Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch
[2024] NSWCA 24
Court of Appeal (NSW)|2024-02-06|Before: Mitchelmore JA, Adamson JA, Walton J
[1988] HCA 5
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Ali v Minister for Home Affairs (2020) 278 FCR 627[2020] FCAFC 109
Carr v Western Australia (2007) 232 CLR 138[2007] HCA 47
Hunter Resources Ltd v Melville (1988) 164 CLR 234[1988] HCA 5
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1
[2012] HCA 46
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
[1998] HCA 28
QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442
Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
[1944] HCA 42
Vanmeld Pty Ltd v Fairfield City Council [2000] NSWCA 51
Judgment (19 paragraphs)
[1]
Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109
Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47
Hunter Resources Ltd v Melville (1988) 164 CLR 234; [1988] HCA 5
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442; (2013) 67 MVR 322
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42
Vanmeld Pty Ltd v Fairfield City Council [2000] NSWCA 51; (2000) 106 LGERA 454
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2012
Category: Principal judgment
Parties: Aurizon Operations Limited (Appellant)
Australian Rail Tram and Bus Industry Union NSW Branch (First Respondent)
The Office of the National Rail Safety Regulator (Second Respondent/Cross Appellant)
Representation: Counsel:
I Taylor SC / M Pulsford (Appellant)
M Gibian SC / P Boncardo (First Respondent)
J Phillips SC (Second Respondent/Cross Appellant)
[2]
Solicitors:
Corrs Chambers Westgarth (Appellant)
Rail Tram and Bus Union NSW Branch (First Respondent)
Sparke Helmore (Second Respondent/Cross-Appellant)
File Number(s): 2023/179595
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law Division
Citation: Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484
Date of Decision: 9 May 2023 (judgment); 11 May 2023 (orders)
Before: Walton J
File Number(s): 2022/134679
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 29 September 2021, Aurizon Operations Limited (Aurizon) applied to The Office of the National Rail Safety Regulator (the Regulator) to vary its railway operations accreditation to add "crew cars" for a proposed new freight service to transport mineral sands from the east coast of Australia to the west coast. The purpose of the crew cars is to enable its crew to sleep, cook and take breaks whilst remaining on the train for the segment of the route between Broken Hill and Port Augusta in South Australia where there is a paucity of available accommodation.
On 11 February 2022, Peter Doggett, the Regulator's delegate (the Delegate), granted the variation (the Variation), as he was, relevantly, satisfied that Aurizon had fulfilled its obligation under s 99(3)(a) of the Rail Safety National Law (NSW) (the National Law), to, so far as is reasonably practicable, consult with:
"(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator's railway premises or with the operator's rolling stock; and
…
(iii) any union representing any of the persons referred to in subparagraph (i)".
Aurizon consulted with prospective train drivers who were to operate the new route and who would be the ones using the crew cars. It did not consult with persons who worked either at Aurizon's railway premises or with their rolling stock.
On 10 May 2022, the Australian Rail Tram and Bus Industry Union (the Union) challenged the Variation on the basis of alleged non-compliance with s 99(3)(a) of the National Law. Walton J (the primary judge) set aside the Variation on a ground for which none of the parties had contended: that s 99(3)(a)(i) takes effect as a deeming provision and deems all persons who carry out railway operations, or work on, or at, the operator's railway premises, or with the operator's rolling stock as likely to be affected by the Variation.
On appeal, Aurizon argued that the primary judge's construction of s 99(3)(a)(i) was incorrect. The Regulator cross-appealed the primary judge's decision to the same effect.
The Union filed a Notice of Contention, claiming that the order setting aside the Variation ought stand as the Variation was invalid on the following bases (not found by the primary judge):
(1) s 99(3)(a)(iii) of the National Law required Aurizon to consult with the Union as it was entitled to represent the crew, although none of the proposed crew was a member of the Union (ground 1(a) of the Notice of Contention); and
(2) the Delegate failed to consider whether there were persons who worked at Aurizon's railway premises or with its rolling stock who were also likely to be affected by the change to Aurizon's safety management system (ground 1(b) of the Notice of Contention).
The Court (Adamson JA, Mitchelmore JA and Griffiths AJA agreeing) upheld Aurizon's appeal and the Regulator's cross-appeal for the following reasons:
Ground 1 of appeal - construction of s 99(3)(a)(i)
(1) Section 99(3)(a)(i) of the National Law did not operate as a deeming provision. Aurizon was required to consult only those persons who belonged to any one or more of the three categories in the section and whom Mr Doggett was satisfied were likely to be affected by the Variation: [64] (Adamson JA), [1] (Mitchelmore JA), [87] (Griffiths AJA).
Ground 1(a) of the Notice of Contention - construction of s 99(3)(a)(iii)
(2) Section 99(3)(a)(iii) should be given its plain meaning. A union cannot be said to be "representing" persons who are not its members: [70] (Adamson JA), [1] (Mitchelmore JA), [87] (Griffiths AJA).
Ground 1(b) of the Notice of Contention - consideration under s 99(3)(a)(i):
(3) The Union bore the onus of persuading the Court that the Delegate, in finding that the potential crew members were persons likely to be affected by the Variation, failed to consider whether other persons were also likely to be affected. The Union failed to tender all the documents referred to by the Delegate in his reasons. Thus the Union failed to discharge its onus of proof: [77]-[78] (Adamson JA), [1] (Mitchelmore JA), [87] (Griffiths AJA).
[5]
JUDGMENT
MITCHELMORE JA: I agree with Adamson JA.
ADAMSON JA: On 29 September 2021, the appellant, Aurizon Operations Limited (Aurizon), applied to the second respondent, The Office of the National Rail Safety Regulator (the Regulator), to vary its accreditation to add "crew cars" (passenger rail cars fitted with sleeping, cooking and other amenities so that crew can rest and take breaks while remaining on the train) (J [39]).
Aurizon intended to use crew cars to give its crew breaks for the sparsely populated Broken Hill-Port Augusta (South Australia) section of its route from Newcastle to Kwinana (Western Australia) via Broken Hill, rather than have the crew stay at a depot or hotel over this section. The purpose of the new route was to transport mineral sands from New South Wales across Australia to Kwinana, a bulk cargo port within the Port of Fremantle.
On 11 February 2022, Peter Doggett, the delegate of the Regulator (the Delegate) granted the variation sought (the Variation). The Delegate noted in his reasons for decision:
"The leased crew cars would be part of the train … for the whole east/west trip, but would only be used by the four crew to rest and sleep on the Broken Hill - Port Augusta, South Australia portion of the trip through remote and sparsely populated areas where it was not practical for the crew to stay at a depot or hotel. It would be necessary for the crew to have rest and sleep breaks for the whole trip in accordance with legally prescribed fatigue management rules."
The Delegate found that Aurizon had fulfilled the applicable consultation requirements (set out below) by consulting with prospective train drivers who were to operate Aurizon's new national rail route.
By summons filed on 10 May 2022, the first respondent, Australian Rail Tram and Bus Industry Union (the Union), challenged the validity of the Variation. The amended summons filed on 23 June 2022 contained six grounds (A1, 1A, 1B, 1C, 2B and 5). On 11 May 2023, Walton J (the primary judge) set aside the Variation on a basis which did not correspond with any of the grounds or submissions which had been put by the parties. His Honour found that grounds A1, 2B and 5 were not made out and that it was not necessary to decide grounds 1A and 1C. His Honour did not expressly address ground 1B in terms or as argued.
[6]
The regulatory framework
All references to legislation in these reasons, unless otherwise indicated, are references to the Rail Safety National Law (NSW) (the National Law).
The Second Reading Speech to the Rail Safety (Adoption of National Law) Bill 2012 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2012 at 16071-16075) referred to the importance of the creation of a single national rail safety regulator, which would enable rail operators to obtain a single certificate of accreditation to operate nationally and to provide for a national standard of rules with respect to safety management systems.
The main purpose of the National Law is "to provide for safe railway operations in Australia": s 3(1). Its objects include "to provide for the effective management of safety risks associated with railway operations" (s 3(2)(d)); and "to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operation" (s 3(2)(j)). Its "guiding principles" include "to assist rail transport operators to achieve productivity by the provision of a national scheme for rail safety" (s 3(3)(a)); and "to operate the national scheme in a timely, transparent, accountable, efficient, effective, consistent and fair way" (s 3(3)(b)).
Section 4 contains definitions (some of which will be referred to below). Section 5 provides that Sch 2 applies. Schedule 2 sets out the principles of interpretation applicable to the National Law, which include, in cl 7, that preference ought be given to an interpretation which "will best achieve the purpose or object of this Law".
Part 3 of the National Law is entitled "Regulation of rail safety". Section 46 provides that a person on whom a duty to ensure safety is imposed by the National Law is required to eliminate risks to safety so far as reasonably practicable and, if not, to minimise those risks so far as reasonably practicable.
Section 50 provides that certain persons and entities are to have a "shared responsibility" for rail safety. These persons include rail transport operators, rail safety workers, the Regulator and the public: s 50(1). Section 50(3) provides that the persons and classes of persons referred to in s 50(1) are to participate and be consulted on measures to manage risks to safety associated with rail operations. Section 50(4) provides that "[m]anaging risks associated with the carrying out of rail infrastructure operations or rolling stock operations is the responsibility of the person best able to control those risks." Unions are not referred to in s 50.
[7]
The factual background
The facts, which were largely agreed or undisputed, can be briefly summarised.
Aurizon is an accredited rail transport operator under the National Law, being accredited as both a rail infrastructure manager and rolling stock operator. It is one of Australia's largest rolling stock operators and operates in the order of 700 locomotives which travel, on average, 22 million kilometres per year (J [12]).
As referred to above, on 29 September 2021 Aurizon applied for a variation of its accreditation to have crew cars added to Sch 2 Item 2 of its accreditation (which dealt with rolling stock): J [38]. The stated purpose of the application was "to support the delivery of a new service between east coast and west coast in early 2022": J [38]. The crew cars were to be used on the segment of the route between Broken Hill and Port Augusta because of the paucity of accommodation in that area.
Crew cars are used extensively across Queensland, South Australia, the Northern Territory and Western Australia. Aurizon had previously (under a separate accreditation) operated crew cars. The Delegate, in his reasons for the Variation, described the proposed variation as: "effectively a minor change in [Aurizon's] overall operations" and said, further, "[n]o change was required to the kind of railway operations to be undertaken, but rather just the type of rolling stock used (by adding crew cars only)".
In its application, Aurizon was obliged to identify any changes or enhancements to its safety management system resulting from the proposed variation to its accreditation. It responded (J [38]):
"Initial assessment has identified that rolling stock will be managed in accordance with existing Safety Management System content. This will be subject to further review as more detailed assessments are undertaken."
