Federal Court of Australia United Firefighters' Union of Australia v Honourable Jaclyn Symes [2023] FCA 302 File number: VID 657 of 2022 Judgment of: SNADEN J Date of judgment: 4 April 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for determination of a separate question – whether applicant has standing pursuant to s 539 of the Fair Work Act 2009 (Cth) (hereafter, the "FW Act") – whether applicant or persons it represents are affected by statutory contraventions alleged against the respondents – whether determination of standing as a separate question would be just and convenient – whether circumstances warrant departure from usual course – interlocutory application dismissed Legislation: Fair Work Act 2009 (Cth) pt 3-1, pt 2-4, ss 53, 341, 343, 539, 540 Federal Court Rules 2011 (Cth) r 30.01 Cases cited: Allan v Transurban City Link Ltd (2001) 208 CLR 167 Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239 AWB Ltd v Cole (No 2) (2006) 253 FCR 288 City of Swan v Lehman Brothers Australia Ltd (subject to a deed of company arrangement) (2009) 73 ACSR 86 Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276 Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438 Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 3274 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 17 Date of hearing: 31 March 2023 Counsel for the Applicant: Mr H Borenstein KC with Mr B Bromberg Solicitor for the Applicant: Davies Lawyers Counsel for the Respondents: Ms R Orr KC with Mr C O'Grady KC and Ms M Salinger Solicitor for the Respondents: Victorian Government Solicitor's Office ORDERS VID 657 of 2022 BETWEEN: UNITED FIREFIGHTERS' UNION OF AUSTRALIA Applicant AND: HONOURABLE JACLYN SYMES (MINISTER FOR EMERGENCY SERVICES VICTORIA) First Respondent STATE OF VICTORIA Second Respondent order made by: SNADEN J DATE OF ORDER: 4 APRIL 2023 THE COURT ORDERS THAT: 1. The respondents' interlocutory application dated 29 March 2023 be dismissed. 2. Within 14 days of the date of these orders, the parties must confer about—and, if possible, agree upon and submit to the chambers of Justice Snaden—a minute of orders for the further case management of this proceeding. 3. Costs relating to the respondents' interlocutory application dated 29 March 2023 be reserved. 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 29 March 2023, the respondents move the court for orders under r 30.01 of the Federal Court Rules 2011 (Cth); specifically, for the determination of a separate question regarding the applicant's standing to prosecute the matters to which its pleading gives voice. For the reasons that follow, I am not persuaded that it is just and convenient to grant the relief for which the respondents move. 2 In order to understand—at least at a headline level—the issue of standing that the respondents wish to have determined separately, it is necessary first to understand the case that the applicant (hereafter, the "Union") presses against them. The matter is brought before the court pursuant to pt 3-1 of the Fair Work Act 2009 (Cth) (the "FW Act"). At relevant times, the Union was involved (or is said to have been involved) in a dispute with a third party, a statutory body known as Fire Rescue Victoria, by which some of its members are employed. The dispute in question pertained to the establishment of a "Registration Board". The particulars of the dispute are not presently apparent beyond that bald description; but, for now at least, no further detail is needed. 3 The Union and Fire Rescue Victoria are said to be covered (presumably in the sense to which s 53 of the FW Act refers) by an enterprise agreement made pursuant to pt 2-4 of the FW Act. That instrument apparently contains a dispute resolution procedure by which certain species of dispute are amenable to conciliation and arbitration by the Fair Work Commission. In March 2021, the Union took steps to have the dispute referred to above resolved pursuant to that dispute resolution procedure. 4 Steps then ensued with the involvement of the Fair Work Commission to resolve the dispute. During the course of that process (the "FWC Dispute Process"), the first respondent (the "Minister") sought to intervene by means of various representations that she made to Fire Rescue Victoria about the stance that it should (and possibly did) take in relation to the dispute and its resolution. The Union complains that those interventions were inimical to its interests. By the present proceeding, it seeks to characterise them as coercive and in breach of s 343 of the FW Act. 5 Amongst other things, that section prohibits a person from taking or threatening to take action against another person with intent to coerce that second person into exercising or proposing to exercise a workplace right in a particular way. By operation of s 341 of the FW Act, a person is understood to possess (and, therefore, may exercise) a workplace right in various situations, none of which need presently be explored. It suffices to summarise the matter in this way: the Union complains that the Minister's interventions in the FWC Dispute Process amounted to conduct in which she engaged intending to coerce Fire Rescue Victoria into exercising or proposing to exercise a workplace right in a particular way. 6 Standing to agitate a claim alleging a contravention of s 343 is conferred by s 539(2) of the FW Act. Amongst those so endowed are industrial associations such as the Union. By s 540(6) of the FW Act, however, that standing is limited such that an industrial association may bring such an action only insofar as it is affected by the contravention in question, or is entitled to represent the industrial interests of somebody who is. 7 Presently, an issue has arisen between the parties to this action as to the Union's standing to press the causes that it intends to press. It is that issue that the respondents want the court to resolve as a separate question. 8 The parties are not obviously in dispute as to the principles that should guide the court's discretion to grant the relief that the respondents seek. They are conveniently (though perhaps not exhaustively) listed in the judgment of Rares J in City of Swan v Lehman Brothers Australia Ltd (subject to a deed of company arrangement) (2009) 73 ACSR 86, 95-96 [27]. Save for what follows, they needn't be repeated. 