The Gas Industry Salaried Officers Federation v The Municipal Officers Association of Australia

[1989] FCA 368

Re: THE GAS INDUSTRY SALARIED OFFICERS' FEDERATION
And: THE MUNICIPAL OFFICERS' ASSOCIATION OF AUSTRALIA and STEPHEN
PHILLIP GIBBS
No. NI 17 of 1989
FED No. 368
Industrial Law
88 ALR 113
29 IR 48

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J.(1)

CATCHWORDS

Industrial Law - Proceedings for cancellation of registration of organisation - Application by three employers for leave to intervene - Power of single Judge to deal with application - Merits of application.

Industrial Relations Act 1988 ss.53, 59, 294.

Federal Court Rules O.10 r.1.

HEARING

SYDNEY

#DATE 21:7:1989

Counsel for the Applicant: Mr J W Shaw QC with

Mr M Walton

Solicitors for the Applicant: Turner Freeman

Counsel for the Respondents: Mr W R Haylen

Solicitors for the Respondents: Ryan Carlisle Needham Thomas

Counsel for The Gas and Fuel
Corporation of Victoria: Dr C N Jessup QC with

Mr J G Santamaria

Solicitors for The Gas and
Fuel Corporation of Victoria: Mallesons Stephen Jaques

Counsel for the Australian
Gas Light Company and South
Australian Gas Company
Limited: Mr R S Warren

Solicitors for the Australian
Gas Light Company: Smith Chapman & Co

Solicitors for South
Australian Gas Company Limited: Finlaysons

ORDER

THE COURT ORDERS THAT:

1. Leave be granted to each of The Gas and Fuel Corporation of Victoria, South Australian Gas Company Limited and the Australian Gas Light Company to intervene in the principal proceeding.

2. The Notice of Motion filed on behalf of the respondents and dated 7 July 1989 be reserved until the hearing of the principal proceeding.

AND THE COURT DIRECTS THAT:

A. The applicant file and serve points of claim on or before 14 July 1989.

B. The respondent make any request for particulars which it considers necessary by 21 July 1989. C. The applicant provide a reply to any request for particulars on or before 28 July 1989. D. The respondent file and serve points of defence on or before 11 August 1989.

E. Evidence shall be given by affidavit, subject to such cross-examination as may be required. F. The applicant file and serve all affidavits on which it will rely on or before 25 August 1989. G. The intervenors file and serve all affidavits upon which they will rely, together with a note of the propositions of fact and of law for which they will contend at the hearing, on or before 1 September 1989. H. The respondent file and serve the affidavits on which it will rely on or before 15 September 1989. I. The applicant file and serve any affidavits in reply on or before 22 September 1989. J. Liberty to apply be reserved to all parties on three days' notice in writing to all other parties. K. The matter be listed for further directions on 27 September 1989 at 9.30 am.

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

JUDGE1

There is pending in the Court a proceeding in which The Gas Industry Salaried Officers' Association ("GISOA"), an employees' organisation registered under the Industrial Relations Act 1988, seeks an order for the cancellation of the registration under that Act of another employees' organisation, The Municipal Officers' Association of Australia ("MOA"). MOA is the first respondent to that proceeding. The second respondent, Stephen Phillip Gibbs, is an officer of MOA. By its application GISOA seeks orders restraining Mr Gibbs from taking certain actions concerning recruitment of members to MOA.

The facts

1. The proceeding arises out of competition between the two organisations for coverage of employees of The Gas and Fuel Corporation of Victoria ("Gas and Fuel"). As its name suggests, Gas and Fuel is a corporation concerned with the reticulation of gas within Victoria. GISOA and Gas and Fuel are parties to the Gas Industry Salaried Officers' (Gas and Fuel Corporation of Victoria) Agreement 1952, an agreement certified under the Conciliation and Arbitration Act 1904 and continued in force by s.7 of the Industrial Relations (Consequential Provisions) Act 1988 as an award under the Industrial Relations Act. Over recent months, officers of a division of MOA, styled "MOA Energy" have contacted some GISOA members, being employees of Gas and Fuel, for the purpose of asking them to join MOA. Those officers have claimed that the Constitution of MOA is sufficiently wide to cover such employees. The employees have been invited to sign letters addressed to the Paymaster of Gas and Fuel terminating the Paymaster's existing authority to deduct union dues for GISOA and to sign authorities in favour of MOA.

2. On 19 April 1989, Mr C J Sutherland, the Secretary of MOA, wrote a letter to Gas and Fuel demanding wage and salary increases of 15% for all persons employed by Gas and Fuel. Other claims were also made. Gas and Fuel responded to this letter, stating amongst other things that it did not recognise MOA Energy as the representative of its salaried staff and that it would not entertain demands or enter into discussions with the organisation.

3. Mr Sutherland was not put off by this response. On 27 April 1989 he put out a pamphlet, called "Newsbrief", announcing the claims. That pamphlet included the following:
   

"MOA is a dynamic and growing union with over 50,000 members nationally and around 14,000 in the Energy Industry throughout Australia. MOA has been at the forefront of winning new and improved conditions for members and offers a host of services, both industrial and non-industrial, to its members. MOA is determined to achieve the earliest possible wage increases for its members under the new wages system. To achieve this, MOA is committed to the fullest possible membership participation in the design and negotiation of career structures to go with the claimed salary increases.

We must have you as members in order to achieve these goals. Effective trade unionism depends on membership strength and commitment - with your help we can improve your conditions of employment. Don't just take us on face value, look at our record - judge our past performance and then decide. The membership application on the reverse side is provided for your convenience."

1. On the following day Mr Sutherland issued a further "Newsbrief" announcing a special meeting of all Gas and Fuel employees for 10 May 1989 at Traralgon, the purpose of the meeting being to discuss the log of claims served by MOA on Gas and Fuel. The pamphlet stated: "A presentation will be made which describes the services of MOA provides to its members. All employees are invited to attend". On 18 May 1989 a further meeting was called, this meeting being at the Hotham City Hotel.

2. The matter comes before me at the present time pursuant to four Notices of Motion. Three of these Notices of Motion seek leave to intervene in the principal proceeding. The Industrial Relations Act contemplates interventions. Section 59 of the Act provides:
   

"59. Where the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding."

1. The Notices of Motion are filed, respectively, by Gas and Fuel, by South Australian Gas Company Limited and by the Australian Gas Light Company ("AGL"). South Australian Gas Company Limited carries on business in South Australia, where it employs 501 members of GISOA. AGL reticulates gas in New South Wales. The number of its employees who are members of GISOA is not disclosed by the evidence, but there is evidence that 980 employees are employed in a classification for which, in the view of Mr D G Tasker, its Manager, Employee Relations, GISOA has sole coverage.

2. Apparently no attempt has yet been made by MOA Energy to recruit members from within the ranks of the employees of South Australian Gas Company Limited or AGL but both these companies are concerned at the possibility that this will happen. In his affidavit in support of AGL's intervention in the application, Mr Tasker said:
   

"4. It is a regular feature of the employment of the above mentioned staff that they are assigned to work on joint development projects with salaried officers employed by the Gas and Fuel Corporation of Victoria. Such a joint development is currently being undertaken in the development of natural gas usages between salaried officers employed by AGL Sydney Limited, The Gas and Fuel Corporation of Victoria and the South Australian Gas Company.

5. I have been told and I verily believe that negotiations directed towards the amalgamation of Federated Gas Employees' Industrial Union and Gas Industry Salaried Officers' Federation are now at an advanced stage. These two unions of employees cover 98% of employees of the AGL Group of Gas Companies.

6. The Australian Gas Light Company expects that an amalgamated employee representative organisation and the implementation of a common award will facilitate harmonious industrial relations, effective award restructuring and the elimination of demarcation disputes.

7. The Australian Gas Light Company is concerned that the first respondent's attempts to enrol members of the applicant who are employed by the Gas and Fuel Corporation of Victoria is only the first step in a concerted national campaign to attract members of the applicant to the first respondent."

Similar evidence was given by Mr W S Ryan, Manager, Industrial Relations, of South Australian Gas Company Limited.

The respondents' motion

1. The fourth Notice of Motion was filed by the respondents to the principal proceeding, MOA and Mr Gibbs. In that Notice of Motion they seek the summary dismissal of the principal proceeding; alternatively, that it be stayed. The ground of these applications is that the Application filed in the principal proceeding discloses no cause of action.