In answer to the question on the form, "Have you followed your organisation's change management process?", Aurizon answered, "In development of the design of the new service with customers Aurizon is in the process of drafting its Change Management and Implementation Plan". In answer to the question, "Have you consulted with stakeholders", Aurizon answered, "This will be undertaken once stakeholders are identified in risk assessments and the development of change plans".
Following lodgement of the application, the Regulator asked Aurizon to provide safety management system documents "which sufficiently covered design standards of rolling stock to 'address human factors for crew cars'": J [44]. In its response Aurizon included evidence of its consultation on 17 January 2022 with prospective train drivers who were to operate its new national route: J [51]-[52]. Aurizon envisaged that it would obtain the crew to operate the new route through a labour hire arrangement with Trojan Recruitment Group Pty Ltd: J [50]. The Union did not challenge the sufficiency of Aurizon's consultation with crew.
[8]
The grounds in the amended summons which are relevant to the grounds of appeal
As referred to above, the only grounds in the amended summons which are relevant in this Court are the following:
1C Further and in the alternate to ground 1B above, Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by failing to take into account a relevant consideration as to whether Aurizon Operations Limited had consulted with persons working on or at Aurizon Operations Limited's railway premises or with its rolling stock the subject of the variation application.
[The primary judge did not find it necessary to determine this ground.]
5 Further and in the alternative to grounds 2B and 3 above, Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by misapprehending the nature of the opinion he was required to form under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law (NSW) by misconstruing the requirement under s 99(3)(a)(iii) as limited to consultation with unions who have as members amongst persons referred to in s 99(3)(a)(i).
[The primary judge found that this ground was not made out. It is the subject of the Union's notice of contention.]
For completeness, I also include ground 1B of the amended summons although it was not determined by the primary judge and is not relied on by the Union in its notice of contention to support the judgment. Ground 1B is as follows:
Peter Doggett made an error of law on the face of the record and/or committed jurisdictional error by misapprehending the nature of the opinion he was required to form under ss 65(c)(iii) and 69(1)(a) of the Rail Safety National Law (NSW) by misconstruing the requirement under s 99(3)(a)(i) of the Rail Safety National Law (NSW) as limited to consultation with persons who carry out railway operations, rather than as extending to persons who work on or at the operator's railway premises or with the operator's rolling stock.
Aurizon appeals on the following grounds:
"1 The primary judge:
a. misconstrued s 99(3)(a)(i) of the Rail Safety National Law (NSW) 2012 (National Law) as deeming 'persons who carry out ... railway operations or work on or at the operator's railway premises or with the operator's rolling stock' as 'persons likely to be affected by the safety management system or its review or variation' and therefore required to be consulted by the rail transport operator so far as is reasonably practicable: J, [173]-[178];
b. accordingly erred in quashing the decision of the Regulator on 11 February 2022 on the basis that the decision maker had misconstrued s 99(3)(a)(i) of the National Law and fallen into jurisdictional error: J, [189], [193]-[194], [215].
2 The primary judge erred in failing to dismiss Grounds 1A and 1C of the Amended Summons filed 23 June 2023: J, [213]-[214]."
[9]
The first ground of appeal: alleged error in construing the consultation requirements in s 99(3)(a)
The question for the primary judge was whether the Delegate's decision that Aurizon had met the consultation requirements in s 99(3)(a) conformed with the National Law. The parties agreed that this matter was a subjective jurisdictional fact: see the discussion in Ali v Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 at [42] (Collier, Reeves and Derrington JJ) and QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442; (2013) 67 MVR 322 at [36] (Basten JA, Ward JA and Young AJA agreeing, citing The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ); [1944] HCA 42).
As the Delegate's satisfaction was based on an interpretation of s 99(3)(a), the primary judge was, and this Court is, both entitled and obliged to construe the statute to ascertain whether the Delegate's construction of s 99 was correct or otherwise. If the terms of the relevant legislation had been misconstrued, the Delegate's decision would be invalid: The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd at 432.
The key provision for the first ground of appeal is s 99(3)(a), which requires an applicant for a variation to an accreditation to consult with:
"(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator's railway premises or with the operator's rolling stock; and
…
(iii) any union representing any of the persons referred to in subparagraph (i) …"
Aurizon and the Regulator submitted that s 99(3)(a)(i) relevantly required Aurizon to consult only with those persons who carry out the railway operations which were the subject of the application or work on or at its premises or with its rolling stock who were "likely to be affected by the safety management system or its review or variation". The Delegate made the Variation on the basis of this construction.
In support of ground 1B, the Union argued that the Delegate committed jurisdictional error by misapprehending the nature of the opinion he was required to form under s 65(c)(iii) and s 69(1)(a), by misconstruing the requirement as limited to consultation with persons who carry out railway operations rather than as extending to persons who work on or at their operator's railway premises or with the operator's rolling stock.
[10]
Textual considerations
The surest guide to the legislative intention is the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). An aspect of this principle is that a court, when construing a statutory provision, must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
A principal textual difficulty with the primary judge's interpretation is that it disregards the opening words of s 99(3)(a)(i) ("persons likely to be affected by the safety management system or its review or variation") which, on his Honour's interpretation, are otiose since the same result would be achieved if they had been omitted entirely. The interpretation for which Aurizon and the Regulator contended would give these words an operative effect. Further, the words "likely to be affected" invite a factual inquiry which is antithetical to the outcome being the result of a deeming provision.
While it is a matter for the legislature to choose the words with which it wishes to create a deeming provision, the word "being" would not ordinarily belong to the language of legal fiction. Indeed, "deeming" (prescribing how something is to be regarded) would appear to be the opposite of "being".
