Autistic Association of New South Wales v Dodson
[1999] FCA 715
•31 MAY 1999
FEDERAL COURT OF AUSTRALIA
Autistic Association of New South Wales v Dodson [1999] FCA 715
COSTS – appeal incompetent for absence of jurisdiction – whether s 347 Workplace Relations Act 1996 (Cth) applies – whether proceeding is a proceeding in a matter arising under the Workplace Relations Act 1996 (Cth) to which the Act applies.
Federal Court of Australia Act 1976 (Cth) ss 24, 28(1)(b)
Workplace Relations Act 1996 (Cth) s 347Russell v Bates (1927) 40 CLR 209 cited
Minister for Health (Commonwealth) v Trustees of the Ancient Order of Foresters Friendly Society in Queensland (1985) 10 FCR 27 distinguished
Re Zagoridis; Ex parte Q’plas Group Pty Ltd (1990) 27 FCR 108 cited
Cameron v Cole (1944) 68 CLR 571 cited
R v Sagacio; Ex parte Katelaris (1990) 99 FLR 439 citedAUTISTIC ASSOCIATION OF NEW SOUTH WALES v
CAROLINE DODSONNG 117 OF 1998
LEE, HILL AND MERKEL JJ
SYDNEY
31 MAY 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 117 OF 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
AUTISTIC ASSOCIATION OF NEW SOUTH WALES
AppellantAND:
CAROLINE DODSON
RespondentJUDGES:
LEE, HILL AND MERKEL JJ
DATE OF ORDER:
31 MAY 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The judgment of his Honour made on 30 January 1998 be set aside as a judgment made without jurisdiction with the effect that the figure of $23,739 in item 2 of the order made by the Judicial Registrar on 5 August 1997 stands unamended.
2.The appellant pay the respondent’s costs of the proceeding before his Honour.
3.The appeal be dismissed with no order for costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 117 OF 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
AUTISTIC ASSOCIATION OF NEW SOUTH WALES
AppellantAND:
CAROLINE DODSON
Respondent
JUDGES:
LEE, HILL AND MERKEL JJ
DATE:
31 MAY 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
On 14 April 1999 we delivered reasons in which we concluded that the appeal in this matter was incompetent. We gave the parties liberty to make further submissions as to consequential orders including costs.
Short submissions were filed and have been considered. The appellant (“the Association”) requested a further opportunity to make oral elaboration of its written submissions but as the only issue between the parties relates to costs, on which adequate submissions have been made, it is unnecessary to relist the matter for further hearing and incur additional costs for the parties in doing so.
The parties do not contest that although the appeal has been found to be incompetent, the Court has jurisdiction and power to set aside the decision of his Honour made, as we have found, in the absence of jurisdiction.
On the record there has been an adjudication by a Judge of this Court from which an appeal lay to a Full Court under s 24 of the Federal Court of Australia Act 1976 (Cth). The powers provided to a Full Court in s 28(1)(b) of the Federal Court of Australia Act include the giving of such judgment, or making of such orders, as in all the circumstances is fit. That power is as broad as the power to set aside a judgment a superior court may exercise on a writ of certiorari where a judgment has been made in the absence of jurisdiction: (see Russell v Bates (1927) 40 CLR 209 per Knox CJ, Isaacs, Gavan, Duffy, Powers, Rich and Starke JJ at 214; cf Minister for Health (Commonwealth) v Trustees of the Ancient Order of Foresters Friendly Society in Queensland (1985) 10 FCR 27 at 30 – 31).
The judgment of his Honour, although made without jurisdiction, binds the parties until set aside. It could not be treated by the parties as a judgment of an inferior court void ab initio: (see Re Zagoridis; Ex parte Q’plas Group Pty Ltd (1990) 27 FCR 108; Cameron v Cole (1944) 68 CLR 571; R v Sagacio; Ex parte Katelaris (1990) 99 FLR 439).
This Court should exercise the power to set the judgment aside.
The remaining question is the order to be made in respect of costs. With regard to the proceeding before his Honour, the respondent (“Ms Dodson”) instructed solicitors who appeared on her behalf at directions hearings and prepared written submissions for his Honour as directed by orders made in those hearings.
The usual order in respect of costs would be that costs follow the event, and in this case that would be an order that the Association pay Ms Dodson’s costs of the proceeding before his Honour.
The Association submits that s 347 of the Workplace Relations Act 1996 (Cth) (“the Act”) applies to that proceeding and to this appeal and would not permit an order for costs to be made in respect of either proceeding.
That submission assumes incorrectly that the proceeding before his Honour, and this appeal, are proceedings in a matter arising under the Act to which the Act applies. Neither proceeding in this Court was a proceeding for which the Act provided and, therefore, was not a proceeding which answered the description of “a proceeding…in a matter arising under this Act” within the meaning of s 347 of the Act: (see Standish v University of Tasmania (1989) 28 IR 129 per Lockhart J at 138).
It follows that s 347 of the Act has no application and there is no reason why costs should not follow the event upon the judgment of his Honour being set aside.
With regard to the costs of the appeal from his Honour’s judgment, the relevant circumstances to be considered differ from those considered above.
Whilst the appeal was not a proceeding to which s 347 of the Act applied, Ms Dodson did not participate in the appeal and did not instruct solicitors to do so. Ms Dodson filed a submitting appearance “except as to costs” and with the intent that she would incur no liability for costs. In response to a request from the Court to the New South Wales Bar Association for assistance to be provided to the Court, Mr Macken obtained leave from the Court to appear as a “friend of the Court” to make submissions on Ms Dodson’s behalf.
In an appropriate case, the Court may make an order that costs be paid to an unrepresented party who has succeeded in litigation. In the circumstances of this case the Court is satisfied that in respect of the costs of the dismissed appeal it is appropriate that there be no order as to costs although we note that counsel who appeared for Ms Dodson in the proceeding before his Honour attended on her behalf when the reasons of the Court were delivered on 14 April 1999 and prepared the further submissions to which we have referred above.
The orders to be made will be as follows:
1.The judgment of his Honour made on 30 January 1998 be set aside as a judgment made without jurisdiction with the effect that the figure of $23,739 in item 2 of the order made by the Judicial Registrar on 5 August 1997 stands unamended.
2.The Association pay Ms Dodson’s costs of the proceeding before his Honour.
3.The appeal be dismissed with no order for costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate:
Dated: 31 May 1999
Counsel for the Appellant: M Christie Solicitor for the Appellant: Fitzgerald White Talbot The appellant filed submissions on 4 May 1999.
The respondent filed submissions on 28 April 1999.
Amicus curiae: J J Macken
Date of Judgment: 31 May 1999
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