Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24

Aurizon Operations Limited v Australian Rail Tram and Bus Industry Union NSW Branch; The Office of the National Rail Safety Regulator v Australian Rail Tram and Bus Industry Union NSW Branch [2024] NSWCA 24

Section 99(3)(a)(i) of the Rail Safety National Law (NSW) does not operate as a deeming provision; consultation is required only with those persons in the stated categories whom the delegate is satisfied are likely to be affected by the variation. 'Representing' in s 99(3)(a)(iii) refers only to unions with at least one member among those affected persons, not unions entitled to represent them generally. The primary judge erred by construing the provision otherwise and setting aside the variation on a ground not advanced by the parties.

Parties
Appellant: Aurizon Operations Limited; First Respondent: Australian Rail Tram and Bus Industry Union NSW Branch; Second Respondent/cross Appellant: The Office of the National Rail Safety Regulator
Jurisdiction
Australia
Judgment Date
16 February 2024
Procedural Posture
Appeal / Judgment of Court of Appeal
Outcome
Appeal and cross-appeal allowed; orders of primary judge set aside
Legal Topics
Jurisdictional Error, Consultation Requirements, Rail Safety National Law, Procedural Fairness
Administrative Law Statutory Interpretation Civil Procedure Jurisdictional Error Consultation Requirements Rail Safety National Law Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

Aurizon Operations Limited

Appellant

Australian Rail Tram and Bus Industry Union NSW Branch

First Respondent

The Office of the National Rail Safety Regulator

Second Respondent/cross Appellant

Procedural Posture

Appeal / Judgment of Court of Appeal

Legal Issues

  1. 1 Whether the primary judge erred in construing s 99(3)(a)(i) of the Rail Safety National Law (NSW) as a deeming provision
  2. 2 Whether consultation requirements under s 99(3)(a) require consultation only with persons likely to be affected
  3. 3 Whether 'representing' in s 99(3)(a)(iii) means only unions with members among affected persons

Ratio Decidendi

Section 99(3)(a)(i) of the Rail Safety National Law (NSW) does not operate as a deeming provision; consultation is required only with those persons in the stated categories whom the delegate is satisfied are likely to be affected by the variation. 'Representing' in s 99(3)(a)(iii) refers only to unions with at least one member among those affected persons, not unions entitled to represent them generally. The primary judge erred by construing the provision otherwise and setting aside the variation on a ground not advanced by the parties.

Court Disposition

Appeal and cross-appeal allowed; orders of primary judge set aside

Orders

  • Grant leave to the first respondent to amend its notice of contention in accordance with the draft amended notice of contention referred to in paragraph 1 of the orders sought in the notice of motion filed on 28 November 2023.
  • Allow the appeal.