John Sheiles v TB Clarke

Civil Procedure Act 2005 Constitution Act 1902 LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Uniform Civil Procedure Rules 2005

Australian Beverage Distributors Pty Limited v Evans & Tate Premium Wines Pty Limited (2006) 58 ACSR 22 Bell v Macquarie Bank Limited & Anor [2003] NSWIRComm 21 Gertig v Davies [2003] SASC 86 CASES CITED: Leichhardt Municipal Council v Green [2004] NSWCA 341 Moray Vincent v Merrill Lynch Australia Pty Limited [2000] NSWIRComm 254 Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195 Sheiles v TB (Overseas) Pty Limited [2006] NSWIRComm 382 Williamson v Service Corporation Intl (Australia) Pty Limited (2003) 130 IR 247

Applicant: G Healey Solicitors: G H Healey & Co LEGAL REPRESENTATIVES: Respondent: Mr A Gotting, of counsel Solicitors: Minter Ellison

Application under s 106 of the Industrial Relations Act 1996

1 The respondent moves the Court for orders by way of notice of motion following judgment in this matter on 6 December 2006: Sheiles v TB (Overseas) Pty Limited [2006] NSWIRComm 382. The orders sought in the notice of motion are set out in full below:

An order that orders 4 and 5 of the Court made on 6 December 2006 in proceedings IRC 7602 of 2001 be rescinded or set aside.

An order that order 3 of the Court made on 6 December 2006 in proceedings IRC 7602 of 2001 be stayed until the costs reflected in orders 3 or 4 are assessed.

An order that the Applicant pay the costs of the Respondent of and incidental to the proceedings IRC 7602 of 2001 (including reserved costs) from 1 May 2003 assessed on an indemnity (solicitor-client) basis.

In the alternative to order 3, and order that the Applicant pay the costs of the Respondent of and incidental to the proceedings IRC 7602 of 2001 (including reserved costs) from 1 May 2003 assessed on a party-party basis.

An order that the Respondent may set off the costs ordered under order 3 or order 4 against the costs of the Applicant, as agreed or assessed on a party and party basis, of the proceedings IRC 7602 of 2001 until 30 April 2003.

An order that, to the extent that the costs ordered under order 3 or order 4 exceed the costs of the Applicant as agreed or assessed on a party-party basis until 30 April 2003, the Respondent may set off the excess against order 3 of the Court made 6 December 2006 in proceedings IRC 7602 of 2001.

An order that, to the extent that the costs ordered under order 3 or order 4 exceed order 3 of the Court made 6 December 2006 in proceedings IRC 7602 of 2001, the Applicant pay the excess to the Respondent within 21 days of the determination of the excess, whether such determination be by agreement of the parties of by order of the Court.

An order that the Applicant pay the costs of this notice of motion assessed on an indemnity basis.

Such further or other orders as the Court thinks fit.

2 In the judgment of 6 December 2006 I made the following orders:

(1) The contract of employment entered into between the applicant and the respondent under which the applicant commenced work as a financial controller for the respondent on 14 May 2000 is declared unfair.

(2) The contract referred to in Order 1 above is varied from its inception to include a term that upon termination of employment for the stated reason of redundancy the respondent shall pay to the applicant an amount of money equivalent to 3 months remuneration calculated by reference to the applicant's base yearly salary of $105,000, being an amount of $26,250.

(3) The respondent is to pay the applicant $26,250 representing 3 months remuneration calculated on the applicant's base salary and payable under the contract.

(4) The respondent is to pay interest on the amount specified in Order 3 above in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005. The interest shall be payable from the date of the filing of the summons for relief on 21 November 2001 until the date of this judgment.

(5) The respondent shall pay the applicant's reasonable costs of the proceedings. 3 The respondent in the substantive proceedings requested the Court to address the issues of costs and interest after the issues of unfairness and relief had been determined. The applicant did not oppose that proposed course. The orders made in the judgment of 6 December 2006 included orders in relation to interest and costs. The respondent places reliance on rule 151(1) of the IRC Rules which he says empowers the Court to correct, "a mistake in an order or a decision arising from an accidental slip or omission". For present purposes rule 151(1) is extracted below:

(1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. 4 According to the respondent the "mistake" is said to arise from the inadvertent failure to afford it the opportunity to make submissions on the issues of interests and costs. In the alternative, the respondent relies on the Court's "incidental power" to correct mistakes or errors which he says have occurred by reason of an accidental slip or omission. 5 The applicant opposes the respondent's application to rescind or set aside Orders 4 and 5 of the judgment but expressly does not oppose (in written submissions) the Court's power to set aside a costs order. 6 The slip rule was applied by Marks J in Moray Vincent v Merrill Lynch Australia Pty Limited [2000] NSWIRComm 254 to set aside an order made by his Honour that the respondent pay the applicant's costs of the proceedings in an amount as agreed or in the absence of agreement as assessed. Marks J invoked the rule on the basis that, notwithstanding the terms of his earlier order awarding costs, the parties had not in fact made any specific reference to the question of costs during the course of the substantive proceedings. In invoking the rule his Honour remarked that if his attention had been directed to the fact that the question of costs may have been contentious he would have reserved costs. 7 In the judgment Marks J also appeared to place some reliance on s 163(1)(c) of the Act which requires "the Commission" to, "act according to equity and good conscience and substantial merits of the case without regard to technicalities or legal form." It is to this particular provision that the applicant points as the basis for the Court's power to set aside a costs order. 8 Whether that provision may be relied upon as a proper basis for rescinding or setting aside orders made in a judgment is debatable. It was not expressly relied upon by Marks J as providing the power to set aside the order made as to costs. Rather his Honour's reliance on the provision appeared to be more as reflecting a guiding principle that the Court must follow when making decisions or orders. The applicant in the present proceedings did not direct the Court to any authority which had utilised the provision in the manner contended. I note in any event that the requirements in s 163(1) are qualified by s 163(2) which provides that the rules of evidence, "and other procedures of a superior court of record", apply to the Industrial Court (as opposed to the Commission). The present proceedings are of course proceedings in the Industrial Court. 9 A recent decision of the Court of Appeal referred to the slip rule, as set out in rule 36.1 of the Uniform Civil Procedure Rules 2005 (UCPR), which is in similar terms to rule 151(1) of the IRC Rules: Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195. 10 In the judgment, Spigelman CJ (Santow JA and Handley JA agreeing) observed (at [116]) that, "... words such as 'error' and 'correct' in the Slip Rule should not be given a narrow interpretation"; and, that, "carrying into effect the natural intention of the Judge making the order and making sure that the order did not have a consequence which the Judge clearly intended to avoid, falls within the natural and ordinary meaning of the word 'correction' ...". 11 Here, the Court inadvertently failed to afford the respondent the opportunity to address the issues of interest and costs following determination of the substantive issues of unfairness and relief under s 106. This omission falls within the interpretation and purpose of the rule (that is, to correct accidental omissions in the orders of the Court) and accordingly, the rule may be invoked to rectify the omission. I intend therefore to set aside Orders 4 and 5 made in the judgment of 6 December 2006. The content of any replacement orders will be considered later in this judgment in the context of other orders being sought in the notice of motion. Costs

12 The respondent's present application for costs arises because it sent the applicant an offer of compromise prior to the hearing in an effort to settle the matter. The offer was rejected. The respondent now seeks its costs of, and incidental to, the proceedings on an indemnity basis from the date the offer was made on 1 May 2003. In the alternative, the respondent seeks costs from the same date on a party and party basis. 13 The offer of compromise, which has been annexed to the affidavit of James Patrick Fox sworn on 9 February 2007 and read on the notice of motion for the respondent, is dated 30 April 2003. It is expressed to be open to be accepted until 30 May 2003. It provides for payment to the applicant in compromise of his claim under s 106 in the sum of $43,750 gross, as well as payment of the applicant's costs, "as agreed or assessed". The offer was also stated to be made, "without prejudice and in accordance with Part 23 of the IRC Rules 1996". 14 The respondent, in Orders 3 and 4 of the judgment orders, was ordered to pay the applicant a principle sum of $26,250 plus interest on that amount payable from the date the summons was filed (21 November 2001) until the date of judgment (6 December 2006). According to the respondent's calculations, the principle sum of $26,250, taken together with the interest payable for the period as ordered, amounts to $39,375, an amount which is significantly less than the amount offered in the offer of compromise. The disparity is even greater if interest is calculated up to the date when the offer of compromise was made. According to the respondent, the interest payable on the principle sum up to 30 April 2003, being the date the offer was made, amounts to $3,900. 15 Either amount results in a total sum which is "not more favourable" than the terms of the offer of compromise. The words "not more favourable" appear in rule 216(6) of the IRC Rules. Rule 216(6) deals with offers of compromise made by a respondent, rejected by an applicant, and not bettered in the litigation. In these circumstances, in accordance with the rule, the applicant is entitled to his costs up to the day the offer of compromise was made, assessed on a party and party basis, and the respondent is entitled to its costs thereafter also assessed on a party and party basis. For convenience, the sub-rule is set out in full below:

