Kennett and Anor v Mayrana Pty Ltd and Ors and Myong Ho Pak v Mayrana Pty Ltd and Ors

Kennett and Anor v Mayrana Pty Ltd and Ors and Myong Ho Pak v Mayrana Pty Ltd and Ors - [2005] NSWIRComm 367 - NSWIRComm 2005 case summary — Zoe

[35]

It will be a matter for Ms Tan or Mr Healey or Ms Munc to explain to the applicants that the court has power in appropriate circumstances to call upon legal practitioners to show cause why costs should not be met by them. Whether and to what extent this is an appropriate course in these proceedings I am unable to say, and I shall therefore take no action to summons any legal practitioner to show cause, accordingly. 6 Marks J had before him affidavit evidence filed by both parties. The applicant's solicitor with carriage of the matter attested that the matter had been conciliated by her Honour Justice Kavanagh in December 2004. Kavanagh J gave directions for the preparation of the matter for hearing, including that an amended summons be filed by 14 January. The direction was not complied with, but attempts were made to reach agreement with the respondents, as to an amended timetable. No agreement was reached and the applicants failed to have the matter relisted for directions, as the respondents invited. An amended summons was not filed until 6 April, although steps had been taken to prepare the summons and supporting affidavit material in the meantime. The Court had not been approached by the applicants for a new timetable. The matter had been pursued by the respondents. 7 The personal applicants, Mr Kenneth and Ms Myong Ho Pak, each swore an affidavit which explained steps taken to prepare the matter for hearing. Another solicitor involved in the conduct of the matter, also swore an affidavit, which explained steps taken to prepare the matter, before and after the conciliation proceedings before Kavanagh J. Objection was taken to any complaint being advanced in relation to the applicants' conduct of the case before the December 2004 conciliation proceedings. A misunderstanding as to the necessity to approach the Court, when the directions made could not be complied with, was acknowledged by the applicants' solicitors and an apology proffered. A reference to the Legal Services Commissioner was opposed. 8 The respondents' solicitor also swore an affidavit which recounted the history of the matter from its commencement, with the applicants' repeated failures to comply with the Court's directions being outlined. He explained the steps taken by the respondents to have the matter relisted in March 2005. On 24 March the matter came before Marks J, who made directions which required the applicants to file certain material for a show cause hearing on 6 April. The material was not filed in accordance with the directions. The parties' cases

[37]

That leaves outstanding my consideration of the particular issue, namely, the failure on one view of it of the legal practitioners to approach the court in a timely fashion or take some other action in circumstances where it was clear that the applicants were both in breach of orders of the court and in dealing with that on the basis the affidavit material tendered and the submissions made by you. 12 The purpose of a costs order was to reimburse expenses incurred by a party through no fault of their own. The order made accorded with applicable principle - Jay v Colonial Services Pty Ltd (2002) 113 IR 47. Consideration 13 Having heard the parties as to both leave to appeal and appeal we are satisfied that leave to appeal must be refused in this case. There was no issue that the order made was within the discretion granted by s 181 of the Act, which provides: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) the Commission may award costs against an industrial agent representing an applicant or employer in proceedings under Part 6 of Chapter 2 if:

[38]

(i) the industrial agent fails to file a certificate as required by section 90A, or (ii) the Commission finds that the industrial agent has filed a certificate under that section certifying that the agent has reasonable grounds for believing, on the basis of provable facts, that the applicant's claim or employer's response to the claim had reasonable prospects of success when the agent did not have reasonable grounds for believing, on the basis of provable facts, that it had reasonable prospects of success, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by sections 357 and 373. (3) The Commission in Court Session may not award costs in proceedings for a contravention of a dispute order or in proceedings under Division 2 of Part 4 of Chapter 5 (Rules of industrial organisations). (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 14 The issues raised by the appeal do not go to questions of principle. They concern alleged errors in Marks J's exercise of the discretion to award costs, at an interlocutory stage of the proceedings, against a party in default of directions given by the Court as to the preparation of the matter for hearing. His Honour concluded in his decision that this had resulted in repeated appearances before him, which would have been unnecessary had the Court's directions been complied with. The transcript referred to by the appellant confirms that his Honour was directing his enquiries to what had occurred since the conciliation in December 2004. We are satisfied that the public interest test in s 188 is not satisfied by the matters raised and the arguments advanced. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380). Section 188 provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 15 As has oft been observed, leave to appeal will not lightly or automatically be granted. (See Perrott v Xcellenet Australia Ltd and Ors (1998) 84 IR 255.) The matters were before Marks J for case management. There will be occasions when it is appropriate for the Court to make orders against a party in default of directions given in the case management process. His Honour concluded that this was such a case. Nothing advanced has convinced us that his Honour's decision involves appellable error, or that it meets the public interest test. [Hearing as to Costs] Orders

At a glance

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Judgment (40 paragraphs)

16 For all of the reasons given, leave to appeal is refused and the appeal dismissed. The appellants are ordered to bear the respondents' costs of the appeal, as agreed or assessed. We are satisfied that costs should follow the event. We so order.

Cases Cited (6)

Cited By (4)