CATCHWORDS Costs - Commonwealth employees being sued personally represented by Commonweaith Crown Solicitor - Whether costs recoverable against unsuccessful plaintiff. Constitutional law - Commonwealth powers ~- Validity of provision vesting discretion in Crown Solicitor to act as a solicitor - Limits of discretion - Extent of appropriate Commonwealth interests. The Constitution; Judiciary Act 1903 ss.55E, 78B. Kathleen Isobel Inglis v. Andrew Leslie Moore Michael Rayner Thwaites Maurice Bray Betty O'Brien Sylvia Rowlands No. G47 of 1977. Coram : St.John, Brennan & Davies JJ. Date . 29 June 1979 Sydney, IN THE FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY App. No. G47 of 1977 wwe we ww GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN KATHLEEN ISOBEL INGLIS Appellant (Plaintiff) AND ANDREW LESLIE MOORE MICHAEL RAYNER THWAITES MAURICE BRAY BETTY O'BRIEN SYLVIA ROWLANDS Respondents (Defendants) ORDER JUDGES MAKING ORDER St.John, Brennan & Davies JJ. DATE OF ORDER 29 June 1979 WHERE MADE : Sydney. THE COURT ORDERS THAT : 1. The appeal be dismissed. 2. The appellant pay to the respondents their costs of the appeal to be taxed, IN THE FEDERAL COURT OF AUSTRALIA) ) PRINCIPAL REGISTRY App. No. G47 of 1977 ) GENERAL DIVISION ON_APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : KATHLEEN ISOBEL INGLIS Appellant (Plaintiff) ANDREW LESLIE MOORE MICHAEL RAYNER THWALTES MAURICE BRAY BETTY O'BRIEN SYLVIA ROWLANDS Respondents (Defendants) AND CORAM : ST.JOHN, BRENNAN & DAVIES JJ, the 29th day of June 1979 ST.JOHN & BRENNAN JJ. The appellant is the plaintiff in this action. She appears for herself, and she has drawn her own Statements of Claim. One of her amended Statements of Claim was struck out with costs by Connor J. in the Supreme Court of the Australian Capital Territory on 5 August 1975. The defendants' solicitor is the Commonwealth Crown Solicitor and he delivered a bill of costs for taxation. The Registrar, who is the taxing officer of the Court, taxed the bill. Mrs. Inglis carried in objections, some to the bill as a whole,and some to particular items which had been allowed on the taxation. The objections were disallowed. Mrs. Inglis, being dissatisfied, applied to Connor J. for an order to review the taxation. Connor J. reviewed the taxation and allowed some of the objections, but he ordered "that the 0/2 objection to the bill of costs as a whole be dismissed". The dismissed objection occupied three foolscap pages of typewriting but, for the purposes of this appeal, it may be reduced to the submission that professional costs should not be allowed to the defendants in respect of the services of the Commonwealth Crown Solicitor, to whom they were under no personal liability for costs. Mrs. Inglis appeals to this Court against the part of his Honour's order which we have quoted. A similar question was argued before the Court of Appeal, in similar proceedings brought consequent upon a taxation of costs, in Rex. v. Archbishop of Canterbury [1903] 1 K.B.289. There, the Crown had appointed the Treasury Solicitor to look after the interests of the Archbishop, and the Treasury Solicitor became the Archbishop's solicitor on the record. After the Archbishop succeeded in the litigation and costs were ordered in his favour, the costs were taxed and an objection was taken, as Collins M.R. expressed it at p.292, "because the costs said to have been incurred by him were really incurred on behalf of the Crown, or else that the archbishop had appeared by a solicitor who was not entitled to act for him, namely, the solicitor of the Treasury". Both of these grounds of objection failed. As to the former ground, Romer L.J. said at p.295: ---/3 " The case cannot, to my mind, be substantially differentiated from that of an ordinary defendant who is in some such position as that of a master who is being sued by a servant where the master 1s insured against liability... In such a case, 1f the defendant is awarded costs, those costs would be recoverable by him, and, in estimating what the amount of those costs are, he would naturally and properly include among his costs those of the solicitor who acted for him in that case, although, as between him and the insurance company, the solicitor was the solicitor for the insurance company, and the insurance company had to see that the costs were provided by them if the defendant did not succeed. " It has long been the rule that a successful party who 1s represented by the Crown Solicitor in litigation in which the Crown has an interest is not disentitled to costs from an unsuccessful party merely because he is not under a personal liability to the Crown Solicitor for costs: cases which define or illustrate the rule include Irving v. Gagliardi (1895) 6 Q.L.J9.R.200; McLaurin v. Hall (1913) S.R.(N.S.W.) 114; Lenthall v. Hillson (1933) S.A.S.R.31 at pp.35 et seq; Ex parte W.A. Grubb Pty.Ltd., Re Johnston (1949) 66 W.N.