Industrial Relations Commission of New South Wales in Court Session CITATION : Frederico v New MacDonald's Farm Pty Limited and Others [2003] NSWIRComm 261 FELICITY FREDERICO Applicant NEW MACDONALD'S FARM PTY LIMITED ACN 076 743 925 PARTIES : First Respondent IAN JAMES MACDONALD Second Respondent KATHRYN LOUISE MACDONALD Third Respondent FILE NUMBER: IRC 6605 of 2001 CORAM: Schmidt J CATCHWORDS : Costs - notice of motion by applicant - respondents consented to the order sought - respondents argued for costs of the mention - no consent was sought from respondents nor had respondents indicated consent after filing of motion - motion and mention found to be unnecessary - no order as to costs be made to either party - each side to bear their own costs LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 07/25/2003 DATE OF JUDGMENT: 08/13/2003 APPLICANT: Ms J Baxter of counsel SOLICITORS: Silke Woelke & Associates LEGAL REPRESENTATIVES: RESPONDENTS: Mr N Keats, solicitor SOLICITORS: WG McNally & Co JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 13 August 2003 Matter Number IRC 6605 of 2001 FELICITY FREDERICO v NEW MACDONALD'S FARM PTY LIMITED AND OTHERS Application under section 106 of the Industrial Relations Act 1996 JUDGMENT 1 This judgment deals with costs in relation to a notice of motion filed by the applicant. The proceedings were brought under s106 of the Industrial Relations Act 1996, in October 2001. It came before the Court for the conciliation required by s109 of the Act, on 3 March 2003, when a settlement was reached and a certificate to that effect was issued. 2 On 21 July, a notice of motion was filed by the applicant, seeking an order for costs in her favour. The grounds in support of the application were that the parties had been unable to agree on costs and that the applicant required an order of the Court, so that she could approach the Supreme Court for an assessment of the costs. When the matter came on, the respondents consented to the order, but argued that they should have an order for costs in their favour, for the mention. 3 The respondents' position was that it had not been approached for its consent to the order sought. Had that occurred, the consent would have been forthcoming and the making of the order could have been dealt with on that basis, in chambers. It was also argued that it was not appropriate to certify for counsel's appearance at the mention. 4 The position of the applicant was that costs should follow the event. As the applicant had been successful on the motion, she should have an order for costs in her favour. Counsel appearing for the applicant was not able to advise the Court whether or not the respondents' consent to the order had been sought, prior to the filing of the motion. 5 I said: 'The filing of the motion suggests one of two possibilities, either that the consent was not forthcoming or that the applicant's solicitors did not seek it. If it be the fact that the applicant's solicitors did not seek the consent which has been given, then I cannot see that justice would permit the usual approach as to a costs order in favour of the applicant and indeed I take the view that justice would require that the respondent have a costs order in its favour. In the circumstances, it is hard to see why a costs order should encompass counsel being instructed, even if the applicant did have the proper basis for making it in pursuit of the motion.' 6 The applicant later filed a submission, in which it was put that it was a term of the settlement that the applicant's costs, as agreed or assessed, were to be paid by the respondents; no agreement was reached; the respondents thus had no choice but to consent to the orders sought in the motion and, indeed, had never indicated that the orders would be contested. It was thus unnecessary for the respondents to appear at the mention and could have arranged for the applicant to mention the matter, if costs were a matter of concern. It was also submitted to be substantially more cost effective to have junior counsel appear at the mention, but that this point was irrelevant to the issue of whether or not a costs order should be made in favour of the respondents. It was argued that it would in those circumstances be unfair and unreasonable for the respondents to have a costs order in its favour. 7 The respondents filed nothing by way of response. Consideration 8 Having considered the parties' respective submissions, I have concluded that no order as to costs should be made in favour of either party in relation to the motion or the mention. Each side should bear their own costs. 9 The making of the order in question should plainly have been a matter sensibly dealt with on a consent basis from the start. Had consent orders been filed, they could have been dealt with in chambers. The applicant's solicitors should clearly have sought such consent from the respondents, from whom it should have been forthcoming. 10 On the material, it seems that both the motion and the mention were unnecessary. Had the respondents indicated their consent to the order sought, after the filing of the motion, the cost of the mention would even then have been avoided. 11 In all of those circumstances, I am well satisfied that it is not appropriate to make any order for costs in favour of either party. Order 12 For all of these reasons, each party is ordered to bear its own costs in relation to the motion. ------------------------ 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.