Royal Australian Nursing Federation Tasmanian Branch v Fawdry, Marcia Joyce

CATSHWORIjS

Industrlal law - Conclllatlon and At-bltt-atlon - Appeal allowed Gn question of law - appllcatlx Isr costs certlflzate by

unsuccessful respondent - alscretlon imf

the Court.

IN THE FEDERAL COURT OF AUSTRALIA	1
)

TASMANIA	DISTRICT	EGISTRY	)	T No. 3 of 1986
)

INDUSTRIAL DIVISION

)

ON APPEAL F R O M THE FEDERAL COURT OF AUSTRALIA

ROYAL AUSTRALIAN NURSING

FEDERATION TASMANIAN BRANCH

Appellant

and

HARCIA JOYCE FAWDRY

Respondent

COURT:	EVAm, NORTHROP AND GRAY JJ.
DATE:	8TH OCTOBER 1986

REASONS FOR JUDGMENT

The fill Court having allowed

an appeal from a judgment

of a

single

judge

of the

Federal

Court

of Australia

preliminary issue of law, the respondent to the appeal seeks

the

grant of a certificate under

S .

6(1) of the Federal Proceedinss

(Costs) Act 1981.

That provision is as follows:

''(l). Subject to

this Act,

where a Federal appeal

succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant o the respondent

a costs certificate in respect

of the appeal."

That provision gives

to the Full Court

a discretion which

- 2 -

unfettered by the Act itself.

In Bullock v. The Federated Furnishins Trades

Society of

Australasia (No. 2 ) . (1985) 5 F.C.R.

476, a Full Court exercised

its discretion to refuse

to grant a certificate to a successful

respondent to an appeal.

In that case the court had

power to

award costs against a party.

Nothing in that case inhibits this

court from exercising the unfettered discretion given	by	the
section.

In the present case the Court is prevented by S . 197A of

the Conciliation and Arbitration Act 1904 from making an

order

for costs in

favour of the

successful

appellant

and

the

successful prosecutor at first instance.

This does not limit the

discretion of the Court

to grant a certificate where the appeal

is allowed on a question of	law arising from the error of	the
court at first instance.

The appeal in the

present case succeeded on a question

of law which was not brought squarely to the attention of the court at first instance by either party, and which the learned trial judge failed to take. This is the very sort of case to

which S . 6 of the

Federal

Proceedinss

(Costs)

Act 1981 is

directed.

The unsuccessful respondent should be relieved of

the

burden of her costs of the appeal.

The Court will therefore

grant a certificate in the terms	of S .	6(3)(a) of the Federal
Proceedinss (Costs) Act 1981.

I certlfy that this

and the /(h)

precedlng pages are a true copy

of the Reasons fo r Judgment hereln

of hls Honour Mr. Justlce G m y

Dated: d/b/& Assoclate: a - 4

CaseChat Overview and Summary

In the case of Royal Australian Nursing Federation Tasmanian Branch v. Marcia Joyce Fawdry, the Federal Court of Australia was presented with an appeal from a decision made by a single judge. The dispute centred on issues of conciliation and arbitration under the relevant industrial relations legislation. The Royal Australian Nursing Federation Tasmanian Branch, the appellant, sought to overturn a decision made in favour of the respondent, Marcia Joyce Fawdry. The court was required to determine whether the appeal was valid on a question of law and whether the unsuccessful respondent should be granted a certificate for costs under the Federal Proceedings (Costs) Act 1981.

The legal issues before the court involved the interpretation and application of the Federal Proceedings (Costs) Act 1981, particularly the discretion of the court to grant a certificate to an unsuccessful respondent in an appeal allowed on a question of law. The court had to consider whether the appeal was successful on a question of law that was not previously raised or addressed at first instance. Furthermore, the court needed to assess whether the unsuccessful respondent should be relieved of the burden of the costs of the appeal, as per the provisions of the Act.

The court exercised its discretion under the Act and determined that the appeal succeeded on a question of law that was not adequately presented or considered at first instance. The court found that the case fell within the scope of the Act, which allows for the grant of a certificate to an unsuccessful respondent in such circumstances. Consequently, the court granted a certificate to the respondent, relieving her of the costs of the appeal. This decision underscored the importance of ensuring that significant legal issues are properly raised and addressed in the initial proceedings.

The final orders of the court included the allowance of the appeal and the granting of a certificate to the respondent for the costs of the appeal, in accordance with the terms of section 6(3)(a) of the Federal Proceedings (Costs) Act 1981.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established