FEDERAL COURT OF AUSTRALIA

Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2024] FCA 1104

ORDERS

THE COURT ORDERS THAT:

1.    The hearing be listed for an estimate of 1.5-2 days.

2.    Pursuant to r 36.32 of the Federal Court Rules, Dyno Nobel Asia Pacific Pty Limited (the “intervener”) have leave to intervene in the appeal to make written and oral submissions regarding issues raised by appeal grounds 1 and 2, such submissions to be limited to the agitation of matters that are additional to those addressed by the appellant.

3.    In accordance with Practice Note APP2 and by no later than 4.00pm on Thursday, 3 October 2024, the appellant file and serve on all parties an outline of submissions (which are not to exceed 10 pages, including any annexures) and chronology of the relevant events.

4.    In accordance with Practice Note APP2 and by no later than 4.00pm on Thursday, 10 October 2024, the intervener file and serve on all parties an outline of submissions (which are not to exceed 10 pages, including any annexures).

5.    In accordance with Practice Note APP2 and by no later than 4.00pm on Thursday, 31 October 2024, the respondent file and serve on all parties:

(a)     an outline of submissions in response to the appeal and in support of the Notice of Contention (which are not to exceed 20 pages, including any annexures);

(b)    a chronology of the relevant events; and

(c)    a list of materials to be included in Part C of the appeal book.

6.    In accordance with Practice Note APP2 and by no later than 4.00pm on Monday, 11 November 2024, the appellant file and serve on all parties any submissions in reply on the appeal and in response to the Notice of Contention (which are not to exceed 5 pages, including any annexures).

7.    In accordance with Practice Notice APP2 and by no later than 4.00pm on Tuesday, 12 November 2024, the intervener file and serve on all parties an outline of submissions in reply on the appeal (which are not to exceed 5 pages, including any annexures).

8.    In accordance with Practice Note APP2 and by no later than 12.00pm on Monday, 18 November 2024, the respondent file and serve on all parties an outline of submissions in reply on the Notice of Contention (which are not to exceed 5 pages, including any annexures).

9.    In accordance with Practice Note APP2 and eBooks Practice Note, not later than 4.00pm 10 business days before the hearing, the appellant file and serve on all parties Part C of the appeal book in electronic format.

10.    In accordance with Practice Note APP2, not later than 4.00pm 10 business days before the hearing the appellant serve on all parties a list of authorities and a list of any legislation to which the party intends to refer.

11.    In accordance with Practice Note APP2, not later than 4.00pm 8 business days before the hearing, the respondent and the intervener serve on all parties a list of authorities and a list of any legislation to which the party intends to refer.

12.    In accordance with the eBooks Practice Note, not later than 4.00pm 2 business days before the hearing, the appellant file and serve an eBook of authorities being a jointly consolidated version of all of the authorities, legislation and explanatory and other material proposed to be relied on at the hearing by all parties.

13.    Outlines of submissions are to be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.

14.    All parts of the appeal book, and lists of authorities and legislation be provided to the Court in electronic form in accordance with the format(s) specified in paragraph 4.3 of the eBooks Practice Note.

15.    Costs of the intervener’s application for leave to intervene be reserved.

THE COURT NOTES THAT:

16.    In accordance with paragraph 2.1 of Practice Note APP2, any default of a requirement set out in the abovementioned orders or related Practice Note of more than 5 days is to be brought to the attention of the chambers of the judge hearing the appeal, or presiding judge if there is more than one judge, or the appeals registrar who will then give or arrange for appropriate directions. Other parties to the appeal are to be notified also.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    By an interlocutory application dated 9 August 2024, Dyno Nobel Asia Pacific Pty Limited (“Dyno Nobel”) applies under r 9.12(1) of the Federal Court Rules 2011 (Cth) (the “Rules”) for leave to intervene in the present appeal. For the reasons that follow, that application should and will be granted.

2    The substantive appeal is brought by Orica Australia Pty Ltd (“Orica”) as the unsuccessful party to two judgments of this court (hereafter and collectively, the “Primary Judgments”). By way of summary, the Primary Judgments concluded that Orica engaged employees who were “eligible employees” within the meaning of s 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) (the “CMIA Act”). The employees in question are, for present purposes, conveniently described as “shotfirers” who were deployed to work at open-cut black coal mines in New South Wales. By reason of their qualifying as “eligible employees”, the court determined to make declaratory orders recording as much; and to uphold as valid a notice that the respondent had issued to Orica requiring that it produce certain information under the CMIA Act.

3    By its notice of appeal, Orica maintains that those conclusions were wrongly arrived at and seeks relief consistent with that contention. Dyno Nobel now applies for leave to intervene to support it in that endeavour. To that end, it relies upon an affidavit affirmed by Ms Claire Elise Reynolds, its Vice President of Human Resources (Ms Reynolds is, in fact, employed by Dyno Nobel’s parent company but nothing turns upon that).

4    Dyno Nobel also employs “shotfirers”, some of whom it has occasion to deploy to work at open-cut black coal mines. Since the handing down of the Primary Judgments, it has fielded correspondence from the respondent demanding that it make financial contributions under the CMIA Act in respect of those employees. Those demands are pressed on the familiar premise that the Dyno Nobel employees are “eligible employees” within the meaning of s 4(1) of the CMIA Act.

