Re Roy Anthony Jenkins v Jennifer Ruth Gleeson [1983] FCA 29; (1983) 67 FLR 469 (1 March 1983)

FEDERAL COURT OF AUSTRALIA

Re: ROY ANTHONY JENKINS
And: JENNIFER RUTH GLEESON [1983] FCA 29; (1983) 67 FLR 469
No. ACT G10 of 1981
Federal Proceedings (Costs) Act 1981, s.6 - Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn J.(1)

CATCHWORDS

Federal Proceedings (Costs) Act 1981, s.6 - whether appeal succeeded "on a question of law" - decision involving questions of fact and also a question of law.

Costs - Application for costs certificate - Whether appeal succeeded on a question of law - Several rationes decidendi - Whether one ratio may be selected as decisive - Federal Proceedings (Costs) Act 1981 (Cth), ss 6, 12. The unsuccessful respondent to this appeal applied for a costs certificate under s. 6 of the Federal Proceedings (Costs) Act 1981 (Cth) which provides as far as relevant:
"s. 6(1) Subject to this Act, where a Federal appeal succeeds on a question
of law, the court . . . may grant to the respondent a costs certificate . . . ".

Held, that the respondent is entitled to a certificate because the appeal succeeded on both a question of law and a question of fact; and if the reasoning by which a court comes to its decision to allow an appeal requires at any stage the determination of a question of law which was disputed before it, then the appeal can be said to have succeeded on a question of law for the purposes of s. 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

HEARING

1983, February 16; March 1. 1:3:1983
APPLICATION

Application for a costs certificate under s. 6 of the Federal Proceedings (Costs) Act 1981 (Cth).

L. Hendy, for the respondent.

Cur. adv. vult.

Solicitors for the applicant/respondent: Higgins.
E.F.F.

ORDER

A costs certificate be issued under s.6(3) of the Act. Application granted.

DECISION

The unsuccessful respondent to this appeal applies for a costs certificate under s.6 of the Federal Proceedings (Costs) Act 1981. I have jurisdiction to hear and determine the application by virtue of s.12 of the Act. My decision must turn on whether it was "on a question of law" that the appeal succeeded.

The appellant and the respondent are both officers of the Public Service, the appellant being the respondent's superior. The appellant, acting under an order made by a Deputy Public Service Arbitrator under the Public Service Arbitration Act 1920, made a decision to stand down the respondent from the Public Service. Kelly J. in the Supreme Court of the Australian Capital Territory made an order of certiorari to quash the decision. He found as a fact that the respondent was stood down for a period of 9 working days. He held that, at least, the respondent "was entitled to be heard on the length of period of stand down that might be ordered against her". He found it unnecessary to decide whether she was entitled to be heard on the right of the appellant to stand her down in the circumstances. The learned judge's reasons for judgment then continued thus:
"In these circumstances I find, as I think I am bound to do, following Donaldson's case (supra) and Dixon's case (supra) that there was a denial of natural justice to the Prosecutrix".
Notwithstanding that the learned judge used the word "find" I think that he was really making a decision of law, namely that the respondent was, in the circumstances, entitled to be treated in a certain way; the finding of fact, that she was not so treated, was assumed for the purpose of the proposition which his Honour stated. That the proposition I have quoted was a proposition of law, not of fact, further appears from his Honour's reference to two recent authorities.

In this Court, the first step in the reasoning of Fox J. (in which I concurred) was, first, to set aside the finding of the learned judge that the period of nine days was stipulated by the appellant when he issued the stand down order. Referring to that finding, Fox J. said
"This does not seem to me to be a safe, or, indeed, a permissible inference",
and later he said
"There is no evidence to the effect that the stand down was for a time certain".
The latter of these two passages was, I think, a statement as to the absence of explicit evidence, and not, in itself, a statement that there was no evidence on which such inference could be based; nevertheless, I am in no doubt that Fox J., in all that he said on this point, meant that there was, in law, no such evidence. That decision was therefore a decision of law.

The second step in the reasoning of Fox J. was expressed by him as follows:
"Assuming that the rules of natural justice, and in particular the rule

expressed as audi alteram partem, were applicable, it seems to me that the respondent was given adequate opportunity to represent any case she had as to why she should not be stood down at all, or, for that matter as to why she should only be stood down for a limited period. The rule of law does not require a formal hearing, or any particular form of words. What is necessary depends upon the circumstances of each case. If she had wanted to obtain further legal advice, or legal representation, she could easily have made an appropriate request.
The evidence shows clearly that refusal of the order she was given would in all probability be followed by her being stood down. It was, I think, a lawful order. Whether in the circumstances she acted wisely, or sensibly, is not for me to say. I am however quite satisfied that she was not denied a hearing; on the contrary, by clear implication, she was on several occasions invited to say what she wished, as to any reason affecting her why she should not be stood down."
This is clearly a decision of fact, as an inference from primary facts. It is not a decision of law, that there was no evidence to support the trial judge's finding.

It will be seen that either the first step or the second step in the reasoning of Fox J. would have been sufficient to determine the appeal. Both steps must, however, be taken as the ratio decidendi of the case: where more than one ground of a court's decision is given by the court itself, it is a classical error for another person (not a higher court) to select one ground and insist on that one as decisive. Since the first of the two steps involved a decision of law, I think it possible to say that the appeal succeeded on a question of law, notwithstanding that the second step was only a decision of fact.

In my opinion, if the reasoning by which a court comes to its decision to allow an appeal requires at any stage the determination of a question of law which was disputed before it, then the appeal can be said to have succeeded on a question of law for the purposes of s.6 of the Federal Proceedings (Costs) Act 1981. On this ground I hold that the respondent is entitled to a certificate.

I am fortified in this view by the fact that Keely J., who agreed in the result, clearly held that as a matter of law there was no evidence to support the finding that the respondent had been denied natural justice.

The application is granted and a certificate will be issued under s.6(3) of the Act.