Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor

PARTIES: FOURTH APPELLANT Timothy Bosher

FIFTH APPELLANT Timothy Ford

FIRST RESPONDENT William McCausland

SECOND RESPONDENT Yvonne McCausland

CORAM: Walton J Acting President; Boland J; Backman J

Costs - Appeal - Power to re-open appeal proceedings - Whether further material should be admitted in relation to the question of costs of the appeal where costs not finally determined - Implications for costs orders of events occurring after final orders made in relation to the substantive appeal - Whether costs of the appeal should be payable forthwith CATCHWORDS: Appeal - Costs - Power to re-open appeal proceedings - Whether further material should be admitted in relation to the question of costs of the appeal where costs not finally determined - Implications for costs orders of events occurring after final orders made in relation to the substantive appeal - Whether costs of the appeal should be payable forthwith

LEGISLATION CITED: Industrial Relations Act ss 152, 170, 170(1), 181, 190A, 190A(1)(d), 192 Industrial Relations Commission Rules 1996 r 148, r 150, r 151, r 203(1), r 203(2), r 211

Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 13) (Unreported, Federal Court of Australia, Lockhart, Lindgren and Tamberlin JJ, 17 August 1995) Asia Pacific Telecommunications Limited v Optus Networks Pty. Limited [2007] NSWSC 350 Bailey v Marinoff (1971) 125 CLR 529 Baramon Sales Pty Ltd v Goodman Fielder Mills Limited [2001] FCA 1819 Charlie Brown Pty Limited and anor v Green and ors (Unreported, Supreme Court of New South Wales, McLelland CJ, 3 July 1995) Day v Smidmore (No 3) (2006) 149 IR 408 DJL v The Central Authority (2000) 201 CLR 226 Fiduciary Ltd and another v Morningstar Research Pty Ltd and others (2002) 55 NSWLR 1 Gamser v The Nominal Defendant (1977) 136 CLR 145 Hollingsworth v Commissioner of Police (2007) 160 IR 456 Hollingsworth v Industrial Court of NSW & Anor [2007] NSWCA 209 Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 CASES CITED: Leidreiter v Rae [2006] NSWSC 1043 Nagle (T/as WD & JL Nagle & Sons) v Tilburg & anor (1993) 51 IR 8 Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78 Peter Robert Horrobin v Australia and New Zealand Banking Group Ltd (Unreported, Court of Appeal of New South Wales, Priestley JA, 6 June 1997) Richards v Kadian & Ors (No 2) [2005] NSWCA 373 Selman v Sweet (No 2) [2003] NSWIRComm 53 State Rail Authority of New South Wales v Codelfa Construction Proprietary Limited (1982) 150 CLR 29 Surfing Hardware International Holdings Pty Ltd v McCausland (No 5) (2007) 164 IR 220 Surfing Hardware International Holdings v McCausland (No.3) (2007) 161 IR 445 Thunderdome Racetiming and Scoring Pty Ltd and another v Dorian Industries Pty Ltd and another (1992) 36 FCR 297 UnitedGlobalCom Inc v McRann (No 2) (2004) 133 IR 21 Valda June Kerrison v New South Wales Technical and Further Education Commission [2007] NSWIRComm 140 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428

APPELLANTS Mr H J Dixon SC with Mr P Moorhouse of counsel and later Mr I M Neil SC with Mr P Moorhouse of counsel Solicitor: Mr G Robertson Harmers Workplace Lawyers LEGAL REPRESENTATIVES:

RESPONDENTS Mr P Newell of counsel and later Mr B D Hodgkinson SC with Ms K T Nomchong of counsel Solicitor: Mr G Dunstan Dunstan Legal

CORAM: WALTON J, Acting-President BOLAND J BACKMAN J

SURFING HARDWARE INTERNATIONAL HOLDINGS PTY LIMITED AND ORS v WILLIAM McCAUSLAND AND ANOR (NO 6)

Application by Surfing Hardware International Holdings Pty Limited for leave to appeal and appeal against a judgment of Justice Marks given on 14 July 2006 in Matter Nos. IRC 5174 of 2004 and IRC 4589 of 2005

1 This matter involves an unusual set of circumstances. The Full Bench has given its decision in appeal proceedings except in relation to the question of costs. The respondents have, by notice of motion, applied to the Full Bench to admit new evidence in the appeal, to make further submissions to support their claims regarding costs and to support the making of further orders relating to matters that were the subject of the appeal. The new evidence purportedly relates to alleged conduct by the appellants after the date of the judgment in the appeal. The appellants oppose the respondents' motion and have sought to strike it out. 2 The relevant appeal decision was Surfing Hardware International Holdings v McCausland (No.3) (2007) 161 IR 445, a decision given on 11 April 2007. In that decision the Full Bench upheld an appeal from Marks J by the appellants (Surfing Hardware International Holdings Pty Limited, SHI Holdings Pty Limited, Surf Hardware International Pty Limited, Timothy Bosher and Timothy Ford). Subject to certain confidentiality undertakings being proffered to the Court, the Full Bench set aside his Honour's decision and orders that the appellants' lawyers, Harmers Workplace Lawyers ("Harmers"), be restrained from continuing to represent their clients in the unfair contract proceedings before his Honour. Costs were reserved to be dealt with on the papers unless contended otherwise by either or both parties.

3 The orders made by the Full Bench on 11 April 2007 were in the following terms: (1) Leave to appeal is granted.

(2) Subject to the undertakings in Order (3) being acceptable to the Full Bench, the Decision and Orders of Marks J made on 14 July 2006 in Matter No. IRC 5174 of 2004 and Matter No. IRC 4589 of 2005 that Harmers Workplace Lawyers be restrained from continuing to represent the respondents in those proceedings, are set aside.

(3) Signed undertakings in the style of those proffered to the Full Bench in the stay proceedings but which relate only to the proceedings in Matter Nos IRC 5174 of 2004 and 4589 of 2005 shall be filed in the Industrial Registry. The Full Bench in Chambers shall consider such undertakings as to their acceptability. The parties shall be advised of the Full Bench's decision in this regard.

(4) In the event the signed undertakings are acceptable they shall be served upon the solicitors for the McCauslands within 24 hours of the parties being advised in accordance with Order (3).

(5) The stay granted by the Full Bench in its decision of 1 September 2006 is dissolved upon the Full Bench being advised that the directions in Order (4) have been complied with.

[72] On the question of costs at first instance and on appeal, the appellants are directed to provide short written submissions within 14 days of this decision being handed down. The respondents shall have a further 14 days to reply. Unless contended otherwise by either or both parties, the question of costs shall be dealt with on the papers. The undertakings referred to in the orders were duly provided to, and accepted by, the Full Bench.

4 On 31 May 2007, the respondents (William and Yvonne McCausland) filed a notice of motion in Matter No IRC 2876 of 2006 (the appeal proceedings) seeking, amongst other things, to re-open the proceedings to permit admission of further evidence and argument. The basis of the motion was said to be that the appellants had not provided a copy of undertakings for all of the persons who had worked on the matter. The respondents sought that the appeal be decided differently in accordance with the decision in Asia Pacific Telecommunications Limited v Optus Networks Pty. Limited [2007] NSWSC 350. In the alternative, the McCauslands sought an order that Harmers be restrained from acting in the substantive proceedings, that is, Matter Nos IRC 5174 of 2004 and 4589 of 2005 before Marks J. The essential basis of the motion was that Harmers had breached the confidentiality undertakings provided to the Court pursuant to orders made by the Full Bench in the appeal proceedings. 5 The appellants subsequently filed a strike out motion on 26 June 2007. Putting aside a number of procedural complications that were addressed in the Full Bench decision in Surfing Hardware International Holdings Pty Ltd v McCausland (No 5) (2007) 164 IR 220, the Full Bench in that decision decided it would deal initially with the appellants' strike out motion and the matter was fixed for hearing on 31 July 2007. 6 On 13 July 2007, Boland J, on delegation from the Full Bench, was advised by the respondents of an intention to make further amendments to their amended notice of motion seeking to re-open the appeal, in light of the termination by the appellants of Harmers' retainer in the first instance proceedings. Having regard to that indication, by consent the hearing listed for 31 July 2007 was vacated and the respondents were subjected to a timetable to file any notice of motion seeking further amendment to their amended notice of motion seeking that the appeal proceedings be re-opened.

7 On 31 July 2007 the respondents filed a notice of motion seeking leave to amend their amended notice of motion in the form of a proposed second amended notice of motion. On 9 August 2007 a revised proposed second amended notice of motion was provided to the Court and to the appellants. The further evidence that was sought to be admitted was set out in five affidavits of the respondents' solicitor.

8 On 10 August 2007, the appellants indicated at a directions hearing before Boland J, that they did not oppose the amendments sought to the respondents' amended notice of motion, but took the view that the second amended notice of motion was still an application to re-open the appeal proceedings and that in accordance with the Full Bench's decision of 29 June 2007 it remained appropriate to deal with the appellants' strike out application as a preliminary matter. That approach was accepted by the Court and by the respondents. By consent, revised directions were made which included: (3) The Appellants file and serve any amended Notice of Motion to replace the Notice of Motion filed on 26 June 2007 and any amended or further outline of submissions in support of the Notice of Motion filed on 26 June 2007 on or before 27 August 2007.

(4) The Respondents file and serve any outline of submissions in reply to the Appellants outline on or before 7 September 2007.

(5) The Appellants file and serve any outline of submissions in reply on or before 14 September 2007. …

(7) The Respondents' Second Amended Notice of Motion is stood over pending determination of the Appellant's threshold issue in accordance with the determination of the Full Bench made on 29 June 2007. 9 The McCauslands subsequently filed a second amended notice of motion on 13 August 2007 in which the following orders were sought: PART A 1. The costs in the appeal proceedings be awarded in favour of the Respondents.

2. Leave be granted in the appeal proceedings in this matter (the 'proceedings') to admit in relation to the question of costs further evidence, being the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007.

3. Leave be granted in the proceedings for the Respondents to make further submissions as to costs and for the Appellants to make any submissions in reply.

4. As necessary and appropriate, an Order that the decision given in this matter be reviewed in respect of the form of undertakings, which now ought to be given by Messrs Harmers and such further or consequential Orders as may arise from that review, including as to costs.

5. That the further consequential orders contain (a) An Order that Harmers Workplace Lawyers and its officers, agents and employees be restrained from communicating any material in their possession whatsoever to any legal representatives the Respondents or any of them may have now engaged or may in the future engage.

(b) An Order that so far as the Court has imposed a requirement for undertakings as to confidentiality or for any other purpose in relation to the substantive or appeal proceedings in this matter, Harmers Workplace Lawyers its officers agents and employees be required to maintain those undertakings to the Court at least until the substantive proceedings herein and any further or consequential proceedings between the parties are brought to finality.

(c) An Order that any officer, employee or agent of Harmers Workplace Lawyers who has been associated with any aspect of the proceedings so far as they touched on or referred to the existence of the confidential information held by the Court to be in Harmers' possession be restrained from having any communication with the Respondents and their employees officers or agents touching in any way on these proceedings. PART B Further or in the Alternative 6. The appeal proceedings in this matter ('the proceedings') be reopened so far as to permit admission of further evidence, being the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007.

