Frost v The Speaker of the Legislative Assembly of New South Wales (No 2) [2001] NSWIRComm 14 (23 February 2001)

Last Updated: 20 March 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Frost v The Speaker of the Legislative Assembly of New South Wales (No 2) [2001] NSWIRComm 14

FILE NUMBER(S): IRC 650

HEARING DATE(S): 31/01/2001

DECISION DATE: 23/02/2001

PARTIES:

APPLICANT

Kristine Frost

RESPONDENT

The Speaker of the Legislative Assembly of New South Wales

INTERVENER

Peter Richard Nagle

JUDGMENT OF: Hungerford J

LEGAL REPRESENTATIVES

APPLICANT

Mr A S Howen of counsel

Solicitors: Mr V M Dominello

Etheringtons

RESPONDENT

No appearance on motions

INTERVENER

Mr S C Rothman SC with Mr I C Latham of counsel

Solicitors: Mr M F Williams

Barclay Benson Lawyers

CASES CITED: Anderson v Boner [1993] 52 IR 114

Baltic Shipping Co v Dillon "Mikhail Lermonotov" (1991) 22 NSWLR 1

Boner v Anderson (No 2) [1993] 50 IR 470

Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354

Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358

Laguillo v Haden Engineering Pty Ltd [1978] 1 NSWLR 306

Latoudis v Casey (1990) 170 CLR 534

Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, ex parte Lai Qin (1997) 186 CLR 622

Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

LEGISLATION CITED: Industrial Relations Act 1996 s 105 s106 s 181

Industrial Relations Commission Rules 1996 r 12(3) r 68 r 138 r 139 r 140 r 141 r 215

JUDGMENT:

- 43 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: HUNGERFORD J

Friday, 23 February 2001

Matter No IRC 650 of 1999

KRISTINE FROST v THE SPEAKER OF THE LEGISLATIVE ASSEMBLY OF NEW SOUTH WALES

Application under section 106 of the Industrial Relations Act 1996 re unfair contract.

JUDGMENT

(on motion re costs)

[2001] NSWIRComm 14

1    The Court has before it two notices of motion filed in proceedings under s 106 of the Industrial Relations Act 1996 brought by Kristine Frost against the Speaker of the Legislative Assembly of New South Wales for relief relating to an alleged unfair contract of employment between Ms Frost and the Speaker. The first motion was filed on 1 July 1999 on behalf of Peter Richard Nagle for an order that he be granted leave to intervene in the s 106 proceedings. The second motion was filed on 14 November 2000 on behalf of Ms Frost, as the applicant in the substantive proceedings, for orders that Mr Nagle's motion for intervention be dismissed with costs for both motions.

2    The motions were heard on 31 January 2001. Appearances were entered by Mr A S Howen of counsel for Ms Frost and by Mr S C Rothman SC and Mr I C Latham of counsel for Mr Nagle; the Speaker, the respondent in the substantive proceedings, earlier advised through his counsel, Ms T J Anderson, that he did not wish to be heard on the motions and so leave was granted to his counsel to withdraw from this part of the proceedings. The hearing of the motions proceeded accordingly, save that, as will later appear, the issue to be determined was limited to the question of the costs of each motion on Mr Nagle's solicitors informing Ms Frost's solicitors by letter dated 29 January 2001 "that our client does not, at this time, intend to intervene in the IRC proceedings and will discontinue his Motion in this respect. We will attempt to file the relevant documentation tomorrow".

3    I interpose the comment that by letter dated 23 January 2001 Mr Nagle's solicitors advised the Industrial Registrar that in order to prepare for the hearing of the motions on 3 January 2001 "it is imperative that we inspect the file and request leave to do so this week". That request was referred to me and I heard the parties thereto on 30 January 2001. In the result, and pursuant to r 12(3) of the Industrial Relations Commission Rules 1996, I ruled I was not satisfied it was appropriate to permit a search of the file. In so ruling I had very much in mind the intention of Mr Nagle, as expressed in the letter of 29 January 2001, to discontinue his intervention application so that for practical purposes any hearing would be limited to the issue of costs as sought by Mr Howen.

4    However, at the commencement of the hearing on 31 January 2001, Mr Rothman stated that the Registry had declined to accept for filing the proposed notice of discontinuance. Presumably, that was because the notice was not endorsed with the consent of all parties in the proceedings, as required by r 138(1)(a) to permit discontinuance without leave. Mr Rothman, therefore, sought the Court's leave to discontinue or, alternatively, that Mr Nagle withdrew the intervention application with, in either case, no order as to costs. On the other hand, Mr Howen claimed an order dismissing the motion with costs. There was some debate as to whether what was intended to be achieved was truly "discontinuance" or "withdrawal" under Pt 19 of the Rules or, indeed, neither, but simply reflected the fact that intervention at this time was not pursued with the right to renew the application in the future should circumstances change. I granted leave for the notice of discontinuance to be filed in court. I then heard counsel fully on the question of costs and reserved judgment.

5    The matters fall for consideration in a context where Ms Frost under the impugned contract of employment with the Speaker performed work in the electorate office of Mr Nagle as the Member for Auburn in the Legislative Assembly of the State. Although she was, therefore, an employee of the Speaker, the purpose of the employment was to enable her to perform work for Mr Nagle in his capacity as a parliamentarian and in respect of which she was subject to his direction and control.

6    In its terms, the initiating summons alleged the contract of employment was, or during its operation became, an "unfair contract" (as that phrase is defined in s 105 of the Industrial Relations Act) as would warrant it being declared wholly or partly void, or varied, under s 106(1). Also, an order was claimed pursuant to s 106(5) for the payment of money by the Speaker to Ms Frost in connection with the contract so declared void or varied as was considered just in the circumstances of the case, together with interest and costs.

7    An order or other relief, as such, was not sought against Mr Nagle and he was not cited as a respondent party to the proceedings. Nevertheless, it is fair to say that Ms Frost's claims related very much to allegations against Mr Nagle in his conduct as affecting her performance of the contract for the Speaker. It is unnecessary for present purposes to detail the grounds relied upon by Ms Frost in that respect, it being sufficient to indicate that the nature of the allegations made was such as to raise, perhaps understandably, Mr Nagle's interest.

8    Although the effective issue for determination here was the costs of the two motions, whether to be in favour of Ms Frost against Mr Nagle or for the parties to bear their own, it is only proper to consider the costs issue by reference to the manner in which the primary issue of intervention should be disposed of. The motion for leave to intervene was not sought to be agitated by either party thereto. However, no doubt having in mind implications for costs, counsel debated at some length by what were opposing submissions the courses available under the Rules to achieve what was mutually desired, namely, the non-intervention of Mr Nagle in the proceedings, and specifically as involving rr 138, 139, 140, 141 and 215. It is unproductive to now recite those submissions, many of which on both sides were, I think, not entirely in conformity with the Rules.

9    It is plain, it seems to me, that Mr Nagle, as the notice filed in court by Mr Rothman on 31 January 2001 said, "discontinues the Motion seeking leave for him to intervene in the proceedings herein". Mr Howen consented to the discontinuance provided an order for costs was made in favour of Ms Frost; as there was no appearance for the Speaker, nor any other endorsement on the notice as to his attitude, it must be taken that the Speaker as a party to the proceedings did not consent. In that situation, it is convenient to review the provisions of the relevant Rules, which state as follows :

Discontinuance

138.(1) A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings so far as concerns the whole or any part of any application made by that party:

(a) where the party or the party's solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent; or

(b) with leave of the tribunal.

