aug AIG IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. G164 of 1986 GENERAL DIVISION BETWEEN : JOHN THOMAS ROBERTS Applicant AND: MURLAR PTY. LIMITED First Respondent AND: THE BUILDING WORKER'S INDUSTRIAL UNION OF AUSTRALIA Second Respondent AND: MARIO ALBERICL Third Respondent AND: LEW _ZIVANOVIC Fourth Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 4 SEPTEMBER 1986 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The costs of and incidental to all the proceedings be taxed and paid by the applicant to the respondents, with the following exceptions: (i) (ii) the costs of any interlocutory hearings which were not reserved or made costs in the proceedings, in respect of which there will be no order; the costs of the hearing before Jackson J. on 28 July 1986, in respect of which it is ordered that the applicant's costs of that hearing be paid by the second and third respondents. 2. The costs of today's proceedings be included in the costs to be paid by the applicant to the respondents. i Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) N.S.W. G164 of 1986 GENERAL DIVISION ) BETWEEN: JOHN THOMAS ROBERTS Applicant AND: MURLAR PTY. LIMITED First Respondent AND: THE BUILDING WORKER'S INDUSTRIAL UNION OF AUSTRALIA Second Respondent AND: MARIO ALBERICI Third Respondent AND: LEW ZIVANOVIC Fourth Respondent PINCUS J. 4 SEPTEMBER 1986 EX TEMPORE REASONS FOR JUDGMENT I have dismissed the applicant's claims for relief under s.45E of the Trade Practices Act, but now have to dispose of certain questions relating to costs. Five points arise. 1. The unsuccessful applicant says that there should only be one set of costs on the other side. The principle on which I was invited to decide the matter was that there was no need for the respondents to remain at arm's length. The application had as its foundation a claim that there was an arrangement between the respondent employer and the respondent B.W.1I.U. having the purpose, to put it generally, of ensuring that the applicant did not continue to work as a member of the B.L.F. It seems to me quite reasonable, in those circumstances, for the employer and the union to have arranged separate representation. One can well understand persons alleged to be parties to an unlawful combination not wishing to appear in court by the same counsel. Apart from that, I should have thought that the ordinary employer would not necessarily want to discuss with lawyers also acting for a union important questions of industrial relations, some of which might be quite sensitive. The same would apply to a union talking to employer's counsel. It seems to me likely that each might well have been inhibited in giving instructions had they been jointly represented and am satisfied that it was reasonable for them not to be so. The second point is that a constitutional question raised by the union's counsel failed. I do not think that should make any difference to the order as to costs, except in one respect to be mentioned. The trial was not, in my view, made significantly more costly by the raising of the constitutional point. In particular, it would still have taken the same number of days to hear. The exception to the proposition set out is that on 28 July 1986 Mr. Justice Jackson reserved costs of a procedural hearing which related purely to the constitutional question and the transcript of which I have read. I can see no reasonable answer to the contention of counsel for the applicant that the applicant should not have to pay the costs of that hearing. Mr. Justice Evatt made some interlocutory orders, the costs orders in which were challenged. Counsel for the applicant said that I had a discretion as to costs extending to upsetting or varying orders made by his Honour. I have been unable to find any authority, nor was I referred to any, to support that suggestion. There are, of course, exceptions to the rule that anorder made by a judge can only be challenged by appeal. For example, ex parte orders may be set aside by the same or another judge, the judge may recall the order before it is taken out and there is the slip rule. I see no reason to think that orders for costs are ina special position in this respect, or to think the judges of this court have jurisdiction freely to interfere with others' orders for costs. The respondents say that no orders as to costs were made in respect of certain interlocutory hearings; that 1s, costs were not reserved, nor made costs of the principal proceedings, nor ordered to be paid by either party. It is urged that I should now order those costs to be paid by the applicant. It is not absolutely clear why the judges in question did not deal with the costs of the hearings mentioned. For all I know, the omission may have been deliberate. It appears to me that it is incumbent upon the parties, when an interlocutory hearing is concluded or shortly thereafter, to raise the question of costs with the judge and seek an order with respect to them. It is not easy simply by reading transcripts, without considerable knowledge of the background and communications between the parties, to be confident that one is making an appropriate order with respect to an interlocutory hearing concluded months ago. [I decline to deal with the costs in question which seem, in any event, not likely to be substantial. The last question is the general problem of reserved costs of interlocutory hearings. With the exception of the hearing before Mr. Justice Jackson on 28 July referred to above, in my opinion the reserved costs should be paid by the applicant. It will therefore be ordered that the costs of and incidental to all the proceedings be taxed and paid by the applicant to the respondents, with two exceptions. The first is that there will be no order as to the costs of any interlocutory hearings which were not reserved or made costs in the proceedings by the judge hearing them. The second is that, as mentioned above, the costs of the hearing before Mr. Justice Jackson on 28 July must be dealt with as follows: that is, the applicant's costs of that hearing must be paid by the second and third respondents and there will be no order for the costs of the first and fourth respondents of that hearing. The costs of today's proceedings must of course be included in the general costs of the proceedings and paid by the applicant to the respondents. 1 certify that this and the 3 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus ptt Kgons Associate Dated & Soe%e-—Cex 1786 |