High Court judge explains role of interveners

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High Court judge explains role of interveners

Parties that seek to intervene in High Court cases should have a position to put that is different from the parties to the case, according to a High Court judge who ruled on a costs application in a recently concluded adverse action case.

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Parties that seek to intervene in High Court cases should have a position to put that is different from the parties to the case, according to a High Court judge who ruled on a costs application in a recently concluded adverse action case.

[Full text of this case: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42 (3 October 2012)]

Admonishment
 
Costs were awarded to the appellant (employer) in Barclay’s case and Justice Heydon took the opportunity to admonish the position of the Federal Government in intervening in support of the union case:
‘… the Minister’s stance before and during the oral hearing was not that of an intervener, but that of a partisan. For example, some of the Minister’s oral submissions were directed to factual material. This is hardly the province of an intervener. The respondents were represented by able and experienced counsel who could and did put their clients’ case as forcefully as possible. The arguments for the Minister did not go beyond the respondents’ case. They were works of supererogation.

Would-be interveners who wish to behave like parties should not intervene, or should seek to be joined as parties if they satisfy the rules for joinder of parties, or should suffer the same fate as the losing parties in respect of costs if they back the losing party’s cause.

However, though the Minister has indicated his general position in correspondence, the Court’s orders on 7 September 2012 did not permit the Minister to file written submissions regarding costs. Though the Minister has requested the opportunity to file written submissions, it has not been afforded. For that reason, it would be unjust to order that the Minister pay the appellant’s costs ...’
The respondents were ordered to pay 100% of the appellant’s costs of the appeal.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 2] [2012] HCA 42 (3 October 2012) 
 
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