Transport Secretary v Australian Rail Tram and Bus Industry Union

[2017] NSWSC 696

Supreme Court

New South Wales

Medium Neutral Citation:

Transport Secretary v Australian Rail Tram and Bus Industry Union [2017] NSWSC 696

Hearing dates:

25 May 2017

Date of orders:

25 May 2017

Decision date:

25 May 2017

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) I grant leave to the plaintiff, pursuant to r. 12.1(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), to file a Notice of Discontinuance in the proceedings on terms that the plaintiff is not to commence further proceedings in respect of the named defendant, the Australian Rail, Tram and Bus Industry Union, in relation to the matters set out in the amended summons filed in Court on 19 May 2017.

 

(2)   The Notice of Discontinuance referred to in order (1) is to be filed by 5pm on 25 May 2017.

 (3)    I make no order as to costs.

Catchwords:

PRACTICE AND PROCEDURE – Where plaintiff sought to discontinue proceedings – Where discontinuance was sought on terms – Whether terms appropriate – No point of principle

Legislation Cited:

Industrial Relations Act 1996 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

The Kronprinz (1887) 12 App Cas 256

Category:

Principal judgment

Parties:

Transport Secretary - Plaintiff
Australian Rail Tram and Bus Industry Union - Defendant

Representation:

Counsel:
C Lenehan - Plaintiff
F Reitano - Defendant

  Solicitors:
Crown Solicitor for NSW - Plaintiff
Slater and Gordon - Defendant

File Number(s):

2017/150814

Publication restriction:

Nil

Judgment – EX TEMPORE (REVISED)

1. By an amended summons filed in court on 19 May 2017 the plaintiff sought (inter alia) orders pursuant to s. 139(3) of the Industrial Relations Act1996 (NSW). The amended summons was supported by an affidavit of Margaret Prendergast of 19 May 2017. The matter came before Walton J on that day when his Honour made interim orders, the effect of which were to bring the matter back before the Duty Judge today. In the intervening period a further affidavit of Ms Prendergast of 22 May 2017 was filed.

2. The amended summons names the defendant as “The Australian Rail Tram and Bus Industry Union". In brief terms, it is alleged by the plaintiff that the defendant breached one or more of the orders made by Commissioner Murphy in the Industrial Relations Commission on 17 May 2017, the effect of such orders being to prevent (inter alia) the organisation of certain industrial action.

3. Following the orders made by Walton J on 19 May 2017, the defendant filed an affidavit of Phillip Pasfield of 23 May 2017. That affidavit canvassed, amongst other things, the history of the registration of the defendant, pointing out (inter alia) that in 2016 registration of an organisation was effected in the name of the "Rail Tram and Bus Union of New South Wales". That organisation is not the named defendant.

4. When the matter came before me this morning, counsel for the plaintiff indicated that in the circumstances which had arisen the plaintiff was not in a position to proceed with the matter against the defendant. He sought leave to discontinue the proceedings. Whilst leave is not opposed by the defendant, an issue has arisen as to the term(s) upon which such leave ought be granted.

5. It is the plaintiff's position that leave should be granted on the following terms:

The Transport Secretary is not to commence further proceedings in respect of the named Defendant, the Australian Rail, Tram and Bus Industry Union, in relation to the matters set out in the amended summons filed in Court on 19 May 2017.

This condition does not prevent the Transport Secretary from commencing proceedings against the Rail, Tram and Bus Union of New South Wales being the industrial organisation registered under ch 5 of the Industrial Relations Act 1996.

6. The defendant takes no issue with the first paragraph, but objects to the second.

7. Rule 12.1 of the Uniform Civil Procedure Rules2005 (NSW) governs the discontinuation of proceedings. Rule 12.1(1) is in the following terms:

[r 12.1] Discontinuation of proceedings

12.1 The Plaintiff, in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant:

(a) with the consent of each other active party in the proceedings, or

(b) with the leave of the Court.

8. For the purpose of the present case, r. 12.1(1)(b) is the operative provision. It is common ground between the parties that the power of the Court to grant leave extends to a grant of leave upon a particular term or terms.

9. Also relevant in the circumstances of the present case is r. 12.3 which is in the following terms:

[r 12.3] Effect of discontinuance

12.3(1) A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.

(2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue.

10. Discontinuation of proceedings does not bar subsequent proceedings, nor does it bar an application to revive the original proceedings by setting aside the discontinuation, unless the discontinuation was ordered on terms that no new proceedings would be brought: see for example The Kronprinz (1887) 12 App Cas 256 at 262.

11. As I have indicated, no issue is taken with the first paragraph of the proposed terms, although the need for that provision is questionable. The plaintiff accepts that the present proceedings cannot be continued, hence the necessity to seek leave to discontinue. The effect of the first paragraph is to prevent the plaintiff from commencing the same proceedings again. If that were to eventuate, one would infer that the result would be the same. However as no issue is taken with it, and having regard to the provisions of r. 12.3, it is a condition that I propose to impose on the grant of leave.

12. As to the second paragraph, the plaintiff is at liberty to commence fresh proceedings against the Rail, Tram and Bus Union of New South Wales if it wishes to do so. That organisation in not the named defendant. In those circumstances, the second paragraph has little or no utility. For that reason, it should not be imposed as a term of a grant of leave.

13. I should also note that in the course of submissions an issue was initially raised by the defendant as to the costs of the proceedings. No application for costs has been pursued and in these circumstances, I propose to make no order as to costs.

14. For these reasons, I make the following orders:

1. I grant leave to the plaintiff, pursuant to r. 12.1(1)(b) of the Uniform Civil Procedure Rules 2005, to file a Notice of Discontinuance in the proceedings on terms that the plaintiff is not to commence further proceedings in respect of the named defendant, the Australian Rail, Tram and Bus Industry Union, in relation to the matters set out in the amended summons filed in Court on 19 May 2017.

2. The Notice of Discontinuance referred to in order (1) is to be filed by 5pm on 25 May 2017.

3. I make no order as to costs.

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Decision last updated: 02 June 2017