(2) Leave of the tribunal may be given in Chambers without the appearance of any person.

Withdrawal of process in the nature of defence, reply etc.

139.(1) A party raising any matter in process by way of a defence or reply or in a subsequent process may withdraw that matter at any time.

(2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the tribunal, an admission or any other matter operating for the benefit of that other party.

Terms of leave

140. A tribunal may give leave under Rule 138 or Rule 139 on terms.

Mode of discontinuance or withdrawal

141.(1) Except with leave of the tribunal, a discontinuance or withdrawal under Rule 138 or Rule 139 must be made by filing a notice stating the extent of the discontinuance or withdrawal.

(2) Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party.

...

Discontinuance

215. Where pursuant to Part 19 a party to any proceeding discontinues the proceeding without leave as to whole or any part of the relief claimed against any other party, the discontinuing party shall, unless the Commission otherwise orders, pay the costs of the party against whom the discontinued claim was made incurred before service of notice of the discontinuance and the latter party may request the Commission or the Registrar to make an order accordingly.

10    Supervening those Rules, s 181(1) of the Industrial Relations Act relevantly states as to costs :

181 Costs

(1) Subject to the rules of the Commission and any other Act or law:

(a) the Commission may award costs, and

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

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

(d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

...

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Commission, and

(b) ...

11    I am satisfied that the motion presently before me by Mr Nagle for intervention in the substantive proceedings brought by Ms Frost under s 106 is itself a "proceeding" as referred to in r 138(1) and Mr Nagle is the applicant party thereto; Ms Frost is a respondent party as is the Speaker being the sole respondent in the substantive proceedings. The status of the motion as being a "proceeding" arises due to r 68 providing that "an interlocutory or other application in relation to proceedings already commenced must be made by motion" - the intervention application was, and was required to be, so made and, therefore, is a proceeding comprehended within r 138(1) and capable of being discontinued thereunder. However, the notice filed to achieve discontinuance did not indicate the consent of all other parties so that, in my view, any discontinuance could not be pursuant to para (a) of the sub-rule but only, if at all, with the leave of the Court under para (b) thereof. Consistent with r 141, the notice indicated that the extent of the discontinuance was the whole of the motion for intervention: see sub-r (1); and the absence of consent being endorsed on the notice meant that the discontinuance was not by consent and leave was required: see sub-r (2). Leave to discontinue may be granted by the Court on terms: see r 140; in my view, a term of the grant of leave may properly involve the determination of the costs of the discontinued motion.

12    The proposition of Mr Rothman that the motion for intervention may be "discontinued" or, alternatively, "withdrawn" may be dealt with quite shortly. "Withdrawal" is covered by r 139 but sub-r (1) thereof expressly restricts it to "any matter in process by way of a defence or reply or in a subsequent process" - the motion for intervention was not, in my view, such a matter but rather was an initiating application by Mr Nagle to give him a status he did not then enjoy. Therefore, apart from the motion being dismissed, I am satisfied the only appropriate disposition of it where it was not sought to be pursued is by discontinuance; the hearing of the motion had not begun and, so, the procedure of discontinuance under r 138(1) was properly available. During the course of argument, Mr Rothman accepted this and did not press the alternative application for withdrawal of the motion.

13    In any event, the distinction between discontinuance, on the one hand, and withdrawal, on the other, for present purposes of costs is not of any real significance where the discontinuance is required to be by leave under r 138(1)(b). However, in other situations where a discontinuance is without leave under r 138(1)(a) there may well be implications for costs having in mind r 215 which, unless an order be made otherwise, requires the discontinuing party to pay the costs of the party against whom the discontinued claim was made up to the time of service of the notice of discontinuance.

14    The only provision in the Rules as to the costs of discontinuance is r 215 but which rule is expressly limited to any proceeding discontinued without leave - as the present matter requires leave, this rule has, therefore, no application. However, it is not irrelevant in considering the scheme under the Rules in Pt 27 as to costs to note that under r 215 "the discontinuing party shall, unless the Commission otherwise orders, pay the costs of the party against whom the discontinued claim was made incurred before service of notice of the discontinuance". It would seem to me to be a reasonable inference, then, that where a party discontinues a proceeding by leave the rule suggests the costs of the other party are within the discretion of the Court as a term on which leave may be granted. In any event, I regard s 181 of the Industrial Relations Act as enabling the Court to exercise discretion whether to award costs and to determine by whom and to what extent such costs are to be paid.

15    The circumstances here are such that I consider Mr Nagle should be granted leave to discontinue his motion for intervention in the substantive proceedings pursuant to r 138(1)(b) of the Rules, but subject to consideration of a term as to costs under r 140. I do not think the appropriate disposition of the intervention motion is its dismissal because there has not been to any extent a hearing of the merits of such application, and that is so even though the practical effect here between discontinuance and dismissal may be of little consequence. As to the costs of the motion brought by Ms Frost for an order dismissing Mr Nagle's motion to intervene in the substantive proceedings, that too may, in my view, be properly considered for an appropriate costs order on the discontinuance of the motion to intervene as being the costs of or incidental to such motion; "costs" are defined in that way in s 181(4)(a) of the Industrial Relations Act and so the costs of the dismissal motion are within the general discretion of the Court under s 181(1) thereof.

16    The order for costs sought for Ms Frost by Mr Howen was for costs on an indemnity basis or, in the alternative, on the more usual party-party basis. It has been said in the authorities over time that a principle of importance is that, as a general rule, a successful party is entitled to costs or, put another way, costs follow the event: see eg per Reynolds JA, with whom Hutley JA and Glass JA agreed in Laguillo v Haden Engineering Pty Ltd [1978] 1 NSWLR 306 at p 308. Further, indemnity costs are awarded, as Hill J concluded in Boner v Anderson (No 2) [1993] 50 IR 470 at p 475, "in a case in which there are special or unusual features of an unmeritorious or improper nature surrounding the case of one party (usually the loser) which make it unreasonable and unfair that the successful party should be out of pocket as a result of the proceedings": see also as to indemnity costs Degmam Pty Ltd (in Liq) v Wright (No 2) [1983] 2 NSWLR 354; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Baltic Shipping Co v Dillon "Mikhail Lermonotov" (1991) 22 NSWLR 1 at pp 33-34; Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103; and Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at pp 369-370.

17    Whilst costs, if they are to be ordered, may be made on various bases, it is clear from s 181(1) of the Industrial Relations Act that any award is within the discretion of the Court and such discretion is to be exercised judicially. In that respect, I respectfully adopt the following statements by Hill J in Boner v Anderson (No 2) (50 IR at p 475):

It is unnecessary to traverse the cases in any detail; they demonstrate in one form or another special or unusual circumstances which manifest themselves in improper or unmeritorious conduct by the unsuccessful party, as for example, in cases involving the maintenance of a vexatious claim or defence, the institution and/or maintenance of an action or defence which, while not vexatious or involving an ulterior or collateral purpose, may, on a rational basis, be described as untenable or doomed to failure and cases where a party has conducted its case in wilful disregard of known facts or clearly established law. However, even where there are special or unusual circumstances attaching to a particular case it does not follow as of course that indemnity costs will be awarded. But it may be observed, and the authorities demonstrate, that the categories of special or unusual circumstances justifying indemnity costs are not closed; a too rigid or narrow approach can lead to error in the exercise of the discretion.

