Gambotto v John Fairfax Publications Pty Ltd

SOLICITOR Harmers Workplace Lawyers SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr D Perry, Solicitor

SOLICITOR Freehills SYDNEY.

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

ANTONELLA GAMBOTTO v JOHN FAIRFAX PUBLICATIONS PTY LTD

Application under s.106 of the Industrial Relations Act 1996. JUDGMENT RE COSTS ON NOTICE OF MOTION

1 On 1 May 2001 I gave judgment in the matter of a motion by the respondent to strike out these proceedings, initiated by the applicant under s106 of the Industrial Relations Act 1996 ('the Act'). The motion was advanced on the basis that the Commission either lacked jurisdiction to hear and determine the matter or that the summons for relief disclosed no reasonable cause of action. The motion was upheld, in part, the summons for relief being found to be outside jurisdiction in some respects and within jurisdiction in others. This judgment concerns the applicant's motion for an order for costs of the motion.

2 The applicant seeks an order that she be paid forthwith her costs of the motion. It is argued that the motion was effectively a strike-out application which failed in that there is a residue, indeed a substantial one, of the applicant's claim left on foot. Accordingly, the applicant is to be viewed as having succeeded on the motion. Against that, the respondent argues that costs of the motion should be reserved or, in the alternative, if a costs order is to be made, it should be made in favour of the respondent to the extent that it succeeded on the motion, which success it broadly quantifies as in the range of 25-50 per cent. Although both parties (and the relevant principles) disavow a mathematical approach, the applicant suggested that a count of transcript pages reflecting concentration upon the areas struck from the application gives a 19.5 per cent occupation of hearing time.

3 There is no dispute between the parties about the power of the Commission in Court Session to make such order as it, in its discretion, considers appropriate on the application for costs of the motion (see s181 of the Act and the attendant rules. In Part 27, Costs, of the Commission's Rules in particular rr.203, 210 and 211). The discretion is one to be exercised judicially in accordance with relevant general principles, to which reference was made in argument. It is to be noted that the bulk of the authorities referred to by the parties involve costs issues arising at the conclusion of a substantive hearing. In the present matter the motion concerned the jurisdiction of the Commission and, according to my findings, subject to an appeal taken by the respondent from my judgment, will limit the scope of the proceedings on the merits which are to be heard before me.

4 In the light of the submissions on the point, I consider it appropriate that I should resolve at this stage the costs issues concerning the motion.

5 Were the matter of costs on the motion reserved or in some other way made to await future events, the possibility is that a future decision on the costs issue alone would itself be appealable. I consider it preferable that the matter be resolved before me at this stage so that, if necessary, the Full Bench of the Commission in Court Session dealing with the appeal from my interlocutory judgment may resolve all matters.

6 Both parties adopt as expressing the relevant general principles the judgment of Toohey J in Kimberley John Hughes v Western Australian Cricket Association (Inc.) and Ors (1986) ATPR 48 where his Honour summarised his understanding of the effect of decisions of both Australian and English courts as follows: 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey (1920) 2 KB 47.

2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar (1893) 1 QB 564.

3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law . Cretazzo v Lombardi (1975) 13 SASR 4 at 12.

10. There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J. in Cretazzo v Lombardi at 16. His Honour sounded what he described as "a note of cautious disapproval" of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented: "But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues".

11. In the present case it is true that if one took a head count of the causes of action pleaded in the statement of claim, the applicant failed on more than he succeeded, and by some margin. Nevertheless, the applicant succeeded in his primary aim viz. to challenge the operation of r.2:38:1 of the rules of the Cricket Council in so far as the rule operated to preclude him from playing district cricket by reason of his participation in the South African tours.

15. In my view it would be unsatisfactory to attempt to apportion issues and leave the fixing of costs of those issues to the taxing officer. That would impose a very great burden on him and upon the parties' legal representatives. I approach the matter on the basis that the applicant succeeded substantially in what he set out to achieve through his application. He failed on some issues in circumstances where, not only should he not have the costs of those issues, but there should be some compensation to the respondents for the time taken in meeting those issues both prior to and at the hearing.

