WATERSIDE WORKERS' FEDERATION OF AUSTRALIA v RONHER PTY LIMITED [1988] NSWCA 167

WATERSIDE WORKERS' FEDERATION OF AUSTRALIA v RONHER PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MCHUGH AND CLARKE JJ 15 July 1988

[1988] NSWCA 167

COSTS — Suitors' Fund — entitlement to certificate — appeal succeeds on a point of law — whether error of law of trial judge must be shown — held: Error need not be shown. Mir Bros Developments pty Ltd v Atlantic Constructions pty Ltd (1985) 1 NSWLR 491 distinguished.

JUDGES — discretion — court 'may' grant certificate — whether a true discretion — whether, preconditions being established, statute confers a right — entitlement to Suitors' Fund certificate — whether discretion to refuse — held: Semble not a discretion — Acquilina v Dairy Farmers Co-operative Milk Co Limited (1965) 82 WN (Pt 1) (NSW) 531, 534 doubted; Julius v The Right Rev The Lord Bishop of Oxford (1880) 5 App Cas 214; Re Baker; Nichols v Baker (1890) 44 ChD 262 referred to.

WORDS and PHRASES — "may". Suitors' Fund Act 1951, subs6(1). ORDERS 1. The claimant be granted a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal. 2. No order as to the costs of the motion.

Kirby P On 8 June 1988 the Court, differently constituted, delivered its judgment in the proceedings between Ronher Pty Limited and the Waterside Workers' Federation of Australia. I agreed in the orders proposed in the judgment of McHugh JA. His Honour proposed the following orders which then became the orders of the Court: "1. Application for leave to appeal to the Court of Appeal be extended to the 30th May 2. Leave to appeal granted. 3. Appeal allowed. 4. Order made by Waddell CJ in Eq directing the removal of the caveat is set aside. In lieu thereof order that the Summons of the Federation heard by Waddell CJ in EQ be dismissed. 5. Ronher pty Limited is to pay the costs of the proceedings before Waddell CJ in Eq. 6. Waterside Workers' Federation of Australia is to pay the costs of and incidental to the appeal including the Summons for leave to appeal." Those orders omitted an order for a certificate under s6(1) of the Suitors' Fund Act 1951.