The provision is to be read in the context of the National Law as a whole. There are other provisions in the National Law which use words which are generally accepted to have a deeming effect. Examples include s 24(1) (where a "member is taken to continue to be a member" during a vacancy); s 30(1) (where "[a] decision is taken to have been made at a meeting"); s 216(6) (where the Regulator has not notified an applicant of a decision, "the Regulator is taken to have made a decision to affirm the reviewable decision"); s 263(5) (certain legislation applies for the purposes of the National Law "as if the Minister responsible for a government agency were the Minister in relation to a body established by this Law"); and s 264(3)(c) (a "code … has effect as if it were a regulation made under this Law"). These provisions provide a strong textual indication that the word "being" in s 99(3)(a)(i) does not mean "are taken to be" or "are deemed to be".
[11]
The context and purpose of the provision
Aurizon submitted that the primary judge's construction of s 99(3)(a)(i) would result in a far wider consultation process than would be apt to promote the purpose of the National Law as a whole (to safeguard and promote rail safety) or the purpose of s 99(3)(a)(i) itself (to ensure that those persons likely to be affected by, relevantly, a variation of a safety management system are consulted in order that their contributions and reactions, which could be expected to reflect their self-interest in the safety of the relevant operation, works and infrastructure, can be taken into account). It further submitted that the purpose of the legislation would not be advanced by requiring Aurizon to consult with persons who are not likely to be affected by the Variation. Aurizon submitted that to construe the provision as requiring general consultation with all persons falling within the categories in s 99(3)(a)(i) without the limitation that such persons are likely to be affected by the Variation would tend to "convert the exercise into a bureaucratic, box-ticking exercise unlikely to generate meaningful responses".
The Union submitted that wider consultation was better than narrow consultation as it more effectively promoted the objects of the National Law, such as the safe operation of rail transport and promoting consultation and interaction. Accordingly, it argued that the primary judge's construction was to be preferred since it better advanced the purposes of the National Law.
There are sometimes difficulties in endeavouring to construe legislation by reference to its objects and purposes. Typically, the stated objects pull in different directions and the ascertainment of where a line may be drawn depends on the text rather than a weighing up of the objects. It is not for a court to construe a statute in a way which furthers its objects to the greatest extent possible, since this may not have been the legislative intention: see Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5] (Gleeson CJ). Notwithstanding these difficulties, it is hard to conceive of a reason why the legislature would have intended an applicant such as Aurizon to be required to consult its entire workforce about crew cars when only a small percentage of its workforce may ever have occasion to use them. Such a blanket approach would not appear to promote rail safety.
[12]
Conclusion
For the reasons given above, the text of the National Law is sufficient to indicate that the Delegate's construction of s 99(3)(a)(i) was correct and the only persons who needed to be consulted were those persons who belonged to any one or more of the three categories in the section and whom the Delegate was satisfied were likely to be affected by the Variation. Thus, the primary judge erred in his construction of s 99(3)(a)(i). The primary judge ought to have held that ground 1B of the amended summons was not made out and ought not to have determined the matter on the basis found by his Honour. For these reasons, the appeal and the cross-appeal ought be allowed.
[13]
The second ground of appeal: alleged erroneous failure to dismiss grounds 1A and 1C of the amended summons
The primary judge decided that it was unnecessary to determine grounds 1A and 1C of the amended summons as his Honour had already decided that the Variation was invalid on the basis of his own construction of s 99(3)(a)(i). Ground 1A is no longer pressed and therefore does not need to be addressed. As referred to above, the Union does not separately press ground 1C except in so far as it is, in substance, the same as its proposed second ground of contention. For these reasons, it is not necessary to address ground 1A or ground 1C of the amended summons and the second ground of appeal does not need to be addressed.
[14]
The first ground in the notice of contention (which relates to ground 5 of the amended summons)
Ground 5 of the amended summons was rejected by the primary judge who found that the words in s 99(3)(a)(iii) "any union representing any of the persons referred to in subparagraph (i)" did not mean "any union entitled to represent any of the persons referred to in subparagraph (i)". The primary judge gave detailed and extensive reasons for arriving at this conclusion, the principal of which was that the statutory words were clear and that, had the legislature intended to require consultation with any union entitled to represent any person likely to be affected by a variation, it would have said so.
In this respect, Aurizon sought to defend the construction preferred by the primary judge for the reasons given by the primary judge.
The Union submitted that it would be unwieldy and impractical to require the operator (and the Delegate) to identify whether any of the persons who fell within s 99(3)(a)(i) were members of a union. It submitted, first, that individual employees were under no obligation to disclose to their employer whether they were or were not union members and that they may be reluctant to make such a disclosure through fear of reprisal. Secondly, it submitted that the Delegate would have no way of ascertaining the union membership status of those falling within s 99(3)(a)(i). Thirdly, it submitted that there could be some difficulty in ascertaining whether a person was a union member in circumstances where the person had been a member of a union but had not paid the requisite dues to date and was therefore not a financial member.
Aurizon submitted that the only other section in the National Law which specifically dealt with unions was s 249, which made provision for codes of practice. In that section, the expression "relevant union" was used. I accept Aurizon's submission that "relevant union" is different from "union representing" certain persons since a union might be "relevant" if at least some of its members do the work which is covered by the code of practice or if persons who perform such work are entitled to be members of the union. The wording of s 249 indicates that something different is intended in s 99(3)(a)(iii) from the broader concept of "relevant union" in s 249.
