BM Alliance Coal Operations Pty Ltd v Dalliston & Taylor [2014] ICQ 3

INDUSTRIAL COURT OF QUEENSLAND CITATION: BM Alliance Coal Operations Pty Ltd v Dalliston & Taylor [2014] ICQ 003 PARTIES: BM Alliance Coal Operations Pty Ltd (applicant) v Dalliston, Greg (first respondent) Taylor, Gavin (second respondent) CASE NO: C/2013/23 PROCEEDING: Application to join a party DELIVERED ON: 12 March 2014 HEARING DATE: 13 January 2014 MEMBER: Deputy President O'Connor ORDERS: 1. BMA be joined as a party in the proceedings for matter C/2013/16 as the second respondent, pursuant to s 329(b)(iv) of the Industrial Relations Act 1999; and 2. Costs reserved. CATCHWORDS: INDUSTRIAL LAW - APPLICATION TO BE JOINED AS A PARTY - Application by management and operating company responsible for Peak Downs Mine - Where the application was opposed by the first respondent but not the second respondent - Whether the rights or liabilities of the applicant would be directly affected by any order in the substantive proceeding CASES: Industrial Relations Act 1999, s 329(b)(iv) Allesch v Maunz (2000) 203 CLR 172 Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Re Multi-Tech Services Pty Ltd (in liq) (1982) 30 SASR 218 -- 1 of 5 -- 2 APPEARANCES: Mr P J Roney QC, instructed by Ashurst Australia, for the applicant. Mr M D Hinson QC and Ms C M Hartigan, instructed by the Construction, Forestry, Mining and Energy Union of Employees, Queensland, for the first respondent. Ms A C Freeman, instructed by Crown Law, for the second respondent. Decision [1] This is an application by BM Alliance Coal Operations Pty Ltd ("BMA") seeking an order to be joined in the proceeding in matter C/2013/16 ("the substantive proceeding") as the second respondent, pursuant to s 329(b)(i) or (iv) of the Industrial Relations Act 1999 ("the IR Act") or, in the alternative, that BMA be entitled to be heard in the substantive proceeding pursuant to s 329(b)(v). [2] At the hearing of this application, BMA abandoned reliance on the alternative application pursuant to s 329(b)(v). The application is opposed by the Mr Greg Dalliston, the first respondent in the present application and the appellant in the substantive proceeding. Mr Gavin Taylor, the second respondent in the present application, does not oppose BMA's application to be joined as the second respondent in the substantive proceeding. The relevant legislation [3] Section 329 of the IR Act relevantly provides: "329 Powers incidental to exercise of jurisdiction Except as otherwise prescribed by this Act or the rules, the court, commission and registrar may— (a) at or before a hearing, take steps to find out whether all persons who ought to be bound by a decision to be made in proceedings have been called to attend or given notice of, the proceedings; and (b) direct, for proceedings— (i) who the parties to the proceedings are; and (ii) by whom the parties may be represented; and (iii) persons to be called to attend the proceedings, if they have not been called and it appears they should attend the proceedings; and (iv) parties to be joined or struck out; and (v) who may be heard and on what conditions; …" Background to the application [4] BMA is the management and operating company responsible for a number of Central Queensland coal mines. These include Peak Downs Mine ("the mine"). -- 2 of 5 -- 3 [5] BMA introduced a new class of light vehicle to the mine on or about 2 December 2012 - namely, the Ford Ranger utility vehicle, which has been awarded a five star safety rating by the Australasian New Car Assessment Program ("ANCAP"). The light vehicles previously in operation at the mine were rated at 4 stars by ANCAP, but they were also fitted with Roll Over Protection Systems, which the new vehicles are not. [6] On the basis that he could not find any evidence that the new vehicles were of a standard of protection equal to that which was previously in place with the old vehicles, Mr Greg Dalliston, the Industry Health and Safety Representative at the mine, issued a directive under s 167 of the Coal Mining Safety and Health Act 1999 (Qld) ("CMSH Act") to the Site Senior Executive, Mr Sean Millful, prohibiting the use of any mobile plant at the mine which was not protected by a protective structure shown to be of an equivalent (or better) engineered standard than that which was in place at the mine prior to the change in vehicles. [7] Mr Millful requested that Mr Gavin Taylor, the Chief Inspector of Coal Mines, review that directive the same day it was issued. The Chief Inspector obliged and, on 25 March 2013, he issued a review decision setting aside Mr Dalliston's directive. [8] On 19 April 2013, Mr Dalliston lodged an appeal in respect of the Chief Inspector's review decision to this court - the substantive proceeding. BMA seeks to be joined to the substantive proceeding. Relevant authorities and application [9] The question of what is a sufficient ground to entitle a person to be added as a party was considered by the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 ("Pegang"). In that case, Lord Diplock said: "[W]ill his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?"1 [10] If the answer to the question posed in Pegang is "yes", and BMA might be directly affected by any order which may be made in the substantive proceeding before the Court, then it should be joined as a party. [11] The test in Pegang has been applied in Re Multi-Tech Services Pty Ltd (in liq) (1982) 30 SASR 218 and also more recently in Jones v Miami Waterfront Developments Pty Ltd [2012] WASC 483. The breadth of the discretion afforded under the test so stated is illustrated by the cases cited in Ritchie's Uniform Civil Procedure NSW.2 [12] In considering the exercise of my discretion I have had regard to the fact that the substantive proceeding under s 246 of the CMSH Act will be by way of rehearing. The provision that "the appeal shall be by way of rehearing" is well understood. In Allesch v Maunz3 the joint majority said: 1 Pegang [1969] 2 MLJ 52, 56. 