Taudevin v Egis Consulting Australia Pty Limited and Another [2000] NSWIRComm 63 | Case summary

1 The court has before it today two applications. The first is made by Egis Consulting Australia Pty Ltd and the second by the Commonwealth of Australia, each made pursuant to r 88 of the Industrial Relations Commission Rules 1996, for an extension of time in which to file notices of motion, which have been filed, albeit out of time, under r 82 of the Rules. 2 The parties referred to are respectively the first and second respondents in the proceedings. I will for convenience refer to those respondents by their roles in the proceedings proper notwithstanding that they are applicants in the respective notices of motion and applications pursuant to r 88. Similarly, I shall refer to the applicant in the proceedings by his role in the proceedings proper, notwithstanding that he is a respondent to the respective motions. 3 As well as relying upon r 88 the respondents also rely upon r 134. Strictly speaking an application under r 88 is not an application for extension of time but, rather, an application to the Court to waive strict compliance with any procedural requirement or to exempt a party from compliance with such requirements. Rule 134 provides the Court with power, in terms, to extend or abridge any time fixed by the Rules or by an order. 4 The only presently possibly relevant difference between the powers is that r 88 requires that, unless the tribunal otherwise directs, any application be supported by an affidavit whereas r 134 does not. The reason why I refer to the difference being merely possibly relevant is that it is not relevant to these proceedings since each of the respondents has filed an affidavit in support of its application. 5 I therefore proceed on the basis that the relevant power exists in the Court to consider the present applications and it arises for present purposes under both r 88 and r 134. I do not consider that the approach to be adopted or the principles to be applied differ depending on which provision provides the power that is to be exercised. 6 It is appropriate to set out in short detail the chronology of the matter. The applicant commenced proceedings pursuant to s 106 of the Industrial Relations Act 1996 on 23 December 1999. He filed a detailed affidavit with the application. In that affidavit he referred to a contract between himself and the first respondent dated June last year and referred to his employment as a project team leader/specialist based in the Sydney office of the first respondent. He referred to his first international assignment after entering into that contract as a team leader in a project located in Kiribati. 7 It appears that the first respondent is engaged in the provision of aid and aid projects to countries outside Australia and there is reference in the material I have been taken to today to that aid being provided in some circumstances on the basis of assistance provided by the Australian Government. 8 In his initial affidavit which was sworn on 22 December 1999, the applicant also referred to his being originally employed by the first respondent, although then with a different registered name, in May 1996 as the team leader of an AusAid project in East Timor. The applicant's major duty as team leader in East Timor was to manage a water, sanitation and community development project. The contract was signed by him in Jakarta prior to his moving to East Timor to perform duties under that contract, initially for a period of eighteen months and subsequently extended for a further similar period. The contract thus ran for almost three years. The applicant moved to East Timor to commence his duties and supervised a staff of ninety employees, the majority of whom were indigenous employees. 9 There are other matters of detail in that affidavit which I do not propose to set out and I should indicate that I have only referred to the matters I have to give some general background to the applications being considered. 10 I should, however, indicate that one of the annexures to the applicant's first affidavit was a book published by the applicant entitled East Timor, Too Little, Too Late which was published on or about 23 November 1999. Apparently, without going into detail, the publication of that book had some impact on the applicant's employment and the possibility was raised, again to use neutral terms, that his employment may not continue. There is also evidence of some serious health problems which befell the applicant independently of the matters I have referred to, and that those matters referred to, other than the health issues, led to the making of the application. 11 On 7 January 2000 both the first and second respondents filed notices of appearance. It would appear, and certainly no issue is taken in this respect, that 7 January represents, bearing in mind the holiday period and the provisions of the Rules in that respect, a time by which the respondents could have filed notices of appearance, and have done so, in accordance with the Rules. 12 However, the appearance filed by the first respondent was filed on the basis that it was a conditional appearance and the appearance filed by the second respondent, the Commonwealth of Australia, contained this important limitation or caveat: The Commonwealth of Australia ... appears, but without prejudice to any claim which it may make that this Honourable Commission lacks jurisdiction or power to entertain this application. 