Sydney Trains v Australian Rail, Tram and Bus Industry Union

wHEELAHAN j: 1 The Assistant Secretary of the Australian Council of Trade Unions (ACTU), Liam O'Brien, has applied by interlocutory application for leave to intervene in this proceeding, and, by counsel, to make written and oral submissions directed to the applicants' claim for declaratory relief. At the commencement of the hearing, I directed that the interlocutory application be returnable forthwith, and that formal service be dispensed with. 2 The application to intervene is opposed by the applicants, but supported by the respondents. 3 The evidence is that the ACTU is an unincorporated association consisting of 35 affiliated trade unions and seven state and regional trades and labour councils. Four of the five unions that are respondents to this proceeding are affiliates of the ACTU. 4 It is said by the ACTU that the proceeding raises a novel and important question regarding the construction of the Fair Work Act 2009 (Cth) and the taking of protected industrial action following the amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), including in particular with respect to multi-employer bargaining and single interest employer authorisations. 5 The application to intervene is made pursuant to r 9.12 of the Federal Court Rules 2011 (Cth), which provides - Interveners (1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court. (2) The Court may 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 the parties wish; and (c) any other matter that the Court considers relevant. (3) When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including: (a) the matters that the intervener may raise; and (b) whether the intervener's submissions are to be oral, in writing, or both. Note 1: The Court may give leave subject to conditions - see rule 1.33. Note 2: The Court may appoint an amicus curiae. 6 Some of the factors to which the Court may have regard in considering whether to give leave to intervene are referred to in sub-rule (2), but this provision is permissive and is not exhaustive. 7 The circumstances in which a court might give leave to a non-party to intervene are the subject of judicial guidance, including in Levy v Victoria (1997) 189 CLR 579 (Levy) and Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; 248 CLR 37 (Roadshow). In Bauer Media Pty Ltd v Wilson [2018] VSCA 68 (Bauer) at [7], the Victorian Court of Appeal distilled the following principles from Levy and Roadshow - [7] The principles upon which a court may grant leave to intervene are not in dispute. The governing principles may be briefly summarised as follows: (1) A non-party whose interests would be affected directly by a decision in a proceeding is entitled to intervene to protect the interest liable to be affected. (2) Where the legal interests of a person may be affected by the operation of precedent or by the doctrine of stare decisis, a court may grant leave to intervene if the interest is sufficiently substantial. (3) Where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. (4) A grant of leave may be limited, and subject to such conditions as to costs or otherwise as will do justice as between the parties. (5) A non-party must satisfy the Court that its contribution, as an intervener, will be useful and different from the contribution of the parties, and that the intervention will not unreasonably interfere with the conduct of the proceeding. (Citations omitted.) 8 It is to be noted that r 64.10(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) makes it a requirement that an applicant for intervention satisfy the Court of Appeal that "the applicant's contribution as an intervener will be useful and different from the contribution of the parties". Rule 9.12(2) of the Federal Court Rules makes that consideration potentially relevant, but not mandatory. 9 In Roadshow, the High Court drew a distinction between a non-party whose legal interests would be directly affected by a decision in the proceeding, and a non-party whose legal interests would only be indirectly or contingently affected. At [2], the Court stated - Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation. 10 Mr Fagir for the ACTU accepted that Mr O'Brien's position was indirect and not direct in the sense explained in Roadshow. 11 As to what constitutes a contribution that "will be useful and different from the contribution of the parties to the proceeding", that was the subject of discussion by the High Court in Roadshow at [3] - Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose. (Emphasis added.) 12 On this application, having reviewed the proposed submissions of counsel for the ACTU, I am not satisfied that the submissions will be useful and different from those that the respondents propose to advance. In saying this, I am not casting any doubt on the quality of the proposed submissions that were prepared by Mr Fagir. In any event, Mr Saunders, counsel for the respondents, stated that if leave to the ACTU to intervene were refused, he would adopt the ACTU's proposed submissions. 13 Accordingly, leave to intervene will be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

SCHEDULE OF PARTIES NSD 1770 of 2024 Respondents Fourth Respondent: ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA Fifth Respondent: AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION