Australian Catholic Bishops Conference & Ors, Ex parte - Re Sundberg & Anor

[2004] HCATrans 191

[2004] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Registry  No C22 of 2000

In the matter of -

An application for Writs of Prohibition, Mandamus and Certiorari against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, Justice of the Federal Court of Australia

First Respondent

JOHN McBAIN

Second Respondent

Ex parte –

AUSTRALIAN CATHOLIC BISHOPS CONFERENCE and the AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH

Applicants/Prosecutors

Registry  No C6 of 2001

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, a Justice of the Federal Court of Australia

First Respondent

JOHN McBAIN

Second Respondent

Ex parte –

THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AT THE RELATION OF THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH

Applicant/Prosecutor

Notice of Motion

GLEESON CJ
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 2.35 PM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC:   May it please the Court, I appear with my learned friend, MS K.L. EMERTON, for the applicant by notice of motion, Women’s Electoral Lobby, which was the intervener in the proceedings.  (instructed by Blake Dawson Waldron)

MR M. CHRISTIE:   May it please your Honours, I appear with my learned friend, MR S.L, MOFFAT, for the respondents to the motion.  (instructed by John W. Ball & Sons)

GLEESON CJ:   Mr Maxwell, I am sure I have seen a document saying that the Attorney‑General does not intend to take part in the proceedings. 

MR MAXWELL:   Yes, your Honour.

GLEESON CJ:   Yes, Mr Maxwell.

MR CHRISTIE:   Your Honours, sorry for interrupting, but I seek leave to file in Court and read an affidavit of my instructing solicitor, Keith Chester Fleming, sworn yesterday.

GLEESON CJ:   Is there any objection to this, Mr Maxwell?

MR MAXWELL:   No, your Honour, there is not.

GLEESON CJ:   Let us have a look at that, Mr Christie.  Yes, we have read that affidavit.

MR CHRISTIE:   I also seek leave to file in Court and read an affidavit of Warwick John Neville sworn today.  I actually have an original and two copies.

GLEESON CJ:   Is there any objection to that?

MR MAXWELL:   Yes, there is, your Honour.

GLEESON CJ:   We had better have a look at it and you can tell us what the objection is.  What is the objection?

MR MAXWELL:   It is inadmissible as being wholly irrelevant to any issue before the Court, if your Honours please.  Mr Neville’s state of mind is nothing to the point.  There is no matter raised in the reply submissions dealing with the matter of pro bono, though I am happy to deal with it if the Court regards it as material.  We point out there is no issue raised against us concerning the nature of the costs relationship between our client and its solicitors, but this very last material seems to want to raise that point.  What Mr Neville might have thought the position was is neither here nor there, in our respectful submission.

GLEESON CJ:   We will reject that affidavit.

MR CHRISTIE:   May it please the Court.

GLEESON CJ:   Yes, Mr Maxwell.

MR MAXWELL:   Your Honours, we have set out in our outline, and indeed in a form in the affidavit of Ms Ierodiaconou, the essence of the application, but if ‑ ‑ ‑

GLEESON CJ:   Just let me get that affidavit.

MR MAXWELL:   Yes, your Honour.  It is an affidavit affirmed 8 April and I hope your Honours have it.  It does not look like we gave it to you in a convenient folder form, I am sorry.  It has many exhibits.  We have excerpted the relevant ones in the outline.

GLEESON CJ:   This looks like it.

MR MAXWELL:   That is it, your Honour, an affidavit of 15 pages and 40 paragraphs.

GLEESON CJ:   Is there any objection to that?

MR CHRISTIE:   No, your Honour.

GLEESON CJ:   Where does she deal with the explanation of the delay?

MR MAXWELL:   She does not, your Honour.

GLEESON CJ:   Where is the explanation of the delay?

MR MAXWELL:   There is not one.  I will deal with that matter, but we do not ‑ ‑ ‑

GUMMOW J:   Without evidence.

MR MAXWELL:   No, I will deal with the issue of delay, but we do not point to any particular circumstance which occasioned what is said to be a delay.  That is down to the question about the affidavit.  There is nothing in there about the delay.

GLEESON CJ:   What is the explanation why these proceedings were not commenced within a reasonable time of February 2003 when you were informed that they were not willing to pay your costs?

MR MAXWELL:   Your Honours, the explanation is in two parts.  First, that as the correspondence shows, the solicitors for Women’s Electoral Lobby were, perhaps unrealistically, optimistic until July 2003 that the good sense of their proposition about costs would be accepted.

GLEESON CJ:   But they were told in February 2003 that the answer was no and they commenced proceedings in May 2004.

MR MAXWELL:   Yes, your Honour is correct, and there is no explanation other than that it has taken until this time to bring the application.

GLEESON CJ:   Why?

MR MAXWELL:   I think your Honour has to infer that it has not been given the priority that it ought to have been given by those responsible for commencing it.

GLEESON CJ:   Your instructing solicitors are actually asking for indemnity costs of this application.

MR MAXWELL:   That is so, on the basis that the position for which we contend is unanswerable.  It put it as high as that.  I leave aside the question of delay.  In our respectful submission, a party in our client’s position is entitled to costs in the events which happened and that the opposition to it is without reasonable justification.  That is why we seek that.  In our respectful submission, this application should never have been necessary.  What has occurred is an adherence to what the solicitor for the respondents ‑ ‑ ‑

GUMMOW J: Wait a minute, Mr Maxwell. If one looks at the law report, one sees in 209 CLR 477, “Application dismissed with costs.” But then the order is taken out on 28 November 2002 and the order as settled is that the applicant pay the respondents’ costs of the application, which on its face would not include interveners.

MR MAXWELL:   Yes, your Honour, that is so, with respect, but, as we have sought to point out, that was an order taken out by Dr McBain, the second respondent, acting unilaterally, not on notice to our clients, and it was effected in exactly the terms your Honour says.  In our respectful submission, given what your Honour had said so emphatically at the first directions hearing, it was from that moment, in our respectful submission, established subject to order to the contrary that my clients were at risk for costs in the proceeding.  That is certainly the view we took, having looked at US Tobacco and what your Honour had said in that case.  We understood that we were a party for all purposes with all the benefits and all the burdens.

GLEESON CJ: The joint judgment of Justices Gaudron and Gummow in 209 CLR 410 paragraph 79 says:

The applicants together (including the Attorney‑General) should bear the costs of Dr McBain.

The formal order was taken out saying that the applicants should pay the costs of Dr McBain.  That was at the end of 2002.  By no later than February 2003 your clients were aware that the applicants were taking the attitude that they were not willing to pay your costs because of the terms of the order.

MR MAXWELL:   Your Honour, with respect, I accept that point and I have sought to deal with the issue of delay.  If I might respectfully put that on one side, there are two issues:  is there an entitlement to costs; and have my clients forfeited that entitlement by their delay or some other circumstance?

GLEESON CJ:   Do you mean a discretionary entitlement or an entitlement under the order?

MR MAXWELL:   An entitlement under the order which we seek.  We come here today to say that what the Court meant when it dismissed the applications with costs was that the applicants pay the costs of the successful parties.  Unequivocally, we were one successful party.  Indeed, without my client’s presence, to use his Honour Justice Gummow’s language, the proceeding would not have “got off the ground”.  That is what his Honour said to my learned friend, Mr McCarthy, at the first directions hearing. 

It did not seem to have been apprehended by the prosecutors that they needed a contradictor and his Honour patiently explained to counsel for the respondents that there was no one there to argue standing or discretion and that we would go first on those matters.  Accordingly, his Honour directed that we file our submissions first on those issues.  We did so.  At the second directions hearing his Honour asked me and my learned friend, Mr Jackson, for the prosecutors whether any other party would be arguing the substantive issues of certiorari and jurisdiction.

GLEESON CJ:   Mr Maxwell, does the affidavit of Ms Ierodiaconou exhibit the bill of costs that was prepared?

MR MAXWELL:   Yes, it does.

GLEESON CJ:   Where do we see that?

MR MAXWELL:   That is exhibit 1, your Honour, and it is behind the first letter sent at the beginning of 2003 for the solicitors for the prosecutors.

GLEESON CJ:   That comes to $216,000, does it?

MR MAXWELL:   That is correct, your Honour.  Your Honours are entitled to infer that the preparation of an 81‑page bill of costs takes some time and that would account for some at least of the period between the judgment in April and the first letter of early ‑ ‑ ‑

GLEESON CJ:   This letter was sent ‑ ‑ ‑

MR MAXWELL:   In February 2003.  Your Honour points out to me the response is short and to the point and the solicitor says “No, there is an order which says pay the costs of the respondents.  You’re not a respondent.  Bad luck”.  In our respectful submission, it is not to be ignored ‑ ‑ ‑

GUMMOW J:   This order in November, was that taken out without notice to any other party?

MR MAXWELL:   Yes, that is so, on my instructions.  It was certainly without notice to my clients.

GLEESON CJ:   Your clients found out about it when?

MR MAXWELL:   They found out about it – I will answer that ‑ ‑ ‑

GLEESON CJ:   They found out about it no later than February 2003.

MR MAXWELL:   Yes, your Honour, indeed earlier than that – September 2002, I am instructed.  We came to be aware that an order had been taken out.

GUMMOW J:   Where do we see that date?  Is that in the affidavit?  I may be wrong in thinking the order is taken out in November but that is what seems to have ‑ ‑ ‑

MR MAXWELL:   We have mentioned the date of the taking out of the order, your Honours, in the outline.  We have said there in paragraph 12 that shortly afterwards the solicitors for Dr McBain took out the order and the order is ‑ ‑ ‑

GUMMOW J:   Does it have a date stamp on it?

MR MAXWELL:   It has a date stamp which is illegible on my copy, I am sorry, your Honour.  At all events, your Honours can proceed on the assumption that we knew that we were not mentioned in the order and we are not.  We were never made a respondent as such, but we respectfully submit that there is a well‑established principle applicable, which is that an intervener, unlike an amicus curiae, is a party for all purposes without the Court needing to say so.  If a special provision as to costs is made as a condition of the intervention, as your Honour did in relation to the Australian Family Association and the Human Rights Commission, that is one thing, but otherwise your Honour said to counsel for the prosecutors, “If you want to seek to rescind the grant of leave, do so at the Full Court”.  “Try your luck”, I think your Honour said.  Of course, that never occurred.

GLEESON CJ:   I understand it to be common ground that the Court could have made an order for costs in your favour.  There is a dispute about whether the Court did and there is a dispute about whether the Court should have done, but that dispute now has a bit of age on it.

MR MAXWELL:   It has.  Your Honour, we will take the Court to some cases which have held that delay without prejudice does not result in forfeiture of an entitlement to costs.  It is true those are cases where a costs order was made but there was delay in enforcement but, in our respectful submission, the position is analogous.

HAYNE J:   Step one in your argument is that the order as taken out does not accurately reflect the order as made, so it is, if you like, an application under the slip rule to correct the order.  That, I would have thought, had to be done promptly.  A slip rule case promptitude is, I think, an element.  Your second level of argument is, “No, not a slip but now I am entitled”.

MR MAXWELL:   With respect, your Honour, we do not put it on the slip rule.  We put this as a supplementary order.  Indeed, the case we will take your Honours to, Caboolture, which deals lucidly with the limits on the power of the Court at common law to revisit a judgment, makes it clear that the Court has power to make an order supplementary to an order previously made, in particular where that is necessary for the enforcement or effectuation of the original order.

In our respectful submission, that is this case.  Certainly our fundamental position is that from the moment his Honour granted leave to intervene, we were the opposing party.  We were the only party who in the Court before the Full Court ran the substantive arguments saying there is no jurisdiction to grant relief; certiorari is not available against a Federal Court judge; you do not have standing; as a matter of discretion it should be refused.  All of those arguments were run by us because, as his Honour noted on the first day, but for those arguments being run, the case would not have got off the ground.

If it would assist, I would like to take the Court to the transcript of that first directions hearing because it is instructive.  It underlines the fact that we were a necessary party.  Had we sought to be joined as a party, it would, in our respectful submission, have been established for the reasons your Honour accepted that we were necessary for the case even to begin.  It may be difficult to find it, but it is in exhibit MJI‑12, the transcript of the first occasion.  If your Honours would go to the bottom of page 3, Justice Gummow says to Mr McCarthy:

Now, the second point that has to be taken on board is that at the moment you do not really have on the record a contradictor, which is a bit awkward in getting it ready for trial . . . Firstly, there would be debate about standing, but you have got no contradictor for that at the moment . . . 

Then there would be debate about discretion, and no contradictor there either at the moment.

