Gibbons, L.N. v Australian Meat Industry Employees Union

[1988] FCA 668

JUDGMENT No. .&.ih'.x

CATCHWORDS

Practice and procedure - costs - final orders of the Court

of orders as to costs - whether Court has jurisdiction and	made in respect of costs - correct construction and meaning
power to interpret the order as to costs - power of Court
to set aside a judgment or order - powers of taxing officer
Federal Court Rules 0.35, r.1, 0.62
Trade Practices Act 1914 s.45D, s.45E
LAWRENCE NOEL GIBBONS & ORS.

and

THE AUSTRALIAN MEAT INDUSTRY

EMPLOYEES UNION & ORS.

NORTHROP J.
21 OCTOBER 1988

MELBOURNE

* . LIMITED D I S T R I B ~ C N

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) V. No. G.99 of 1985
)

DIVISION	GENERAL	)
BETWEEN:

LAWRENCE NOEL GIBBONS AND O R S .

Applicants

and

THE AUSTRALIAN MEAT INDUSTRY EMPLOYEES

UNION & ORS.

Respondents

COURT: NORTHROP J.

- DATE: 27 OCTOBER 1988

PLACE: MELBOURNE

REASONS FOR JUDGMENT

On 25 June 1986 the Court constituted by M C Justice

smithers made final orders in this matter. The matter

involved claims for injunctions based upon breaches of

s.45D( 1A) of the Trade Practices Act 1974 ("the Act") and

section 45E(l)(a) and (c) of the Act. By the order, which

was made on	25 June 1986 and entered on	9 July 1986,	the
Court set out	a number of findings.	It then set out	orders
as follows:

- L -

"THE COURT ORDERS THAT:

1. The application i sofar s it relates to

s.45D(lA) of	the	Trade	Practices	Act	1974	is
dismissed.

2. In respect of the application insofar as it

relates to ss.45E(l)(a) and (c) of the Trade ~~~~~~

Practices Act 1974 judgment	be entered f o r t h e
applicants".

Further orders were then set out, and among the

further orders were two orders which are presently the

subject of a motion before the Court.	Orders 5 and 6 are set '
out:
"5.	The respondents to pay the applicants' costs of this application excludins anv costs exclusivelv referrable to the issue arising under S.45D(lAj
of the Trade Practices Act 1974, but including
any reserved costs.

6.   That the applicants pay to the first to sixth

respondents the costs incurred by them which were

referrable xclusively to the issues arising

under s.45D(lA) of the Trade Practices Act 1974
such costs to be set off against costs payable by
them to the applicants."

Order 7 is as follows:

"7. There be liberty to all parties to apply with

reference to the content of any injunction which

may be made

generally." on the findings herein a d

Pursuant to Orders 5 and 6 the matter came on

before the taxing officer pursuant to the provisions	of 0 . 6 2
of the Federal Court Rules.	Apparently questions arose as to

the correct construction and meaning of these orders of the

Court. Under 0.62 r39 a taxing officer may of his own motion refer any question arising in a taxation for the direction of

*

the Court. Normally one would expect the taxing officer in

the course of his duties in taxing bills to construe the

meaning of any order under which he is taxing	costs. That is
part of his duty.	If a dispute arises between the parties

appearing before him as to the construction he should hear

them and make up his own mind. If the matter is of

particular difficulty and he requires the assistance of the

Court he has a power to refer any question, including a

construction question, for the direction of the	Court. In
the present case the taxing officer refused to make such	a
reference.	I do not consider that matter further because

there has been no opportunity to hear the taxing officer as

to reasons why that was not done.

The other possibilities are that the taxation is

carried out by the taxing officer, and in a case like this

that would be a lengthy and expensive process. Order 62

contains provisions whereby the taxation may	be reviewed and
eventually reviewed by the Court.	On such a review the Court
would be required to construe Orders	5 and 6 in this case

and if need be the matter would then be referred back to the taxing officer to tax in accordance with those views. Such a

course in a case like the present is impracticable and it

would have been far better to have had this matter referred

to the Court at an early stage rather than wait until the

costs had been taxed.

In these circumstances the applicants are moving

the Court on notice for orders as follows:

"1. That the following question be answered by the

Court :

Is paragraph 5 of the Order of the Honourable	Hr.
Justice Smithers dated the 23rd June 1986 to	be
interpreted as meaning:

That the costs to be excluded from payment

by the Respondents are those costs which

relate only issues to arising under

s.45D(lA) and not those costs which are referable to issues arising under s.45D(lA) in conjunction with other issues before the Court.

In the alternative is an apportionment : to be

made where costs have been incurred which

are referable to issues arising under

s.45D(lA) in conjunction with other issues

before the Court.

Is some other and if so what interpretation to be applied to the said paragraph."

Questions were raised in the course of hearing as

to the jurisdiction and power of this Court to make the

orders ought by the motion. All parties have joined

together in requesting the Court to give a construction of

Orders 5 and 6. But mere consent cannot confer a jurisdiction and power on this Court which otherwise it does not have.

Order 35 rule 7 of the Federal Court Rules provides

that the Court may vary	or set aside	a judgment or order
before	it	has been entered. That has no application here

because this judgment has been entered. Under sub-rule ( 2 1 ,

the Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part I11 of the Act

may if it thinks fit vary or set aside a judgment or order

.

after the order has been entered where (a) the order has been

made in the absence of a party, and I need not read the rest

of that sub-paragraph; (b) the order is obtained by fraud;

(c) the order is interlocutory; (d) the order is an

injunction or for the appointment	of a receiver;	(e) the
order does not reflect the intention of the Court	or	( f ) the

party in whose favour the order was made consents. There	is
then provision for clerical mistakes being corrected. Under

sub-rule (4) the Court has power to vary or terminate the

operation of an order by making a supplementary order.

In the present case it was argued that there was no

attempt to vary or set aside the orders made	by Hr	Justice
Smithers	but	only to interpret them. Reliance was placed

upon the fact that here there was liberty to apply granted to

the	parties,	but	the question arises as to whether	that
liberty to apply is to apply generally	or	only	to	matters
arising from the injunctions. Reference was made	to some

authorities both	in	England and in New South Wales which
suggests that the Court does have such	a power. However,	I
am not satisfied that	I have that jurisdiction	or power,

particularly in a case like the present where. under the

Federal Court Rules there is a procedure in relation to costs

for the determination of questions. The matter can be determined by the taxing officer or referred to the Court by

the taxing officer or brought to the Court on review after

taxation has been completed.

In those circumstances, although I do not propose

to make any orders as sought, I will express certain opinions

but on the basis that these opinions are not binding on

anybody. This includes the fact that they are not binding

upon the parties or on the taxing officer.

On its face, order 5 provides that the respondent

is to pay the applicants' costs of the application and then

excludes from that any costs "exclusively referable to the

issue arising under section 45D(lA)" of the	Act.	The obvious
purpose of the order	is	to exclude those costs which are

exclusively referrable to the application insofar as it

relates to sub-section 45D(lA) since the application on that

aspect was dismissed; see Court order 1. The problem arises

from the fact that in any item of costs it might be very

difficult to say that that item is referrable to the

applicant's application insofar as	it relates to paragraph
45E(l)(a).	A good illustration can be given by reference to
counsels' fees.	One would expect that there was one fee only

for counsel covering both causes of action. In those

circumstances are the whole of those fees payable to counsel

to be excluded from the costs because, on any view, some part

of those fees must be referrable to the sub-section 45D(lA)

matter? This problem would be multiplied and could apply

almost to every taxable item of costs. That was the view put by counsel for the respondents,.namely that i f any part of an item for costs was referrable to the sub-section 45D(lA) matter, the applicant was not to get those costs.

In construing orders 5 and 6, in my opinion they

must be read together. They are complementary to each other.
On its face order 6 is to give to the respondents their costs

which are referrable exclusively to the issue arising under

sub-section 45D(lA). I should indicate that some problems

arise from the reference to the words first to sixth

respondents since as originally commenced there were eight
respondents, the seventh of which was Jack O'Toole, a member

of the Australasian Meat Industry Employees Union, the first

respondent. Apparently one of the respondents died and in

the order itself the name Maurice McPike has been crossed	out
which would leave seven respondents, the last of whom is an

employer, namely Thomas Borthwick and Sons (Australasia)

Limited. The notice of motion before the Court is on a

document which includes Maurice McPike, in which case there

are eight respondents, although the order talks of the

respondents 1 to 6.	I merely mention that by way of aside.
Having regard to orders 5 and 6 being complementary to each other, their form is dramatically different. Order	5

gives the applicants their costs but then excludes certain

costs, namely, those exclusively referrable to the issue

arising under sub-section 45D(lA). Order 6 requires the

applicants to pay the fifth to sixth respondents' costs

incurred by them which were referrable exclusively to the

issue arising under sub-section 45D(lA). On the face of it,

it is apparent that the Court was going to give to the

respondents named their costs insofar as they were referrable

exclusively to the issue on which they succeeded, but at the

same time the form of order 5 is not so limited. On its

face, order 5 applies to all costs but excludes from them

those costs exclusively referrable to the issues arising

under sub-section 45D(lA). Those costs which are excluded
from order 5 are included in order 6 and are to be paid by

the applicants to the named respondents.

During the course of argument reference was made to

the meaning of the word "exclusively" as meaning solely, or excluding all others, or excluding all but what is specified.

As against that it was argued on behalf of the respondents

that the word "exclusively" did not take the matter much

further. The important word was the word "referrable" in

each case. If costs are referrable to a particular issue,

the use of the word "exclusively" does not take the matter

further.

In the context of these two orders, however, I

disagree with the latter submission. The use of the word
"exclusively" does have an important part to play. It
illustrates and indicates it is only those costs which can be

isolated and are made referrable only to the sub-section

45D(lA) issue which are to be excluded from the costs

recovered	by	the applicants, and those costs are the costs
which are then to	be paid	by the applicants to the named

respondents and set off against the costs to be paid by them.

Counsel for the respondents submitted to the Court

minutes of a proposed Order which set out a detailed form to

be followed by the parties in trying to determine how the

costs should be taxed, based upon the idea that any item which had any matter within it referrable to the sub-section 45D(lA) issue could not have been claimed by the applicants.

In view of what I have said, in my opinion that is not the

correct approach but in any event I do not propose to make

any order, but I would not have made the Order in the form of

the minutes proposed on behalf of the respondents.

From what I have said it is apparent what my views
are as to the construction of orders 5 and 6 but in view of

the fact that I have formed the view that I have not got

jurisdiction or power to make the Orders sought	I will merely
refuse the motion.	I will make no order as to costs.

Orders accordingly.

ATTACHMENT A

Title of Action

Pile Number : V. No. G.99 of 1985

Date Hearing of : 2 1 October 1988

Judgment Delivered : 2 1 October 1988

Counsel for Applicants : M r J. Riordan

Solicitors for Applicants : Rennick & Gaynor

Counsel for Respondents : Mr A. Kelly

Solicitors for Respondents: Ryan Carlisle Needham Thomas

Signed . .&m. ?.d.&. .

Date 27 October 1988