Mulcahy, Barry v Hydro-Electric Commission

[1998] FCA 834

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 1  of   1996

BETWEEN:	BARRY MULCAHY & ORS APPLICANTS
AND:	THE HYDRO-ELECTRIC COMMISSION RESPONDENT
JUDGE:		HEEREY J
DATE OF ORDER:		2 JULY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. All applicants pay the costs of the respondent, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	TG 1 of 1996

BETWEEN:	BARRY MULCAHY & ORS APPLICANTS
AND:	THE HYDRO-ELECTRIC COMMISSION RESPONDENT

JUDGE:	HEEREY J
DATE:	2 JULY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. DIFFERING PERSONAL CIRCUMSTANCES
   Following the directions given on 3 June 1998 the solicitors for the applicants filed written submissions which asserted that the personal circumstances of some of the applicants took them outside the findings in my reasons for judgment.  The applicants in question were all Wages employees, as distinct from Staff (see pp 24-25 above).  In terms of their employment duties with the Hydro they fell into the following categories:

1. nineteen former retail supply branch employees who worked as linesmen;

2. six former maintenance workers in the Moonah workshop; and

3. one former maintenance worker in the Devonport workshop.

It was submitted that the employment of all these workers was not dependent upon Parliamentary approval of dam building projects.  The retail supply branch applicants were said to have been involved in the maintenance of the means of distribution of electricity, which employment was “necessarily permanent”.  The employment of the workshop employees was said to have been associated with the maintenance of vehicles and the like.

I do not accept these submissions.

The applicants’ argument would have the effect that any Wages employee engaged by the Hydro for work not immediately connected with dam construction became, at the moment of engagement, a permanent employee.  Such an employee would be immediately liable to the 5.5 per cent deduction from wages and the loss of entitlements under the 1925 Act.

In my opinion this would be a quite unrealistic construction to put on the contract that the parties made.  When engaging Wages employees, the Hydro made no distinction between the Construction Division and other divisions.  The same procedure was followed:  see T 790.

In any case, there was movement of employees between divisions.  This meant that any Wages employee was potentially a Construction Division worker.  The applicants’ argument would mean that a worker who transferred to the Construction Division automatically ceased to be permanent and, in the converse case, automatically became permanent, in each case with profound effect on rights and obligations under the RBF Scheme and the 1925 Act. 

Also, there was in fact a connection in terms of actual work; for example the Moonah workshop serviced Construction Division vehicles.

Moreover, two of these applicants, John Barry Davidson and Daniel McDonald (both Moonah workshop), are statute barred, their employment being terminated before 1 February 1990 (see pp 105-109 above).

1. COSTS
   The applicants submitted that costs be awarded “against each rateably”.  I take that to mean that each applicant would only be liable for a one hundred and ninety-fourth share of the Hydro’s costs.  I assume that it is not suggested that there be a weighting depending on the amount of each applicant’s potential claim.

I do not accept this submission.  The usual order against unsuccessful parties in the same interest is made on a basis of joint and several liability.  Applicants would have rights of contribution as between themselves:  see Albion Insurance Co Ltd v Government Insurance Office of NSW (1969) 121 CLR 342 and R P Meagher, W M C Gummow and J R F Lehane, Equity Doctrines and Remedies (1992) Ch 10. That is a more appropriate mechanism to prevent individual applicants bearing an undue burden.

1. FINAL ORDERS
   There will be orders that the application be dismissed and that all applicants pay the costs of the Hydro, including reserved costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:             2 July 1998

Counsel for the Applicants:	Mr Peter Tree and Mr Simon Cooper
Solicitor for the Applicants:	Ogilvie McKenna
Counsel for the Respondent:	Mr Peter Evans and Mrs Kim Bennett
Solicitor for the Respondent:	Butler McIntyre & Butler
Date of Hearing:	2 July 1998
Date of Judgment:	2 July 1998