Case: Shanahan v Australian Industrial Relations Commission (No 3) [2007] FCAFC 53
Outcome: referred to
Regulation 2.10, on the other hand, does, in my view, make it clear that s 824 governs the making (or the not making) of costs orders in relation to any part of an incomplete proceeding which occurred after 27 March 2006. The Full Court so held in Shanahan v Australian Industrial Relations Commission (No 3) [2007] FCAFC 53. In that case the applicant commenced judicial review proceedings seeking to impugn an order of the Australian Industrial Relations Commission. The proceeding was commenced in the High Court in November 2005. It was remitted to this Court on 1 April 2006 and was determined later that year. The Court referred to reg 2.10 and observed, obiter, that, although the respondent's application for costs fell to be determined under s 347 because the relevant event predated 27 March 2006, this was not to "deny the operation of s 824(2) were it to be the case that by an "unreasonable act or omission" of the applicant occurring on or after 27 March 2006, the second respondent was caused to incur costs in connection with the proceeding." In such circumstances the Court could order the applicant to pay "some or all of those costs": at [19]. 21 The power of the Court to award costs in a proceeding is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). Absent the grant of such a power the Court could not order the payment of costs by or to any party: see Garnett v Bradley (1878) 3 App Cas 944 at 962. Section 347(1) placed a constraint on the power conferred by s 43 of the Federal Court of Australia Act . It was not the source of the Court's power to award costs. Rather, it regulated the exercise of that power in matters arising under the Act . I can find no support in the authorities for the contention that a statutory power to award costs is to be treated as procedural but that statutory inhibitions on the exercise of that power are to be regarded as conferring substantive rights or privileges. In Shanahan the Full Court was inclined to regard s 347(1) as being "procedural in nature": at [19]. Jackman involved the substitution of one formula for another to guide the calculation of costs. In Galvin there was reference (at 297) to "[t]wo cases of high authority [which decided] that legislation giving or regulating a power to award costs is retrospective, in that it affects not substantive rights but merely procedure." (Emphasis added). Those two cases were Freeman v Moyes (1834) 1 Ad &amp; El 338 and Wright v Hale (1860) 30 LJ (Ex) 40. In Freeman the statutory change which occurred between the commencement of the proceeding and the hearing directed that particular parties be liable to pay costs subject to a contrary order by the Court. In Wright an existing entitlement to recover costs was removed where the plaintiff recovered less than a prescribed sum and if the trial judge certified that the action "was not fit to be brought.". All of these cases were concerned with statutory provisions which regulated the exercise of the Court's power to award costs. In each case the amended provision was held applicable to a proceeding which had commenced before it came into force. Section 347(1) was such a provision.