Roberts, J.T. v Murlar Pty Ltd

[1986] FCA 414

IN THE' FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) N.S.W. G164 of 1986

DIVISION GENERAL )

BETWEEN: JOHN THOMAS ROBERTS

Applicant

AND: MURLAR PTY. LIMITED

First Respondent

AND :	THE BUILDING WORKER'S INDUSTRIAL
UNION OF AUSTRALIA

Second Respondent

AND: MAR10 ALBERICI

Third Respondent

m: LEW ZIVANOVIC

Fourth Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	4 SEPTEMBER 1986
WHERE MADE:	SYDNEY
THE COURT ORDERS THAT:

1. The costs of and incidental to all the proceedings

be taxed and paid by the applicant to the

respondents, with the following exceptions:

(i) the costs of any interlocutory hearings which

were not reserved or made costs in the

proceedings, in respect of	which there will
be no order;

(ii) the costs of the hearing before Jackson J. on

28 July 1986, in respect of which it is

ordered that the applicant's costs of that hearing be paid by the second and third respondents.

2. The costs of today's proceedings be included in the costs to be paid by the applicant to the respondents.

NOTE:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	) N.S.W. G164 of 1986
GENERAL DIVISION	)

BETWEEN: JOHN THOMAS ROBERTS

Applicant

AND: MURLAR PTY. LIMITED

First Respondent

AND:	THE BUILDING WORKER'S INDUSTRIAL
UNION OF AUSTRALIA

Second Respondent

AND: MAR10 ALBERICI

Third Respondent

AND: LEW ZIVANOVIC

Fourth Respondent

PINCUS J. 4 SEPTEMBER 1986

EX TEMPORE REASONS FOR JUDGMENT

I have dismissed the applicant's claims for relief under

s.45E of the Trade Practices Act, but now have to dispose of

certain questions relating to costs. Five points arise.

1. The unsuccessful applicant says that there should only

be one set of costs on the other side. The principle on

which I was invited to decide the matter was that there was

no need for the respondents to remain at arm's length. The

application had as its foundation a claim that there was an

arrangement between the respondent employer and the

2 .

respondent B.W.I.U. having the purpose, to put it generally,

of ensuring that the applicant did not continue to work as	a
member of the B.L.F.

It seems to me quite reasonable, in those circumstances,

for the employer and the union to have arranged separate

representation. One can well understand persons alleged to

be parties to an unlawful combination not wishing to appear

in court by the same counsel. Apart from that, I should have

thought that the ordinary employer would not necessarily want

to discuss with lawyers also acting for a union important

questions of industrial relations, some of which might be

quite sensitive. The same would apply to a union talking to

employer's counsel. It seems to me likely that each might

well have been inhibited in giving instructions had they been

jointly represented and am satisfied that it was reasonable

for them not to be so.

2. The second point is that a constitutional question

raised by the union's counsel failed. I do not think that

should make any difference to the order as to costs, except

in one respect to be mentioned. The trial was not, in my

view, made significantly more costly by the raising of the

constitutional point. In particular, it would still have

taken the same number of days to hear. The exception to the

proposition set out is that on 28 July 1986 Mr. Justice

Jackson reserved costs of a procedural hearing which related purely to the constitutional question and the transcript of

which I have read. I can see no reasonable answer to the

3.

contention of counsel for the applicant that the applicant

should not have to pay the costs of that hearing.

3. Mr. Justice Evatt made some interlocutory orders, the

costs orders in which were challenged. Counsel for the

applicant said that I had a discretion as to costs extending

to upsetting or varying orders made by his Honour. I have

been unable to find any authority, nor was I referred to any,

to support that suggestion. There are, of course, exceptions

to the rule that an order made by a judge can only be

challenged by appeal. For example, ex parte orders may be

set aside by the same or another judge, the judge may recall

the order before it is taken out and there is the slip rule.

I see no reason to think that orders for costs are in a

special position in this respect, or to think the judges of

this court have jurisdiction freely to interfere with others'

orders for costs.

4. The respondents say that no orders as to costs were made

in respect of certain interlocutory hearings; that is, costs

were not reserved, nor made costs of the principal

proceedings, nor ordered to be paid by either party. It is

urged that I should now order those costs to be paid by the

applicant. It is not absolutely clear why the judges in

question did not deal with the costs of the hearings

mentioned. For all I know, the omission may have been

deliberate. It appears to me that it is incumbent upon the

parties, when an interlocutory hearing is concluded or

shortly thereafter, to raise the question of costs with the

,-c ,

4.

judge and seek an order with respect to them. It is not easy

simply by reading transcripts, without considerable knowledge

of the background and communications between the parties, to

be confident that one is making an appropriate order with

respect to an interlocutory hearing concluded months ago. I

decline to deal with the costs in question which seem, in any

event, not likely to be substantial.

5. The last question is the general problem of reserved

costs of interlocutory hearings. With the exception of the

hearing before Mr. Justice Jackson on 28 July referred to

above, in my opinion the reserved costs should be paid by the

applicant. It will therefore be ordered that the costs of

and incidental to all the proceedings be taxed and paid by

the applicant to the respondents, with two exceptions. The

first is that there will be no order as to the costs of any

interlocutory hearings which were not reserved or made costs

in the proceedings by the judge hearing them. The second is

that, as mentioned above, the costs of the hearing before Mr.

Justice Jackson on 28 July must be dealt with as follows:

that is, the applicant's costs of that hearing must be paid

by the second and third respondents and there will be no

order for the costs of the first and fourth respondents of

that hearing. The costs of today's proceedings must of

course be included in the general costs of the proceedings

and paid by the applicant to the respondents.

i certify that this and the 3 preceding

pages ars a true copy of the reasons for

judgment hcrein of His Honour

Mr. Justlce Pincus g d d K$- &&ate

Ddfea c? +L .