Victoria v Australian Building Construction Employees' & Builders Labourers' Federation (No 2) [1982] HCA 57; (1982) 152 CLR 179 (12 October 1982)

HIGH COURT OF AUSTRALIA

VICTORIA v. AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES' AND BUILDERS LABOURERS' FEDERATION (No. 2) [1982] HCA 57; (1982) 152 CLR 179

Constitutional Law (Cth)

High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4) and Brennan(5) JJ.

CATCHWORDS

Constitutional Law (Cth) - Judicial power of the Commonwealth - Federal appeal - Successful appeal on question of law - Costs certificate - Certificate addressed by court to Attorney-General - Power of Attorney-General to authorize payment - May authorize - Whether Attorney-General's power discretionary - Validity of conferral of power to grant certificate - Whether judicial function - The Constitution (63 & 64 Vict. c. 12), ss. 51 (xxxix), 71 - Federal Proceedings (Costs) Act 1981 (Cth) ss. 6,* 16.+(1) *Section 6(1) and (3) of the Federal Proceedings (Costs) Act 1981 (Cth) provided: "(1) 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. . . . (3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of - (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to &which a costs certificate granted under section 7 relates." +Section 16 provided: "(1) A person who has been granted a costs certificate (not being a certificate that has been vacated under section 15) may apply to the Attorney-General for payment in accordance with this Act in respect of the certificate. (2) 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."

HEARING

1982, September 17; October 12. 12:10:1982
MOTION.

DECISION

October 12.
The following written reasons for judgment were delivered: -
GIBBS C.J. The question for decision in these appeals is whether the Court (Costs) Act 1981 (Cth) to the unsuccessful respondent. That depends, in the first place, on whether s. 6 of that Act is valid. The validity of s. 6, however, depends on the effect of s. 16. Section 6 provides, inter alia:
"(1) 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.
. . .
(3) The certificate that may be granted under sub-section (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of -
(a) the costs incurred by the respondent in relation to the appeal; and
(b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates."

Section 7 provides for the grant of a costs certificate to an appellant in certain cases, s. 8 provides for the grant of costs certificates where a new trial has been ordered in certain circumstances, s. 9 deals with the grant of costs certificates in federal appeals in certain family law proceedings and s. 10 deals with costs certificates in the case of certain proceedings that have become abortive or the hearing of which has been discontinued. It may be observed that in ss. 8 and 10 it is provided that the certificate that may be granted is "a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party . . . in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party . . . in relation to" the new trial or proceedings. The expression "federal appeal" is defined by s. 3(1) to include, inter alia, certain appeals to the High Court, to the Federal Court and to the Family Court. Section 16 of the Act provides as follows:
"(1) A person who has been granted a costs certificate (not being a certificate that has been vacated under section 15) may apply to the Attorney-General for payment in accordance with this Act in respect of the

certificate.
(2) 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."

Section 17 provides that the Attorney-General shall not authorize a payment in respect of a costs certificate referred to in s. 15 (which provides that a costs certificate will be vacated in certain circumstances) unless he is satisfied, or is entitled under sub-s. (2) of that section to presume, that the certificate will not be vacated under that section. It is unnecessary to refer to the details of sub-ss. (2) and (3) of s. 17. Section 18 provides that the Attorney-General shall not authorize payment in respect of a costs certificate or costs certificates (other than a costs certificate granted under s. 10(2) or (3) in relation to an appeal or a sequence of appeals of an amount that, or amounts the sum of which, exceeds the amount that is the maximum amount prescribed in the schedule to the Act. Section 19 provides that payments under the Act shall be made out of moneys available under an appropriation made by the Parliament. (at p183)

2. If s. 16 gives the Attorney-General a discretion whether or not to act on a certificate, the provisions of the Act will be invalid. They would require this Court, the Federal Court of Australia and the Family Court to exercise a power that would not be a judicial power. It is of the essence of judicial power that the court exercising it shall give a decision that is binding and authoritative: Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at pp 366-367. . It is not an exercise of judicial power to make a recommendation which a Minister has a discretion to ignore. (at p183)