Then his Honour at the middle of page 5, if I might take your Honours to that, said:

What I am minded to do is to have your submissions in by some time in June; at this stage to grant at least Mr Maxwell leave to intervene and to have his submissions some time in mid-July and your reply by the end of July . . . 

On standing and discretion, you would really be in reply I think because you would want to see what Mr Maxwell – he has really got the carriage of that, otherwise you will be maybe shadow boxing.

Then most importantly of all, at the top of the next page your Honour in the first passage says this:

And there has to be a contradictor and at the moment there is not and you cannot get off the ground without a contradictor because you do not know what case you have to meet on the question of standing for starters.

Then – and I will not take your Honours to it unless your Honours would be assisted by it – at the next directions hearing in August, his Honour asked senior counsel, Mr Jackson, for the prosecutors and me whether anyone else was arguing the substantive issues of jurisdiction and prerogative relief, and the answer was no.  This was a case between the prosecutors and my client about whether they were able to bring the proceeding and whether the Court had jurisdiction and whether certiorari would go and so on. 

The other interveners had limited roles only.  The Australian Family Association were on the prosecutors’ side subject to bearing their own costs.  HREOC was limited to the Sex Discrimination Act subject to bearing its own costs.  Dr McBain did not want to be here at all and in the end said nothing because the prosecutors abandoned their claim for prohibition against him.  That was the full panoply of appearances.  In short it was in the event ‑ ‑ ‑

GLEESON CJ:   He said nothing of a cost of representation of $100,000.

MR MAXWELL:   That is so.  We noted that figure, your Honour.  We trust your Honours were assisted by the submissions made on behalf of the Women’s Electoral Lobby – not that they were all accepted but the contention for which we stood up succeeded.  The Court unanimously dismissed the applications.  We were the successful party, accepting on the authority of US Tobacco that we were a party for all purposes.  We were, as we have pointed out, your Honours, under the High Court Rules at risk of an order for costs ‑ ‑ ‑

HAYNE J:   You mention the rules.  Can I just understand how the rules engage in this matter.  Firstly, the proceeding that came before the Full Court came before it, I take it, under Order 55 rule 2, was it, that a Justice directed the application to be made to a Full Court?

MR MAXWELL:   Yes, your Honour.

HAYNE J:   And adjourned the application so that notice might be given?

MR MAXWELL:   Yes, your Honour.

HAYNE J:   Was your client a person upon whom the notice of motion was served in accordance with 55 rule 5(1)?

MR MAXWELL:   I believe not, your Honour, no.  We heard about the proceedings and sought leave to intervene.

HAYNE J:   Thus, at least a view of the operation of the rules may be, may be not, that your client was not a party to the proceeding whose relevant initiating process was the notice of motion returnable before a Full Court served on various persons.  You were in the position of an intervener rather than in the position of a party.

MR MAXWELL:   Yes, your Honour, we accept that.  We came along later ‑ ‑ ‑

HAYNE J:   True it is the submissions you made were the only substantial contradiction being made of a number of arguments advanced by the applicants in each matter.  Where do we go from there in the argument?

MR MAXWELL:   Your Honour, if I might stay with the rules for a moment, if your Honours would go to Order 55 rule 12, which is the one we particularly sought to invoke, it deals with a slightly different point, with respect.  It says this:

At the hearing of the application, the Court or Justice shall hear any person who desires to oppose it and appears to the Court or Justice to be a proper person to be heard, notwithstanding that he has not been served –

as we were not.  Rule 12(2):

A person who is served . . . or who is heard under this rule, may be ordered to pay costs –

We took that risk and in any event, knowing the law under US Tobacco, which I am about to take the Court to, we knew and our client knew it was at risk that if it lost, it would pay costs.

At the second directions hearing – and I will take your Honours to this because it is an important passage.  It is exhibit 16 and if your Honours would go to page 10, where Mr Gageler had just finished applying to intervene on behalf of the Australian Family Association, your Honour asked me in reply and I referred first to your Honour having accepted the need for a contradictor.  Then at the foot of the page your Honour asked me about:

costs now of interveners, including yourself, or should I simply leave that for the Full Court?

At the top of the next page my answer was this:

we would have been content for costs to follow the event, subject to any further argument at the hearing.

