[1] The Construction, Forestry, Mining and Energy Union (the CFMEU) has made application, pursuant to s.285A(1) of the Workplace Relations Act 1996 (Cth) (the WR Act), for a permit to enter and inspect premises for Mr Joseph McDonald. Mr McDonald is an officer of the CFMEU.

· an application by Woodside Energy Limited (Woodside) to intervene in the proceedings; and

· with the admissibility of certain evidence which is said to relate to the CFMEU's application.

[3] By way of background Mr McDonald has previously held a s.285A(1) permit but that permit was revoked by a Full Bench of the Commission on 19 July 2001.[1] The circumstances which led the Commission to revoke Mr McDonald's permit were a little unusual. The revocation application was made by Mr Lee John Melville, an inspector appointed under s.84(2) of the WR Act and an employee of the Office of the Employment Advocate (the OEA).

[4] The parties reached an agreed position in respect of the disposition of Mr Melville's application. In essence the parties proposed that Mr McDonald's permit be revoked, by consent, on the basis of certain `agreed facts'. Further, as part of the agreement between the parties, Mr McDonald gave the following undertakings:

"(a) the respondent undertakes not to apply for any further permit under Division 11A Part IX for a period of 12 months.

(b) upon any application by the respondent after the expiry of the 12 month period stated in (a) above:

(i) the Industrial Registrar be given notice of the Statement of Agreed Facts tendered pursuant to (2) below; and

(ii) the Employment Advocate be given notice of the application.

(iii) the respondent not oppose the Employment Advocate having the opportunity to make submissions to the Industrial Registrar on the application."[2]

[5] The `agreed facts' referred to in Mr McDonald's undertakings were in the following terms:

"1. The facts which ground this application are based upon the conduct of the Respondent occurring on a variety of building sites over an extended period of time. Whereas the Statement of Facts and Contentions followed the order of the grounds enumerated in the Application, this Statement follows an essentially chronological order.

2. The category of conduct occurring first in time was at the Graham Farmer Freeway site in East Perth, upon which work was being conducted by Thiess Contractors. By way of important background, the Respondent had, on 7 December 1998, given a formal undertaking to the District Court of Western Australia that he would not engage in a variety of conduct. That conduct, notably, encompassed the two grounds of section 285C of the Workplace Relations Act 1996 (`the Act'). The undertaking was unlimited in time, however on 20 July 1999 the Respondent entered the Graham Farmer Freeway site premises, not only without having given the requisite notice for the purposes of s.285D, but also at a prohibited time, namely at a time other than the relevant employees' meal time or other breaks.

3. That conduct occurring at the Graham Farmer Freeway site was the subject of contempt of court proceedings brought in the Supreme Court of Western Australia and heard by his Honour Scott J on 15-17 May 2000. In a judgment dated 15 June 2000 (Zaknich v McDonald [2000] WASC 151) Scott J held that a contempt of court had indeed been committed and, by way of penalty, ordered that the Respondent be fined the sum of $2,000, with costs. His Honour expressly noted that the Respondent had acted `in blatant disregard of his undertaking' and, further, that an undertaking given to a superior court is a matter of importance to the administration of justice.

4. The next batch of conduct occurred over the period 13-15 September 1999 as a building site known as The Grange, at Subiaco Square in inner-western suburban Perth. On 13 September 1999 the Respondent entered the premises in circumstances where the requisite notice had not been given and, further, where the Construction Manager of the occupier, a Mr Vince Corica sought to discuss with the Respondent the stated concerns of the latter regarding employment at both premises, yet the Respondent was not prepared to enter into such discussions with Mr Corica.

5. Two days later on 15 September 1999 at The Grange site the Respondent again entered the premises without giving the requisite notice.

6. In between those two dates of the relevant breaches at The Grange site, the Respondent entered the Belmont Cinema Complex site in circumstances where he had not given the requisite notice and, further, proceeded to hold discussions with the relevant employees at a time prohibited by reason of s.285C(2).

7. On 16 September 1999, the Respondent entered the site of the construction of York Apartments in Fremantle and held discussions with employees at a time that was prohibited by reason of s.285C(2).

8. The next batch of conduct occurred in October-November 1999 at the Mounts Bay Village Stage III Project site on the outskirts of the Perth Central Business District. On 18 October 1999 the Respondent entered the premises in circumstances where the requisite notice had not been given prior to the entry on site.

