Hyun Sung (Marco) Choi v Sin Young Yim and Anor

HEARING DATES: 17/05/07 EXTEMPORE JUDGMENT DATE: 17 May 2007

Applicant: Mr I.C. Latham of counsel Solicitors: Mr H. Macken Beston Macken McManis LEGAL REPRESENTATIVES: Respondents: Mr J.M. Miller of counsel Solicitors: Ms B. McIntyre Dibbs Barker Gosling

Application under s106 of the Industrial Relations Act 1996

1 HER HONOUR: This matter came before me following a determination of the Court of Appeal on 4 April 2007 in Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77. The Court of Appeal considered two applications brought before it by the respondents in litigation filed under s106 of the Industrial Relations Act 1996. Relevantly, one of the applications was for a prerogative writ to prevent the Industrial Court of New South Wales from hearing the s106 application. 2 The s106 application had been set down for hearing before me for three days in September 2007. I initiated a mention as the judgment of the Court of Appeal had been brought to my attention, but no notification had been made to the Court by either party. The Court of Appeal determined the Industrial Court lacked the jurisdictional power to consider the particular s106 application. I therefore vacated the hearing dates for the matter listed on 25, 26 and 27 September 2007. 3 The question of costs, given the history of the litigation in the s106 application before the Court, remained outstanding. The parties entered into conciliation as to the question of costs but it was not resolved. Therefore, the Court must deal with the issue of costs. 4 The applicant moves the Court for an order for costs in the s106 summons. The applicant submits it is entitled to costs for the preparation of the matter up until 4 April 2007, the date the Court of Appeal delivered judgment. 5 The respondents oppose the application and make an alternative application that the court order costs to the respondents in the s106 proceedings.

History · The application for relief under s106 was filed on 26 October 2001. It went before Marks J, for directions. · On 1 April 2003, the respondents filed a Notice of Motion challenging the jurisdiction of the court to hear the application. · On 5 May 2003, Marks J gave directions setting down the Notice of Motion. · On 11 December 2003, Marks J considered the Notice of Motion. He found it too early in the litigation to determine the issue of jurisdiction. He therefore gave the following orders at [17]: 1. The Notice of Motion is dismissed. 2. The respondents are to pay the applicant's costs in an amount as assessed in default of agreement . · The Full Bench, on 13 October 2004, considered an appeal from the respondents to the interlocutory decision of Marks J of 11 December 2003. After hearing argument and a concession from the applicant (in the s106 proceeding), the Full Bench determined (ex tempore): Walton AP: It is proposed to deal with the matters that have been raised to this point on the appeal, that is, we propose to deal with the appeal going to the decision, dismissed the motion on the grounds of premature decision in that respect as follows. It has emerged during the course of the argument that the parties are of the view now that the notice of motion brought by the appellant should be determined. We consider that motion should properly be heard by Marks J upon the basis of the summons or any amended summons and the factual material put forward for that purpose.

Having regard to the consent of the respondent, we granted leave to appeal and uphold the appeal from the decision of Marks J to dismiss the motion on the grounds of prematurity.

We also dissolve the earlier stay in the proceedings. The totality of these conclusion is that by consent his Honour shall determine the notice of motion filed on 12 November 2003. The question of cost shall be reserved.

We order: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The matter is remitted to Marks J. for the hearing of the notice of motion. 4. Costs are reserved. The proceedings are concluded. · On 2 December 2004, Marks J determined the Notice of Motion remitted to him by the Full Bench and ordered at [26]: Accordingly, the notice of motion is dismissed. There seems no reason costs should not follow the event. The respondents are to pay the applicant's costs of the notice of motion as assessed under Legal Profession Act in default of agreement . 6 The respondents to the primary proceedings filed an application for a prerogative writ in the Court of Appeal. Relevantly, one issue considered by the Court of Appeal was a challenge to the jurisdiction of the Industrial Court to hear the primary application brought under s106 of the Industrial Relations Act. The Court of Appeal held on 4 April 2007 at [7]-[9] as follows: Orders 7 An order in the nature of prohibition is discretionary but should issue as of right when a claimant is directly affected by the course pursued by a tribunal and the tribunal is about to act to his or her detriment in excess of its authority. The Claimants in this case satisfy the first limb. The second limb is satisfied only with respect to the performance of work challenge to jurisdiction but not, in accordance with the principle of restraint, with respect to the relief claimed challenge to jurisdiction. [76] [82] [91] [92]. The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited (1953) 88 CLR 100; Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180; Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 153 IR 310 applied. The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Batterham v QSR Ltd (2006) 225 CLR 237 considered.