In other words, that is only to be understood, in my respectful submission, that our costs would be costs following the event.  Nobody stood up and said, “No, if you win, you won’t get your costs”.  Accordingly, it was a matter for the Full Court.

Might I take your Honours to the Caboolture Case.  I hope we gave you a folder with the outline and Caboolture.  We gave your Honours the unauthorised report.  If I might hand up the Federal Court Report.  I think our learned friends may have done that as well.  Your Honours may recall this was the case where costs were eventually awarded against the solicitors for the plaintiff/applicant who had prosecuted the proceeding for an improper purpose.  In the proceeding the defendant won and had an order for costs.  The plaintiff went into liquidation, so the defendant came back to court, White Industries, seeking an order against the solicitors.  The first question:  is there jurisdiction?  Yes, there is.  Secondly, there has already been an order for costs made.  How can the court now make a different order for costs against a non‑party?  Held:  undoubtedly it can.  We would say we are a fortiori. 

If I might just take your Honours to the relevant discussion, it begins at page 234 under the subheading 2:

Whether the entry of judgment precluded an order for costs now being made

There is set out in the second paragraph the common law rule, which we accept, that the court lacks power to alter or set aside the judgment.  That is not what we are seeking.  Then their Honours at point 9 of the page say this:

That in an appropriate case a supplemental order may be made after judgment is entered, is clear from Preston Banking Co –

and I will not take your Honours’ time to read that.  Under the quotation now at 235 point 2:

Critical to the jurisdiction of the Court is first that the application not be one in any way to vary or alter the initial order.

In our respectful submission, we do not seek to do that.

The present application does not seek to do this.

Then there is a reference to Scowby, which was a supplemental order, and then under the quote from Scowby, we rely particularly on this passage:

There are many cases where supplemental orders will be made and the jurisdiction, while no doubt requiring caution, is not limited merely . . . to the making of orders in aid of the enforcement and working out of original orders, although the making of supplemental orders may be appropriate in such cases.

That is the jurisdiction we seek to enliven.  That is to say, in our respectful submission ‑ ‑ ‑

HAYNE J:   The order you seek would amplify the liability of those against whom you seek the order, would it not?  It would increase it.  They would now be liable for an extra on that bill were it to be taxed out at that amount, an extra $200,000, true?

MR MAXWELL:   With respect, your Honour, it depends how it is characterised.

HAYNE J:   No, just attend on my question, Mr Maxwell, if you would be so kind.

MR MAXWELL:   With great respect, your Honour, to vary the order that was made would be to, for example, say the costs of the respondents shall be paid on an indemnity basis.  That would be to vary the original order.  This is to supplement it.

GUMMOW J:   One question is:  was there or was there not ambiguity in the order pronounced by the Court when it delivered its reasons when it simply said “dismissed with costs”?

MR MAXWELL:   We say not.  We say that the Court unequivocally was saying the prosecutors should pay the costs of those who have successfully resisted their application.  First amongst those was my client.  We were the only one ‑ ‑ ‑

GUMMOW J:   But another point of view is open and the question then is:  has the opportunity for amplification of the order as pronounced been lost by the subsequent taking out of this order in November?

MR MAXWELL:   Yes, your Honour.  I should clarify the position.  I am instructed, contrary to what I said before, that we had notice of the taking out of the order by Dr McBain and we did not object.  So that is important for your Honours to know that.

GLEESON CJ:   Presumably you would have been invited to attend upon the settling of the order.  That is the way it works, is it not?

MR MAXWELL:   I would not be heard to say that if we had wanted to be heard – on the basis, as I am instructed, we were informed about it, we could have spoken up; I accept that, your Honour.

GLEESON CJ:   I am not saying you had to be there, but I understand the way the system works.

MR MAXWELL:   We were on notice of the taking out of that order.

GUMMOW J:   The order having been taken out and having been settled and having amplified, in a way you find unattractive, the order pronounced, what then can you do?  It is a settled order, you had the opportunity to object.  You did not object.  Then on top of that there is the question of delay.

MR MAXWELL:   Yes.  If I might again…..only because there are other authorities I want to take your Honours to about that, we respectfully submit – and this was the thrust of what I was seeking to say to Justice Hayne ‑ ‑ ‑

GUMMOW J:   It seems to me it is critical that your clients did not turn up on this settlement.  There is a view in the profession that settlement of orders is just some optional extra.  Well, it is not.  It is a central act that brings the litigation to an end.

