Morrison v Joy Manufacturing Co Pty Ltd

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Thursday 12 August 2004

Matter No IRC 316 of 2003 RODNEY MORRISON v JOY MANUFACTURING CO PTY LTD Application by Department of Mineral Resources of New South Wales for an appeal against a decision of Justice Marks given on 27 December 2002 in Matter No IRC 5413 of 2001 JUDGMENT OF THE COURT [2004] NSWIRComm 224

1 On 29 July 2004 we heard the applications by both the appellant and respondent for costs orders in these proceedings. In April 2004 we had decided to dismiss the appeal lodged by the appellant as incompetent and ordered that, unless application was otherwise made within 14 days, such application being accompanied by outline submissions, the appellant was to pay the respondent's costs of the proceedings: see Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107.

2 The appellant subsequently filed his application in which he seeks his costs of the proceedings and resists the respondent's application that he pay the respondent's costs notwithstanding the respondent's success in the proceedings. In approaching the matter in this way the appellant relies primarily on the failure of the respondent to raise in a timely and appropriate way the point on which the respondent succeeded in the proceedings.

3 The appellant submits, for example: There has been manifest prejudice suffered by the appellant by reason of the respondent's failure to act in an appropriate and timely way to have the appeal struck out. Costs have been incurred unnecessarily by both parties in submissions on the substantive appeal and preparation for the hearing as well as in arguing interlocutory issues that it would have been unnecessary to deal with if the respondent had acted in a timely and appropriate manner.

4 In support of its application the appellant relies on Pt 51 r 25 of the Supreme Court Rules which he says is incorporated in this Court's practice and procedure by virtue of r 89(5) of the Industrial Relations Commission Rules. Part 51 r 25 of the Supreme Court Rules is in the following terms: 51.25 Competency

(1) A respondent who objects to the competency of an appeal shall, by motion on notice filed and served on all other parties to the appeal within 21 days after service upon the respondent of the notice of appeal with appointment, apply to the Court of Appeal for an order striking out the appeal as incompetent.

(2) If the respondent fails to comply with subrule (1), but the appeal nevertheless is dismissed as incompetent, he shall not, unless the Court of Appeal otherwise orders, receive any costs of the appeal, and the Court of Appeal may order that he pay to the appellant any costs of the appeal proving useless or unnecessary.

5 The appellant relied on the following judgments of the Court of Appeal in which the Court applied Pt 51 r 25 of the Supreme Court Rules or its predecessor provision: Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) (unreported, 16 November 1995); Kassem v Colonial Mutual Insurance Co Ltd [2001] NSWCA 38; and Falamaki v Wollongong City Council [2001] NSWCA 55.

6 The appellant's alternative submission is that the Court has the general discretionary power to make the orders it seeks pursuant to s 181 of the Industrial Relations Act 1996. We consider that the primary submission is incorrect and the latter submission is correct (see s 196(4) of the Industrial Relations Act) and do not apprehend that the respondent submits otherwise. The respondent however takes an entirely different approach as to the substance and merits of the appellant's application.

7 The respondent submits that it should have its costs of the proceedings on the basis that the general rule is that a successful party should have its costs unless good reason is shown to the contrary. The respondent argues that the appellant's submissions do not suggest that he has been in any way prejudiced by the respondent not seeking an order striking out the appeal as incompetent within 21 days of the notice of appeal and that the only matter relied upon by the appellant is that the respondent did not file a notice of objection within 21 days of the notice of appeal. However, it is submitted, there was no obligation to do so and there is no suggestion that the failure to do so was deliberate or otherwise reprehensible.

8 The respondent also emphasised that the point upon which it eventually succeeded, the competency issue, was not a straightforward or simple point and the attention of its legal advisors was diverted by the complex interlocutory proceedings which were filed by the appellant two days after the appeal was lodged and which were subsequently argued in March. The respondent also distinguished the cases relied on by the appellant on the basis that they related to the relatively straightforward issue of competency of certain appeals lodged from the District Court which were incompetent, the correct procedure (which had not been followed) being that leave to appeal should have been sought. It was submitted that, unlike the present matter, the issue of competency in those matters would have been plain on the face of the particular process.

