FEDERAL COURT OF AUSTRALIA Johnston v Cameron [2002] FCAFC 301 COSTS – application for costs by intervenors – application made after hearing of Appeal – successful party not seeking costs – basis upon which intervenors appeared before primary Judge – whether the matter on appeal arising under Workplace Relations Act – discretionary considerations Federal Court Rules O 6 r 8, O 6 r 17 Federal Court of Australia Act 1976 (Cth) ss 43, 49, 50 Workplace Relations Act 1996 (Cth) ss 4(1), 209, 347(1), s 469(10) Commonwealth of Australia, Re; Ex parte Marks (2000-2001) 177 ALR 491 referred to Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645 referred to Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener) [1974] 1 NSWLR 391 referred to Fencott v Muller (1983) 152 CLR 570 referred to Levy v The State of Victoria (1997) 189 CLR 579 considered McJannet, Re; Ex parte Australian Workers' Union of Employees, (Qld) [No 2] (1997) 189 CLR 654 considered O'Keefe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591 considered Polites, Re; Ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78 considered Quickenden v O'Connor (2000-2001) 109 FCR 243 referred to Ruddock v Vadarlis (2002) 188 ALR 143 considered Thompson v Hodder (1989) 21 FCR 467 discussed United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 referred to Viner v Australian Building, Construction Engineers Employees' and Builders Labourers' Federation (No 1) (1981) 56 FLR 5 considered CRAIG JOHNSTON v DOUG CAMERON (and others according to the schedule of respondents) V 455 of 2002 BRANSON, TAMBERLIN & FINKELSTEIN JJ 1 OCTOBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 455 of 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CRAIG JOHNSTON APPELLANT AND: DOUG CAMERON (and others according to the schedule of respondents) RESPONDENTS JUDGES: BRANSON, TAMBERLIN & FINKELSTEIN JJ DATE: 1 OCTOBER 2002 PLACE: MELBOURNE THE COURT ORDERS THAT: The Age Company Limited's and Herald and Weekly Time Litmited's application for costs be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 455 of 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CRAIG JOHNSTON APPELLANT AND: DOUG CAMERON (and others according to the schedule of respondents) RESPONDENTS JUDGES: BRANSON, TAMBERLIN & FINKELSTEIN JJ DATE: 1 OCTOBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT branson j 1 I am grateful to have had the opportunity of reading in draft the reasons for judgment of Tamberlin J. I adopt his Honour's outline of the circumstances in which this application for costs came to be made. 2 The Age Company Limited and the Herald and Weekly Times Limited ("the Intervenors") appeared by counsel before Weinberg J, apparently with his Honour's leave. Their interest was not in the controversy that had arisen under s 209 of the Workplace Relations Act 1996 (Cth) ("the Workplace Act") with respect to the observance of the rules of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") but in the issue of whether a suppression order made and extended by Marshall J should be continued. 3 It seems that the intervention of the Intervenors must have been allowed under s 470 of the Workplace Act which provides: "If the Court is of the opinion that an organisation, person or body should be heard in a proceeding before the Court in a matter arising under this Act, the Court may grant leave to the organisation, person or body to intervene in the proceeding." 4 Nothing suggests that his Honour intended that the Intervenors be joined as a party to the proceeding before him under O 6 r 8 of the Federal Court Rules. Order 6 r 17 of the Federal Court Rules, which gives the Court wide powers to grant leave to a person to intervene in a proceeding, was not in force at the time of the hearing before Weinberg J. Nothing suggests that the Intervenors regarded themselves as parties to the appeal to this Court. 5 The Intervenors have sought an order that the appellant pay their costs of the appeal to this Court. The appellant has invoked s 347(1) of the Workplace Act which relevantly provides: "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." 6 Although s 4(1) of the Workplace Act defines "party" in relation to an industrial situation, the Act contains no general definition of "party to a proceeding". Section 469(10) of the Workplace Act provides that in that section, which is concerned with representation before the Court, "party" includes an intervenor. However, the meaning the expression "[a] party to a proceeding" in s 347(1) must be determined by reference to the apparent intention of Parliament as disclosed by the language of the section and the context in which the section is found. 7 On the present application no reliance was placed by either the Intervenors or the appellant on the status of the Intervenors. No argument was advanced, for example, that the order sought by the Intervenors was not an order that the Union "pay costs incurred by another party to the proceeding" within the meaning of s 347. In the circumstances it is appropriate to proceed on the basis that, for the purposes of s 347(1), the Intervenors are to be treated as parties to the proceeding before this Court. 