On 29 March 2012 a 5 Judge bench of the High Court of Australia heard what was in essence an unfair dismissal appeal by a TAFE teacher and his union against Bendigo TAFE.

At the time Bill Shorten was Minister for Workplace Relations.   Inexplicably, he mobilised the resources of his office as Minister to intervene in the case at taxpayer expense.

As Minister he had a duty  to act in the public interest, not a vested interest like a union.   He should have been impartial and above the fray.   If it was necessary for the Minister (i.e. the Commonwealth) to intervene on a point of law and in the public interest fair enough.   But Shorten didn't do that.

Here is the adverse commentary against Shorten in the costs judgement issued by the High Court of Australia.

• The appellant seeks certain costs orders in relation to the appeal only (not the application for special leave to appeal).  One order is that the respondents pay 85 per cent of its costs.  The other order is that an intervener, whose legal representatives variously described him as the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, and the Minister for Employment and Workplace Relations, pay 15 per cent of its costs.  Alternatively, if no costs order is made against the Minister, the appellant seeks an order that the respondents pay 100 per cent of its costs.
• The respondents' position is typical of the mindless and rancorous technicality which characterises litigation about industrial law.  It is entirely without merit.  That is particularly so in view of the extraordinary weakness of the respondents' substantive case on the appeal.
• To the extent that the Minister shared the respondents' approach in relying on the appellant's failure to seek a costs order in its Notice of Appeal, those comments, with respect, apply equally to him.  The Minister, however, went beyond the respondents' approach.  In addition, he relied on (a) the proposition that his intervention did not increase the appellant's costs to any material extent and (b) the proposition that there are no "special circumstances" justifying a costs order against him. 
• Proposition (a) is not correct.  The 15 per cent figure proposed by the appellant is a reasonable estimate of the impact which the Minister's intervention had on the costs the appellant incurred.  The Minister's written submissions were lengthy.  His oral submissions consumed a not insignificant amount of time. 
• As to proposition (b), the circumstances were exceptional.  That is because 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. 

It's scathing.   In as many words Shorten was accused of acting improperly in his role as Minister.   And it was signed HeydonJ.

Here is the transcript of the opening of the Appeal.

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 MARCH 2012, AT 10.18 AM

Copyright in the High Court of Australia
MR J.L. BOURKE, SC:   If the Court pleases, I appear with MR P.M. O’GRADY, for the appellant.  (instructed by Lander & Rogers Lawyers)

MR R.C. KENZIE, QC:   May it please the Court, I appear with my learned friend, MR M.A. IRVING, for the first and second respondents.  (instructed by Holding Redlich)

MR T.M. HOWE, QC:   May it please the Court, I appear with my learned friends, MR S.P. DONAGHUE, SC and MS L.E. YOUNG, for the Minister intervening.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Mr Howe, I notice the Minister asserts the statutory right to intervene.  Is the Minister taking some different position from the respondent?

MR HOWE:   Your Honour, particularly by reference to the oral propositions that have been filed there is a very large degree of convergence between the position of the second respondents and the Minister and it may well be that we add very little or even nothing at all, depending how the matter proceeds.

FRENCH CJ:   Well, we have two Queen’s Counsel and a junior appearing for the Minister.  We are not counting heads in determining this matter.  Yes, all right.  Thank you, Mr Howe.

GUMMOW J:   How do you get here actually?

MR HOWE:   There is a provision of the ‑ ‑ ‑

GUMMOW J:   Section 569 talks about “before a court . . . in relation to a matter arising under” the Fair Work Act. This matter arises under section 73 of the Constitution, consequent upon a grant of special leave under the Judiciary Act.  Perhaps you had better think about that.

MR HOWE:   Yes, we will give that some attention.

GUMMOW J:   You have two juniors who can be of immediate help.

FRENCH CJ:   Thank you, Mr Howe.  Yes, Mr Bourke.

You can find all the links at our original post on the matter here:

http://www.michaelsmithnews.com/2014/02/the-scathing-costs-order-made-in-the-high-court-of-australia-in-the-matter-of-bendigo-tafe-greg-barc.html