7. The proceedings be reopened so far as is necessary to permit submissions to be made with regard to that evidence and the evidence in the Appeal in the light of that evidence and the judgment.

8. As necessary and appropriate, an Order that the decision given in this matter be reviewed, and such further or consequential Orders as may arise from that review, including as to costs.

9. Such further or other Orders as may be appropriate in the circumstances.

10 Because of the complicated nature of the respondents' position, it is useful at this point to state fully the grounds and reasons relied upon in support of their motion: AS TO PART A UPON THE GROUNDS 10. Costs to date in the matter have been reserved. It has previously been submitted by the Respondents counsel (paragraph 23 and 24 of the Respondents counsel's submissions as to costs dated 9th May 2007) that because the judgment of the court was based upon the performance of undertakings which were present and continuing an appropriate order ( absent re-opening of the judgment ) would have been that the costs be costs in the cause. A reason for this submission was because the due performance of those undertakings which were fundamental to the judgment could not be established until conclusion of the substantive proceedings.

11. Because of conduct by the Appellants after the date of the judgment disclosed in the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007 and filed herein, taken together with the other evidence, submissions and the judgment in these appeal proceedings, the Appellants have (a) for no sufficient reason, thrown away the benefit of the orders granting to them the right to engage as their solicitors, Messrs Harmers and caused unnecessary cost, delay and hardship to the Respondents.

(b) At a time and being the first occasion of, application being made, seeking to scrutinize compliance by the Appellants or their solicitors with the undertakings, the appellants made otiose, scrutiny of compliance with undertakings by their solicitors, which scrutiny was an integral part of that which they undertook to the court to submit themselves or their solicitors to when they proffered undertakings to the court.

(c) This act was then exacerbated by the attachment to a form of the court, defamatory and vexatious comments on the E-mail header of a non party, concerning the Respondents which had no warrant to be attached to the form under the rules of the court and which sought to shift the blame for the Applicants action onto the Respondents and which otherwise had the effect of damaging the Respondents reputation and intimidating them in respect of pursuing their access to the court through their notice of motion.

(d) Further, the Respondents also rely, mutatis mutandis, on grounds 14-17 inclusive, and 20-22 inclusive, of Part B hereof. 12. That, accordingly the benefit of any potential for a costs order in the Appellants favour in the cause, ought as a matter of fairness to the Respondents and to avoid the Appellants deriving a benefit from an abuse of the processes of the court, be denied to the Appellants by their being ordered to pay the Respondent's costs of the Motion before Marks J and of the Appeal and all applications associated with the appeal including this notice of Motion.

13. That the matters disclosed in the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007 taken together with the evidence already advanced by the Respondents in these proceedings discloses circumstances such that the arrangements put in place to protect the Respondents' confidential information need to be revised in a manner like that set forth in paragraph 5 above, to deal with the withdrawal of Messrs Harmers as solicitors for the applicants in the ongoing substantive proceedings being No. 5174 of 2004 and IRC No. 4589 of 2005. AS TO PART B UPON THE GROUNDS Misleading conduct concerning willingness to submit to the supervision of the court regarding compliance with Undertakings 14. The judgment of the Court in these proceedings was a judgment in respect of matters which were past, present and in the future and was based upon promises or representations that certain things would happen in the future conduct of the substantive proceedings and in this sense the orders granted to the Appellants a conditional benefit and directed that those undertakings be served on the Respondents within 24 hours and hence the Respondents be able to play their part in the Regime. The promises included that the Appellants solicitors would comply with undertakings to the court and implicit in those undertakings was the promise that the Appellants would submit to the supervision of those undertakings and scrutiny of their compliance with those undertakings by the court.

15. That due to the conduct of the Appellants and their solicitors, Harmers Workplace Lawyers disclosed in the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007 and filed herein, together with the other evidence, and submissions in these appeal proceedings and the terms of the judgment of the Court in these proceedings, (a) the Respondents sought to have the Appellants compliance with the undertakings referred to above examined by the Court,

(b) the examination of the Appellants and their solicitors compliance with the undertakings was rendered otiose by the deliberate actions of the Appellants and for which there was no sufficient reason and which actions were exacerbated by the attachment of an E-mail as described in paragraph 11 c) above,

(c) the Court and the Respondents were misled as to the willingness of the Appellants to submit to a regime to protect the confidential information of the Respondents which Regime necessarily involved submitting to scrutiny of their compliance with orders of the court and undertakings to the Court and any delay inherent in that regime (the "Regime")

(d) as a matter Public policy and of fairness to the Respondents and to avoid the Appellants deriving a benefit from an abuse of the processes of the court, including but not limited to, that the Appellants represented to the Court that in consideration for receiving the benefit of a judgment from the Court that they would submit to the court's scrutiny, the Appellants be denied the benefit of the judgment in the Appeal by re opening the Appeal and reversing the decision in that Appeal which was founded upon those and other representations and that the Appellants be ordered to pay the Respondents costs of the Motion before Marks J and of the Appeal and all applications associated with the Appeal including this Notice of Motion.

Other Misleading conduct (e) Further, the Appellants or their solicitors failed to provide undertakings either (i) to the court or

(ii) in the style of the undertakings proffered to the Court in the Stay proceedings, as required by the judgment of the Court in the Appeal dated 11th April 2007 after having been ordered by the court to do so. (f) Further or in the alternative to 14 ( sic - 15) (e) above, upon the ground that the Court and, or alternatively, the Respondents were misled as to the form and effect of the undertakings there referred to.

