Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [No 2] [1982] HCA 57

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Brennan JJ. Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [No 2] [1982] HCA 57

ORDER Order that there be granted to the respondent in each case a costs certificate pursuant to s. 6(1) of the Federal Proceedings (Costs) Act 1981 Cth in respect of each appeal.

The following written reasons for judgment were delivered:—

Gibbs C.J.

The Court grants the certificates sought and will give its reasons later.

Oct. 12 Gibbs C.J.

The question for decision in these appeals is whether the Court may and should grant certificates under s. 6 of the Federal Proceedings (Costs) Act 1981 Cth to the unsuccessful respondent. That depends, in the first place, on whether s. 6 of that Act is valid. The validity of s. 6, however, depends on the effect of s. 16. Section 6 provides, inter alia:

(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.

(3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of—

(a) the costs incurred by the respondent in relation to the appeal; and

(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates.

Section 7 provides for the grant of a costs certificate to an appellant in certain cases, s. 8 provides for the grant of costs certificates where a new trial has been ordered in certain circumstances, s. 9 deals with the grant of costs certificates in federal appeals in certain family law proceedings and s. 10 deals with costs certificates in the case of certain proceedings that have become abortive or the hearing of which has been discontinued. It may be observed that in ss. 8 and 10 it is provided that the certificate that may be granted is "a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to" the new trial or proceedings. The expression "federal appeal" is defined by s. 3(1) to include, inter alia, certain appeals to the High Court, to the Federal Court and to the Family Court. Section 16 of the Act provides as follows: