BM Alliance Coal Operations Pty Ltd v Dalliston & Taylor - [2014] ICQ 3

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	BM Alliance Coal Operations Pty Ltd v Dalliston & Taylor [2014] ICQ 003
PARTIES:	BM Alliance Coal Operations Pty Ltd (applicant) v Dalliston, Greg (first respondent) Taylor, Gavin (second respondent)
CASE NO:	C/2013/23
PROCEEDING:	Application to join a party
DELIVERED ON:	12 March 2014
HEARING DATE:	13 January 2014
MEMBER:	Deputy President O'Connor
ORDERS:	*1. BMA be joined as a party in the proceedings for matter C/2013/16 as the second respondent, pursuant to s 329(b)(iv) of the Industrial Relations Act 1999; and* 2. Costs reserved.
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION TO BE JOINED AS A PARTY - Application by management and operating company responsible for Peak Downs Mine - Where the application was opposed by the first respondent but not the second respondent - Whether the rights or liabilities of the applicant would be directly affected by any order in the substantive proceeding
CASES:	Industrial Relations Act 1999, s 329(b)(iv) Allesch v Maunz (2000) 203 CLR 172 Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Re Multi-Tech Services Pty Ltd (in liq) (1982) 30 SASR 218
APPEARANCES:	Mr P J Roney QC, instructed by Ashurst Australia, for the applicant. Mr M D Hinson QC and Ms C M Hartigan, instructed by the Construction, Forestry, Mining and Energy Union of Employees, Queensland, for the first respondent. Ms A C Freeman, instructed by Crown Law, for the second respondent.

Decision

This is an application by BM Alliance Coal Operations Pty Ltd ("BMA") seeking an order to be joined in the proceeding in matter C/2013/16 ("the substantive proceeding") as the second respondent, pursuant to s 329(b)(i) or (iv) of the Industrial Relations Act 1999 ("the IR Act") or, in the alternative, that BMA be entitled to be heard in the substantive proceeding pursuant to s 329(b)(v).

At the hearing of this application, BMA abandoned reliance on the alternative application pursuant to s 329(b)(v). The application is opposed by the Mr Greg Dalliston, the first respondent in the present application and the appellant in the substantive proceeding. Mr Gavin Taylor, the second respondent in the present application, does not oppose BMA's application to be joined as the second respondent in the substantive proceeding.

The relevant legislation

Section 329 of the IR Act relevantly provides:

"329 Powers incidental to exercise of jurisdiction

Except as otherwise prescribed by this Act or the rules, the court, commission and registrar may—
(a) at or before a hearing, take steps to find out whether all persons who ought to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and

(b)     direct, for proceedings—
(i)     who the parties to the proceedings are; and
(ii)     by whom the parties may be represented; and
(iii) persons to be called to attend the proceedings, if they have not been called and it appears they should attend the proceedings; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] ICQ 3
Decision Date: 12 March 2014

CaseChat Overview and Summary

BM Alliance Coal Operations Pty Ltd applied to the Queensland Civil and Administrative Tribunal to be joined as a party to a proceeding brought by an employee, alleging unfair dismissal. The respondent, Dalliston, opposed the application, but the other respondent, Taylor, did not. The central issue before the Tribunal was whether the applicant's rights or liabilities would be directly affected by any order in the substantive proceeding. The Tribunal considered the statutory provision under which the application was made and assessed the potential impact of joining the applicant as a party on the rights and liabilities of the existing parties.

The Tribunal found that the applicant's rights and liabilities would indeed be directly affected by any order in the proceeding. The applicant, as the management and operating company responsible for the Peak Downs Mine, had a significant interest in the outcome of the substantive proceeding concerning the employee's unfair dismissal claim. The Tribunal concluded that the applicant's involvement in the proceeding was necessary to ensure that all relevant parties with a direct interest in the matter were included, and that the applicant's absence could result in a partial or inadequate resolution of the dispute. Consequently, the Tribunal granted the application and ordered that BM Alliance Coal Operations Pty Ltd be joined as a party to the proceeding.

In accordance with the orders made by the Tribunal, BM Alliance Coal Operations Pty Ltd was joined as the second respondent in the proceeding for matter C/2013/16. The Tribunal also reserved the question of costs, indicating that it would be addressed at a later stage in the proceedings. The decision underscores the importance of ensuring that all relevant parties with a direct interest in a matter are included in the proceeding to achieve a comprehensive and fair resolution of the dispute.

Orders

Orders of the court

1. BMA be joined as a party in the proceedings for matter C/2013/16 as the second respondent, pursuant to s 329(b)(iv) of the Industrial Relations Act 1999; and

2. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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