procedural. Applications granted: the Minister of State of New South Wales and the Minister of State of South Australia were joined as respondents to the appeal.
Key principles
Rule 9.06(b)(i) requires a legal or proprietary interest to make a party a 'necessary' party; executive responsibility or political/fiscal interest alone is insufficient (see...
Rule 9.06(b)(ii) permits joinder where 'questions arising out of or relating to the determination' are just and convenient to determine between the applicant and existing...
In exercising the court's discretion to join, the court may consider whether existing parties adequately represent the applicant's interests and whether there is a real...
Issues before the court
Are the Ministers necessary and proper parties to the appeal under Supreme Court (General Civil Procedure) Rules 1996, Rule 9.06(b)(i)?
Should the Ministers be joined under Rule 9.06(b)(ii) because there are questions arising out of or relating to the determination which it is just...
How should the court exercise its discretion to permit joinder where there are considerations about adequate representation and institutional roles?
Plain English Summary
The Court ordered that the New South Wales and South Australian Ministers be joined as respondents to Murraylink's appeal. The judge held ministers were probably not 'necessary' parties under Rule 9.06(b)(i) because ministerial or fiscal interests alone are not enough, but they should be joined under the broader Rule 9.06(b)(ii) because the central legal question (whether the interconnector met the regulatory test) arose directly from the appeal and affected the ministers' interests. The court also exercised its discretion in favour of joinder because there was a real possibility the ministers' interests might diverge from those of existing parties.
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Deep Dive
1,651 words · generated 03/07/2026
What happened
This interlocutory judgment concerns an application to join two state ministers as respondents to an appeal from the National Electricity Tribunal. Background facts relevant to the joinder question are these.
Cited legislation
8 cited instruments linked from this judgment.
In 1996–1997 the participating States enacted a National Electricity Law and Code to regulate a national electricity market ([2], [5], [11]). The Code empowered Nemmco to make determinations under Clause 5.6.6.
On 6 December 2001 Nemmco determined that Transgrid's proposal for a new interconnector between New South Wales and South Australia was justified; that determination was reviewable under the Code ([8]).
Murraylink applied to the National Electricity Tribunal for review on 21 December 2001; by sub-s.29(2) of the Law the South Australian and New South Wales Ministers were added as parties to that review and actively supported Nemmco's determination ([14]).
The Tribunal dismissed Murraylink's application on 31 October 2002 ([17]). Murraylink then appealed to the Supreme Court of Victoria under s.46 of the Law, naming Nemmco and Transgrid but not the Ministers ([20]).
The Ministers applied under Rule 9.06(b) of the Supreme Court (General Civil Procedure) Rules 1996 to be joined as respondents to the appeal ([23]). Murraylink opposed joinder.
Nettle J heard argument and allowed the Ministers' applications, joining the NSW and SA Ministers as respondents to the appeal ([84]).
The hearing focused solely on the joinder applications, not on merits of the underlying regulatory question.
Why the court decided this way
Two separate strands of Rule 9.06 were central.
Rule 9.06(b)(i), 'necessary or proper parties'
Nettle J examined whether the Ministers were "necessary" parties in the sense that their participation was required to determine all questions in the appeal. He concluded that neither ministerial executive responsibility to Parliament nor responsibility for electricity supply created the kind of legal or proprietary interest conventionally required for a party to be necessary under subparagraph (i) ([53]).
The judge emphasised that financial or political interests are not necessarily sufficient, and he doubted that Nemmco's determination created any legal rights in the Ministers comparable to easements or zoning determinations ([53], [56]).
Rule 9.06(b)(ii), 'just and convenient' joinder where questions arise out of the determination
Nettle J considered subparagraph (ii) to be broader and to follow the English rule enacted to avoid the consequences of Vandervel ([59]). He relied on the reasoning of Hayne J in Telstra v Australian Telecommunications Authority (unreported) ([62]) where joinder was ordered because a question about regulatory character of conduct arose directly from the subject matter and affected the applicant's position.