(N.S.W.) 224; Nolan v. George [1959] Qd.R.315; and Blackall v. Trotter (No.1) [1969] V.R.939. In the case last mentioned the Full Court of the Supreme Court of Victoria said at p.941: " In our opinion, neither in that case nor in Lenthall v. Hilison did the Court base its decision on the ground that there was any liability of the party represented to the Crown-employed solicitor for costs. Both cases, in our opinion, decided that in the circumstances the Crown by virtue of its interest in the subject- matter of the litigation was entitled to make its solicitor available to act for the party on the record, and that as the Crown incurred the expense of his employment the party he represented was entitled to recover the costs awarded to him. 22/4 Since expense was incurred, albeit not by the party on the record, in the employment of the solicitor, the decisions are distinguishable from cases such as Gundrey v. Sainsbury, [1910] 1 K.B.645..., where no expense at all was incurred in the employment of the solicitor. " Next it was argued, echoing the argument in the Archbishop of Canterbury's case, supra, with respect to the Treasury solicitor, that the Crown Solicitor was not entitled to appear for the defendants. Why not? The Crown Solicitor has traditionally acted for persons other than the Crown in cases in which the Crown has an interest in the subject matter of the litigation, though the appellant denies that the Crown has such an interest in this case. The basis of the Crown Solicitor's entitlement to act is the Crown's interest in the subject matter of the litigation, as the Court held in Blackall v. Trotter (No.1), supra. In Brownsea Haven Properties Ltd. v. Poole Corporation [1958] 1 Ch.574, the Court of Appeal held that it should determine whether, in a given case, the Crown had an interest appropriate to allow the Treasury Solicitor to act, and that the ipse dixit of a Minister was not conclusive (see per Romer L.J. at p.607), but the existence of an appropriate Crown interest was clearly held to authorize the intervention of the Treasury Solicitor, In none of the cases cited was there any argument based upon constitutional limitations on the powers of the Crown whose Solicitor had acted for a party other than 22/5 the Crown. The common law entitlement of the Crown Solicitor to act for a party other than the Crown depends upon the Crown's interest in the litigation, rather than the extent of the Crown's powers. The limits upon Commonwealth power may circumscribe the range of possible Commonwealth interests in litigation, but where the Commonwealth has an interest, there 1s no reason why the Commonwealth Crown Solicitor should not act for a party to that litigation. Did the Commonwealth have an appropriate interest in the litigation instituted against the defendants? The defendants were, and were alleged in the plaintiff's Statement of Claim to be, Commonwealth public servants employed in the Parliamentary Library. The plaintiff was also employed there. It was alleged that the defendants had tortiously injured the plaintiff by acts done while they were working 1n the Library, affecting the plaintiff in her employment and her reputation. In substance (though the Statement of Claim was drawn much more expansively), the plaintiff's allegations were that she had been badly treated at work by other public servants including her superior officer. The Commonwealth has an interest in protecting its employees against claims brought against them in respect of acts done within the scope of their employment. 22/6 The Commonwealth has an interest in litigation of that kind, not only to protect the Commonwealth from claims made against it on the footing of its vicarious liability for the acts or torts of its employees (cf. Musgrave v. The Commonwealth (1937) 57 C.L.R.514), but also to protect employees in performing the functions of their employment from the risk of a personal liability for costs, if they should be sued in respect of what they have done, or are alleged to have done, in performing those functions, In the present case, the Commonwealth had such an interest in the litigation that it was entitled, without statutory authority, to make available to the defendants the services of the Crown Solicitor, However, if it were not for the entitlement to practise conferred on the Crown Solicitor by the Judiciary Act, 1903 he would be subject to the relevant legislative controls governing professional practice: in the Australian Capital Territory those controls are to be found principally in the Legal Practitioners Ordinance, 1970. Until 1966, s.50 of the Judiciary Act conferred on the Crown Solicitor an entitlement to practise "in respect of his office". Section 50 did not refer to the persons for whom or the matters in which the Crown Solicitor was entitled to act - that was left to the general law. In 1966, s.50 was repealed, and s.55E was enacted. Section 55E conferred a oes/7 like entitlement to practise in the cases to which its provisions applied. It confers the Crown Solicitor's