3. The Parliament may commit to a court functions which are not themselves exclusively judicial, but which form "incidents in the exercise of strictly judicial powers": Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144, at p 151. . The question whether a matter is incidental to the execution of a power within the meaning of s. 51(xxxix) is one of degree, but generally speaking a matter would not be incidental to the judicial power if it required a court to make a decision which was subordinate to the view of the executive. Although it would be an incident in the exercise of the judicial power to give a certificate which had the result of determining an entitlement to costs, it would not be an incident in the exercise of a power which is strictly judicial to give a certificate which is merely advisory in its nature, and which determines nothing. (at p183)

4. Clearly in accordance with ordinary rules of interpretation the statute should, if possible, be given a construction that will render it valid rather than one that will result in invalidity. The word "may" is ambiguous, and there are some cases in which it has been decided that it can have a compulsory force - see Maxwell on the Interpretation of Statutes, 12th ed. (1969), p. 234. There is no difficulty in concluding that s. 16 does not confer on the Attorney-General a discretion to refuse to authorize payment, but obliges him to do so in accordance with the Act. Once a certificate is given under s. 6, the duty of the Attorney-General is to satisfy himself that the provisions of s. 17 do not forbid him to authorize a payment, that the limits provided by s. 18 are observed, and that moneys are available under an appropriation; if so satisfied, he must authorize the payment. He has no general discretion to refuse his authorization. (at p183)

5. On this view of the construction of s. 16, the section in its relation to s. 6, and s. 6 itself, are valid enactments. It is unnecessary to express an opinion as to the effect or validity of the different provisions of ss. 8 and 10. (at p184)

6. It was not disputed that in the circumstances of this case the Court should grant the certificates sought, if it had power to do so. For the reasons which I have expressed above I was of the opinion that the certificates should be granted, and accordingly joined in the order made by the Court to grant the certificates. (at p184)

MASON J. For the reasons given by the Chief Justice I joined in the order made by the Court to grant the certificates. (at p184)

MURPHY J. Section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) is presumed valid. The Solicitor-General advanced an interpretation of the section which is beneficial to litigants, in that it leaves no discretion (or at least no discretion which could impair its validity) in the Attorney-General. That interpretation should be adopted, and so read there is no reason to doubt validity. I do not propose to consider whether s. 6 would be valid if it left any discretion in the Attorney-General. It is not an essential of a judicial order that no discretion be left to those to whom it is directed. For example, mandamus which requires a judicial or executive officer to redetermine generally does not direct the officer to come to a particular determination; it is left to his discretion, providing it is made consistently with the decision of the court issuing mandamus. (at p184)

2. The making of recommendations is not an exercise of the federal judicial power, although recommendations are often made gratuitously in the course of reasons for judgment. I will leave until it arises the question whether the granting of a certificate under other sections is a mere recommendation or is a proper incident of judicial power. (at p184)

3. These are my reasons for holding that the certificates should be granted. (at p184)

WILSON J. 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. (at p185)

2. It was therefore undoubtedly within the power of the Court to grant the certificates and I concurred in the decision to that end. (at p185)

BRENNAN J. 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. (at p185)

2. 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." (at p185)

3. 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. (at p186)

4. 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. (at p186)

5. 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 [1953] HCA 11; (1953) 87 CLR 144, at p 151 ). The granting of a costs certificate resolves no controversy and creates no pecuniary right enforceable against the Commonwealth (cf. Reg. v. Davison (1954) 90 CLR 353, at pp 366 et seq ). 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. (at p186)

6. That does not necessarily spell its invalidity. In Steele v. Defence Forces Retirement Benefits Board [1955] HCA 34; (1955) 92 CLR 177, at pp 186, 187 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. (at p187)

ORDER

Order that there be granted to the respondent in each case a costs certificate pursuant to s. 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of each appeal.