S78 CATCHWORDS Industrial law - Conciliation and Arbitration - Appeal allowed on question of law - applicatisn for costs certificate by unsuccessful respondent - aiscretion of the Court. Conciliation and Arbitration Act i504, 5. 137A Federal Proceedings (Costs) Act 1981, 5. Biliiloiai. Bullock v. The Federated Furnishing Traces Society of Austraiasia (No. 2) (1985) & F.C.R. 476 ROYAL AUSTRALIAN NURSING FEDERATIUN TASMANIAN ERANCH 1 a © E a) HI he JOYCE FAWDRY EVATT, NORTHROF and GRAY JJ. IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) T No. 3 of 1986 ) INDUSTRIAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : ROYAL AUSTRALIAN NURSING FEDERATION TASMANIAN BRANCH Appellant and MARCIA JOYCE FAWDRY Respondent a E EVATT, NORTHROP AND GRAY JJ. 8TH OCTOBER 1986 REASONS FOR JUDGMENT The Full 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 Proceedings (Costs) Act 1981. That provision is as follows: "(1). 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 to the respondent a costs certificate in respect of the appeal." That provision gives to the Full Court a discretion which is unfettered by the Act itself. In Bullock v. The Federated Furnishing 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 Proceedings (Costs) Act 1981 tis 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 Proceedings (Costs) Act 1981. I certify that this and the / (one ) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Gray Dated: Vole Associate: Shik