA for not “defending their members against false allegations”. Mr Lunt gave evidence that this comment was directed at a particular official of the MUA. Later, another MUA member admitted that he was responsible for placing the listening device.

31 Mr Lunt failed to pay the costs awarded in favour of Qube and was bankrupted on 29 April 2014. On 30 June 2015, the MUA paid $40,000 to Qube, enabling Mr Lunt’s bankruptcy to be annulled.

32 During 2017, the MUA made the three applications to the Commission described at [18]. The applications were brought on behalf of Mr Lunt and other employees of VICT. In Mr Lunt’s own applications to the Commission, he was represented by the MUA, including by Luke Edmonds, the national legal officer for the MUA, and, at times, Mr Tracey.

33 On 14 December 2017, Mr Lunt had his partner forward to Mr Tracey an email addressed to Bea Curwood, a human resources employee of VICT, asking her to send, “all the shifts and hours that I have worked since beginning employment at VICT”. Mr Tracey responded saying:

Hey mate

Spoke to Luke and we will

Lodge a formal request tomorrow for Daniel to do a time and wages inspection next week. I’ll come over for it. This provides the basis to challenge the agreement and knock it over. Now the real games begin.

(Errors in original.)

34 The “Daniel” referred to in Mr Tracey’s email was Daniel Victory, a solicitor employed by the solicitors for Mr Lunt.

35 On 24 January 2018, the solicitors acting for Mr Lunt in the First Proceeding wrote to VICT’s solicitors advising that, “our client has instructed us that he wishes to amend his originating application to include a number of additional claims, including a claim for a declaration that the FWC’s approval of the VICT Agreement is void and of no effect and consequential prerogative writs”. On 25 January 2018, Mr Tracey forwarded the solicitors’ letter of 24 January 2018 to Mr Lunt by email.

36 On 31 January 2018, Mr Lunt’s solicitors filed the interlocutory application seeking to amend the originating application to seek an order quashing the Enterprise Agreement and related relief.

37 On 19 February 2018, an article was published on the web page http://www.mua.org.au/bastard_boys_2018, entitled “VICT Bastard Boys 2018”, with an accompanying flyer. I infer from the address of the webpage that the article was published by the MUA. No submission was made to the contrary.

38 The second page of the article stated as follows:

MUA RESPONDS

MUA notifies VICT and Federal Court that VICT Agreement must be overturned and declared invalid because:

• It fails to the BOOT test and provides for wages/salaries that are significantly less than the Stevedoring Industry Award

• The approval process to put the agreement in place was critically flawed and did not meet the requirements of the Fair Work Act

The first hearing date on this matter is listed before the Federal Court in mid-March.”

(Errors in original.)

39 I infer that the notification to the Federal Court referred to was Mr Lunt’s application to amend his originating application in the First Proceeding. The relief described in the article—“that VICT agreement must be overturned and declared invalid”—is consistent with the relief that Mr Lunt proposed to seek. Mr Lunt’s application for leave to amend was set down for hearing on 19 March 2018, and that is consistent with the reference in the article to the matter being listed before the Federal Court in mid-March.

40 Mr Lunt admits that the MUA and CFMMEU have borne the legal costs of both the Current Proceeding and the First Proceeding.

Mr Lunt’s evidence

41 Mr Lunt has affirmed two affidavits in respect of VICT’s application for dismissal of the Current Proceeding. In his affidavit filed on 11 February 2019, Mr Lunt deposed, that:

32. I genuinely seek the relief sought in this proceeding. I instituted this proceeding because I want the Court to declare that the Enterprise Agreement is invalid and quash it. I am concerned with the conditions in the Enterprise Agreement as substandard and that the Enterprise Agreement was voted on by 8 employees who were not representative of the employees covered by the Agreement.

33. I understand that VICT has alleged that the true moving party is the [CFMMEU]. This is incorrect. I am the true moving party in this proceeding.

42 Mr Lunt also deposed in an affidavit filed on 25 March 2019, that:

10. Since I commenced this proceeding to invalidate the Enterprise Agreement, I have been given a lot of support by the employees who have remained at VICT. I have attended regular union meetings with those employees. At those meetings there has been discussion about my case and they have all expressed support for it. They have expressed unhappiness with the terms and operation of the Enterprise Agreement and have expressed their hope to be able to negotiate a new Enterprise Agreement with VICT to replace the old one as soon as possible.

…

15. In the general protections proceeding, I have outlined the concerns and complaints I had about the operation of the Enterprise Agreement from around middle 2017 including in relation to rates of pay. I was also concerned about how it was possible for VICT to make an Enterprise Agreement with eight managerial employees before any of the stevedoring work force had been employed.

…

23. The CFMMEU has agreed to fund my legal costs of this proceeding but the union is not driving or controlling this proceeding in any way. I genuinely want to have the VICT Enterprise Agreement declared invalid because of my concerns with it and I am driving and controlling this proceeding.

43 VICT submits that Mr Lunt’s evidence is not credible. A significant part of VICT’s attack upon Mr Lunt’s credibility relates to its attempts to obtain discovery of documents stored on his mobile phone. It is necessary to explain this issue in some detail.

44 On 18 September 2018, I made an Order in the Current Proceeding that Mr Lunt give discovery of certain categories of documents, including:

all documents (including electronic documents, emails, social media messages, text messages, instant messages and other communications) between the Applicant and the Maritime Union of Australia (including its officers, delegates, employees and agents)…in relation to:

…the purported invalidity of the Victoria International Container Terminal Operations Agreement 2016;

…

the decision to seek to amend the Originating Application in proceeding VID1364/2017 …and/or the decision to institute the current proceeding…

45 On 2 October 2018, Mr Lunt filed a list of documents and an accompanying affidavit. He discovered three emails from the MUA. He deposed that he purchased a Samsung mobile phone on 11 October 2017, but that around April 2018, he damaged his phone and required the screen to be replaced. During the repair, the technician restored the phone to factory settings. As a consequence, some messages and contacts were deleted. Mr Lunt deposed that, “it is possible, but I do not know, that there may have been messages between myself and the MUA which were deleted during the repair process”. He also deposed that he did not know whether such deleted documents were required to be discovered under the orders for discovery.