216 Offer of compromise (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.

16 The respondent seeks its costs on an indemnity basis from 1 May 2003, or in the alternative, from that date on a party and party basis. It will be immediately apparent from the content of rule 216(6) that the respondent is only entitled to costs on a party and party basis from the day after the offer of compromise was made (unless the "Commission" otherwise orders). 17 The respondent relies on two matters in support of its application for indemnity costs. These are, first, the disparity (referred to in oral submissions as a "gross disparity") between the amount ordered in respect of the claim (including interest) and the amount offered by way of offer of compromise; and secondly, the fact that it apparently reserved its rights to seek indemnity costs when serving the offer of compromise. 18 There have been many judicial statements to the effect that an offer of compromise made, rejected and not bettered in the litigation is but one of many factors falling for consideration in the exercise of the Court's discretion to award indemnity costs. 19 In Leichhardt Municipal Council v Green [2004] NSWCA 341, for example, Santow JA (Bryson JA and Stein JA agreeing) adverted to the significance of offers of compromise (and Calderbank type offers) to the Court's general discretion to award costs, specifically in relation to offers of settlement made by a defendant (or respondent):

47 The conclusion that indemnity costs should not be viewed as a necessary or automatic consequence of not accepting a defendants offer does not in any way deny the general discretionary power of the Court regarding costs in such circumstances. It merely recognizes that, influenced but not bound by the rules, a Court will be reticent to award such indemnity costs following defendant offers of settlement. It cannot be forgotten that the power to award indemnity costs is within the Court's general discretion in any event (see s148AB District Court Act 1973, s76(1)(c) Supreme Court Act 1970). It is preferable to consider applications for indemnity costs following unaccepted offers of compromise by defendants as being applications for a favourable exercise of the Court's general discretion to award indemnity costs. As far as Calderbank offers go there is very little difference, the costs consequences of these lying entirely within the Court's general inherent discretion on costs. Nothing said in GIO General Ltd v ABB Installation & Service Pty Ltd (supra) derogates from this conclusion. The Court there merely held that the trial judge's discretion not to award indemnity costs was not appellably erroneous. The decisions of Dunford J in Bishop (supra) and McKerlie (supra) can be regarded likewise. The authorities (especially Jones v Bradley ) emphasise the width of the discretion and the unusual nature of an award of indemnity costs in relation to Calderbank letters. 20 Earlier in the judgment, Santow JA commented upon the differences in procedures in terms of attendant costs consequences, involving offers of settlement made by way of offers of compromise under the statutory rules, and Calderbank offers. His Honour identified a key difference (at [19]) between the two types of settlement offers, namely: "(where) an offer of compromise has been made under the Rules, a prima facie entitlement arises in the relevant parties to have costs awarded in accordance with the appropriate rule. This entitlement, the subject of the Court's discretion to prevent substantial injustice in exceptional cases, will rarely be interfered with. ... By contrast, the costs consequences attendant under general law upon an offer of compromise made in a Calderbank letter lie within the discretion of the Court, to be exercised having regard to all the relevant circumstances of the case. ... It is not the case that unaccepted offers of compromise by Calderbank letter should give rise to a prima facie presumption of indemnity costs if the offer is not bettered." 21 Later in the judgment a rationale is identified for the different treatment under the Rules, in terms of costs consequences, afforded to offers of compromise made by a plaintiff or applicant and offers of compromise made by a defendant or respondent. These differences are manifest in rule 216 of the IRC Rules. Rule 216(4), which deals with offers of compromise made by applicants, stipulates that where the offer is not accepted by a respondent, but the order on the claim is "no less favourable" than the settlement offer, then the applicant (subject to the Court otherwise ordering) is entitled to his, her, or its costs on an indemnity basis. This is to be contrasted with rule 216(6), earlier extracted, which deals with offers of compromise made by a respondent, but stipulates that any costs entitlement will be assessed on a party and party basis. 22 Santow JA explained the rationale for the different treatment under the Rules in the context of comparing offers of compromise to Calderbank offers:

