De Simone Consulting Pty Ltd v Ison

Costs - Indemnity costs. LEGISLATION CITED : Industrial Relations Act 1996 s 188 s 189 s 191 Anderson v Boner (1993) 52 IR 114 Antakopolous v The State Bank of New South Wales (1999) 91 IR 385 Australian Mutual Provident Society v Avis (unreported, Full Bench, 18 December 1997) Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 Boner v Anderson (No 2) (1993) 50 IR 470 De Luxe Cab Company Limited v Grenside (1999) 92 IR 384 CASES CITED : De Simone Consulting Pty Ltd v Ison [2000] NSWIRComm 91 (2000) 97 IR 478 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 Knowles v The Anglican Church Property Trust (No 2) (1999) 95 IR 380 LEP International Pty Limited v Caine (2000) 97 IR 35 Payne v The University of Sydney [2000] NSWIRComm 158 Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3 Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 HEARING DATES: 11/20/2000 EXTEMPORE JUDGMENT DATE : 11/20/2000

APPELLANT Mr R Millar of Counsel SOLICITOR Mr Peter S Lustig Elsternwick Vic

LEGAL REPRESENTATIVES: RESPONDENT Mr D H Patch of Counsel SOLICITOR Mr S Skelton Gillis Delaney Brown

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright J, President Walton J, Vice-President Glynn J

Matter No IRC 2819 of 2000 DE SIMONE CONSULTING PTY LTD v JOHN ISON Application for leave to appeal and appeal against a decision of Justice Hungerford given on 31 May 2000 in Matter No IRC 2235 of 2000.

JUDGMENT OF THE COURT (Extempore) [2000] NSWIRComm 269

1 The proceedings today relate to an application for leave to appeal and, if leave be granted, an appeal from the judgment of Hungerford J of 31 May 2000 in which his Honour refused an application for an extension of time under s 189 of the Industrial Relations Act 1996 to bring an application for leave to appeal and appeal from decisions and orders of an Industrial Magistrate given or made on 7 October 1999 and 2 March 2000. His Honour's judgment is now reported: De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478. 2 It is common ground that leave to appeal is required (see s 188 of the Industrial Relations Act) and that the principles applicable are those as to appeals from discretionary decisions: s 191(3). Further, the appeal which the present applicant sought additional time to file was itself an appeal subject to leave to appeal: s 188; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 and Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246. 3 His Honour, in an extempore but nevertheless careful and detailed judgment, dismissed the application with costs on essentially three bases as follows:

1. the applicant had not satisfactorily explained the reasons for delay in filing its application;
2. the prospects of the appeal succeeding were small;
3. the applicant had not otherwise made out a case sufficient to justify the grant of its application.

(See in particular paras [8], [14] and [19] to [21] of his Honour's judgment). 4 During the course of the judgment his Honour referred to relevant authorities both directly and by reference to his Honour's earlier judgment in Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436. The authorities included Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3; WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 and LEP International Pty Limited v Caine (2000) 97 IR 35. These were authorities relevant to the matters his Honour had to decide and we consider it was appropriate for his Honour to deal with the authorities in the way he did. We would also add, particularly as to the first basis of his Honour's judgment, reference to the judgment of the Court in De Luxe Cab Company Limited v Grenside (1999) 92 IR 384 at 390 - 391. 5 We have carefully considered the terms of his Honour's judgment. We do not consider that the judgment reveals any error of fact or of principle. Its subject matter is not one which should be dealt with by Full Benches except in extraordinary circumstances: see, for example, the Full Bench decisions in Antakopolous v The State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 and Knowles v The Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382 where reference is made to the considerations relevant to the question of leave including whether the appeal raises substantial issues of principle or at law or has wider implications for the jurisprudence of the Commission. No unusual circumstances or issues of principle have been shown by the applicant. All that it seeks in substance is that the Full Bench re-exercise the discretion committed to the judge at first instance. 6 No basis has been shown whereby the statutory criterion for the grant for leave to appeal has been satisfied or that leave otherwise should be granted. In any event his Honour's conclusions were clearly open to him. 7 We emphasize that we have departed to an extent from the convention adopted by appeal benches of the Commission not to give reasons for our decision essentially so that those who practise before the Commission might be reminded of the important statements of principle as to leave to appeal to which reference has been earlier made. 8 Leave to appeal should be refused. We will now hear the parties as to costs.

[Counsel addressed as to costs, including the respondent's application for indemnity costs.]

9 Reference has been made to the authorities as to indemnity costs helpfully collected in the recent judgment of Schmidt J in Payne v The University of Sydney [2000] NSWIRComm 158 at [4] - [5]. In particular there was reference to the following extract from the judgment of Hill J in Boner v Anderson (No 2) (1993) 50 IR 470 at 475 as approved by Full Benches in Anderson v Boner (1993) 52 IR 114 at 118 and in Australian Mutual Provident Society v Avis (unreported, Bauer, Peterson and Marks JJ, 18 December 1997): It is fair to say that generally speaking an order for costs on an indemnity basis is justified 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. We adopt that statement of principle in this matter (although omitting reference to the notion of improper conduct in the present context) and apply those principles to the circumstances of this case.

10 Having in mind our observations in relation to the question of leave to appeal and further noting the conclusions we have reached that this appeal raises no issue attracting leave and there is no proper basis for the appeal being an appeal from a discretionary decision, we award indemnity costs of the hearing of the appeal. This decision is based upon the justice of the case and in no way represents a punishment for the respondent. We note that no issue of improper conduct arises in this matter.

11 As to all other aspects of the matter before the President we award costs on a party/party basis.

[Counsel then addressed as to the form of orders that should be made.] 12 The court makes the following orders in disposition of the appeal:

1. Leave to appeal refused.
2. Appeal dismissed.
3. Stay granted on 5 July 2000 dissolved.
4. The monies held in the appellant's solicitor's trust account in accordance with the stay granted on 5 July 2000 together with interest thereon be paid to the respondent's solicitors within seven days of today.
5. The Court notes the statement of counsel for the appellant accepting that the amounts referred to in order 4 may not fully discharge the appellant's obligations under the orders made by the Industrial Magistrate, Hungerford J and the Full Bench.
6. The respondent's costs of the proceedings before the Court on 5 July 2000 and 16 August 2000 be paid by the appellant in a sum agreed or in default of agreement as assessed.
7. The respondent's costs otherwise of the proceedings in Matter No IRC 2819 of 2000 except as to the proceedings of 30 October 2000 and 2 November 2000 be paid by the appellant on an indemnity basis.

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