13 It should be noted that there is no provision in the Commission's Rules for the filing of a conditional appearance. The Rules appear to have followed in relevant respects the Supreme Court Rules where it is to be noted Pt 11 r 7 thereof, which formerly contained the facility for the entry of a conditional appearance, was repealed in late 1988 and that certain amendments were made to the next Rule, that is Pt 11 r 8, which gave the Supreme Court power on application by a defendant to any originating process by notice of motion, filed within the time fixed by the time limited for entering an appearance, to move for certain orders such as an order setting aside the originating process. 14 The counterpart in the Commission's Rules is r 82, the terms of which are as follows: 82. Setting aside originating process etc. (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order: (a) set aside the originating process; or (b) set aside the service of the originating process on the respondent; or (c) declare that the originating process has not been duly served on the respondent; or (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State; or (e) discharge any order extending the validity for service of the originating process; or (f) protect or release property seized, or threatened with seizure, in the proceedings; or (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings; or (h) decline in its discretion to exercise its jurisdiction in the proceedings; or (i) grant such other relief as it thinks appropriate. (2) Notice of motion under subrule (1): (a) may be filed without entering an appearance; (b) must bear a note "The respondent's address for service is" and state the address; (c) must be filed within the time limited for entering an appearance. (3) The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction. 15 I will return to the significance of r 82 in due course, but it is appropriate here to emphasise the lack of a facility in the Commission's Rules to file a conditional notice of appearance. In circumstances where it might have been appropriate for such a conditional appearance to be entered, the appropriate course is that the relevant respondent should file a notice of motion and application under r 82. 16 It seems, and I make this comment without criticising the approach taken by either respondent, that much of the difficulty that occurred in this matter arose from their having filed a conditional appearance. 17 It should be made clear that not only do the Rules not provide a facility for a notice of conditional appearance to be filed but it is not appropriate for any respondent who does not consent to, or seeks to resist the Commission's jurisdiction, to proceed by filing such a document. Indeed, any such filing or purported filing should be rejected if an attempt is made to file a conditional appearance. I intend to draw the terms of this judgment to the attention of the Registrar so that he may consider any relevant modification of Registry procedures in this regard. 18 Returning to the chronology, the proceedings came before the Deputy Registrar in the Registrar's call-over on 28 February and 13 March 2000. Apparently (drawing conclusions from notations in the file) on the first of those occasions there was a foreshadowing on behalf of the applicant of the likelihood of an amended summons and affidavit. This led to the matter being stood over to the further call-over on 13 March. Coincidentally with the filing of the amended process, or perhaps when that was foreshadowed before the Registrar on 28 February, there was a change in the solicitors acting for the applicant. 19 The amended summons and associated documents were filed with the Registry on 10 March 2000. Again, without going into detail, it is sufficient to note that the applicant in his amended process sought orders varying the arrangements between himself and the respondents in certain respects and it appears for present purposes that they raise claims in relation to his employment, and the arrangements therefor in relation to both of the relevant periods, that is the period that commenced in approximately May 1996 and the subsequent employment which commenced on 16 June 1999. 20 I should add that by referring to the matters in that way, I am not necessarily suggesting that there was any break in or lack of continuity of employment. There does not appear to be an issue as to that matter in the present proceedings. 21 When the matter came before the Registrar on 13 March (and again I am making deductions from notes on the file), directions were made as to the seeking of particulars and the answering of such requests. Notices of motion as to jurisdiction were foreshadowed. The matter was then stood over for further directions before the Registrar on 10 April. Late last week the motions of the first and second respondents were filed. It appeared, as I understand it, to the Registrar that the material raised matters of some complexity and since the likelihood was that if the matters had been listed in the Registrar's call-over on 10 April they would have to be referred to a Judge, it was decided the motions should come before a Judge on Monday, 10 April. It is convenient here to indicate briefly the nature of the substantive jurisdictional issues that the respondents seek to raise should the extensions of time which they seek be granted. 22 The substance of the first respondent's jurisdictional arguments involve allegations that the contract or contracts relied upon by the applicant are not contracts which have any or any sufficient connection with New South Wales so as to ground jurisdiction; that the first respondent was not a party to certain of the contracts relied upon by the applicant; and that the jurisdictional issue should be dealt with on a threshold or preliminary basis. 23 The substance of the second respondent's jurisdictional issue is that the Court lacks jurisdiction under section 106 of the Industrial Relations Act or otherwise, to entertain the application because the Act does not bind or apply to the Commonwealth, both as a matter of construction and also because the Commonwealth is immune from any exercise of the power in the Act to declare void or to vary any arrangement entered into by the Commonwealth. An alternative submission is made that, to the extent the applicant seeks that an alleged arrangement or collateral arrangement between him and the Commonwealth or involving the Commonwealth should be the subject of a declaration under section 106 of the Act, the exercise of that power in relation to the Commonwealth would be contrary to Chapter III of the Australian Constitution as not involving the exercise of judicial power. The second respondent also submits that the jurisdictional issues should be determined on a threshold basis. Each of the respondents has filed in support of its respective motion, detailed affidavits. 24 As the proceedings developed on 10 April, counsel for the Commonwealth, Mr Godwin, drew the Court's attention to the nature of the motion filed on behalf of his client, the issues raised by it, and also to the terms of s 78B of the Judiciary Act 1903 (Cth). The relevant parts of that section provide: 78B (1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. (2) For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending: (a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; (b) may direct a party to give notice in accordance with that subsection; and (c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. … … (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so. 25 The issue that thus arose, notwithstanding the possible important constitutional and other issues raised by the motions, was the fact that those motions were filed out of time. It was then, as I understand it, agreed between the parties that that issue had to be dealt with initially and it appeared that the constraints arising from s 78B of the Judiciary Act did not come into play until the Commonwealth's motion was properly before the Court and that only occurred when the Commonwealth's application was dealt with. The matter was stood over until today to be dealt with. 26 The first respondent has placed before the Court a deal of evidence in support of its substantive motion and also its application to extend time. In particular, the first respondent relies on the detailed steps taken on its behalf, including the need to appropriately assess the claims made against it, the need to seek appropriate legal advice from specialist counsel taking into account concerns of the respondent that legal advice from counsel should be obtained on a basis which was as economical as possible in the circumstances. Emphasis is also placed on the detailed consideration given to the matter which occurred before the motion was filed. 27 Reliance was also placed on the fact of the amended and thus revised notice of motion and affidavit material subsequently filed and relied upon by the applicant. The gist of the first respondent's case is summed up in paragraph 14 of the affidavit of Mr Wilkins, the solicitor in the employ of the respondent's solicitors involved in the day to day conduct of the matter on behalf of the first respondent. That paragraph states: On reviewing the claim and supporting documentation filed in this matter by the Applicant on 23 December 1999, instructions were sought from the First Respondent as to the matters raised therein. Having obtained those initial instructions, I was of the view that Counsel's advice was required on the issue of jurisdictional challenge to the Applicant's claim. Counsel was briefed on 18 February 2000, and the preliminary oral advice was obtained on 22 February 2000. On 10 March 2000 the Applicant filed an Amended Summons for relief and the Applicant's Second Affidavit. Written advice was obtained from Counsel on 28 March 2000. Following the receipt of this advice I caused a Notice of Motion to be prepared forthwith. 28 Mr Wilkins has elaborated on the matters relied on in some further but succinct detail in his affidavit sworn today which sets out further matters including the considerations I have referred to earlier as to the obtaining of appropriate advice from counsel. The relevant principles, which I shall refer to in due course, require, generally speaking, that there be an explanation for the delay. I accept the matters set out in Mr Wilkins' affidavits as providing that explanation. 29 In relation to its application for extension of time or waiver of the requirement of the rules, the Commonwealth did not place before the Court evidence in that regard but relied heavily upon its candid foreshadowing of the jurisdictional issue in its conditional notice of appearance. 30 It was submitted that this is not a case where the relevant respondent has slept on its rights, but has made its position abundantly clear. It has submitted that, once the position of the applicant became clearer, and more particularly by the filing of the amended summons etc, the second respondent moved with appropriate speed to bring the r 82 motion before the Court. Again, although I have a little more hesitation than I had in relation to the first respondent, I accept that the Commonwealth has provided an explanation for the delay on its part. 31 There are two further matters I need to refer to briefly before I come to the question of relevant prejudice. They are, firstly, the significance of r 82 which I have earlier referred to in short form and also the principles that should be applied. I should say, particularly in relation to the last matter referred to, that I am indebted to counsel and solicitors for the respective parties for their succinct and helpful submissions in that regard. 