46 On 4 October 2018, Mr Lunt provided a supplementary list of documents discovering a further email and also referring to another email that was no longer in his control.

47 Mr Lunt provided a further affidavit filed on 7 December 2018 in response to a series of issues raised by VICT’s solicitors. He deposed that had not taken any steps to retrieve data from his Samsung phone because the technician had advised that the deleted messages and contacts could not be recovered. He deposed, to clarify his earlier affidavit, that all messages were deleted, but some contacts were not deleted. His partner had spoken to Vodafone and was advised that it was not possible to obtain messages or data from the phone, as it was a prepaid phone.

48 On 14 January 2019, the solicitors for VICT wrote to the solicitors for Mr Lunt alleging that there were inconsistencies between Mr Lunt’s affidavits, asking that Mr Lunt provide his Samsung phone for examination by an external consultant and that he provide a further affidavit. On 6 February 2019, the solicitors for Mr Lunt wrote to the solicitors for VICT saying, inter alia, that, “our client instructs that he is not able to provide the phone as it is no longer in his possession.”

49 On 15 February 2019, VICT filed an application in the Court seeking orders that the Samsung phone and any other mobile phone used by Mr Lunt in connection with certain telephone numbers be delivered up for search by an independent expert. On 6 March 2019, Mr Lunt filed a further affidavit deposing that:

Any messages between me and the MUA (“Possible Messages”) have not been in my control since they were deleted during the repair process undertaken by the repair technician. A further reason why any Possible Messages are now not in my control is that the Samsung itself no longer exists.

These statements were reiterated in the List of Documents attached to Mr Lunt’s affidavit.

50 On 12 March 2019, Registrar Gitsham ordered that VICT’s application filed on 15 February 2019 be dismissed.

51 In the present application, Mr Lunt was cross-examined about the fate of his Samsung mobile phone and about the contents of his affidavits dealing with the phone.

52 In cross-examination, Mr Lunt was asked about there having been very few documents discovered concerning his communications with the MUA. He agreed that he had communicated with Mr Tracey by telephone and also by text messages on occasions.

53 Mr Lunt agreed that he was aware from about March 2018 that VICT was alleging that he was doing the bidding of the MUA. He accepted that he would have been told by his solicitor that he had to provide documents and would have read the orders made on 18 September 2018.

54 Mr Lunt was cross-examined about the statement in his affidavit of 6 March 2019 that the Samsung phone, “no longer exists”:

And you don’t say in this affidavit – if you look at the description of documents that’s no longer in your possession, you say:

Further, the Samsung on which any possible messages were located no longer exists.

?---What does that mean?

I’ve just taken you to your own affidavit in part 3?---“Apart from my messages between me” – yes, that’s deleted by – when they – when it went for repairs, yes, or whatever was in there.

Look at paragraph – I’m sorry. Look at paragraph 3 of your affidavit, Mr Lunt?---Yes.

The second sentence:

A further reason why any possible messages are now not in my control is the Samsung itself no longer exists.

?---All the messages were – yes, okay. The phone is gone so the messages are gone too, if that’s what you’re saying.

…

So somehow between 7 December and 6 March the Samsung has dematerialised?---Well, somehow between 7 December and New Year’s Eve the phone has gone.

When – how did it stop existing, Mr Lunt?--- I got rid of it.

How exactly did you get rid of it?--- I just – I got rid of it. I turfed – smashed it and turfed it.

Why did you smash it and turf it?---What was on there that you want – reckon is so important that you think – you’re saying – you’re going to say here that I destroyed evidence between myself and the MUA, yes? Because I could never destroy that evidence – evidence if it existed. There’s another party involved that could have been – their phones could have been provided to prove that there was no communications between me and the MUA. But, no, you just want my phone.

I want to know why you smashed it and turfed it?--- Because there were things on that phone that I didn’t want anyone else to see.

You knew at that point – are you saying that you smashed it and turfed it between 7 December and New Year’s Eve?---Yes.

Well, that’s the first time that explanation has been provided, and in your letter of 6 February – I’m sorry, your letter from your solicitor, Ms Dawson-Field, of 6 February, you don’t say that you smashed it and turfed it, do you?---No.

In fact, you simply say it’s no longer in your possession?---Yes.

So do I take it in relation to every phone in relation to which – every phone which you used during the period late 2016 to early 2018, on your affidavit, the iPhone ended up in a council bin, the Nokia fell down a drain, and the Samsung has been smashed and turfed; is that your evidence?---It’s the evidence. It’s the truth.

(Underlining added.)

55 Under cross-examination, Mr Lunt denied that the reason Mr Tracey had forwarded him correspondence from Mr Lunt’s own solicitors on 25 January 2018 was because Mr Tracey was determining what Mr Lunt would do in his claim. He did not accept that he was merely doing the bidding of the MUA.

56 Mr Lunt gave evidence that he had gone to Mr Tracey because Mr O’Leary had asked him to sign a contract that provided for less pay than under “the EBA”. He said, “So that’s why I complained about the EBA to Will Tracey”. I infer that Mr Lunt’s references to “the EBA” were to the Enterprise Agreement.

57 Mr Lunt also gave evidence that before the termination of his employment he had called Mr Tracey and asked him to start looking into the Enterprise Agreement. A mutual friend had told Mr Lunt about how the Enterprise Agreement had originated (that it had been voted on by eight managerial employees). That appears to have been prior to the escalation of his first matter to the Commission in June 2017. Mr Lunt then gave priority to his disputes with VICT, including the dispute about the termination of his employment.

58 Mr Lunt denied that he never genuinely wanted to have the Enterprise Agreement declared invalid until Mr Tracey sent a letter to him on 25 January 2018 telling him that his solicitors had written to VICT’s solicitors saying that they wanted it declared invalid.

