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[2003] NSWIRComm 428
Industrial Relations Commission (NSW)
2003-07-28
Schmidt J
Original judgment source is linked above.
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Gallagher
Email Ltd and Ors
FILE NUMBER: IRC 6147 of 2002 CORAM: Schmidt J CATCHWORDS : Unfair contract - notice of motion - leave sought to discontinue proceedings against the fourth and fifth respondents - orders for costs of the proceedings, including the costs of the motion sought against respondents - reliance upon s108B of the Industrial Relations Act 1996 - orders for costs of the proceedings or costs of the motion sought against applicant - consideration of reasonableness of parties respective conduct - leave to discontinue granted - applicant and fourth and fifth respondents each to bear their own costs LEGISLATION CITED : Industrial Relations Act 1996 Australian Securities Commission v Aust-Home Investments Ltd & Ors (1993) 116 ALR 523 Bowker & Anor v Software Engineers Australia (NSW) Pty Limited & Ors [2003] NSWIRComm 213 Frost v Speaker Legislative Assembly (No 2) (2001) 103 IR 358 CASES CITED : Gorczynski v Perera & Anor [2003] NSWCA 211 (28 July 2003) Kennedy v Contract Transport Solutions Pty Ltd [2003] NSWIRComm 158 One.Tel Ltd & Ors v Deputy Commissioner of Taxation (2000) 171 ALR 227 Perera v Gorczynski (unreported, SC(NSW) 2134/00, 25 July 2002) Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia, Ex parte Lai Qin (1997) 186 CLR 622 HEARING DATES: 11/12/2003; 11/20/2003 DATE OF JUDGMENT: 12/03/2003
28 While the parties did not refer to it, there is a deal of case law in the area. As McHugh J observed in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624-5, the discretion to award costs is usually exercised in favour of the successful party, after a hearing on the merits. In an appropriate case, however, a Court may award costs even if the moving party no longer wishes to proceed with the action. '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 unreasonable 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 Australia 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; Compardres 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.)'
(1993) 116 ALR 523
(2001) 103 IR 358
(2000) 171 ALR 227
(1997) 186 CLR 622
(1993) 44 FCR 194