I am not persuaded that any of the postulated difficulties raised on behalf of the Union are sufficient to alter the plain meaning of the text of s 99(3)(a)(iii). Had the legislature meant "any union entitled to represent", it would have said so. As it said "any union representing", it can be taken to have intended only a union of which at least one of the persons covered by s 99(3)(a)(i) (as I have construed it) was a member. This construction, which I consider to be plain from the text, is also consistent with the definition of "union" in the legislation in s 4 (referred to above) as an organisation to protect and further the interests of its members. I do not accept that a union can be said to be representing persons who have chosen not to become its members.
[15]
The proposed amendment to add the second ground to the notice of contention
Aurizon opposed the proposed amendment to the Union's notice of contention. It argued that the proposed amendment invited a wider inquiry into the Delegate's considerations when determining Aurizon's application for variation than was required by grounds 1B or 1C of the amended summons. Accordingly, it contended that, had this ground been relied on at first instance, it would have tendered the whole of the Delegate's reasons, including attachments, to demonstrate that the Delegate had given consideration to the persons who were, and who were not, likely to be affected by the Variation. It submitted that it would accordingly be prejudiced if the amendment were allowed. Aurizon contended that the Union ought to be held to the way it conducted the case before the primary judge and ought not be permitted to raise new points on appeal.
I do not consider the alleged prejudice to be suffered by Aurizon constitutes real prejudice. The reason for my conclusion is that, as the Union alleged that the Delegate had not considered whether persons other than the proposed crew were likely to be affected by the Variation, the Union bore the onus of establishing the Delegate's alleged failure. Thus, any paucity of evidence would act to the detriment of the Union and not to the detriment of Aurizon.
There is much to be said for Aurizon's submission that the Union ought be held to the way in which it conducted its case before the primary judge. Parties are generally bound by the way in which litigation has been conducted on their behalf: Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46] (Gleeson CJ, Heydon and Crennan JJ). However, as this Court heard full argument from the parties as to the proposed additional ground, the matter can be disposed of briefly. For the reasons which follow, the Union is bound by its forensic decisions as to what evidence it adduced at first instance. In these circumstances, I consider that leave to add the proposed amendment to the notice of contention should be granted. It is accordingly not necessary to address whether ground 1C of the amended summons was, in substance, the same as the proposed second ground of the notice of contention.
In substance, the Union submitted that it ought be inferred from the Delegate's reasons that although he turned his mind to the crew who would be using the crew cars (and accepted that they were required to be, and had been, consulted) he failed to consider whether anyone else was a person "likely to be affected" by the Variation. The Union submitted that this inference ought be drawn because there was no express finding by the Delegate as to the persons who were not affected by the Variation. Thus, the Union contended, that the Delegate had not turned his mind to other persons within the three categories in s 99(3)(a)(i) who were likely to be affected by the Variation.
[16]
Costs
Aurizon submitted that costs ought follow the event in accordance with the general rule: UCPR, r 42.1. Aurizon did not wish to be heard as to whether, if it (and the Regulator) succeeded, the Union ought pay not only Aurizon's costs but also the Regulator's costs. The Union submitted that, if it was successful, costs ought follow the event but that if it were unsuccessful, it ought not be ordered to pay the costs of either Aurizon or the Regulator as the proceedings were properly to be characterised as public interest litigation. In the alternative, the Union submitted that, if the Court decided that it ought pay Aurizon's costs, it ought not be ordered to pay the Regulator's costs as the Regulator was in the same interest as Aurizon, substantially adopted Aurizon's submissions as to the correct interpretation of the National Law and could have filed a submitting appearance.
The Regulator submitted that if the cross-appeal were allowed, the Union ought be ordered to pay its costs in accordance with the general rule.
I am not persuaded that there is any reason why the Union ought not be required to pay Aurizon's costs of the appeal. Although the appeal concerned the construction of the National Law, this is insufficient to make it "public interest litigation". The Union had its own interests in maintaining the primary judge's construction and pursued those interests in this appeal by adopting the primary judge's construction (although it had not contended for it at first instance).
I am not persuaded that the Union ought be ordered to pay the Regulator's costs. A regulator which has made a decision which is the subject of challenge would ordinarily be expected to file a submitting appearance. Although a regulator is entitled to be heard on questions of statutory construction, all of the points taken by the Regulator in its cross-appeal were amply covered by Aurizon's appeal. Aurizon's detailed written submissions were adopted by the Regulator in its oral submissions. While the Regulator was entitled to file a cross-appeal and entitled to be heard in support of the orders it sought, it is not, in my view, entitled to its costs since it was in the same interest as Aurizon on questions of statutory construction and had no reason to consider that Aurizon would not put the submissions comprehensively and competently, as indeed occurred.
[17]
Further matters
As is apparent from the reasons given above, the primary judge set aside the Variation on a basis which was not argued by the Union and was, therefore, not the subject of submissions in the hearing. Such an approach is undesirable for two reasons. First, it could constitute a denial of procedural fairness to the parties which, of itself, rendered the decision susceptible to challenge on that basis (although the point was not taken by Aurizon on appeal and therefore did not fall for determination in the present case).
Secondly, the primary judge deprived himself of the benefit of argument on the question. An apparent solution which may strike its progenitor in chambers as attractive may become less so when exposed to the rigours of the adversarial system of argument. Judges obtain assistance from counsel in coming to the correct result. Any flaws in matters put by judges to counsel can be identified in the course of oral argument, with a view to errors being avoided and the preferable result being reached.
