O'Toole v Charles David Pty Limited

[1991] HCATrans 109

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl20 of 1989

B e t w e e n -

JACK O'TOOLE

Applicant

and

CHARLES DAVID PTY LIMITED

Respondent

Application for costs

MASON CJ
BRENNAN J

DEANE J

DAWSON J
TOOHEY J
GAUDRON J

MCHUGH J

O'Toole(2) 1 30/4/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 APRIL 1991, AT 11.10 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR M. COCKBURN, for Charles

David Pty Limited.	(instructed by Michie Shehadier
Co).	Your Honours, may I mention, before there is

any other announcement, that so far as the

applicant in the proceedings, Jack O'Toole, is

concerned, we have been informed they do not intend

to appear and we had informed them, prior to that,

that no order for costs is sought against Jack

O'Toole.

MR R.H. MUECKE: If the Court pleases, I appear on behalf of

the Commonwealth. (instructed by the Australian

Government Solicitor)

MR J.J. DOYLE, QC: If the Court pleases, I appear with my

friend, MR D. WALTER, on behalf of the Attorneys-

General of the States of South Australia and

Tasmania and Queensland, and the Attorney-General

for the Northern Territory. (instructed by Crown Solicitor for South Australia). We seek leave to

be heard on the issue of costs, that is on the

general issue of the position of interveners in

relation to applications for costs on the basis

that as interveners, whatever the Court declares as

a general approach in this case, if it does declare
a general approach, is likely to affect the

interest of those for whom I appear.

MASON CJ:	Do you oppose this application, Mr Jackson? Well, in so far as you seek leave, or need leave,
the Court would be disposed to grant it to you, but
do you need it?

MR DOYLE: Well, I took the view we do, Your Honour, because

it is not a matter, as we saw it, arising under
section 78B, although perhaps conceivably one might

drag the constitutional issue into it, but it

appears to arise simply between the parties to the

litigation and, while this Court, as I understand

the case, has generally been a little more generous

in relation to interveners than State courts have,

the cases do suggest that still one needs leave to

intervene when there is no constitutional issue

involved.

MASON CJ: Well, you have leave to the extent that you need

it.

MR DOYLE:  Thank you, Your Honour.

MR K. MASON, QC: If the Court pleases, I appear with my

learned friend, MR R. SACKVILLE, for the Attorney-

General for New South Wales.	(instructed by the
Crown Solicitor for New South Wales).	We do not
seek the Court's leave.

O'Toole(2) 2 30/4/91

MASON CJ: Well, be it on your own head.

MR MASON:  We would wish to adopt entirely what my learned

friend, Mr Doyle, will put on behalf of the

question of costs.

MASON CJ: Very well. Yes, Mr Jackson.

MR JACKSON:  Your Honours, may I hand to the Court copies of

our outline of submissions.

MASON CJ: Yes.	Do they differ from what we already have?
MR JACKSON:	They are fuller, Your Honour, and I think, in

some respects, explain rather better the basis upon

which we make the claims which we do.

MASON CJ: Yes.

MR JACKSON:  Thank you, Your Honour. Your Honours, may I

say one thing before proceeding to deal with our
submissions and it is this: the reason why we do

not seek an order against the applicant, O'Toole,

and we do seek an order against the

Attorney-General is that under the terms of the

Conciliation and Arbitration Act which applied we

were not able to obtain costs against O'Toole.	So
that brings us to a situation where, whilst we
might have had two persons against whom we could
have sought costs otherwise, we now have one and
the issues which - - -

TOOHEY J: So, does the section operate as a barrier of both

in respect of proceedings in the Federal Court and

in this Court?

MR JACKSON:  Yes, Your Honour. I will come to that

provision later. I do not think it says so

specifically, but the proceedings seem to be of the

relevant character because the whole cause was

removed to the Court, as Your Honour may recall. I

will take Your Honours to the provision a little

later.

Your Honours, the issues which arise, whether

the Attorney-General for the Commonwealth may,

first of all and secondly should, be ordered to pay
the costs of the proceedings both here and in the
Federal Court and we do not, of course, seek all

the costs in the Federal Court but the costs of the

proceedings in the Full Court of the Federal Court

from the time of the Attorney's intervention in

them which was, in effect, at the time of the

commencement of the hearing, but it is from the

time of the Attorney's intervention.

O'Toole(2) 3 30/4/91

Now, Your Honours, we contend that the Court has power to make those orders and should proceed

and should do so.	May I start, Your Honours, with
the proceedings here.	Your Honours, this is a case

where the whole cause had been removed from the

Federal Court on the application of the section 40(1) of the Judiciary Act.

Now, Your Honours, the matter having been

removed the parties to the matter remain the

applicant and the respondent. But at the hearing

before the court, as indeed had been the case

before the Full Court of the Federal Court, the

Commonwealth by the Attorney-General intervened

and, Your Honours, the intervention by the

Commonwealth per the Attorney enlivened the court's

power to make an order for costs against the

Commonwealth. That appears, Your Honours, from

section 78A(2). Then I could take Your Honours to

that provision which is critical to the present

proceedings. It says:

Where the Attorney-General of the

Commonwealth or of a State intervenes in proceedings in a court under this section, the court may, in the proceedings, make such order

as to costs against the Commonwealth or the

State, as the case may be, as the court thinks

fit.

Your Honours, there are three features of that

provision which are material: the first is that
the courts to which .it refers are those mentioned

in the preceding subsection; that is and could I

refer Your Honours particularly to "proceedings

before the High Court or any other federal court";

secondly, the order for costs is not made against

the intervener but recognizes what is contained in

the opening words of the previous subsection of

section 78A(l) that the intervention is on behalf

of the particular polity and the order for costs is
made against the Commonwealth or the State as the

case may be.

The third feature, Your Honours, is that the

ambit of the power to order costs against the

Commonwealth is not subject to any expressed

restriction. By that I mean any restriction

expressed in the terms of the subsection itself;

indeed, the words used to confer the power on the

court are those commonly used to indicate a power

not subject to any restriction. So our submission

is that it is clear that the Court has the relevant

power.

O'Toole(2) 4 30/4/91

Could I come then to the manner of exercise of

the power in relation to the proceedings here.

Your Honours, the proposition relied on by the

Commonwealth - and I refer to the Commonwealth's

written submissions - appears to be that the ambit

of the power is restricted so that it may only be

used to empower the making of an order that the

Commonwealth pay such additional costs as have been

occasioned by the intervention. The proposition,

put alternatively, appears to be that the manner of

exercise of that discretion should be such that we

are only entitled to the additional costs

occasioned by the Commonwealth's intervention.

Your Honours, we would accept that perhaps the most commonly made order would be along those lines

but that is not - - -

TOOHEY J: Could I just interrupt you? When you say,

speaking of the Commonwealth's approach, that it

appears to be this or that, is that based on

a - - -

MR JACKSON:  I am sorry, Your Honour.

MASON CJ: It is paragraph 2 of the outline of submissions.

MR JACKSON:  I am sorry, I did not give a particular

reference to it but I was simply seeking to

indicate that the Commonwealth's approach seems to

be one of two things, essentially: either that the

power does not empower the making of an order of

the nature we seek or, alternatively, that the

matter of exercising the discretion should be such

that we obtain only the additional costs occasioned

by the intervention. Your Honours, we would accept

that perhaps the most commonly made order would be
along those lines but that is not, in our

submission, the limit of the power.

Your Honours, the submissions made on behalf

of the Commonwealth in writing appear to suggest
that there should be a reading down of the Court's
powers because of the observations of the then

Attorney-General in the second reading speech of

the Judiciary Amendment Bill 1976 which introduced

section 78A. I am sorry, I thought that the Court

had a copy of that but the relevant part of it is

characterized by its brevity and may I simply read

it to Your Honours.

What was said by the then Attorney-General

was - and I am referring to page 2945 of the

Judiciary Amendment Bill debate in the House of

Representatives on 3 July 1976 and I will have copies provided to Your Honours:

O'Toole(2) 30/4/91

The Attorney-General of the Commonwealth

and the States are to be given a right to

intervene in proceedings in all courts
involving constitutional issues. At present,

an Attorney-General may intervene only by

leave of the court. Provision is made for the

court to award costs against the Commonwealth

or a State intervening in proceedings under

this power.

And then the sentence that I assume is relied on: This should protect litigants from having to pay increased costs as a result of

intervention.

Well, Your Honours, so it should, but that really does not take the matter very far. Your Honours,

what was said by the Attorney did not purport to be

a statement of the limits of the power to award

costs.

