High Court - Removal of causes - Appellate jurisdiction - Appeals from judgments, decrees or orders - Determination by Federal Court on stated case - No right of appeal to High Court - Cause removed to High Court - Power to consider correctness - The Constitution (63 & 64 Vict. c.12) , s. 73 - Federal Court of Australia Act 1976 (Cth),s. 25(6) - Judiciary Act 1903 (Cth),ss. 40, 42.

Practice Costs - Intervention by Attorney-General - Discretion to award costs - Judiciary Act 1903(Cth),s. 78A(2).

1990, May 1, 2; November 6; 1991, April 30. 30:4:1991

CAUSE removed pursuant to s. 40(1) of the Judiciary Act 1903 (Cth).

MASON C.J., BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ. This is an application by Charles David Pty. Limited ("the respondent") for an order that the Commonwealth pay the respondent's costs of the proceedings between Mr. O'Toole ("the applicant") and the respondent both in this Court and in the Federal Court. The Attorney- General for the Commonwealth intervened in the proceedings in each court. The respondent claims that, that being so, the Court possesses jurisdiction to make an order that the Commonwealth pay its costs by reason of the provisions of s.78A(2) of the Judiciary Act 1903 (Cth). The Commonwealth submits that the Court's power under s.78A(2) is restricted to the making of an order that the Commonwealth pay only so much of the respondent's costs as corresponds with the amount by which those costs were increased by the Commonwealth's intervention in the proceedings. Alternatively, the Commonwealth submits that any more generous order for costs against the Commonwealth would not be justified in the circumstances.

2. Section 78A(2) reads:

of a State intervenes in proceedings in a court under this

section, the court may, in the proceedings, make such order

as to costs against the Commonwealth or the State, as the

empowered to make such order as to costs against the Commonwealth as the Court thinks fit.

3. In the present case, the Attorney-General obtained an order under s.40 of the Judiciary Act removing the whole cause into this Court to challenge the correctness of the answers given by the Full Court of the Federal Court. Those answers favoured the respondent and the respondent understandably did not support the removal of the cause. The challenge to the correctness of those answers failed. It is common ground that s.197A of the Conciliation and Arbitration Act 1904 (Cth) precludes the making of an order for costs in the respondent's favour but not against the Commonwealth which was not, for the purposes of that section, a "party" to the proceedings in this Court or the Federal Court.

4. It is only in special circumstances that it is appropriate for the Court to make an order for costs against an intervener or, at all events, an order which would have the result that an intervener pay to one of the parties more than the amount by which the costs of that party have been increased by the intervention. However, it appears to us that such special circumstances exist in the present case. As has been said, it was the Commonwealth which obtained the removal of the cause into this Court so that it could intervene and challenge the correctness of the answers favouring the respondent. It has failed in that challenge. In our view, it is appropriate that an order be made that the Commonwealth pay the costs of the respondent of the proceedings in this Court, including the costs of the present application. In so far as the proceedings in the Federal Court are concerned, the appropriate order is that the Commonwealth pay the costs of the respondent of those proceedings to the extent, if at all, to which they were increased by the intervention of the Commonwealth in that court.

Order that the Commonwealth pay the costs of the respondent, Charles David Pty. Limited, of the proceedings in this Court including the costs of this application.

Order that the Commonwealth pay the costs of the said respondent of the proceedings in the Federal Court to the extent, if at all, to which those costs were increased by the intervention of the Commonwealth in that Court.