(g) the Court was misled as to the extent of the Appellants wish to engage Harmers as the solicitors of their choice which might have led to adverse inferences as to the purposes for which the appeal was prosecuted and affected the weighing up by the court of the competing interests of the parties.

(h) the continuation of Harmers acting in these proceedings results in these proceedings effectively being proceedings between the Respondents and Harmers when the applicants are unlikely to retain any interest or stake in these proceedings. Further Grounds to Re Open 16. Upon the grounds that the conduct of Harmers Workplace Lawyers disclosed in the Affidavit of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007 and filed herein, constituted a failure to observe an undertaking or undertakings given to this Court by one or more of its officers or servants, including but not limited to an undertaking given by Ms Shana Schreier-Joffe to this Court on 18 April 2007 in respect of paragraph 5 of her undertaking (to procure further undertakings in terms of paragraphs 1-4 of her undertaking dated 18th April 2007) and paragraph 1 thereof (not to be involved in proceedings 2876/06).

Upon the grounds that the decision in the proceedings is premised on the basis that undertakings given to the Court by officers, agents and servants of Harmers Workplace Lawyers were to be relied upon.

Upon the ground that because persons have not provided undertakings to the Court and have continued to act in matters IRC Numbers 5174 of 2004 and 4589 of 2005 irreparable damage may have been done to the Respondents.

Upon the ground that the interests of justice require that the appeal be reopened, including but not limited to that the Court misinterpreted the facts.

That the conduct of the appellants and their solicitors, Harmers Workplace Lawyers disclosed in the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007 and filed herein, together with the other evidence in these appeal proceedings, the appeal ought be decided differently and in accordance with the reasoning disclosed in the decision of the New South Wales Supreme Court in Asia Pacific Telecommunications Limited v Optus Networks Pty Ltd [2007] NSWSC 350.

Upon the ground that the decision in Asia Pacific Telecommunications Limited v Optus Networks Pty ltd [2007] NSWSC 350 which was given on 18 April 2007 is directly relevant to the determination of this Appeal, the decision in which was given on 11 April 2007, and raises matters of law which ought be considered by the Full Bench in this Appeal in order that justice be done to the Respondents.

Upon the grounds and reasons disclosed generally in the Affidavits of Gregory John Dunstan sworn 30 May 2007, 4 June 2007 and 7 June 2007, 31st July 2007 and 9th August 2007 and filed herein now read together with the affidavits of Gregory John Dunstan otherwise filed in these proceedings.

Upon such other grounds and reasons as the Court may see fit.

11 The appellants' amended strike out motion, filed on 29 August 2007 together with an outline of submissions in support, sought the following orders: 1 The Second Amended Notice of Motion filed by the Respondents in accordance with the orders made on 10 August 2007 be struck out.

2 The Summons for Production dated 18 June 2007 be struck out.

3 The Respondents pay the costs of the Appellants in relation to this Notice of Motion and in relation to the Amended Notice of Motion filed by the Respondents on 14 June 2007 (as further amended by the Respondents Second Amended Notice of Motion). 12 The following grounds and reasons were pleaded in support of the appellants' strike out motion: 1 The Second Amended Notice of Motion seeks to reopen the decision of this Honourable Court given on 11 April 2007.

2 Entry of the orders made as a result of that judgment has occurred (save in relation to costs) and there is no jurisdiction to reopen the appeal.

3 In the alternative, if there is jurisdiction to reopen the appeal, even taking the evidence of the Respondents at its highest, there is no evidence of "irremediable injustice" as all events which the Respondents rely upon have taken place post 11 April 2007, and the Respondents were at all times able to raise those matters in proceedings IRC 5174 of 2004 and IRC 4589 of 2005, and remain able to do so to the extent that there is utility in raising those matters. 4 Further, Harmers Workplace Lawyers have ceased acting for the appellants in proceedings IRC 5174 of 2004 and IRC 4589 of 2005 and there can be no utility in re-opening the appeal, save in relation to costs.

5 Further, proposed orders 4 and 5 as sought in the Second Amended Notice of Motion seek that the appeal decision be reviewed in respect of the undertakings "which now ought to be given" and further orders which would prevent Harmers and its partners and employees from communicating with the appellants and their current and future legal advisors. Those proposed orders fundamentally misconceive the nature and purpose of the appeal proceedings and are orders which would never be made in the appeal proceedings.

6 Further, the matters which the respondents rely upon are not relevant to the costs of the appeal and cannot provide a basis for the Court re-opening the proceedings in relation to those costs.

7 The Summons for Production is oppressive and an abuse of process.

8 The Summons calls for material which is subject to legal professional privilege.

9 The Summons calls for material which was available to the Respondents at the time of the initial hearing before his Honour Mr Justice Marks, and at the appeal hearing before this honourable Court, and it cannot now be sought in order to be adduced on an application to reopen an appeal.

10 Alternatively, the Summons for Production is premature in that the Court has not yet determined Order 1 of this Motion. 13 At the commencement of the proceedings an issue arose as to which notice of motion should be heard first. After seeking further instructions, senior counsel for the respondents indicated to the Full Bench that Part B of the respondents' second amended notice of motion was not pressed. However, senior counsel maintained that Part A of the second amended motion should be considered and the appellants' strike out motion put to one side for the time being. The appellants maintained that the strike out motion should be heard first, consistent with the consent orders made by Boland J on 13 July 2007.

14 In the result, the Full Bench decided to first hear the strike out motion in so far as it concerned Part A of the respondents' second amended notice of motion, the respondents having been given leave not to proceed with Part B. There had been no substantive change in circumstances since Boland J decided, by consent, as to the order in which the respective motions should be heard and nothing that had been put by the respondents led us to take a different view from Boland J as to that order. The respondents' second amended notice of motion was stood over pending the Court's determination of the appellants' strike out motion.