On appeal in Anderson v Boner [1993] 52 IR 114 at p 120, a Full Court of the former Industrial Court approved his Honour's views.

18    Of course, in the present case the relevant "event" by which the success of Ms Frost may be measured as to whether a costs order should be made, and if so on what basis, involved not only the fact of Mr Nagle's intervention application but a consideration of its inherent merits - that consideration has been avoided by his discontinuance and Ms Frost, in a sense, has been successful by default. Unlike a discontinuance without leave, which pursuant to r 215 would attract a costs order "unless the Commission otherwise orders", the Rules are silent as to the costs of a discontinuance with leave. Thus, as I intimated earlier, it necessarily falls to be considered under s 181(1) as an exercise of judicial discretion but, consistent with r 140, as a term on which leave to discontinue may be granted.

19    The problem of determining a costs application, as here where the proceedings on their merits become unnecessary except for the purpose of determining the costs question, arose before McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622. His Honour approached it in this way (186 CLR at pp 624-625) :

In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs (Latoudis v Casey (1990) 170 CLR 534). Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order (Latoudis (1990) 170 CLR 534 at 543, 566-568). When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order.

In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties (Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201). To do so would burden the parties with the costs of a litigated action which by settlement or extracurial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action (Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201). In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd ([1971] QWN 13), the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission (unreported; Federal Court of Australia; 10 February 1989) where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases (see, eg, Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194; Seventh Mingcourt Pty Ltd v Lawrence (unreported; Federal Court of Australia; 1 August 1996), per Branson J; Coleman v City of Melville (unreported; Supreme Court of WA; 22 September 1994), per Scott J; Compadres Australia Pty Ltd v Waterfront Place No 2 Pty Ltd (unreported; Supreme Court of Q; 15 August 1995), per MacKenzie J; Inprint Ltd v K & D Media Pty Ltd (unreported; Federal Court of Australia; 22 December 1995), per Einfeld J; Australian Securities Commission v Berona Investments Pty Ltd (1995) 18 ACSR 772.) (emphasis added)

20    I would only add in considering the proper approach to this matter what Mason CJ observed in Latoudis v Casey (1990) 170 CLR 534 at p 543 that "costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings". In that same case, McHugh J said (170 CLR at pp 566-567) :

An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connexion with the litigation: Kelly v Noumenon Pty Ltd (1988) 47 SASR 182, at p 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the successful party. In Cilli v Abbott (1981) 53 FLR 108 at p 111, Keely, Toohey and Fisher JJ pointed out that "the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings": see also Anstee v Jennings [1935] VLR 144 at p 148.

21    In light of the principles thus established, and I so propose to consider the present case, it is necessary, it seems to me, to consider whether Mr Nagle acted reasonably in bringing the motion for intervention and the manner in which he pursued it, including the circumstances in which it was discontinued, together with whether the conduct of Ms Frost was reasonable in resisting the intervention application by seeking its dismissal. Those questions require attention to the history of this litigation and the way in which it developed, a series of events which was somewhat complex. I therefore approach it by summarising the relevant facts directly relating to the intervention issue, as follows :

(1) On 16 February 1999, Ms Frost filed her summons for relief, with a supporting affidavit, against the Speaker under s 106 of the Industrial Relations Act. Both the summons and affidavit alleged certain unfavourable conduct by Mr Nagle as it affected the performance of work by Ms Frost under her contract of employment with the Speaker.

(2) On 4 March 1999, a notice of motion was filed on behalf of Mr Nagle seeking a non-publication order in relation to the originating summons and supporting affidavit and an order suppressing the names of the parties and the existence and nature of the proceedings, with costs; on hearing counsel for Mr Nagle (Mr W R Haylen QC and Mr Healey), Ms Frost (Mr Ford) and the Speaker (Ms Rogers), Peterson J by consent made the orders sought and reserved costs.

(3) On 22 April 1999, at a directions hearing before the Industrial Registrar concerning Ms Frost's summons, Ms N H Rudland of counsel appeared for Mr Nagle; counsel for Ms Frost, Mr D H Patch, objected to the appearance for Mr Nagle as he was not a party and his status was that of a witness in the substantive proceedings. The status of Mr Nagle was reserved for later consideration. An amended summons was filed for Ms Frost in the proceedings and the Speaker's solicitor foreshadowed the filing of a notice of motion for an order striking out Ms Frost's summons.

(4) On 5 May 1999, a notice of motion was filed for Mr Nagle claiming orders for Ms Frost's amended summons and supporting affidavit to be taken off the file and/or struck out and an order for costs on an indemnity basis; the essential ground relied upon was abuse of process.

(5) On 11 May 1999, a directions hearing was held before Peterson J as to Mr Nagle's motion and a further notice of motion filed for the Speaker to strike out Ms Frost's amended summons, with costs. Objection was taken by Mr Patch to Mr Wilson's appearance for Mr Nagle on the Speaker's motion but the concession was made that if Mr Nagle sought leave to intervene it would likely be granted; Ms Anderson sought to have listed for hearing the Speaker's motion. Proceedings were adjourned for re-allocation to another judge due to Peterson J being unable to deal with the matter in a timely way because of proposed absence on leave.

(6) On 7 June 1999, the matter (including the notices of motion) was before Hungerford J for directions - appearances were entered by Mr Haylen for Mr Nagle, Mr Howen for Ms Frost and Ms Anderson for the Speaker. Mr Howen objected to any appearance for Mr Nagle as his standing was solely that of a witness in proceedings to which the Speaker was the respondent - Hungerford J noted the application and gave leave to renew it.

Hungerford J indicated prima facie view that the continuation of the suppression orders made on 4 March 1999 by Peterson J, having in mind Mr Nagle's desire that they continue, be referred for consideration and determination by a Full Bench.

Mr Howen applied for the suppression orders to be vacated forthwith or, alternatively, that the issue be referred to a Full Bench. Ms Anderson made no submissions on the issue of the future operation of the suppression orders. Mr Haylen, in the absence overseas of his client, was unable to respond to the question of reference of the matter to a Full Bench. Mr Howen foreshadowed an application relating to the standing of Mr Nagle in the proceedings.

Hungerford J referred the matter to the President for it to be decided by a Full Bench.

(7) On 8 June 1999, a directions hearing was held before the Full Bench. Appearances were entered by Mr Howen for Ms Frost, Ms Anderson for the Speaker and Mr Haylen with Mr Wilson for Mr Nagle. Mr Howen again raised the issue of Mr Nagle's standing and appearance in the proceedings. Arrangements were discussed for the hearing of the suppression order question at the earliest possible time; matter adjourned to a date to be fixed.