32 Although Mr Moses for the first respondent led the argument on the matter and dealt with it in some detail, I am grateful also to both Mr Godwin and Mr Benson, who followed him, and who relied on those matters particularly pertinent for their cases but did not rehearse the matters which had been earlier and helpfully put before the Court by Mr Moses. That, in my view, was a most helpful and appropriate way for the matter to proceed. Having said that, the fact that the second and third representative's submissions were shorter, did not mean that they did not travel the same important ground that Mr Moses had already covered. 33 Turning again but briefly to r 82, that rule was considered in Hyde v Energy Australia (1999) 92 IR 409 at 424-425. In a passage which was expressly concurred with by the Full Bench in Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 at 269, I observed: Parenthetically, I should indicate the reason why I consider that r 82 does not apply is not only (as contended by the applicants) that the respondent's notice of motion had not been filed in the manner required by r 82(2) but also because r 82, considered as a whole, appears to be a rule essentially intended to deal with situations where the respondent contends that the Commission lacks jurisdiction in relation to the proceedings purportedly commenced; where there has been some invalidity or irregularity in relation to the service of the originating process (or leave given in relation to service of such process); or where issues such as that considered by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 539 are raised. 34 Unlike the cases referred to above, these motions represent an appropriate use of r 82. I have already referred to the situation where a motion under r 82 would be appropriate, such as where, in earlier times, a notice of conditional appearance may have been appropriate. The facility and the purpose of the rule is consistent with modern approaches to litigation. That is, to have promptly placed before the Court issues which either require early determination or should be appropriately placed before the Court for early consideration as to when they should be determined. Consequent notice is also provided to an applicant as to an issue which the applicant must take into account in conducting its litigation. The matter is placed in the litigation "equation" at an early stage so that appropriate directions can be given for the timely disposition of the litigation. All these considerations emphasise that it is entirely inappropriate for a respondent to rely on and file a conditional appearance. 35 I should note here that the first respondent made submissions as to an inter-related issue; whether the Court should determine that the jurisdictional issue be determined as a threshold issue. My understanding is that the second respondent adopted a similar approach although, in the light of the approach that I earlier referred to, this was not emphasised in the second respondent's submissions with its counsel largely supplementing those placed before the Court by counsel for the first respondent. Nevertheless, the applications were argued, as I have said, on a basis which interconnected in a specific way the application for extension of time and the importance of the jurisdictional issues being determined as threshold questions. 36 I consider, as I indicated during argument, that the issue before the Court is whether the applications for extension of time be granted. The question of whether, if the applications to extend time are granted, the issues raised by the substantive jurisdictional motions should be dealt with at any particular time or in any particular order is a matter to be determined after the important extension of time issue is determined. However, I refer to those matters because they illustrate why I do not find that the applicant acted unreasonably or inappropriately in opposing the present applications. 37 Returning to the submissions for the respondents, the first respondent candidly accepted that the filing of the notice of conditional appearance was inappropriate. It, however, submitted that having established that there were appropriate reasons given for the delay in filing its motion there would be prejudice to it if the motion was not granted. It submitted that it had an arguable jurisdictional issue and it relied upon relevant authorities in that regard and also analysed the nature of the applicant's case to make out that submission. It also referred to the relevant principles in cases such as Nagle (t/as WD and JL Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-12 and also considered the approach discussed in the judgment in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 443-444, submitting that it satisfied the criteria to have its notice of motion dealt with, and that it should be granted leave for extension of time as a preliminary matter. The first respondent also relied upon a number of recent authorities in relation to the question of extension of time and said that the relevant considerations referred to in such cases have been satisfied. 38 Turning to the submissions of Mr Benson in opposing the application for extension of time, Mr Benson raised considerations of prejudice and pointed to the qualitative difference in the respective positions of his client and that of the respective respondents. He also, as would be expected in the light of the reliance by the respondents upon what they saw as the inter-related issues of extension of time and preliminary determination of the jurisdictional issues, referred to the now long standing jurisprudence of this Court as to such matters, exemplified by cases such as Nagle v Tilburg and Virtue v The New South Wales Department of Education and Training (1999) 92 IR 428 at 447-448 . 