Your Honours, I have made those submissions on

the assumption that it is permissible to have

resort to the second reading speech but, in our

submission, there is a threshold question, namely,

whether that assumption is correct. And

Your Honours, in that regard the terms of

section 15AB(2)(f) of the Acts Interpretation Act

contemplate that a second reading speech may form

part of the range of materials to which reference may be had by the Court, but the circumstances in

which reference may be made to such material are

delineated by section 15AB(l).

Your Honours, if one goes to that provision,

and I am conscious of the fact that the Court has

discussed these provisions on a number of
occasions, Your Honours will see in section 15AB(l)

that consideration may be given to material of the

kind to which I have referred for a number of

purposes -

(a) to confirm that the meaning of the

provision is the ordinary meaning;

(b) to determine the meaning of the provision

when -

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text
of the provision taking into account its
context in the Act and the purpose or object
underlying the Act leads to a result that is

manifestly absurd or is unreasonable.

0'Toole(2) 6 30/4/91

Now, Your Honours, none of those circumstances

applies in the present case, and the consequence is
that it is not permissible, we would submit, to
take into consideration what was said by the

Attorney at the time.

Your Honours, could I in that regard refer

Your Honours to the Court's decision in re

Australian Federation of Construction Contractors;

Ex parte Billing, (1986) 68 ALR 416, at page 420

where, in the first new sentence on that page, and

for about the first ten lines the Court applied the

proposition to which I have just referred.

Now, Your Honours, if one assumes in our

favour that the ambit of the power under

section 78A(2) is not to be treated as limited, the

question which arises is whether the power should

be exercised in our favour against the Commonwealth

in the present case. Your Honours, in this regard

the starting point is that there were theoretically

two parties against whom we might seek costs, they

being the applicant and the Commonwealth. We, as I

submitted earlier, were faced with a difficulty in
seeking costs against the applicant and that

difficulty arose because of the provisions of

section 197A of the Conciliation and Arbitration

Act 1904. Your Honours will recall that the

provisions of the Conciliation and Arbitration Act

continued to apply to the present case. They

continued to apply, Your Honours, and perhaps I should give the reference again, because of two

provisions of another Act which was the Industrial Relations (Consequential Provisions) Act 1988, the

two provisions being-sections 9 and 67.

Now, Your Honours, if I could come then to section 197A, Your Honours will see that it

provides that -

A party to -

(b) a proceeding, including an appeal, before

the Court, or before a court of a State or

Territory, in a matter arising under this Act; or

(c) a proceeding before the High Court -

(i) being an appeal from a judgment ..... under

this Act -

Well, the proceedings were not, of course, an

appeal.

(ii) being a proceeding in respect of an a~ard

proposed to be made, made or purporting to

O'Toole(2) 7 30/4/91

have been made, a decision proposed to be

given, given or purporting to have been given,

or any other act proposed to be done, done or

purporting to have been done, under this Act,

or in respect of a failure -

et cetera.

Now, Your Honours, the words, whilst covering

many cases and perhaps most often being words

apposite to describe proceedings by way of

prerogative writ in the Court, seem clearly enough

to be wide enough to cover a case such as the

present -

shall not be ordered to pay any costs incurred

by any other party to that proceeding except

where the party against whom the order is made
instituted the proceeding vexatiously or

without reasonable cause.

Your Honours, we do not make that suggestion. It

would seem impossible to make it in the

circumstances.

Now, Your Honours, the provisions of

section 197A, however, apply only to persons who

were parties to the proceedings. They do not alter

the position of the Commonwealth and, in our

submission, there are various features which should

incline the Court towards the making of an order

for costs in our favour against the Commonwealth.

Your Honours will have seen that section 197A

applies to parties but not to interveners. If the

Commonwealth does intervene it may be liable for

costs because it is not protected by section 197A.

One goes also then to the Judiciary Act provision

itself and to section 78A(3) and 78A(4).

Section 78A(3) makes the Attorney-General a

party to proceedings for one limited purpose and

that is for the purposes of the institution and

prosecution of an appeal if the Attorney has

intervened. However, section 78A(4) says that

where that occurs, namely where the

Attorney-General institutes an appeal in

proceedings where he has intervened, a court

hearing the appeal:

may ..... make such order as to costs against

the Commonwealth or the State, as the case may

be, as the court thinks fit.

Now, Your Honours, that provision does not

apply directly but, in our submission, it provides

some guidance as to the manner in whic·h the

O'Toole(2} 30/4/91

discretion conferred by section 78A(2) should be

applied. If the right to appeal is exercised, the

price is exposure to the liability to pay costs.

In the present case it is true to say that the

Commonwealth did not appeal although it had intervened in the proceedings in the Full Court of the Federal Court but it did the next best thing: it applied for and obtained the removal of the

proceedings to the court under section 40 and it

did so, Your Honours, in circumstances that have two relevant features. One is that it did so in

order to seek to have altered the decisions, or the

answers to the questions which the Full Court of

the Federal Court had indicated it proposed to

give. And, Your Honours, it did so in

circumstances where it must have known, or should be taken to have known, that the costs occasioned

to us by that would be irrecoverable except from

the Commonwealth and, one observes in passing, the

Commonwealth lost.

DEANE J:  Mr Jackson, does it appear whether your client

opposed the application for removal by the

applicant?

MR JACKSON:  Your Honour, I do not think we did. We raised

some conundrums - I am not quite sure what that

means - but in terms of opposing it - - -

DEANE J: That is the whole point of a conundrum, is it not?

MR JACKSON:  I take Your Honour's point. Your Honours, it

was not at our instigation, may I say, and we

really had no choice about the matter. The

Attorney wanted to remove it; the Attorney had a

right to remove it; the Attorney did and it did

so, as I submitted a moment ago, to have another go

and it failed. And did so, Your Honour, in

circumstances where we would have to pay.

Your Honours, in those circumstances, we would

submit the decision below being unchanged, we
should not be out of pocket and the Commonwealth

should pay. Your Honours, those are the

submissions I want to make about the proceedings in

the court.

Could I turn then to the proceedings in the Full Court of the Federal Court? As I submitted

earlier, we seek an order that the Commonwealth pay

our costs of those proceedings. And, Your Honours,

one starts, of course, from a slightly different

jurisdictional base in that in terms of

section 78A(l) one is talking about proceedings at

a time before they came to the court. One starts

O'Toole(2) 9 30/4/91

in the particular case, from the removal power

section 40.

Under section 40(1), removal from the

Federal Court on the application of the Attorney is

as of course in a case to which section 40(1)

otherwise applies. Now, here, of course, the whole cause was removed - that was, in a sense, the point of it - and on removal the court had jurisdiction

to hear the whole of the cause. That appears from

section 40(3), Your Honours, which, of course, says

that:

jurisdiction to hear and determine a cause or

part of a cause removed ..... to the extent that

that jurisdiction is not otherwise conferred

on the High Court, is conferred on the
High Court by this section.

And, Your Honours, under section 41, once removal has occurred:

further proceedings .... shall be as directed by

the High Court.

Now, Your Honours, those provisions, in our submission, are sufficiently ample to empower the

Court, which now has the case, as it were, to deal

with all orders that have not yet been made but

need to be made, that is, including orders for

costs.

Now, Your Honours, one can understand readily,

of course, that in some cases, perhaps in the
majority of cases, the Court might think it

appropriate for unresolved questions of costs in

courts from which matters have been removed, to be

dealt with by those courts by the matter being

remitted to the court. But, Your Honours, in a

case where what was removed was the whole issue, in

effect, and where that issue was exactly the same

issue as was dealt with by the court, the Court

can, and in our submission, with respect, should,
deal with the question unless some particular

matter which might otherwise affect the order, and

which is likely to be particularly within the

knowledge of the court below, is referred to.

Otherwise, with respect, it is just to increase

costs for the Court not to deal with those costs.

Your Honours, in the present case there is no

such matter which might attract the special

knowledge of the judges who heard the case in the

Federal Court. Your Honours, essentially the

issues were no different from those here and,

Your Honours, the considerations to which I have

referred already in relation to the proceedings

O'Toole(2) 10 30/4/91

here support the making of a similar order in
respect of the proceedings in the Full Court of the

Federal Court.

Could I ask Your Honours to note in passing

that in Fisher v Fisher, (1986) 161 CLR 438, the

Court ordered that the parties' costs be paid by the intervening Commonwealth. That appears at

page 451 at the conclusion of the reasons for

judgment of Chief Justice Gibbs and, Your Honours,

other members of the Court agreed with the making

of that order. But it is not apparent whether the

issue was one that was argued or whether there was

objection taken to it by the Commonwealth.

Your Honours, finally, may I say in relation

to the topic that, as I have submitted earlier,
there is nothing in the terms of section 78A(2)

itself which would merit its being read down. One

can understand the Commonwealth and, it would seem,

the States, in these depressed times, wanting to ensure that there was not too much of a bleeding

from the treasuries but, Your Honours, there is no

particular reason why, when major constitutional

issues come to the Court and come to the Court at

the instance of the Attorneys, to have them

determined, and in circumstances where the parties

themselves are not able to be remunerated, then the

party removing the proceedings should not pay for

the privilege.