9. On 5 November 1999 the Respondent again entered those premises in circumstances where the requisite notice had not been given.

10. On 8 November 1999 the Respondent entered the premises in circumstances where the requisite notice had not been given prior to the entry onto the premises.

11. Some months later, on 4 July 2000, the Respondent again entered the premises at this Mounts Bay Village Stage III Project site. That conduct occurred in circumstances where the requisite notice had not been given prior to the entry onto the premises.

12. Two breaches giving rise to this application occurred at the premises occupied by the Kailis and France Food Processing Plant in Osborne Park, in the middle north-western suburbs of Perth. On 21 February 2001 the Respondent entered those premises when he had not given the requisite notice. The discussions he then undertook with employees as a result of that entry occurred at a prohibited time.

13. The next day, 22 February 2000, the Respondent again entered these premises in circumstances where the requisite notice had not been given, holding discussions thereupon with employees at a prohibited time.

14. The next allegation concerns the site occupied by Thiess Contractors in Casuarina, in the outer southern suburbs of Perth for the extension of the Kwinana Freeway. On 9 May 2000 the Respondent entered those premises without having given the requisite notice. He then, following that entry, held discussions with employees at a prohibited time.

15. The next, and final set of allegations concerns separate premises occupied by Thiess Contractors for the extension of the Kwinana Freeway, namely the Rowley Road site, also in the outer southern suburbs of Perth. On 9 June 2000, the Respondent entered those premises without having given the requisite notice.

16. On 19 June 2000 the Respondent again entered those premises without having given the requisite notice.

17. On the next day, 20 June 2000, the Respondent entered those premises without having given the requisite notice and, having so entered, held discussions with employees at a prohibited time. . . ."[3]

[6] On the basis of the agreed facts the Commission found that on a number of occasions Mr McDonald had, in exercising his powers under Division 11A of Part IX of the WR Act,

· held discussions with employees at a time other than the employees' meal time or other breaks (in contravention of s.285C(2); and

· entered premises without giving the requisite 24 hours notice of his intention to do so (in contravention of s.285D(2)).

[7] On the basis of these findings the Commission stated that it was satisfied that Mr McDonald had `acted in an improper manner' in exercising his powers under Division 11A of the WR Act. The Commission concluded:

"Having regard to the findings made on the basis of the agreed facts, our conclusion that Mr McDonald has acted in an improper manner within the meaning of s.285A(3) and the consent of the respondent, we have decided to issue an order revoking Mr McDonald's permit."[4]

[8] I propose to deal with the submissions regarding the admissibility of certain evidence, before turning to Woodside's application for intervention.

[9] The power to grant an application under s.285A(1) is discretionary. The sole criterion expressly stated in the WR Act for consideration in dealing with such applications is in s.285A(6) which states that when deciding whether to issue a further permit the Registrar (or in this case the Commission) must take the fact of a previous permit being revoked into account.

[10] The CFMEU advances two contentions in relation to s.285A(6). First, it is said that as s.285A(6) is the sole criterion specified it would follow as a matter of construction that in considering whether a fresh permit should be issued, the Commission is to decide whether a person has continued to engage in the same or similar conduct that warranted his last permit being revoked.[5] It is argued that the findings made by the Commission in the revocation proceedings (see paragraph 5 infra) become the `benchmark' against which Mr McDonald's subsequent conduct may be assessed.[6] In this regard Mr Kucera, counsel for the CFMEU, conceded that evidence of alleged trespass by Mr McDonald since the revocation of his permit, would be relevant.

[11] The CFMEU's second contention is that s.285A(6) confines the Commission's consideration to the fact that a previous permit has been revoked. It is contended that it is the fact of revocation that it is to be taken into account, not the circumstances which led to the permit being revoked. It is said that such circumstances have either already been taken into account or should have been raised by the Office of the Employment Advocate (the OEA) and Woodside Energy Ltd (Woodside) in the proceedings that culminated in the revocation of Mr McDonald's permit on 20 July 2001.[7]

[12] It is against the background of it's contentions regarding the proper construction of ss.285A(1) and (6) that the CFMEU submits that evidence of the events prior to 20 July 2001 should not be admitted on the grounds that the conduct which gave rise to the revocation of Mr McDonald's permit is not relevant to deciding if a further permit should be issued and that the OEA and Woodside are effectively estopped from raising these issues.

