Industrial Relations Commission of New South Wales in Court Session CITATION : Holt v Kirby [2003] NSWIRComm 164 APPLICANT Miles Edward Holt PARTIES : RESPONDENT David William Kirby FILE NUMBER: IRC 2071 of 2002 CORAM: Marks J CATCHWORDS : Unfair contract - Application for security for costs against applicant who resides in UK and does not hold any assets in Australia - Security granted to cover cost of enforcement of orders in UK. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Knott v Signature Security Group Pty Ltd (2001) 104 IR 84 Barton v Minister for Foreign Affairs (1984) 54 ALR 486 HEARING DATES: 04/14/2003 DATE OF JUDGMENT: 05/29/2003 APPLICANT Mr P C Coleman of counsel SOLICITORS Baldock Stacy & Niven LEGAL REPRESENTATIVES: RESPONDENT Mr M K Condon of counsel SOLICITORS Graham Billing & Co JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Thursday 29 May 2003 Matter No IRC 2071 of 2002 MYLES EDWARD HOLT v DAVID WILLIAM KIRBY Application under s 106 of the Industrial Relations Act 1996 JUDGMENT ON APPLICATION FOR SECURITY FOR COSTS 1 The applicant Myles Edward Holt has brought proceedings against the respondent David William Kirby claiming certain relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The proceedings arise out of the employment by the respondent of the applicant as a dental surgeon. The applicant alleges that he was forced to terminate his employment, alleges relevant unfairness in and about the contract of employment and has claimed certain monetary compensation. The respondent disputes the claim. 2 The applicant is now employed as a dental surgeon in the United Kingdom and has no assets in Australia. The respondent has sought by notice of motion an order for security for costs. 3 The relevant matters which are considered in proceedings of this kind are canvassed fully in a recent judgment of Wright J, President of this Court in Knott v Signature Security Group Pty Ltd (2001) 104 IR 84. I respectfully adopt what was said by his Honour in that judgment concerning relevant authorities and appropriate principles. 4 I adopt also the observations of Morling J in Barton v Minister for Foreign Affairs (1984) 54 ALR 586 extracted by Wright J namely: "The historical basis for requiring a foreign plaintiff to give security for costs was that to enforce a judgment a defendant had to sue on the judgment in the foreign country where the plaintiff resided, and having got his judgment, then to enforce it." 5 In the course of these interlocutory proceedings there was tendered into evidence by the respondent in support of the notice of motion a letter from Mr Charles Weller a partner in the law firm Richards Butler who practices as a litigator in its City of London office. I note Mr Weller's hourly charge out rate of £260 and that the hourly rate of solicitors working for him ranges from £190 to £210 which Mr Weller says are less than the hourly maximum rates for firms in the City of London allowed by the Supreme Court costs judges on party and party assessment. On the basis of information conveyed in that letter read in conjunction with the process for enforcement of orders of this Court under s 106 of the Industrial Relations Act (see s 182 of the Act), it seems that an order of this Court when filed in the office of a court of competent jurisdiction may then be enforced in the United Kingdom by registration under the Civil Procedure Rules. This is achieved by filing an Application Notice and appearing at an oral hearing before the High Court. The court fee is £40. The matter is dealt with at a hearing and any resultant order by which the judgment debt is registered in the UK is to be served personally on the judgment debtor and will carry the same weight as a judgment of the High Court. This is turn allows utilisation of the usual means of enforcement including the issue of a writ of execution or a garnishee order. Mr Weller estimated that total court fees including those expended on enforcement would range from between £200 to £570. He also estimated total solicitor's costs in connection with an application for registration of £875 exclusive of costs associated with the enforcement of the judgment once registered. 6 It is well established that courts are reluctant to order security for costs against applicants, particularly applicants who are natural persons where to do so would deprive an applicant of the ability to maintain a claim. As Wright J emphasised in Knott the task of the Court in determining whether or not to exercise discretion in this area is designed to ensure that justice is achieved between the parties and their interests and to enhance "the proper administration of justice". 7 In my opinion the disadvantage which the respondent faces by reference to the necessity to enforce any order for costs granted in his favour against the applicant on the assumption that the applicant will remain resident in the UK will be satisfied by requiring the applicant to give security for costs in the sum of $4,500. That security may be provided in the form of a bank guarantee or utilising such other means as are reasonably acceptable to the respondent's solicitors. To require the applicant to provide security for costs in excess of costs reasonably anticipated to be incurred in connection with the enforcement of any order which the respondent may obtain would impose undue and inappropriate hardship on the applicant. 8 I shall reserve costs. Although the respondent has succeeded in part the notice of motion filed by the respondent sought security for costs in the sum of $50,000, and the respondent's success has been for a much reduced sum. The question of costs may be agitated by either party by exercising liberty to apply which I hereby grant. 9 I also grant liberty to apply with respect to the ultimate form of the order if sensible agreement cannot be reached between the parties. __________________________ 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.