39 Mr Benson placed particular reliance upon the judgment of Hungerford J in Younan-Sedrak v State of New South Wales (Department of Public Works and Services) (unreported, 19 August 1999), and the approach taken by his Honour in requiring the conciliation mandated by s 109 of the Act to occur before preliminary jurisdictional issues were determined. I have already indicated my view that this latter issue is to be decided subsequent to the present one, and that the raising of it by the respondents inevitably resulted in the need for counsel for the applicant to raise the considerations he referred to. 40 Mr Benson also relied upon an amount of evidence which I do not refer to in detail. However, his particular reference to the evidence was to illustrate the jurisdictional connection between the arrangements involving the applicant and the first respondent, and also thereby the second respondent, and the connection territorially of those arrangements with the State of New South Wales. He also submitted that it was necessary for the Court to distinguish between the situation jurisdictionally of the first and second respondents and for the Court to recognise that the jurisdictional arguments foreshadowed by the first respondent were, in qualitative terms, considerably different to those foreshadowed by the second respondent. 41 In the light of those submissions and the matters raised by them and in the light of the history of the proceedings, including what, with the benefit of hindsight, can be seen to be a significant distraction from the proper processing of the matters by the filing inappropriately of the notices of conditional appearance, I find that the applicant's opposing of the present applications was, as I earlier indicated, not unreasonable and inappropriate. 42 I now turn to the relevant principles. Mr Moses submitted, and as I apprehend it, there is no dissent from the other parties to this approach, that the relevant principles as to the extension of time issue, could be usefully gathered from a number of recent decisions. Mr Moses submitted, and the second respondent also conceded, that the granting of an extension of time is not automatic. In order to exercise its discretion to extend time the Court requires inter alia proof that compliance with the rules will work an injustice upon the applicant for an extension of time. This requires the Court to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal to extend time. In this regard Mr Moses relied upon the decision of 31 January 2000 in New South Wales Teachers Federation v The New South Wales Office of the Board of Studies [2000] NSWIRComm 1 at 21-24, where I held: 21 The Commission and its predecessors have in the last few years considered the question of extension of time in some detail. I think it is sufficient to indicate that many of the considered or reported judgments deal with much more complicated applications or issues than the present application and some of them indeed deal with matters which raise other questions of principle which are not relevant to the present proceedings. In the latter respect I refer, by way of example, to the Full Bench judgment of the Commission in Court Session in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301, a judgment which I followed and applied in The De Luxe Cab Company Limited (formerly known as Deluxe Red and Yellow Cabs Cooperative Trading Society Limited) v Grenside (unreported, 5 January 1999). The Parkes Council case related to an out of time application, albeit only by a few days, in relation to a prosecution appeal against sentence. It seems to me that questions of principle raised by such an application do not apply here. 22 I should however note that many of the principles discussed in that judgment are relevant here. For example, that the grant of an extension of time is not automatic and the object of statutory provisions fixing a time to appeal is to ensure, so far as is reasonable, that the times fixed are obeyed. However, it is clear on the authorities that the times fixed - be they fixed by rules or statute - are not intended to be instruments of injustice and generally speaking the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties. In that regard the authorities make clear ( Parkes Council at 300): The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefor which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time. 23 I also had regard to the judgment relied upon by counsel for the unions. That is, the unreported judgment of Hungerford J dated 22 June 1990 in Famonselle Pty Limited v Nairne . I consider, as did Hungerford J, that it is relevant that no serious argument has been put in relation to the question of futility of the appeal or as to any prejudice if the application is granted. That is significant. 24 Applying the principles I earlier referred to, extracted from the Parkes Council case, I consider that having regard to the history of this litigation and to the conduct of the parties, what happened here can properly be described as a genuine and understandable error. I consider that it can also properly be found that if the extension of time was not granted there is a real potential for a grave injustice to the appellant unions and to their relevant members. On the other hand, I could not find that there would be any injustice to the employer if the extension of time was granted. 