The Authorities

59 In Williams v Spautz (1992) 174 CLR 509, the plurality observed at 529 that the onus of satisfying a court that there is an abuse of process lies upon the party alleging it, and that the onus is “a heavy one”.

60 In Walton v Gardiner (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ held at 392–393:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness…The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

(Citations omitted.)

61 In Walton v Gardiner, the plurality continued at 394:

In her judgment in Jago v District Court of New South Wales (1989) 163 CLR 23 at 613, Gaudron J. stressed that the power of a court “to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.” Her Honour added the comment “that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand”.

(Citation added.)

62 In PNJ v The Queen (2009) 252 ALR 612; [2009] HCA 6, the High Court held at [3]:

It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:

(a) the invoking of a court’s processes for an illegitimate or collateral purpose;

(b) the use of the court’s procedures would be unjustifiably oppressive to a party; or

(c) the use of the court’s procedures would bring the administration of justice into disrepute.

…

(Citations omitted.)

63 In Kimberley Diamonds Ltd v Arnautovic (2017) 252 FCR 244, the Full Court said:

33 The power to permanently stay proceedings on the ground that they are an abuse of process should be exercised with caution and only in the most exceptional or extreme case. The onus of satisfying the court that there is an abuse of process lies upon the party alleging it, and that onus is a “heavy one”.

(Citations omitted.)

64 In Williams v Spautz, the plaintiff had instituted a number of proceedings, including for criminal defamation and conspiracy, against staff members of the University of Newcastle. By majority, the High Court held that the proceedings should be stayed on the basis that the plaintiff’s predominant purpose in bringing them was improper, since he sought to use them as a means of obtaining his reinstatement as a lecturer at the University. At 528, the majority cited, with approval, the statement of Lord Evershed MR in Re Majory [1955] Ch 600 at 623-624:

…that Court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening the proceedings will be liable to be held guilty of abusing the process of the Court and therefore disqualified from invoking the powers of the Court by proceedings he has abused.

65 In Williams v Spautz, Brennan J said at 532:

The purposes which legal proceedings are designed to serve are the protection or vindication of particular legal rights or immunities, the maintenance or affection of particular legal relationships, and the imposition or enforcement of particular legal penalties, liabilities and obligations. The means by which these purposes are achieved in a proceeding consist in the verdict which might be returned or the order which might be made in the proceeding, in the consequences that flow naturally from a verdict that might be returned or from an order that might be made (for example, the vindication of a plaintiff's reputation flowing from a verdict in a civil action for defamation) and in compromise of the claims made in the proceeding. The achievement of any of the purposes mentioned by any of the means mentioned is within the scope of the remedy for which a proceeding is designed.

66 Justice Brennan distinguished at 534–535 between a plaintiff’s purpose or intention in commencing a proceeding and the plaintiff’s motive for doing so, acknowledging that the distinction may be elusive in a given case. In Walsh v WorleyParsons Ltd (No 4) [2017] VSC 292 at [182], Cameron J neatly described “purpose” as the object sought to be achieved and “motive” as the subjective reasons for seeking to achieve it.

67 Justice Brennan went on to say at 535:

There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose — or motive — which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include — at least to any substantial extent — the obtaining of relief within the scope of the remedy…

68 It may be noted that in Walton v Gardiner, the plurality observed at 395 that there is nothing in the judgment of the majority in Williams v Spautz which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing.

69 In view of VICT’s allegation that Mr Lunt is being used as a “stalking horse” by the CFMMEU, the cases involving allegations of abuse of process in representative proceedings may have some analogy to the present case.

70 In Campbells Cash and Carry v Fostif Pty Ltd (2006) 229 CLR 386, the High Court decided that a proceeding brought with the support, and at the direction, of a litigation funder was not contrary to public policy, nor an abuse of process. The plurality held that:

[89] …[M]any people seek profit from assisting the processes of litigation. That a person who hazards funds in litigation wishes to control the litigation is hardly surprising. That someone seeks out those who may have a claim and excites litigation where otherwise there would be none could be condemned as contrary to public policy only if a general rule against the maintenance of actions were to be adopted. But that approach has long since been abandoned and the qualification of that rule (by reference to criteria of common interest) proved unsuccessful. And if the conduct is neither criminal nor tortious, what would be the ultimate foundation for a conclusion not only that maintaining an action (or maintaining an action in return for a share of the proceeds) should be considered as contrary to public policy, but also that the claim that is maintained should not be determined by the court whose jurisdiction otherwise is regularly invoked?

71 In Melbourne City Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709, the Victorian Court of Appeal was concerned with a case in which Melbourne City Investments Pty Ltd (MCI), as lead plaintiff, commenced a securities class action. The case was one of a series of litigation involving MCI. The respondent obtained a stay of the proceeding on the basis that the appellant’s predominant purpose was to obtain an improper collateral advantage, namely to earn income by obtaining orders that it be reimbursed for its time and effort in acting as a representative plaintiff and for funding the class action. Justices Osborn and Ferguson held:

[41] As the plurality observed in Williams v Spautz, it is essential to consider the proper purpose of the proceeding and then to ascertain whether the plaintiff’s predominant purpose in bringing the proceeding is to fulfil that proper purpose or to gain some other collateral advantage.

[42] Ordinarily, the proper purpose of a proceeding is for the plaintiff to obtain redress for a wrong done to it or to prevent a wrong; that is to obtain some form of substantive relief…

[43] When the proceeding is a representative action, articulating the proper purpose is less straightforward. Class actions create the possibility of laying the foundations for redressing wrongs done to a wide range of potential plaintiffs who, left to their own devices, may not have brought an action against the wrongdoer. In this context, group members are assisted by the involvement of lead plaintiffs, litigation funders and lawyers willing to work on a ‘no win, no fee’ basis. In particular, class actions are a vehicle for determining common questions affecting the group members.

[44] The proper purpose of a class action is therefore not limited to the determination of the lead plaintiff’s claim. It also involves the determination of the common questions for the benefit of group members.