entitlement to act for the defendants in the present case without his being subject to the Legal Practitioners Ordinance, provided the present case falis within its terms, Section 55E reads: " The Crown Solicitor may, in his official capacity, act as solicitor for - (a) the Crown in right of the Commonwealth; (b) the Commonwealth; (c) a person suing or being sued on behalf of the Commonwealth; (d) a Minister; (e) a body established by an Act or a law of a Territory; (£) an officer of, or a person employed by - (i) the Commonwealth; or (ii) a body established by an Act or a law of a Territory; (g) a person holding office under an Act or a law of a Territory; (h) a member of the Defence Force; or (1) any other person or body for whom the Attorney-General requests him to act, and is, for the purpose of so acting, entitled to practise as a solicitor in any court and entitled to all the rights and privileges of a solicitor in each State or Territory whether or not he is, apart from this section, entitled to practise as a solicitor 1n any State or Territory. " -- /8 Paragraph (f) (i) of s.55E in terms covers the present case, though the applicant contended that that paragraph could not have entitled the Crown Solicitor to act. The constitutional validity of the section was challenged, and the requisite notice under s.78B of the Judiciary Act was given to the Attorneys-General of the Commonwealth and of New South Wales. The Attorney-General of the Commonwealth intervened to support the validity of s.55E; the Attorney- General of New South Wales did not wish to intervene. The appellant submitted (if we understood her aright) that the section is an exercise of the judicial power of the Commonwealth, and that it cannot go beyond the subject matters of jurisdiction listed in Chapter III of the Constitution. The submissions are misconceived. The enactment of s,55E is an exercise of legislative, not judicial, power, Its validity is referable to the legislative powers of the Parliament, which may be found in the express Constitutional grants of power, the incidental power read in conjunction with other powers, and in the powers implied from the existence of the Commonwealth and its character as a polity (Victoria v. The Commonwealth and Hayden (1975) 134 C.L.R.338 at p.397 per Mason J.). Section 55E vests a discretion in the Crown Solicitor whether or not to act for the persons mentioned in the lettered paragraphs, limits his discretion under paragraph (1) to persons in respect of whom the Attorney- General makes a request, and confers upon him an entitlement 2/9 to practise in cases where he exercises his discretion to act. The validity of the section is determined by its operation, The section is facultative, permitting the Crown Solicitor to act for the persons mentioned but not requiring him to do so. So far as it permits the Crown Solicitor to act in cases where it would have been lawful for him to act apart from the section, it does not purport to authorize anything which would otherwise be unlawful or ineffectual: it simply confers legislative authority to perform administrative acts which might be performed lawfully in any event, though 1t vests a discretion to perform them in the Crown Solicitor without request from or direction by the Commonwealth. To that extent at least, the section is valid. There inheres in the appellant's challenge to the validity of s.55E the proposition that it has a further invalid and inseparable operation, and that the terms in which the discretion is conferred permit the Crown Solicitor to act in cases in which the Commonwealth has no interest. She submitted that the width of the discretion was the feature which worked the constitutional invalidity of the section, encompassing cases to which the powers of the Commonwealth could not extend (though the reasons why the powers could not extend to the cases instanced were not clearly stated). -.-/10 10. Despite the evident concern of the learned Solicitor- General to appreciate the arguments put by the appellant, and to equip us with both her argument and his reply, we remain uncertain whether we correctly apprehend the submission which the appellant wished to make, However, the answer to her submission, as we understand it, is that s.55E 1s a facultative provision vesting a discretion to perform administrative acts of a kind which may be done within the legitimate ambit of Commonwealth administrative activity, and it is not invalid merely because the discretion is vested in terms which, 1f broadly construed, might encompass the doing of acts which are not within the legitimate ambit of Commonwealth administrative activity. The conferring on the Crown Solicitor of an entitlement to practise when acting for a party mentioned in s.55E is an undeniably valid provision if the Crown Solicitor is restricted to acting for a party to litigation where the Commonwealth has an interest in the subject matter of the litigation. But the question is whether the