(8) On 15 June 1999 a directions hearing was held before the Full Bench; Mr Howen appeared for Ms Frost, Ms Anderson for the Speaker and Mr Wilson for Mr Nagle. Mr Howen again foreshadowed a notice of motion for a declaration that Mr Nagle had no standing in the proceedings, other than as to the issue of the suppression orders which had been obtained originally on his application. Ms Anderson indicated the Speaker would be making no submissions on the suppression order issue. Mr Wilson sought a joint hearing by the Full Bench of both the suppression order question and the application to strike out Ms Frost's amended summons and supporting affidavit. Directions were made by the Full Bench granting leave to Ms Frost to file and serve by 17 June 1999 a notice of motion regarding the suppression orders and the standing of Mr Nagle; those two matters to be heard by the Full Bench on 24 June 1999.

(9) On 18 June 1999, a notice of motion was filed on behalf of Ms Frost for an order setting aside the suppression orders made on 4 March 1999 and for a declaration that Mr Nagle had no standing in the proceedings; the motion sought a further order that Ms Frost's costs be paid by the Speaker and by Mr Nagle.

(10) On 22 June 1999, Mr Nagle's solicitors wrote to Ms Frost's solicitors foreshadowing an application to be made to the Full Bench on 24 June 1999 that Mr Nagle be granted leave to intervene in the proceedings.

(11) On 23 June 1999, Mr Nagle's solicitors served Ms Frost's solicitors with a copy of a proposed notice of motion for Mr Nagle to be granted leave to intervene in the proceedings.

(12) On 24 June 1999, the hearing of the notices of motion commenced before the Full Bench; Mr Howen appeared for Ms Frost, Mr P Menzies QC with Ms Anderson appeared for the Speaker, Mr Rothman with Ms Rudland and Mr Healey appeared for Mr Nagle and Mr M G Sexton SC appeared for the Attorney-General as amicus curiae. As to the issue of the suppression orders, there was no objection to Mr Rothman appearing so that the hearing proceeded as to the suppression issue, then, to the extent relevant, the standing of Mr Nagle and, then, the balance of any other issues.

Following discussions between the parties, which involved concessions on all sides, the Full Bench indicated proposed orders to be made to the effect that the suppression orders be vacated, the supporting affidavit of Ms Frost in the substantive proceedings be taken off the file, Ms Frost be given leave to file and serve (including on Mr Nagle) by 26 July 1999 an affidavit in support of the amended summons or any further amended summons and the matter to be remitted to a single judge for directions as to conciliation and, to the extent necessary, for hearing; no order as to the costs of the Full Bench proceedings. As to the issue of Mr Nagle's intervention, Mr Rothman accepted it was appropriate to be considered by a single judge after the further amended summons and supporting affidavit thereto were filed.

(13) On 25 June 1999, the said proposed orders were formally made by the Full Bench.

(14) On 1 July 1999, a notice of motion was filed on behalf of Mr Nagle seeking an order that he be granted leave to intervene in the substantive proceedings.

(15) On 2 July 1999, on the matter being returned to Hungerford J from the Full Bench, a directions hearing was held, including as to the intervention of Mr Nagle; Mr Howen appeared for Ms Frost, Ms Anderson for the Speaker and Mr Rothman for Mr Nagle.

Indicated by Hungerford J that the "present intention would be that once the status of Mr Rothman's client is settled, that I refer the matter for conciliation".

Mr Howen agreed that in preparing the substantive matter for conciliation, and to the extent necessary for hearing, the status of Mr Rothman's client had to be finalised; counsel said - "Although the Full Bench proceedings were concluded by consent with no order as to costs, it would be apparent that Ms Frost has incurred significant legal expense, not on the conciliation, not on the issues themselves, but on a very hurried suppression application and a struggle to get it lifted".

Mr Rothman indicated that "we have a motion on and we seek to have it dealt with ... we would seek to have the notice of motion listed, the application by my friend (for a declaration that Mr Nagle had no standing in the proceedings) so called is simply opposite to our application and we ask that that matter be listed ... we also ask, notwithstanding our request for expedition that some account be taken of the history of the matter."

Consent directions were made for the hearing on 18 August 1999 of the intervention motion, including the filing and serving of any affidavits for Ms Frost by 2 August 1999 and for Mr Nagle by 11 August 1999, with Ms Frost's further amended summons and affidavit being filed and served by 26 July 1999 as ordered by the Full Bench.

(16) On 17 August 1999, an unsworn copy of Ms Frost's new affidavit was served on Mr Nagle.

(17) On 18 August 1999, the hearing of the intervention motion began before Hungerford J; appearances were Mr Howen for Ms Frost, Mr Rothman for Mr Nagle and Mr Menzies for the Speaker. Mr Menzies indicated the Speaker did not intend to proceed with the earlier foreshadowed cross-claim against Mr Nagle.

At the commencement of the hearing, Mr Rothman indicated that Ms Frost had not complied with the earlier directions to file and serve amended process and affidavits by the date set; a fresh affidavit only by her was filed that morning. Discussions privately between the parties as to an appropriate way forward were held. Mr Rothman, in the circumstances of the non-compliance by Ms Frost with the directions, applied for an adjournment of the hearing of Mr Nagle's motion, with the costs of the day to be paid by Ms Frost; Mr Menzies too sought costs. Mr Howen did not oppose those applications and orders by consent were then made in those terms. Directions made by consent as to the filing of documents.

Mr Nagle's notice of motion regarding intervention was listed for hearing on 22 October 1999.

(18) On 28 September 1999, Mr Nagle's solicitors enquired whether the Speaker intended to call Mr Nagle as a witness in the substantive proceedings to answer the allegations made by Ms Frost against him.

(19) On 15 October 1999, the Speaker's solicitors informed Mr Nagle's solicitors of the possibility of so calling Mr Nagle.

(20) On 21 October 1999, Mr Nagle's solicitors advised the solicitors for Ms Frost that Mr Nagle would not press his motion for intervention, but with rights reserved if anticipated conduct of proceedings by the Speaker did not seek to answer adequately any allegations made against him.

(21) On 22 October 1999, on the intervention application being listed for hearing, Mr Rothman with Ms Rudland appeared for Mr Nagle, Mr Howen for Ms Frost and Mr Menzies with Ms Anderson for the Speaker. At the outset, Mr Rothman made application that orders be made for the intervention motion to be stood-over generally with liberty to Mr Nagle to apply on short notice; costs should be reserved.

Mr Howen sought an order for costs against Mr Nagle as to intervention, but accepted an appropriate order would be to reserve costs to enable the parties to confer as to a settlement of the costs issue in order to minimise further costs. Mr Menzies did not wish to be heard on costs.

By consent, the hearing of the motion for intervention was adjourned and orders made to the effect that the motion be stood-over generally with liberty to apply to have it re-listed for hearing at short notice; costs reserved with liberty to apply.

The substantive s 106 application by Ms Frost was referred for conciliation.

(22) On 15 November 1999, a conciliation conference of the principal parties, being Ms Frost and the Speaker, was held before Schmidt J.

(23) On 26 November 1999, Schmidt J issued a certificate that all reasonable attempts to settle the matter by conciliation had been made but were unsuccessful.

(24) On 9 December 1999, a notice of motion was filed on behalf of the Speaker for an order that Ms Frost's further amended summons be struck out with costs. The hearing of the Speaker's motion occurred on 17 February 2000; on 5 May 2000 Hungerford J published reasons for decision and ordered that the Speaker's motion be dismissed, with costs in favour of Ms Frost.

