FEDERAL COURT OF AUSTRALIA Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCA 59 Citation: Centennial Northern Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCA 59 Parties: CENTENNIAL NORTHERN MINING SERVICES PTY LTD ACN 101 509 111 v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and FAIR WORK COMMISSION File number(s): NSD 870 of 2014 Judge(s): BUCHANAN J Date of judgment: 6 February 2015 Legislation: Fair Work Act 2009 (Cth), s 90 Cases cited: Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28; (2013) 296 ALR 479 Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37; [2011] HCA 54 Yirra Pty Ltd (t/as Richmond Demolition and Salvage) v Summerton (2009) 176 FCR 219; [2009] FCAFC 50 Date of hearing: 6 February 2015 Place: Sydney Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 8 Solicitor for the Applicant: Mr S Woodbury, Ashurst Counsel for the First Respondent: Mr S Crawshaw SC with Mr T Slevin Solicitor for the First Respondent: Slater & Gordon Lawyers Counsel for the Applicant to Intervene: Mr D Mahendra Solicitor for the Applicant to Intervene: Australian Business Lawyers & Advisors IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 870 of 2014 BETWEEN: CENTENNIAL NORTHERN MINING SERVICES PTY LTD ACN 101 509 111 Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 6 february 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory application to intervene filed 22 December 2014 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 870 of 2014 BETWEEN: CENTENNIAL NORTHERN MINING SERVICES PTY LTD ACN 101 509 111 Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: BUCHANAN J DATE: 6 february 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application for leave to intervene in proceedings which are to commence on Monday next week. The Australian Chamber of Commerce and Industry ("the Chamber") has applied to intervene to make submissions about the proper construction of s 90 of the Fair Work Act 2009 (Cth) ("Fair Work Act"). That application was heard today by agreement with the parties. 2 Mr Mahendra, who appeared for the Chamber this morning, accepted that the test to be applied on the present application was correctly extracted in the written submissions of the first respondent. Those written submissions refer to the judgment of a Full Court of this Court in Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28 and to the reference in that case to the judgment of the High Court in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37 ("Roadshow Films"). 3 In Roadshow Films at [2] the High Court identified three circumstances which might arise in relation to an application for intervention. The first is where a non-party has interests which might be directly affected by a decision in the proceeding and would be bound by the decision. The second is where a non-party whose legal interest in other pending litigation is likely to be affected substantially by the outcome. The third is the indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in a decision of the Court or their effect upon future litigation. In my view, the interests identified by the Chamber in support of its present application fall into the third of those categories. It follows that no right, as such, to intervene has been established. 4 There remains the question of whether leave to intervene should be permitted in the exercise of the Court's discretion. In my view, in light of the submissions which have been filed for the applicant in the present proceedings, it has not been established that the Chamber will pursue a sufficiently different argument to the parties in the proceedings that the intervention would be of particular assistance to the Court on the issues of construction which arise for consideration. Both parties are represented by experienced counsel. The issues are legal issues. They affect, in the case of the present proceedings, the direct interests of the parties to an industrial agreement, to which they are the only parties. I am not satisfied that leave to intervene should be granted in the exercise of any discretion. 5 For those reasons, the application for leave to intervene is dismissed. 6 After I delivered oral judgment refusing leave to intervene, both parties applied for their costs arising from the unsuccessful application to intervene. In the course of his submissions Mr Mahendra referred me to the judgment of the Full Court in Yirra Pty Ltd (t/as Richmond Demolition and Salvage) v Summerton (2009) 176 FCR 219. In the judgment of the majority at [155], the Court held that a person who applied to intervene did not, prior to the grant of leave to intervene, become a party to proceedings under the legislative predecessor of the Fair Work Act for the purpose of obtaining the protection from costs which the Fair Work Act (and its predecessors) normally provide. In his submissions on whether costs should be granted, Mr Mahendra invited me to apply the dissenting view in that case in rejecting the application for costs. That is an invitation which I am bound to reject. 7 It should be obvious that my duty is to apply the ratio of the case contained in the majority judgment and not to defy it by applying anything that might be said in dissent. 8 It follows that the Chamber has no protection from an order for costs unless, in the exercise of some residual discretion, costs are withheld from the parties. In the present case, I can see no basis upon which, on ordinary principles, costs should not follow the result of the application. I therefore order that the applicant for leave to intervene pay the costs of each of the parties occasioned by the application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 10 February 2015