BRENNAN J:	Were the proceedings in the Federal Court brought on the case stated, on the application of
O'Toole v Charles David?
MR JACKSON:	Your Honour, the proceedings in the Federal

Court were a statement of questions by

Mr Justice Gray to the Full Court of the Federal

Court, the application having been brought by not us, the other side, and then of course there was -

may I say, personally I was not in the case at that

point - debate about the propriety of the

questions, whether it should or should not be done,

but it was not at our instigation, although in the

end, I suspect, it is right to say that we

recognized the inevitability of His Honour making

the order and then, of course, once he had

indicated he was inclined to, engaged in debate

about what the terms of the stated case should be.

BRENNAN J: At what stage did the Commonwealth intervene?

MR JACKSON:  Your Honour, the Commonwealth intervened at a

point after - perhaps I may be corrected but I

state what I understand to be the position - the

Commonwealth intervened at a point after His Honour

had stated the questions but prior to the day of

O'Toole(2) 11 30/4/91

the actual hearing. In other words, what I mean by

that is the matter was mentioned, the Commonwealth

indicated, by senior and junior counsel, it

intended to intervene, and then when the matter

came on the indication of intention was

effectuated. The event which brought about the

Commonwealth's indication of intention to intervene

was that section 78A notices had been given and the

court, no doubt to see how long the case would

take, for example, set the matter down on an

occasion when the parties then appeared.

BRENNAN J: Is it right to say that the parties were

committed to the proceeding before the Full Court

of the Federal Court upon terms of non-recovery of
the costs involved until the Commonwealth

intervened?

MR JACKSON:  Excuse me just a moment, Your Honour. I am

sorry, Your Honour, I mislead the Court before.
The Commonwealth intervened on 8 September 1988 and

His Honour at that point had not yet stated the case and debate proceeded on whether a case should or should not be stated, so Your Honour, the

proposition that Your Honour was putting to me

appears to be based on an incorrect factual base

which I had given, of course, to Your Honour, and

of course, they appeared before the Full Court.

MASON CJ: Yes, thank you, Mr Jackson. Yes, Mr Muecke.

MR MUECKE:  Could I hand up an outline of the Commonwealth's

contentions, please.

MASON CJ:	Do they differ from the ones already handed in?
MR MUECKE:	They do, Your Honour.

MASON CJ: Yes.

MR MUECKE:  Just in further answer to what Justice Brennan

was asking Mr Jackson.	Mr Jackson's reply was,
with respect, completely accurate.	The

Attorney-General did intervene before the

proceedings before Justice Gray, before the case

was stated.	He did that at a directions hearing on
8 September.	The Attorney, I suppose I would say,

also intervened at the hearing of the matter before

the Full Court. It may not have automaticly

followed that his intervention before Justice Gray

would have made him an intervener before the

Full Court, but he did, through counsel, intervene
at the hearing of the case stated to put
submissions through counsel to support the validity

of section 60.

O'Toole 12 30/4/91

The first submission in the outline,

Your Honours, is made on the basis that the fact

that the only application here being made in

respect of costs against the Commonwealth is based

on section 78A. Could I please hand up to

Your Honours a copy of the relevent provision of

the Acts Interpretation Act 1901. I have joined to

it for possible further convenience the extrinsic

materials to which I wish to refer, but I do not

wish to take Your Honours to that directly. I will

first address the question of the application of

section 15A before inviting Your Honours to look at the extrinsic materials. The basis on which I seek to use the extrinsic materials is

section lSAB(l)(b), paragraphs (i) and (ii), that
section 78A(2) is obscure or ambiguous or that its

ordinary meaning would lead to an unreasonable

result.

In this regard I rely on three factors: one is

the fact that in this Court in Nile v Wood,

167 CLR 133, this Court was divided in respect of a

provision of the Commonwealth Electoral Act 1918, which authorized the Court of Disputed Returns to order costs against the Commonwealth, -

where the Court considers it appropriate to do
so.

Here, by way of contrast, the authority is to order costs as the Court thinks fit and I would rely on

that division of opinion in this Court to support my submission that section lSAB(l)(b)(i) applies. I also rely on the fact that in Australian Postal

Commission v Dao, (1986) 6 NSWLR 497, the New South

Wales Court of Appeal relied on Mr Ellicott's

second reading speech in construing section 78A(2).

At page 508 of the report, President Kirby said

that the:

burden the Commonwealth and State with all of

the costs of the appeal might be unjust.

And I refer to that in the context of the provision

in section lSAB subparagraph (ii), that the

ordinary meaning would lead to an unreasonable

result. Justice of Appeal McHugh expressed his

general agreement with the President's reasons.

Mr Jackson referred to subsection (1) of the

Act. I think that perhaps I should take

Your Honours also to subsection (3) of section 15AB

to which subsection (1) is subject, and that

provides that in determining whether consideration

should be had to extrinsic materialsr regard is to

be had to relevant matters and the particular ones

mentioned as:

O'Toole 13 30/4/91

the desirability of persons being able to rely

on the ordinary meaning -

and paragraph (b):

the need to avoid prolonging legal or other

proceedings -

As regards paragraph A, all I would submit

that it is essentially inapplicable here since the

meaning of section 78A would necessarily be for the

Court to determine on any application for costs.

As regards paragraph B, the need to avoid

prolonging legal proceedings, I note that in Dao

the Court of Appeal said that the settlement of

litigation might indeed be delayed if a wide view

of section 78A was to be adopted which authorized

payment of costs merely upon the intervention of an

Attorney-General and, as I say, Justice McHugh

agreed with the learned Pesident in that case. So,

on that basis,I seek to take Your Honours to the

extrinsic materials which is attached immediately

behind section 15AB to which I have handed

Your Honours.

Can I first take you to the second reading

speech which, at page 2944, the Attorney refers to

the amendments being made in the Judiciary

Amendment Bill 1976 as a:

first step in a thorough revision of that Act

and is concerned primarily with the question

of relieving the High Court of some of the

burden of its original and appellate

jurisdiction.

The Attorney went on to refer to the High Court's

occupation of:

a position of special importance under our

constitutional framework -

and it be vital that the High Court be -

free to concentrate -

on that work. At page 2945, on the left-hand

column, the Attorney refers to the law which was

then being repealed in the Judiciary Amendment

Bill, section 40A, which:

automatically ..... inter se questions.

And to the "inconvenience" that that provision

could cause and then, on the right-hand column of

page 2945, the Attorney referred to what I would

O'Toole(2) 14 30/4/91

say is the purpose of section 78A(2) to which

Mr Jackson has taken you, that:

The Attorney-General of the Commonwealth and

the States are to be given a right to

intervene in proceedings in all courts
involving constitutional issues. At present,

an Attorney-General may intervene only by

leave of the court. Provision is made for the

court to award costs against the Commonwealth

or a State intervening in proceedings under

this power. This should protect litigants

from having to pay increased costs as a result

of intervention.

And then a short way down that same column there is

a reference to a similar provision in

section 78B(4) of the Judiciary Act which
authorizes the Attorney-General to pay on behalf of

the Commonwealth:

an amount in respect of costs arising out of

the adjournment.

And the Attorney, in the second reading speech,

refers to that, that is:

to compensate parties for any increased costs

due to an adjournment.

And, finally, in relation to the second reading

speech, may I just mention a passage on the left-

hand column of 2946, that one of the reasons for

taking out section 40A is to enable State supreme
courts, in particular, to deal with constitutional

issues.

I just briefly refer to the explanatory

memorandum on the bill at page 16 - this is the

last document in the materials I handed up - that

in paragraph 42 that the:

New section 78A ..... will ensure that the

Commonwealth or a State is entitled to put its

views to any court on any constitutional issue

and that -

Sub-section (2) of proposed new section 78A

would empower the court before which an

Attorney-General intervenes to order the

Commonwealth or the State, as the case may be,

to pay any additional costs of the parties

resulting from that intervention.

O'Toole(2) 15 30/4/91

Perhaps I just pause there before going on further

to support the argument in paragraph 1 of my

submissions. There is a possible argument that

section 78A(2) focuses on the power of a court to

order costs in respect of intervention before that

court and before no other court. I do not seek to

persuade this Court that it should not, if it is so

minded, address the question of issue of costs

against the Commonwealth in respect of the hearing

in the Federal Court, but I just do mention that

there is a possible argument to the contrary based

on the language of section 78A(2).

DEANE J: In so far as the Federal Court is concerned, would

you oppose an order that you pay the applicant's

costs in the Federal Court to the extent to which

such costs were increased by the intervention of

the Commonwealth.