2. Section 294 of the Industrial Relations Act deals with the cancellation of the registration of an organisation. Subsection (1) of that section sets out the grounds available for such an order. That subsection reads as follows:
   

"294. (1) An organisation or person interested, or the Minister, may apply to the Court for an order cancelling the registration of an organisation on the ground that:

(a) the conduct of:

(i) the organisation (in relation to its continued breach of an award or an order of the Commission or its continued failure to ensure that its members comply with and observe an award or an order of the Commission or in any other respect); or

(ii) a substantial number of the members of the organisation (in relation to their continued breach of an award or an order of the Commission or in any other respect); has prevented or hindered the achievement of an object of this Act;

(b) the organisation, or a substantial number of the members of the organisation or a section or class of members of the organisation, has engaged in industrial action that has prevented, hindered or interfered with:

(i) trade or commerce between Australia and a place outside Australia;

(ii) trade or commerce between the States;

(iii) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

(iv) the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or

(c) the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has or have been, or is or are, engaged in industrial action that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community."

1. During the course of these applications, counsel for GISOA indicated that their client relied upon para.(a)(i) of this subsection, claiming that the conduct of MOA "in any other respect" had prevented or hindered the achievement of one or more objects of the Act. Reference was made to objects (a), (b) and (c), as set out in s.3 of the statute. The submission on behalf of the respondents, apparently, will be that the words "in any other respect" are to be read as limited by the preceding words in the parenthesis, namely, as relating to a breach of, or failure to ensure compliance with, an award or an order of the Commission. I need not express any opinion about the correctness of this submission. Counsel for the respondents indicated during the course of argument that their clients would prefer this question, and therefore the resolution of their Notice of Motion, to be deferred until the hearing of the principal proceeding. This suggestion was not opposed by any other party. It appears to me to be a desirable course. Accordingly, I propose to reserve the respondents' Notice of Motion until the hearing of the principal proceeding. It therefore is unnecessary for me to consider whether I, sitting as a single Judge, would in any event have power to make the orders sought in that Notice of Motion.
   Power of a single Judge

2. However, the question of power does arise in connection with the three employers' Notices of Motion. It arises because of the terms of s.53 of the Industrial Relations Act, which reads as follows:
   

"53. (1) Subject to subsection (2), the jurisdiction of the Court may be exercised by a single Judge.

(2) The jurisdiction of the Court shall be exercised by a Full Court in relation to:

(a) questions referred to the Court under section 46 or 82;

(b) matters in relation to which applications are made to the Court under section 153; and

(c) matters in relation to which applications are made to the Court under section 294.

(3) Subsection (2) does not require the jurisdiction of the Court to be exercised by a Full Court in relation to a prosecution for an offence merely because the offence relates to a matter to which that subsection applies."

1. The principal proceeding is an application under s.294 of the Act. Consequently, it is argued on behalf of the respondents that any order made in connection with that application, even a procedural order such as an order under s.59 granting leave to intervene, must be dealt with by a Full Court. Counsel contends that the employers' Notices of Motion should also be reserved for determination by the Full Court which hears the principal proceeding.

2. Counsel for the three employers submit that the restrictions imposed by s.53(2) do not extend to the making of procedural orders or directions; that the subsection only requires that the final disposal of the matters specified in that subsection will be effected by a Full Court. In support of that submission they refer to the antecedents of s.53.

3. Prior to the establishment of the Federal Court of Australia, jurisdiction in connection with industrial matters was exercised by the Australian Industrial Court, constituted under Part V of the Conciliation and Arbitration Act. By s.98 of that Act it was provided that that Court should consist of a Chief Judge and not more than eleven other judges and that it should be a Superior Court of Record. Section 104(1) provided that, subject to the Act, the jurisdiction of the Court should be exercised by not less than three Judges. However, subs.(2) went on to provide exceptions to that general rule. One of those exceptions was provided by para.(h) of that subsection, whereby the jurisdiction of the Court might be exercised by a single Judge "with respect to a prescribed matter of practice or procedure". Regulation 47, made under the Conciliation and Arbitration Act, provided:
   

"47. (1) For the purposes of paragraph (h) of sub-section (2) of section 104 of the Act, the matters of practice or procedure with respect to which the jurisdiction of the Court may be exercised by a single Judge are those matters in relation to which these Regulations provide that a power or function may be exercised by a Judge.

(2) A Judge may exercise the powers and functions of the Court in relation to any matter of practice or procedure which, under the High Court Rules, would, if it arose in the High Court, be exercisable by a single Justice of the High Court."