15 In relation to orders 4 and 5 of Part A of the second amended notice of motion, the appellants contended that these were, in substance, an application to re-open the appeal proceedings. It was submitted that there was no power in the Full Bench to re-open proceedings in circumstances where the Court's orders have already been entered, or perfected: Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78, at [26]-[31]; Hollingsworth v Commissioner of Police (2007) 160 IR 456; Hollingsworth v Industrial Court of NSW & Anor [2007] NSWCA 209. Further, counsel for the appellants submitted that the Full Bench sitting on appeal was limited in the exercise of its jurisdiction by the terms of s 192 of the Act, which precluded the Full Bench from considering fresh applications such as those made by the respondents. Section 192 is in the following terms: 192 Powers on appeal (1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate.

The Full Bench may determine a part of the matter and refer the remainder back to the member of the Commission. (2) The Full Bench may direct that its decision on an appeal under this Part take effect as from any specified date after the lodging of the original application relating to the decision.

16 Even if the Court had a residual power to re-open, it was submitted, it did not extend to re-opening orders made by reason of events which occur after the orders were made by the Full Bench: see Gamser v The Nominal Defendant (1977) 136 CLR 145 at 154, to the effect that there is no inherent power to set aside judgments by reason of changed circumstances upon applications made after the case has been disposed of. See also, by way of example, Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 at [135], [141].

17 It was further submitted by the appellants that even if there was power to re-open, the Court would not permit such a course unless it was properly satisfied that the respondents would suffer "irremediable injustice" as identified in State Rail Authority of New South Wales v Codelfa Construction Proprietary Limited (1982) 150 CLR 29 at 38. In this respect, it was submitted that the respondents' reliance upon circumstances which arose after the orders were made by the Full Bench on 11 April 2007, could not give rise to any injustice where there was no bar to pursuing a remedy in the substantive proceedings, if there was merit in their claims: see, by analogy, Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2007] NSWSC 350.

18 In relation to orders 1, 2 and 3 in the respondents' second amended notice of motion, the appellants accepted that these were not applications to re-open any orders made by the Full Bench, whether on 11 April 2007 or otherwise. Rather, it was submitted, these were applications to re-open the evidence and submissions in relation to costs, a matter which had not yet been determined. However, the appellants contended that there was no basis upon which the Court could make orders 1, 2 and 3 and the application to do so was, therefore, hopeless and should be dismissed.

19 The appellants submitted that the only material upon which the respondents were able to rely were the grounds in support of Part A of the second amended motion; the respondents had not sought to adduce any evidence in relation to the strike out motion. Taking those grounds at their highest the appellants submitted they appeared to fall into two classes: the first was that the appellants' decision to withdraw Harmer's retainer was relevant to the question of costs and the second was the proposition that there had not been compliance with an undertaking or undertakings that had been given to the Court and that this was relevant to the question of costs of the appeal.

20 As to the first class - the appellants' decision to withdraw Harmer's retainer - the only thing the Court knew about that was that the retainer was withdrawn with effect from 5 July 2007. That fact, it was submitted, was incapable of revealing anything about the appellants' conduct of the appeal such as might bear upon the question of costs.

21 As to the second class - alleged non-compliance with undertakings proffered to the Court - it was submitted that the remedy lay not in orders 1, 2 and 3 but rather in proceedings to enforce the undertakings. Further, that subsequent events, including any non-compliance with the effect of orders made or undertakings given, cannot be relevant to the determination of the costs of the proceeding which led to those orders or undertakings: Leidreiter v Rae [2006] NSWSC 1043 at [17]-[18].

22 The main elements of the respondents' submissions may be summarised as follows: · This is a strike out motion. The appellants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one. The jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. The appellants have not demonstrated that the orders sought could not be made (see Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447-448 and Nagle (T/as W D & J L Nagle & Sons) v Tilburg & anor (1993) 51 IR 8 at 10-11 for support for this line of argument). · The Full Bench has a wide discretion. For example, the power to confer the role of the Full Bench on one of its members is unlimited. · The respondents do not challenge any aspect of what the court decided in the appeal. In the interests of justice, and in the exceptional circumstances of this case, it is necessary to add to the orders or vary the orders, not to take away the orders that have been made: to amend or vary those orders or add to them or, in other words, to properly deal with the scope of the appeal decision. "What we are asking is [sic] take the decision already made; apply it to the new or subsequent facts and to make additional amended orders of the same kind. That is, orders to protect the confidentiality of the information". This is not the situation dealt with in the authorities to which the appellants referred. · These proceedings are the appeal proceedings. They have not been finalised to that effect. True it is a judgment has been given but these proceedings are still alive. The issue of costs has not been determined in the appeal proceedings. This is not a re-opening; what is sought are amendments to orders in proceedings that are extant. · The appellants' decision to withdraw their retainer from Harmers "strikes at the very heart of the subject matter that this Court was asked to deal with". Considerations of justice weigh heavily here. · The judgment of Gibbs J in Bailey v Marinoff (1971) 125 CLR 529 at 540 is authority for the proposition that as an exception to the rule regarding finality of litigation it is open to the Court, in certain circumstances, to make supplemental orders. · Section 192 does not define the limits of the Full Bench's power. See s 181 regarding the power to award costs, s 190A regarding the power on appeal to deal with interlocutory applications and s 170 regarding the Court's power to amend proceedings. · As to the question of costs, in the context of a strike out motion, the Full Bench does not have all of the evidence before it. Evidence may be adduced for instance (as a consequence of a notice to produce served on the appellants, which has not yet been called upon because of the way the proceedings have progressed) that may go to the heart of the costs issue, such as the circumstances surrounding the change of solicitor and the timing of the decision to withdraw Harmers' retainer. Proposed orders 4 and 5

23 We will deal first with proposed orders 4 and 5 in the respondents' second amended notice of motion. However, before doing so we make the general observation that in considering what should be the outcome of the appellants' strike out motion, the only material we have before us, in addition to the parties' oral and written submissions, are the respondents' second amended motion, the appellants' strike out motion and the supporting affidavits. We are aware that in relation to the respondents' second amended motion, five affidavits of the respondents' solicitor were served and filed, but the respondents have elected not to introduce those into evidence in relation to the strike out motion.