8 It is therefore necessary to consider whether the hearing before the Full Court was "a proceeding (including an appeal) in a matter arising under [the Workplace Act]" within the meaning of s 347(1). 9 In Re Polites; Ex parte Hoyts Corporation Pty Limited (1991) 173 CLR 78 the High Court gave consideration to an application for costs made by successful prosecutors for an order directing a Deputy President of the Australian Industrial Relations Commission to hear and determine, as a member of the Full Bench of the Commission, certain matters pending before the Commission. At 93-94, after setting out s 347(1) of the Act then entitled the Industrial Relations Act 1988 (Cth) ("the Industrial Relations Act"), the Court said: "The matters pending before the Commission and being heard by a Full Bench are clearly matters arising under the Act, but the prosecutors submit that the proceeding in this Court was not a proceeding 'in' the matters pending before the Commission. In our view, it is unnecessary to determine that question, because the proceeding in this Court was a proceeding in a matter that was itself a matter arising under the Act. The duties of a member of the Australian Industrial Relations Commission are created, expressly or impliedly, by the Act. When the President of the Commission, in exercise of his power to establish a Full Bench of the Commission (s. 30) appoints a member to sit as a member of a Full Bench to hear and determine an industrial dispute, Pt VI, Div. 2 of the Act imposes on that member a duty to hear and determine the industrial dispute as a member of the Full Bench accordingly. The order made in this case was an order to enforce that statutory duty. As the duty owes its existence to the Act, the controversy between the parties as to the enforcement of the duty is a matter arising under the Act. The jurisdiction of this Court conferred by s. 75(v) of the Constitution was invoked to determine that matter. It follows that the proceeding in this Court was itself a proceeding in a matter under the Act. It follows that s. 347(1) of the Act is applicable to the proceeding in this Court, albeit the jurisdiction of this Court invokes in that proceeding is conferred by s. 75(v) of the Constitution." (footnotes omitted) 10 A different conclusion was reached by the High Court in Re McJannet; Ex parte Australian Workers' Union of Employees, (Qld) [No 2] (1997) 189 CLR 654, a case in which an order for prohibition under s 75(v) of the Constitution was sought. The High Court at 657 observed: "In the present case, the proceeding before the Federal Court was in a matter arising under the Act because the respondents were claiming a right under the Act against the prosecutors. No order for costs could be made in respect of the proceeding in the Federal Court. The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have. Although the jurisdiction of this Court to issue mandamus in Re Polites, like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution." (footnotes omitted) 11 A case which shares some similarities with the present is, as Tamberlin J has pointed out, Thompson v Hodder (1989) 21 FCR 467. In that case the applicant to the Full Court of this Court sought leave to appeal from an interlocutory judgment of a single judge of the Court. The respondent argued that the application for leave to appeal was brought under the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") not under the Industrial Relations Act. The Court at 469 stated: "This argument ignores the careful wording of s 347(1) of the Act. The prohibition on orders to pay costs is applicable not to a proceeding arising under the Act, but to a proceeding in a matter arising under the Act. There is much authority as to what constitutes a 'matter' for the purposes of Ch III of the Constitution. In substance, a 'matter' is a 'single justiciable controversy'. See the joint judgment of Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 608. In the present case, the justiciable controversy between the parties embraces the question whether the respondents should perform and observe the rules of the Union by taking or refraining from certain actions in relation to the charges laid against the appellants. Orders for performance and observance of the rules accordingly are sought pursuant to s 209 of the Act. The alleged obligation to perform and observe the rules in that way is thus the 'matter' upon which each proceeding between the present parties has been founded, namely the rule to show cause granted on 7 June, the interim orders made on 9 June, the appeal filed on 17 October, the motion for a stay of judgment filed on 25 October and the application for leave to appeal from the judgment of O'Loughlin J. Each of those steps is a 'proceeding' as defined in s 4 of the Federal Court of Australia Act. It is unnecessary at present to determine whether, in the absence of a similar definition in the Act, the word 'proceeding' in s 347(1) should receive a similar interpretation. It is enough to say that, on any view, an application for leave to appeal, even from an interlocutory judgment, is a proceeding in its own right. That proceeding is, however, one in the same matter as were each of the earlier steps. It is plain that the matter arises under the Act." 12 The present case is, in my view, less compelling than Thompson