Applying that approach, Nettle J found the regulatory question, whether the interconnector passed the Code's test, arose directly out of the appeal and affected the Ministers' interests in a way not divorced from the subject matter. The Ministers' interests could be characterised as commercial but still intimately connected to the substantive issue in the appeal ([69], [72]).
He accepted that discretionary considerations were relevant. Murraylink argued that Nemmco and Transgrid were appointed by the regulatory regime to make and defend determinations and could adequately represent ministerial interests; the judge accepted there was force to that argument. However he concluded there was a real possibility of divergence of interest between the Ministers (who act for their States) and Nemmco (whose responsibilities differ), and that this justified joinder. Given South Australia's need to be heard, it was convenient also to join New South Wales ([75], [78], [81]).
The result was that joinder under Rule 9.06(b)(ii) was appropriate and within the court's discretion.
Before and after state of the law
Before:
The judges applying joinder rules had to navigate the distinction between parties with a 'legal or proprietary' interest (typical for necessary parties) and those with mere commercial or political interests. English rule reform (post-Vandervel) had already broadened joinder via a 'just and convenient' limb.
Key precedents cited:
Vandervel Trustees v White [1971] AC 912, the case from which the English rules were moved to avoid inflexible results on res judicata-type effects ([59], [53]).
Sanders Lead and Torres Metal [1984] 1 WLR 452, authority on the English approach and the distinction between 'legal' and 'commercial' questions ([59]).
Telstra v Australian Telecommunications Authority (unreported, Hayne J), applied as an authority for a live-question, just-and-convenient approach to joinder where the applicant's commercial interest was connected to the substantive issue ([62]).
After:
Murraylink establishes, in the Victorian Supreme Court, that the broader Rule 9.06(b)(ii) may be used to join state ministers (or comparable parties) who may have commercial or executive interests, provided there is a live legal question arising from the subject matter that affects them and it is just and convenient to determine that question with the appeal before the court.
The decision also emphasises that the court's discretion should take into account whether existing parties can adequately represent the applicant and whether divergence of interest is likely.
Practical effect:
Regulatory actors or ministers who participated in tribunal proceedings may be joined to appeals even when they lack traditional proprietary rights, where their interests are sufficiently connected to the substantive legal questions on appeal.
Key passages with plain-English translation
Paragraph [53]: "I doubt that the Ministers are necessary parties..." Translation: The judge says ministerial responsibility or political/fiscal stakes do not automatically make ministers required parties for purposes of Rule 9.06(b)(i). You need something closer to a legal or property right.
Paragraph [56]: Discussion of whether Nemmco's decision creates lasting legal rights. Translation: Nettle J thinks the Code decision is not necessarily final or permanent and does not produce the sort of property-like rights that would bind others indefinitely.
Paragraph [59]: "Rule 9.6(b)(ii) ... is considerably broader..." Translation: The 'just and convenient' limb of the rule is wider and designed to avoid technicalities that would bar necessary joinder in practical terms.
Paragraph [62]: Nettle J quotes and applies Hayne J in Telstra. Translation: The court accepts that a party with a commercial interest may still need to be joined if the legal question affects statutory rights or legal consequences tied to the regulatory scheme.
Paragraph [69]: "The interests ... may well be called commercial interests but they are commercial interests that are not divorced from the subject matter..." Translation: Even if ministers' interests look commercial, they are tightly connected to the legal question in the appeal, so joinder is appropriate.
Paragraph [81]: "distinct possibility of divergence ... sufficient reason ... not necessarily be adequately represented by participation of Nemmco." Translation: Because ministers and Nemmco might pursue different legal positions, the ministers cannot be assumed to be adequately represented by Nemmco; this supports joinder.
Each translation maps to the judge's reasoning and shows how he moved from legal principles to discretionary conclusion.
What fact patterns trigger this precedent
The ruling is engaged where:
An administrative or regulatory decision (by a body like Nemmco) is reviewed by a tribunal, and certain third parties (for example state ministers) are joined in the tribunal proceedings under statute and actively support the impugned determination ([14]).