MR MUECKE:  No, so far as the applicant is intended to refer

to the respondent Charles David, Your Honour. I would not oppose Charles David's application for

costs in the Full Federal Court in so far as the

Attorney's intervention increased them.

DEANE J:  I meant that, I think. I think it is the

applicant here.

MR MUECKE:  The applicant before this Court, on this motion,

yes, Your Honour. No, I would not oppose that. I

should go on to say that we have indicated that to

the applicant since February 1991, that so far as

the application for costs that is raised in the

submission that was filed in this Court that the

Commonwealth would not oppose paying increased costs, both before the Full Federal Court and the

High Court, but that we were not aware that there

were any increased costs. As I recall, the hearing

in the Full Federal Court went for two and a half

days, the Attorney's counsel was heard on the

morning of the third day and her argument occupied

20 pages of the transcript. So if it was put to

Your Honours in reply that the intervention in the Full Federal Court did extend that hearing I would not agree with that proposition.

I would also refer, by way of an example, to section 91 of the Family Law Act. I have not got

copies, regrettably, to hand up to Your Honours,

but that section 91 authorizes the Attorney-General

to intervene in proceedings that raise - if I could

so call it - family law issues and section 91(2)

provides:

Where the Attorney-General intervenes in

any proceedings, the Attorney-General shall be

deemed to be a party to the proceedings with

O'Toole(2) 16 30/4/91

all the rights, duties and liabilities of a

party.

And I refer Your Honours to that section as being

in stark contrast to what is provided in
section 78A.

Can I next take Your Honours to a decision of the New South Wales Court of Appeal in University

of Wollongong v Metwally, (1985) 1 NSWLR 722, the

relevant discussion is at pages 727 to 728.

Perhaps I will not take you to all the passages but

perhaps if I could just read from page 728, the
conclusion towards the bottom of the page, having

looked at the authorities and the practice, if I

could call it, of this Court that had been adopted,

that it was:

clear that the mere intervention of the law

officers does not of itself attract a right to

an order for costs against them. In each case

it is a matter for the court to exercise its

discretion.

TOOHEY J:  Mr Muecke, are you inviting us then to read

section 78(2) as empowering the Court to do no more

than order the Commonwealth to pay those additional

costs incurred by reason of its presence in the

proceedings?

MR MUECKE: That is correct, Your Honour.

TOOHEY J:  In other words, the taxing master would be

invited in an appropriate case to assess the amount

of time taken by reason of the Commonwealth's

presence, both in the argument that it presented

and in the response that was necessary to that

argument?

MR MUECKE: That is correct, Your Honour. It is on the

principle that the policy of the Act is to

authorize Attorneys-General representing the

perhaps respective, perhaps different in many

cases, public interests, to put before this Court

in particular the views of the Commonwealth and the

State on important constitutional issues. It is

done in a framework where it is not the Attorneys

who raise the issues, it is done in the context of

existing litigation in which the parties are

involved and no doubt pleading their cases with a

view to enhancing their particular claims and also,

no doubt, in the context that the provisions of

section 78A exist, and 78B for that matter, that

notices are required. And 78B is a requirement of

the law imposed on litigants that they are well

aware of and that is the context in which the

litigation is conducted. But once an

O'Toole(2) 17 30/4/91

Attorney-General intervenes he is at risk of costs but only to the extent of what that intervention

has increased. It may even, in some cases, be by

no means a small amount but I acknowledge that.

DEANE J:  What about a case where neither of the parties

wanted it removed into this Court and the

Commonwealth on one side and the State on another

procure removal and then conduct the main argument

against one another.

MR MUECKE:  The first part of your question is perhaps what happened in this case, Your Honour. Mr O'Toole

applied to this Court to remove the case stated.

The options then facing the Commonwealth Attorney-

General, who had an interest in the Full Federal

Court, was whether to support Mr O'Toole's

application or to make his own application.

Support of Mr O'Toole's application may have been

considered a little odd because the Attorney - if

he had made his own application, removal would have

been as a right.	So what was done was that the
Attorney did remove as a right.	Mr O'Toole

supported that application and the respondent, I

think, could not really oppose it in the face of
section 78A.

When it comes to the hearing, normally the Attorney-General who removed would intervene. I

will come to a submission later on that that may

necessarily not be the case. Normally it would

but, for example, in the case of Dobinson v Crabb,

Mr Justice Marks dealt with two constitutional

issues, one a 109 point, and a consequential one

dealing with power. Justice Marks dealt with those

two matters. The Attorney had not intervened on

the 109 point but had intervened on the matter of

power.	It could have been open to the Attorney to
remove that appeal into this Court.	Once it was in

this Court, the power point was abandoned, so the

Attorney may not have intervened in those

circumstances because he does not have the interest

in the 109 issues that he does in power.

So it is possible that intervention does not

logically follow from an application for removal,

though normally it would, but once the Attorney

intervenes, if a party so chooses to rely on the

submissions that are put normally through the

Solicitor in this Court, then that intervention

will prolong the proceedings as of itself and the

Commonwealth is at risk of costs.

TOOHEY J:  And does that argument, Mr Muecke, depend

entirely upon the construction of th~ section? If

the Court were to take a wider view of

section 78(2) than the one that you co'ntend for, do

O'Toole(2) 18 30/4/91

you address an argument based on the merits of the

case?

MR MUECKE:  Yes, I have an argument later on, at the end, to

submit that as a matter of discretion in this case

the Court should not accede to my friend's

argument, at least, that the Commonwealth pay all

the costs in the High Court and in the Full Federal

Court. May I do that towards the end?

TOOHEY J:  Yes.

MR MUECKE: Finally, regarding the principal argument, at

least so far as authority goes, may I take the

Court to Australian Postal Commission v Dao, (1986)

6 NSWLR 497. The relevant passages are at 506 to

509. There the Court of Appeal comprised the same

court as in the earlier case, President Kirby,

Justices of Appeal Samuels and McHugh. The court

there examined three possible approaches to

section 78A.	One was that the Commonwealth and the
States pay all the costs.	The second, which is

described as option (b) at the top of page 507 of
the report, that the Commonwealth and the States
pay marginal or additional costs incurred by virtue

of their intervention - and that essentially is the

submission I make to Your Honours today. The third

option, described as option (c) towards the middle
of page 507, is that the Commonwealth and States

pay costs only when intervention was unreasonable.

The Court of Appeal adopted the second approach, for the reasons appearing in the second-

half of page 508, going on to page 509 which I,

with great respect to Their Honours, adopt. I will

not read those passages, but you will see that the

fact that private litigants are the initiators of
constitutional questions, and for the public purse

to pay might result in protracted litigation, are

mentioned as factors and, a third of the way down	page 509, Their Honours say that if a general rule
whereby the Commonwealth and States pay all the
costs of a case in respect of which the Attorneys intervene, they say:

Any such general rule would need clear

legislation to introduce it.

DEANE J: But everybody would agree with that, would they

not?

MR MUECKE: That it needs clear legislation? Yes.

DEANE J:  What you are saying is that it is manifestly

unreasonable to construe this section as empowering

the Court to make an order which is appropriate to

the circumstances?

O'Toole(2) 19 30/4/91

MR MUECKE:  Yes, that is correct, Your Honour, or that its

meaning is obscure for the purposes of the first

limb of the 15A test.

DEANE J: But if the Court decides it is appropriate to the

circumstances, how could a legislative provision

that empowered that be manifestly unreasonable?

MR MUECKE:  My submission is that section 78A(2), I suppose,

does two things, Your Honour. One, it authorizes

an order for costs against the Commonwealth that

the parties suffered an increase in because of an

Attorney's intervention and that is all that it

authorizes.

DEANE J: But what it says is, an order can be made which is

appropriate to the circumstances. Why would that

be a manifestly unreasonable result?

MR MUECKE:  I do not say that that aspect is manifestly unreasonable. I say that that is vague or obscure,

Your Honour, and in that respect I rely on this

Court's examination of a similar provision which

said exactly the same thing in Nile v Wood.

DEANE J:  I follow that. I thought you said it was also

manifestly unreasonable.

MR MUECKE:  No, I rely to establish the manifest

unreasonableness of it of something else the Court of Appeal said in the Dao case that the wider view for which Mr Jackson contends would be unjust for

the Commonwealth and the States and would lead to

protracted litigation. But I seek to support both

of the exceptions.

Can I turn then to the authorities that might

be considered against me, Your Honours? The first

is Nile v Wood, which I apprehended would be

against me. That section authorized the Court of

Disputed Returns to make an order where it

considered it appropriate to do so.	The majority
thought, at page 143:

that, on balance, the interests of justice

would be served if Mrs. Nile did not have to

bear the ultimate burden of the order to pay

Mr. Wood's costs of the proceedings.