[13] Before turning to deal with the submissions regarding the admission of certain aspects of the evidence proposed to be adduced by the OEA and Woodside I will deal with the CFMEU's contentions regarding the proper construction of ss.285A(1) and (6).

[14] In my view there is no rule of construction to the effect that in each case where the Commission is required to have regard to a specified matter in the exercise of a discretion it is precluded from having regard to other (unspecified) considerations. Rather, it is a matter of construing the language used in each case. Contextual issues are also important.[8]

[15] To read s.285A as confining the discretion of the Commission in the way suggested by the CFMEU would be to read words into the statute which are not there. In Thompson v Goold & Co the court said that:

"It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is the wrong thing to do."[9]

[16] It is inappropriate to add words absent a clear legislative purpose in favour of such a construction.

[17] A question of construction ought to be determined by examining the provision in the context of the relevant statute as a whole. Such an approach is consistent with general principles of statutory interpretation. As Mason J said in K&S Lake City Freighters Pty Ltd v Gordon G Gotch Ltd:

"... to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context (Cooper Brookes (Wollongong) Pty Ltd v FC & T (1981) 35 ALR 151 at 156-7, 169; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."[10]

[18] An important contextual issue in this case is the nature of the power exercised by permit holders. In Vivienne Daniels v Joe Patti and another, Munro J observed that:

"Permit holders exercise a power that causes them to be exercising a public right and duty. Those rights, powers and duty stem from the statute. Due diligence, reasonable civility, and avoidance of unnecessary obstruction in the exercise of the powers under Division 11A are not only to be expected, they are a statutory condition of the powers being retained. ..."[11]

[19] I respectfully agree with his Honour's observation.

[20] When regard is had to the nature of the power exercised by a permit holder it is, in my view, reasonable to conclude that Parliament would not have intended to limit the Commission's considerations to the matter specified in s.285(6) in deciding whether to approve or refuse the grant of a permit.

[21] Further, acceptance of the CFMEU's submissions begs the question of what matters are to be taken into account in dealing with applications in respect of persons who have never previously held a permit. Clearly the circumstances referred to in s.285A(6) will not arise in such cases. If, as the CFMEU contends, the fact of a previous permit being revoked is the only matter to which the Commission is to have regard, then what considerations inform the exercise of the Commission's discretion in dealing with applications in respect of persons who have never held a permit?

[22] I do not accept that the matters which I may take into account in deciding whether to issue a permit are confined in the manner contended by the CFMEU.

[23] Save for the requirement to take into account the matter referred to in s.285A(6) the discretion to issue a permit is unconfined. But that does not mean that it may be exercised in an arbitrary way, rather the discretion must be exercised within proper limits `according to the rules of reason and justice, not according to private opinion'[12]. Further, as the High Court observed in R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd:

"The general rule is that a discretion expressed without any qualification is unconfined except insofar as it is affected by limitations to be derived from the context and scope and purpose of the statute."[13]

[24] It follows that the range of considerations relevant to the exercise of a discretion of the type conferred by s.285A(1) is to be informed by the subject matter, scope and purpose of the WR Act.[14] In particular the objects of the WR Act are relevant. Paragraphs 3(b), (c), (d) and (e) of those objects state:

"(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and

(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and

(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and

(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and ..."

[25] The above objects emphasise the mutual rights and responsibilities of participants in the system. Section 90 is also relevant. It relevantly states:

"90 Commission to take into account the public interest

In the performance of its functions, the Commission shall take into account the public interest, and for that purpose shall have regard to:

(a) the objects of this Act and, in particular, the objects of this Part; and

(b) the state of the national economy and the likely effects on the national economy of any award or order that the Commission is considering, or is proposing to make, with special reference to likely effects on the level of employment and on inflation. ..."

