Bowker & Anor v Software Engineers

Bowker & Anor v Software Engineers - [2004] NSWIRComm 181 - NSWIRComm 2004 case summary — Zoe

[25]

13 The question raised as to the power to make the orders sought, depends upon the proper construction of s181 of the Industrial Relations Act 1996 ('the Act') and the provisions of Part 27 of the Court's Rules, as made pursuant to s185 of the Act. Sections 181 and 185 of the Act provide: 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. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if: (i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. (3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations). (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 185 Rules of Commission (1) Rules of the Commission may be made for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Commission or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Commission under this or any other Act. (2) Without affecting the generality of subsection (1), rules of the Commission may be made for or with respect to: (a) the initiation of proceedings in the Commission, or (b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Commission, or (c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Commission, or (d) the functions of the Industrial Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Commission, or (e) any matter that may be the subject of rules under the Supreme Court Act 1970. (3) This section extends to the making of rules relating to the practice and procedure of (and other matters relating to) an Industrial Committee.

[43]

216 Offer of compromise (1) Upon the making of an order under Rule 168 (9), a party entitled to costs may, unless the Commission otherwise orders, have those costs assessed up to and including the day the offer was accepted. (2) If a notice of offer contains a term which purports to negative or limit the entitlement to costs, that term shall, unless the Commission otherwise orders, be of no effect for any purpose under Part 23 or this Rule. (3) Subrules (4)-(7) apply to an offer which has not been accepted at the time prescribed by Rule 168 (8). (4) Where an offer is made by an applicant and not accepted by the respondent, and the applicant obtains an order on the claim to which the offer relates no less favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to costs incurred before and on that day, assessed on a party and party basis. (5) For the purpose of subrule (4), where the offer was made on the first or a later day of the hearing of the proceedings, then, unless the Commission otherwise orders, the applicant shall be entitled to costs in respect of the claim from 11 am. on the day following the day on which the offer was made, assessed on an indemnity basis, in addition to costs incurred before that time, assessed on a party and party basis. (6) Where an offer is made by a respondent and not accepted by the applicant, and the applicant obtains an order on the claim to which the offer relates not more favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the respondent shall be entitled to an order against the applicant for costs in respect of the claim thereafter, assessed on a party and party basis. (7) For the purpose of subrule (6), where the offer was made on the first or a later day of the hearing of the proceedings, then, unless the Commission otherwise orders, the applicant shall be entitled to costs in respect of the claim up to 11 am on the day following the day on which the offer was made, assessed on a party and party basis, and the respondent shall be entitled to costs in respect of the claim thereafter, assessed on a party and party basis. (8) Where an applicant obtains an order for the payment of a remuneration, compensation or damages and: (a) the amount payable under the order includes interest or damages in the nature of interest, or (b) by or under any Act the Commission awards the applicant interest or damages in the nature of interest in respect of the amount, then, for the purpose of determining the consequences as to costs referred to in subrules (4) and (6), the Commission shall disregard so much of the interest as relates to the period after the day the offer was made. (9) For the purpose only of subrule (8), the Commission may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms. (10) Subrules (4) and (6) shall not apply unless the Commission is satisfied by the party making the offer that the party was at all material times willing and able to carry out what the party offered.

[88]

58 The final orders made were: The Commission in Court Session: 1. Declares that the March 1998, June 1998, and December 1998 Employment Agreements and the December 1998 Deed of Release, and the Deed of Consultancy, whereby the Applicants performed work in an industry are unfair contracts within the meaning of Section 105 of the Industrial Relations Act (NSW), and are declared void, ab initio, except as to money sums paid thereunder. 2. Orders that the First Applicant's contract of employment is varied ab initio, by prohibiting the First and Second Respondents from engaging in conduct, whether during or at any time after the term of the contract, that damages, or is calculated, or likely, to damage the personal, business and professional reputation of either of the Applicants and their prospects of further employment, and that causes them anxiety, distress and embarrassment. 3. Orders the Second Respondent to pay to the Applicants within 28 days: 3.1. the sum of $48,787.07 being the judgment debt including interest; and 3.2. the sum of $356,906.95 being costs due to the Applicants. 4. All previous costs orders in these proceedings are vacated. 5. The Second Respondent is given liberty for 90 days to seek an assessment of the Applicants' costs on the basis set out in these orders, if and only if: 5.1. The Respondent applies to the Industrial Registrar to appoint a costs assessor from the Supreme Court List of Assessors. 5.2. The Registrar makes that appointment; 5.3. That costs assessor estimates the costs of assessment after review of the Applicants' solicitor's files; 5.4. The Respondent pays to the costs assessor the amount estimated, and undertake to pay any further amount reasonably charged by the assessor, supported by an appropriate bank guarantee, to the extent required by the costs assessor; and 5.5. If the assessor arrives at a figure different to the gross sum ordered by the Commission, whether higher or lower than the gross sum ordered by the Commission, the substituted amount shall be the costs payable by the Respondent to the Applicants effective the date of the assessment by the Assessor. 6. The Applicants have liberty to apply for orders that the First, Third, Fourth and Fifth Respondents and any of their directors (as that term is defined in the Corporations Act 2001) pay the Applicants' costs, including with out limitation on the same basis as set out in these orders. 7. The Court notes that the Second Respondent has sought to enter into an arrangement under Part X of the Bankruptcy Act 1966, and grants permission to the Applicants' solicitors to submit, in the lawful course of enforcement of the sums due pursuant to order 3, evidence and subpoenaed documents in these proceedings. 8. Liberty is granted to Haywards, Solicitors to uplift documents produced to the Commission in Court Session in May 2004. 9. Copies of all documents produced to the Commission in Court Session in May 2004 be returned to the Commission forthwith. 10. The Registrar is directed to enter these order forthwith by 4pm 27 May 2004, and to provide an original of them to the Applicants' solicitors. ------------------------

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