[45] The courts have long recognised that commencement of an action is not an abuse of process if the predominant aim of the plaintiff is to settle the claim before it is determined. That applies equally as a proper purpose of a class action and reflects the reality that most representative actions settle.

[46] Consequently, in the class action sphere, the question of whether the proceeding has been brought for an improper purpose cannot be determined simply by asking whether the lead plaintiff would have brought the proceeding as a sole plaintiff. Nevertheless, the proper purpose of such an action looks to enforcing the substantive rights of the plaintiff and laying the groundwork for enforcing the substantive rights of the group members… As the judge found, it is not interested in pursuing the claim for recovery of the damages it alleges it has sustained or for a settlement in respect of that claim… Nor is MCI’s predominant purpose in bringing the proceeding to have the common questions determined for the benefit of group members or to settle the litigation for their benefit.

(Citations omitted.)

72 VICT places substantial reliance upon the judgment of Cameron J in Walsh v WorleyParsons Limited. The case involved a shareholder class action against WorleyParsons in which the lead plaintiff was Ms Walsh. MCI had previously commenced its own proceeding against WorleyParsons, but a judge held that MCI, as lead plaintiff, had no real interest in bringing the claim and lacked standing. Ms Walsh was recruited by a solicitor, Mr Elliott, to apply to be joined as a co-plaintiff, but MCI later agreed to the dismissal of the proceeding. Ms Walsh commenced a separate proceeding against WorleyParsons on the same day that the MCI proceeding was dismissed.

73 Justice Cameron found that MCI was the true moving party in the proceeding brought by Ms Walsh and that the proceeding was issued for an improper purpose. Her Honour held:

130 However I am not persuaded by Ms Walsh (nor do the authorities support Ms Walsh’s contention) that the court, in an abuse of process application, ought not look beyond the named plaintiff and assess the purpose of the “real party” or “moving party” for the purpose of deciding whether there should be a stay for an abuse.

131 Notwithstanding the abolition of the doctrine of maintenance and champerty, the court, as WorleyParsons rightly argued, retains control over its processes and it is part of the inherent jurisdiction of this court to stay proceedings in the case of an abuse to maintain public confidence in the court system.

74 Ms Walsh gave evidence that she wished to maintain her claim to vindicate her rights. Justice Cameron considered that Ms Walsh may or may not have a legitimate (albeit modest) claim to make. However, her Honour held:

155 It is clear from my observations that I do not regard this evidence as affecting my conclusion that the predominant purpose for instituting the proceeding was to enrich MCI or Mr Elliot.

156 The only sensible conclusion from the entirety of the facts is that Ms Walsh was the “frontman” for litigation that Mr Elliot could not pursue in the manner in which he first intended.

75 Justice Cameron went onto say:

171 In considering cases such as this, it falls upon the court to consider the entire matrix of facts and circumstances, or, as was referred to, as the “jigsaw”.

172 In my opinion the community expects that courts will act, and deliberate, commercially, leading to just decisions based on the application of law in a commercial environment.

173 I consider that, notwithstanding elements of Ms Walsh’s case which may perhaps be in her favour, Ms Walsh is not the real moving party or the active plaintiff in this proceeding. I will also do not consider that community standards the court to adopt a “tick box” approach to deciding cases of this nature.

174 The court, in my opinion, should not permit a form of litigation bracket creep where it is clear, from the facts, matters, circumstances, evidence and conduct of the matter, that that the litigation is being pursued for the predominant purpose of enriching the plaintiff’s legal team and the moving party of the litigation, in this case, MCI.

176 Despite that perhaps being so, it does not alter the fact that, as I have said, in my opinion, the inference can be drawn that MCI, and not Ms Walsh, is, in this case, the moving party, in plain language, the initiator, orchestrator and controller of this litigation.

76 Her Honour concluded:

233 MCI, as a moving party to this proceeding, initiated and maintained this proceeding for the purpose of sustaining a proceeding that MCI had failed to maintain in its own name. By doing so, MCI was able to continue its modus operandi in bringing proceedings against listed companies, as part of its business model, to obtain a financial gain for itself, its legal representative, when this proceeding was issued. Therefore this proceeding is tainted by predominant purpose that is irrelevant to the vindication of legal rights by Ms Walsh or the group members, notwithstanding that Ms Walsh may ultimately benefit from the litigation.

Consideration

77 VICT’s application for dismissal of the Current Proceeding is made under r 26.01 of the Federal Court Rules 2011 (Cth) and under the inherent power of the Court to summarily terminate a proceeding that is an abuse of process.

78 VICT’s case is that the CFMMEU recruited Mr Lunt to bring the Current Proceeding because the CFMMEU could not, or might not succeed, if the proceeding were brought in its own name. Its case is that the CFMMEU is the “real moving party”. VICT also submits that Mr Lunt did not commence the proceeding with the predominant purpose of vindicating his legal rights by having the Enterprise Agreement quashed and obtaining related declaratory and other relief.

79 Mr Lunt contends that he is the true moving party and that he genuinely seeks the relief claimed in the proceeding. He contends that he wants to have the Enterprise Agreement quashed because of his concerns about its conditions and the circumstances in which it was made.

80 Although the CFMMEU is a party to the Current Proceeding, it has filed a submitting appearance and has taken no active part in the proceeding. There is no direct evidence from the CFMMEU as to any actions that it or the MUA did or did not take in relation to the commencement of the Current Proceeding or the application for amendment of the First Proceeding.

81 VICT accepted that I should approach the application for dismissal on the assumption that Mr Lunt has a prima facie case in the Current Proceeding. That approach is consistent with the statement of the plurality in Williams v Spautz at 522 that the power to prevent an abuse of process exists even where the moving party has, or is assumed to have, a prima facie case. Further, that passage requires the rejection of Mr Lunt’s submission that the strength of his substantive case is a discretionary factor that would weigh against dismissal of the proceeding.

The credibility of Mr Lunt’s evidence

82 VICT submits that Mr Lunt’s evidence, including his evidence concerning his purpose in commencing the Current Proceeding, is not credible. It relies, in particular, upon his evidence concerning his destruction of his Samsung mobile phone.

