Industrial Relations Commission of New South Wales in Court Session CITATION : McGowan v ABC [2003] NSWIRComm 294 APPLICANT/RESPONDENT ON THE MOTION Hugh McGowan PARTIES : RESPONDENT/APPLICANT ON THE MOTION Australian Broadcasting Corporation FILE NUMBER: IRC3842 of 2000 CORAM: Peterson J CATCHWORDS : Costs - Notice of Motion to dismiss proceedings for want of jurisdiction - motion upheld - costs as agreed or as assessed. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 05/19/2003 DATE OF JUDGMENT: 09/16/2003 APPLICANT/RESPONDENT ON THE MOTION No appearance LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON THE MOTION Ms H S McKenzie, solicitor Blake Dawson Waldron SYDNEY. JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 16 SEPTEMBER 2003 Matter No IRC3842 of 2000 HUGH McGOWAN AND AUSTRALIAN BROADCASTING CORPORATION Application under s106 of the Industrial Relations Act 1996 JUDGMENT RE COSTS ON NOTICE OF MOTION 1 This matter involved a summons for relief brought under s106 of the Industrial Relations Act 1996. The respondent's, by notice of motion, sought to have the matter struck out for want of jurisdiction. That motion was successful and on 30 March 2001 the summons was dismissed. 2 Subsequently, the respondent sought an order in respect of its costs of the proceedings. That issue was heard on 19 May 2003 at which time there was no appearance for the applicant. There was evidence that, while the solicitors formerly representing the applicant had ceased to act, Mr McGowan had been notified on up to three occasions in writing of the time and date for hearing the costs issue. 3 The matter proceeded on that day when the respondent made its submissions with respect to costs at the conclusion of which I determined to forward a copy of the transcript to Mr McGowan and afford him a period in which he might make such submission as he was advised on the issue of costs. 4 On 28 May 2003 Mr McGowan, I am advised, telephoned my associate in response to her having left a telephone message for him. He was informed that a copy of the transcript of proceedings on 19 May 2003 would be sent to him and that he would have 21 days to make any written submissions he might wish to make. He advised my associate that he wished to make submissions and that he would send them by 23 June 2003. He supplied a postal address via a box number at Mona Vale Post Office. 5 No such submission was received but both Mr McGowan and Blake Dawson Waldron have provided the Commission, through my associate, with correspondence which has been exchanged between them concerning the possibility of settling the costs issue. That matter was not capable of resolution between the parties. Accordingly, the ABC now seeks an order for the whole of its legal costs in the matter. That course is pressed despite Mr McGowan's stated inability to pay the debt. The costs sought are quantified at $33,417.01. 6 While I am loathe in the circumstances to follow any course which may have the potential of further increasing costs, it seems to me that, the parties having been unable to settle the issue of costs, it is impossible that I could attempt any proper assessment of an amount of costs to be ordered against the applicant, despite the apparent willingness of the respondent to accept any recommendation I might make in that regard. 7 The usual order in matters of this kind is that the successful party has its costs on a party party basis. There is no warrant for any different order in this case. I consider it is necessary that I order that the respondent have its costs of the proceedings on a party party basis as agreed, or in the event of disagreement, as assessed. I so order. 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.