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)

30/4/91

TRANSCRIPT OF PROCEEDINGS

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

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)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] HCATrans 109
Decision Date

CaseChat Overview and Summary

This matter concerned an application for costs in proceedings before the High Court of Australia. The applicant, Jack O'Toole, was not represented at the hearing. The respondent, Charles David Pty Limited, appeared by counsel. Counsel for the Attorneys-General of South Australia, Tasmania, Queensland, and the Northern Territory, and for the Attorney-General for New South Wales, sought leave to be heard on the issue of costs, particularly concerning the position of interveners.

The primary legal issues before the Court were whether the Attorney-General for the Commonwealth should be ordered to pay the costs of the proceedings in the High Court and the Federal Court, and the general principles governing the award of costs to interveners. Charles David Pty Limited indicated it would not seek costs against Mr O'Toole, citing provisions of the Conciliation and Arbitration Act that prevented such an order.

The Court considered the application for costs against the Attorney-General for the Commonwealth and the broader question of interveners' costs. The reasoning and legal principles applied by the Court in relation to these issues are not fully detailed in the provided transcript excerpt, which focuses on the preliminary stages of the hearing and the identification of parties and issues.

The transcript indicates that Charles David Pty Limited was seeking costs against the Attorney-General for the Commonwealth, but not against the applicant, Jack O'Toole, due to statutory limitations. The Attorneys-General for various states and territories sought to be heard on the issue of costs as interveners.

Orders