24 Proposed orders 4 and 5 need to be read together. Proposed order 4 calls for "the decision given in this matter be reviewed in respect of the form of undertakings which now ought to be given by Messrs Harmers" and "further or consequential Orders" should be made "as may arise from that review, including as to costs". Proposed order 5 describes the nature of the "further or consequential Orders".

25 Unquestionably, the second amended motion seeks a re-opening of the appeal decision given on 11 April 2007. Proposed order 4, if granted, would involve the Full Bench reviewing its decision in respect of the form of undertakings and making further or consequential orders. The content of those further or consequential orders is set out in proposed order 5.

26 It must now be accepted as settled that this Court is not a Court of last resort and it does not have the power to re-open orders once perfected: Hollingsworth (CA) at [10]-[14]. There is no express conferral of power in the Industrial Relations Act or inherent power by reason of being a superior court of record (see s 152 of the Act) that permits the re-opening of the appeal in respect of the orders made (Ove Arup at [33], relying on DJL v The Central Authority (2000) 201 CLR 226; Hollingsworth (IC) at [54]; Valda June Kerrison v New South Wales Technical and Further Education Commission [2007] NSWIRComm 140).

27 In Ove Arup the Full Bench at [26] described this Court's practice in relation to the pronouncement of judgments and entry of orders: [26] The practice in relation to judgments and orders made by the Commission in Court Session is that a written judgment is prepared that also contains any orders to be made. The orders are normally pronounced on the day of judgment and the parties are immediately provided with a written copy of the judgment and orders. No further steps are taken to formally enter the judgment in records of the Court. In this respect, pronouncement and entry may be said to occur simultaneously, entry having been made in the written judgment and by its delivery in open court. We consider this is the established practice for the purposes of r 89 of the Commission's Rules and, accordingly, the practice, procedure or usage of the Supreme Court, Court of Appeal or Court of Criminal Appeal referred to in r 89(5) of the Commission's Rules in respect of entry of judgments and orders is not applicable. 28 The practice so described remains the practice. In this matter the Court has dealt with the merits of the appeal and handed down its decision, including relevant orders, on 11 April 2007. Harmers acted upon the orders made by the Full Bench in that the required undertakings were filed by that firm and accepted by the Full Bench on 4 May 2007, and the firm resumed acting for the appellants in the substantive proceedings.

29 Senior counsel for the respondents indicated that what was sought was to amend or vary the orders made by the Full Bench on 11 April 2007 or add to them. The only way that is possible is to have those orders disposing of the merits of the appeal brought back before the Full Bench and that may only be done by re-opening the appeal. However, save as to costs, the Court's orders in the appeal proceedings were entered and are final. Consequently, as Barwick CJ opined in Bailey v Marinoff (1971) 125 CLR 529 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.

30 That the appeal may be regarded as interlocutory proceedings does not alter the fact that the Full Bench's orders are final and are not subject to re-opening. The proceedings the subject of the High Court's consideration in Bailey v Marinoff were not final proceedings, involving as they did dismissal of an appeal for want of prosecution.

31 The respondents raised ss 170 and 190A of the Industrial Relations Act as sources of power to re-open the appeal. Those provisions are in the following terms: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made: (a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.

(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. …

190A Interlocutory and other matters in proceedings on appeal (1) If an appeal is made under this Part to a Full Bench of the Commission, the Commission constituted by the President (or by another member of the Commission nominated by the President) may do any one or more of the following for the purposes of, or in relation to, the appeal: (a) make any consent order in relation to the appeal,

(b) grant leave to withdraw or discontinue the appeal,

(c) give any directions in relation to the hearing of the appeal,

(d) deal with any interlocutory application in the appeal. (2) If the appeal is made to a Full Bench of the Commission in Court Session: (a) a non-judicial member may not constitute the Commission for the purposes of this section, and

(b) this section applies despite section 153 (2). (3) A member of the Commission who made a decision the subject of an appeal may not constitute the Commission for the purposes of this section.

(4) This section does not authorise: (a) the Commission constituted in accordance with this section to grant leave to appeal, or

(b) the granting of a stay against the decision appealed against otherwise than under section 190. 32 In relation to s 170, we do not regard that provision as a source of power to amend a decision or order where orders have been made disposing of the proceedings. As the appellants submitted, s 170 distinguishes between a "decision" and "proceedings" and, therefore, the power in s 170(1) to amend proceedings cannot, on a proper construction of the provision, extend to amending decisions. 33 Rule 148 of the Industrial Relations Commission Rules 1996 in Pt 20 - Amendment, refers to "any amendment to documents in the proceedings". Rule 150 provides, inter alia, that "amendments must be made by filing a fresh document". Rule 151 provides: 151 Minute of judgment or order (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.

(2) A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision.