An appeal to a superior court is brought by an aggrieved party naming only the administrative decision-maker and a private or state-owned proponent (eg Nemmco, Transgrid) but excluding the third parties who were joined below ([20], [23]).
The third parties claim an interest that is commercial in nature but is integrally connected to the substantive legal questions on appeal (for example, whether a proposal meets a statutory/regulatory test) ([69], [72]).
There is at least a realistic prospect that the existing respondents (Nemmco, an owner-corporation) may not adequately represent the third party's interests, because the institutional roles or duties differ and divergence of interest is plausible ([75], [78], [81]).
If these elements are present, Murraylink supports joinder under Rule 9.06(b)(ii).
How later courts have treated it
This judgment applies established joinder principles and aligns Victorian practice with the broader English approach to overcome Vandervel-type problems. It explicitly applies Hayne J's Telstra reasoning to the energy regulation context. Subsequent courts in analogous contexts would consider Murraylink persuasive authority in Victoria on the point that Rule 9.06(b)(ii) permits joinder of parties whose interests are not traditional proprietary rights but are nonetheless tied to the subject matter and legal questions on appeal. The ruling emphasises discretion and practical representation considerations, which later courts are likely to apply on a case-by-case basis.
Practical consequences for litigators: when representing applicants to be joined, emphasise the connection between the applicant's interest and the central legal questions; when opposing, emphasise adequacy of representation and lack of a live legal question affecting the applicant.
Still-open questions
Res judicata effect: Nettle J observed uncertainty about whether an administrative tribunal's determination produces res judicata in Australian law ([56]). That remains an unresolved doctrinal point, and different factual contexts may produce different outcomes.
Degree of connection required under Rule 9.06(b)(ii): The judgment follows Telstra's live-question test but does not lay down a precise threshold for when a commercial interest is sufficiently connected; subsequent decisions will refine how close the connection must be.
Adequacy of representation by state-owned corporations: Nettle J accepted the force of arguments that Transgrid might represent the NSW Minister, but still allowed joinder based on possible divergence. The precise circumstances in which a state-owned entity suffices to represent ministerial interests remain fact-specific and unsettled.
Interaction with statutory regimes that expressly provide for ministerial functions: where the statute confers specific legal rights on ministers arising from administrative determinations, joinder under 9.06(b)(i) could be warranted; the boundary between (i) and (ii) in such statutory contexts remains to be clarified.
Takeaway for practitioners: Murraylink is a practical decision favouring inclusion of materially interested public actors in appeals from administrative determinations where the legal question affects their statutory or operational interests, but courts will balance that against considerations of duplication, delay and adequacy of representation.
Practice and procedure - joinder of respondents to an appeal from an administrative decision - whether necessary and proper parties - whether just and convenient that they be joined - Supreme Court (General Civil Procedure) Rules 1996, Rules 5.06(b)(i) and (ii).
[3]
In 1996 the States of New South Wales, Victoria, Queensland and South Australia agreed to the enactment of legislation to give effect to regulatory arrangements for a national electricity market consistent with reforms of competition policy. That legislation comprises the National Electricity of South Australia Act 1996 and corresponding enactments in each of the other participating jurisdictions.
[4]
In this State the National Electricity of Victoria Act 1997 provides that the National Electricity Law set out in the schedule to the National Electricity South Australia Act 1996, as in force for the time being, applies as a law of Victoria, and as so applying may be referred to as the National Electricity of Victoria Law. Pursuant to Clause 6 of the National Electricity Law the Ministers of the participating jurisdictions have approved a code called the National Electricity Code for the purposes of the Law.
[5]
On 6 December 2001 the National Electricity Market Management Company Ltd (Nemmco) made a determination under Clause 5.6.6 of the Code that a proposal by Transgrid for a new interconnector between New South Wales and South Australia was justified. Transgrid is a corporation which is, in effect, wholly owned by the State of New South Wales. The decision was a reviewable decision under Clause 5.5.6F of the Code.
[6]
Part 3 of the Law establishes the National Electricity Tribunal and s.17 of the Law provides that the functions of the Tribunal include the review of a decision made by Nemmco under the Code. Section 43(1) of the Law provides that an application for such a review may be made by a person whose interests are affected by the decision or by a Minister of a participating jurisdiction.