83 Mr Lunt destroyed his Samsung mobile phone sometime between 7 and 31 December 2018. I had made an order on 18 September 2018 that Mr Lunt give discovery of documents, including text messages between him and officers of the MUA in relation to the purported invalidity of the Enterprise Agreement, the decision to seek to amend the originating application in the First Proceeding and the decision to institute the Current Proceeding. Mr Lunt was aware of the requirements of the order.

84 Under cross-examination, Mr Lunt admitted that he had communicated with Mr Tracey by text message on occasions. In his affidavit of 2 October 2018, he deposed that it was possible, but he did not know, that there may have been messages between him and the MUA that were deleted during the repair of his Samsung phone, and that he did not know whether such deleted documents were discoverable. In my opinion, Mr Lunt raised, and admitted to, at least the possibility that there were messages that had been stored on the Samsung phone that were discoverable.

85 Mr Lunt was aware that VICT was alleging that he was doing the bidding of the MUA by commencing the Current Proceeding. He was aware of VICT’s solicitors had taken issue with the adequacy of his discovery, including by asking about steps he had taken to retrieve data from his Samsung phone.

86 It was against that background that Mr Lunt “smashed and turfed” his Samsung phone in December 2018.

87 On 6 February 2019, in response to VICT’s solicitors request that Mr Lunt provide the Samsung phone for examination, Mr Lunt’s solicitors wrote saying that, “Our client instructs that he is not able to provide the phone as it is no longer in his possession”. I infer that Mr Lunt gave his solicitors instructions that the Samsung phone was no longer in his possession. Those instructions, and their communication to VICT’s solicitors, omitted a relevant and important fact—that Mr Lunt had destroyed the phone. That omission was disingenuous.

88 Later, in his affidavit of 6 March 2019, Mr Lunt deposed that, “The Samsung itself no longer exists”. Even at that stage, he was not willing to admit the whole of the true circumstances. He did not disclose that the Samsung phone no longer existed because he had destroyed it.

89 It was not until Mr Lunt was cross-examined that he admitted that he had destroyed the phone. Even then, the admission was made with a grudging reluctance consistent with the lack of frankness evident in his instructions to his solicitors and his subsequent affidavit. In my opinion, he dissembled when asked about his own statement in his most recent list of documents that the Samsung phone no longer existed. His initial response was, “What does that mean?”. He then indicated that the messages had been deleted when the phone was repaired. Finally, he admitted that he had “smashed it and turfed it”.

90 Mr Lunt was asked to explain why he had destroyed the phone:

Why did you smash it and turf it?---What was on there that you want – reckon is so important that you think – you’re saying – you’re going to say here that I destroyed evidence between myself and the MUA, yes? Because I could never destroy that evidence – evidence if it existed. There’s another party involved that could have been – their phones could have been provided to prove that there was no communications between me and the MUA. But, no, you just want my phone.

I want to know why you smashed it and turfed it?---Because there were things on that phone that I didn’t want anyone else to see.

91 Mr Lunt’s first answer was not responsive and, again, reveals a lack of frankness. I do not accept Mr Lunt’s evidence that, “I could never destroy that evidence—evidence if it existed”. Mr Lunt said that, “there were things on the phone that I didn’t want anyone else to see”, but did not explain what those things were, if not evidence. In circumstances where he admitted that he had sent text messages to Mr Tracey and that messages deleted from his phone may have been within the scope of the order for discovery, where he evidently understood that VICT’s solicitors might seek to have the phone examined and where he has provided no evidence of anything else he feared would be found, I infer that Mr Lunt destroyed the phone with the intention of destroying evidence. He attempted to conceal what he had done by telling half-truths in his instructions to his solicitors and in his affidavit of 6 March 2019.

92 VICT has not submitted that the proceeding should be dismissed on the basis of Mr Lunt’s deliberate destruction of evidence: cf Arrow Nominees Inc v Blackledge [2002] 2 BCLC 167 at [54]–[55]; Clark v State of New South Wales (2006) 66 NSWLR 640 at [104]; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [93]. However, there are inferences adverse to Mr Lunt available to be drawn as a result of his conduct.

93 In The Ophelia [1916] 2 AC 206, there was an issue as to whether a German ship, which was seized by a British ship and taken as a prize, had been operating as an auxiliary military hospital ship, or as a signalling ship for military purposes. When the ship was seized, the signal log was thrown overboard. Sir Arthur Channell, delivering the advice of Privy Council, described the doctrine of spoliation of documents as follows, at 229–230:

If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.

94 This passage from The Ophelia was cited with approval in Allen v Tobias (1958) 98 CLR 367 at 375.

95 In Research in Motion v Samsung Electronics Pty Ltd (2009) 176 FCR 66, Kenny J observed at [33]–[34] that the doctrine operates as an evidentiary presumption where it is shown that a party has deliberately destroyed documents with the intention of destroying evidence.

96 However, in Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181, Barwick CJ said at 198, that the use of the word “presumption” might put the matter too highly.

97 Whether or not there is a presumption, an inference is available that Mr Lunt destroyed his Samsung phone because he feared that production of text messages he had sent to Mr Tracey would tell against his case. I draw that inference. Further, Mr Lunt’s preparedness to conceal evidence tells against the credibility of the remainder of his evidence.

98 There are other aspects of Mr Lunt’s evidence that cause me to doubt its credibility. When he was cross-examined about the closeness of his connection with the MUA in relation to the proceedings, he tended to give answers that distanced the MUA from the proceedings, and which tended not to ring true.

99 For example, Mr Lunt gave various versions of how he came to be represented by his solicitors in the First Proceeding. At first he said he could not remember who suggested that he see those solicitors. He then indicated that Mr Tracey or Mr Edmonds would have told him to go to see the solicitors. Later, when asked how he came to choose his solicitors, he said that he had been with them before and that is how he chose them again. Later, he denied that Mr Tracey told him to go and see his solicitors, but said that he got a call from a solicitor introducing herself. Finally, he denied that it was Mr Tracey who had asked the solicitor to ring him. My impression was that Mr Lunt gave these varying accounts because he was concerned to distance the MUA from the proceeding.