(25) On 22 June 2000, a directions hearing was held on an application by Ms Frost, exercising the leave reserved on 22 October 1999, for an order that Mr Nagle pay Ms Frost's costs of his intervention motion; Mr Howen appeared for Ms Frost and Mr Latham appeared for Mr Nagle.

Mr Howen was directed to file a notice of motion setting out the precise orders sought regarding costs as to the intervention issue; he foreshadowed that any such motion would possibly include an order for the dismissal of the intervention motion.

Mr Latham indicated that at that stage it was not proposed that Mr Nagle intervene in the substantive proceedings. Counsel accepted that the course suggested "at least brings the issue to a head". Hungerford J observed to Mr Latham "that the position of Mr Nagle, one way or the other, in terms of his status as a party, has to be brought to a head and that motion cannot just continue hanging around, as it were".

(26) On 14 November 2000, a notice of motion was filed on behalf of Ms Frost for orders that Mr Nagle's motion to intervene in the substantive proceedings be dismissed with costs on an indemnity basis or, in the alternative, on a party-party basis on the ground that Mr Nagle had failed to prosecute his application to intervene.

(27) On 17 November 2000, at the same time as Ms Frost's substantive proceedings were listed for directions, Ms Frost's motion concerning Mr Nagle's intervention was mentioned; Mr Howen appeared for Ms Frost, Ms Anderson for the Speaker and Mr D E Baran of counsel for Mr Nagle. At the request of the principal parties, the substantive proceedings were listed for hearing for a period of five weeks commencing on 23 July 2001.

As to the intervention issue and the costs application in relation to it, the transcript recorded the following debate between Hungerford J and Mr Baran :

HIS HONOUR: The question is I would have thought Mr Nagle pursuing his application to intervene according to his motion. That is the question. Do you have instructions on that?

BARAN: Having regard to what has happened this morning so far as the readiness of the case for hearing is concerned, I do not have instruction and I would have to get those. We were not aware that this matter was now ready to proceed to hearing.

HIS HONOUR: Mr Nagle's motion has been put on for quite some time.

BARAN: I understand that, your Honour, and there were consent orders entered into between the parties about it.

HIS HONOUR: When are you ready for the motion to be heard?

BARAN: The only date that I have your Honour would be for December.

...

HIS HONOUR: If Mr Nagle is not pursuing his intervention application, I can suggest dates early in the new term to pursue the costs question. If he is pursuing the intervention application at least the applicant would know, and I can give a date early in the new law term to deal with that question, but I just think in view of the lapse of time that this matter has been going on there should be a determination as to the substantive question of the motion.

Is he or is he not proceeding in his intervention?

BARAN: We are happy to come back on that day and inform your Honour of the progress, put it in for directions on that day and hopefully it can be narrowed down.

HIS HONOUR: On the 4th?

BARAN: Yes.

HOWEN: That is suitable to me also, your Honour.

HIS HONOUR: Do you agree with the way in which I have outlined the proceedings?

HOWEN: Yes, your Honour.

BARAN: Yes.

HIS HONOUR: 9.30 am on Monday 4 December, I will list this matter for directions, that is the motion. You have leave not to attend, Ms Anderson.

(28) On 4 December 2000, a directions hearing was held on the motion; Mr Howen appeared for Ms Frost and Mr Latham for Mr Nagle. At the outset, Mr Latham indicated that "we are not seeking to intervene at this stage, but we do reserve our right to do so. As it stands at the moment, we are happy with the Crown's representations in relation to our client but, if that changes, we will be seeking to intervene". The transcript then recorded the following debate with Mr Latham :

HIS HONOUR: What is happening with the motion to intervene?

LATHAM: Well, we have not yet formally sought to intervene.

HIS HONOUR: What do you want done with your motion?

LATHAM: Well, nothing at this stage, your Honour.

HIS HONOUR: Mr Latham, the difficulty is this, the motion is there and you might say, "well don't do anything with it", but the difficulty the Court has is that dates have been listed for hearing of this matter, albeit a fair way down the track, next year, and I have a motion by the applicant for your motion to be set aside. What do I do with that?

LATHAM: Perhaps the simplest course would be to simply set a hearing date for my friend's notice of motion to be dealt with. I think that is probably the easiest way to go forward.

HIS HONOUR: But you see, having in mind what you have just said, that you do not seek to move on the motion at the moment, because you are, to use your words, happy with the representation of your client by the Speaker in these proceedings, well that raises an interesting proposition because, rightly or wrongly, the respondent is the respondent and the status of your client is that of a primary witness and in respect of whom there has been a fairly large affidavit, I think, filed together with a number of exhibits.

Now, you are either intervening in the proceedings, or you are not and I would have thought the applicant is entitled to some certainty about that.

Now, it may well be that, even if you were declined intervention at the moment, or you did not intend to proceed as presently advised yourself with intervention, that is the end of the matter save that you could, because of some development that occurred in the future, whatever that might be, I don't know, make a further application for intervention, but at this point of time, I have a motion by the applicant to set aside your motion.

Now, I have got to deal with it, or do I just put it back -

LATHAM: There are a number of issues; if my friend is seeking certainty on a motion to intervene, I do not think the certainty will ever be granted because there is nothing to prevent us from coming back in the future and seeking to intervene.

If your Honour is saying that the motion, at some stage, should be dealt with, it is impossible to argue against that point. If that is the case, we are quite happy for the matter to be set down for hearing on that point alone.

HIS HONOUR: The applicant's motion.

LATHAM: Yes.

HIS HONOUR: But in the light of the attitude which you are expressing, why should I, as a matter of discretion, allocate Court time to the hearing of what, at the end of the day, is somewhat a futility because you are saying, "well, we don't want to intervene at the moment, but we want to reserve all of our rights", well, whether you have got the motion on or not, you can still renew an application, do you follow?

LATHAM: I follow that, your Honour.

HIS HONOUR: So that, why should I allocate an hour or two hours to hear debate upon the applicant's motion in light of your attitude? Why should I, in view of the position taken by your client, why should I not just regularise the proceedings as between the applicant and the respondent so that people know where they are going, and to dismiss both motions?

LATHAM: Well, if your Honour was wishing to do that, we would seek an adjournment to get senior counsel in the matter, if that is what is being proposed.

HIS HONOUR: I don't know whether it is, but I would be interested to know, from the Court's point of view, about the proper utility of the matter.

Now, I am not going to have the Court, which has the conduct and management of this matter, sitting on a string.

LATHAM: I can understand that, your Honour.

HIS HONOUR: And you might recall, Mr Latham, quite some time ago, when you appeared in this matter, I said the intervener has got to make up his mind whether he is or is not going to intervene in the proceedings.

Mr Howen pressed for a hearing date for Ms Frost's application to strike out Mr Nagle's motion with costs.

The matter was listed for hearing on 31 January 2001.

(29) On 29 January 2001, Mr Nagle's solicitors wrote to Ms Frost's solicitors advising that Mr Nagle "does not, at this time, intend to intervene in the IRC proceedings and will discontinue his Motion in this respect".