(3) The power in this Rule is additional to the power in Rule 38. 34 It is apparent from Pt 20 of the Rules that it is not a source of power to re-open proceedings for the purpose of amending a decision or order other than for the purpose of correcting a mistake or error arising from an accidental slip or omission. The fact that r 151 provides an exception, tells strongly against Pt 20 being a source of power to re-open for any other purpose. 35 In relation to s 190A, the respondents rely on s 190A(1)(d). But that provision is purely facilitative, enabling the President, or another member of the Commission nominated by the President, to deal with any interlocutory application in an appeal to a Full Bench of the Commission such as a stay application.

36 The appellants contended that the decision in Gamser presented another reason why the appeal could not be re-opened. We agree with that contention. At 154, Aickin J stated: The majority judgments in Bailey v. Marinoff appear to me to make it clear that there is no inherent power to set aside judgments by reason of changed circumstances on application made after the case has been finally disposed of. It is sufficient to quote what Menzies J. said (1971) 125 CLR, at pp 531-532: 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 (to) the making of orders in litigation that has been brought regularly to an end. 37 In par [11] of the second amended notice of motion, which spelt out one of the grounds upon which the respondents relied in relation to Part A of the motion, it referred to the "conduct by the Appellants after the date of the judgment". Gamser makes it clear that there is no inherent power to set aside judgments by reason of changed circumstances on application made after the case has been finally disposed of. 38 Finally, in relation to proposed orders 4 and 5, we accept the appellant's submission that even if there was power to re-open, the Court would not permit such a course unless it was satisfied that the respondents would suffer "irremediable injustice" as identified in Codelfa Construction at 38. If there is merit in the respondents' claims regarding circumstances that arose after the Full Bench made the orders on 11 April 2007, we are unable to discern any bar to the respondents pursuing a remedy in the substantive proceedings. Proposed orders 1, 2 and 3 39 We turn to proposed orders 1, 2 and 3. It will be recalled the appellants contended that there was no basis upon which the Court could make orders 1, 2 and 3 and the application to do so was, therefore, hopeless and should be dismissed. The respondents did not demur from the appellants' classification of the grounds supporting the proposed orders and it seems to us the classification was correct, namely, that the appellants' decision to withdraw Harmer's retainer was relevant to the question of costs and, secondly, that there had not been compliance with an undertaking or undertakings that had been given to the Court and that this was relevant to the question of costs of the appeal. 40 As it was submitted by the appellants, in relation to the first category the only thing the Court knows about the appellants' decision to withdraw Harmer's retainer is that the retainer was withdrawn with effect from 5 July 2007. That piece of information, of itself, says nothing about the appellants' conduct of the appeal such as might bear upon the question of costs and the respondents did not attempt to adduce any evidence that may have thrown more light on the matter. Importantly, however, the withdrawal of the retainer occurred after the appeal decision and orders were made. Consistent with the view taken by McDougall J in Leidreiter, we consider that subsequent events are incapable of establishing any "relevant delinquency" for the purpose of determining the basis upon which those costs should be paid. As we understood them, the respondents contended that it was possible that inferences might be drawn from the evidence in proceedings relating to their second amended motion that shows that circumstances relating to the change of solicitors was not altogether an event that occurred after the appeal decision was given. That is speculation on the respondents' part; there is nothing to indicate there was any "delinquency" on the part of the appellants, or for that matter, their solicitors during the appeal proceedings. 41 The same observations we have made in relation to the first category of grounds apply equally to the second category. Further, the remedy in relation to non-compliance with orders made by the Full Bench in the appeal relating to undertakings does not properly lie in orders 1, 2 and 3 but rather, as the appellants submitted, in proceedings to enforce the undertakings. 42 Between 24 April 2007 and 22 May 2007 the parties filed their submissions on costs as a result of the directions given by the Full Bench for the provision of written submissions on costs. By orders 2 and 3 the respondents now seek leave to admit in relation to the question of costs further evidence and leave to make further submissions as to costs. In circumstances where it would appear that the matters that have motivated the respondents to seek such orders relate to events that occurred after the appeal decision and orders were made, the respondents have not demonstrated any basis upon which we should countenance such orders. 43 We propose to dismiss the respondents' second amended notice of motion. That leaves the question of costs arising out of the appeal and the appellants' strike out motion. Costs 44 The appellants contended that the respondents forthwith pay the appellants' costs of: (i) the Notice of Motion heard by Marks J on 14 July 2006, as agreed or assessed;

(ii) the costs of the appeal, as agreed or assessed; and

(iii) the costs of the Notice of Motion of 20 February 2007 seeking to uplift exhibit DCS1 for the purpose of having it forensically tested, as agreed or assessed.

The appellants also seek costs of their strike out motion. 45 The respondents contended that the costs of the appeal and the proceedings before Marks J ought be costs in the cause. In the alternative, if the costs of the appeal and the proceedings before Marks J were to be awarded against the respondents, they should be payable, as in the normal course of events, at the conclusion of the proceedings. It was submitted there was no basis on which they ought be paid forthwith.

46 As to the costs of the notice of motion of 20 February 2007, the respondents understood that the Court has already ruled that those costs be costs in the cause and not payable forthwith.

47 The respondents rely on r 211 of the Commission's Rules to support their contention that the cost of the appeal and the motion at first instance should, prima facie, be costs of the cause of the successful party. Rule 211 provides that the costs of any application or other steps in the proceedings are, unless the Court "otherwise orders", deemed to be part of the "costs of the cause of the party in whose favour the application or other step is determined and shall be paid and otherwise dealt with".

48 For their part, the appellants rely on the provisions of r 203 of the Commission's Rules which provides that the Court may exercise its power as to costs "at any stage of the proceedings or after the conclusion of the proceedings" (see rule 203(1)) and may require that the costs the subject of an order for costs be "paid forthwith notwithstanding that the proceedings are not concluded" (see rule 203(2)).