If a judicial officer, who has reserved his or her decision, considers that there is a significant matter which has not been addressed, the correct course is for the judicial officer's associate to contact the parties and invite them to make submissions, whether orally or in writing, on that additional matter. This approach is not only sufficient to accord procedural fairness to the parties but it also ensures that the judicial officer has the opportunity of obtaining assistance on the question from those with a professional responsibility to provide it. It also has the benefit of avoiding the engendering of a grievance that the case has been decided on a basis which was not put.
[18]
Conclusion
For the reasons given above, I propose the following orders:
1. Grant leave to the first respondent to amend its notice of contention in accordance with the draft amended notice of contention referred to in paragraph 1 of the orders sought in the notice of motion filed on 28 November 2023.
2. Allow the appeal.
3. Allow the cross-appeal.
4. Set aside the orders made by Walton J on 11 May 2023 and, in lieu thereof, make the following orders:
1. Dismiss the amended summons filed on 23 June 2022.
2. Order the plaintiff to pay the first defendant's costs.
1. Order the first respondent to pay the appellant's costs of the appeal.
2. Make no order as to the costs of the cross-appeal.
GRIFFITHS AJA: I agree with Adamson JA.
[19]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 16 February 2024
Aurizon appeals and the Regulator cross-appeals against the primary judge's order setting aside the Variation. They contend that none of the grounds in the amended summons was made out and that the primary judge ought to have so found. The Union no longer presses ground 1A of the amended summons which, accordingly, need not be addressed. Its notice of contention filed on 5 September 2023 relies on ground 5 of the amended summons (which was rejected by the primary judge) and says as follows:
"The first respondent contends that in the event that ground 1 of the Notice of Appeal and/or ground 1 of the Notice of Cross-Appeal are upheld, that the order in the nature of certiorari quashing the decision of Peter Doggett of 11 February 2022 purportedly pursuant to s 69 of the Rail Safety National Law (NSW) to grant a variation to the accreditation of the appellant should be upheld as the decision of Mr Doggett to approve the appellant s variation to its accreditation was infected by an error of law on the face of the record and/or jurisdictional error by reason of:
a. Mr Doggett misapprehending the nature of the opinion he was required to form under ss 65(c)(iii) and 69(1)(a) of the National Law by misconstruing the requirement under s 99(3)(a)(iii) of the National Law as limited to consultation with unions who have as members amongst the persons referred to in s 99(3)(a)(i)."
By notice of motion filed on 28 November 2023, the Union seeks leave to add the following ground to its notice of contention (the proposed amendment):
"b. Mr Doggett failing to apply himself to the question presented by ss 65(c)(iii) and 99(3)(a)(i) and/or misunderstanding the nature of the opinion he was required to form under ss 65(c)(iii) and 99(3)(a)(i) by failing to ask or consider whether there were persons likely affected by the variation to Aurizon's SMS [safety management system] who either worked at its railway premises or with its rolling stock."
The Union submitted that the further ground was, in substance, the same as ground 1C of the amended summons. It accepted that, if the Court did not grant leave to the Union to rely on the second ground of contention, ground 1C did not need to be addressed. The parties agreed that the Court ought address the amendment application in its reasons for decision and need not determine the application in the course of the hearing of the appeal.
I note for completeness that the Union did not attempt to reagitate ground 1B of its amended summons in its notice of contention by relying on the submissions it put to the primary judge (which were not addressed by the primary judge).
The word "union" is defined in s 4 to mean:
"(a) an employee organisation that is registered, or taken to be registered, under the Fair Work (Registered Organisations) Act 2009 of the Commonwealth; or
(b) an association of employees or independent contractors (or both) that is registered or recognised as such an association (however described) under a State or Territory industrial law."
Of present relevance, s 218(1)(b) of the Industrial Relations Act 1996 (NSW) provides that the Industrial Registrar is to grant the application (of a union) for registration if and only if "the organisation is an organisation for furthering or protecting the interests of its members". Section 19(1)(a)(ii) of the Fair Work (Registered Organisations) Act 2009 (Cth) is to similar effect.
Section 52(1) imposes a duty on a rail transport operator to "ensure, so far as is reasonably practicable, the safety of the operator's railway operations." Section 4(1) defines a rail transport operator as a rail infrastructure manager, a rolling stock operator or a person who is both of these.
The National Law requires a person carrying out any "railway operations" to be an accredited rail transport operator: s 62. Section 4(1) defines "railway operations" broadly. The term includes the use, operation and movement of rolling stock. In order to obtain accreditation an operator must demonstrate to the Regulator that it has the competence and capacity to manage risks to safety associated with the railway operations for which accreditation is sought: s 65(b).
An accredited person may apply to the Regulator to vary its accreditation: s 68(1). If the Regulator is satisfied as to the matters in ss 65 and 66 the Regulator is obliged, within the relevant period, to notify the applicant that the accreditation has been varied, with or without conditions or restrictions: s 69(1)(a). If the Regulator is not so satisfied, the Regulator is to notify the applicant that the application has been refused: s 69(1)(b). Relevantly, s 65(c)(iii) requires that the Regulator be satisfied "that the applicant has met the consultation requirements set out in Division 6 in relation to the applicant's safety management system".
Division 6 of Part 3 is entitled "Safety Management". Subdivision 1, which is entitled, "Safety management systems", includes s 99. Section 99(1) provides that a "rail transport operator must have a safety management system for railway operations in respect of which the operator is required to be accredited" and specifies the formal requirements for that system. The system must be regularly reviewed (s 102) and the Regulator has the power to direct an amendment to a safety system (s 104). Failure to comply with or implement a safety management system is an offence: s 101.
