Attard & Anor v Bridges Financial Services

APPLICANTS/RESPONDENT ON THE MOTION Mr A B Gotting of counsel

SOLICITOR Abbott Tout SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT/APPLICANTS ON THE MOTION Mr R Moore of counsel

SOLICITOR Coleman and Greig SYDNEY.

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 3 AUGUST 2001

Matter No. IRC6082 of 1998 PAUL ATTARD & ANOR v BRIDGES FINANCIAL SERVICES PTY LTD Application under s106 of the Industrial Relations Act 1996 JUDGMENT RE COSTS

1 These proceedings concern an application pursuant to s106 of the Industrial Relations Act 1996 ('the Act'). The personal applicant was a financial adviser who, through the second applicant, his private company, provided financial investment advice to persons who were clients of the respondent. The remuneration for those activities were fees paid to the second applicant, by which he was ostensibly employed and paid.

2 The claims advanced in the proceedings sought compensation in a substantial amount, initially unquantified, to reflect: (a) compensation which would fall due to Mr Attard were he, as was argued, an employee of the respondent, rather than the employee of his contracting company; (b) compensation to reflect the income the second applicant would have received had the respondent not, it was said unilaterally, altered commission and other rates of remuneration to the detriment of the applicants; and (c) an amount to compensate for the deprivation of the opportunity to sell the applicant's "business", that is the developed income stream, to another adviser.

3 On 6 December 2000 I delivered judgment, the substantial effect of which was to grant to the applicants a payment in the sum of $255,867. This reflected the third item identified in paragraph 2(c) above, namely, compensation for the loss of the income stream.

4 On 22 December 2000 the applicants entered judgment, in terms which included an order in conformity with the judgment, that the respondent pay the applicants costs as agreed or as assessed.

5 On the same date an appeal was filed by the respondent against the judgment of 6 December.

6 On 25 January 2001 the respondent paid the judgment sum plus interest to the applicants.

7 On 15 March 2001, Mr S.J. Booth, the solicitor for the respondent, wrote to the first applicant referring to the costs issues and reserving the right to relist the matter before me to argue questions concerning the appropriate costs order.

8 On 15 March Mr Booth also wrote to Abbott Tout, solicitors for the applicants, suggesting that the applicants' failure in relation to two of the three main issues in the proceedings, issues which occupied a substantial part of the 8 hearing days as well as preparation, may justify the applicants receiving less than full costs on a party/party basis.

9 On 21 March the parties reached agreement with respect to the settlement of the appeal but could not agree on costs.

10 On 18 April the respondent filed and served a notice of motion in the original proceedings seeking an order that costs be assessed with the applicants to recover one-third of the applicants' party/party costs. It also sought costs on the motion.

11 On the hearing of the motion essentially three issues arose: (i) Whether the Commission in Court Session was functus officio in that having indicated by judgment the order as to costs which was intended to be made and, that order having been formally entered, whether the court had power to revisit the question; and (ii) If the court did possess such power, should the power be exercised in accordance with the provisions of r.203(1) of the Commission's rules, which provides: The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings . or rather r.151, Minutes of Judgment or Order, which empowers the correction of a mistake occasioned by an accidental slip or omission (the "slip" rule). Rule 151(1) provides: 151(1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.

(iii) Finally whether, in the event the Commission possesses power to make such an order, the court should exercise its discretion in favour of the respondent. 12 Mr Moore of counsel for the applicant on the motion, the respondent in the primary proceedings, submitted that the court was not functus. He cited in aid three judgments of members of the Commission in which the issue of costs had been dealt with subsequently to the giving of judgment. Two of those, which I need not detail, dealt with the resolution of an application for an order for costs in circumstances where the judgment on the merits did not deal at all with the issue. In my opinion, any judgment dealing with an issue of that kind, cannot be authority for the resolution of the issues now before this court. The third judgment referred to by Mr Moore was that of Marks J in Moray Vincent v Merrill Lynch (Australia) Pty Ltd, Unreported [2000] NSWIRComm 254, 13 December 2000. That case involved circumstances similar to the present matter. Marks J had delivered judgment on the merits in the course of which his Honour indicated that the successful applicant should have his costs as agreed or assessed: that is, the usual costs order. Although the judgment does not refer to the question whether judgment was formally entered in that matter, the unsuccessful respondent sought to obtain an order, subsequent to judgment, the effect of which would have been to ameliorate the originally intended order. I extract the following excerpts from the judgment of Marks J: I gave judgment in the proceedings on 8 September 2000. On that occasion I made brief reference to certain orders made in favour of the applicant including an order that the respondent pay the applicant's costs of the proceedings in an amount as agreed or in the absence of agreement as assessed. I handed down written reasons for judgment which apart from the making of the order made no reference to the question of costs.

I accept the submission of Mr Dixon SC who appeared for the respondent in support of the notice of motion that where it is appropriate to apply the slip rule, questions of whether a court is functus officio do not arise.

I should also make reference to s 163(1)(c) of the Act. This requires the Commission "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form." This requirement is qualified by s 163(2) which provides that the rules of evidence "and other formal procedures of a superior court of record" apply to this Court. I do not regard the provisions of s 163(2) as applying in the circumstances of these proceedings so as to diminish the requirement that I proceed according to equity, good conscience and the substantial merits of the case.

If my attention had been directed to the fact that even if the applicant had succeeded, the question of costs may have been contentious, I would have reserved costs. The circumstances in which judgment was delivered bear great similarity to the observations of Pickering J in Tak Ming Co , to which I have previously referred.

In my opinion justice demands that the respondent be given an opportunity of addressing the Court with respect to the appropriate order to be made as to costs in the substantial proceedings. Accordingly, I propose to apply the slip rule so as to permit this to occur.

13 The reference in these excerpts to the observations of Pickering J in Tak Ming Co concerned a decision of the Judicial Committee of the Privy Council in Tak Ming Co Ltd v. Yee Sang Metals Supplies Co (1973) 1 WLR 300. Again, I take the following excerpt from the judgment of Marks J: A Judge of the Supreme Court of Hong Kong, Pickering J delivered judgment in which his Honour had not awarded any sum for interest. Subsequently an application was made seeking the application of the slip rule to enable inclusion of an order for interest on the ground that the order had been accidentally omitted. In the course of applying the slip rule Pickering J said: A most important matter for me to consider is what I would have done at the time I gave judgment had this matter of interest been in my mind. After a lengthy trial, in the course of which both sides asked me to confine my decision to the issue of liability, and having written a long judgment which occasioned to me no small difficulty, my mind was on the issue of liability rather than upon any figures. But had I thought the matter through further, as I should have done, I am in no doubt whatever, having a very clear recollection of the case and at the evasiveness of Mr Cheng, witness for the second defendant company, that I would have made an award of interest. Unfortunately for the plaintiff firm, I did not read the lengthy judgment in court but handed it down so that the omission was not obvious to counsel for the plaintiff before I had left the court.

In dealing with an appeal from his Honour's decision the members of the Judicial Committee of the Privy Council said: On the basis of that explanation it can be said both that there was an accidental omission by the judge to order interest in his judgment of January 3, 1969, and that there was an accidental omission by counsel to ask for it. Under the slip rule an accidental omission by counsel can suffice to bring the rule into operation: In re Inchcape [1942] Ch 39, 399, per Morton J. (at 304).

14 The matter before Marks J involved one feature distinguishable from the present matter and that is upon the hearing of this motion no proposition was advanced, by way of evidence or submission, that there had been any accidental slip or omission by counsel, in particular for the respondent, in failing to raise the issue of costs in the primary proceedings.

15 It is also worthy of note that so far as I can tell from the record of proceedings, without assistance, no submissions were made by either side on the matter of costs. It was, however, a claim in the summons for relief.

16 The relevant facts then are that the judgment was reserved in the present matter without any address on the issue of costs but the court proceeded to decide that issue nevertheless. That decision was a deliberate act on my part. Can it, in any sense, be encompassed within the concept of an accidental slip or omission?