discretion purports to authorize the Crown Solicitor to act in other cases where the limits of constitutional administrative power would be exceeded if the Commonwealth Crown Solicitor acted. We do not think it does purport to authorize unlawful acts. The discretion which s.55E vests in the Crown Solicitor is a ---/1l1 11. discretion to be lawfully exercised, and the lawfulness of the exercise requires that it be confined within the limits of Commonwealth constitutional powers. One may allow that "[t]here is nothing unreal in the possibility that the degree of connection constitutionally necessary might be misconceived and misapplied administratively", and that that possibility was perceived by Dixon J. in Australian Communist Party v. The Commonwealth (1951) 83 C.L.R.1 at p.185 to be an obstacle to the validity of the provision conferring an administrative discretion upon the Governor-General in that case. In that case, however, the exercise of the administrative discretion was not examinable. But where a discretion, though granted in general terms, can lawfully be exercised only 1f certain limits are observed, the grant of the discretionary power is construed as confining the exercise of the discretion within those limits. If the exercise of the discretion so qualified lies within constitutional power and is judicially examinable, the provision conferring the discretion is valid. Thus in Shrimpton v. The Commonwealth (1945) 69 C.L.R.613, it was argued that a regulation, enacted under s.5 of the National Security Act 1939, was invalid because 1t purported to vest in the Treasurer an absolute discretion to grant or refuse consent to purchase land. The argument failed because the regulation was held to vest a discretion so qualified as to bring it within the regulation-making power. Latham C.J. said at p.619: «+-/12 12. "It 1s urged for the plaintiff that this provision is 1unvalid, because under it the Treasurer could give or withhold consent upon any ground whatever - personal, social, political, financial, religious, racial or other - and that failure to comply with any such condition would then become an offence (reg.9(3)). If the words 'in his absolute discretion' and the words 'subject to such conditions as he thinks fit' are so interpreted, then the Treasurer may impose as a condition of his consent any condition whatever, even though it has no relation to matters affecting the defence of the country or the prosecution of the war. If the regulation is to be so interpreted, it exceeds the limits of the authority created by the National Security Act. But, if the regulation can reasonably be so construed - ut res magis valeat quam pereat. The regulation can be held to be valid if, in spite of the words apparently giving an arbitrary and unlimited discretion to the Treasurer, it can be held that the only conditions which the Treasurer can impose as a condition of granting his consent are conditions related to the object and purpose of the Regulations, and that the object and purpose of the Regulations are such as to have a real connection with defence or the prosecution of the war. " In the Communist Party case, the discretion to which Dixon J. referred in the passage cited above was an unexaminable discretion vested in the Governor-General, and the considerations which led the Court to uphold the regulation in Shrimpton's case did not support the challenged provision in the Communist Party case, as Dixon J. pointed out (at 83 C.L.R. p.186): "Unlike the power conferred by s.5 of the National Security Act 1939-1943, the present power is administrative and not legislative, 1t 1s not directed to the conduct of an existing war, and its exercise 1s not examinable and is not susceptible of testing by reference to the constitutional power above which it cannot validly rise. " -++/13 13. The discretion vested by s.55E is susceptible of testing, and an attempt to exercise the discretion unlawfully might be restrained at the suit of a person having the necessary locus standi (see Victoria v. The Commonwealth and Hayden, supra, at p.401). If a party to litigation should wish to challenge the entitlement of the Crown Solicitor to act for the opposing party, the court will entertain the application as the cases following the Archbishop of Canterbury's case, supra, show (and see also Rakusen v. Ellis Munday and Clarke [1912] 1 Ch.831l). In the present case, it is not necessary to chart the limits of the discretion which may be exercised under S.55E; it is sufficient to say that this case lies within those limits. It 1s within constitutional limits because the Commonwealth had an interest sufficient to entitle the Crown Solicitor to act for the Crown's employees in an action arising out of the performance of their functions as public servants. The appeal should therefore be dismissed with costs. I certify that this and the IR preceding pages are a true copy of the a + et, Reasons for Judgment herein of BES Honours Mr. Justice