1. There appears not to have been any regulation to which sub-reg(1) of reg.47 would apply; but sub-reg.(2) had the effect of making applicable to the Australian Industrial Court O.16 r.4(2) of the High Court Rules, which read:
   

"(2) The Court or a Justice may--

(a) at any stage of the proceedings;

(b) either upon or without the application of a party; and

(c) on such terms as appear to the Court or a Justice to be just,

order that the names of parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court or Justice may be necessary in order to enable the Court or Justice effectually and completely to adjudicate upon and settle all the questions arising, be added."

1. Although that rule does not, in terms, refer to the granting of leave to intervene in a proceeding, it does confer power upon a single Justice of the High Court to order the joinder of parties or persons who ought to have been joined or whose presence may be necessary to enable the Court to settle all questions arising in the case. This is a wide power. It seems to me, to pick up the words of s.59 of the Industrial Relations Act, that this power would extend to the joinder of persons who "should be heard" in a proceeding.

2. The Conciliation and Arbitration Amendment Act (No 3) 1976 was one of a group of statutes passed by the Parliament in connection with the establishment of the Federal Court; the Federal Court of Australia Act 1976 being the principal member of the group. The Conciliation and Arbitration Amendment Act (No 3) amended the parent Conciliation and Arbitration Act by adding a new Part VA to that Act. The principal provision of that new Part was s.118A(1) which read:
   

"(1) On and after the date of commencement of this Part--

(a) the jurisdiction and powers expressed by this Act to be vested in or exercisable by the Court or a Judge of the Court are, except in relation to matters in respect of which the hearing of proceedings in the Australian Industrial Court had commenced or been completed before that date, vested in and exercisable by the Federal Court of Australia or a Judge of that Court and, subject to this section, are exercisable in accordance with the Federal Court of Australia Act 1976; and

(b) a reference in this Act to the Court (other than in sub-sections (1), (3), (4) and (5) of section 104 and sections 105, 114, 115, 116, 117 and 118) shall, in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division."

1. The effect of para.(b) of this subsection was that the reference to the Court in s.104(2) of the Conciliation and Arbitration Act became a reference to the Federal Court of Australia. Consequently, a single Judge of this Court became empowered to deal with matters of joinder in respect of all proceedings other than those which had commenced before the commencement of the new Part.

2. The Conciliation and Arbitration Act was further amended, by the Conciliation and Arbitration Amendment (Federal Court of Australia) Act 1978. Amongst other amendments to s.118A was the insertion of two new subsections, subss.(4A) and (4B), as follow:
   

"(4A) Subject to sub-section (4B), the original jurisdiction of the Federal Court of Australia under this Act (including, subject to sub-section

(4C), its jurisdiction to punish contempts of its power and authority in relation to that jurisdiction) shall be exercised in the Industrial Division by a single Judge.

(4B) The original jurisdiction of the Federal Court of Australia under section 107, 108, 112 or 143, and the appellate jurisdiction of that Court under section 113, shall be exercised in the Industrial Division by a Full Court."

1. Section 143 of the Conciliation and Arbitration Act concerned cancellation of the registration of an organisation; consequently, the jurisdiction of the Federal Court in respect of cancellation had to be exercised by a Full Court. However, nothing was said, in terms, about procedural orders and directions in connection with deregistration applications. As s.143 spoke only of an application to the Court "for an order directing the cancellation of the registration of an organization", without any use of the word "matter" or "proceeding", the better view seems to be that the new s.118A(4B) restricted to a Full Court only the jurisdiction to make a cancellation order and that it had nothing to say about procedural and other ancillary orders. This reading is supported by a reference to the Second Reading Speech of the Minister for Employment and Industrial Relations, Mr Street, in connection with the 1978 amending Act. In the course of that speech the Minister referred to the need to revise the then existing requirements of the legislation so as to make the most efficient use of judicial resources. It was for that reason, the Minister said, that the amendments proposed that the original jurisdiction of the Federal Court be exercised by a single Judge of the Industrial Division of the Court "except that jurisdiction under sections 107, 108, 112, 113 and 143 will be reserved to the Court constituted by three or more judges of that Division". Explaining the s.143 exception, the Minister said:
   

"Cancellation of registration is the ultimate and most serious penalty that can be imposed upon an organisation. For this reason, and because of the implications of cancellation for the effective operation of the conciliation and arbitration system, the Government considers it appropriate that jurisdiction in this matter should be reserved to a full court." (See House of Representatives Debates, 4 May 1978, p 1805.)