17 Mr Gotting of counsel for the applicants has submitted that there is no power in the court to revisit the question of costs. Reference was made to the judgments in Bailey v Marinoff (1971) 125 CLR 529 which included the judgment of Barwick CJ to this effect (at 530): Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

18 Bailey v Marinoff was applied by the High Court in DJL v Central Authority (2000) 170 ALR 659. It was submitted that there is in the present matter no inherent power, no express power and no basis to imply any power under the statutory scheme to conflict with that line of authority.

19 It was also submitted by Mr Gotting that there was no mistake involved. Mr Gotting also contested the proposition that the merits would justify an order in favour of the respondent on the matter of costs. He disputed the proposition that the issues in respect of which the applicants failed to succeed could apportion one-third of the costs in the way sought by the respondent.

Conclusions 20 Section 181(1) of the Act provides: (1) Subject to the rules of the Commission and any other Act or law:

(b) costs are in the discretion of the Commission; and

(c) the Commission may determine by whom and to what extent costs are to be paid; and

(d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. Accordingly, there is no issue that the power to award costs is discretionary, although the discretion involved is one which must be exercised judicially. In considering the alteration of the earlier allocation of costs to the applicants, the exercise of the power conferred by s.181 is not the primary issue; the issue is whether it is too late to make any alteration one might otherwise be disposed to make.

21 While, this case bears a marked similarity to the circumstances before Marks J in Moray Vincent v Merrill Lynch, the one discernible and major difference is the fact that here judgment had been entered prior to the respondent's motion relating to costs. It is thus necessary to consider both the scope and application of the slip rule and whether it is applicable in the circumstances of this case. The application of the slip rule was considered by O'Keefe AJA (with whom Handley JA agreed, Fitzgerald JA to like effect for different reasons) in Sakr v Mercantile Mutual Insurance Limited Unreported, [2000] NSWCA 266, 29 September 2000 an appeal from the District Court of New South Wales. The appellant had been the subject of an award of damages in an amount less than that which had previously been the subject of a higher, prior award by an arbitrator. That earlier determination by the arbitrator caused the provisions of Part 39A of the District Court Rules to be applicable, which gave the defendant a right to costs. The trial judge was not informed of the earlier arbitration and an order for costs in favour of the plaintiff was made, as agreed or assessed. The defendant subsequently realised it had failed to draw the judge's attention to the prior determination and requested a rehearing in relation to the order for costs. Upon that rehearing an order for the payment of the costs of the defendant in the District Court proceedings was made against the plaintiff. It was that order which was the subject of the appeal and occasioned a consideration of the application of the slip rule. The following references are sourced in the judgment of O'Keefe AJA.

22 In the Commonwealth v McCormack (1984) 155 CLR 273 an order of the High Court on appeal had been to the effect that the Commonwealth was entitled to retain $75,000 it had withheld from moneys due to Mr McCormack in relation to the acquisition of land by the Commonwealth. Unbeknown to the High Court at the time those orders were made, and indeed to the full court of the Federal Court from which the appeal had been taken, the Commonwealth had earlier paid $75,000 plus interest to Mr McCormack. The Commonwealth sought a variation of the order to achieve a repayment of the money sum it had earlier paid to Mr McCormack. The High Court said: In the present case, this Court had jurisdiction when it dismissed the appeal from the judgment of the Full Court of the Federal Court in Mr. McCormack's action, to make an order for the repayment of the amount paid in satisfaction of the Supreme Court's judgment before that judgment was reversed.

The omission of a repayment order from the order dismissing the appeal is due entirely to the failure of the Commonwealth to instruct counsel to inform the court of the circumstances which made such an order necessary. If the matter had been raised on the hearing of the appeals, such an order would have been made as of course for the reason that, without a repayment order made by one of the courts having jurisdiction to make it, the appeals to the Federal Court and to this Court would be nugatory. The Commonwealth would remain deprived of the money which it had paid in obedience to the judgment of the Supreme Court which the Federal Court and this Court have held to be erroneous.

Whether or not it is necessary to invoke the slip rule when an application is made for an order to give effect to the judgment of the Court, there is jurisdiction to make an appropriate order under that rule to remedy the situation which has arisen as a result of oversight by a party's legal representative notwithstanding the fact that the formal orders have been taken out: see L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council [No 2] ((1982) 151 CLR 590). Such an order should be made on the present notice of motion to give effect to the judgment which the Court has delivered and to accord the right of restitutio in integrum to the Commonwealth.

23 In L. Shaddock & Associates Pty Ltd v Parramatta City Council [No.2] (1982) 151 CLR 590 Waddell J in the Supreme Court of New South Wales had dismissed proceedings seeking damages from the Council in relation to loss sustained by the plaintiff by reason of their reliance on erroneous information supplied to them innocently but negligently by the Council. On appeal to the Court of Appeal the decision at trial was affirmed. A further appeal to the High Court was upheld and an order was made allowing the appeal and giving judgment for the plaintiffs in the sum of $173,938 with costs. No order was sought in the notice of appeal for the payment of interest between the date on which Waddell J had given judgment and final judgment in the successful appeal. The High Court said: The matter was not adverted to in argument on the appeal to this Court nor in the reasons for judgment published by the justices who comprised the Court. The undisputed evidence on the present application is that the failure to advert to the matter in argument was an accidental omission on the part of counsel.

The applicants now apply, on motion, for an order pursuant to the "slip rule" (O. 29, r.11) that there be included in the orders of this Court pronounced on 28 October 1981 . . . We have no doubt that, if the matter had been adverted to in this Court and this Court possessed power to make such an award of interest, it would have made it. After considering the power to order the payment of interest, the judgment continues: It follows from the foregoing that, but for the inadvertence of counsel for the applicants, this Court would have made provision, in the substituted judgment of Waddell J., for interest on the damages in respect of the relevant period. We turn to a consideration of the question whether it is competent for the Court to make good the omission on the present application. Order 29, r. 11 is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court "at any time to correct an error in a decree or order arising from a slip or accidental omission" (see Milson v. Carter ([1893] A.C. 638 at p.640). In terms, the rule provides, inter alia, that "an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons". The rule extends to authorize an omission resulting from the inadvertence of a party's legal representative (see Fritz v. Hobson ((1880) 14 Ch.D. 542 at pp.561-562); Chessum & Sons v. Gordon ([1901] 1 KB 694 at p.698); In re Inchcape (Earl) ([1942] Ch.394, at pp.397-398); Coppins v. Helmers & Brambles Constructions Pty Ltd. ([1969] 2 NSWLR 279 at pp.281-282); Tak Ming Co. Ltd. v. Yee Sang Metal Supplies Co. ([1973] 1 WLR 300 at p.304; [1973] 1 All ER 569 at p.571). This is so, regardless of whether the order has been drawn up, passed and entered (see Milson v Carter ([1893] AC at p.640); Fritz v Hobson ((1880) 14 Ch.D. at p.560).

24 In the course of referring to the judgment of the High Court in Whitlock v. Brew (1968) 118 CLR 445 and, in particular, the dissenting view of Kitto J., the court said: It appears to us that the reason for his Honour's conclusion was that, in the circumstances of the particular case, he considered that the Full Court's order had properly reflected that Court's intention. In that regard, it is important to note that there was no evidence in Whitlock's case, as there is in the present application, that the failure to apply for interest was the result of accident or inadvertence on the part of counsel (see [1968] V.R., at p.506). On the other hand, if there be implicit in the judgment of Kitto J. the view that the slip rule should be given a narrower scope than that which we would give it, we consider that the subsequent decision in Tak Ming ([1973] 1 WLR 300; [1973] 1 All ER 569) affords strong support for the view we now take.

25 See also Barrell Insurances Pty Ltd v. Pennant Hills Restaurants Pty Ltd (1983) 49 ALR 384 where Gibbs CJ (Wilson and Brennan JJ agreeing) said: In this case there was clearly a slip. The parties did not advert to the consequences in costs of the final order made by this court in relation to the proceedings before Mr Justice Yeldham. Yet Barrell's notice of cross-appeal asked for an order allowing Barrell's cross-appeal with costs, in lieu of the Court of Appeal's order. Clearly, the slip is one which this court has power to correct. The order has not been taken out. It is unnecessary to refer at length to the principles which have recently been stated in L Shaddock & Associates v Parramatta City Council (1982) which is reported in 56 ALJR 875 and 43 ALR 473.

26 The power of the High Court to correct an accidental slip or omission after an order is taken out was said in Shaddock to depend upon the inherent jurisdiction of the court as reflected in Order 29 r.11 of the High Court Rules, which permits that court to "at any time correct an error in a decree or order arising from a slip or accidental omission". An accidental omission was defined as a matter which, had it been raised on the hearing of the appeals, would have caused such an order to have been made as a matter of course (The Commonwealth v McCormack (ibid at p.277). See also in this respect the judgment of McHugh JA in Storey and Keers Pty Ltd v. Johnston (1987) 9 NSWLR 446 at 449, 452, 453).

27 Bailey v Marinoff concerned events in an appeal by Marinoff to the Court of Appeal. The facts of the matter and the resolution of the issue is conveniently set out in the judgment of Menzies J (with whom Barwick CJ agreed as did, in effect, Owen and Walsh JJ, Gibbs J dissenting). Menzies J said: The present respondent brought an appeal to the Court of Appeal of the Supreme Court of New South Wales. The present appellant was the respondent to that appeal. The appeal was determined by reason of the respondent's non-compliance with the following order made by the Court of Appeal on 10th February 1970: It is ordered that the Appellant file and serve the appeal books herein on or before the 31st day of March 1970 and it is further ordered that if the Appellant does not file and serve the appeal books herein on or before the 31st day of March 1970 the appeal is to stand dismissed for want of prosecution and it is further ordered that the costs of this motion be costs in the appeal of the Respondent.

This order was signed and sealed on 5th March 1970. Appeal books were filed on 31st March but were not served until 6th April. The appeal, therefore, in accordance with the order that had been made, stood dismissed.

Notwithstanding this dismissal the Court of Appeal ((1970) 92 WN (NSW) 280), on 28th September 1970, upon the application of the respondent, ordered that the filing and service of the appeal books in fact effected should be deemed a sufficient compliance with the order of 10th February 1970. It is against this order that an appeal has now been brought to this Court on the footing that the Court of Appeal had no power to make it, the appeal having been concluded six months before the order was made.

This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognize the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end. If the orders made in the cases relied upon for the respondent, viz. Thynne v. Thynne ([1955] p.272 and Pearlman (Veneers) S.A. (Pty.) Ltd. v Bernhard Bartels ([1954] 1 WLR 1457), were orders made to recall judgments after the litigation before a court had been concluded, they would be, I think, no more than instances of hard cases making bad law. As I read the judgments, however, there is clear recognition that a court cannot, by a further order, get rid of the operative and substantive part of its judgment. Each case was decided on the footing that something less was being effected by the order made. (Ibid, at p.531-532)

28 As I have noted earlier, the principle adopted in Bailey v Marinoff was applied by the High Court in DJL v Central Authority (ibid), an appeal from the Full Court of the Family Court of Australia. The only relevant aspect for present purposes is the consideration of whether or not the Family Court had a power to set aside one of its own orders in an earlier appeal proceeding between the parties, which order had been perfected by entry in the formal orders of the court. The basis upon which the matter went forward in the High Court is recorded in the judgment of the majority (Gleeson CJ, McHugh Gummow and Hayne JJ) as follows: By majority (Finn, Kay and May JJ; Nicholson CJ, Moore J dissenting), the Full Court dismissed the application on 9 February 1999 ((1999) 24 Fam LR 555). It should be noted that the application proceeded on the footing, which is not challenged, that the order sought to be set aside, that of the Full Court dismissing the appeal, was a final order and had been perfected. No question arose in the Family Court and none arises here with respect to interlocutory orders made by the Full Court or the revision of its final orders after they have been pronounced but before they have been entered. It has been assumed, no doubt correctly, both in the Full Court and in this court, that the Family Court has power to act in that way before the entry of its orders.