St Jauw % Wo CGuamice GveuneL_ Associate A? ihre. Dated: 24.629 IN THE FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY No. G47 of 1977 we eww GENERAL DLVISION ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY IN ACTION NO.624 OF 1975. BETWEEN : KATHLEEN ISOBEL INGLIS Appellant (Plaintiff) AND : ANDREW LESLIE MOORE MLCHAEL RAYNER THWAITES MAURICE BRAY BETTY O'BRIEN SYLVIA ROWLANDS Respondents (Defendants) CORAM : ST. JOHN, BRENNAN, DAVIES JJ 29 June 1979. REASONS FOR JUDGMENT DAVIES J : On 5 August 1975, Connor J ordered that an amended statement of claim, delivered 17 July 1975 in action No.624 of 1975 in the Supreme Court of the Australian Capital Territory, be struck out and that the plaintiff, Mrs. K.I. Inglis, pay the taxed costs of the defendants of the application to strike out the pleading. Subsequently, the defendants presented a bill of costs for taxation. On 31 March 1977, the Registrar issued his certificate allowing costs at $1,612.36. On 14 April 1977, the plaintiff lodged notice of objection to the whole of the defendants' bill of costs and objected, alternatively. to certain specified items in the bill. On 5 May 1977, the Registrar disallowed the plaintiff's objections. On appeal, Connor J allowed certain of the plaintiff's particular objections, ordered that the defendants' costs be taxed at $1,401.70, reserving the right to the defendants to tax items 9 and 10 of the bill at the conclusion of the action, but dismissed the plaintiff's objection to the bill of costs as a whole. The plaintiff has appealed to this court for an order that her objection to the bill of costs as a whole be upheld. In brief substance, the appellant's objection to the bill of costs as a whole contends that the respondents' solicitor is the Commonwealth Crown Solicitor, that the bill of costs sought to recover the profit costs of that solicitor and that such costs should not have been allowed either because the respondents were not personally liable to meet the fees of the Commonwealth Crown Solicitor or because the Commonwealth Crown Solicitor had no authority or power to act as solicitor for the respondents. I adopt Connor J's summary of the issues raised in the statement of claim which was struck out "The statement of claim contained 367 paragraphs and consisted of 50 foolscap pages. It alleged that the plaintiff was employed by the Commonwealth in the Australian Parliamentary Library at Parliament House, Canberra, and that all the defendants were employed by the Commonwealth, the first defendant being the Parliamentary Librarian; the second defendant, the Assistant Parliamentary Librarian; the third defendant, the Administrative Officer of the library in control of the registry; the fourth defendant, a clerical assistant in the registry; and the fifth defendant, the personal secretary of the first defendant. Amongst other things, the statement of claim alleged that in November 1973 the plaintiff was transferred from one position in the library to another position in the library in breach of the Public Service Act. It alleged that the first and second defendants subjected the plaintiff to arbitrary and discriminatory treatment by abuse of their administrative power over the plaintiff. It alleged that all the defendants conspired for the purpose of injuring the plaintiff, and that a considerable amount of material defamatory of the plaintiff 1s in minutes on files in the records of the parliamentary library. It alleged in particular that defamatory material is contained in directions to the plaintiff written on official files of the library by the first defendant. It alleged that the first defendant falsely and maliciously induced the Presiding Officers of the Parliament to recommend the creation of a new position in the library so that the first defendant could transfer the plaintif£ to that position. It alleged that the first defendant defamed the plaintif£ in a minute addressed to her in which he expressed his view that the plaintiff's bad working relationships with other members of the staff were mainly attributable to her and that these bad relationships were seriously affecting the efficiency of the department as a whole. ft alleged that defamatory material was contained in a notice of 12 November 1973 addressed to all Senators and Members of the House of Representatives concerning the transfer of the plaintiff to the position in question. It alleged that the plaintiff was defamed in minutes of March 1974 written to the plaintiff on official files alleging that the progress of her work was slow. it further alleged that the plaintiff was defamed by an instruction of July 1974 of the second defendant to the plaintiff to discontinue distribution of papers which she was writing in the course of her duty. It further alleged that she was defamed by an instruction of the second defendant contained in a departmental file to the effect that she was writing and distributing unauthorised papers. It further alleged that she was defamed by instructions written by the first defendant on 30 July 1974 regarding the distribution of papers prepared by her in the course of her duties. It further alleged that the first, second and third defendants wrongfully omitted the plaintiff's name from certain official publications. Lt also complained of the conduct of a subordinate in the plaintiff's group and the relationships of the first and second defendant with that subordinate which, the plaintiff alleged, undermined her authority. It also complained that the first defendant wrongfully accused her of harassing an officer who was a subordinate in her group. It also complained of treatment accorded to a typist in her group by the first, second and third defendants. Paragraph 366 of the statement of claim reads as follows The plaintiff is apprehensive that the defendants will repeat the acts and things herein complained of unless they are restrained by this Honourable Court. The statement of claim claimed general damages of $1,550,000 as well as special damages of $750 and exemplary damages of $200,000. The statement of claim asserted that the general damages of $1,550,000 were made up of $700,000 for defamation; $300,000 for conspiracy; $100,000 for each of the following : dishonesty, fraud, malicious falsehood, injurious falsehood, intimidation and abuse of administrative power; and $50,000 for breach of statutory duty.". For the purpose of these reasons, I also accept the contention set out in paragraph 3 of the notice of appeal that "3. ...the statement of claim did not allege that in November 1973 the plaintiff was transferred from one position in the library to another position in the library in breach of the Public Service Act. The fact is that the appellant claims that the appellant was legally transferred by order of the Presiding Officers of the Parliament from one position in the library to another position in the library on the 6th day of November 1973 but that this order was not made until after the proceeding the injunctive protective proceeding No.1028 of 1973 had been commenced on the lst day of November 1973 by a solicitor Walter §. Palmer of Canberra un the Supreme Court of the Australian Capital Territory on behalf of the appellant to restrain the first named defendant from purporting to transfer the appellant illegally in the terms of a minute dated the 26th day of October 1973 and which minute was handed to the appellant on the afternoon of Friday the 26th day of October, 1973, by the first named defendant in the presence of the second named defendant and which minute stated the purported transfer was to take effect on and from Monday the 29th day of October, 1973, until such time as the requirements of the Public Service Act had been complied with by the first named defendant. The events which gave rise to this action occurred in the functioning of the Commonwealth Public Service. The appellant and each of the respondents were members of the Public Service employed in a post having a relationship to the Parliamentary Library, Canberra. The respondents were not sued as officers or employees of the Commonwealth. They were sued personally but in relation to orders, minutes, instructions and like acts which occurred within the Public Service, albeit their acts were, in the view of the appellant, wrongful, malicious and not made in the due performance of the duties imposed upon the respondents. In the action, the Commonwealth Crown Solicitor has acted as solicitor for the respondents. Section 55E of the Judiciary Act 1903 prescribes the persons, bodies and authorities for whom the Commonwealth Crown Solicitor may act. Paragraph (£)(1) of the section provides that "The Crown solicitor may, in his official capacity, act as solicitor for (f) an officer of, or a person employed by - P (i) the Commonwealth Cr and is, for the purpose of so acting, entitled to practise as a solicitor in any court and entitled to all the rights and privileges of a solicitor in each State or Territory whether or not he is, apart from this section, entitled to practise as a solicitor in any State or Territory.". The principal question which arises in this appeal is the meaning and validity of that provision. The appellant submitted that the section does not authorise the Commonwealth Crown Solicitor to act for a person sued in his private capacity in relation to a subject matter in which the Commonwealth has no interest. She submitted that, if the provision purports to authorise the Commonwealth Crown Solicitor to act for such a person, 1t is invalid being outside the legislative authority of the Parliament of Australia, The Solicitor-General, Mr. Byers, QC, who appeared on behalf of the Commonwealth to present arguments with respect to the constitutional issues raised in this appeal, submitted that, on its widest interpretation, the provision authorises the Commonwealth Crown Solicitor to act as solicitor for any officer or person employed by the