MR MAXWELL:   With respect, I understand the force of that.  The submission has to be that that is an incomplete working out, to use the phrase from Caboolture.  It is an incomplete working out of what the members of the Court intended when they dismissed the applications with costs.  If that is right, if your Honours in April 2002 would have said yes, of course WEL should have its costs – and we respectfully say that is the conclusion your Honours would have come to if asked – then the Court would be slow to deny my clients the benefit of that intention if we are right in saying it was that which informed that shorthand dismissal of the applications.

GLEESON CJ:   I cannot help wondering, Mr Maxwell, what would happen to a litigant in person who commenced proceedings 18 months after an order had been formalised complaining about the form of the order.  Then I cannot help wondering why a litigant in your client’s position, represented as it is, should be better off.

MR MAXWELL:   With respect, I accept the force of what your Honour puts to me, but the fact that an unrepresented person would have greater difficulty making the submission I am making than I do does not make it illegitimate, in my respectful submission.  Your Honour’s point, if it is right, about delay is good for represented and unrepresented parties alike, I am entitled to rely on a point just as my learned friend in the preceding case was entitled to point out 67ZK, or whatever it was, which the litigant in person did not understand.  It is a point to be taken.  If we are right that as a matter of doctrine we were entitled to our costs and the tenor and intent of that result in the proceeding should now be effectuated, then that is what should occur, in my respectful submission.

GUMMOW J:   Yes, but it should occur when the order is settled and taken out.  That is the primary position surely.

MR MAXWELL:   If we have by omission allowed the opportunity to pass, then so be it.  In our respectful submission, that is not the answer.  The Court should be prepared to say there is an injustice when in that event there is not a recovery of costs by the party which was in much more significant ways than Dr McBain the opposing party which successfully defeated the applications. 

Might I show your Honours the cases on delay.  There is a decision of her Honour Justice Stone in Wodrow v The Commonwealth, if I might hand three of those to your Honours.  Your Honours will see from paragraph [2] of her Honour’s reasons for judgment that special leave was refused in October 1994 with costs.  More than six years later the Commonwealth filed an application for taxation of its costs and the applicant came along to say that application should be dismissed or stayed or that there should be a limit of costs to $1.  That was a very substantial delay and it is true that was a party which already had an order in place, but her Honour said at paragraph [6]:

It is as well to state forthwith that, in my opinion, delay in enforcing the costs order without any other complicating or exacerbating factor is not a ground for the relief the applicant seeks. 

GUMMOW J:   This is in enforcing an order.

MR MAXWELL:   It is indeed, your Honour.  It is distinguishable on that ground.  We, however, bring ourselves within this principle by saying we are enforcing the order which we obtained when judgment was handed down initially when the Court said “Applications dismissed with costs”.  That was costs following the event, as I had said to Justice Gummow at the directions hearing, and no one had objected then.  No one had said, “No, you’re an intervener.  You won’t get yours”.  That is, in our respectful submission, exactly what the Court intended and what justice required and it was so obvious that it went without saying.  Given what the report shows about the argument we put, what Justice Kirby says in his reasons for judgment about how essential it was to have the interveners, that is what the Court meant then and we had an entitlement which we have been slow in enforcing by seeking this supplementary order.

GUMMOW J:   I do not think you had an entitlement.  You had a prospect of applying under the slip rule to disturb a settled order.  There is no question of reopening it, so it is the slip rule or nothing, I think.

MR MAXWELL:   Or, if it is a separate category, this notion of a supplemental order.  We respectfully submit, going back to Caboolture, the orders made against the only party which is the defendant becomes insolvent.  The defendant comes back and says, “Well, the plaintiff can’t pay.  I want a non‑party to pay costs”.  That is a new subject matter, it might be said, and the court says no, that is only supplemental.  In our respectful submission, to order an unsuccessful applicant to pay the costs of another party in addition to one already ordered to be the beneficiary of costs is supplemental.  That is not to vary the first order.  It is to supplement the first order by a further order that costs of this party be paid.  In our respectful submission, that is a jurisdiction the Court has and it is not a slip.  It is supplementary to the order made.  It does not vary it; it adds to it.  It makes more complete the working out of the Court’s original order at the time judgment was handed down.

