Committee) Inc v NRMA Insurance Limited

REASONS FOR JUDGMENT (No 2) (Application for leave to intervene or to appear as amicus curiae) 1 Bartholomew Parrino ("Mr Parrino") moves for "leave to intervene for the purposes of presenting argument to assist the Court", alternatively, for "leave to intervene as amicus curiae". As well, he seeks "[o]rders in accordance with the substantive orders of the applicant", that is, final orders, but Mr Parrino offers no suggestion as to the basis for the making of such orders on a motion, even a motion which is brought by an applicant in a substantive proceeding (cf O 20 r 1 of the Federal Court Rules, which is not suggested to be applicable). Mr Parrino cannot obtain final orders on his motion and I will say no more of that matter. 2 The applicant in the substantive proceeding ("AARA") neither supports nor opposes Mr Parrino's motion for leave. The respondent in the substantive proceeding ("NRMA") opposes the granting of leave. 3 In the substantive proceeding, AARA, an association of automotive repairers, seeks injunctive relief based on an alleged contravention by the respondent ("NRMA") of subs 47(7) of the Trade Practices Act 1974 (Cth). AARA alleges that NRMA refuses to supply certain services to its insureds unless they have their motor vehicles repaired by repairers who are "preferred" by NRMA. AARA's members are repairers who are not on NRMA's list of preferred repairers. Further details of the nature of the substantive application can be found in a judgment I gave in the proceeding on 20 December 2002 ([2002] FCA 68). 4 Order 6 r 17 of the Federal Court Rules is as follows: '(1) The Court, at any stage of a proceeding, on its own motion or on the application of a person, may give leave to a person (the intervener) to intervene in the proceeding, on the terms and conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court. (2) In deciding whether to give leave, the Court must have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as they wish; and (c) any other matter that the Court considers relevant. (3) The role of the intervener is solely to assist the Court in its task of resolving the issues raised by the parties. (4) For subrule (3), assisting the Court includes suggesting witnesses to be called by the Court, but does not include filing pleadings, leading evidence or examining witnesses. (5) When giving leave, the Court must specify theform of assistance to be given by the intervener and the manner of participation of the intervener, and, in particular, must specify: (a) the matters that the intervener may raise; and (b) whether the intervener's submissions are to be oral, in writing, or both.' 5 In support of the motion, Ms Boss, who appears for Mr Parrino, has read an affidavit by him and affidavits by seven individuals who support him, for the limited purpose of showing evidence Mr Parrino wishes to adduce if granted leave (the procedure of reading the affidavits themselves into evidence, albeit for that limited purpose, was not appropriate, but no more need be said of this). In substance the affidavits are directed to showing that "consumers", in the form of insureds, suffer detriment in one way or another because of NRMA's "Preferred Repairers' Scheme". The eight deponents purport to provide evidence that NRMA encouraged them to deal with one of its preferred repairers, rather than a different repairer who had been their first choice, and threatened to deny them certain benefits if they did not do so. The affidavits also go to establish difficulties they experienced in dealing with NRMA's preferred repairer who was engaged to effect the repairs. 6 In summary, Mr Parrino wishes to intervene, or to appear as amicus curiae, in order to prove by evidence, and draw the Court's attention to, a "consumer" interest, which, Ms Boss suggests, may not adequately appear if the proceeding is allowed to continue only as between AARA and NRMA. 7 There are several difficulties with the motion. In the first place, it would be open to AARA to seek to lead the evidence referred to, if that evidence is otherwise admissible. If it is not admissible, it could not be led by AARA or Mr Parrino. Mr Levet of counsel for AARA states that he does not intend to read any of the eight affidavits. It may be that he has taken the view that their contents are not relevant to any issue in the proceeding. I can imagine that evidence of detriment of a relevant kind to the interests of insureds could be relevant to the question of the relief appropriate to be granted, if that issue is reached, but, so far as appears, such evidence would be more appropriately led by AARA. For this reason alone, leave to intervene should be refused: cf O 6 pars 17(2)(a) and (b) of the Federal Court Rules set out in [4] above. 8 Secondly, O 6 subrr 17(3) and (4) of the Federal Court Rules state that the role of an intervener is solely to assist the Court in its task of resolving the issues raised by the parties, and does not include the leading of evidence or examining of witnesses. In substance, if Mr Parrino were granted leave to intervene, he would be entitled only to make submissions. It follows that the rules do not provide for the granting of the leave for the purpose identified by Mr Parrino; cf Wilson on behalf of the Bandjalang People v Minister for Land & Water Conservation (NSW) (2003) 198 ALR 238 at [37]-[38]. 9 Is Mr Parrino's alternative application for leave to appear as amicus curiaeto be approached differently? Under general law principles, an intervener became a party to the proceeding "with the benefits and burdens of that status": United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 ("US Tobacco") at 534. Under general law principles, an intervener can "appeal, tender evidence and participate fully in all aspects of the argument": Corporate Affairs Commission v Bradley (Commonwealth Intervener) [1974] 1 NSWLR 391 at 396 per Hutley JA, with whom Reynolds JA and Glass JA agreed, quoted with approval in US Tobacco at 534 - 535. But the assistance of an amicus curiae is accepted only on the footing that the person is willing to offer the court a submission on law or relevant fact, which will assist the court in a way in which the court would not otherwise have been assisted: Levy v State of Victoria (1997) 189 CLR 579 at 604 per Brennan CJ. In particular, an amicus curiaeis not entitled to lead evidence: Bropho v Tickner (1993) 40 FCR 165 at 172-173; Kabushiki Kaisha Sony Computer Entertainment v Stevens (2001) 116 FCR 490 at [14] - [16]. Order 6 r 17 of the Federal Court Rules, therefore, seems to have the effect of assimilating the position of an intervener to that of an amicus curiae. Be this as it may,Mr Parrino is clearly in no better position if his motion is treated as one for leave to appear as amicus curiaerather than as one for leave to intervene. 10 I mentioned to Ms Boss the possibility of her referring the matters which she seeks to ventilate to the Australian Competition and Consumer Commission. It is conceivable, although I do not mean to suggest likely, that the Commission may wish to seek leave to intervene. The Commission is experienced in considering the question whether there are aspects of the consumer interest to which the Court's attention could and should be drawn, but which might not be adequately highlighted by litigating parties. 11 For the reasons given above, the motion should be dismissed. 12 The ordinary practice is that the unsuccessful party is ordered to pay the successful party's costs. Ms Boss submits that the ordinary practice is displaced and replaced by an ordinary practice that the unsuccessful party is not ordered to pay the successful party's costs when the unsuccessful party has litigated in the public interest. This is not so: see, for example, Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 per Black CJ and French J at [18]-[25]. The fact that the unsuccessful party has litigated in the public interest is but one consideration relevant to the exercise of the discretionary power to order costs: Oshlack v Richmond River Council (1998) 193 CLR 72. In any event, the members of AARA are no doubt moved by the financial interest they have in the outcome of the proceeding; cf Qantas Airways Limited v Cameron (No 3) (1996) 68 FCR 387, per Lindgren and Lehane JJ at 389-390. 13 NRMA has been put to the cost of reading the notice of motion and the eight affidavits and preparing a short written submission in reply, as well as appearing on two occasions on the motion. I note, in passing, however, that on both occasions NRMA had to appear in any event because the proceeding was listed for directions. Of course the attendance of counsel for NRMA was so much longer, particularly today, because of the hearing of the motion. 14 The orders of the Court are that: 1. The application by Bartholomew Parrino for leave to intervene, or alternatively, for leave to appear as amicus curiae, is refused.