2011 WAIRC 00989
APPLICATION FOR AUTHORITY TO BE ISSUED TO MR JOSEPH MCDONALD
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 00989

CORAM
: CHIEF COMMISSIONER A R BEECH
ACTING SENIOR COMMISSIONER P E SCOTT
COMMISSIONER S J KENNER

HEARD
:
TUESDAY, 9 AUGUST 2011, THURSDAY, 1 SEPTEMBER 2011, MONDAY, 17 OCTOBER 2011, TUESDAY, 18 OCTOBER 2011, WEDNESDAY, 19 OCTOBER 2011, TUESDAY, 1 NOVEMBER 2011

DELIVERED : WEDNESDAY, 2 NOVEMBER 2011

FILE NO. : APPL 31 OF 2011

BETWEEN
:
MR KEVIN REYNOLDS
Applicant

AND

(NOT APPLICABLE)
Respondent

CatchWords : Industrial Law (WA) – Application for order that Registrar issue right of entry authority - Hearing concluded and decision reserved - Application for leave to intervene
Legislation : Industrial Relations Act 1979 s 27(1)(k)
Result : Application by Mr Mcjannett for leave to intervene dismissed
REPRESENTATION:


APPLICANT : MR J NICHOLAS, OF COUNSEL
RESPONDENT : MR R MCJANNETT, SEEKING LEAVE TO INTERVENE

Case(s) referred to in reasons: Nil

Case(s) also cited: Nil


Reasons for Decision - Application by Mr Mcjannett for leave to intervene

COMMISSION IN COURT SESSION:
1 The hearing in this matter concluded on 19 October 2011 and the decision was reserved.  On that same day, Robert Mcjannett filed an application to intervene in order to object to the application.  His application to intervene was heard on 1 November 2011.

2 Mr Mcjannett established that he is a member of the CFMEU (Construction and General Division). He gave evidence that if he was permitted to intervene he would bring evidence of his knowledge of Mr McDonald and that he finds Mr McDonald’s conduct offensive and embarrassing and threatening.  He would, if permitted to intervene, seek to bring evidence in support of these matters and other issues.  He stated that he had been aware of the application in this matter when it had been filed.  However, he had not sought to intervene earlier because of illness, and because his assumption was that the application had no chance of success.  He noted media reports of the application and followed the progress of the hearing. It was only when he thought the risk of the application being granted was too great that he decided to seek leave to intervene.


3 The applicant opposed the application by Mr Mcjannett, pointing out that there had been initial considerations of who would be allowed to intervene but now events had moved on and the case had concluded.  The applicant recognised that members of the CFMEU have an interest in the application, but in this case it is not established that Mr Mcjannett has a right that will be directly affected by the application.

4 We have reached the following decision.  In order to be given leave to intervene Mr Mcjannett will need to show under s 27(1)(k) of the Industrial Relations Act 1979 that he has sufficient interest in whether or not another right of entry authority should be issued to Mr McDonald, and that leave should be granted to re-open the hearing.  Mr Mcjannett appears for himself as a member of the CFMEU (Construction and General Division). We are satisfied that Mr Mcjannett is a member of the CFMEU (Construction and General Division) and that he has an interest in the affairs of the union of which he is a member.  However, that may not of itself demonstrate that his interest is a sufficient interest for the purposes of this matter, and each case will depend on its own circumstances.


5 However, that consideration is, in our view, overshadowed by the fact that Mr Mcjannett has known of this application since it was filed and did not at that time seek leave to intervene.  There is no evidence that the illness he referred to precluded him from making an application to intervene at an earlier date. Further, he was aware of the progress of this application sufficiently enough to form a judgment of the likelihood of it succeeding or failing before deciding to seek leave to intervene. 

6 The application was filed on 15 June 2011 and on 10 August 2011 the Commission issued directions that the Registrar publish notification of the application on the Commission’s internet website and requiring that a person with sufficient interest wishing to be heard in relation to this application should file in the Commission by 25 August 2011 an application to be heard. An order issued on 5 September 2011 ((2011) 91 WAIG 1943; [2011 WAIRC 00866]) setting the matter down for hearing and requiring the filing and serving of outlines of submissions. There have been hearings, of which notice was given in the court lists, on 9 August and 1 September 2011 to hear from persons seeking to be heard.  The hearing in the substantive matter commenced on 17 October 2011.  We note the application was reported in the local newspaper on 26 August 2011 and on 14 and 18 and 19 October 2011.  The fact that Mr Mcjannett elected to do nothing until the last day of the hearing is a matter for him, however his change of mind does not provide a basis for the granting to him of leave to intervene and for the hearing to be re-opened.  It is simply too late.  The applicant in the substantive matter has a right to expect the orderly disposition of his application. This has occurred and it would be an abuse of process in these circumstances to grant this late application to intervene.  Accordingly, it will be dismissed.