[43] The rule provides basically that a defendant will be entitled to party and party costs from the date of an unaccepted offer of compromise, if the plaintiff obtains a result no better than the offer. This incentive only really has any effect when the plaintiff is successful, which is not the case here. It is important to note that this is not really anything over and above what the defendant would recover if it had been totally successful in the case. Unlike with the case of offers by a plaintiff, the rules of Court do not provide any entitlement to indemnity costs for a defendant . The rules do not have anything at all to say in a situation such as the present. [44] Given that this is the case under the Rules, it would be a curious thing if a different result were to prevail if a defendant makes its offer by way of Calderbank letter. Although the rules do not constrain a Court's discretion as to costs when dealing with a Calderbank letter ( Jones v Bradley (supra)) it should not be forgotten that policy objectives behind the two procedures remain wedded. Furthermore, it would be incorrect to assume that policy cannot move forward. Thus Practice Note 42 and the new DCR Pt 52A r25(1A) reveal quite clearly a more refined articulation of the policy objectives underlying the offer of compromise procedure in the District Court Rules . It is difficult to accept that the fact that a Calderbank offer by a defendant was not accepted gives rise to a prima facie entitlement to costs on an indemnity basis, when the course of authority in this area has been so overwhelmingly to the contrary. Such a large disparity between the result flowing from an offer of compromise under the Rules and a Calderbank offer can serve no useful purpose. Rather it would tend to increase the mischief which the 1998 DCR amendments sought to rectify - that is that enduring uncertainty as to the effect of offers of compromise on costs reduces their general effectiveness as incentives to litigants to settle early. [45] Costs on an indemnity basis are awarded following unaccepted plaintiff offers, as a necessary incentive to defendants to settle. The defendant will be liable for costs on a party and party basis anyway, if it loses. By contrast, depriving a successful plaintiff of costs, and awarding them in favour of a defendant should ordinarily be sufficient sanction against a plaintiff's failing to give adequate consideration to a defendant's offer. The fact that the defendant may ultimately have a verdict in its favour does not alter the incentive scheme. A successful defendant will generally receive party and party costs when it wins. No additional sanction is ordinarily necessary to make a plaintiff consider the defendant's settlement offer over and above that. A plaintiff will ordinarily have regard to any defendant's offer without need for additional incentives, because a plaintiff as initiator of the action, primarily bears the risk of the claim. If the plaintiff's claim fails, the plaintiff's own investment (in costs) will be lost and the plaintiff will carry the burden of the investment it has forced the defendant to make in costs also. Defendant offers are thus treated differently in the Rules than plaintiff offers for good reason. 23 It follows from the foregoing remarks that the respondent in the present proceedings under rule 216(6) is entitled to its costs on a party and party basis and further, that the entitlement will only be displaced in the discretion of the Court in exceptional cases in order to prevent a substantial injustice: Leichhardt Municipal Council at [19]. In my opinion, the two matters advanced by the respondent for an award of costs on an indemnity basis are not of sufficient weight to displace the rule. In any event, in relation to the first matter, I do not agree that the disparity between the amount ordered in respect of the claim and the amount offered by way of offer of compromise is a, "gross disparity" as was suggested by the respondent in oral submissions, although the difference is significant. As to the submission that the respondent reserved its right to indemnity costs when the offer of compromise was served, it does not, of itself, in the present circumstances, displace the respondent's prima facie entitlement under the Rules to costs on a party and party basis. The respondent has not made any submissions in support of the matter or provided any supporting material as to why the Court should take the matter into account or how it is relevant to the Court's consideration as to whether an order for indemnity costs is warranted. 24 It remains to consider in relation to this issue whether rule 216(6) should be invoked in favour of the respondent. The offer of compromise appears to be a genuine offer, both in substance and in form. The applicant does not suggest otherwise. Nor has there been any suggestion raised by the applicant that the time during which the offer remained open was unreasonable: see for example Bell v Macquarie Bank Limited & Anor [2003] NSWIRComm 21 at [23], [24]. 25 The applicant, in submissions, relied upon the period of time (some four years) which had elapsed from the date of the making of the offer of compromise (30 April 2003) to the date the respondent made its present application for costs (February 2007). The applicant says the "commercial decision" made (in 2003) as to the quantum offered by way of compromise of the claim cannot be valid because: 1. The evidence of the parties was not concluded at the time and wasn't until five years later; 2. A proper enquiry into the form of the offer of compromise needs to be undertaken; 3. The "justice of the situation" must be considered in circumstances where the respondent's main witness, Ronald Phair, was unable to attend court for purposes of cross-examination. 26 As to the applicant's first point, the short answer is that a party is not precluded from making an offer of compromise prior to the conclusion of proceedings. Such a course of action is contemplated under Part 23 of the IRC Rules. Under rule 165(2), for example, an offer of compromise, by implication, cannot be made until the proceedings have been conciliated (under s 109 of the Act). Rules 168(1) and (8) state that an offer of compromise may be made at any time before a decision is given or a judgment is commenced (not being an interlocutory judgment). 27 In relation to the second point raised by the applicant, it appears, although it is not entirely clear, that the applicant is contending that the amount offered by the respondent represents a "rough assessment of (its) costs at the time, or good luck at arriving at such a figure". This contention was not advanced further in submissions, nor was there any evidence tendered which might have provided some support for the contention. The offer of compromise does not contain any specific figure for costs. Instead, it contains an offer to pay the applicant's costs "as agreed or assessed". The offer of compromise clearly sets out the terms of the offer and the period during which it remains open. Nor is there anything on the face of the document, either in substance or in form, that might suggest that the amount of payment offered ($43,750 gross) was arrived at by some arbitrary process. As regards the third matter, the fact that Mr Phair was unable to attend and give evidence, was considered during the proceedings on a voir dire examination. The significance of Mr Phair's failure to attend Court was also taken into account in the judgment and his evidence found to attract little weight because it was not able to be tested and because his affidavit did not address a key issue concerning whether the respondent held out to the applicant the prospect of long-term employment: see [25]-[27] of the judgment. The quantum of monetary relief ordered to be paid to the applicant in the judgment bore no connection to the failure of Mr Phair to attend and give evidence. The applicant also asserted in written submissions that the orders sought by the respondent in the notice of motion seek to subvert the judgment and the orders made at first instance. The matter was not expanded upon in any detail by the applicant in oral submissions. In my view, however, the assertion lacks substance. The notice of motion was filed and served in accordance with the Rules and with the prevailing practice and procedure. The Court has found that rule 151 may be validly utilised to rectify any inadvertent slip. This would seem to be a more expeditious and less expensive means of resolving the issues, than filing an appeal. 28 Finally, the applicant submitted that because the respondent is a subsidiary of a major media organisation it has, "an attendant responsibility pursuant to the Constitution Act of New South Wales". The applicant relied specifically on s 5 of the Constitution Act 1902. That section, however, concerns the law making powers of the legislature and has no direct bearing on the responsibilities of private corporations. 29 Taking all these factors into account, it is appropriate that an order be made in accordance with rule 216(6) of the IRC Rules which requires that the respondent pay the applicant's costs in respect of the claim up to 30 April 2003 assessed on a party and party basis and the applicant pay the respondent's costs in respect of the claim thereafter assessed on a party and party basis. Interest