(30) On 30 January 2001, the matter was re-listed before Hungerford J following a letter from Mr Nagle's solicitors to the Industrial Registrar dated 23 January 2001 seeking leave to inspect the Court's file in order to prepare for the hearing of the motions on 31 January 2001; Mr Latham appeared for Mr Nagle, Mr Howen for Ms Frost and Ms Anderson for the Speaker.

Mr Latham confirmed Mr Nagle's instructions to discontinue his motion to intervene in the substantive proceedings and related the search of the file to preparation for the hearing on 31 January 2001 as to costs. Mr Howen opposed leave to search the file and Ms Anderson, expressing the Speaker's concern that the substantive proceedings "not be compromised in any way", did not object to Mr Nagle's legal representatives having access to the file as to formal documents but not as to evidentiary material. After hearing the parties, Hungerford J declined Mr Latham's application to search the file pursuant to r 12(3) of the Industrial Relations Commission Rules on not being satisfied that it was appropriate in the circumstances to do so. The matter was then adjourned for hearing on 31 January 2001.

(31) On 31 January 2001, Mr Howen appeared for Ms Frost and Mr Rothman appeared with Mr Latham for Mr Nagle. Mr Rothman sought the Court's leave to discontinue Mr Nagle's motion for intervention in the substantive proceedings; Mr Howen sought an order that Mr Nagle pay Ms Frost's costs relating to the discontinued application to intervene. The hearing was concerned with the opposed application by Ms Frost for costs.

(32) For completeness, and consistent with what had occurred at the hearing on 22 October 1999, the solicitors for Ms Frost on 3 March 2000 wrote to Mr Nagle's solicitors as to costs; the letter stated in part :

In our view our client has incurred significant costs as a result of your client's intervention in these proceedings. Our client's total costs and disbursements as of 22 October 1999 amount to approximately $62,000.00. By reference to the time involved as a result of your client's intervention, we estimate that approximately 60% of the costs incurred ($37,200.00) were incurred as a result of your client's intervention.

In order to expedite resolution of this costs issue and to save further costs being incurred, our client is prepared to accept an amount of $31,000.00 as payment of her costs as a result of your client's intervention. This is a fair estimate which we believe can be independently costed. This offer is open for a period of seven (7) days. In the event that this offer is not accepted or no reasonable counter offer is provided, then we are instructed to retain experts to prepare a bill of costs. We have been informed by these experts that their fees for preparing this bill of costs will be approximately 8 - 9.5% of the professional fees that they have prepared in the bill of costs. After we have retained this bill of costs we shall seek leave to restore this matter before Justice Hungerford and have the issue of costs assessed. At the assessment of our client's costs we shall also be asking the court to include the fees incurred by our client in having experts prepare the bill of costs.

In a reply dated 6 March 2000, Mr Nagle's solicitors relevantly said :

We confirm our advice that we are not prepared, at this stage, to consider any assessment of costs.

If your client wishes to pursue an issue as to costs then leave should be sought to restore the matter before Hungerford, J to argue that issue. However, we believe that it would be premature to do so prior to judgment being given in respect of the Respondent's strike out Application and, if that is not successful, then even perhaps before final judgment.

22    Mr Howen supported the costs application by reference to the chronology of events to the effect that "it is self evident that Ms Frost has incurred costs in having to deal with the vacillation of Mr Nagle as to whether or not he would intervene or not". The essential complaint of Mr Howen was that from as early as June 1999 the status in the proceedings of Mr Nagle was resisted by Ms Frost who, significantly, had brought her claim against the Speaker and made no claim for relief against Mr Nagle. Nevertheless, as counsel said, Mr Nagle "has been in a position for a very long time to know whether he was going to intervene or not ... But this technique of keeping it hanging for two years or so, or eighteen months, keeping it hanging, has increased the costs of Ms Frost enormously". Counsel added that if Mr Nagle "had a need to intervene and could convince the Commission of that need then so be it, but he never actually sought to do it".

23    In referring to the course of the intervention proceedings, Mr Howen identified four periods relevant for a consideration of costs as to the ability of Mr Nagle to properly discontinue: first, from June 1999 to October 1999 during which preparations occurred for the first hearing of the intervention application (the original date fixed of 18 August 1999 was adjourned, with a costs order against Ms Frost in favour of Mr Nagle and the Speaker because she had not filed the further amended summons and affidavit); second, from October 1999 to June 2000 during which Ms Frost and Mr Nagle failed to agree on costs and Ms Frost exercised the leave granted to her on 22 October 1999 to have the costs issue re-listed for determination; third, from June 2000 to November 2000 during which period Ms Frost prepared and filed her motion to have the intervention application dismissed with costs; and, fourth, from November 2000 to the end of January 2001 when the two motions concerning the intervention issue were to be heard. Mr Howen summarised the position in this way :

October 1999 was the first opportunity to discontinue. On that day the motion was stood over generally. The next opportunity to discontinue was June 2000 when we listed the matter for costs. The next opportunity to discontinue in terms of any court, was the first directions hearing after we filed the motion, that was in November 2000 when you sent counsel for Mr Nagle away to get some instructions. You showed some considerable concern that you couldn't get an answer from him. You sent him away to get the answer.

We came back on 4 December (2000), another opportunity to discontinue; they didn't take it. Now we have to wait until the death knock in January 2001 to discontinue. So not only had there been lots of opportunities but in between those particular dates it could have been done.

Mr Nagle has not shown good faith in dealing with the process. He has simply let it string out and has asked my client to pay the costs, that is the practical costs, of letting it string out.

24    The submissions of Mr Rothman against a costs order being made also relied on the chronology of events. Having in mind the allegations against Mr Nagle and his action in obtaining a suppression order from Peterson J on 4 March 1999 and in appearing in the proceedings before the Full Bench on 24 and 25 June 1999 when the suppression order was discharged, Mr Rothman submitted that "15 October 1999 was the first time that we were informed by the Crown Solicitor about the possibility of calling Mr Nagle to answer allegations". And so it was that at the proceedings on 22 October 1999 the consent orders were made standing-over generally Mr Nagle's intervention motion, albeit with liberty to apply and costs reserved. Senior counsel submitted that nothing occurred after October 1999 "to agitate this notice of motion" for the dismissal of the intervention application with costs.

25    The thrust of senior counsel's submissions as to the position of Mr Nagle was his particular concern with allegations made by Ms Frost which were said to be embarrassing but where "the allegation was withdrawn before the Full Bench and we neither consented nor opposed the orders quashing publication". The matters raised in the later amended process filed for Ms Frost during the period from August to September 1999, as senior counsel said, "was in a way that it was not necessary for us to move on the orders of 22nd October, which were also by consent". In the result, no doubt by reference to Ms Frost's solicitor's letter of 3 March 2000 as to costs, Mr Rothman summarised his position by the following submission :

The position in relation to this application is that we are essentially here today because of an inflated view of what is an appropriate level of costs in relation to an application which has never been agitated, which has been before the Commission, if not totally then certainly ninety eight percent of the time, at a time when there were other mentions on in any event and at best the costs that have been incurred are costs by the applicant which were avoidable.