Commonwealth whether or not the subject matter of the litigation concerns his status as officer or employee and whether or not the Commonwealth has any interest in the subject matter of the litigation. Other subsidiary and alternative arguments were put by both the appellant and Mr. Byers but I need not, in these reasons, outline them. In my view, s.55E(£)(i) should be read as authorising the Commonwealth Crown Solicitor to act on behalf of an officer or employee of the Commonwealth whenever the legitimate and valid interests of the Commonwealth of Australia or of the Crown in right of the Commonwealth of Australia justify his so acting. I adopt the approach of Gibbs J in R. v. Director-General of Social Welfare (ex parte Henry) (1975) 133 CLR 369 at p.374 where His Honour said "In Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at p.l2/, Rich J. said : An Act of Parliament must always be read as within the Constitution unless its language makes that impossible.' That of course is merely a particular application of the general principle that an instrument should, if possible, be construed so as to render it valid rather than to make it void. Conformably with that principle, Knox C.J. and Starke J. in Ex parte Walsh and Johnson; In re Yates construed the section under consideration in that case as not extending to persons who had made their homes in Australia and become part of its people (pp.61-62 and p.138). In my opinion the provisions in s.6 also should, if possible, be given a construction that will preserve their validity. This can be done, if necessary with the aid of s.15A of the Acts Interpretation Act 1901 (Cth), as amended, because the whole tenor of the Act shows that it is intended to refer to immigrants.". I see no difficulty in similarly reading s.55E(f)(1) ut res magis valeat quam pereat. It confers an authority upon the Commonwealth Crown Solicitor to act in his capacity as such. I would not accept that Parliament intended such authority to be exercised otherwise than in the legitimate interests of the Commonwealth of Australia or of the Crown in right of the Commonwealth. So read, s.55E(£)(i) is a valid provision. lt 1s unnecessary to identify the precise head of power. The Solicitor-General alleged an inherent authority in the Commonwealth as a body politic to maintain a Public Service and to pass legislation with respect to that Public Service. He relied also upon the specific provisions of s.67 of the Constitution, paragraph (xxxix) of s.51 of the Constitution, paragraph (xxxvi) of s.51 of the Constitution and s.15A of the Acts Interpretation Act 1901. The appellant next contended that neither the Commonwealth of Australia nor the Crown in right of the Commonwealth has any interest in the action which justified the Commonwealth Crown Solicitor in acting as solicitor for the respondents. As the appellant's arguments on this and associated matters ranged over a wide area, 1t is necessary that I draw attention to the nature of the proceedings in respect of which this submission is made. If it is desired to challenge the retainer or authority of a solicitor, the proper procedure is to make an appropriate substantive application to the Court. In Richmond v. Branson & Son (1914) 1 Ch 968, Warrington J held that a defendant May not in his defence or at the trial dispute the authority of the solicitors for the plaintiff. His Lordship said at p.974, "But the real question is the authority of the solicitor. Is that a question which can be raised as a relevant issue in the action and at the trial? No authority has been cited in support of the affirmative of such a proposition and, in my opinion, it is impossible, according to the ordinary practice and procedure of the Court, to justify that proposition. The business of this Court could not be carried on if one were not entitled to assume the authority of the solicitor unless and until that authority has been disputed and shewn not to exist in the proper form of proceeding, namely a substantive application on the part of the parties concerned to stay the proceedings on the ground of want of authority.". See also Russian Commercial and Industrial Bank v. Comptoir D'Escompte de Mulhouse and Others (1925) AC 112. An example of a motion which raised the authority of a solicitor to act for certain defendants may be seen in Porter v. Fraser (1912) 29 TLR 91. At all relevant times in this action, the 'e Commonwealth Crown Solicitor was, and he still is, the solicitor on the record for the respondents. Ifa substantive application had been made to the Supreme Court, it may have been open to the appellant to argue that the Commonwealth Crown Solicitor had no authority to act for the respondents or that, in the exercise of its inherent jurisdiction, the court should order that he cease to act as solicitor for the respondents. However, no such substantive application was made. The subject issue arose and was considered on an appeal as to costs. On such an appeal, even if the issue is considered, it is not for the Commonwealth Crown Solicitor to undertake the burden of proving the circumstances in which he came to act as solicitor to the defendants. He is the solicitor on the record and the court will presume that he is properly on the record until some matter, of fact or law, 1s put forward which shows or tends to show that he has no authority so to act. The appellant herself called no evidence on this point. She relied upon the submission that the allegations in the statement of claim raised no matter in respect of which the Commonwealth of Australia or the Crown in the right of the Commonwealth has any legitimate interest. In my opinion, however, the matters raised in the statement of claim are matters of such a nature that the Crown in right of the Commonwealth could have a legitimate interest in them sufficient to justify the Commonwealth Crown Solicitor in acting for one or more of the parties. There was no or no 10. sufficient material before Connor J to challenge the bona fides of the decision of the Commonwealth Crown Solicitor to act for the respondents. 1 would presume from his so acting that the Crown in right of the Commonwealth has a legitimate interest in this action and I would accept that the Commonwealth Crown Solicitor was authorised by s.55E(f)(i) to act for the respondents. Connor J did not rely upon the presumption but acted upon a statement from the Bar table that it appeared to the Crown Solicitor that virtually every act of the defendants which was the subject of the action was done in the course of employment by the Commonwealth and was a proper exercise of power. On that footing, His Honour concluded that the Crown had an interest to protect the defendants from acts done in the course of and within the scope of their employment and that the Crown therefore had such an interest in the action that the Crown Solicitor might properly act as solicitor for the defendants. I agree with His Honour that the interest propounded justifies the Crown Solicitor in acting for the defendants. The final point made by the appellant was that it was not shown that the respondents were personally liable for the costs of their solicitor. However, the cases of R. v. ll. Archbishop of Canterbury (1903) 1 KB 289 and Blackall v. Trotter No.1) (1969) VR 939 establish that if the Crown Solicitor has authority to act for a defendant in litigation, it is no answer to the taxation of costs that the parties for whom the Crown Solicitor acts are not personally liable for the costs of the Commonwealth Crown Solicitor or that the Commonwealth Crown Solicitor is a salaried officer. I adopt the view of Winneke CJ, Little and Menhennitt JJ in Blackall v. Trotter (No.1) (supra) at p.941, "Tn our opinion, neither in that case (R. v. Archbishop of Canterbury) nor in Lenthall v. Hillson ((1933) SASR 31) did the Court base its decision on the ground that there was any liability of the party represented to the Crown- employed solicitor for costs. Both cases, in our opinion, decided that in the circumstances the Crown by virtue of its interest in the subject-matter of the litigation was entitled to make its solicitor available to act for the party on the record, and that as the Crown incurred the expense of his employment the party he represented was entitled to recover the costs awarded to him. Since expense was incurred, albeit not by the party on the record, in the employment of the solicitor, the decisions are distinguishable from cases such as Gundrey v. Sainsbury (1910) 1 KB 645, relied upon by Mr. Kaye, where no expense at all was incurred in the employment of the solicitor.". "In Nolan v. George (1959) Qd.R. 315, the Full Court of Queensland, and in MacLaurin v. Hall (1913) 13 SR(NSW) 114, the Full Court of New South Wales reached a like result to that reached in R, v. Archbishop of Canterbury and Lenthall v. Hillson, 1n cases where the informant in summary proceedings was represented by a Crown~employed solicitor. Mr. Kaye, however. contended that both these cases were criminal proceedings. He conceded that in such proceedings costs are recoverable. but he contended that civil proceedings are distinguishable. As an informant in summary criminal proceedings 1s not the crown - see R. v. Tween (1965) VR 687, at pp.697-9 - we see no reason in principle to make any such distinction. It follows, in our view, that the present case cannot be distinguished, and should not be distinguished by any process of subtle refinement from the above-mentioned decisions of long standing and of several jurisdictions. As in our view such decisions, if we may say so, produce 12. a sensible and just result, they should, in our opinion, if applicable to the facts of this case, be followed and applied.". For these reasons I would dismiss the appeal. I certify that this and the | | preceding pu es ave a true covy of the Reasons for Judgment herein of his Honour Mr. Justice Davies Ab, Alu ssociate Dated: 2% Te aa 4