Case: Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413
Outcome: referred to
There is, however, another transitional provision which deals directly with s 347 and 824 . Regulation 2.10 in Division 8 of Part 2 of Chapter 7 of the Regulations provides that: "The amendments of s 347 of the Pre-reform Act made by Schedule 1 to the WorkChoices Act do not apply in relation to an action or omission that occurred before the reform commencement." The amendments referred to are the amendments which were made to s 347 before it was renumbered s 824 and include the introduction of what is now s 824(2). It is clearly implicit in this regulation that, had it not been enacted, the amendments had the potential to apply to acts or omissions which occurred in a proceeding commenced before but not concluded on that date. The draftsman of the regulation no doubt had in mind the common law rule that statutory provisions dealing with the power to award costs are procedural in nature and, in the absence of contrary legislative intention, will operate retrospectively at least to the extent of applying to cases commenced before the amendment: see eg Galvin v Forests Commission of Victoria [1939] VR 284 at 297-8 ; Jackman v Dandenong Sewerage Authority (No 2) (1967) 20 LGRA 413 at 415. It is also implicit that the amendments were intended to apply to acts and omissions which occurred in any incomplete proceeding after 27 March 2006. 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.