Our primary submission is that there ought be no order for costs in relation to the discontinuance. We say that with all due respect because a reasonable approach to the issue of costs on 18 August would have been obviated. My friend's submission puts us in no worse a position so therefore no order for costs should be made.

Our alternative submission is that your Honour ought rescind or discharge the order for costs by consent on 18 August 1999 and otherwise there be no order for costs in relation to the notices of motion.

...

In any event, that is our alternative submission in the circumstances of this case and in the light of what has occurred, particularly the early default of the applicant, the necessity for our client to protect himself from allegations that ultimately were withdrawn. The position and the fact that there were consent orders and there were notices given in May 2000 that other than in exceptional circumstances - they would have to be exceptional because we'd have to approach your Honour about it - that the application for intervention wouldn't be proceeded with.

In all of those circumstances, at best from our learned friend's point of view, they ought be protected from the costs order made in August 1999 but otherwise there ought be no order for costs.

26    I am able to immediately find, having in mind the detail contained in the originating summons for relief under s 106 of the Industrial Relations Act and the supporting affidavit filed on 16 February 1999 as they referred to Mr Nagle, that he acted reasonably in bringing the motion for intervention on 1 July 1999. After all, he was afforded the benefit of non-publication and suppression orders on 4 March 1999 by the consent of Ms Frost with the Speaker raising no objection. Although Ms Frost's then counsel objected on 22 April 1999 to Mr Nagle's continued appearance in the proceedings, an amended summons was that day filed for Ms Frost which continued certain allegations against Mr Nagle personally in support of her s 106 claim; indeed, on 5 May 1999 he was moved to claim orders from the Court that Ms Frost's amended summons and affidavit be taken off the file and/or struck out with, I would add, a claim for costs on an indemnity basis. Further, and although objection was again taken to Mr Nagle's appearance at a directions hearing on 11 May 1999, then counsel for Ms Frost conceded it would likely be granted. Further still, Mr Nagle was afforded standing in relation to the suppression orders question before the Full Bench on 8, 15, 24 and 25 June 1999, during which period notices of motion were foreshadowed by Mr Nagle for an order to permit his intervention in the proceedings and by Ms Frost for a declaration that he had no standing. In making orders on 25 June 1999 as to the suppression orders, the Full Bench directed that any further amended summons and supporting affidavit be served not only on the parties but on Mr Nagle as well. And, so, Mr Nagle's notice of motion for intervention was filed on 1 July 1999. In those circumstances, I think it beyond argument that Mr Nagle reasonably brought his intervention motion.

27    It is significant for present purposes to emphasise that, in disposing of the proceedings before it and remitting them to me sitting alone, the Full Bench on 25 June 1999 made no order as to the costs of the proceedings before it.

28    Also, I am able to immediately find in the circumstances that Ms Frost acted reasonably in resisting Mr Nagle's endeavours to intervene in her proceedings against the Speaker. She took the view, as she was entitled to do, that her claim was against the Speaker as the employer party to the challenged contract of employment and not Mr Nagle personally. It is not unusual in such situations under s 106 for the employer to be the sole respondent and even though the conduct complained of as affecting the contract was that of a director, manager or other employee of the employer; equally, it is not unusual for the person so behaving to be a respondent party - it is a matter for the applicant, although not infrequently an employer respondent will move the Court to join the natural person as an additional respondent. In fact, that course was at least considered by the Speaker until 18 August 1999 when senior counsel for him indicated he did not intend to make a cross-claim against Mr Nagle. From that point, Mr Nagle's position was that of a principal witness and extensive and detailed affidavits were sworn by him on 16 and 27 October 2000 and filed for the Speaker.

29    As to the first period of the chronology from June to October 1999, as identified by Mr Howen, it is noteworthy too that Ms Frost failed to comply with the directions of the Full Bench to file and serve any further amended summons by 26 July 1999 and the directions I made on 2 July 1999 for her to file and serve affidavits by 2 August 1999 relating to the hearing of the intervention motion on 18 August 1999. It was only appropriate, in my view, for an order to be made against Ms Frost for the costs thereby thrown away by the adjournment of the hearing set for that day; an order was so made and, very properly in my view, with the consent of Ms Frost. Of course, that Mr Nagle sought a costs order as to a date when his intervention application was listed for hearing indicated as at that date he intended to proceed with it. The adjournment of the hearing to 22 October 1999 is to be seen in that context.

30    On the intervention hearing being listed before me on 22 October 1999, and in light of the decision taken by Mr Nagle and communicated to Ms Frost's solicitors on 21 October 1999 not to press his motion for intervention, it seems clear to me that 22 October 1999 was the first reasonable time Mr Nagle could have discontinued his motion for intervention. If he had done so, I would have, on the authorities (see eg per McHugh J in Ex parte Lai Qin (186 CLR at p 625) and the cases cited therein), been inclined to grant leave to do so with no order as to costs. However, albeit by consent, the motion was stood-over generally but with liberty to restore to the list on short notice and with costs reserved. It is to be noted that Mr Howen on that occasion indicated costs would be sought but accepted the proposition that costs be reserved to enable the parties to confer as to a settlement of the issue so as to minimise further costs. I think that was a reasonable approach on both sides so that I would not now propose any costs order be made in respect of the period up to and including 22 October 1999.

31    However, from that point the position as to the conduct of Mr Nagle becomes less clear in his role in the proceedings as it affected Ms Frost in dealing with his extant claim for intervention. This requires attention to what occurred during the second period identified by Mr Howen, namely, October 1999 to June 2000. Contrary to the submission of Mr Rothman that nothing relevantly occurred, the fact was that the parties had failed to agree on the appropriate disposal of the reserved costs as ordered on 22 October 1999 and where Ms Frost, quite properly and consistent with her rights, moved for an order to obtain those costs. At the directions hearing before me on 22 June 2000, Mr Nagle's counsel, Mr Latham, certainly indicated that "at that stage" it was not proposed the intervention would be pressed, but he conceded that a then foreshadowed motion by Mr Howen regarding costs and for an order dismissing the intervention motion "at least brings the issue to a head". In the meantime, of course, and known to Mr Nagle, the conciliation conference was unsuccessful as at 26 November 1999; further, the Speaker's motion for Ms Frost's further amended summons to be struck-out was dismissed by me on 5 May 2000.

32    In those circumstances, it seems properly open to conclude that Mr Nagle knew that the high probability was that the substantive matter in which he was interested would proceed to final preparations for hearing and necessarily as involving Ms Frost in so preparing to know the parties/persons she would have to meet. And yet, Mr Nagle was not prepared to indicate whether or to what extent he desired to be involved. I think that position of lack of patency was less than reasonable to Ms Frost.