Those considerations would not, of course, apply to mere procedural orders, even in connection with an application for cancellation of registration.

1. As I understand the position, although the practice
   was not uniformly followed, single Judges have frequently made procedural orders and directions, even in respect of matters whose determination is by statute restricted to a Full Court. Since 1984 that practice has been afforded such support as a Rule of Court may confer by O.10 r.1(1A) which reads:
   

"(1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge."

1. So far as I am aware, neither the practice nor the
   Rule came under challenge prior to the repeal of the Conciliation and Arbitration Act; consequently, there was no decision upon the correctness of the course which was pursued. But, according to the submission of counsel, the existence of both the practice and the Rule -- whatever their validity -- is material in considering the proper construction of s.53(2) of the Industrial Relations Act. From the date of the establishment of the Australian Industrial Court in 1966 until 1976 procedural orders and directions in deregistration proceedings had been made by single Judges of the Australian Industrial Court without any problem thereby arising; the power to do so being clearly conferred by s.104(2)(h) of the Conciliation and Arbitration Act. In the period of almost twelve years during which this Court had exercised jurisdiction prior to the enactment of the Industrial Relations Act single Judges of this Court had made similar orders; the power to do so being less clear but without any challenge to that power or any problem arising. The practice had been approved, and the power asserted, by a Rule made in 1984. It is difficult to believe, say counsel, that Parliament would have wished to change the present practice and to impose upon the Court and the parties the expense and inconvenience of having to assemble a Full Court for purely procedural applications; but, if this had been the intention and having regard to the history set out above, Parliament surely would have said so in clear words.

2. I think that there is considerable force in this submission. The inconvenience of the restruction urged by counsel for the respondents is so great and so obvious that it ought to be accepted only if the words of the statute reasonably admit of no other interpretation.

3. The argument on behalf of the respondents fastens upon the use in s.53(2)(c) of the word "matters". As counsel point out, the word "matters" is one of the widest import. It is the word which was chosen by the framers of the Australian Constitution in conferring, or in providing for the conferral of, jurisdiction upon the High Court of Australia: see ss.75 and 76 of the Constitution. No doubt this was deliberate. In State of South Australia v State of Victoria (1911) 12 CLR 667 at p 675 Griffith CJ commented that: "The word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice".

4. Nonetheless, the word has specific denotations. It does not extend to every legal question. Speaking in the context of s.76 of the Constitution, Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ, in In Re The Judiciary Act and The Navigation Act (1921) 29 CLR 257 at p 265 said:
   

"It is true that the answer to the question submitted for our determination does involve the interpretation of the Constitution, but is there a matter within the meaning of sec. 76? We think not. It was suggested in argument that 'matter' meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word 'matter' in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court."

1. This approach to the word "matter" has been applied in non-Constitutional contexts. In The Queen v Joske; Ex parte Shop Distributive and Allied Employees' Association (1976) 135 CLR 194 a question arose as to the extent of the powers of the Australian Industrial Court to make interim orders under s.141(2) of the Conciliation and Arbitration Act, any such orders being required by that subsection to be "in relation to the matters to which the proceedings relate". In their joint judgment at p 213 Mason and Murphy JJ referred to this limitation:
   

"It is impossible to read 'the matters to which the proceedings relate' as signifying no more than the relief claimed by the applicant in the proceedings, or, for that matter, than the issues which are raised for decision in the proceedings. The words, we think, signify the controversy between the parties to which the proceedings relate, whether or not it be crystallized as an issue in these proceedings or in the form of the relief sought."

1. This approach to the meaning of the word "matter" was adopted in the context of discussion of the extent of this Court's associated jurisdiction in Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No 9) Pty Limited (1983) 154 CLR 261. It is, I think, the sense in which the word is used in s.53(2). Consequently, the reservation imposed by that subsection extends to the exercise of jurisdiction concerning controversies between parties arising out of applications made to the Court under s.294. As jurisdiction concerning controversies necessarily relates to the determination of those controversies, I interpret s.53(2)(c) as reserving to the Full Court only the jurisdiction to determine the underlying controversy giving rise to an application under s.294; that is the question whether there has been conduct falling within s.294(1) and, if so, whether as a matter of discretion the organisation's registration should be cancelled.