30 The respondent also submits that s 100(4) of the Civil Procedure Act 2005 should be applied by the Court in determining the amount of interest that is to be awarded to the applicant under s 106(5). Under that section the Court may not order payment of interest from the period when, "an appropriate settlement sum", was offered by the defendant unless the special circumstances of the case warrant the making of such an order. "Appropriate settlement sum" is defined in s 100(5). It means, in effect, the amount offered by way of settlement offer if the actual judgment amount does not exceed it by more than 10%. The section, however, is confined in its terms to proceedings for damages and does not therefore apply to proceedings under s 106 of the Act. So much has been conceded by the respondent, whose reliance on the section is confined to what it has described as underlying public interest considerations, namely the encouragement of an appropriate settlement sum without the need to use the resources of the Court and without incurring unnecessary legal costs. 31 While it cannot be disputed that there are strong public policy reasons for providing incentives to litigants to end the litigation as soon as possible (as to which see Leichhardt Municipal Council at [14] [44]), it must be borne in mind that the present applicant was successful in his claim under s 106. In the passage earlier extracted from the judgment of Santow JA in Leichhardt Municipal Council (at [45]), his Honour remarked that depriving a successful plaintiff (or applicant) of costs and awarding them in favour of a defendant (or respondent), "should ordinarily be sufficient sanction against a plaintiff failing to give adequate consideration to a defendant's offer". The consequences to the present applicant will be that he must pay the respondent's costs on a party and party basis from the day after the offer of compromise was made notwithstanding that he has been successful on his claim. This should operate as a sufficient sanction against the failure to give adequate consideration to the offer of compromise and should satisfy the public policy objectives underlying the rejection of offers of compromise that should have been accepted. 32 I therefore do not propose to make orders which would operate to deprive the applicant of interest on the principle sum awarded in the judgment for the period initially nominated, that is, from the date the summons was filed until the date of judgment. Set-off