[7]
On 21 December 2001 the appellant, Murraylink, applied to the Tribunal under s.43 of the Law for a review of Nemmco's determination and, despite objection from Murraylink, the South Australian Minister and the New South Wales Minister were added as parties to the review upon their own motion pursuant to sub-s.29(2) of the Law. The Ministers actively supported the determination.
[8]
On 31 October 2002 a majority of the Tribunal dismissed Murraylink's application for review and held that the link was justified.
[9]
This is an appeal from that decision pursuant to s.46 of the Law. Murraylink is the appellant and it has named Nemmco and Transgrid but not the Ministers as respondents to the proceeding.
[10]
The Ministers now apply pursuant to Rule 9.06(b) of the Rules of Court that they be joined as respondents. They contend that they are necessary and proper parties to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon or, alternatively, that there are questions arising out of or relating to the determination which it is just and convenient be determined as between the Ministers and Murraylink as well as between Murraylink and Transgrid and Nemmco.
[11]
Doctor Griffiths of Senior Counsel, who appears with Ms Allars for the State of New South Wales has submitted that the Minister for New South Wales has a very real interest in the questions the subject of the appeal, which is greater than a commercial interest, in that the Minister has responsibility on behalf of the State of New South Wales not only for the regulatory regime laid down in the legislation but also, to some greater or lesser extent, to the Parliament of New South Wales for the supply of electric power in that state.
[12]
Doctor Griffiths further submitted that inasmuch as the New South Wales Minister was joined as a party to the proceeding below, and was successful in obtaining the determination that he sought, his rights are necessarily affected by an appeal against that determination. Amongst other things, it was said, so much is demonstrated by the fact that the grounds of appeal raise questions which directly impugn evidence given below on behalf of the Minister.
[13]
Finally, Dr Griffiths said that it is plain that the appeal raises questions of law as between the Ministers and the appellant upon the construction of the regulatory legislation and the Code, even if those questions do not necessarily produce consequences in the context of the facts of the appeal.
[14]
Mr Kourakis of Her Majesty's Counsel, who appears with Ms Avey on behalf of the State of South Australia, adopted the submissions which had been made by Dr Griffiths and added to them the observation that inasmuch as s.29(2) of the Law contemplates the joinder to a review of parties whose interests in the outcome of a review do not necessarily satisfy the description of a legal or proprietary interest, it must be that such parties may be joined to an appeal. In other words, once a party has been joined on the basis of such wider interest as is contemplated in s. 29(2), it should be accepted that his or her rights are so much affected by any appeal from a determination of the Tribunal that he or she is entitled to be joined to the appeal. It would be incongruous, Mr Kourakis submitted, that while the legislation which gives rise to this appeal recognises that the Minister has sufficient standing or interest to be joined to the proceeding below, he should be refused the entitlement to be heard on an appeal which could result in the setting aside of the determination which he was successful in obtaining below.
[15]
Mr Kourakis further submitted that when one has regard to what was said by King CJ, in Tropp Nominees Pty Ltd v Liquor Licensing Commissioner[1], it is plain as a matter of law that, once a party has been joined to an administrative proceeding which produces an administrative determination, that party has sufficient interest in any appeal which might be taken from the administrative decision to the court to be joined to the appeal. Mr Kourakis made reference in particular to the observations of King CJ[2] that a person accepted as an intervener becomes a party with all the privileges of a party, and thus can appeal, tender evidence and participate fully in all aspects of the argument. Mr Kourakis submitted that a similar principle should be seen to operate in the present context under the legislation the subject of this appeal.