[26] Having regard to the scope, subject matter and purposes of the WR Act I have concluded that in addition to the mandatory matter specified in s.285A(6) the following considerations may be taken into account:

· whether the applicant has continued to engage in the same or similar conduct that warranted his last permit being revoked;

· the nature of the conduct that gave rise to the revocation of the previous permit;

· whether the applicant has caused or procured unlawful industrial action, or refused or failed to comply with dispute resolution processes in applicable awards and agreements;

· whether the applicant has engaged in conduct which has compromised occupational health and safety at a place of work;

· other conduct which may be said to be inconsistent with the objects of the WR Act.

[27] Evidence which is relevant to these considerations is, in my view, admissible.

[28] I also note that the list of considerations identified in paragraph 26 is not intended to be exhaustive. Depending on the circumstances other considerations may also be relevant.

[29] The CFMEU advanced three further arguments in support of it's contention that evidence of Mr McDonald's conduct prior to the revocation of his previous permit ought not be admitted.

[30] First, it is submitted that propensity evidence is inadmissible and all of the evidence of Mr McDonald's conduct prior to the revocation of his previous permit is of that character.

[31] I am not persuaded that the evidence in question should be rejected on this basis. Even if one assumes that the evidence can properly be characterised as propensity evidence - a proposition about which there is considerable doubt - I am not satisfied that propensity evidence is per se inadmissible in civil proceedings.

[32] The development of the common law rules governing the admissibility of similar fact or propensity evidence have been heavily influenced by the special dangers that such evidence is thought to present in criminal cases. Evidence that shows that an accused charged with an offence has been guilty of criminal behaviour on other occasions showing a criminal disposition has ordinarily been regarded as inadmissible.[15] The admissibility of propensity evidence in civil cases developed by analogy with the criminal law. But the balance of authority now supports the view that such evidence may (subject to discretionary exclusion) be admissible if relevant to the issues which arise for determination.[16]

[33] There are also a number of cases where applicants complaining of misrepresentations in contravention of Part V of the Trade Practices Act 1974 (Cth) have successfully led evidence of similar statements made by or on behalf of the respondent to other persons and such evidence has been admitted.[17] The sole justification for the admission of this evidence is that it bears upon the probability or increased probability judged rationally on common experience that the fact in issue existed.[18]

[34] The tendency rule stated in s.97(1) of the Evidence Act departs from the common law position. The fact that tendency evidence is relevant to a fact in issue is not enough to make it admissible. Even if relevant it will not be admissible if the Court thinks the evidence would not have `significant probative value'. Such an assessment involves `a degree and value judgment' having regard to both the evidence to be adduced and other evidence to be adduced.[19]

[35] The Evidence Act 1995 (Cth) is not directly applicable to the Commission - given the terms of s.110 of the WR Act and the fact that the Commission is not a court within the meaning of s.4 of the Evidence Act. A `federal court' is defined in Part 1 of the Schedule to the Act to mean:

(b) any other court created by the Parliament (other than the Supreme Court of a Territory)

and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence."

[36] Despite the fact that the Evidence Act 1995 (Cth) is not directly applicable it is a useful guide to proceedings in the Commission. While the Commission is not bound by the rules of evidence (s.110(2)(b)) that does not mean that they are irrelevant.[20] In particular, they cannot be set aside in favour of a course of inquiry which results in unfairness by, for example, advantaging one party at the expense of the opposing party.[21] But even if the terms of s.97 were applied to the matters before me I would not rule the evidence in question to be inadmissible. It is not propensity or tendency evidence as such but evidence of actual conduct which is relevant to the determination of the application before me. Even if it were regarded as propensity evidence I am not persuaded that the evidence would not have `significant probative value'.

[37] Second, the CFMEU contended that the evidence objected to would significantly increase the hearing time required. In particular it argued that s.98A of the WR Act required that the Commission must perform its functions in a way which `facilitates the fair, and practical conduct of any proceedings under this Act.'

[38] Evidence of a relevant fact is only excluded when it infringes some policy of the law. One such policy is that evidence of a relevant fact is inadmissible if the probative value of the evidence is so low that it cannot justify the time and resources required to litigate its proof.[22] The Commission is required to balance the relevance of the evidence and the extent to which it will assist in the resolution of the primary issues against the effects its admission will have on the conduct and scope of the hearing. I am not satisfied that such a balance favours the exclusion of the evidence sought to be adduced by the OEA and Woodside in these proceedings.

[39] The final argument advanced by the CFMEU is based on estoppel.