33 The respondent also seeks orders that it set-off the costs ordered to be paid by the applicant to the respondent against the costs of the applicant until 30 April 2003 as agreed on a party and party basis. According to the respondent, the Court's power to set-off an order for costs in favour of one party against an order for costs in favour of another party is part of its implied power to control its own processes. 34 A brief review of some authorities on the point would seem to confirm this. In Williamson v Service Corporation Intl (Australia) Pty Limited (2003) 130 IR 247, for example, the Full Bench of this Court held that, in respect of orders for security for costs, the Supreme Court Rules (now contained in the UCPR) governed part of this Court's practice and procedure, together with its implied powers such as those to control its process and to prevent an abuse of such process (at [46]). 35 White J in Australian Beverage Distributors Pty Limited v Evans & Tate Premium Wines Pty Limited (2006) 58 ACSR 22 similarly found that set-off of a judgment for costs has long been allowed and that the source of power to do so depends upon the control a court exercises over its own proceedings: at [68]-[70]. In Gertig v Davies [2003] SASC 86, the Supreme Court of South Australia relied on the Court's inherent power reflecting a longstanding practice to order a party's liability to pay costs to be set-off against damages in the action in which the costs are awarded: at [23] and [24]. 36 The respondent seeks the order for a set-off of the applicant's costs against its costs on the ground that the costs of the respondent after the making of the offer of compromise will exceed the costs of the applicant. According to the respondent, the applicant's estimated costs from 21 November 2001 (the date the summons was filed) to 27 March 2003, on a solicitor-client basis, amounted to $15,000. The respondent's costs from 1 May 2003 (the day after the offer of compromise was served) until 6 December 2006 were estimated on a solicitor-client basis to be in excess of $100,000. 37 In my view, it seems probable, given the disparity in the amounts, that the respondent's costs will exceed the applicant's costs. Ultimately, it will depend on the results of an objective assessment of the respective costs in order to arrive at a figure which may or may not be substantially less than the respondent's estimate of its costs. In addition, the costs will fall to be assessed on a party and party basis which means a starting figure significantly less than the respondent's estimate. 38 The applicant has made no submissions in relation to this issue. Based on these foregoing considerations therefore, I propose to make an order in the terms set out in Order 5 of the notice of motion insofar as that order is referable to Order 4 sought in the notice of motion. 39 The respondent also seeks an order that it may set-off any excess following the set-off of the parties' costs, against the $26,250 awarded to the applicant under Order 3 of the judgment Orders. The same ground is advanced, namely, that it is "highly likely" that the costs following the initial set-off of costs against costs will exceed the amount awarded to the applicant in respect of his claim including interest. 40 In my view, a further set-off between any residual costs following a set-off against the claim plus interest, may not necessarily result in an excess payable to the respondent. Much will depend, for example, upon the quantum of costs assessed. I therefore do not intend to make an order in the terms proposed in Order 6 of the notice of motion. Stay

41 Finally, the respondent seeks an order that Order 3 of the judgment orders which awarded the applicant an amount of $26,250 in satisfaction of his claim be stayed until the costs of the parties are assessed on a party and party basis. The ground advanced in support of the order is the same ground as that advanced in support of a set-off of any residual costs against the amount awarded to the applicant in respect of his claim plus interest. It should be rejected for the same reasons. In addition, the applicant opposed a stay of the order in written submissions submitting instead that a "direction" should be given that the amounts ordered to be paid under Orders 3 and 4 of the judgment orders should be payable immediately. I note, also, for completeness, that a court's jurisdiction to stay its own proceedings, which extends to staying the execution of judgments and orders, should be exercised with caution: see for example, Australian Beverage Distributors Pty Limited v Evans & Tate Premium Wines Pty Limited (2006) 58 ACSR 22 at [77]. 42 I therefore propose to grant Orders 1, 4 and 5 of the notice of motion. Order 8 of the notice of motion will be stood over for a directions hearing on Thursday, 25 October 2007 at 9.30am. The remainder of the notice of motion is dismissed. Orders

(1) Orders 1, 4 and 5 of the respondent's notice of motion filed on 9 February 2007 are granted.

(2) Order 8 of the respondent's notice of motion will be stood over for a directions hearing on Thursday, 25 October 2007 at 9.30am.

(3) The remainder of the respondent's notice of motion is dismissed.

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