v Hodder where leave to appeal was sought from a judgment under the Industrial Relations Act. It is not self evident, in my view, that every proceeding in respect of an order made under s 50 of the Federal Court Act is a proceeding in the matter (ie in the "single justiciable controversy" (see Fencott v Muller (1983) 152 CLR 570 per Mason, Murphy, Brennan and Deane JJ at 608))giving rise to the proceeding in which the s 50 order was originally made. 13 In Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; 177 ALR 491 the applicant sought an extension of time in which to apply for orders nisi in respect of writs of certiorari and mandamus. McHugh J at [25] said: "In Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) this Court said that '[t]he test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act' The right or duty that the applicant sought to enforce in these proceedings owes its existence to s 45 of the Act. Section 347(1) therefore arguably applies, although it is perhaps arguable that the case does not arise under the Act but is an application pursuant to the rules of this court for an extension of time." (emphasis added, footnotes omitted) His Honour did not go on to give consideration to the possible argument identified by him as the Commonwealth by its submissions had accepted that s 347(1) had application in the circumstances of that case. 14 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; 203 CLR 645 was an appeal from a decision of the Full Court of this Court granting prohibition in respect of a proceeding before the Australian Industrial Relations Commission. The High Court in that case did give further consideration to the question of when a proceeding arises under the Workplace Act for the purposes of s 347(1). At [42]-[43] the Court observed: "Where the right or duty in issue in proceedings is one that owes its existence to an enactment of the Parliament, the matter is properly described as a matter arising under that enactment. Thus in Re Polites; Ex parte Hoyts Corporation Pty Ltd,an application for mandamus to compel compliance with a duty imposed on the Industrial Relations Commission by the IR Act was held to constitute a matter arising under that Act. That was because the duty in question owed its existence to the IR Act. However, it does not follow that all applications under s 75(v) of the Constitution with respect to the powers and duties of the Commission involve matters arising under the legislation by which its powers and duties are governed. It was pointed out in Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] that relief by way of prohibition is not relief for the enforcement of a right or duty created or conferred by statute. Rather, the right in issue when relief is sought by way of prohibition is the right conferred by s 75(v) of the Constitution to compel an officer of the Commonwealth to observe the limits of that officer's power or jurisdiction. The corresponding duty to observe those limits also derives from s 75(v). And that is so even if the asserted limits derive from statute. Accordingly, it was correctly held in McJannet that s 347(1) of the IR Act has no application to a proceeding for the issue of prohibition under s 75(v) of the Constitution." (footnotes omitted) 15 The Full Court of this Court adopted a similar approach in Quickenden v O'Connor [2001] FCA 303; 109 FCR 243 where Black CJ and French J at [71] and Carr J at [137] approved the following passage from the reasons for judgment of the primary judge: "In the instant case, the proceeding was in a matter in which the controversy to be resolved was whether the decision made by the Commission exceeded the authority able to be conferred on the Commission by the Parliament and whether the Union and the University should be directed not to act on that decision. No part of the applicant's case involved application for the enforcement of a right or duty brought into existence by the Act. To the contrary, the applicant sought to enforce another duty imposed on the Commission by law not to act in the absence of an authority lawfully conferred on it pursuant to a legislative power of the Parliament provided by the Constitution, and to enforce a derivative duty to like effect, imposed on the Union and the University. The order sought for the issue of Writs of Certiorari and Prohibition did not, in form or content, relate to the enforcement or any right or duty conferred or created by the Act and, therefore, s 347 of the Act has no application to the proceeding." 16 Turning to the present case, the proceeding before the Court was an appeal from an order made by Weinberg J dismissing a motion, brought pursuant to a notice of motion dated 19 July 2002, for an order pursuant to s 50 of the Federal Court Act. The notice of motion was filed in the proceeding brought by the appellant pursuant to s 209 of the Workplace Act (see O 19 of the Federal Court Rules). It seems likely that the motion heard and determined by Weinberg J was a proceeding in a matter arising under the Workplace Act within the meaning of s 347(1). 