Case: General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235 
Outcome: referred to
More recently in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Branson J had occasion to consider the operation of s 298V in the context of an alleged breach of s 298K(1) of the Act, in the course of which consideration was given to the operation or otherwise of the s 298V presumption. Her Honour referred at [57] to the decision of the High Court in General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235, where in the judgment of Mason J (as he then was) at 241 (with whose reasons Stephen and Jacobs JJ agreed), the following appeared in relation to the precursor to s 298V, namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth): 'Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the sub-section, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which in my view is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.' Moreover in his dissenting reasons, Barwick CJ observed at 238 as follows: 'In my opinion, before resort can be had to this onus provision, there must be before the Court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.' On the footing of the approach taken in General Motors and duly adopted by Branson J in Maritime Union at [57], ANSTO submitted that '[i]t is not sufficient for [Mr Lever] to arbitrarily allege any one of the 15 prohibited reasons listed in s 298L(1)' and that '[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]', and further that 'there is no suggestion in the evidence or in the submissions of [Mr Lever] that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion at or about the time of the alleged conduct'. It was pointed out that '[m]ost employees of [ANSTO] were entitled to the benefit of an industrial instrument', and further that '[Mr Lever's] hypothesis that this reason actuated [ANSTO] is arbitrary and fanciful'. 131 As to any adverse operation of s 298V in relation to Dr Doherty's decision sought to be impugned in the context of the first series of breaches , it was the further threshold case of ANSTO that 's 298V does not allow the presumption of a fanciful or arbitrary reason', the onus being placed on Mr Lever to establish 'some rational basis for a particular prohibited reason to be alleged'. The dicta I have earlier cited from General Motors-Holden in the context of the High Court appeal proceedings lends support in principle to that ANSTO assertion. It would not be sufficient for an applicant for relief merely to allege in an arbitrary way any one or more of the fifteen prohibited reasons appearing under s 298L, most of which reasons I have earlier exemplified specifically by reference to the text of that comprehensive statutory provision.