9 As a general rule, all issues of fact and law arising for determination in a matter before a court should be determined at the same time: AWB Ltd v Cole (No 2) (2006) 253 FCR 288, 296 [29] (Young J). A party seeking to depart from that base proposition must demonstrate that it is "just and convenient" to do so: Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276, 280 [9] (Branson J). The attraction of trials of separate questions is "…often more chimerical than real" and "savings in time and expense are often illusory": Tepko Pty Ltd v Water Board (2001) 206 CLR 1, 55 [168] (Kirby and Callinan JJ, dissenting; with whom Gaudron J relevantly agreed (at 18, [52])). The trial of separate questions thus requires caution and the clearance of a "high hurdle": Sydney Local Health District v Macquarie International Health Clinic Pty Ltd [2020] NSWCA 274, [187] (Bell P, Gleeson and Payne JJA). 10 That caution has been mirrored in this court. In Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport (2011) 91 IPR 438, the court (Rares, Buchanan and Foster JJ) observed (at 447 [40]): A separate trial can be a procedure that is a valuable tool in reducing the time and expense of litigation. However, it is essential that any separation of issues occur only when all of the issues in the litigation are defined with clarity. Unless that is done, it will be difficult to evaluate the full repercussions of such a decision on the proceedings as a whole. Moreover, once a separate issue has been ordered, heard, decided and any appeals finalised, often the ingenuity of lawyers will identify some further permutation that was not covered by the separate issue. 11 The respondents contend that the issue of standing in the present matter should be resolved as a separate question because doing so may lead to its early and efficient disposition. It is said that the resolution of that issue should not require any significant factual contest, and that nothing led or determined in the context of that issue is likely to bear upon any other questions that it might later fall to the court to resolve (that is, if the question of standing is resolved in the Union's favour). 12 The Union's standing to prosecute the matter turns upon whether it was, or whether it was entitled to represent somebody who was, affected by the contraventions of s 343 of the FW Act that it alleges as against the respondents. Whether or not a person is relevantly affected by conduct alleged to constitute a contravention of the FW Act is a question of fact that turns, in part, upon the nature of the contravention that is alleged: Australian Federation of Air Pilots v Regional Express Holdings Ltd (2021) 290 FCR 239, 293 [179] (Bromberg, Kerr and Wheelahan JJ); see also Allan v Transurban City Link Ltd (2001) 208 CLR 167, 174 [15] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ; Kirby J dissenting). The "ripples of affection may widely extend": Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67, 70 (Brennan J). 13 In determining whether to grant a separate trial concerning the question of standing, it was accepted that the court's discretion should be guided by an impressionistic assessment of the merits of the competing cases likely to be advanced on that question. It is, of course, unnecessary—much less is it possible—that I should resolve that question now and I should not be understood to have formed any concluded view on the subject one way or the other. Nonetheless, it seems to me that it would not ordinarily be difficult for the Union to establish that its interests in the resolution of the FWC Dispute Process were affected in at least some way by the interventions of the Minister. It does not appear to be controversial that, by those interventions, the Minister imposed (or sought to impose) upon Fire Rescue Victoria a position in relation to the FWC Dispute Process that was not aligned to that for which the Union pressed. It appears to be a short step from there to the conclusion that, by those interventions, the Minister might be understood to have prejudiced the Union's position (or that of those whose interests it was entitled to represent) in the dispute, and that such prejudice should suffice to establish standing. 14 Those observations stand divorced from the manner in which the Union has pleaded its case. At the hearing of their interlocutory application, the respondents sought to impress upon the court that the FWC Dispute Process was ultimately resolved independently of the Minister's interventions. It was said that that reality posed a measure of difficulty for the Union in terms of how it might plead its case, in that the Minister's interventions "…did not result in [Fire Rescue Victoria] doing anything that was detrimental to the [Union's] interests". 15 There may or may not be something in that. If there is, though, it's not a point that warrants the trial of a separate question. Rather, it might (I observe without knowing) afford the respondents a basis upon which to challenge the Union's articulation of its case. At present, the Union's pleading appears to focus less upon the consequences of the Minister's interventions in the FWC Dispute Process and more upon the intention that is alleged to have animated them. If that gives rise to some pleading deficiency, it can be addressed in the usual way. It does not warrant bifurcation of the matter. 16 There is no warrant to deviate from the court's standard approach to resolving all issues of fact and law together (albeit perhaps to the exclusion of those relevant to the imposition of penalties, which generally are to be determined later if at all). That being so, the respondents' interlocutory application of 29 March 2023 will be dismissed. 17 The matter remains yet to be the subject of any case management orders. At the hearing of the respondents' interlocutory application, the parties indicated a willingness to discuss—and some confidence that they might agree upon—such orders after the court ruled upon whether or not the question of standing should be separately tried. That having now occurred, the parties are invited to submit a minute of appropriate orders. In the event that they are unable to do so, the matter will be listed for further case management. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 4 April 2023