17 However, the appellant instituted separate applications for leave to appeal from his Honour's decision to dismiss the notice of motion seeking relief under the Federal Court Act and from his Honour's judgment concerning the application for interim orders under s 209(4) of the Workplace Act. The application to the Court for leave to appeal from his Honour's decision to dismiss the notice of motion was successful and the resulting appeal was heard and determined by this Court. The appeal was a new proceeding. In the event the respondents sought to support the decision of Weinberg J but they might not have done. Section 347(1) does not, in my view, require that a proceeding by way of appeal necessarily takes its character from the proceeding giving rise to the appeal. The right asserted by the appellant before this Court was a right which owed its existence to s 50 of the Federal Court Act and not to any provision of the Workplace Act. I consider that it is arguable that the justiciable controversy which gave rise to the appeal proceeding before this Court was a controversy not as to the rules of the Union, but rather a controversy as to the proper exercise, in the circumstances of the case, of the discretion vested in the Court by s 50 of the Federal Court Act. However, for the reasons set out below, I have not found it necessary to reach a concluded view as to whether the present application for costs is governed by s 347(1) of the Workplace Act. 18 The only argument advanced by the Intervenors as to why the Court's discretion should be exercised to make a costs order in the Intervenor's favour was that costs should follow the event. Like O'Keefe Nominees Pty Ltd v BP Australia Ltd (No 2) (1995) 55 FCR 591, this is not a case in which an entitlement to costs is established "by the mere invocation of the mantra that costs follow the event" (per Spender J at 599). Even if it be assumed that an intervenor is a party to the proceeding within the meaning of s 347(1) of the Workplace Act, s 347(1) does not give any party an entitlement to costs. Section 347(1) is intended to restrict the discretion that the Court would otherwise have to order one party to pay the costs incurred by another party. 19 In seeking an order for costs the Intervenors invoke the wide discretion conferred on the Court by s 43 of the Federal Court Act. Although intervenors are commonly said to have the benefits and the burdens of parties, there is no "usual practice" of ordering costs in their favour when the outcome of a proceeding accords with the arguments advanced by them (see Ruddock v Vadarlis [2001] FCA 1865; 188 ALR 143 at [53]). 20 The appellant has argued that the Intervenors abandoned any claim for costs by remaining silent when the matter of costs was raised during the course of the appeal. The Intervenors have acknowledged by their written submissions that the question of costs was raised by the Court twice during the hearing of the appeal and that they, by their counsel, remained silent. However, they have argued that: "… silence on the hearing of the appeal did not amount to abandonment of any claim for costs. It is an appropriate time to claim costs at the handing down of the judgment." 21 Section 49 of the Federal Court Act provides as follows: "(1) When any proceeding, after being fully heard before a Full Court of the Court, is ordered to stand for judgment, it shall not be necessary that all the Judges before whom it was heard shall be present together in Court to declare their opinions thereon, but the opinion of any one of them may be reduced to writing and may be made public by any other of them at any subsequent sitting of the Court at which judgment in the proceeding is appointed to be delivered. (2) In any such case the question shall be decided in the same manner, and the judgment of the Court shall have the same force and effect, as if the Judge whose opinion is so made public had been present in Court and declared his or her opinion in person." 22 Section 49 is frequently relied upon, as it was in this case, to allow one member of a Full Court to pronounce the orders of the Court and to publish the reasons for judgment of all members of the Court. The significant cost and inconvenience involved in reconstituting a Full Court, especially a Full Court comprised of judges who do not all ordinarily reside in the same State, can thus be avoided. In this case, as counsel were undoubtedly aware, the judges who constituted the Full Court do not all reside in the one State. Two members of the Court travelled from Sydney to Melbourne to allow the appeal to be heard as a matter of urgency. It was precisely to avoid the necessity of the Court reconvening to consider any issue concerning costs that the issue of costs was raised by the Court during the course of the hearing of the appeal. While the reason for raising the issue of costs during the hearing was not articulated by any member of the Court, it was at the least imprudent for the Intervenors to have remained silent once the issue was raised. This was not a case in which it was appropriate for the Intervenors to advance a claim for costs for the first time at the time of the handing down of the judgment. 