FEDERAL COURT OF AUSTRALIA
Grant v BHP Coal Pty Ltd [2015] FCA 329
Citation: Grant v BHP Coal Pty Ltd [2015] FCA 329 Parties: DARRIN JAMES GRANT v BHP COAL PTY LTD and FAIR WORK COMMISSION File number: QUD 429 of 2014 Judge: COLLIER J Date of judgment: 10 April 2015 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for union to be joined as applicant in substantive proceeding – r 9.05(1)(b)(ii) and/or (iii) Federal Court Rules 2011 (Cth) – substantive proceedings concern actions taken by employer pursuant to Coal Mining Safety and Health Act 1999 (Qld) – union represented applicant prior to termination of employment – evidence of union involvement in substantial litigation relating to the right and obligations conferred and imposed by that legislation – union submission that it has interest in applicant’s claim for declaratory relief – submission that joinder would not add additional time or cost to hearing – applicant has not advanced any reason why the union should be joined – no material before the Court evidencing existence or related dispute or that joinder would avoid multiplicity of proceedings Legislation: Judiciary Act 1903 (Cth) s 39
Federal Court Rules 2011 (Cth) r 9.05, 9.05(1)(b)(ii), 9.05(1)(b)(iii)
Coal Mining Safety and Health Act 1999 (Qld)Cases cited: Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398
Grant v BHP Coal Pty Ltd [2014] FWC 1712
Grant v BHP Coal Pty Ltd [2014] FWCFB 3027
McAlister v State of New South Wales [2014] FCA 702
Sienkiewicz v Salisbury Group Pty Limited [2013] FCA 977
Whitton (Trustee), in the matter of Perovich (Bankrupt) v Neolido Holdings Pty Ltd (Receivers and Managers Appointed) [2014] FCA 832Date of hearing: 26 March 2015 Place: Brisbane Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Mr BG Docking Solicitor for the Applicant: Hall Payne Lawyers Counsel for the First and Second Respondents: Mr I Neil SC with Mr S Meehan Solicitor for the First and Second Respondents: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 429 of 2014
BETWEEN: DARRIN JAMES GRANT
ApplicantAND: BHP COAL PTY LTD
First RespondentFAIR WORK COMMISSION
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
10 APRIL 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The applicant’s interlocutory application filed on 12 March 2015 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION
QUD 429 of 2014
BETWEEN: DARRIN JAMES GRANT
ApplicantAND: BHP COAL PTY LTD
First RespondentFAIR WORK COMMISSION
Second Respondent
JUDGE:
COLLIER J
DATE:
10 APRIL 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The interlocutory application before the Court was filed on 12 March 2015 by the applicant in the substantive proceedings, Mr Darrin Grant. In that interlocutory application Mr Grant sought the following order:
That pursuant to rule 9.05(1)(b)(ii) and/or (iii) of the Federal Court Rules
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- Case
- [2015] FCA 329
- Decision Date
CaseChat Overview and Summary
The Court examined the application under r 9.05(1)(b)(ii) and (iii) of the Federal Court Rules 2011 (Cth). Rule 9.05(1)(b)(ii) requires that the joinder of a third party be necessary to ensure that each issue in dispute is able to be heard and finally determined. Rule 9.05(1)(b)(iii) pertains to a presently existing related dispute between the non-party and the respondent. The Court noted that Mr. Grant had not advanced any reasons to support the necessity for the CFMEU's joinder under either provision. The respondent opposed the application on the basis that there was no evidence of a related dispute or that joinder would avoid a multiplicity of proceedings. The Court found that Mr. Grant had not provided any material to substantiate his claim for joinder, and accordingly, the application was dismissed.
The Court's decision hinged on the lack of evidence supporting the necessity of the CFMEU's joinder or the existence of a related dispute. The submissions made by the CFMEU did not provide sufficient grounds for the Court to conclude that the joinder was necessary to ensure the resolution of all issues in dispute. The Court's reasoning was that the applicant had not met the threshold requirements of the relevant Federal Court Rules. Consequently, the interlocutory application filed by Mr. Grant on 12 March 2015 was dismissed, and the CFMEU was not joined as an applicant in the substantive proceedings.
Orders
Orders of the court
The applicant’s interlocutory application filed on 12 March 2015 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The interlocutory application is opposed by the first respondent because, in summary:·Mr Grant has not advanced any reason why the Court could or should conclude that the joinder of the CFMEU as an applicant is “necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined” within the meaning of r 9.05(1)(b)(ii); and·So far as concerns r 9.05(1)(b)(iii), Mr Grant does not identify any claim by the CFMEU against the first respondent capable of being characterised as a presently existing “related dispute”.Consideration In my view the submissions of the first respondent are correct. Mr Grant has not advanced reasons to support his claim for joinder of the CFMEU as an applicant pursuant to either r 9.05(1)(b)(ii) or r 9.05(1)(b)(iii). Mr Grant submits that the joinder of the CFMEU is necessary not only to ensure that each of the issues relating to health assessment and disciplinary interviews are able to be heard and finally determined, but to avoid a multiplicity of proceedings. Other than the bald statement to this effect in Mr Smyth’s affidavit, no material has been advanced to support this claim. The power of the Court under the Federal Court Rules 2011 to order a party to be joined to a proceeding is found in r 9.05. In McAlister v State of New South Wales [2014] FCA 702 at [14] Edmonds J explained that only a party to extant proceedings can make an application under r 9.05 to join a person who is a non-party to the proceedings. In this case Mr Grant is clearly a party to the proceedings. It is not in dispute that the interlocutory application is his or that the Court is empowered to make an order in the terms sought by Mr Grant. Mr Grant has specifically chosen to rely on subr (1)(b)(ii) and (1)(b)(iii), presumably because he could not substantiate a case under other parts of r 9.05. However satisfaction of subr 9.05(1)(b)(ii) or (iii) is dependent on compliance with the requirements of those provisions. Rule 9.05(1)(b)(ii) requires that joinder of the third party be necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined. An example of the application of this rule was in Whitton (Trustee), in the matter of Perovich (Bankrupt) v Neolido Holdings Pty Ltd (Receivers and Managers Appointed) [2014] FCA 832. In that case, in a dispute in respect of an alleged voidable antecedent transaction in a bankruptcy, certain funds had been paid into the Supreme Court of Queensland pending resolution of the bankruptcy dispute in the Federal Court. The trustee in bankruptcy claimed entitlement to those funds, however a competing claim to those funds was made by a third party. Wigney J agreed that joinder of the third party was necessary in the extant Federal Court proceedings to ensure that each issue in dispute in relation to entitlement to the funds paid into the Supreme Court of Queensland was able to be heard and finally determined in the Federal Court.