9 The respondent also relies on the consideration that the appellant was aware, from 20 June 2003 (when the respondent served its submissions), that the respondent proposed to argue that the appeal was incompetent. The respondent also submits that on 3 July 2003 the appellant rejected the respondent's offer of 23 June 2003 which would have resolved the issue now being pressed (that is, the costs of the appeal) and by letter dated 22 July 2003, relied upon the assertion that the only matter properly before the Court was the appeal. These steps necessitated the preparation and filing of a notice of motion and affidavit in support. The Court's judgment has vindicated the position of the respondent and shown the appellant's position to have been erroneous. The respondent argues that there is nothing in these circumstances which would warrant an exception to the general rule. The appellant should be ordered to pay the respondent's costs of the appeal and of this motion.

10 The chronology in this matter is important. As well as the matters referred to above, it is to be observed that the appeal was filed on 22 January 2003 and that significant interlocutory proceedings were argued in March 2003; and, as noted earlier, the issue on which the respondent succeeded was not raised until it served and filed its submissions (on 20 and 23 June 2003, respectively) in terms of the directions for the appeal, in reply to the submissions of the appellant. Similarly, it did not raise the matter in a manner appropriate to bring the issue of the competency of the appeal before the Court until the filing of its motion on 25 July 2003, the appeal being listed for hearing on 28 July and 1 August 2003.

11 We have noted that we do not accept that Pt 51 r 25 of the Supreme Court Rules applies as one of the rules of this Court as a result of the application of r 89(5) of the Industrial Relations Commission Rules. Nevertheless, that conclusion does not preclude this Court from having regard to the terms and substance of that rule as presenting possible assistance in the exercise of discretion in these proceedings. In the particular circumstances of this matter we consider that it is appropriate that we look to that rule as having some broad relevance to the exercise of our discretion.

12 Counsel for the respondent accepted (correctly in our view) that it is a trite statement of legal practice that objections to competency must be raised as soon as possible. However, there is a more fundamental issue in the present matter. It is a matter for this Court to mould its own jurisprudence particularly as to its practice and procedure. We consider that there was an obligation on the respondent to an appeal to raise any issue as to the competency of the appeal in a timely and procedurally appropriate way and that did not occur in the present case. However, in expressing these conclusions and particularly the first of them, we make it clear that we do not consider that we are creating a new procedural precept. As we have observed, it was common ground that it is plain that objections to competency must be raised as soon as possible.

13 Although we have had regard to the policy exemplified by the Supreme Court Rules relied on by the appellant, we do not consider that the circumstances of this case required the point to be raised in the time specified in that rule. However, in the present case, the competency issue was not raised for some months after the appeal was filed, during which period substantial interlocutory proceedings were argued and two days were set for the hearing of substance of the appeal. In addition, the respondent's offer to settle the appeal included the requirement that the appellant accept the respondent's approach to the costs issue at first instance which was, at the time, reserved by the trial judge. Although we accept the respondent's contention that the issue on which it succeeded was complex and that explains why it may not have been possible to raise it in the three week period referred to in the Supreme Court Rules, that consideration does not fully justify the delay which occurred.

14 It is clear on the authorities (for example, Latoudis v Casey (1990) 170 CLR 534 at 543, 567) that costs orders are not made by way of punishment of a party to litigation. It is nevertheless appropriate for the exercise of the discretion to award costs to have regard to the orderly conduct of litigation before the Court. Part 51 r 25 of the Supreme Court Rules is, we consider, essentially an example of that approach.

15 Having regard to all the circumstances, we consider that the respondent failed to raise the issue on which it succeeded in a timely and appropriate way. It should thus not have its costs of the appeal.

16 That conclusion then leaves the issue of the appellant's costs. The appellant (as he submits) was put to the cost of preparing submissions and his case on the substance of the appeal and also on the interlocutory proceedings heard in March, and these were steps which were, in light of what has transpired, unnecessary. On the other hand, the appellant has been unsuccessful in the proceedings.

17 We consider the appropriate course is that the appellant should have his costs of the appeal until 23 June 2003, the date when the respondent filed its submissions, and thus when it first placed before the Court the issue of competency. As to the costs of the present motion, having regard to what has been determined as to the costs of the proceedings proper, we consider that the appellant has obtained a measure of success although not anywhere near the extent of the costs orders that he sought in the motion he filed. On balance, the appellant should have the costs of the motion. Orders are made accordingly.

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