5    Dyno has resisted the demands made of it to date and maintains that it does not employ “eligible employees”. It is plain that that contention will be difficult (though not impossible) for it to maintain in the face of the Primary Judgments (and, to the extent that they might be upheld, this court’s judgment in the extant appeal).

6    The respondent opposes the application for leave to appeal.

7    Rule 9.12 of the Rules provides as follows:

Interveners

(1)    A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court.

(2)    The Court may have regard to:

(a)    whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and

(b)    whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and

(c)    any other matter that the Court considers relevant.

(3)    When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including:

(a)    the matters that the intervener may raise; and

(b)    whether the intervener's submissions are to be oral, in writing, or both.

8    Rule 36.32 of the Rules, which is specific to appeals, is in equivalent terms. There is no material controversy separating the parties as to the considerations that should guide the court’s discretion to grant leave to intervene. In Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37 (“Roadshow”), 38-39 [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), the High Court made the following observations:

2    …A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.

9    As to the final of those three scenarios, it is significant to note the qualifier, “ordinarily”. There is no blanket rule by which a person must be denied leave to intervene if his or her rights stand to be affected only in the ways that the third category contemplates: ASF17 v Commonwealth (2024) 98 ALJR 782, 786 [16] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ), 798 [83] (Edelman J).

10    The High Court in Roadshow continued (at 39 [3]):

3    Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.

11    I am satisfied that Dyno Nobel is a person whose interests will be affected by the outcome of the present appeal at a level sufficient to warrant the grant of leave to intervene. Although none has yet been commenced, it is plain enough that the respondent, relying upon the Primary Judgments (as it is entitled to), has charted a course that is almost certain to result in litigation. That suffices, I think, to situate Dyno Nobel in the second of the three categories recognised in Roadshow: that is, as a person with a legal interest in pending litigation that is likely to be affected substantially by the outcome of this appeal.

12    But even assuming that that is wrong and that it is, in fact, a person whose interests might only be affected indirectly or contingently, its interests remain sufficient to circumvent what might “ordinarily” warrant the refusal of its application. It is not controversial to observe that, absent intervention, the conclusions of the court will not bind Dyno Nobel. In the event—indeed, near certainty—that it is subjected to the same processes as Orica, it will be at liberty to defend its position in much the same way that Orica has thus far attempted. But it is plain that its prospects of doing so will be linked inextricably to the outcome of the present appeal. The respondent did not—and indeed, could not sensibly—submit otherwise.

13    In that universe, it would be needlessly inefficient to insist that Dyno Nobel should ignore what the court has concluded to date (and, potentially, what might be decided on appeal) and, instead, litigate its preferred position afresh as and when necessary. If there are good arguments for avoiding the outcomes for which the respondent has contended vis-à-vis Orica (and will almost certainly contend vis-à-vis Dyno Nobel), it seems sensible to have them ventilated now. I am conscious that, even then, Dyno Nobel might not be bound, in a sense recognised by the doctrines of estoppel or res judiciata, by the judgment of the court on appeal (see Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (No 4) [2024] FCA 538 (McElwaine J)). Though relevant, I do not consider that dispositive for present purposes.

14    That leaves for consideration the matters enumerated in r 9.12(2) (or r 36.32(2)) of the Rules. At the present juncture—the application coming, as it does, at a relatively early stage of the appeal and prior to the receipt of the parties’ written submissions—it is difficult to make much by way of analysis as to whether Dyno Nobel’s contribution would, if leave to intervene were granted, be “useful and different from the contribution of the parties”. That, though, is a matter that can be addressed administratively: in particular, by limiting the scope of any leave that is granted such that Dyno Nobel is permitted only to make submissions that, by their nature and content, are not repetitive of Orica’s.

15    There could be no serious suggestion that a grant of leave to intervene might unreasonably jeopardise the parties’ ability to conduct the appeal as they wish. Plainly, there is some prospect that the respondent will need to address submissions additional to those advanced by Orica; but that is always the consequence of intervention. At worst, Dyno Nobel’s involvement in the appeal might (indeed, should) require additional effort from the respondent in order that it can defend the Primary Judgments; but, again, that reality is necessarily inherent in intervention. It is to be noted that the respondent is a statutory regulator, which is ably assisted by experienced counsel and reputable solicitors. In no serious sense could a grant of leave to intervene qualify as a measure that unduly imperils its prospects in the appeal.

16    Subject to the following conditions, Dyno Nobel should and will have leave to intervene in the appeal. Its intervention shall be limited to the making of written and oral submissions in support of appeal grounds 1 and 2 (the other appeal grounds are specific to Orica and there is no suggestion that Dyno Nobel has any interest in their disposition). Those submissions shall further be limited to the agitation of matters not addressed by Orica. Save as to the adoption of any submission of Orica’s that it supports, Dyno Nobel’s written and oral submissions shall not be repetitive of them.

17    To facilitate those conditions, it will be necessary to stagger the receipt of written appeal submissions, such that Dyno Nobel shall have an opportunity to review Orica’s submissions and determine what additional matters it wishes to raise, after which the respondent shall have an opportunity to address both sets. Equivalent opportunities should apply vis-à-vis reply submissions. I will make orders consistent with that course.

18    The respondent submits that, in the event that leave to intervene is granted, there should be an order requiring that Dyno Nobel pay its costs of the present application. Accepting that bespoke orders as to costs might be appropriate at least upon the disposition of the appeal, I consider that the costs of the present application should, for now, be reserved. There will be an order to that effect.

Associate:

Dated:    20 September 2024