Hardie, C.S. (The Application of)

[1989] FCA 257

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JUDGMENT NO. .2.6.2..%=

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1

INDUSTRIAL DIVISION 1

The Application of COLIN STANLEY HARDIE

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J.

FEDERAL COURT OF

DATE OF ORDER:	18 MAY 1989	?	AUSTRALIA
PRINCIPAL REGISTRY
WHERE MADE:	BRISBANE
THE COURT:

1.    orders that the applicant, Mrs Mellor, be given leave under 8.59 of the Act to intervene in the proceedings, being the application made by Mr Hardie;

2.   adjourns the application for leave to intervene by Hr Grace's other clients to a date to be fixed, to be brought on on reasonable notice;

3.     rescinds the directions given on 26 April 1989, and replaces them by the following directions:

(a) that the application proceed on affidavit;

(b) that the intervenor file any affidavits to be relied on by her by 24 Hay 1989;

(C) that the applicant, Mr Hardie, and the

NOTE :	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

organisation, file any affidavits to be relied on

by them by 7 June 1989;

(d) orders that the matter be set down for hearing on the date previously fixed - that is, 10.15 a.m. on Thursday, 15 June 1989;

4.    orders that if the further proposed intervenors, Sandra Spencer and others, be given leave to intervene, only one set of counsel shall be heard on behalf of Mrs Mellor and the proposed CO-intervenors.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1
P	1

The Application of COLIN STANLEY HARDIE

PINCUS J . 18 MAY 1989

EX TEMPORE REASONS FOR JUDGMENT

This is an application made by Shirley Mellor and others under s.59 of the Industrial Relations Act 1988. It is an interlocutory application, which is related to an application by Mr C.S. Hardie made on 11 April 1989 for leave to continue to hold certain union offices and ancillary relief.

The history of the matter, briefly, is that there was an election which was impugned, and an inquiry was held before this

Court, heard by Gray J., and that inquiry was held on the

application of Mrs Mellor.

Counsel who appeared for Mr Hardie today, Mr Jerrard, has been good enough to inform me of the fate of the application, namely that after some days hearing, during which Mrs Mellorfs counsel took an active part, the matter was resolved by agreement,

and a new election took place. Mr Hardie was again successful.

The present application arises out of the circumstance that Mr Hardie has been convicted of a prescribed offence within the meaning of 6.230 of the Industrial Relations Act 1988. Prior to the application to intervene, the only parties to that were Mr Hardie himself and the organisation. They were represented before me on 26 April when I made certain directions as to affidavits, and it was intimated then that there would be no opposition to Mr Hardiels application.

Mr Grace, who appears today for Mrs Mellor, says that she should be allowed to intervene, as should a number of other persons alleged to be members of the union. One of the complaints Mr Jerrard makes in answer to the application is that it may be that material which is irrelevant, or of only very limited relevance, may be placed before the Court in pursuance of any leave to intervene, that it may turn into a slanging match and a means of improper use of the Court, by putting baseless defamatory

material before it, which could thus be published without fear of a suit for defamation. Use of the Court proceedings in that way

would, of course, be improper, and it would be, one would think,
profesrional misconduct.

Mr Grace says that the details of the matters which she will ask the Court to take into account will be ready to be filed in affidavit form in six days time. It seems to me that if the material is scandalous or vexatious or irrelevant, it could be struck out, and probably would be, but the essential point, in my opinion, arises from para.5 of Mrs Mellorvs affidavit, supplemented by the statement from the bar table by Mr Jerrard, as to the way in which the hearing proceeded. It appears that Mrs Mellor was the moving spirit of the whole inquiry, which resulted as I have mentioned. She was represented there pursuant to statutory right. The situation seems to me to be analagous to that dealt with in the High Court of Sinclair v. Mining Warden at Maryborough (1975) 132 C.L.R. 473, especially at p.478. It is true that, unlike Mr Sinclair, Mrs Mellor has no right to appear. It is a matter of discretion. But it would seem to me to be quite an odd result that she should have a statutory right to institute the inquiry, but should be regarded as not having sufficient interest to be given leave to intervene at what might be described as the ultimate outcome.

I say it is the ultimate outcome because, as I understand the matter, prosecutions which resulted in Mr Hardie's convictions were concerned with the same matters as the inquiry.

Mr Jerrard objects to persons other than Mrs Mellor - of course,

he objects to Mrs Mellor herself being given leave to intervene - being given leave to intervene, because there is no evidence that any of the other persons mentioned in Mr Croft's affidavit are

members of the union. Mr Grace says that they are, as he understands it, but he will have to prove that, if he wants to pursue their application for leave to intervene.

It is also pointed out by Mr Jerrard that if leave to intervene is given to all these persons, there may be numerous separate representations, and the case may take a very long time. As well, he points to the limited power of the Court to award costs. Mr Grace, on the other hand, says that in his opinion the case will not take very long, and I think I am entitled to take into account the view of a reputable solicitor on such a matter, although, of course, such views have sometimes turned out to be erroneous.

In short, I think that the application should be granted, in view of Mrs Mellorfs special position in the history of the case, and in view of the whole of the circumstances: otherwise the application would be, essentially, ex parte. As to the latter point, it did concern me somewhat when the last directions hearing came on that I might be forced into the position of having to question Mr Hardie myself to satisfy myself that he should get the leave of the Court and that would be an invidious role for a Court. An advantage of Mrs Mellor1s being there is that the Court can keep out of the dispute altogether.

I will make an order that the applicant, Mrs Mellor, be being the application made by Mr Hardie; I do so on the ground given leave under s.59 of the Act to intervene in the proceedings, that I am of the opinion she should be heard in the proceedings. I will adjourn the application for leave to intervene by Mr Gracels other clients to a date to be fixed, to be brought on on reasonable notice.

I will rescind the directions I gave on 26 April, and I will replace them by the following directions:

1.	that the application proceed on affidavit;
2.	that the intervenor file any affidavits to be relied on by her by 24 May 1989;
3.	that the applicant, Mr Hardie, and the organisation, file any affidavits to be relied on by them by 7 June.

I order that the matter be set down for hearing on the date

previously fixed - that is, 10.15 a.m. on Thursday, 15 June.

If the further proposed intervenors, Sandra Spencer and others, be

given leave to intervene, only one set of counsel shall be heard
on behalf of Mrs Hellor and the proposed CO-intervenors.

:  certify that this and the 'f preceding

pages arz a trua copy of the reasons for

judgment herein of His Honour

Mr. Justice Pincus J$/&

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Dated / f 1~7 q ' /