Interlocutory application – determination of separate question…

…practice and procedure

In United Firefighters’ Union of Australia v Honourable Jaclyn Symes [2023] FCA 302 (4 April 2023), the Minister for Emergency Services Victoria and the state of Victoria applied for orders under r30.01 of the Federal Court Rules 2011 (Cth).

This was for the determination of a separate question regarding the applicant union’s standing to prosecute the matter.

The union had been engaged in a dispute with Fire Rescue Victoria (FRV). Pursuant to an enterprise agreement with FRV, the dispute was referred to the Fair Work Commission to resolve.

During the course of the dispute process, the Minister sought to intervene by means of various representations she made to FRV about the stance it should take on the dispute and its resolution.

The union complained that those interventions were inimical to its interests and the union brought proceedings under the Fair Work Act 2009 (FW Act). It claimed the Minister’s interventions in the dispute process amounted to conduct intended to coerce FRV into exercising a workplace right in a particular way.

The union contended this was a breach of s343 of the FW Act. Under s540(6), standing to bring a claim under s343 is limited such that an industrial association may only bring an action insofar as it is affected by the contravention, or is entitled to represent someone who is so affected.


Snaden J referred to the principles set out in City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; 73 ACSR 86 that guide the court’s discretion to grant an application to determine an issue as a separate question (at [8]). His Honour made particular reference to some of these principles.

His Honour emphasised that, as a general rule, all issues of fact and law arising in a matter before a court should be determined at the same time, unless a party demonstrates it is just and convenient to depart from that base proposition (at [9]). Noting that expense and time savings are often illusory, Snaden J stated (at [9]) that the trial of separate questions requires caution and the clearance of a high hurdle.

His Honour considered that the issue of whether the union was affected by the contravention of s343 of the FW Act – or entitled to represent someone so affected – is a question of fact, that turns in part on the nature of the contravention alleged (at [12]).

Snaden J observed that the court’s discretion is to be guided by an impressionistic assessment of the competing cases’ merits likely to be advanced on the question of standing (at [13]). He considered that it would ordinarily not be difficult for the union to establish that its interests in the resolution of the dispute process were affected by the Minister’s interventions.

Further, he considered that although the respondents argued that the Minister’s interventions did not result in FRV doing anything detrimental to the union’s interests, that was not a point that warranted the trial of a separate question (at [13]-[15]).

The respondents’ application for separate determination was dismissed.


Shanta Martin is a barrister at the Victorian Bar, ph 03 9225 7222 or email The full version of these judgments can be found at Numbers in square brackets refer to a paragraph number in the judgment.

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