16. In my view justice would be served by awarding the applicant 75% of his costs.

7 As was observed in the course of argument, one of the difficulties in the present matter concerns the view one takes of the parties' respective successes. The applicant's position depends upon the view that success was achieved in fending off the motion, despite the constriction of the summons for relief. The respondent, on the other hand, contends that it has had substantial success in confining the applicant to matters properly falling within the Commission's jurisdiction and thereby avoiding the substantial possibility of having to defend those extraneous claims on the merits. I shall come to my view on that matter shortly but before so doing I refer to a judgment cited by the applicant as favouring the approach urged in her favour. That judgment was given by Moore J in the Federal Court in CMC (Australia) v The Ship "Socofl Stream" [2000] FCA 82. There his Honour had dismissed a strike-out application brought by the defendant on the basis that the Court lacked jurisdiction to entertain the plaintiff's application. The strike-out application was dismissed with costs. After referring to the judgment of Toohey J in Hughes v WACA, Moore J referred to the decision of the Full Federal Court in Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 where the Full Court said at 271-2: "The propositions enunciated in [Hughes] are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case: Cretazzo v Lombardi (1975) 13 SASR 4 at 12. In Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 42 FLR 213; 28 ALR 201, Fisher J regarded the discretion to apportion costs as one to be exercised only in the most exceptional circumstances. Nevertheless he accepted that where a considerable part of the trial is taken up in determining issues upon which a party fails, it is a proper exercise of the discretion to reduce the costs allowed to that party. Generally speaking, and notwithstanding the considerations referred to by Toohey J and the other authorities mentioned above, the demands of the community for greater economy and efficiency in the conduct of litigation may properly be reflected in a qualification of the presumption that a successful party is entitled to all its costs."

8 After referring to the judgment of Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 his Honour's (Moore J's) conclusions on the matter were expressed as follows: While plainly the Court has a discretion to reflect in a costs order the fact that a party succeeded on one issue but ultimately failed in the proceedings generally, there are no special features of this case which, in my opinion, would justify such an order being made. Sovcomflot's application was a strike out application alleging the Court did not have jurisdiction. On that ultimate issue it failed. The issue on which Sovcomflot succeeded was not an issue that one could have reasonably expected CMC to have conceded. I do not propose to apportion costs in the way proposed.

9 Moore J also considered the question whether the successful plaintiff should be entitled to its costs forthwith contrary to the general rule that costs be payable at the end of the proceedings. After referring to the financial burden imposed on the plaintiff in contesting the strike-out application, its financial position which indicated that it was able to satisfy any costs order against it if it ultimately failed in the proceedings and the probability that the defendant had insurance to cover its legal costs, Moore J considered the probable future of the proceedings and the likelihood that a decision would be achieved if the plaintiff was to succeed within some few months. His Honour declined to order that the costs in favour of the plaintiff be payable forthwith.

10 While there is of course an analogy between that matter and the present case, a fundamental difference occurs in that the defendant was wholly unsuccessful in its strike-out application in that matter, whereas in the present case the respondent has been successful to a partial and, in my view, significant degree.

11 I do not hesitate to say that I have found the applicant's case, viewed superficially of course at this stage, as one difficult of comprehension, a position which would seem to me to be reasonably clear from my judgment on the motion. It is in the nature of interlocutory examination of jurisdictional issues that the applicant has had the benefit of her case being taken at its highest and as I have previously indicated it is now a matter (again, subject to the appeal proceedings) for her case to be established on the merits. It would be, as was submitted for the applicant, an error to bring to account in assessing the costs questions on the motion any prospect of difficulty that might be had in that regard and I do not intend to do so.

12 I find it impossible to view the applicant's partial success in defending the motion as one which ought be treated as full success in the sense that she should have her costs of defending the motion paid by the respondent. The fact of the matter is that the respondent has been, according to my view of things, successful to a significant degree using the test of "impression and evaluation" (per R D Nicholson J in Gabor Martin Nagy and Anor v Master Dairy Ltd [1988] FCA 104). I consider that a just result would be that the applicant should have 70 per cent of her costs on the motion as agreed or assessed. Given there is an appeal from my interlocutory judgment, I can see no basis for diverting from the usual rule as to the time at which costs should be payable. I order accordingly.

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