23 I do not consider that it is necessary for a final determination to be made as to whether, in the circumstances, the Intervenors abandoned any claim for costs. Even if they did not, their conduct, in my view, is a factor which the Court may take into account in the exercise of its discretion under s 43 of the Federal Court Act. Of even greater weight, however, is the failure of the Intervenors to advance any submissions touching on why, in the particular circumstances of this case, the Court should make an order for costs in their favour. I do not consider that it is self evidently appropriate that an order for costs should be made in favour of an intervenor who is a publisher whose interest in the proceeding is limited to seeking to prevent the continuation of a suppression order. 24 The application by the Intervenors for an order for costs should, in my view, be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 1 October 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 455 of 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CRAIG JOHNSTON APPELLANT AND: DOUG CAMERON (and others according to the schedule of respondents) RESPONDENTS JUDGES: BRANSON, TAMBERLIN & FINKELSTEIN JJ DATE: 1 OCTOBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT tamberlin j: 25 The judgment of the Full Court in this matter was delivered on 20 August 2002 (Johnston v Cameron [2002] FCAFC 251) dismissing the appeal. No order was made as to costs. 26 On the appeal The Age Company Limitedand the Herald and Weekly Times Limited ("the interveners") were permitted to make submissions in relation to the suppression order, which was the subject matter of the appeal. The submissions were made in support of the respondents who were successful on the appeal. 27 During the hearing no application for costs was made by the interveners nor were any submissions presented to the Court in relation to costs. Her Honour, the presiding Judge, raised the question of costs on two occasions during the hearing, but, notwithstanding this, the question of costs was not addressed. 28 The interveners now seek an order for costs against the unsuccessful appellant. 29 Section 347(1) of the Workplace Relations Act 1996 (Cth) ("the Workplace Act") provides: "Costs only where proceeding instituted vexatiously etc. (1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) 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." (Emphasis added) 30 Because the only issue raised on the appeal was the continuance of a suppression order made in the course of consideration of the matter by Marshall J, the interveners submit that the appeal was not a proceeding in a matter which arose under the Workplace Act and therefore s 347(1) was not enlivened. 31 It is submitted for the interveners that the proceeding before the Full Court in relation to the suppression order was a matter which sought to secure the enforcement of a right or duty under s 50 of the Federal Court of Australia Act 1976 (Cth), which confers a discretion on the Court to make a suppression order in an appropriate case and that therefore s 347 of the Workplace Act did not apply. No submissions were made either on behalf of the appellant or the interveners as to whether the interveners fell outside the ambit of s 347(1) because they were not parties to the proceeding. 32 In my view the correct analysis is that the suppression order was made in a matter brought under s 209 of the Workplace Act to secure compliance with the rules of a registered organisation. This claim is to enforce an obligation imposed by the Workplace Act and therefore the suppression order arises in the course of determining that matter. The proceeding by way of application for a suppression order is not itself a distinct or independent matter. 33 This case is not distinguishable, in substance, from the Full Court decision in Thompson v Hodder (1989) 21 FCR 467, where the Court, at 469, applied Fencott v Muller (1987) 152 CLR 570. In that case the High Court emphasised the breadth of the expression "matter" and pointed out that the term could include a series of proceedings which were not in themselves independent or distinct matters. 34 I do not consider in the present case that the appeal in relation to the suppression order, although unsuccessful, could properly be characterised as a proceeding which was instituted vexatiously or without reasonable cause so as to come within the exception set out in s 347. Accordingly, the application for costs is dismissed. 35 The application and submissions as to costs should have been made by the interveners during the hearing. There is no general principle that applications and submissions as to costs ought not to be made until after judgment has been delivered. Such applications are often made during the course of the hearing and generally should be addressed at that time. In the circumstances of this case it is unfortunate that the interveners have made their application for costs at such a late stage when the question of costs was expressly raised by the Court and where the interveners had ample opportunity to make submissions on this aspect prior to judgment. If this had been done the necessity to consider further submissions at a later stage as a separate matter would have been avoided. 