Royal Australian Nursing Federation Tasmanian Branch v Fawdry, Marcia Joyce

[1986] FCA 578

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 on a

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 is

.

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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