2 Lexis Nexis, Ritchie's Uniform Civil Procedure NSW (at 12 March 2014) [6.24.25], [6.24.40]. 3 (2000) 203 CLR 172. -- 3 of 5 -- 4 "For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. … [O]n an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand."4 [13] The first respondent, Mr Dalliston, accepts that BMA may be affected by the decision of the Court in the substantive proceeding but bases his opposition to the present application on the grounds that the parties cannot unilaterally consent to orders in the absence of the Court hearing from the parties and exercising its discretion. [14] In the letter of Mr Greg Dalliston annexed to the affidavit of Mr Stephan William Rae he states: "As I have previously indicated, I accept that BMA (as well as other affected parties, for instance, coal mine workers and contractors) may be affected by the decision of the Court. However, I remain of the view that this does not mean that BMA should automatically be joined as a co-respondent to the appeal with the non-conditional rights of a party. In your correspondence of 22 May 2013 you advised that BMA sought to be joined as a co-respondent pursuant to s 329 of the Industrial Relations Act 1999 (Qld). I responded in my correspondence of 23 May 2013 by advising that it was my view that this is not a matter which the parties can unilaterally consent to orders in the absence of the Court hearing from the parties and exercising its discretion." [15] I accept that BMA may be directly affected by any decision of the Court arising from the hearing of the substantive proceedings. [16] Although Mr Dalliston accepts that BMA has an interest in the matter which could potentially be affected by the decision of the Court in the substantive proceedings, Counsel for Mr Dalliston submits that BMA has not identified how it would, if joined as a party to the substantive proceedings, be able to assist the Court in resolving the issues before it. [17] I am of the view that BMA is in the best position to assist the Court in presenting the evidence outlined in paragraphs 19 to 23 of the affidavit of Mr Rae. This evidence would include, amongst other things, the rationale behind the decision to replace light vehicles at the mine with the Ford Rangers; results of crash testing; risk assessment processes; accepted levels of risk; the consequences of installing roll cages; the applicability of ANCAP standards to mine site conditions; and the global acceptance of ANCAP standards. Mr Rae deposes that to his knowledge, the Chief Inspector has not independently obtained any such evidence. 4 Ibid, 180–1 (citations omitted). -- 4 of 5 -- 5 [18] I accept the submission of Counsel for the Chief Inspector that: "Whilst the Chief Inspector will be represented in the appeal and intends to defend his decision to overturn Mr Dalliston's directive, in fulfilling that role, the Chief Inspector cannot be instructed by BMA, nor does the Chief Inspector have any role to play in ensuring that BMA's interests, as the party who is to put into effect the outcome of the decision, are adequately represented at the hearing." [19] I accept the evidence of Mr Rae and, in particular, his identification of the prejudice that BMA will suffer if the substantive proceeding is successful: "(a) BMA (and its SSE's are) responsible for ensuring an acceptable level or risk at its coal mines. If a decision about what is an acceptable level of risk at BMA mines is made without the opportunity for BMA to have input, BMA may be prejudiced; (b) Peak Downs may be prohibited from using approximately 83 vehicles which would significantly impair both safety and operations at Peak Downs; (c) as a flow on effect from the finding in relation to Peak Downs, BMA may be prohibited from using approximately 552 vehicles across its Central Queensland operations, which would significantly impair both safety and operations at those mines; and (d) BMA has devoted significant resources via the time of key management personnel, at both a corporate level and a site level, to evaluating the proposed change to ANCAP 5 Star vehicles and implementing the change. It is important that this information be put before the Court."5 [20] Mr Dalliston has not identified any prejudice that he might suffer by granting the application for BMA to be joined. Conclusion and orders [21] Having considered the submissions of the parties, I have formed the view that this is an appropriate matter in which the Court should exercise its discretion to grant BMA's application to be joined as a party. [22] Accordingly, I order as follows: 1. BMA be joined in the proceeding in matter C/2013/16 as the second respondent pursuant to s 329(b)(iv) of the IR Act; and 2. Costs reserved. 5 Affidavit of Mr Stephen William Rae, sworn on 15 November 2013 [24]. -- 5 of 5 --