100 Another example is that Mr Lunt said, “I can’t even remember receiving it”, in relation to an email sent to him by Mr Tracey on 14 December 2017. That email was in response to Mr Lunt informing Mr Tracey that he had requested his wage information from VICT. Mr Tracey’s reply indicated that a formal request for a time and wage inspection would be lodged and that, “This provides the basis to challenge the agreement and knock it over”. This was one of only five emails from the MUA that Mr Lunt discovered. It is not credible that he would not be able to remember receiving the email, particularly if, as he claims, it related to an issue of concern to him.

101 More generally, I was unimpressed with Mr Lunt’s demeanour under cross-examination. I formed an unfavourable view of the reliability and credibility of his evidence.

102 For these reasons, I am only prepared to accept the evidence of Mr Lunt where it is uncontested or where it is adequately corroborated.

Mr Lunt’s predominant purpose in commencing the Current Proceeding

103 Mr Lunt gave uncorroborated evidence that he genuinely seeks the relief sought in the Current Proceeding and that he instituted the proceeding because he wants the Court to declare the Enterprise Agreement invalid and quash it. He gave evidence that he is concerned that the conditions in the Enterprise Agreement are substandard and that the Enterprise Agreement was voted on by only eight managerial employees before any of the stevedoring workforce had been employed. Mr Lunt also deposes that he has been given support by other VICT employees. He deposes that he is driving and controlling the proceeding.

104 Mr Lunt also gave evidence that he had raised his concerns about the Enterprise Agreement with Mr Tracey in about mid-2017. Mr Tracey was to investigate Mr Lunt’s concerns about the Enterprise Agreement. Mr Lunt deposed that he then gave priority to his disputes with VICT including about his dismissal. Mr Lunt implies, but does not directly say, that he then turned his attention again to his concerns about the validity of the Enterprise Agreement, and then applied to amend his originating application.

105 The testimony of a person as to his or her intention or purpose in commencing a proceeding is admissible, but not conclusive: Williams v Spautz at 532, per Brennan J.

106 Mr Lunt’s evidence as to his purpose is uncorroborated. He has not, for example, called Mr Tracey to give evidence concerning any discussion in mid-2017 about Mr Lunt’s concerns about the validity of the Enterprise Agreement. Mr Lunt has not called evidence from other employees concerning their encouragement to continue the proceeding. I do not draw any adverse inference against Mr Lunt from his failure to call witnesses. But, the fact that he did not means that his evidence of purpose is uncorroborated.

107 Mr Lunt’s evidence that he left it with Mr Tracey to investigate the information about only eight managerial employees having voted upon the Enterprise Agreement has an air of unreality about it. The MUA was always aware that only eight employees had voted on the Enterprise Agreement. The MUA knew their names and that they were covered by the Stevedoring Industry Award. Those matters were expressly stated in the employer’s statutory declaration to the Commission, which the MUA had seen and agreed with. Further, the MUA stated that during bargaining for the proposed agreement, it had represented members whose employment would be covered. Therefore, it seems improbable that Mr Lunt told Mr Tracey anything that the MUA was not already aware of. Mr Lunt’s evidence was that he could not start a challenge to the Enterprise Agreement without Mr Tracey’s help, and he had asked for that help. He was asked, “And Mr Tracey did nothing about it in those six months, did he?”. Mr Lunt answered, “Obviously not.” Mr Lunt’s evidence to the effect that he had asked Mr Tracey to investigate the circumstances in which the Enterprise Agreement was made, and that he waited for six months for Mr Tracey to complete his investigation before doing something about the Enterprise Agreement, is not credible.

108 I do not accept Mr Lunt’s evidence concerning his purpose in commencing the Current Proceeding.

109 The available evidence is against the proposition that Mr Lunt brought the Current Proceeding seeking to have the Enterprise Agreement quashed for his own purposes. When Mr Lunt commenced the First Proceeding on 14 December 2017, he sought relief only in respect of VICT’s alleged failure to comply with the Enterprise Agreement and adverse action taken against him because he exercised his rights under the Enterprise Agreement. He sought to rely upon the Enterprise Agreement, rather than seeking to have it quashed. To the extent that Mr Lunt suggested that this was because he was giving priority to his dispute about his dismissal and underpayment, I do not accept that explanation. If he was concerned to bring proceedings to have the Enterprise Agreement quashed, it is likely that he would have sought that relief when the First Proceeding was commenced. The fact that he did not suggests that the only matters he was sufficiently concerned about to commence litigation were his alleged underpayment and his dismissal from his employment.

110 Mr Lunt’s evidence under cross-examination also tended to indicate that his concerns were with underpayment of his wages and his dismissal from his employment. When asked about what the First Proceeding was designed to achieve, his evidence was, “I just wanted my job back”.

111 I accept that Mr Lunt may have had some concerns about the Enterprise Agreement prior to his application to amend his originating application, but not that they were sufficient to cause him to want to commence proceedings to quash it. The MUA had indicated by November 2017 that it had concerns with the Enterprise Agreement and it would be unsurprising that Mr Lunt then adopted those concerns. However, I do not accept that those concerns were sufficient to motivate him to bring a challenge to the approval of the Enterprise Agreement. If he genuinely wanted to challenge the validity of the approval of the Enterprise Agreement, he would likely have taken the opportunity to do so with the commencement of the First Proceeding.

112 Mr Lunt obviously changed his position between the commencement of the First Proceeding and 24 January 2018 when his solicitors foreshadowed amendments to the originating application. Mr Lunt has not given direct evidence of what it was that caused him to give those instructions to his solicitors.