36 The order that I propose therefore is that the application for costs should be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 1 October 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 455 of 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CRAIG JOHNSTON APPELLANT AND: DOUG CAMERON (and others according to the schedule of respondents) RESPONDENTS JUDGES: BRANSON, TAMBERLIN & FINKELSTEIN JJ DATE: 1 OCTOBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT FINKELSTEIN j 37 The application of s 347(1) of the Workplace Relations Act 1996 (Cth) ("[a] party to a proceeding … arising under [the Workplace Relations] Act … shall not be ordered to pay costs incurred by any other party") to the present facts gives rise to a number of interesting questions. These questions include (a) Are The Age Company Ltd and the Herald and Weekly Times Ltd "part[ies] to [the] proceeding" commenced by Mr Johnston under s 209 of the Workplace Relations Act? and (b) Is the application for a suppression order under s 50 of the Federal Court of Australia Act 1976 (Cth) in relation to evidence tendered in the s 209 proceeding itself "a proceeding … arising under [the Workplace Relations] Act"? 38 The first question arises because it is unclear on what basis the trial judge allowed the newspapers to appear before him. It is possible, as Branson J says, that the newspapers were granted leave to intervene under s 470 of the Workplace Relations Act. On the other hand, because the suppression order directly affected their rights, the newspapers were also entitled to intervene as of right (Levy v The State of Victoria (1997) 189 CLR 579, 601 per Brennan CJ) and they may have exercised that right. Provided the newspapers asked for, and were given, leave to intervene either under the statute or in the court's inherent power, they became parties to Mr Johnston's proceeding with all the associated privileges and burdens: Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener) [1974] 1 NSWLR 391, 396-397; United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520, 534-535. It would be different if the newspapers had appeared as amicus curiae, but it seems unlikely that they sought such a limited role. 39 The answer to the second question depends upon the proper characterisation of the suppression order application. In Viner v Australian Building, Construction Engineers Employees' and Builders Labourers' Federation (No 1) (1981) 56 FLR 5, 29 Northrop J said of s 197A of the Conciliation and Arbitration Act 1904 (Cth), the forerunner of s 347, that the word "proceeding" was intended to include all steps arising in the matter and therefore meant a step in the proceeding as well as the action itself. But that statement did not provide a straightforward answer to the question Northrop J was required to consider, namely whether contempt proceedings were separate from the deregistration proceedings which gave rise to the contempt, and it is only of limited assistance here. 40 The prohibition to which s 347 is directed is in relation to a proceeding in a matter arising under the Workplace Relations Act. On a narrow view of the section an application for a suppression order is not in a matter arising under the Act because it is concerned with the rights and duties established under the Federal Court of Australia Act, rather than the Workplace Relations Act. On the other hand a suppression order application might properly be regarded as a step in the s 209 application, which is a matter arising under the Act. 41 Although I favour the latter approach, in the end it is not necessary to form a final conclusion on the issue because I agree with Branson J that, as a matter of discretion, the newspapers should not have their costs. In my opinion their failure to deal with costs when invited to do so is itself a sufficient reason to deny their present application. For this purpose it is not necessary to treat their conduct as an abandonment or waiver of the right to claim costs. It is sufficient to hold the parties to the manner in which they conducted their case. Here the newspapers made a conscious decision at the hearing not to press for costs. It is not unjust to keep them to that position, in the absence of a good reason justifying a change in their stance. Parties know that it is unusual to have a separate hearing on costs. If a party wishes to avoid the usual order for costs the matter should be raised at the hearing. Then the Full Court can avoid the need to reconvene to hear further submissions. 42 For the foregoing reasons I agree in the orders proposed by Branson and Tamberlin JJ. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 1 October 2002 Date of receipt of written submissions: 28 August 2002 Date of Judgment: 1 October 2002 SCHEDULE OF RESPONDENTS Julius ROE Second Respondent Jennifer DOWELL Third Respondent Ian JONES Fourth Respondent Mike NICOLAIDES Fifth Respondent Dave OLIVER Sixth Respondent S WALSH Seventh Respondent A PERKINS Eighth Respondent A DONNELLAN Ninth Respondent P JOHNSTON Tenth Respondent D SMITH Eleventh Respondent Dave HARRISON Twelfth Respondent P LEES Thirteenth Respondent G WILSON Fourteenth Respondent Paul BASTIAN Fifteenth Respondent G HINGLE Sixteenth Respondent John PARKIN Seventh Respondent J REID Eighteenth Respondent P WISNIEWSKI Nineteenth Respondent Jim WATSON Twentieth Respondent Jock FERGUSON Twenty-first Respondent D SARGENT Twenty-second Respondent M ADDISON Twenty-third Respondent