Your Honours, I think the only other reference in that case of Wodrow was at the end of paragraph [7] where her Honour said in the last sentence:

Mere delay in enforcing a right may raise a hope that it will not be enforced but it cannot raise a reasonable expectation or amount to a representation that the right will not be enforced.

There is no prejudice to these applicant parties, respondents to this application, as a result of the delay.  None is suggested.  It is just said that delay is a disqualifying factor for my client, but there is no prejudice in the time it has taken since the final refusal in July last year and this application.

Your Honours, finally if I might take the Court to what was said in US Tobacco 20 FCR 520, which is under tab 2 in the folder we gave your Honours. The sentence from that judgment on which we rely as set out in the outline is at 534 point 9. Your Honours will see after the reference to Bradley the court says, leaving out the parenthetical remarks:

An intervener . . . becomes a party to the proceedings with the benefits and burdens of that status.

Then a reference to Bradley which we have given your Honours, where his Honour Mr Justice Hutley said:

“A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party –

which would include an entitlement to costs and, as your Honours know, a right to appeal, as the Attorney‑General for the Commonwealth did in the Boilermakers’ Case, although he had only intervened in the proceeding.

In our respectful submission, that distinction which the Federal Court and the New South Wales Court of Appeal had emphasised between an amicus which has no such privileges and an intervener which does is one which this Court should accept and apply in this particular case.  Your Honours, for those reasons, in our respectful submission, the order should be made supplemental to the previous order of the Court in the terms set out in the notice of motion.

GLEESON CJ:   We will just adjourn for a couple of minutes to consider the future course of this matter.

AT 3.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.32 PM:

GLEESON CJ:   We do not need to hear you, Mr Christie.

On 18 April 2002 in Canberra the Court delivered its reasons for judgment in matters C22 of 2000 and C6 of 2001.  On that occasion the Court announced the following orders in each matter:  “Application dismissed with costs”.

On 28 November 2002, after notice to all parties including interveners, including the Women’s Electoral Lobby (Victoria) Inc, formal orders were settled and made in each matter.  In each case the terms of the formal orders were as follows: 

The Court orders that: 

1.        The application be dismissed;

2.        The applicants pay the respondents’ costs of the application.

In each case the order listed the applicants, the respondents and the interveners.  In each case the order recited that there was no appearance for the first respondent, that Ms Hampel, QC, and Mr Moloney appeared for the second respondent, and the order identified the interveners and counsel who appeared for them.  One of the interveners identified was the Women’s Electoral Lobby (Victoria) Inc. 

There was no ambiguity in the terms of the formal orders that were settled and made on 28 November 2002.  Pursuant to those orders, the applicants in matters C22 of 2000 and C6 of 2001 paid the costs of the respondent, Dr McBain, in an amount of approximately $100,000.  The orders said nothing about the costs of any interveners.

By a letter dated 6 February 2003 from the solicitors for the intervener, the Women’s Electoral Lobby, to the solicitors for the applicants in the two matters, the Women’s Electoral Lobby requested payment of its costs in the proceedings and attached a detailed bill of costs showing the total amount to be $216,381.

By a letter dated 13 February 2003 the solicitors for the applicants in the proceedings declined to pay the costs of the Women’s Electoral Lobby on the ground that the Women’s Electoral Lobby was an intervener and was not covered by the terms of the orders made on 28 November 2002.

On 14 April 2004 the solicitors for the Women’s Electoral Lobby filed notices of motion in each matter and it is those notices of motion that are presently before the Court.  The substantial effect of the notices of motion is to seek orders relating to the payment of the costs of the Women’s Electoral Lobby by the applicants in the proceedings.  The jurisdiction invoked by the motions is either a jurisdiction to rectify the formal orders made on 28 November 2002, or to supplement those orders.  It is unnecessary to decide which.

In either case such application should have been made promptly, or alternatively, the Court should have been provided with an adequate explanation of the delay.  The applications were not made promptly.  In neither case was the Court provided with an adequate or any explanation of the delay.  For those reasons we consider that each application should be dismissed with costs.

MR CHRISTIE:   I seek an order for costs.

GLEESON CJ:   I have covered that.   The order of the Court is that each application is dismissed with costs.

We will adjourn until 10.15 am on 15 June 2004 in Canberra.

AT 3.39 PM THE MATTERS WERE CONCLUDED