113 The letter from Mr Lunt’s solicitors to VICT’s solicitors of 24 January 2018 stated that, “Our client has instructed us that he wishes to amend his originating application”. On the following day, Mr Tracey forwarded that letter to Mr Lunt by email. It is unusual that Mr Tracey would be providing Mr Lunt with a letter written by Mr Lunt’s solicitors. Mr Lunt’s explanation for why that occurred was that, “Jess [his solicitor] couldn’t get hold of me in January.” When asked if it was possible that Mr Tracey was giving instructions to the solicitors because they could not get hold of Mr Lunt in January, he qualified his previous answer, saying “Well, not all of January…”. That belated qualification seems contrived. Mr Lunt denied that Mr Tracey was determining what Mr Lunt would do in his claim. Later, when it was put to him that Mr Tracey had instructed the solicitor to make the amendments, he answered, “No, I don’t know”. I am unwilling to draw an inference that Mr Lunt’s solicitors obtained instructions solely from Mr Tracey and not from Mr Lunt, but I infer that Mr Tracey was heavily involved in obtaining and communicating Mr Lunt’s instructions to apply for leave to amend.

114 VICT submits that an indication that Mr Lunt was doing the bidding of the CFMMEU is that the relief he seeks in this proceeding puts at risk the compensation he has sought in the First Proceeding for underpayment of wages under the terms of the Enterprise Agreement. VICT also submits that if the Enterprise Agreement is quashed, the vast majority of Mr Lunt’s claims for contravention of s 340 of the FW Act would fall away. VICT submits that the fact that Mr Lunt is acting against his own interests by bringing the Current Proceeding indicates that it is brought only in the interests of the MUA. In response, Mr Lunt submits that the quashing of the Enterprise Agreement would not have a critical effect upon the claims in the First Proceeding and that his rights acquired under the Enterprise Agreement would still be enforceable.

115 For the Commission’s approval of the Enterprise Agreement to be quashed, it would be necessary for Mr Lunt to demonstrate that the Commission’s approval was affected by jurisdictional error. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51], Gaudron and Gummow JJ described a decision affected by jurisdictional error as, “as no decision at all”. However, it was held by the Full Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at [40]–[42], [64] and by Gageler J in New South Wales v Kable (2013) 252 CLR 118 at [52] that a decision that is a “nullity” may still have legal consequences. Further, the proceeding would determine whether the approval was void, not the Enterprise Agreement itself. The parties did not develop their arguments as to the effect the quashing of the approval of the Enterprise Agreement would have upon legal rights acquired under that Agreement. It is a large question, and one that is undesirable to address in the absence of full argument. It is enough to conclude that I do not accept VICT’s argument that the quashing of the approval of the Enterprise Agreement would necessarily have a detrimental effect upon Mr Lunt’s claim in the First Proceeding.

116 My impression of Mr Lunt is that he values loyalty. That was demonstrated when he was wrongly accused of using a listening device but did not reveal who the real culprit was, even though it meant that costs were awarded against him and he was ultimately bankrupted. At that stage he was clearly unhappy about the MUA’s disloyalty to him, but he was ultimately “bailed out” by the MUA paying $40,000 on his behalf so that his bankruptcy could be annulled. In 2017, the MUA took up Mr Lunt’s cause against VICT in respect of his alleged underpayment and, later, his dismissal, by commencing proceedings in the Commission and then in the Court. Mr Lunt was assisted in the proceedings before the Commission by Mr Edmonds and Mr Tracey. Mr Lunt’s loyalty to the MUA was demonstrated by his attempts under cross-examination to distance Mr Tracey from involvement in the First Proceeding and by the destruction of text messages with Mr Tracey through the destruction of his own phone. That quality of loyalty in Mr Lunt is consistent, in my opinion, with a preparedness to bring proceedings to enable the MUA, and then the CFMMEU, to achieve the outcome they desire, namely the quashing of the approval of the Enterprise Agreement.

117 As I have said, I have drawn an inference that the text messages between Mr Lunt and Mr Tracey, if produced, would have told against Mr Lunt’s case.

118 In the section of these reasons that follows, I consider CFMMEU’s involvement with the Current Proceeding and conclude that the CFMMEU is the true moving party. That conclusion also informs my opinion as to Mr Lunt’s purpose in commencing the Current Proceeding.

119 I consider that Mr Lunt has not brought the Current Proceeding for the predominant purpose of his own desire to have the Enterprise Agreement set aside. Instead, he has brought the proceeding for the predominant purpose of allowing the CFMMEU to obtain relief which it could not, or might not, obtain if the proceeding were brought in its own name. In my opinion, Mr Lunt would not have brought the Current Proceeding except for that purpose. In reaching this conclusion, I have taken into account, as Mr Lunt’s counsel urged, the distinction between purpose and motivation.

Whether the CFMMEU is the true moving party

120 The amalgamation of the MUA with the CFMEU to become the CFMMEU occurred on 27 March 2018. That was after Mr Lunt filed his application in the First Proceeding for amendment to seek to quash the approval of the Enterprise Agreement and before he commenced the Current Proceeding. VICT contends that the relevant conduct and purposes of the MUA prior to the date of the amalgamation should be attributed to the CFMMEU. Mr Lunt has not made any submission to the contrary.

121 The MUA supported the approval by the Commission of the Enterprise Agreement in October 2016 and became a party to it. However, the MUA had become dissatisfied with the Enterprise Agreement by November 2017 and started to campaign against it. Despite that campaign, the MUA did not make any application to the Court for an order quashing the approval of the agreement. I infer that the MUA did not make any such application because it feared that a Court would refuse such relief on discretionary grounds. The grounds are: firstly, that the MUA had acquiesced in the approval; secondly, the MUA had not availed itself of a more natural avenue for relief, namely an application for permission to appeal to the Full Bench of the Commission; and thirdly, the MUA had delayed for over a year in challenging the approval. VICT relies upon R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, and Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at [283] for its submission that such factors are relevant to the exercise of the Court’s discretion to refuse relief.

122 Mr Lunt submits that it is speculative to say that a proceeding brought by the MUA would have failed on discretionary grounds. Mr Lunt points out that in the statutory declaration submitted by the MUA in support of the approval of the Enterprise Agreement, Mr Jacka agreed with the matters contained in Mr O’Leary’s statutory declaration only to the extent that such matters were within his knowledge. It may be observed that it is not apparent that there are relevant matters that were not within Mr Jacka’s knowledge.