33    It may be inferred, and I do so, that the continued maintenance of the intervention motion, notwithstanding the earlier expressed attitude by Mr Nagle not to proceed with it at the time, was to forestall in some way Ms Frost pursuing her costs claim. This inference may more readily be drawn by considering what occurred in proceedings in the District Court before Rolfe DCJ. It is unnecessary to go into any detail thereof, except to comment that on 31 August 1999 Mr Nagle filed a statement of claim against Ms Frost and her then counsel and solicitor for damages for the tort of conspiracy to injure him by commencing the present proceedings in this Court under s 106 and for the tort of abuse of process in that the summons and amended summons here were filed for a predominantly improper purpose so as to injure Mr Nagle and other persons. In a judgment delivered on 3 July 2000, in which Rolfe DCJ on Ms Frost's application stayed the proceedings in that Court pending the final determination of the s 106 proceedings before me, his Honour relevantly found (unreported, 6487/99 at p 14) that Mr Nagle "has made no further endeavours to intervene in the Industrial Relations Commission proceedings. His Counsel stated that the plaintiff was content to pursue his remedy for damages in this Court". It may therefore legitimately be asked, why did not Mr Nagle at the directions hearing on 22 June 2000 clearly indicate that the intervention here would be discontinued? That Ms Frost was kept in a state of uncertainty, I think, was not a reasonable way for this litigation to be conducted.

34    Nevertheless, from 22 October 1999 up to and including 22 June 2000 I am prepared, but not without some hesitation, to refrain from imposing an award of costs against Mr Nagle. Apart from the directions hearing itself there was then no formal notice of motion by Ms Frost as to the intervention issue and the reserved costs. What later transpired, however, calls for stricter analysis.

35    In viewing what thereafter occurred, that is, in the third and fourth periods identified by Mr Howen from June 2000 to January 2001, it is to be remembered that extensive and detailed affidavits were obtained from Mr Nagle by the Speaker's solicitors on 16 and 27 October 2000 and filed in these proceedings; such affidavits, as counsel informed me in the present proceedings, answered many of the allegations made by Ms Frost and others in their affidavits as filed in the proceedings. It is difficult therefore to accept, but as I was asked to do, that at that advanced stage Mr Nagle was not aware the s 106 application was ready, or very nearly so, for hearing.

36    It thus transpired that Mr Howen's foreshadowed motion for the dismissal of the intervention application and for costs was filed on 14 November 2000 and a directions hearing was held on 17 November 2000. I have recited earlier what occurred at that hearing when Mr Baran appeared for Mr Nagle. In short, counsel did not have instructions as to whether the intervention application would be pursued and so the matter was adjourned to a further directions hearing on 4 December 2000 at which time Mr Baran said he could inform progress; Mr Howen accepted that position. However, on 4 December 2000 then counsel for Mr Nagle, Mr Latham, effectively repeated the position concerning intervention as it had been on 22 October 1999, that is, intervention was not sought "at this stage, but we do reserve our right to do so". Counsel added that "we are happy with the Crown's representations in relation to our client but, if that changes, we will be seeking to intervene". I have set out earlier the relevant extract from transcript of the debate with Mr Latham which, in my view, progressed the matter little. The difficulty, as I then attempted to explain to counsel, was that the Court had before it an active motion by Ms Frost for the dismissal of Mr Nagle's intervention motion which could not be ignored but where a real question arose of the utility of the Court proceeding to hear the issues. And that was so having in mind the substantive proceedings were fixed for hearing for a period of five weeks commencing on 23 July 2001. Indeed, at the suggestion that an appropriate course may be to regularise the position between Ms Frost and the Speaker by dismissing the motions of both Ms Frost and Mr Nagle, Mr Latham said "we would seek an adjournment to get senior counsel in the matter".

37    In terms of modern case management and the orderly preparation of matters for hearing, it is my view that that uncertain and equivocal approach to litigation is inappropriate. The principal parties to the substantive proceedings here, and particularly the applicant party, may reasonably expect to be aware in the preparatory stages of any aspect affecting the conduct of their case. It is not unreasonable, it seems clear to me, for that to be known in a timely way. If Mr Nagle were to pursue intervention then so be it, but to prevaricate is unhelpful and potentially frustrating to the parties. It is true, of course, and as Mr Rothman submitted, that even though Mr Nagle discontinued his present intervention motion he could at the commencement of the hearing on 23 July 2001 seek leave to intervene. The answer to that is simply that any such application would fall to be considered in light of the then circumstances, and subject to the sanction of costs in causing any adjournment thereof, but at least the parties would be aware in preparing for their cases the parameters of the issues. In any event, it is clear that Mr Nagle is to be a principal witness in the Speaker's case.

38    On the motion being listed for hearing on 31 January 2001, it was only on 29 January 2001 that Mr Nagle's solicitors advised Ms Frost's solicitors that he would discontinue his intervention motion. And so the hearing on 31 January 2001 was concerned with the opposed application by Ms Frost for costs.

39    Mr Rothman submitted that the motivation for Ms Frost bringing her costs claim was, as senior counsel said, "an inflated view of what is an appropriate level of costs in relation to an application which has never been agitated". Support for that was no doubt drawn from the letter dated 3 March 2000 from Ms Frost's solicitors to Mr Nagle's solicitors proposing a costs figure of $31,000 in settlement of the issue. In the absence of any evidence directed to Ms Frost's motivation, I am unable to speculate why she has so moved and, in any case, I have no details of the costs incurred as would be available on an assessment. It might be mentioned too that Ms Frost from as early as 22 April 1999 has objected to Mr Nagle's intervention and costs were sought by her from as early as 22 October 1999. It is perhaps not surprising with the very many appearances involved in this matter since it commenced that costs would be an issue and, of course, Mr Nagle sought and obtained his costs from Ms Frost in respect of the adjourned hearing on 18 August 1999.

40    I am satisfied that the proper exercise of discretion in the circumstances as they developed in this matter would justify a costs order in favour of Ms Frost from the time she was first required to formally move for the intervention motion to be dismissed, that is, after 22 June 2000. I am not satisfied, however, that Mr Howen has made out a case sufficient to warrant indemnity costs according to the established tests for that purpose as repeated by Hill J in Boner v Anderson (No 2) (50 IR at p 475) and having in mind the purpose of costs as stated by Mason CJ and McHugh J in Latoudis v Casey (170 CLR at pp 543, 566-567). The costs awarded should be on the ordinary party-party basis in an amount as agreed or assessed.

41    In the result and for the foregoing reasons, I conclude that Mr Nagle should be granted leave to discontinue his notice of motion as to his intervention in the substantive proceedings, but on terms as to costs. Ms Frost's notice of motion in respect of that part for an order dismissing Mr Nagle's notice of motion should itself be dismissed. Mr Nagle should pay Ms Frost's costs on a party-party basis, in an amount as agreed or assessed, in respect of the two subject notices of motion as to those costs incurred after 22 June 2000. The Speaker should bear his own costs of the motion.

42    I make the following orders -

1. Leave is granted to Peter Richard Nagle to discontinue the notice of motion filed on his behalf on 1 July 1999 in the proceedings herein in accordance with the notice of discontinuance filed on 31 January 2001.

2. The notice of motion filed in the proceedings herein on behalf of Kristine Frost on 14 November 2000, as to that part of the motion for an order dismissing the said notice of motion filed herein on behalf of Peter Richard Nagle, is dismissed.

3. The costs of Kristine Frost of and incidental to the proceedings relating to the said notices of motion referred to in orders 1 and 2 hereof incurred after 22 June 2000 shall be paid by Peter Richard Nagle in an amount as agreed or, failing agreement, as assessed.

4. No order is made as to any costs incurred by the Speaker of the Legislative Assembly of New South Wales in the proceedings herein relating to the said notices of motion.

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LAST UPDATED: 23/02/2001