[40] During the course of oral argument Mr Kucera, appearing on behalf of the applicant, confirmed that the nature of the estoppel relied on was cause of action estoppel. He submitted:

"... essentially what we say is that the - all the material that relates to, I suppose, what happened prior to the revocation permit, like the Laminaria or say other projects. It is material as I say that would have been readily available to both the office of the Employment Advocate at the time or Woodside should have run it at the time."[23]

[41] I do not find the CFMEU's estoppel argument persuasive.

[42] In cause of action estoppel `the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it has merged and has no longer an independent existence.'[24] The leading Australian judgment is Chamberlain v Deputy Commissioner of Taxation.[25] In that case the Deputy Commissioner had issued a writ in the Supreme Court of the ACT to recover $25,557.92 for assessed and unpaid tax. The writ should have been issued for $255,579.20 but in the typing the decimal point was misplaced and the mistake was not recovered in time. The defendant, perhaps not surprisingly, consented to judgment and paid the judgment debt. When the mistake was discovered the Commissioner issued a second writ for the balance, but the High Court held that his cause of action had merged in the judgment, there was no independent cause of action as long as the judgment stood, and there was no discretion to deny the application of the doctrine of res judicata.

[43] In my view the CFMEU's estoppel argument is misconceived. Proceedings to revoke a permit are not analogous to a cause of action and even if they were an estoppel would not arise in relation to a subsequent application for a permit. The two proceedings are quite different.

[44] The position is even clearer with respect to Woodside. Woodside was not a party to the revocation proceedings, nor is it argued that Woodside is a `privy' of the OEA. The United States' doctrine of collateral estoppel by which a party can be bound by an adverse decision in earlier proceedings, where the question was fully litigated, in favour of a stranger who was not a party or privy to those earlier proceedings, was rejected by the High Court in Ramsay v Pigram.[26]

[45] Mr Kucera sought to extend privity to Woodside on the following basis:

"I suppose the privity arises sir, in the sense that the Office of the Employment Advocate had a statutory responsibility, it chose not to rely upon those Woodside matters and didn't and that is why we don't want to see those matters reagitated again. And it was a matter of public record that there was a dispute over right of entry at the time."[27]

[46] Mr Kucera accepted that a logical consequence of the argument he advanced would be that because of the OEA's position as a public body any employer who was operating a major project at the time or the period immediately before the revocation application is to be regarded as a privy of the OEA and is estopped from adducing evidence about Mr McDonald's pre-revocation conduct.[28] In my view this argument is contrary to authority and plainly untenable. It's adoption would require an unwarranted, and unfair, extension to the doctrine of privity.

[47] I accept that it may not be necessary to establish identity of parties or privity in order to apply the extended form of estoppel (also known as Anshun estoppel[29]) which prevents the relitigation of an issue where this would be an abuse of process. But I am not satisfied that the circumstances of this matter warrant the application of Anshun estoppel.[30]

[48] I now turn to deal with Woodside's intervention application.

Section 43(1) of the WR Act deals with intervention in proceedings such as the one before me. It states:

"Where the Commission is of the opinion that an organisation, a person (including the Minister) or a body should be heard in a matter before the Commission, the Commission may grant leave to the organisation, person or body to intervene in the matter."

[49] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Energy Developments Limited a Full Bench of the Commission summarised the relevant case law on intervention, in the following terms:

"(i) Section 43 confers a wide discretion on the Commission to allow any person or organisation to intervene in any matter provided that the Commission is satisfied that it is desirable that the person or organisation should be heard.

(ii) The Commission may allow a person or organisation to intervene in circumstances where that person or organisation would not have a right to be heard. Considerations of fairness may incline the Commission to exercise its discretion under s.43 to allow someone who is likely to be indirectly affected by the outcome of the proceedings to intervene in them.

(iii) In some circumstances the refusal of leave to intervene may constitute a denial of natural justice by denying to an interested person or organisation an opportunity to present their case in proceedings which may result in a determination affecting their rights or interests.

(iv) A person or organisation has a right to intervene in a proceeding which directly affects their legal rights and obligations. A failure to afford a hearing to such a person or organisation is a denial of natural justice.

