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. Mahoney JA, who was the third member of the Court, proposed that the appeal should be allowed, the order of Waddell CJ in Eq set aside and the proceedings returned to the Equity Division. On the question of costs, his Honour proposed that the Federation should pay the costs of the proceedings before Waddell CJ in Eq and before this Court. The appellant had succeeded on a point not raised before Waddell CJ in Eq. In those circumstances the order which Mahoney JA favored might have followed. However, the majority of us considered that the orders should be as indicated by McHugh JA. Before the Court today is a motion by which the unsuccessful respondent to the appeal has sought a certificate under the Suitors' Fund Act 1951. Upon the return of that motion the successful appellant appeared before me, sitting alone, 2 UNREPORTED JUDGMENTS to put two submissions as to why a certificate should not be granted. Because of the fact that the orders in which I agreed were those of McHugh JA, the matter was stood over to be dealt with by the Court of Appeal. It has now been fully argued before us by counsel on the part of Ronher Pty Limited. A preliminary question arises as to whether Ronher pty Limited should be heard on the making of the application. This question was raised with counsel. He advanced three reasons to support his client's standing to be heard. The first was that his client had received the motion and was responding to it before the Court. The second was that, as a member of the taxpaying public, his client had an interest in the conservation of the funds of the Suitors' Fund. Thirdly, it was suggested that matters should be placed before the Court to assist the Court. I do not consider that the first or the second of the reasons advanced would be adequate to entertain submissions on the part of a party who has no interest in the certificate. However, counsel has assisted the Court by drawing to its notice its earlier decision in Mir Bros Developments pty Limited v Atlantic Constructions Pty Limited (1985) 1 NSWLR 491. In that case, in a joint judgment with Samuels JA, L indicated a number of principles which I suggested should guide the Court in the interpretation of s6 of the Suitors' Fund Act in providing certificates. The first of the matters referred to by Samuels JA and me (at 494) was as follows: "The section appears in a statute the purpose of which is the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from: see Moffitt J, as he then was, in Acquilina v Dairy Farmers Co-operative Milk Co Ltd (1965) 82 WN (Ptl) (NSW) 531 at 534. The history of the legislation, and indeed its terms, make it plain that the purpose which must be kept in mind in its interpretation and application is the relief of litigants against the costs inevitably incurred when appeal review discloses an error of law requiring correction. The object is to ensure that litigants do not, as in the past, bear the costs thereby occasioned but that these costs are spread, by way of the fund, to mitigate the hardship to litigants that would otherwise flow." Relying upon these observations, counsel for Ronher Pty Limited suggested that as no error of law had been disclosed in the judgment of Waddell CJ in Eq upon the basis of which this Court concluded in the terms of its orders, for that reason no certificate should be given in the present case. Upon reflection, it is my opinion that the expression of the principles set out in the above passage in Mir Bros might be more widely stated than the section requires. There is no mention in s6(1) of an error of law. The statute talks in terms of an appeal succeeding "on a question of law". That phrase will often require that error be shown in the decision of the judge below. But not always. The present case illustrates the exception. The section providing for certificates is a beneficial one. It should not receive a narrow construction. On reflection, I would wish to modify slightly the passage set out above in Mir Bros and delete from it the reference to the establishment of an error on the part of the judge below. Judgments are not to be read as statutes. Observations in judgments are not to be taken as written in stone. The attempt of Samuels JA and myself in Mir Bros was to state generally the position so far as applications for certificates under the Act were concerned. It was not to define with precision, in the place of the words which Parliament had chosen, limiting criteria for the award of a certificate under the Act. WRATERSIDE WORKERS' FEDERATION OF AUSTRALIA v RONHER PTY LIMITER (Clarke JA) The section is expressed in terms of what the Court may provide. It is suggested that the Court has a discretion which it can choose, for proper reasons, not to exercise. So much was earlier suggested by Moffitt J (as he then was) in Aquilina v Dairy Farmers Co-operative Milk Co Limited (1965) 82 WN (Pt1) (NSW) 531 at 534. However, it is possible that the word "may" in the section does not, in fact, confer a discretion but confers a right. In the beneficial circumstances of the section and its purpose the word "may" might not confer a discretion but, on the contrary, might confer upon a person who otherwise fulfils the requirement of the section a right to have the benefit of the certificate which it allows. Cf Julius v The Right Rev The Lord Bishop of Oxford (1880) 5 App Cas 214 and Re Baker; Nichols v Baker (1890) 44 ChD 262. It is not necessary finally to determine that matter in the present case. I so conclude because, whether or not discretion exists, it is appropriate in this case that the claimant should have the certificate for which it applies. ORDER The orders which I would propose are therefore: 1. That the claimant be granted a certificate under the Suitors' Fund Act 1951 in respect of the costs of the appeal; and 2. That there be no order for the costs of the motion. McHugh JA I agree with the orders of the President. Clarke JA I also agree. KIRBY P: The orders of the Court are accordingly as I have provided.