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Tuesday, 18 May 1965


Senator WRIGHT (Tasmania) .- I listened with care to what the Minister said when closing the debate. When he reads his speech tomorrow in " Hansard " he will find that he was stating the position which existed before this clause was introduced. Section 116 of the Act, which is to be amended, provides -

The Court may make such orders as it thinks just as to the costs and expenses (including the expenses of witnesses) of proceedings before the Court. . . .

The Court is to have complete power to make such order as to costs and expenses as it thinks just. It can fix costs. In the proper cases, it can limit costs to one or two counsel or to whatever number it thinks appropriate. I contest that provision. If the purpose of the amendment was not to allow the costs of two counsel unless the Court certified that the case was proper for the attendance of two counsel, that would be in the ordinary way a proper provision to make. But under the terms of the amendment before us, the power of the Court to award just costs is to be subordinated to the Government's point of view in making regulations under the authority that is to be conferred by clause 14, which states that the Court is to have power to regulate any matters with respect to costs and expenses, including the expenses of witnesses, of proceedings before the Court. I believe this is wholly inappropriate and that the power now possessed by the Court should be relied upon.

I would add my support to the proposition that the Court should have much greater control of the costs that it allows. I am led to believe that some of the costs which accrue under orders of the Court are extravagant in the extreme. I believe that legal costs should come under a very clear and rigid review, not only in the arbitration jurisdiction, but in many other jurisdictions as well, because they are getting out of hand. To confine myself to the industrial field, I point out that without this amendment the Court is a repository of power now to make any order that it thinks is just. It is simply lacking in its duty in cases where it thinks that costs should be limited to one counsel, if it awards any party costs of two counsel.

In my view the amendment is entirely wrong because it is subordinating the Court's complete power to do justice to a regulation which any Minister for Labour and National Service may make from time to time according to his idea of the quantum of costs. The Court should be left with an unfettered discretion. If there is any failure on its part to limit costs and prevent them from becoming excessive, there are proper means of making submissions to the Court to see that the failure does not recur. But to subordinate the Court's jurisdiction to a Government's power by regulation to fix costs is quite wrong. Usually the judges of a superior court such as the Commonwealth Industrial Court would be given the power to make the rules with regard to costs. They would be published in the ordinary way and would come before us as rules that could be dealt with in each House of Parliament. There should not be a ministerial fixation of costs to which the Court's discretion is subordinated. For that reason I am opposed to the amendment suggested in clause 8.







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