If a proposed variation to a rail transport operator's accreditation involves variations to its safety management system, s 99(3) imposes consultation obligations on the rail transport operator in relation to the variation of the safety management system. The text of s 99(3)(a) is of particular significance because the primary judge found that the Delegate was in error in construing the nature and extent of the consultation requirements in s 99(3)(a) and, thus, that the Delegate was in error in finding that Aurizon had complied with these requirements.
Section 99(3) relevantly provides:
"(3) Before establishing a safety management system in relation to railway operations in respect of which a rail transport operator is required to be accredited or reviewing or varying any such safety management system, the operator must, so far as is reasonably practicable -
(a) consult with -
(i) persons likely to be affected by the safety management system or its review or variation, being persons who carry out those railway operations or work on or at the operator's railway premises or with the operator's rolling stock; and
(ii) health and safety representatives (within the meaning of the occupational health and safety legislation) representing any of the persons referred to in subparagraph (i); and
(iii) any union representing any of the persons referred to in subparagraph (i); and
…
(b) provide the persons consulted with a reasonable opportunity to make submissions on the proposed safety management system; and
(c) advise those persons in a timely manner of the outcome of the consultation process."
Section 249(1) provides that the responsible Ministers may approve, vary or cancel a code of practice for the purposes of the National Law. The Ministers may only approve, vary or cancel a code of practice where the process has involved consultation among each participating jurisdiction, rail transport operators and any relevant employer organisation and rail safety workers and "any relevant union".
Reference was also made to the Rail Safety National Law National Regulations. It is not necessary to set out the regulations referred to as I do not consider that they are capable of providing assistance in interpreting the National Law: see, for example, Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1; [2012] HCA 46 at [56] (French CJ) and Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 244 (Mason CJ and Gaudron J); [1988] HCA 5.
On the basis that none of the proposed crew was a member of the Union, Aurizon did not consult the Union: J [66], [69]. It did, however, commit to consulting the Union before any Union members became involved in any operations which involved the use of a crew car: J [199].
The Delegate was satisfied that Aurizon had complied with s 99(3)(a)(i) because, by consulting with proposed crew members, it had consulted with those persons who were likely to be affected by the variation to its safety management system. As none of the proposed crew members was a member of the Union, the Delegate found that s 99(3)(a)(iii) did not require Aurizon to consult with the Union because it did not "represent" any of those persons.
As previously stated, on 11 February 2022, the Delegate varied Aurizon's accreditation by inserting "(10) Crew Cars" into Item 2 of Sch 2: J [70]. Following the Variation, the Union sought reasons for the Delegate's decision pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.9, which were provided.
The Regulator's cross-appeal, although expressed differently, is to similar effect.
Before the primary judge and in this Court, the parties agreed that the only part of the Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) which was relevant was its power to grant relief in respect of jurisdictional errors, as opposed to errors of law on the face of the record. Accordingly, it is not necessary for this Court to consider whether either the Regulator or the Delegate constitutes a "tribunal" within the meaning of s 69(4) of the Supreme Court Act and thus whether the Delegate's reasons form part of the record.
The primary judge did not address or determine ground 1B of the amended summons. Instead, his Honour found for the Union on a basis which had not been put. The primary judge found that s 99(3)(a)(i) required Aurizon to consult with all persons who carry out its railway operations or work on or at its premises or with its rolling stock irrespective of whether they were actually "likely to be affected by the safety management system or its review or variation" because they were deemed to be likely to be so affected.
Aurizon and the Regulator accepted that, if the primary judge's interpretation were (contrary to their submissions in support of the appeal and the cross-appeal respectively) held to be correct, the Variation was correctly set aside.
The primary judge's reasons for interpreting s 99(3)(a)(i) in this way were as follows:
"173 … I accept the Union's submission that Mr Doggett misconstrued s 99(3)(a)(i) of the National Law by determining that persons who "work on or at the operator's railway premises or with the operator's rolling stock" were not "likely to be affected by a variation of the SMS". Section 99(3)(a)(i) clearly and expressly contemplates that all of the persons referred to therein (see [125]) are "likely to be affected" by a proposed variation to a safety management system and are therefore required to be consulted prior to the variation of a safety management system.
174 In this respect, s 99(3)(a)(i) may be said to operate as a deeming provision, by use of the word "being", in that although (presumably as was considered by Mr Doggett) certain persons specified in s 99(3)(a)(i) may not in fact be affected personally or directly by a particular safety management system, the provision establishes that they are likely to be, as a form of "statutory fiction", in order to give effect to the purpose and objects of the National Law, namely to "provide for safe railway operations in Australia" (s 3(1)) and "to promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations" (s 3(2)(j)). (On the matter of deeming provisions and statutory fictions, see, generally, Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641; [1974] HCA 4 at 655 per Gibbs J; Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at [115]; Plaintiff B9/2014 v Minister for Immigration and Border Protection (2014) 227 FCR 494; [2014] FCAFC 178 at [21]-[23]. I do not consider that there is relevantly any distinction between the word "being" - as appears in s 99(3)(a)(i) - and the words "is taken to be" or similar formulations.
175 Seen in that light, this construction finds favour with cl 7 of Sch 2 to the National Law, which prefers "the interpretation that will best achieve the purpose and object of this Law" over any other interpretation. It is axiomatic that consulting with all of the workers specified in s 99(3)(a)(i) will "promote the effective involvement of relevant stakeholders, through consultation and cooperation, in the provision of safe railway operations" (s 3(2)(j) of the National Law).
