Victoria v Australian Building Construction Employees' & Builders Labourers' Federation

These are my reasons for holding that the certificates should be granted.

Subject to the reservation which I am about to make I agree with the reasons for judgment of the Chief Justice. That reservation is with respect to the question whether s. 51(xxxix) would empower the Parliament to enact s. 6 of the Federal Proceedings (Costs) Act 1981 even if it were the case that the grant of a certificate in pursuance of that section left it open to the Attorney-General in the exercise of a general discretion to withhold payment. I would wish to hear further argument on that question before expressing an opinion. However, the resolution of the question is not presently material because I agree with the Chief Justice that on its proper construction s. 16 does not confer any such general discretion on the Attorney-General.

It was therefore undoubtedly within the power of the Court to grant the certificates and I concurred in the decision to that end.

Under the Federal Proceedings (Costs) Act 1981 Cth, the Attorney-General or his delegate may authorize a payment to be made to a party in a federal appeal where a court has granted that party a costs certificate. A court is empowered to grant a costs certificate by ss. 6, 7, 8 or 9 when a federal appeal succeeds and by s. 10 when proceedings in the High Court, the Federal Court, the Family Court or a court of a Territory are rendered abortive by reason of judicial inability to continue with or give judgment in the proceedings. However, the Act creates no liability in the Commonwealth which is declared or enforced by the grant of a costs certificate. The payment which the Attorney-General or his delegate may authorize is not a payment to discharge an antecedent liability. It is an ex gratia payment.

The present applications are for the grant of costs certificates pursuant to s. 6(1) which provides:

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. A person granted a costs certificate may apply to the Attorney-General for a payment in accordance with the Act in respect of the certificate (s. 16(1)). Where such an application is made, s. 16(2) empowers the Attorney-General or his delegate (s. 20) to authorize a payment. Section 16(2) provides: Subject to section 17, where an application is made by a person under sub-section (1) in respect of a costs certificate, the Attorney-General may, having regard to the provisions of section 18 and to the moneys available at the time of the application for making payments under this Act, authorize the payment under this Act to that person of an amount not exceeding the amount or the sum of the amounts of the costs to which the certificate relates, and a payment so authorized shall be made accordingly.

The direction to have regard "to the moneys available at the time of the application for making payments under this Act" acknowledges that the funds available to meet payments under the Act are limited to the moneys available under an appropriation made by the Parliament (s. 19). A court which grants a costs certificate does not know the extent of the funds available to make a payment in respect of that certificate or the demands which may be made upon the fund in respect of other costs certificates. Nor does the court know with any precision the amount of the costs which, having been incurred by a party, are to be ascertained in accordance with the definition of costs in s. 3(1) and the quantification provisions in s. 4. The amount to be paid in respect of a particular costs certificate depends upon the terms of the authorization of payment by the Attorney-General or his delegate. He must exercise a discretion in determining the amount of the payment to be authorized.

As the Attorney-General or his delegate, in exercising that discretion, must have regard to the moneys available when the application for payment is made by the person to whom a costs certificate has been granted, it cannot be that a pecuniary liability is imposed upon the Commonwealth by the grant of a costs certificate. A costs certificate establishes the eligibility of the party to whom it is granted to apply for a payment, but the authorization for payment determines the amount to be paid.

The scheme of the Act is simple enough. The court, which has dealt with an appeal and which is familiar with the circumstances of the case, determines whether an applicant for a certificate has merits which make him eligible to apply for a payment under the Act. But the disposition of the funds appropriated by Parliament for the purpose is an administrative function which the Act entrusts to the Attorney-General or his delegate. When he is satisfied, having regard to the funds available and to the demands or anticipated demands on those funds, that a payment can be made in a given amount in respect of a particular costs certificate, he is to authorize the payment of that amount. The arrangements for the making of ex gratia payments are statutory in nature. The court is not called upon to ascertain, examine or enforce any antecedent right, nor to decide any issue of fact or law submitted to it for decision (cf. Queen Victoria Memorial Hospital v. Thornton [1] ). The granting of a costs certificate resolves no controversy and creates no pecuniary right enforceable against the Commonwealth (cf. Reg. v. Davison [2] ). Indeed, the Commonwealth need not be heard before a certificate is granted. The power conferred upon a court to grant a costs certificate is not judicial.

1. (1953) 87 C.L.R. 144, at p. 151. 2. (1954) 90 C.L.R. 353, at pp. 366 et seq.

That does not necessarily spell its invalidity. In Steele v. Defence Forces Retirement Benefits Board [3] it was said that a bare administrative function could not be committed to a court, but the Court added: "Such a function cannot be committed to a court so to speak in gross as opposed to a thing appurtenant to the performance of a principal judicial duty to which it is an accessory." The certification by a court of a party's eligibility for relief in meeting the costs incurred by him as the result of a judicial error corrected by that court on appeal is, in my opinion, a function truly appurtenant to the exercise by that court of its judicial power to determine the appeal and to award costs of the appeal. Therefore I would uphold the validity of those provisions of the Act relied on to support the grant of the costs certificates sought by the respondent to these appeals. The certificates applied for in this case should be granted, and they will cover the costs of obtaining the certificates, in accordance with ss. 3(1) and 4 of the Act.