(v) The question of whether or not a particular proceeding directly affects the legal rights or obligations of an organisation or person is determined on a case by case basis. It has been held that:

· An organisation, the eligibility rules of which do not cover the employees in question, does not have a direct interest in proceedings for an award which only covers members of another organisation despite the fact that the organisations concerned are disputing the coverage of the relevant employees [Ludeke's Case].

· A proceeding which may affect the comparative attractiveness of membership of an organisation does not give that organisation a right to intervene in the proceedings [Ludeke's Case; Grimshaw's Case].

· The legal rights and obligations of employees who are not union members are not directly affected by the making of an award in settlement of a dispute between the employer and a union. This is so despite the fact that such employees will acquire the right to bring enforcement proceedings and to recover monies payable. These are not award rights but statutory rights conferred in consequence of the making of an award which applied to the terms and conditions of persons who are not members of the union bound by it [Arnel's Case]."[31]

[50] Woodside has applied for leave to intervene in these proceedings.

[51] Woodside is a major hydrocarbons company engaged in the hydrocarbon industry in Western Australia and elsewhere. Since 1985 Woodside has been constructing a natural gas processing plant on the Burrup Peninsula in Western Australia. It also has major offshore facilities off the coast of Western Australia. The processing plant and offshore facilities are part of the North West Shelf Gas Project (the Project).

[52] The construction of facilities forming part of the Project has occurred in various stages. Phase 4 is presently under construction and involves a capital expenditure by Woodside and its joint venture parties of some $2.4 billion.

[53] The Project requires strict security and safety measures and procedures so as to ensure:

· the security of the project from any external threat; and

· the health and safety of all persons entering on the land.

[54] Detailed induction programs are in place for anyone entering upon the construction site.

[55] In support of its intervention application Woodside submits:

"(a) Woodside has been directly affected by the conduct of Mr McDonald to date in respect of his unlawful and unacceptable conduct in relation to Woodside projects;

(b) the issuing of a right of entry permit has the potential to directly affect Woodside's property rights. Issuing a permit to Mr McDonald may prevent Woodside from lawfully refusing Mr McDonald entry to sites controlled by Woodside in certain circumstances. Therefore the permit would directly limit Woodside's exercise of its interests in land controlled by it;

(c) Mr McDonald's conduct has directly interfered with the operation of safety procedures and policy at its operations, on heavy industry sites where safety is important and Woodside bears onerous Occupational Health and Safety Obligations.

(d) Woodside's security interests at its operations will be directly affected."[32]

[56] The CFMEU opposes Woodside's application. The CFMEU contend that `the authorities on intervention in proceedings before this Commission require an intervenor to show that their rights and interests will be directly affected'.[33] It submits that Woodside should not be granted leave to intervene, for the following reasons:

· Woodside's interests are not directly affected in an ongoing way by these proceedings;

· there is insufficient evidence of a direct effect on Woodside to the extent that their rights will in any way be diminished if Mr McDonald was to be issued with a right of entry permit;

· Woodside will not be denied natural justice by the refusal of leave to intervene because it is unable to demonstrate that its right to seek redress from the Commission in relation to any future alleged misuse of the permit will be curtained or restricted; and

· Woodside's intervention will significantly increase the time taken to hear the substantive application and hence impose an unreasonable burden on the CFMEU.

[57] To the extent that the CFMEU's submissions are premised on the proposition that a potential intervenor must show that their rights and interests will be adversely affected by the proceedings concerned before leave to intervene will be granted, they are misconceived. The discretion to grant leave to intervene is not so narrowly confined. The CFMEU's submissions incorrectly conflate the scope of the Commission discretion with the circumstances in which a person or organisation may be said to have a right to intervene.

[58] The Commission has a discretion to allow a person or organisation to intervene in circumstances where that person or organisation would not have a right to be heard. This is made clear by Gibbs CJ, with whom Dawson J agreed, in R v Ludeke and others; Ex parte the Customs Officers' Association of Australia, Fourth Division, where his Honour made the following observation:

"The Commission has power - which, like other powers to which reference has already been made, allows it a wide discretion - to allow any person or organization to intervene in any matter, provided that the Commission is of the opinion that it is desirable that the person or organization should be heard: s.38(2) of the Act. The provisions of that subsection reinforce the view that a person whose rights are not directly affected by a proceeding is not entitled to intervene in the proceeding, although in many cases considerations of fairness may incline the Commission to allow someone who is likely to be indirectly affected by the outcome of the proceedings to intervene in them."[34]

[59] In the circumstances of this case I am satisfied that Woodside should be heard and have decided to grant it leave to intervene. The evidence proposed to be led by Woodside is relevant to the determination of the application before me. I have taken into account the CFMEU's submission and in particular the contention that Woodside's intervention will prolong the proceedings and impose an unreasonable burden on the applicant. But in my view the balance of considerations favours the grant of leave to intervene.

