Industrial Relations Commission New South Wales Medium Neutral Citation: Briscoe-Hough v Edward River Council (No. 2) [2023] NSWIRComm 1092 Hearing dates: 5 September 2023 Date of orders: 5 September 2023 Decision date: 05 September 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: Costs application dismissed Catchwords: COSTS — Appeals — leave to appeal refused — costs application refused as a matter of discretion — where appellant held genuine belief that there was public interest in the appeal — where appellant is self-represented — where matter determined quickly Legislation Cited: Industrial Relations Act 1996 (NSW) s 181(2)(b) Cases Cited: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600 Category: Costs Parties: Gregory James Briscoe-Hough (appellant) Edward River Council (respondent) Representation: Advocates: G Briscoe-Hough (appellant, self-represented) S McIntosh (counsel for the respondent) Solicitors: Russell Kennedy Lawyers (respondent) File Number(s): 2023/180979 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2023] NSWIRComm 1046 Date of Decision: 16 May 2023 Before: Commissioner Muir File Number(s): 2023/41599 EX Tempore DECISION (REVISED) 1. The respondent made an application for costs pursuant to s 181(2)(b) of the Industrial Relations Act 1996 (NSW) ("Act"). This section provides that the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause. The Full Bench has decided not to exercise our discretion to make an order for costs in respect of the appeal against the appellant. 2. There were two principal reasons advanced by the respondent as to why costs should be awarded. 3. First, the orders sought in the appeal were of no utility. The respondent argued that, in effect, the appellant sought a declaration of the law. It was submitted that it was not the role of the Full Bench to make such a declaration. 4. The orders sought by the appellant were contained at Part 3 (5) of the Application for Leave to Appeal and Appeal as follows: "Having determined that no valid application could be lodged, and noting the passage of time in dealing with the proceedings, insofar as they existed, that both parties agree the applicant's employment effectively ceased on 20 January 2023 at the end of his requested leave, and that applicant agrees not pursue the matter further in the IR Commission on the basis that it is now 21 days beyond that date and, further, that no other entitlements or claims in respect of leave or length of service will be sort or payable by the respondent." 1. Second, the respondent argues that the appellant has at all times been on notice of the precise basis of the argument advanced by it that his employment terminated on 6 January 2023. It was submitted that it was not arguable that his employment ended on that date when he resigned his employment on 22 December 2022. 2. We consider that there is some force in the respondent's submissions that the Commission's discretion to order costs is available pursuant to s 181(2)(b) of the Act. However, we have decided that it is unnecessary to determine this issue. We have decided to decline to make an order for costs as a matter of discretion for the following reasons. 3. As a general principle, leave to appeal will not be granted if there is no utility to do so: Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334. It has, however, been accepted that leave to appeal may be granted even where there is no practical utility as between the parties, where there is a public interest in an erroneous decision being set aside: Nursing and Midwifery Board of Australia v HSK (2019) 1 QR 600. As we stated in our decision to refuse leave to appeal, we have formed the view that the appellant misconstrued the impact of Commissioner Muir's decision on the Local Government industry. However, we have also formed the view that the appellant was genuine in his belief that there was a broader public interest in the appeal being heard and determined by the Full Bench. 4. We note in that regard that the appellant is self-represented and did not have the benefit of legal advice with respect to this appeal. However, we reject the appellant's argument that the respondent has significant resources as being a relevant reason not to award costs against him. The respondent is ultimately funded by its rates payers and the requirement to prepare for the appeal is relevant. We have taken this into account. 5. We observe that the respondent has only been required to address the issue of leave to appeal today, which was heard and determined in just over an hour. The materials filed by the appellant in this matter were brief. The appeal and the costs application now have been dealt with quickly. 6. We have decided on balance, and taking all of these matters into account, that we would not order the costs sought as a matter of discretion. Order 1. The Full Bench makes the following order: 1. The respondent's application for costs in the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2023