49 It may be accepted that the mere fact that an interlocutory application has been determined does not mean that a cost order should be made in favour of the successful party prior to the final order for costs (see r 211 and Selman v Sweet (No 2) [2003] NSWIRComm 53 at [8]). On the other hand, as reflected in r 203 of the Rules, there is no general principle of law that requires that costs only be paid on the ultimate disposition of the proceedings. Indeed, r 203 provides the Court with a wide discretion to order that costs be paid forthwith notwithstanding that the proceedings are not concluded: UnitedGlobalCom Inc v McRann (No 2) (2004) 133 IR 21 at [8].

50 The circumstances in which a cost order may be made prior to the final order for costs include where:

(a) a question in the proceedings has been separately determined, no issue in the trial of the balance of the proceedings overlaps with the question in the separate determination and no issue in the trial of the balance of the proceedings can cast doubt on the correctness of an order for costs (see Baramon Sales Pty Ltd v Goodman Fielder Mills Limited [2001] FCA 1819 at [6]-[7]; (b) a question in the proceedings has been separately determined and the question was discrete from any other relief sought in the proceedings (see Charlie Brown Pty Limited and anor v Green and ors (Unreported, Supreme Court of New South Wales, McLelland CJ, 3 July 1995) at 1); (c) an aspect of the proceedings which has been determined is sufficiently self-contained and detached or detachable from the remainder of the proceedings yet to be heard (see Peter Robert Horrobin v Australia and New Zealand Banking Group Limited (Unreported, Court of Appeal of New South Wales, Priestley JA, 6 June 1997) at 9; Fiduciary Ltd and another v Morningstar Research Pty Ltd and others (2002) 55 NSWLR 1 at [10]; (d) the proceedings were instituted some time previously and there is a considerable time before the proceedings will be disposed of finally (see Horrobin at 9; Fiduciary at [13]; Allstate Life Insurance Co v Australia & New Zealand Banking Group Limited (No 13) (Unreported, Federal Court of Australia, Lockhart, Lindgren and Tamberlin JJ, 17 August 1995) at [5]; UnitedGlobalCom at [24]);

51 A guiding factor is whether the "demands of justice" (or the "interests of justice") support the making of costs order prior to the final order for costs (see Fiduciary at [7]-[8], [18]; Thunderdome Racetiming and Scoring Pty Ltd and another v Dorian Industries Pty Ltd and another (1992) 36 FCR 297 at 312; UnitedGlobalCom at [16], [24]).

52 The application to have Harmers permanently restrained from acting for the appellants was a separately identifiable matter that has now been finally dismissed. As the appellants contended, that application was not a matter arising out of any issue between the parties in the substantive proceeding and is discrete in the true sense. No issue in the trial of the balance of the proceedings can cast doubt on the correctness of order for costs in relation to the appeal (Baramon). Our decision in relation to the appellants' strike out motion confirms this to be the case. 53 A further consideration is the fact that Harmers no longer represent the appellants in the substantive proceedings; that firm's retainer has been withdrawn. The appellants have yet to file their evidence in the substantive proceedings and with new solicitors being retained, it is likely to be many months before the substantive proceedings are heard and determined. 54 We consider there is a clear-cut case for exercising our discretion to order that the costs of the appeal be paid forthwith. In relation to the motion at first instance, however, the respondents contended that Richards v Kadian & Ors (No 2) [2005] NSWCA 373 was authority for the proposition that the costs of that motion should not be payable forthwith and that such costs should be costs in the cause. It was submitted that the motion heard by Marks J, and determined in the respondents' favour, had the significant effect of causing the undertakings which are now relied on by the appellants and the Court to be offered and subsequently given to the Court. 55 It will usually follow a successful appeal that the appellant would receive its costs of both the appeal and the matter at first instance: Day v Smidmore (No 3) (2006) 149 IR 408 at [23], [24]. Accordingly, whilst we propose to order that the appellants' costs of the first instance proceedings are to be paid by the respondents as agreed or assessed, we do not propose to order that those costs be paid forthwith. In relation to the appellants' strike out motion the appellants' shall have their costs as agreed or assessed, but as there were simply no submissions by the appellants seeking an order that the costs of the strike out motion be paid forthwith, we do not propose to so order. 56 As to the costs of the notice of motion of 20 February 2007 regarding the uplifting by the respondents of exhibit DCS1 for the purpose of having it forensically tested, that motion was refused. In proceedings before the Full Bench on 6 March 2007, Mr Dixon of senior counsel for the appellants raised the question of costs of the motion. The Full Bench asked why costs would not be in the cause and it is plain from the record of the proceedings that senior counsel did not cavil with that course. Nevertheless, no order was made in relation to costs of the motion. Having regard to our approach in relation to the costs of the appeal and the costs of the motion before Marks J, where we have adopted the rule that costs follow the event, we propose to order that the appellants shall have their costs of the motion of 20 February 2007, as agreed or assessed. Orders

(1) The respondents' second amended motion is dismissed.

(2) The respondents shall, forthwith, pay the appellants' costs of the appeal, as agreed or assessed.

(3) The respondents shall pay the appellants' costs of the notice of motion heard by Marks J on 14 July 2006, as agreed or assessed.

(4) The respondents shall pay the appellants' costs of the motion to strike out the respondents' second amended notice of motion.

(5) The respondents shall pay the appellants' costs of the notice of motion of 20 February 2007 seeking to uplift exhibit DCS1 for the purpose of having it forensically tested, as agreed or assessed.

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