14 Multinet seeks to rely on the fact that Alinta supports, or does not oppose, its joinder application. It argues as a matter of principle that a plaintiff's wishes ought to be persuasive. It is true that one of the matters to which a court will generally have regard is the wishes of the plaintiff, but a plaintiff's preference for or against joinder is not decisive. There is authority for the proposition that if a plaintiff wishes to join a defendant, then the court should be inclined to construe r9.06(b)(i) more liberally than it might otherwise do.[8] But those authorities involved joinder applications made by a plaintiff who wished to make a claim against a person not already a defendant; that is not the case here.
Multinet's arguments
15 Multinet says that it is a necessary party in the relevant sense, because the practical effect of any declaration that Alinta is prohibited from providing services without a licence will be to prevent Alinta from performing its obligations under the OSA until it is licensed. It is not sufficient for joinder purposes that Multinet is a party to the OSA, the meaning or effect of which is pleaded as a matter relevant to the ascertainment of Alinta's statutory liability. The relief sought by the Commission is not an injunction compelling Alinta to breach the OSA. If the court makes a declaration as sought by the Commission, it will reflect the facts as found up to the time of trial, applying the proper statutory construction.
16 Multinet says that it may be necessary for it to lead evidence as to the potential impact on it and its business if Alinta is effectively prevented from performing the OSA without a licence, and the problems it would have in locating a substitute contractor who is licensed. But those matters are not relevant to any pleaded issues. If, as a matter of statutory construction, Alinta is required to be licensed, then an appropriate declaration to that effect would be made, irrespective of the commercial impact on Multinet (or its customers or anybody else).
17 I do not accept Multinet's submission that it "ought to have been joined" by the Commission. The Commission makes no claim and seeks no relief against Multinet; nor does Alinta, for that matter.
18 That Multinet holds a current licence and has approved access arrangements are pleaded by Alinta as matters of fact, and admitted by the Commission. However, neither side's pleadings require the court to determine Multinet's rights or liabilities under the GIA or the Access Law. Multinet nevertheless argues that the orders sought by the Commission would raise the following issues, which may bear on the status of Multinet's licence or access arrangements.
19 The Code expressly provides that there may be more than one service provider in respect of a covered pipeline.[9] Nobody disputes that Multinet, as owner of the pipelines, is a "service provider". This proceeding raises the question whether Alinta is an "operator" of the pipelines, and therefore also a service provider. Multinet's status as a service provider will not be affected by the answer to that question. This case will not determine whether Multinet is an operator as well as an owner.
20 If Alinta is also a service provider, Multinet says that there would be all sorts of practical problems when the next access arrangements are submitted for approval. Multinet asks: would Alinta and Multinet submit one or more access arrangements, and would they do so collaboratively or competitively? The Access Law permits multiple service providers to submit one or more proposed access arrangements.[10] How Multinet and Alinta might choose to discharge their obligations is a matter for commercial negotiation by them, if that situation eventuates after this proceeding has been determined. It is not a reason for joining Multinet as a party to this proceeding.
21 Next, Multinet argues that it ought to be heard on the question of whether, as a matter of statutory construction, there can be more than one licensee under the GIA in respect of the same distribution pipeline. But this case only raises the question of whether Alinta provides services, either as principal or agent, which require it to be licensed. The court will not be considering the totality of the services which Multinet or any of its other contractors provide, and to what extent, if at all, they also need to be licensed.
22 Once again, Multinet raises some practical problems that may arise if it is held that Alinta is required to obtain a licence. Multinet asks: what happens if Alinta decides it does not want to be licensed and just walks away? Or what if Alinta applies for a licence, but its application is refused? No doubt there may be all sorts of commercial decisions to be made if this case is determined against Alinta. But they do not arise on the pleadings and are not a reason for joining Multinet to this proceeding.
