The application of Colin Stanley Hardie

[1989] FCA 450

JUDGMENT NO	........ ........ .. ........ ....-.	a9	i
I , ~.

C A T C H W O R D S

:	3
b ,
- application for leave to hold off	ice in union -

INDUSTRIAL l ,.

application unsyccessful - costs of interveners - whether	! i.
p

intervener a lfparty" - whether statutory scheme in relation ..

to costs applies.	c,
;'I
,

42(l), 58(10)r 229, 230, 347(1)

' ~ ~ d ~ s t r i a l Relations A c t 1988, ss. l .

concIliari~n	and Arbitration Act 1904	1	s - 4 6 ( 2 )	! ,:
Federal Court of ~ustralia	A C ~	1976, ss43	,	,
8
I

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1
INDUSTRIAL DIVISION	)

The Application of Colin Stanley HARDIE

MINUTES OF ORDER

JUDGE MAKING ORDER:  PINCUS J.

I

!	DATE OF ORDER:	7 AUGUST 1989
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the costs of the interveners of and incidental to the proceedings be taxed and paid by the applicant.

NOTE :  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

I

IN THE FEDERAL COURT OF AUSTRALIA 1

:	QUEENSLAND DISTRICT REGISTRY	1
1
INDUSTRIAL DIVISION	1

The Application of Colin Stanley HARDIE

PINCUS J. 7 AUGUST 1989

EX TERPORE REASONS FOR JUDGMENT

This is an application for costs made in proceedings the principal reasons in which were delivered on 28 July 1989. I then refused an application for leave to hold office in organisations made under ss.229 and 230 of the Industrial Relations Act 1988.

I did so, holding in effect that the applicant's case was false. He had given evidence to the effect that the offences, the commission of which gave rise to the necessity to apply, were committed in relatively innocent circumstances. The evidence was

ballot papers, and I have held that he did so for a fraudulent	that he took part in and arranged for the collection of unused
purpose. In important respects, the applicant's case was, in my opinion, concocted.
The successful interveners now seek costs. Were it not for the provisions of s.347(1) of the Industrial Relations Act
1988, the more orthodox course would be (as I suggest below) to
make an order for costs in favour of the interveners. Section 347(1) reads:

"A party to a proceeding (including an appeal) in a

matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause."

The first question is whether this provision applies to intervenerls costs. Leave to intervene was given under s.59 of the Act, which says that in certain circumstances the Court may grant leave to a person to intervene in the proceeding; it does not say whether the intervener is then deemed to be a party.

In Boulter v. The Justices of Kent [l8971 AC 556, a person objecting to the renewal of a liquor licence was held not to be a party for the purposes of a statutory power to order costs against a "party". Lord Herschell at p.569 remarked:

"Persons objecting to the grant of a licence are not, I think, parties to the proceedings on the application in any proper sense of the term. The

justices have an absolute discretion to determine,	question is not one inter partes at all. The	in the interests of the public, whether a licence ought to be granted ..."
In my opinion, this reasoning is, broadly speaking,

applicable here.

In Association of Architects, Engineers, Surveyors and
Draughtsmen of Australia v. ACI Engineering Pty Ltd (1951) 70 CAR

660, an intervener before a Conciliation Commissioner was held not I

to be a "party" within the meaning of s.46(2) of the then Act and that had consequences as to the question of representation by a professional advocate. It may be that the case just mentioned has brought it about that for the purposes of provisions in the present Act dealing with representation of parties, interveners are taken to be parties: see s.42(1) and s.58(10) of the Industrial Relations Act 1988. However, there is no provision producing the result that interveners are parties for any other

' purpose, and in particular for the purposes of the costs provision.

I

It was suggested at the hearing before me that I should,

l

i	even if of that view, act as if s.347(1) applied - i.e. apply the
!
policy of the provision. If the rule as to costs embodied any
I	I	easily understood policy, the argument might be more attractive.
I
I	What it does is to create a one-sided position: the respondent
i	can sometimes get costs against the party instituting a
i	proceeding, but not vice versa. It also fastens upon one aspect
I	of the matter only, ignoring factors which a court given a
discretion would take into account, such as the mode of conduct of the proceedings.
Apart from that, it seems to me that applying s.347(1) to a case which its terms simply do not cover goes beyond the proper function of the Court in construing legislation. There is a well-understood dividing line between making necessary implications in a provision, and making judicial amendments, the latter not being a permissible course.
It follows, in my opinion, that the restraint on awarding costs in s.347(1) is not relevant in these proceedings. The discretion to award costs is at large under s.43 of the Federal Court of Australia Act 1976; the power under that provision is not limited to an award of costs for or against the
i	parties.
1

Interveners have no right to costs; they take their

: course, ordinarily, at their own risk.

1 I

i	i
i	1n this case, had it not been for the interveners, it is unlikely that the truth would have emerged. There was no
I	I
opposition to the application except for that which they provided
I	and they have been totally successful. I should also take into
i	account in their favour that I have not merely declined to find in
I
I	favour of the applicant on the facts, but made positive findings
! !
:	against him.
i	Mr Boccabella, who argued the matter helpfully on behalf of the applicant, pointed out that there was evidence pointing to electoral fraud on the part of the interveners. It is true that
some of the evidence suggests that at the relevant election fraudulent votes were cast in favour of one or more of the interveners at a particular establishment, but 1 could not possibly hold on that evidence that any one or more of the interveners was guilty of fraud; the point was a side issue, as Mr Murdoch pointed out, and was not fully investigated at the hearing.
In the result, in the whole of the circumstances, it comes down to an exercise of discretion and it appears to me that the interveners should have their costs, and it will be so ordered. The order will be that the costs of the interveners of and incidental to the proceedings will be taxed and paid by the applicant.

s ,-v,- a t rus ccpy of tho reasons for

j:'J'j~-.'~.:l I:cre~li of His 1-lonou

:.b. ju;riz,o P;7c~a

Associate

rJ\i7:~d