[16]
Mr Horgan, who appears on behalf of Murraylink, opposed the Ministers' applications. He submitted that it is clear that they do not have an interest of the kind which is contemplated by Rule 9.6(b)(i) and thus they are neither proper nor necessary parties. He accepted that the Ministers have more than a mere commercial interest in the outcome of the appeal. That is to say that, because of their responsibility for the administration of the regulatory regime in their States, and to some greater or lesser extent, responsibility for the provision of electric power in their States, they have a political interest of an executive kind in the interpretation and administration of the Law and a political interest in a fiscal sense that the proposal for the link which is the subject of the appeal passes the regulatory test. But Mr Horgan submitted it is plain upon the authorities that such an interest is not enough. It is necessary he said that an application for leave to be joined under Rule 9.06(b)(i)(a) demonstrate a legal or proprietary interest.
[17]
Mr Horgan also submitted that there is no question between the Ministers and the present parties to the appeal which is just and convenient to have determined pursuant to Rule 9.6(b)(ii). He contended that the only questions which fall for determination in the appeal are confined to the facts of this case, not least for the reason that the bulk of the provisions of the Code with which the appeal is concerned have now been repealed or amended and do not therefore bear upon any other matter coming within what might be described as the Minister's jurisdiction.
[18]
Mr Horgan further submitted that inasmuch as the court has a discretion as to whether or not to grant leave that the applicants be joined, there were powerful discretionary considerations which militated against the grant of leave: first, because the regulatory regime appoints Nemmco as the organisation with responsibility to make decisions and to defend its decisions upon review and on appeal; and secondly, so far as the New South Wales Minister is concerned, the Minister's interests will be protected by Tansgrid, over which the Minister has power of direction under s.20P of the State Owned Corporations Act.
[19]
Finally, Mr Horgan observed, there is no question of any further evidence to be placed before the court. The appeal is on a question of law alone. This is not a case, he said, in which the Ministers might be joined in order to place appropriate material before the court.
[20]
Turning first to Rule 9.6(b)(i), I doubt that the Ministers are necessary parties, even if they are responsible to Parliament in their respective States for the National Electricity regulatory system and even though they may be responsible for the provision of electric power in their States. I do not consider that executive responsibility for the administration of a body of law is sufficient to make a minister a necessary party to a proceeding, for otherwise the Attorney-General or some other minister would be a necessary party to every proceeding. Equally, I doubt that responsibility for the supply of the electricity which may one day be transmitted along the link is sufficient to make a Minister a necessary party, for in point of principle such responsibility would seem to give the Minister no more than a financial interest in the outcome of the proceeding. And according to the authorities, a financial interest is plainly not enough to satisfy the requirements of Rule 9.6(b)(i). The test is whether all questions in the appeal could be determined without the participation of the Ministers,[3] and in my opinion the questions in the appeal could be determined without their participation. It would be different if the Tribunal's determination had created legal rights in the Ministers, because those rights would stand to be affected in the appeal. But I do not think that a determination made by Nemmco under Clause 5.6.6 of the Code creates any legal rights in the Ministers.
[21]
It does not seem to me that the power which Clause 5.6.6 of the Code confers on Nemmco is exercisable once and for all, but rather from time to time; whether or not there has been any change in the relevant facts. And if that be so, Nemmco's decision and thus the Tribunal's determination cannot be regarded as the final determination of the issue by a tribunal having jurisdiction to make a final determination on the question. Nor do I think it could be said that Nemmco's determination creates any rights which run with the land over which it is proposed to construct the link. The decision is of a different kind to one which creates an easement or determines a zoning application. To that may be added the consideration that whilst in England there is high authority for the idea that a determination of administrative tribunals may create res judicata, that remains in doubt in this country.
[22]
It is, however, unnecessary for me to reach a final conclusion on those matters because of the view which I take of the operation of Rule 9.6(b)(ii). Rule 9.6(b)(ii) follows the rule adopted in England to overcome the effect of the decision in Vandervel's case, and it is considerably broader than Rule 9.06(b(i)[4].