On the other hand Justice Brennan, on the previous

page, page 142, required:

Some warrant for imposing a liability on the

funds of the Commonwealth -

The case is, in my submission, distinguishable

because the object and purpose of section 78A is,

O'Toole(2) 20 30/4/91

on my submission, as indicated in the extrinsic

materials to protect litigants from increased
costs. Moreover, in my submission and with

greatest respect to Justices Deane and Toohey in

the majority, the precedent value of Nile is

somewhat diminished, in my submission, by the fact

that the majority do not clearly indicate what is

being weighed in the balance. The majority

judgment, whilst it refers to the fact that Mr Wood

was in fact disqualified because he was not

qualified to stand for election, that does not seem

to be a factor on which the majority relies in the

judgment because the passage to which I have just

referred is prefaced by the words "be that as it

may".

The other authorities against me are the cases

in which this Court has made orders for costs

against the Commonwealth or an Attorney-General and

here I will just name some of which I am aware - I

do not purport to say that it is an exhaustive

list. Mr Jackson has mentioned one, Fisher v

Fisher, 161 CLR 438, Fountain v Alexander,

150 CLR 615 and the University of Wollongong v

Metwally, 158 CLR 447. In all those cases orders

for costs were made against either an

Attorney-General or against the Commonwealth.

But I would seek to distinguish those cases

for two reasons. One is that no reasons were given in Fisher or Metwally for the orders there made and it does not appear from the report that the

Fountain v page 628, that:

question of costs was argued. In

In the circumstances it seems appropriate that the Commonwealth should pay the costs of the

plaintiffs and the defendants and the learned

Solicitor-General -

then Solicitor-General Byers -

did not oppose that course.

There is no further elaboration in the judgment as

to whether the circumstances Chief Justice Gibbs

was referring to were limited to the fact that the

Soli~itor-General had made his concession.

There are also, as a matter of distinguishing

these authorities, a number of other cases in which

Attorneys-General have intervened and a party was

ordered to pay costs. Some were referred to by the

Court of Appeal in Metwally and I mention the

others just quickly. I have copies of the relevant

orders here if Your Honours wish but perhaps I can

O'Toole(2) 21 30/4/91

just run through and give Your Honours the

citations: Bourke v State Bank, 170 CLR 276;

Concrete Constructions v Nelson, 169 CLR 594;

Breavington v Godleman, 169 CLR 41; Harper v

Minister for Sea Fisheries Tasmania, 168 CLR 314;

Mcwaters v Day, 168 CLR 289; Philip Morris v the

Commissioner of Business Franchises, 167 CLR 399.

That case I just compiled from recent volumes of the Commonwealth Law Reports.

Can I also perhaps hand up for Your Honours' use subsequently a copy of relevant provisions of

the industrial relations legislation. Mr Jackson

has referred to section 67 to which Justice Dawson

in O'Toole, 64 ALJR 618 at page 643, referred.	I
simply hand them up for Your Honours' benefit.

Section 67 is the section by which the old Act - the previous Act, it is called - applied for the dealing with of the application for the enforcement

of award under section 119 of the Conciliation and

Arbitration Act.

The next two pages are sections 8 and 9 of the

(Consequential Provisions) Act. Mr Justice Dawson,

I think, referred to section 9 of that Act in his

judgment, as did Mr Jackson. I just mention, I do

not seek to make any point of it, but section 9

refers where a hearing of the proceeding has

started, but the exception to that is other than

any interlocutory hearing. Where there is an

interlocutory hearing but no hearing proper, as I

might call it, section 8 is the relevant section.

So it may be that if the case stated was regarded

as an interlocutory hearing, then section 8 is the operative provision rather than section 9. But in

any event both sections 8 and 9 are subject to

division 5 which contains section 67.

The other document is merely a copy of

section 347.

that is on the next two pages of the Conciliation It was mirrored in section 197A and

and Arbitration Act. The final document that I

have included in that bundle is section 106 of the applied in this case to authorize the Attorney-

General -

on behalf of the Commonwealth, by giving to

the Registrar of the Federal Court of

Australia notice in writing of his intention so to do, intervene in the public interest in

a matter before the Court.

There is.no provision in that section concerning

the payment of any costs, nor does the section, I

might add, add that the Attorney is to be deemed to

be a party for any purpose.

O'Toole(2) 22 30/4/91

On my submissions concerning the Industrial

Relations Act, my submission in paragraph 2 I

certainly do not resile from, but the same

submission can be made in relation to the previous provision in the Conciliation and Arbitration Act.

Paragraph 3 of the written outline deals with

the question of an application for costs in respect
of the application for removal moved by the

Attorney and heard before this Court on 13 October. My submission is that section 78A does not apply in

respect of any application for removal into the

High Court under section 40 of the Judiciary Act, but where there is removal section 78A applies only

where an Attorney intervenes in the High Court.

The reasons for this submission, and may I

state them shortly - first is that section 78A

could not conceivably apply to all applications

under section 40. Thus, if a party successfully

applied for removal and no Attorney-General
intervened in the proceedings in the High Court, no

order for costs under section 78A could be made.

Secondly, the removing Attorney is not made a

party to the cause that is removed, but only has a
right to intervene under section 78A and, as I
indicated earlier in an answer to Justice Deane,

that right may not necessarily be exercised. In

the normal course I would say that it would be

exercised. But where developments have occurred

after the removal which caused the removal, it

would be open to an Attorney-General not to decide

to intervene, and therefore the Commonwealth could

not be at risk of costs in respect of the

application for removal at least under section 78A.

DEANE J: But if the parties did not want to be here the

Court could then remit it.

MR MUECKE:  It could, indeed. I used the example of

Dobinson v Crabb because that is the one that came to my mind, Your Honour. That was removed at the

time when there were two constitutional issues, the

109 point and the power point. It was removed on

the application of the Attorney-General of

Victoria. But I suppose the example I use might

conceivably have been made on the application of

the Commonwealth Attorney-General because he was

interested in the power point. Following removal

Victoria, who sought to challenge power if the

section was interpreted in such a way that the 109

issue could be made out, that power point was

abandoned, and I certainly can see it would have

been open to the Court to then remit.the matter but

no application was, of course, made.

O'Toole(2) 23 30/4/91

I use that as an illustration to make the

point that an Attorney has a right to intervene,
but does not necessarily intervene.

I simply mention as regards the Court of Appeal's decision in Dao which indicated at

page 507 that - and I will take Your Honours to

that if I may because it is against me. In the

description of option (b) at the top of page 507,

Their Honours said:

Where that intervention occasioned removal of

the case to the High Court of Australia under

the Judiciary Act, the additional costs of the

proceedings in the High Court would be

attributable to the intervention of the law

officers involved.

With respect, my submission is contrary to what is

there said. Intervention under section 78A is not

intervention for the purposes of removal. If one

calls it intervention at all, it is sort of an

interventionist sense. There is an application by

an Attorney to remove a matter, not by intervening

under section 78A. I do not make any submission

that this Court could not order costs against the

Commonwealth Attorney-General on the motion to

remove, but I do not apprehend any such application

is being made in this case. The only application

as I understand it before the Court is based on

section 78A.

I should also refer the Court to the order

that this Court made· in Fencott v Muller,

(1983) 152 CLR 570 at page 631. Would it be of

assistance if I handed a copy of the relevant pages

to Your Honours? Your Honours will see that in

what I am handing up the first part is relevant

passages from Dobinson v Crabb which gives the

history of how the matter came to that court,

although I should say that what is in the report

does not reflect the fact that there were two

constitutional issues that Justice Marks decided,

the 109 point and the power point.

MASON CJ: Thank you.

The case is Fencott v Muller, 152 CLR 631. It

is the final page and the order of the Court there

indicates - and I regret to say that I have not

found the transcript in relation to the hearing of

14 May 1982, but it there indicates that the

Commonwealth Attorney-General had made an

application for removal and that this Court, when
it made its order for costs which followed the

event, excluded:

O'Toole(2) 24 30/4/91

any additional cost resulting from the removal

of these proceedings into the Court which are

to be paid by the Attorney-General for the

Commonwealth under the order made by this

Court on 14 May 1982.

In my submission, section 78A would not have been

the source of power for that order. Apart from the

fact that the Attorney-General had not, at that

stage, intervened under section 78A, the order was

addressed to the Commonwealth Attorney-General and

not to the Commonwealth which it would have been

had the Court been acting under section 78A. It

may be that the order was made under the power of

this Court to award costs under Order 71 rule 1

but, in my submission, it was not made under

section 78A.