29 As to the power of the Family Court to reopen its orders, after referring to the relevant statutory provision in the Family Law Act, the judgment continued: The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction" ( Grassby v R (1989) 168 CLR 1 at 16; 87 ALR 618. See also Pelechoswki v Registrar, Court of Appeal (1999) 162 ALR 336 at 347-8; 73 ALJR 687 at 695-6). The Family Court is a statutory court, being a federal court created by the parliament within the meaning of s71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred" ( Parsons v Martin (1984) 5 FCR 235 at 241; 58 ALR 395. The judgment was that of Bowen CJ, Northrop and Toohey JJ). It would be inaccurate to use the term "inherent jurisdiction" here ( R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7) and the term should be avoided as an identification of the incidental and necessary power of a statutory court ( Parsons v Martin (1984) 5 FCR 235 at 241; 58 ALR 395).

The central issue in the present litigation thus is whether the creation of the Family Court as a superior court of record carried with it the statutory power exercised by the Full Court in the manner sought by the application to "reopen" of 17 August 1998. . . .

The common law courts, as superior courts of record, had "full power to rehear or review a case until judgment [was] drawn up, passed, and entered". That statement, with citation of supporting authority, was made by Starke J in Texas Co. (Australasia) Ltd v FCT (1940) 63 CLR 382 at 457). Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court ( L Shaddock & Associates Pty Ltd v Parramatta City Council (No2) (1982) 151 CLR 490 at 594-5; 43 ALR 437). An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce ( Ainsworth v Wilding [1896] 1 Ch 673 at 678-9; Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR (Pt 1) 642 at 669. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties ( Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders ( CH Giles & Co Ltd v Morris [1972] 1 WLR 307 at 313; [1972] 1 All ER 960 at 965).

30 Later, after citing the passage by Barwick CJ in Bailey v Marinoff which I have set out (see par.17) and other relevant authorities, the High Court said:

The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as "a superior court of record". Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.

A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution. Rather, the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this court of its power conferred by s73 of the Constitution.

We would answer in the negative what the Full Court sought to isolate as the important question of law or public interest as to whether the Full Court had the power to reopen its final orders after their entry.

31 As I read the cases, the feature which relevantly distinguishes Bailey v Marinoff and DJL v Central Authority from the line of authority in the slip rule cases, is the fact of formal entry of orders (DJL) or the regular conclusion of proceedings (Bailey v Marinoff), so that the matter is no longer before the court. There is, in my opinion, no relevant distinction between the power of this Commission in Court Session, as a statutory court, and the Family Court to correct or alter any order earlier made and formally entered. Further, having regard to the position adopted, properly, by the applicant on the motion, to the effect that there was no slip or omission in not seeking costs prior to judgment, there was no relevant feature which could come within the scope of the slip rule.

32 I consider that the court having turned its mind to the matter of costs, although not having been addressed on the matter and, importantly, judgment having been entered in terms which included that order for costs, the matter is now beyond a reconsideration. 33 I also express the view that were there power to make an order for costs in favour of the respondent, I would consider such an order inappropriate on the facts of this case. The matters in respect of which the applicants failed were raised directly as the result of the respondent's conduct in referring to the legal relationship between the applicants and the respondent variously in different contexts as employees and, alternatively, as independent contractors. That fact seems to me to justify the applicants having pursued what in effect were alternative heads of claim which depended upon the conclusions to which the court would come on the facts of the matter. That position having been created by the respondent's conduct leads me to consider the applicants should not have to bear the costs in that respect. The substantial success achieved by the applicants entitles them to a full party/party costs order. 34 I order that the motion be dismissed, with costs as agreed or as assessed to the applicants, the respondents on the motion.

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