[23]
In Telstra Corporation Limited v Australian Telecommunications Authority[5] Hayne J said of the operation of Rule 9.06(b)(ii):
[24]
"For present purposes it may be accepted that the question spoken of in subparagraph (2) of the rule is a 'legal question' rather than a 'commercial question'. Thus, in Vanderbel the decision which gave rise to the introduction of sub-paragraph (2) into the English rules, the question was one of liability to taxation in respect of the transaction then in issue. In the Tetra Moletric Case referred to by Kerr LJ in the Sanders Lead Co Case the question was one of the validity of the patent. In Astro Exito Navigacion SA v Southland Enterprise Co Ltd the issue was one of liability under a letter of credit. But again the distinction between 'legal' and 'commercial' questions may prove elusive. In the present case there is no doubt that the Optus companies have a commercial interest in the outcome of the present proceeding. One could be forgiven for assuming that were that not so no application for joinder would have been made. But is there interest a 'mere commercial interest' as submitted by Telstra? In the present proceedings the question is whether Telstra is dominant in the market for public mobile telecommunications services. If Telstra is not dominant then it is said that Austel may not act in certain ways under the Telecommunications Act and in particular that Austel may not give directions about non-discriminatory tariffs under s.183 ... it will not bind the Optus companies as a matter of res judicata however Austel's decision whether Telstra is or is not dominant in this market for the purposes of the Act is a decision that not only may affect Optus in its pocket, it is a decision that also affects Optus' rights under the Act, in particular whether Optus may require Austel to enforce s.183 or s.187 against Telstra and (in favour of Optus) depends upon whether Austel determines that Telstra is or is not dominant in the market. Thus Optus' interest in the issues raised in the present action and the outcome of that action may well be called a 'commercial interest' but it is a 'commercial interest' that is not divorced from the subject matter of the action. In my view there is now a live question between the Optus companies, Austel and Telstra about whether Telstra is dominant in the relevant market. That question will not be decided in a way that binds the Optus companies in the present action that is now constituted but I consider that it is just and convenient that it should be determined in the present action."
[25]
On that basis His Honour ordered the joinder of Austel on its application.
[26]
By parity of reasoning it seems to me that the question of whether or not the link in this case passes the regulatory test is a question which arises directly out of the subject matter of this appeal and affects both Ministers, at least to the same extent that it was contemplated by Hayne J that the interests of Optus were affected in the Telstra case. The interests of South Australia and New South Wales in the outcome of the proceeding may well be called commercial interests but they are commercial interests that are not divorced from the subject matter of the proceeding, and hence there is a live issue between both Ministers and the appellant as to the correct interpretation of Clause 5.6 of the Code and a number of the provisions including s.29 and s.43 of the Law.
[27]
Over and above those considerations there is the point made by Mr Kourakis that given that the legislation which gives rise to this appeal contemplates that the ministers had sufficient interest in the outcome of the proceeding below to be made parties to the proceeding below, they necessarily have more than a mere commercial interest. They have a real and substantial interest directly concerning the subject matter of the appeal. There is also the point made by Dr Griffiths, that the Ministers are appointed under the legislation to supervise the regulatory regime. That too gives them more than a mere commercial interest.
[28]
I am troubled to some degree by the discretionary considerations to which Mr Horgan has referred. There is something to be said for the view that the interests of the New South Wales Minister might adequately be represented by Transgrid, even though I accept the force of the submission made by Dr Griffiths that s.20(P) that the State Owned Corporations Act does not give to the Minister carte blanche to direct Transgrid as to how it will act. Given that Transgrid is wholly owned by the State of New South Wales, I think it unlikely that it would do anything which departed much from the wishes of the Minister.
[29]
There is also force in what was said by Mr Horgan as to Nemmco having been set up under the regulatory regime in effect to make determinations on behalf of the Ministers and to defend those determinations upon review and upon appeal.
[30]
In the end, however, I think that the Tribunal was correct when it said that there is a distinct possibility of divergence of interest between the Ministers, who act only on behalf of their States, and Nemmco (of which the responsibilities are different). That is sufficient reason to conclude that the South Australian Minister will not necessarily be adequately represented by the participation of Nemmco. And once it is seen that the South Australian Minister should be a party to the appeal, it is convenient that the New South Welsh Minister should also be a party.
[31]
For those reasons I propose to allow the applications that Minister of State of New South Wales and Minister of State of South Australia be joined as respondents to the appeal.