Finally, can I just deal with the question of

discretion in relation to costs. If Your Honours

are against me on my submission concerning

section 78A, my submission is that the Court should

not, as a matter of discretion, order costs against
the Commonwealth except in the most exceptional
circumstances and perhaps except where the

Attorney's intervention has increased the costs.One

exceptional circumstance, I might state as an

example, is where an application for removal is

made but subsequently abandoned at the hearing.

As the Court of Appeal pointed out in Dao's case, the private litigants are the initiators of

the constitutional points. One of the natural

consequences, in my submission, of that is a

possible appreciation that there may be an

application for removal to the High Court and,

indeed, in some cases, the parties, in my

submission, would wish an Attorney-General to

remove the point. In any event, removal of the

cause, being as of right under section 40(1) of the

Judiciary Act, upon the application of an

Attorney-General, properly incurred costs on the

application for the removal would be minimal.

BRENNAN J:  Mr Muecke, in this case, if Charles David were

successful before the Full Court of the Federal

Court, it would have, no doubt, been content with

that success. It has now had a proceeding in this

Court as a result of the application by the

Attorney-General. Why is it that in relation to

Charles David one cannot attribute to the costs in

this Court the quality of being increased by the

intervention of the Attorney-General?

MR MUECKE:  I take that question to be, Your Honour, on the

basis that Your Honour rejects my submission about

section 78A.

O'Toole(2) 25 30/4/91

BRENNAN J:	I am putting it on the basis that once here proceedings proceeded on the basis that the
argument to which the Attorney-General was party
and it was being removed here for that purpose.
MR MUECKE:	If Your Honour is with me on section 78A my

answer would be that the power to award costs is

dealt with in section 78A and on its proper

construction it arises so far as proceedings in

this are concerned only when the Commonwealth

Attorney-General intervenes and puts an argument

and that once he does intervene, on the proper

construction of section 78A, in my submission,

increased costs only are payable. But if

Your Honours are against me on that all that I

would point to, I think, as a matter of discretion,

is Mr O'Toole had made an application for removal.

If no application had, in fact, been made for

removal it is possible that Mr O'Toole would have

appealed to this Court and it is possible that a

submission would have been put that Fisher v Fisher

does not stand in the way of an appeal and that

special leave would have been granted to hear that

appeal.

So, in those circumstances, whilst it is

possible to speculate that the Attorney has

increased costs by applying to remove, it does not

necessarily follow that that is the case.

BRENNAN J:  Why is it that the Attorney's intervention here

has not increased the costs by the total costs of
the proceedings, because absent that intervention,

then it may have been that the matter would have

been remitted forthwith to the Federal Court?

MR MUECKE:  I suppose it is the "may be" to which I respond,

Your Honour. We do not know what would have

happened and that is why I suppose I rely on an

argument on 78A which produces at least a clear	result, that is to say that only when the Attorney
intervenes is he at risk for costs he causes by his intervention, and I say that it does not follow
that his intervention before this Court to assist
the Court in the public interest to hear and
determine the case. My submission that his removal
application - that his intervention does not cause
all the costs below. He may not have intervened
before the Full Federal Court, he may have intervened only in this case but then I would not
have thought it would be said that therefore the
Attorney must pay all the costs of the proceedings
throughout their course.

I daresay that in respect of many applications

the Attorneys have had regard to what Your Honours

said in Fencott v Muller and that is at page 598 of

O'Toole(2) 26 30/4/91

the hand-up, in which Your Honours had a case

before the Court which had, as it were, skipped the

appellate court. And at the top of page 598 it is

said that there was an appeal:

to the Full Court, but regrettably we do not
have the assistance of the Full Court, for the
Attorney-General for the Commonwealth thought

it expedient to apply under section 40 ..... to remove into this Court that part of the cause

which related to the validity of section 82.

I daresay that that is a factor in relation to

questions of removal in that this Court reconsiders

Fisher in relation to the cases that are presently

being argued before Your Honour. It may be that

cases will come to this Court rather than by route of a removal but more by a route of appeal, and in those circumstances it may be difficult to say that

the Attorney's intervention has caused any

increased costs other than the costs that his

intervention on the day or days of the hearing gave

rise. And it may be that in respect of many

interventions in high constitutional cases where,
in my submission, this Court would be assisted by

Attorney's intervention, that there will be

considerable costs of that intervention.

It may be that the parties themselves are

content to rely on the intervening Attorneys and
that the increased costs are considerable for the

Commonwealth and the State. But, in my submission,

it does not follow that merely because an Attorney

intervenes, at any stage, that all the costs that

have been incurred t6 date must be paid. And, in

my submission and the written submission

paragraph 2, that the proper view and proper

interpretation of section 78A should not be

coloured, as it were, by the existence of the

special provision in the Industrial Relations Act

that is before the Court in this particular case.

And just finally adding to what I have just

said, that this matter should be decided, in my

submission, against the normal rule that the

litigating parties are normally at risk at costs

even in respect of constitutional points which they

see fit to raise and the legal consequences of

raising those points with the possibility of an

Attorney-General removing in the public interest

and intervening in the public interest.

They are my submissions, if the Court pleases.

MASON CJ:  Thank you, Mr Muecke. Mr Solicitor for South

Australia.

O'Toole(2) 27 30/4/91

MR DOYLE: If the Court pleases, I must apologize, we have

not prepared an outline. I did not appreciate that

the costs application would get to this stage of

outlines on each side, but I hope Your Honours will

permit me to proceed without the written outline. submission, with the general issue of the position of an Attorney-General as an intervener or who

removes a matter.

Could I say at the outset that although we

generally support the submissions put for the

Commonwealth, we do, with respect, agree with the

point Mr Jackson made that section 78A seems

completely general in its ambit and we, with respect, would not argue that as a matter of

interpretation the court has power to award costs

only to the extent that an intervention has

increased the cost of litigation. However, our

submission, as Your Honours will see in a moment,

is that generally that is how the power should be

exercised. We would also make the point that

section 78A(2) appears to be the relevant section,

both where a removal is concerned and where there

has been an intervention because, as we understand

the operation of the Judiciary Act, the mere
removal of a matter at the instance of an Attorney
does not make him a party or in any way involved in
the proceedings. It is only if he then

subsequently intervenes in the proceedings that he,

as it were, comes before the court other than as a

removing party.

So, Your Honours, our submission is directed to the manner in which the power is exercised, not

its scope. In relation to that there appeared to

be two strands in Mr Jackson's submissions, one

with which we would fundamentally disagree, as to

the other we would acknowledge there is some force

in it. In so far as his argument is, in effect,

that the Commonwealth intervened to support the

side which lost and therefore should pay costs, our

submission is that is not an appropriate approach

to the exercise of the power under section 78A.	In
so far as his submission is that in the particular
circumstances, by a removal the Commonwealth is
seeking, in effect, a free appeal, then we

acknowledge there is some force in that. In other

words, if the position is that by removing and then

intervening, in truth the Commonwealth has avoided

exercising its right of appeal, which in turn
carried with it the normal liability to costs, we

acknowledge there is some force in that point, but

of course it drives one back then to the question

whether the Commonwealth has really had a free

appeal, because it may well be that had the

Commonwealth not, by itself applying to remove,

0'Toole(2) 28 30/4/91

assisted Mr O'Toole, he would have pressed on with

his application to remove and it may well be,
particularly in the light of the judgments in the

matter, that the Court would have granted that

application.

So, in our submission, it is not immediately obvious in any event that the Commonwealth has, in

effect, as it were, stepped around and achieved in

substance an appeal and got itself before the

Court, because it may well be it could in any event

have just been here as an intervener on

Mr O'Toole's removal.

Your Honour, our submission is that in

exercising the discretion to award costs, the

approach of the Court should be that an

Attorney-General is normally neither entitled to

costs nor liable to pay them if he intervenes, but

that he may be liable to pay the costs to the

extent he has increased the costs in unusual cases

but, in particular, in our submission, liability

should not flow from the fact that the argument

which he has put was put in support of a party who

failed, and briefly in support of that, if one

looks at the purpose of costs, it is clear from the

judgments that costs, first of all, are not a bonus

or prize to the winning party, they are merely

compensatory in their nature, nor are they a
complete indemnity against the fact of being

involved in litigation. As is obvious, they only

ever go, except in exceptional circumstances, to a

successful party.

In our submission, costs are awarded to

compensate in a limited way a party who has

incurred costs because an opposing party either

unsuccessfully resisted a claim or, alternatively,

made a claim which was unsuccessful. In other

words, in or respectful submission, the courts have

related the entitlement to costs, or the liability

to costs, to the identification of a person with
the outcome of a case and then the award normally

flows from the fact that the party is unsuccessful

in the outcome.