[60] In the circumstances it is unnecessary for me to determine whether Woodside's interests are directly affected such as to give rise to a right to intervene.

T. Kucera for the Construction, Forestry, Mining and Energy Union.

H. Dixon, Senior Counsel, with R. Harrison for Woodside Energy Limited.

R.L. Hooker of Counsel, for the Employment Advocate (intervening).

Printed by authority of the Commonwealth Government Printer

5 CFMEU's written submissions dated 2 May 2003 at paragraph 9.

7 CFMEU's written submission in relation to evidence, dated 28 May 2003.

8 See Gribbles Pathology (Victoria) Pty Ltd v The Minister for Health [2000] FCA 1596, 9 November 2000 per Finn J.

9 [1910] AC 409 at 420; see also Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J.

10 [1985] HCA 48; (1985) 157 CLR 309 at 315. See also Metropolitan Gas Co v Federated Gas Employees Industrial Union [1925] HCA 5; (1924) 35 CLR 449 per Isaacs and Rich JJ at 455. Cf Davids Distribution Pty Ltd and National Union of Workers, Print Q1851, 12 June 1998 per Ross VP at p.9; Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696.

12 R v Anderson; Ex parte Ipec Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 189 per Kitto J.

13 [1979] HCA 62; (1980) 144 CLR 45 at 50.

14 Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40.

15 Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590 at 597 per Dawson J.

16 Sheldon v Sun Alliance Australia Ltd [1989] SASC 1571; (1989) 53 SASR 97 at 145 per Bollen J with whom Prior J agreed.

17 Mister Figgins v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23 at 30-31; Gates v City Mutual Life Assurance Society Ltd (1982) 43 ALR 313 at 327. See too Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 Ch 119; 1 All ER 763 (CA); Turner v Jenolan Investments Pty Ltd (1985) ATPR 40-571 (Fed C of A); Peet & Co Ltd v Rocci [1985] WAR 164; Aroustidis v Illawara Nominees Pty Ltd (1990) 21 FCR 500. Cf HW Thompson Building Pty Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) 48 ALR 667; Boyce v Cafred Pty Ltd [1984] FCA 318; (1984) 4 FCR 367. For a full analysis of the principles and the authorities in this area, see DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; (1991) 28 FCR 597 at 603-7; 100 ALR 464 at 42-8 per Gummow J.

18 Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375. This paragraph was quoted with approval in Grivas v Brooks (1997) 69 SASR 532 at 547 (FC). Mister Figgins v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23

19 s.97(1)(b); Fleming v Hutchinson (1991) 66 ALJR 211.

20 King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.

21 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256 per Evatt J.

22 Palmer v R [1998] HCA 2; (1998) 193 CLR 1 at 24 per McHugh J; DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; (1991) 100 ALR 468 at 475-478 per Gummow J.

24 Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 532 per Dixon J.

25 [1988] HCA 21; (1988) 164 CLR 502.

26 [1968] HCA 34; (1967) 118 CLR 271 at 276 and 282 per Barwick CJ and McTiernan J. Also see Saffron v Commissioner of Taxation (No. 2) [1991] FCA 363; (1991) 30 FCR 578.

29 So named after Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

30 The circumstances described by Burchett J in Effem Foods Pty Limited v Trawl Industries of Australia Pty Limited, [1993] FCA 342; (1993) 43 FCR 510 at 543, do not arise here.

31 Print M9753, 1 March 1996 at pp.12-13; Re Australian Federation of Air Pilots, Print N1264, 1 May 1996 per Acton DP, Duncan DP and Leary C.

32 Woodside Submissions dated 14 July 2003 at paragraph 18.

33 Applicant's Further Outline of Submissions at paragraph 2.

34 [1985] HCA 31; (1983-1984) 155 CLR 513 at 520-521.