2. The procedural organisation of that resolution is not itself a "matter" in relation to which an application is made under s.294. A different result would apply if Parliament had used a word, such as "proceedings", to indicate that all aspects of a s.294 application were intended to be committed to a Full Court, and to a Full Court alone.

3. In my view it is within the power of a single Judge of the Court to deal with an application under s.59 for leave to intervene, notwithstanding that the principal proceeding is a matter referred to in s.53.
   The merits of the applications for intervention

4. If power is available, there is a strong case for its exercise in favour of the applicants for intervention. In the case of Gas and Fuel the argument for intervention is overwhelming. Gas and Fuel has an obvious interest in the maintenance of harmony amongst its employees. That harmony is likely to be prejudiced by a contest between two unions for coverage of the same workers. Experience shows that such contests frequently lead, not only to problems as between employees, but also to problems involving the employer, by way of bans and other limitations. Consequently, Gas and Fuel has an interest in the prompt resolution by this Court of the dispute between GISOA and MOA for coverage of Gas and Fuel employees.

5. Gas and Fuel also has an interest in the avoidance of a situation whereby, even without active disputation between the two unions and their respective adherents, two separate unions cover the one classification of members. Any such situation must add to the burden of industrial negotiations. Whether that situation will occur may depend upon arguments to be advanced in the principal proceeding relating to the coverage entitlements of the respective unions. Gas and Fuel has an interest, going beyond the interest of an ordinary member of the public, in participating in that argument.

6. The activity undertaken by MOA, in relation to gas industry workers, more immediately affects Gas and Fuel than either of the other applicants for intervention. So far as the evidence shows, their employees have not yet been canvassed by MOA. But this would appear to be merely a matter of time. The "Newsbrief" of 27 April 1989 speaks of the organisation having about 14,000 members "in the Energy Industry throughout Australia". Plainly, the organisation has in mind a national role in connection with the representation of members in the energy industry. Unless the dispute between GISOA and MOA is resolved speedily, it seems highly likely that it will in due course extend to employees of South Australian Gas Company Limited and AGL. Their interest in the resolution of that dispute is less immediate than that of Gas and Fuel, but not different in kind.

7. In the argument of counsel for the respondents reliance is placed upon Australian Building Construction Employees' and Builders Labourers' Federation v Master Builders' Association of New South Wales (1986) 69 ALR 515. That case involved deregistration proceedings, but the question was not whether it was appropriate to give some person leave to intervene, but whether -- the applicant having itself been deregistered -- one or both of two persons ought to be allowed to take over the proceedings as an applicant. Neither of the two persons was an "organization"; that is an organization registered under the Conciliation and Arbitration Act. Consequently, it was necessary for the Court to be persuaded that one or both of them was a "person interested", within the meaning of s.143 of that Act. That argument failed; but I think that the case affords no assistance in connection with the circumstances in which intervention ought to be allowed. Section 59 poses a test different from that of being a "person interested", namely whether the Court is of the opinion that the particular organization, person or body "should be heard" in the proceeding. For the reasons I have expressed, I am of the opinion that it is desirable, in the present case, that each of the three employers be heard in the principal proceeding.

8. A possible course would be to reserve to the Full Court the matter of intervention. However, there are difficulties in that course. If the applications for intervention were reserved without any direction as to pre-trial action by the applicants for intervention, a situation might arise in which the applicants for intervention, having been granted leave to intervene, then reasonably sought time to prepare and file affidavits, inspect documents, and so on. This would necessitate an adjournment of the hearing, with the difficulty of reassembling a Full Court -- arguably it would be necessary to reassemble the same three Judges -- and the cost of a second hearing. If, on the other hand, I were to direct the reservation of the application for leave to intervene but, in the meantime, that the applicants for intervention file affidavits, etc, as if they were parties, I would be exposing them to expense which would be wasted if leave to intervene were refused. Moreover, the other parties would be faced with the task of preparing for trial without knowing the identities of the ultimate parties or the evidence likely to be adduced.

9. I do not think that either of these alternatives is satisfactory. It is better immediately to settle the question of parties. Leave to intervene should be given to each of the three applicants.

10. During the course of argument reference was made to the need for pre-trial directions. There was agreement upon their substance, subject to the matter of intervention, and indeed the principal parties agreed to proceed with the steps set out in the short minutes drafted by counsel even pending any determination of the matter of intervention. I will accordingly incorporate those directions in the order I will make disposing of the notices of Motion.