Another relevant aspect of costs, in our

submission, is that the losing party usually pays

the costs including those costs attributable to

what are sometimes called the accidents of

litigation. If a judge falls ill and the case has

to start again before another judge, usually one

would expect the losing party to pay the costs of
the whole litigation. Or if a trial miscarries for
some reason in a civil case, again one would expect

the losing party to pay all of the costs even

though, in relation to the first trial, it may

O'Toole(2) 29 30/4/91

against be something for which neither party could

even remotely be suggested to be to blame - not in

the sense of opprobrium but it may be a miscarriage

of the first trial that flows from nothing either

party did.

In our respectful submission, if one bears

that in mind in constitutional cases, one can say
that the primary rule is that the party who is

identified with the outcome of the case and who has

been unsuccessful is the one in relation to whom

the court makes an order and that the party who has

succeeded can ordinarily expect to recover from

that party costs as well which are attributable to

the accidents of litigation. And, in our

submission, seen in that context, one can say that

when there is an intervention that is really just

another aspect of the accidents of litigation and,

prima facie, if anyone is entitled to costs it is the successful party and against the losing party

but not against the intervening party.

I would also make these brief points that an

intervener is generaliy not identified with the

outcome or the issue between the parties but merely

with a particular point which may assist one party

or the other. Furthermore, in our respectful

submission, in most cases the added costs flowing

from intervention are not significant. While that

in itself cannot be a very strong argument for not

ever awarding them, in our respectful submission,

it is of some significance in the overall approach

to the matter.

So, in our respectful submission, an

intervener should be awarded to pay costs only if

the case is an unusual one and, for example -

although it is difficult to be categorical - if the

intervener has unduly prolonged the proceedings;

germane to the proceedings, or if the proceedings	if the intervener has pursued a point not really
can be seen as, in truth, a test case of a sort where the intervening Attorney has sought to use
the particular case to determine or give guidance for the outcome of other cases which are in the
wings or known to be on foot.

So on that approach, in our respectful

submission, prima facie here the Attorney-General

for the Commonwealth would not be liable to pay

costs but, as I have said, we acknowledge that if

Your Honours take the view that in effect it has

been a means of securing a free appeal, then we

acknowledge that different considerations arise.

If Your Honours are against the submissions which

are being put for the Commonwealth, and for the

States intervening, and question arises how should

O'Toole(2) 30 30/4/91

the discretion be exercised, it is our submission

that the intervener should only be liable for the

added costs.

One can say that but for the intervention the

point would have arisen anyhow, so, in our

submission, it should only be a matter of the

extent to which the intervention has increased the
costs of the litigation and, in our submission,

prima facie where a number of interveners

intervene, the appropriate order would be that

those interveners should contribute to the costs

equally, whether their particular argument

succeeded or not. In our respectful submission, it

would seem inappropriate to endeavour to separate

the sheep from the goats, as it were, in terms of

the success of the particular intervening

submission. As Your Honours will know, often it is

almost an accident which particular party that

submission happens to support and so, as a matter

of practicality, that would seem to be the better

approach.

So, in our respectful submission, that should

be the approach which the Court takes to the

exercise of the discretion under the Judiciary Act.

If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with some

matters by way of reply to my learned friend,

Mr Muecke. I should also have referred the Court

to section 116 of the Conciliation and Arbitration

Act which gave courts exercising jurisdiction under

that Act the power to award costs, in effect,

except in the cases referred to in the provision to

which I earlier referred which took away the power

to award costs in relation to particular parties.

The second matter I wanted to mention is this,

that the reliance by my learned friend on the
various cases, such as Nile v Wood and so on, is

not of much avail, in our submission, for two

reasons. The first is that Nile v Wood itself, of

course, was a case where the division of opinion in

the Court was on the application of a provision in

different terms, indeed, to particular facts. It

was a question of the manner of exercise of the

discretion. So too were the discussions concerning

the ambit of the power in the other cases to which

my learned friend referred.

Your Honours, the second feature is this: if

one does go to the material outside the terms of.

section 78A(2) itself and, in particular, to the

material prior to its enactment, if one goes first

O'Toole(2) 31 30/4/91

to so much of the second reading speech as is seen

in the part where the Attorney said it was to
protect litigants from having to pay increased

costs as a result of intervention, Your Honours,

there seems no reason at all why - assuming for the

moment, incorrectly in our submission, that that is

the limit of the power, then there seems no reason

why that would not apply, for example, to the whole

of the proceedings in the court because the matter

came here by reason of the intervention of the

Attorney-General in the matter, by having it

removed to the Court, and thereafter by his

intervention in the proceedings.

Your Honours, so far as paragraph 43 of the

explanatory memorandum is concerned, it does not purport to set out the whole of the operation of the provision. It simply gives, as one often sees,

one version of its operation, or perhaps the

situation in which it is most likely to be used.

Your Honours, various tests in the alternative to the words of section 78(2) were suggested by our learned friend but, for example, if one takes the

expression which he used, "most exceptional

circumstances", as being the circumstances in which

the power under that provision should be used,

Your Honours, one asks hypothetically, "What

possible warrant is there in the terms of

section 78A(2) for converting the words of it to

words which mean that the power may only be

exercised in most exceptional circumstances?" The ambit of the words conveys the notion of the power without further limitation.

Your Honours, it is also suggested in my

learned friend's argument that what, really, the

Attorney-General was doing by his intervention was

to assist the Court in the public interest. Well,

Your Honours, that is one side of the coin. If one

looks at it from the side of someone appearing

against the Attorney-General it did not really seem

like that at the time. And, Your Honours, the

particular case was one, as Your Honours will see, of considerably difficult in which our side of the case was opposed by two redoubtable opponents each of whom was seeking in the most skillful way to

ensure that the submissions which they were seeking to put to the Court which, by a curious coincidence

happened to be the opposite of those we were

putting, were successful.

So, Your Honours, why should not one, if I

could go to something else that was mentioned, take

into account that in that sense the Commonwealth

lost.	Your Honours, one hates to use the word but
it is the fact.	The Commonwealth lost in the sense

O'Toole(2) 32 30/4/91

that its arguments were not accepted and, Your

Honours, underlying the rules as to costs in the

judicature system is a principle seen in, I think,

virtually every set of rules that costs follow the

event. One has to identify the event, of course,

but the general principle is the party which is not

successful should pay the costs.

Finally, in relation to my learned friend's

submissions, it was said, Your Honours, that it

would be unjust if the Commonwealth were to pay our

costs. At least, it would be unjust if they were

to pay the costs here. Your Honours, the case was

one where we were about to succeed in the

proceedings in the Full Court of the Federal Court.

The fruits of victory were snatched from the table
in order that the issue might be argued again

before the Court. It was argued here, and again we

were successful. Your Honours, what is unjust, we

would ask, about us urging that the Commonwealth

should pay the price of the second argument?

Your Honours, could I move then to the

submissions which were made on behalf of the

Attorney-General for South Australia. Most of

those submissions, most of the factors mentioned, are matters which, in appropriate cases, might be material to the exercise of discretion, but there is no warrant at all, in our submission, for the

Court again to change the words of section 78A(2)

by limiting the discretion so that one results with

a situation where the words now paraphrase as "that

the Attorney-General intervening is prima facie not

liable to pay costs". That was the submission put

on behalf of South Australia.

Your Honours, there should not, in our

submission, be any limitation on it. There should

not be the importation into section 78A(2) of any

costs as being the prima facie position.	notion equivalent to Crown neither pays nor seeks
Your Honours, that indeed is a somewhat dated
notion and, Your Honours, it seems a little - I say it is a dated notion and indeed, Your Honours, so
far as the Court is concerned it has been a dated
notion since 1903 and Your Honours will see from
the Judiciary Act, section 64, that since the Act came into force section 64 has recognized that the
parts component, parts of the federation and the
Commonwealth, might be litigants in the Court and
provide that:

In any suit to which the Commonwealth or a

State is a party, the rights of parties shall

as nearly as possible be the same, and

judgment may be given and costs awarded on

O'Toole(2) 33 30/4/91

either side, as in a suit between subject and

subject.

Now, Your Honours, I am conscious, of course,

that intervention does not make the Commonwealth or

a State a party but, Your Honours, section 78A(2)

gives the Court a wide discretion and there is no

reason why, in a case where, although the form is such as not to make the Commonwealth or a State a

party, the principle embodied in section 64 might

not be applied in a case which is analogous.

TOOHEY J: 

Mr Jackson, if one gives section 78A(2) the

operation for which you contend, to what extent is
the legal bar in the Conciliation and Arbitration
Act to the recovery of costs against Mr O'Toole a

factor either for or against the exercise of
discretion against the Commonwealth in this case?

MR JACKSON: 

Your Honour, it is a factor which is against

the Commonwealth and it is against the

Commonwealth, in this sense, that it might well

have been if one had in a case a losing party in

the strict sense, who was financially substantial,

that the only order which might be sought would be

an order that that party, the losing party, pay the

costs of the proceedings.