23 The conclusion that Multinet has no real interest in any factual dispute between Alinta and the Commission is supported by the fact that, if joined, Multinet does not propose to plead to any allegation, to seek or provide discovery, or to cross-examine any witness without leave, if at all. That only highlights the extent to which this proceeding really involves a dispute between Alinta and the Commission.
24 For these reasons, I am not persuaded that Multinet is a person who ought to have been joined or whose presence is necessary to ensure that all questions in the proceeding are effectually determined and adjudicated upon.
25 If not a necessary party, Multinet argues that it is a proper party. It says that it has sufficient connection to the controversy that it might appropriately be joined. Its counsel cited Finkelstein J in Edge, in the Matter of Eco Panels Australasia Pty Ltd (in liq)[11] as authority for the proposition that a "proper party" includes a person who has no direct interest in the controversy between plaintiff and defendant, but who may be adversely affected by the order sought, such as by an injunction or the appointment of a receiver. With respect, the case relied upon by his Honour[12] is not authority for such a broad proposition. In any event, no such relief is sought here.
26 In relation to the issues raised in this proceeding, Multinet seeks to do no more than support Alinta's arguments. Of particular significance to me, in determining whether Multinet is a "proper party", is the fact that nothing has been identified which shows that there is some perspective which Multinet can bring to this case that Alinta or the Commission cannot bring.
27 Multinet's counsel foreshadowed at a directions hearing on 13 February 2007 that Multinet would be making the present application. In the course of discussion that day, I expressed surprise at the assertion that Multinet's concerns had only arisen in early February 2007, as a result of having learned at that time of the Commission's amended defence and counterclaim dated 24 November 2006. As a failure to act promptly may be relevant to a joinder application, and given the impending trial, I indicated that I would expect any supporting affidavit to specifically address the question of when Multinet first learned of this proceeding.
28 The supporting affidavit of Multinet's solicitor did not directly address my concerns. It deposed that Johnson Winter & Slattery, Multinet's regulatory solicitors, learned of this proceeding in early September 2006 and received the Commission's amended defence and counterclaim in early October 2006. It went on to say that Freehills, the solicitors who are acting for Multinet in another proceeding and in this application, only received the amended defence and counterclaim on 5 February 2007. There was a deafening silence as to when Multinet itself first learned of this proceeding, or why it had made no joinder application when it first learned that the Commission was asserting that its contractor, Alinta, needed a licence and was a "service provider".[13]
29 I accept that case management considerations should not overshadow the need to achieve justice, and would not refuse to join Multinet as a party on the basis of delay alone. But, combined with the other matters discussed above, I am not persuaded to join Multinet on a "proper party" basis.
Alinta's additional points
30 Alinta raises an additional argument in support of joinder. On 20 February 2007, Multinet issued a proceeding in the Common Law Division of this court against Alinta and the Commission. It is common ground that two of the issues raised in the Multinet proceeding have no possible connection with this proceeding.[14] However, Alinta (but not Multinet or the Commission) argues that the third issue will involve the consideration of issues which overlap with this proceeding, and should therefore be heard and determined at the same time.
31 I do not agree with that submission, for the following reason. The third issue in the Multinet proceeding is whether, under the OSA, Alinta is obliged and has failed to provide to the Commission or Multinet certain operational financial and other reports in relation to the Multinet gas distribution network. Whilst it is true that the determination of that issue in the Multinet proceeding will involve the construction of the OSA, the relevant provisions of the OSA[15] are not the subject of this proceeding.
32 Alinta says that if Multinet were joined as a party, it would wish to seek limited discovery from Multinet of certain documents between Multinet and other parties. But Alinta can easily obtain such documents from Multinet by subpoena, if Multinet is not able to provide them voluntarily because of commercial confidentiality. The fact that the documents could be obtained without subpoena if Multinet were a party is not a reason for joining Multinet as a defendant.
Conclusion
33 I am not satisfied that Multinet is either a necessary or a proper party. It follows that the joinder application should be dismissed.