176 To accept the contrary construction advanced by Aurizon would be essentially to excise the words "work on or at the operator's railway premises or with the operator's rolling stock" from s 99(3)(a)(i), which is entirely untenable having regard to the overarching purpose of the National Law, which is itself to be achieved in part by the promotion of effective consultation with relevant stakeholders. One would be hard-pressed to think of more relevant stakeholders than the persons working at an operator's premises or with its rolling stock, who are the immediate colleagues of the "persons who carry out those railway operations". The construction favoured by Aurizon is also untenable by reference to the Consolidated Media principle (at [39]), whereby the text must fundamentally inform the construction of the statutory provision.
177 The preceding discussion may appear to suggest that s 99(3)(a)(i) gives rise to a "constructional choice", to be determined by reference to context and purpose, in light of ambiguity in its terms. However, that is not the case. Rather, Aurizon's contended construction proceeds on the fundamental misapprehension of s 99(3)(a)(i) as providing a non-exhaustive list of "persons likely to be affected" (as would ordinarily be indicated by the use of the word "including"), whereas the provision expressly provides that "persons who work on or at the operator's railway premises or with the operator's rolling stock" are, as mentioned above, essentially deemed to be "persons likely to be affected" by the proposed variation. This is indicated by the deliberate use of the word "being", which casts a wider net of consultation with rail workers directly.
178 My conclusion on the construction of s 99(3)(a)(i) is fortified by an important aspect of the provision's immediate context, namely s 99(3)(a)(ii) and (iii). As was discussed at length in relation to ground 5, those sub-sections mandate consultation with health and safety representatives and/or any union representing "any of the persons referred to in subparagraph 99(3)(a)(i)" (emphasis added). It is therefore clear that those provisions treat the persons referred to in subpar (i) as "likely to be affected by a variation of the SMS" and, thus, required to be consulted. Indeed, it would be a very unusual reading of the National Law if representatives of persons who "work on or at the operator's railway premises or with the operator's rolling stock" were required to be consulted, with that consultation requirement not extending to the workers themselves."
In substance, the primary judge found that the effect of the word "being" in s 99(3)(a)(i) was that all the persons who fell within the descriptions that followed were deemed to be "persons likely to be affected by the safety management system or its review or variation." The Union sought to defend the primary judge's reasoning in this Court.
For the following reasons, I consider the primary judge's construction of s 99(3)(a)(i) to be erroneous. Further, I consider that his Honour ought to have found that ground 1B, as put by the Union, was not made out.
The Union argued that the use of the word "being" in the definition of a "level crossing" in s 4 supported the primary judge's construction that the word "being" in s 99(3)(a)(i) has a deeming effect.
Section 4 provides that "level crossing":
"includes each of the following areas -
…
(c) a pedestrian crossing -
(i) being an area where a footpath or shared path crosses a railway (other than a tramway) at substantially the same level, whether or not there is a level crossing sign on the path at all or any of the entrances to the area; or
(ii) being an area where a footpath or shared path crosses a tramway at substantially the same level and that has a level crossing sign on the path at each entrance to the area;"
(Emphasis added.)
I reject this submission. The task of statutory interpretation must have regard to the context in which particular words appear in order to ascertain their meaning. The word "being" is used to different effect in the two sections. In s 4 it is used in its definitional sense (which does not involve deeming) and in s 99(3)(a)(i) it is used to indicate that the persons likely to be affected must belong to at least one of the three categories listed and calls for a probabilistic inquiry to ascertain what persons are "likely to be affected".
It is also significant that the categories of persons referred to in s 99(3)(a)(i) are referred to disjunctively since "or" is used between categories rather than "and". If all of the people in all three of the categories had to be consulted in all cases (which would be the case if the effect of the provision was that they were all deemed to be "persons likely to be affected"), the word "and" would be apposite and the word "or" inconsistent with this intention. The use of "or" is consistent with s 99(3)(a)(i) requiring a factual inquiry to identify which persons in each of the three categories (if any) are likely to be affected.
This Court has said that it is only in narrow circumstances that a court ought read "and" as "or", or "or" as "and". The only circumstances identified are, first, where there is an obvious mistake; or, second, where a list of items is joined by "and" and the list is plainly a list of alternatives: Vanmeld Pty Ltd v Fairfield City Council [2000] NSWCA 51; (2000) 106 LGERA 454 at [22]-[23] (Stein JA, Heydon JA and Rolfe AJA agreeing). Neither of these circumstances arise here.
For these reasons, the orders made by the primary judge cannot be supported on the basis set out in the first ground in the notice of contention.
The Union's submission, that a negative inference ought be drawn that the Delegate had not addressed something which was not specifically mentioned, does not take account of the principles which are to be applied when considering the reasons of an administrative decision-maker. Such reasons are "meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.
However, there is a more fundamental objection to the Union's second ground of contention. As referred to above, the Union bore the onus of persuading this Court that the Delegate, in finding that the potential crew members were persons likely to be affected by the Variation, failed to consider whether other persons were also likely to be affected. The material tendered in evidence before the primary judge did not include all the documents referred to by the Delegate in his reasons. The evidence in the Court below did not, for example, include a copy of Aurizon's safety management system. Where the Court does not have all of those documents, it could not infer that the Delegate did not consider other persons or categories of people who might be persons likely to be affected and decide that those persons were actually not likely to be affected.
Thus the Union, by choosing not to put all of the documents referred to in the reasons, including the attachments, into evidence has failed to discharge its onus of proof. For these reasons, the second ground of the notice of contention has not been made out.