8 There is no discretionary reason why this Court should refuse prerogative relief. [89] [91] [98]

9 Accordingly the orders are: 1. The First Respondent is prohibited from hearing or determining the proceedings under s106 of the Industrial Relations Act 1996, being proceedings No IRC 01/7002. 2. The Second Respondent pay the Claimants' costs in this Court. [90] [91] [92] [103]

Consideration 7 The history of the litigation in this Court therefore reveals the applicant is in receipt of two costs orders in its favour from Marks J (11 December 2003 and 2 December 2004). Further, the Full Bench on 13 October 2004 "reserved" the costs of the appeal brought by the respondents from Marks J's interlocutory judgment of 11 December 2003. 8 The respondents concede the judgment of the Court of Appeal does not take away the jurisdiction of the Industrial Court to determine the issue of costs. 9 The respondents submit, that in opposing the applicant's application for costs before the Industrial Court, they have always pressed the same submission, namely, the Industrial Court did not have the jurisdiction to hear the claim. Given the issue of jurisdiction was not determined by Marks J on 11 December 2003, on the respondents' application, the matter went before the Full Bench. At that hearing the applicant's (to the primary proceedings) counsel conceded the issue should be remitted to Marks J for determination. Marks J then determined the matter and again rejected the application on 2 December 2004. As the submissions which were adopted by the Court of Appeal were the same as those pursued without success in the Industrial Court, the respondents submit, the Court, in the use of its discretion, should not allow costs for either determination made by Marks J. The Court should therefore interfere with the two costs orders made by Marks J. 10 The respondents further submit as to costs of the hearing of the appeal before the Full Bench, given the concession made by the applicant that the matter be remitted to Marks J for determination, the order of the Full Bench that costs "be reserved" should be read as costs for the respondents (of the primary application). 11 The respondents further submit in "the interests of justice" there should be an order for costs to the respondents in the s106 proceedings. 12 The interests of justice loom large in this dilemma. The applicant, through a series of decisions made by this Court advanced this application. The applicant received two orders of the Court dismissing a Notice of Motion brought by the respondents and two costs orders. The applicant would not have advanced the litigation had it not been the beneficiary of those orders. 13 The respondents contend the primary point, which was successful in the Court of Appeal, was consistently mounted before the Industrial Court and therefore they should not have to carry the burden of the costs before the Industrial Court. The respondents rely on a concession made before the Full Bench by the applicant in the hearing of their appeal. 14 The respondents have received a costs order from the Court of Appeal. 15 I do not accept that it would be in the interests of justice to interfere with the orders for costs given by Marks J on 11 December 2003 and 2 December 2004. 16 As to the Appeal proceedings, the Full Bench noted "it had regard to the consent of the respondents" (to the Motion) and remitted the Motion for hearing to Marks J and ordered that "costs be reserved". The applicant was then successful before Marks J, when his Honour dismissed the respondents' motion. In the circumstance, I allow costs of the appeal to the applicant in the s106 proceedings. 17 I want to make it clear that these orders cover the cost of each particular hearing of the Motion and Appeal of the decision of Marks J on the Motion before the Full Bench. They do not cover any other preparation costs incurred by the applicant in the primary litigation. 18 Therefore, I grant the application brought by the applicant for costs and correspondingly dismiss the application brought by the respondents for costs for the s106 proceedings.

Orders : 1. The costs order before Marks J of 11 December 2003 is confirmed. 2. The costs order before Marks J of 2 December 2004 is confirmed. 3. The respondents are to pay applicant's costs of the Motion before the Full Bench on 13 October 2004.

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