Now, it might also have been urged in a case

like that by the Commonwealth, that the reality of

the matter was that it was litigation inter partes

and that the case was one where the only

appropriate order as a matter of discretion,

Your Honour, was that the Commonwealth pay only the

increased costs occasioned by the intervention.

However that might be in a particular case -

however large they might be in a particular case,

the presence of a financially substantial defendant

would be a relevant matter.

Equally, Your Honour, if it be, or if it were

that the person who was the party who was

unsuccessful was a person who was indigent but

whose representation before the Court had been by

public funding or had been by private funding, the

Court might think that in that case an order for

costs should not be made against that person but

that the Commonwealth should pay all the costs.

Now, Your Honour, I do not seek to suggest

that there is any one rule which will govern every

case. What I am seeking to suggest is that one has

to identify what are the relevant facts in the

particular case. One of the relevant facts in the

present case is the fact that we are not able to

obtain an order against Mr O'Toole. If we had been

able to obtain an order against Mr O'Toole, then it

O'Toole(2) 34 30/4/91

may still have been appropriate for the Court, in

the light of the way in which the matter came
before the Court, for the Court to order that both

those parties, for example, pay all the costs.

But, Your Honour, it is a factor to be taken into

account and I do not know that I can take it

further than that.

Your Honours, there are two other matters I

wanted to mention.	Both concern the application
for removal.	Your Honours, the first is a minor

matter and it is that the Court reserve the costs

of the removal, so I suppose the Court would need

to add some indication that costs would be reserved

and, Your Honours, I suppose one cannot take into
account the fact that the counsel inviting the

Court to reserve costs had once been the Attorney- account. But, the second feature, Your Honours, is

that if one looks at section 78A, dealing with the

position of the costs of the application for

removal, it is perfectly true to say - and I am

dealing, Your Honours, with an argument in response

to my learned friend Mr Muecke's submission that
the Commonwealth cannot be ordered as a last

position, as it were, to pay the costs of the

removal application itself.

The position seems to be, under section 78A(2)

that where the Attorney-General intervenes, the

Court is then given the power to make such order as

to costs. If the Attorney-General does not

intervene, then it may well be right to say that

there is then no power to order the costs of the
application for removal to be included in the

costs. If, however, the Attorney-General does

intervene, and in the normal course would, then the

costs of that application form part of the costs of

the proceedings in the Court which the the

Commonwealth may become liable to pay.

MASON CJ:  Mr Jackson, the Court proposes to adjourn now,

but before the Court adjourns, could I ask you this

question: can this Court make an order for the

taxation of costs in the Federal Court?

MR JACKSON: Well, Your Honour, there is no particular

reason, in our submission, why the Court could not.

What the Court would do - and Your honour, there

are two methods of doing it - one of which, I

suppose, is a little more difficult to justify than

the other. May I take the more difficult one first

and then mention the more easy one? The more

difficult one, I suppose, would be for the Court

simply to order that the Commonwealth pay our costs in the Full Court of the Federal Court, save to the

O'Toole(2) 35 30/4/91

extent to which our costs were increased by the

intervention of the Attorney-General. Now,

Your Honours, that would simply be an order of the

Court and if the matter remained here then the

taxation would not be a taxation which would be

being carried out by the Federal Court, it would be
a taxation being carried out by the registrar, or

the taxing officer of the court itself. It would

be true to say that the taxation would relate to

the Federal Court but the cause is here.

But Your Honours, one would understand that

the Court might take the view that taxing of costs

in the Federal Court, or in relation to the Federal

Court was really something that the Federal Court

should do, and Your Honours, if that was so, then

the way to do it, in our submission, would be for
the Court to indicate the order which it makes, but

then to remit the matter to the Federal Court.

BRENNAN J: Is that an order under section 43 of the Federal

Court Act?

MR JACKSON:  Your Honour, I am sorry, Your Honour has the

better of me with that, I am sorry, in the sense

that I do not have the Act to hand.	I now have the
Act to hand - - -

MASON CJ: Well, Mr Jackson, you might have a look at it

over the adjournment and we will resume at 2.15pm.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.25 PM:

MASON CJ: Yes, Mr Jackson.
MR JACKSON:	Your Honours, may I say two things; the second

will relate to section 43 of the Federal Court of

Australia Act; the first concerns a provisions

which I perhaps should draw to Your Honours'

attention, although it does not affect anything

that I have said earlier, and that is Order 71

rule 3 of the Court's rules which provides that:

If a cause or part of a cause is removed from

a court having jurisdiction in the cause into

the High Court, the costs in the court below

shall be costs in the cause.

O'Toole(2) 36 30/4/91

Now, that of course is something that occurs

subject to any other order being made.

Your Honours if I could turn from that to

section 43(1) of the Federal Court of Australia Act

1976, that provides, in subsection (1), that:

The court or a Judge has jurisdiction to award

costs in all proceedings before the Court

(including proceedings dismissed for want of

jurisdiction) other than proceedings in
respect of which any other Act provides that

costs shall not be awarded.

And then it goes on to say in subsection (2) that:

Except as provided by any other Act, the award

of costs is in the discretion of the Court or

Judge.

Your Honours, I do not know whether there was a

particular point Your Honour Mr Justice Brennan

wanted me to deal with, but it does not seem

particularly, with respect, to touch the matters we

were submitting before lunch.

BRENNAN J: Yes, my other point, Mr Jackson, was whether or

not there was jurisdiction in this Court to make an

order under section 43.

MR JACKSON:  Your Honour, the order that the court makes in

a case such as the present would really be an order
made pursuant to, in effect, the powers - I should

not really say, given to - but the powers which the

court is to exercise by virtue of section 40(3) of

the Judiciary Act and those will include,

Your Honours, any powers necessary to deal with the

proceedings to the point at which the court is

dealing with them, in whatever the court might be,

to which the exercise of power would relate.

Your Honours, those are our submissions.

MASON CJ: Yes, thank you, Mr Jackson.

This is an application by Charles David Pty

Limited ("the respondent") for an order that the

Commonwealth pay the respondent's costs of the

proceedings between Mr O'Toole ("the applicant")

and the respondent, both in this Court and in the

Federal Court. The Attorney-General for the

Commonwealth intervened in the proceedings in each

court. The respondent claims that, that being so,

the Court possesses jurisdiction to make an order

that the Commonwealth pay its costs by reason of

the provisions of section 78A(2) of the Judiciary

Act 1903 (Cth). The Commonwealth submits that the

Court's power under section 78A(2) is restricted to

the making of an order that the Commonwealth pay

O'Toole(2) 37 30/4/91

only so much of the respondent's costs as

corresponds with the amount by which those costs

were increased by the Commonwealth's intervention

in the proceedings. Alternatively, the

Commonwealth submits that any more generous order

for costs against the Commonwealth would not be

justified in the circumstances.

Section 78A(2) reads:

"Where the Attorney-General of the

Commonwealth or of a State intervenes in

proceedings in a court under this section, the

court may, in the proceedings, make such order

as to costs against the Commonwealth or the

State, as the case may be, as the court thinks

fit• II

In our view the subsection means what it says.

It

follows that the court is empowered to make such

order as to costs against the Commonwealth as the
court thinks fit.

In the present case the Attorney-General

obtained an order, under section 40 of the
Judiciary Act, removing the whole cause into this

Court to challenge the correctness of the answers given by the Full Court of the Federal Court.

Those answers favoured the respondent and the

respondent, understandably, did not support the

removal of the cause.

The challenge to the

making of an order for costs in the respondent's

correctness of those answers failed. It is common

ground that section 197A of the Conciliation and

favour but not against the Commonwealth which was

not a ''party" to the proceedings in this Court or

the Federal Court.

It is only in special circumstances that it is

appropriate for the Court to make an order for
costs against an intervener or, at all events, an

order which would have the result that an

intervener pay to one of the parties more than the

amount by which the costs of that party have been

increased by the intervention. However, it appears

to us that such special circumstances exist in the

present case. As has been said, it was the

Commonwealth which obtained the removal of the

cause into this Court so that it could intervene

and challenge the correctness of the answers

favouring the respondent. It has failed in that

challenge. In our view it is appropriate that an order be made that the Commonwealth pay the costs

of the respondent of the proceedings in this Court

including the costs of the present application. In

so far as the proceedings in the Federal Court are

O'Toole(2) 38 30/4/91

concerned, the appropriate order is that the

Commonwealth pay the costs of the respondent of

those proceedings to the extent, if at all, to

which they were increased by the intervention of

the Commonwealth in that court.	The Registrar will
settle the form of orders.

AT 2.31 PM THE MATTER WAS ADJOURNED SINE DIE

O'Toole(2) 39 30/4/91