43 Since it was common ground between the parties that the principles as formulated by Mr Moses are the principles to be applied, I do not pause to consider whether that statement which related to an extension of time within which to appeal applied equally here. I leave open the possibility that the approach in these matters may be somewhat different but it is unnecessary to explore that possibility in view of the common ground. I should, however, add reference to another consideration which arose out of the discussions between the Court and the respective legal representatives concerning the question of prejudice. The relevant principle is usefully set out in one of the standard texts in this area. That is the work by Professor Bernard Cairns , Australian Civil Procedure , Law Book Company 4th edition, 1996 at 522 under the heading "Enlargement or abridgment of time". Omitting the footnotes the learned author said this: The court has jurisdiction to enlarge or abridge the times the rules set, even where the application is made after the time has expired. An extension may be granted conditionally on compliance with terms, such as he payment of the costs incurred by other parties on account of the application for the extension. Fixed time limits are always liable to cause hardship. The court has the jurisdiction to mitigate this by granting an appropriate extension. Lateness of itself is usually not a reason for refusing an extension of time. On the other hand, if an extension would cause damage to the innocent party that costs could not compensate, that would justify a refusal to extend time. The criterion for deciding applications for an extension of time is what is required in the interests of justice. A party does not have a right to an extension of time. 44 Apart from the reference to costs in that matter, what is said by Professor Cairns seems to me to be entirely consistent with the approach I adopted in the New South Wales Teachers Federation case. I did not, of course, refer to costs in that matter because costs were not an available or relevant consideration. 45 It is appropriate, therefore, to approach this matter on the basis set out in the decision referred to and also in terms of the summation of authority set out in the passage from Professor Cairns' book. I consider that, if I did not permit an extension of time, there having been an acceptable explanation given for the delay, injustice would be imposed on the first and second respondents. I do not consider the r 82 motions filed by the respondents could be said to be "futile". Once those conclusions are reached, the exercise of discretion to extend time has to be considered in terms of what is required in the interests of justice. Such consideration would, I consider, require the relevant discretion to be exercised and the grant of the respective applications. 46 On the material before me, I do not conclude that there is prejudice to the applicant of a kind which could not be compensated by an appropriate costs order, although due allowance has to be made for the fact that the need for the application to extend time and the consequences of the grant of that application, will certainly have an effect on the otherwise regular processing of the applicant's claim. Such matters are, of course, also material to the question of costs to which I shall come in a moment. I should, however, pause at this stage and indicate that I intend to grant the respondents' application for the extension sought. 47 I now turn to deal more particularly with the question of costs. Many of the relevant considerations have already been dealt with. I should, however, emphasise that I consider that this matter has been significantly complicated by the respondents' inappropriate filing of the conditional appearances. By referring to the matter in that way I am not being critical of either of the respondents. The situation of respondents who would take such a step in future may very well be different. 48 I acknowledge that the complications I have referred to are more easily identified with the benefit of hindsight but they are to be observed in any event. Taking all those circumstances into account, I consider that the appropriate order for costs in relation to the applications for extension of time is that the applicant's costs in relation to that matter should be borne by the first and second respondents (cf LEP International Pty Limited v Caine [2000] NSWIRComm 11 at 60). It was submitted by counsel for the second respondent that any costs order should be limited in some way, for example, by limiting it to the proceedings last Monday. However, considering all of the relevant circumstances I do not think that such a limitation should be made. 49 The only aspect upon which I am undecided is as to the form of the costs order. The issue is whether the costs should be borne jointly and severally by the first and second respondents, or whether they should each pay half of the respective costs. Perhaps that is a matter I could invite them to comment upon in a moment. (Discussion ensued between the parties as to costs, who then addressed his Honour) 50 Having now heard the first and second respondents on the question of costs, I make the following orders in relation to the present applications: 1. I grant the applications by the first and second respondents for an extension of time. 2. I order that the first and second respondents pay the applicant's costs of the motions to extend time. 3. I note that the first and second respondents accept that they should bear an equal division of the costs referred to in order 2 above. 51 I shall now hear the parties on the further directions that should be made in this matter. ~~oooOooo~~

Taudevin v Egis Consulting Australia Pty Limited and Another

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Judgment (9 paragraphs)

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Legislation Cited (1)

Cases Cited (8)

Cited By (4)