Transport Secretary v Australian Rail Tram and Bus Industry Union

By an amended summons filed in court on 19 May 2017 the plaintiff sought (inter alia) orders pursuant to s. 139(3) of the Industrial Relations Act 1996 (NSW). The amended summons was supported by an affidavit of Margaret Prendergast of 19 May 2017. The matter came before Walton J on that day when his Honour made interim orders, the effect of which were to bring the matter back before the Duty Judge today. In the intervening period a further affidavit of Ms Prendergast of 22 May 2017 was filed.

The amended summons names the defendant as “The Australian Rail Tram and Bus Industry Union". In brief terms, it is alleged by the plaintiff that the defendant breached one or more of the orders made by Commissioner Murphy in the Industrial Relations Commission on 17 May 2017, the effect of such orders being to prevent (inter alia) the organisation of certain industrial action.

Following the orders made by Walton J on 19 May 2017, the defendant filed an affidavit of Phillip Pasfield of 23 May 2017. That affidavit canvassed, amongst other things, the history of the registration of the defendant, pointing out (inter alia) that in 2016 registration of an organisation was effected in the name of the "Rail Tram and Bus Union of New South Wales". That organisation is not the named defendant.

When the matter came before me this morning, counsel for the plaintiff indicated that in the circumstances which had arisen the plaintiff was not in a position to proceed with the matter against the defendant. He sought leave to discontinue the proceedings. Whilst leave is not opposed by the defendant, an issue has arisen as to the term(s) upon which such leave ought be granted.

It is the plaintiff's position that leave should be granted on the following terms:

The defendant takes no issue with the first paragraph, but objects to the second.

Rule 12.1 of the Uniform Civil Procedure Rules 2005 (NSW) governs the discontinuation of proceedings. Rule 12.1(1) is in the following terms:

For the purpose of the present case, r. 12.1(1)(b) is the operative provision. It is common ground between the parties that the power of the Court to grant leave extends to a grant of leave upon a particular term or terms.

Also relevant in the circumstances of the present case is r. 12.3 which is in the following terms:

Discontinuation of proceedings does not bar subsequent proceedings, nor does it bar an application to revive the original proceedings by setting aside the discontinuation, unless the discontinuation was ordered on terms that no new proceedings would be brought: see for example The Kronprinz (1887) 12 App Cas 256 at 262.

As I have indicated, no issue is taken with the first paragraph of the proposed terms, although the need for that provision is questionable. The plaintiff accepts that the present proceedings cannot be continued, hence the necessity to seek leave to discontinue. The effect of the first paragraph is to prevent the plaintiff from commencing the same proceedings again. If that were to eventuate, one would infer that the result would be the same. However as no issue is taken with it, and having regard to the provisions of r. 12.3, it is a condition that I propose to impose on the grant of leave.

As to the second paragraph, the plaintiff is at liberty to commence fresh proceedings against the Rail, Tram and Bus Union of New South Wales if it wishes to do so. That organisation in not the named defendant. In those circumstances, the second paragraph has little or no utility. For that reason, it should not be imposed as a term of a grant of leave.

I should also note that in the course of submissions an issue was initially raised by the defendant as to the costs of the proceedings. No application for costs has been pursued and in these circumstances, I propose to make no order as to costs.

For these reasons, I make the following orders: