Lidcombe Plastering Services (NSW) Pty Ltd v Intercool Construction Pty Ltd

[1996] FCA 332

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    Nos. NG 3360 of 1995                 GENERAL DIVISION                 )    and NG 3359 of 1995

BETWEEN:     LIDCOMBE PLASTERING SERVICES
  (NSW) PTY LIMITED
  Applicant

AND:         INTERCOOL CONSTRUCTION PTY
  LIMITED & ANOR
  Respondent

CORAM:       TAMBERLIN J
PLACE:       SYDNEY
DATED:       12 APRIL 1996

REASONS FOR JUDGMENT

TAMBERLIN J:

In these matters I am informed by the parties that notices proposed to be sent under s78B of the Judiciary Act 1903 (Cth), were handed to the applicant and the supporting creditor only a matter of minutes before the hearing commenced today. In those circumstances there has not been sufficient time to notify the Attorneys-General and to have them present before the Court on the hearing of the application this morning.

I am satisfied that under s78B(2) sub-paragraph (a) of the Judiciary Act 1903 (Cth) the Court has power, in the present circumstances, if there is an adjournment of the proceedings,
to make such order as the Court thinks fit as to costs in relation to that adjournment.

It has been suggested that this section only confers power in the court but does not confer jurisdiction. However, there is nothing in the wording of s78B(2) which indicates that the section is to be read in such a restrictive manner.

The position arises because there is presently under reserved judgment by a Full Court of this Court, the question which is referred to in the notice of constitutional matter under s78B.

It would have been appropriate for timely notice to have been given of the constitutional matter, so that the Attorneys-General, had they so wished, would have been able to be represented before the Court today. 

However, in the present case, due to the extremely late notice of the constitutional matter, this hearing must be adjourned, until the Attorneys-General have an opportunity to consider their position. In my view, the applicant who has come to Court today ready to proceed with the application is entitled to an order for cost relating to this adjournment.

Having regard to the very late notification and the fact that the constitutional question has been widely publicised in the profession for a considerable period of time, it seems to me that there is no satisfactory reason advanced or evidence submitted to explain or excuse the late notice of the constitutional matter. I think this is sufficient to warrant the award of costs in favour of the applicant on a solicitor/client basis. I make an order for costs in favour of the applicant on that basis.

I certify that this and
the preceding two (2) pages
are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.

Associate:

Date:  12 April 1996                  

Counsel for Applicant:               Mr J Sexton  

Solicitor for Applicant:                   Baron & Associates

Counsel for Respondent:               Mr N Perram

Solicitor for Respondent:             Abbott Tout

Date of Hearing:  12 April 1996  

Date Judgment Delivered:                   12 April 1996