123 However, it is unnecessary to determine whether or not any application brought by the MUA or the CFMMEU would or would not have failed. It is enough to determine that there is a substantial risk that such an application would have failed. It seems unlikely that a Court would quash and declare invalid the approval of the Enterprise Agreement upon the application of the MUA or the CFMMEU where that approval was supported by the MUA and then left unchallenged for over a year in circumstances where VICT, its employees and the MUA relied upon it, including in proceedings before the Commission.

124 There is no evidence as to any other reason why the MUA or CFMMEU did not themselves bring a proceeding for the approval of the Enterprise Agreement to be quashed. In the absence of such evidence, I infer that the reason was that they were not willing to take the risk that any such application would fail on discretionary grounds.

125 The MUA and the CFMMEU assumed responsibility for the payment of Mr Lunt’s legal costs of both the First Proceeding and the Current Proceeding. The payment of costs may be seen as merely consistent with the MUA supporting Mr Lunt as one of its members. However, as I have concluded that Mr Lunt was not sufficiently concerned about the Enterprise Agreement to commence proceedings for the approval be quashed, the payment of the costs of the application for the amendment of the First Proceeding and the Current Proceedings is more consistent with the MUA, and now the CFMMEU, paying for Mr Lunt to seek the relief that they were not prepared to seek in their own names.

126 The MUA’s heavy involvement in the application for leave to amend in the First Proceeding can be seen from correspondence leading up to that application. On 14 December 2017, Mr Tracey sent an email to Mr Lunt referring to a time and wages inspection and saying, “This provides the basis to challenge the agreement and knock it over. Now the real games begin”. That email was sent in response to an email to Mr Tracey informing him that Mr Lunt had asked VICT to provide details of his shifts and hours.

127 As I have said, on 24 January 2018, Mr Lunt’s solicitors wrote to VICT’s solicitors advising of their instructions to “seek amendment of the originating application”. On the following day, Mr Tracey forwarded the solicitor’s letter to Mr Lunt by email. I have inferred that Mr Tracey was heavily involved in obtaining and communicating Mr Lunt’s instructions to apply for leave to amend.

128 The article placed on the MUA’s webpage on 19 February 2018 stated that, “MUA notifies VICT in Federal Court that VICT Agreement must be overturned and declared invalid”. The effect of the article was that the MUA claimed Mr Lunt’s application for leave to amend as its own application to overturn the Enterprise Agreement. I draw the inference that the claim made by the MUA was true, and that the application was effectively the CFMMEU’s own application.

129 I am satisfied that the MUA organised, orchestrated, and funded the application for leave to amend in the First Proceeding and, after that application failed, the CFMMEU took over that role in relation to the Current Proceeding. I am satisfied that Mr Lunt allowed himself to be used as the “front man” to allow the MUA and the CFMMEU to effectively conduct proceedings that they were not willing to bring in their own names.

Conclusion

130 In my opinion, the Current Proceeding is an abuse of process. That is so because it has each of the characteristics described in PNJ v The Queen, namely, the invoking of the Court’s process for an illegitimate and collateral purpose and that the use of the Court procedures would be unjustifiably oppressive to a party and would bring the administration of justice into disrepute. In reaching that conclusion, I have borne in mind that the onus of proof upon VICT is a heavy one.

131 I am satisfied that Mr Lunt has not brought the Current Proceeding for the predominant purpose of vindicating his own legal rights. Instead, Mr Lunt has brought the proceeding for the predominant purpose of enabling the CFMMEU to obtain relief which it was unlikely to obtain if the proceeding were brought in its own name. In my opinion, that is an illegitimate and collateral purpose.

132 It is true that a representative proceeding may be brought not only for the benefit of the lead applicant, but the benefit of others in the class. In Melbourne City Investments Pty Ltd v Myer Holdings Ltd, Ferguson and Osborn JJ held that, “the proper purpose of such an action looks to enforcing the substantive rights of the plaintiff and laying the groundwork for enforcing the substantive rights of the group members.” However, I have concluded that Mr Lunt’s predominant purpose in bringing the Current Proceeding did not encompass enforcing his own substantive rights. Mr Lunt has brought the proceeding for the predominant purpose of enforcing the claim of the CFMMEU, but his case has been conducted on the basis that he has brought the proceeding for his own benefit, and not to represent the CFMMEU.

133 I also find that the CFMMEU is the true moving party. It is the true moving party because it has used Mr Lunt to seek the relief that it fears it would not obtain if it brought the proceeding in its own name. Through the device of the CFMMEU using Mr Lunt as a “front man”, VICT has been deprived of the opportunity to defend the proceeding on the basis that the MUA acquiesced in the approval that is now sought to be quashed, failed to exercise its right to apply for permission to appeal and delayed in bringing the proceeding in circumstances where VICT, its employees and the MUA were acting under the terms of the Enterprise Agreement. In my opinion, the CFMMEU’s use of the Court’s procedures to bring the proceeding in Mr Lunt’s name is unjustifiably oppressive to VICT.

134 Further, it would bring the administration of justice into disrepute if the CFMMEU were permitted, by using the device of having a “front man”, to bring the proceeding to challenge the approval of the Enterprise Agreement while avoiding scrutiny of its acquiescence to that approval.

135 Mr Lunt submits that the power to dismiss a proceeding for abuse of process is discretionary, relying upon Kermani v Westpac Banking Corporation (2012) 36 VR 130 at [93]. Even if that is so, the circumstances in which a proceeding that has been found to be an abuse of process would be allowed to proceed must be limited. I have indicated that I do not consider Mr Lunt’s prospects of success to be a relevant factor. Nor do I consider that there is any other factor that weighs significantly against the dismissal of the proceeding.

136 The Current Proceeding must be dismissed on the basis that it is an abuse of process.

I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:

Dated: 2 July 2019

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