Industrial Relations Commission of New South Wales in Court Session CITATION : Kevin Rocks & Anor v The Uniting Church in Australia and Ors [2001] NSWIRComm 254 Matter Number IRC 5785 of 2001 ________________________________ APPLICANT: Kevin Rocks FIRST RESPONDENT: The Uniting Church in Australia SECOND RESPONDENT: The Uniting Church in Australia Property Trust (NSW) THIRD RESPONDENT: Geoffrey Stephen Grasso PARTIES : Matter Number IRC 5786 of 2001 ________________________________ APPLICANT: Wendy Jeskie FIRST RESPONDENT: The Uniting Church in Australia SECOND RESPONDENT: The Uniting Church in Australia Property Trust (NSW) THIRD RESPONDENT: Geoffrey Stephen Grasso FILE NUMBER: IRC 5785 and IRC 5786 of 2001 CORAM: Schmidt J CATCHWORDS : Practice and procedure - respondents' failure to comply with the Court's rules - respondents in each matter to pay the applicants costs as agreed or assessed LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Tuholi Pty Ltd v Caltex Australia Petroleum Pty Limited (2001) 103 IR 329 HEARING DATES: 10/15/2001 EXTEMPORE JUDGMENT DATE : 10/15/2001 APPLICANTS: Mr G Hatcher of counsel SOLICITORS: Middleton Moore & Bevins LEGAL REPRESENTATIVES: RESPONDENTS: Mr C McArdle, solicitor SOLICITORS: KPMG Legal JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 15 October 2001 Matter Number IRC 5785 of 2001 KEVIN ROCKS v THE UNITING CHURCH IN AUSTRALIA AND OTHERS Application under section 106 of the Industrial Relations Act Matter Number IRC 5786 of 2001 WENDY JESKI v THE UNITING CHURCH IN AUSTRALIA AND OTHERS Application under section 106 of the Industrial Relations Act JUDGMENT (Ex tempore) 1 HER HONOUR: These applications under s106 of the Industrial Relations Act 1996 ('the Act') were brought in August of 2001. The respondents failed to comply with the requirements of the rules as to filing a notice of appearance or replies to the summonses with which they were served. 2 Correspondence between the parties ensued in which the applicants foreshadowed this application, brought by Notices of Motion filed on 11 October 2001. Communication between the parties failed to produce either a meeting as between the parties, as the respondents sought, compliance by the respondents with the rules as the applicants sought, or indeed any indication that there would be such compliance. 3 As noted, these motions were then brought by the applicants, seeking orders that the respondents comply with the Court's rules and other orders. The motions were filed on 11 October and listed today. The motions prompted the filing and serving of the replies in question by the respondents on Friday last. I was informed this morning that the parties had agreed to expedition of the conciliation conference and a time for that has been fixed on 26 November. It is unnecessary to deal with the first order sought in the motions as a result of the filing of the reply in question and it is appropriate that in those circumstances, I make the second order sought in the motions, namely, that the applicants file and serve a response, if any, within 14 days of today's date. 4 The only issue which now lies between the parties in relation to the motions is an application for costs on an indemnity basis, payable forthwith in respect of the costs of the motions. In support of that application an affidavit of Ms Jodie Bonner, sworn on 11 October 2001, was relied upon. That affidavit details correspondence between the parties. The respondents argued in opposing the costs order sought that the position of the applicants must be considered, particularly an undertaking which had been given to them by the respondents, that no action would be taken by the respondents to prejudice them pending receipt of a report which the respondents have commissioned. The applicants remain in employment and continue to be paid. 5 Mr Hatcher of counsel, for the applicants, relied on the decision of his Honour the President Wright J in Tuholi Pty Limited v Caltex Australia Petroleum Pty Limited (2001) 103 IR 329 as to the claim for indemnity costs. 6 Mr McArdle, for the respondents, argued that the decision in that case was distinguishable and that here the view would not be taken that any costs order would be appropriate. 7 In the circumstances of this case, I take the view that the report which the respondents have commissioned and the undertakings which they have given the applicants, in respect to their present position, cannot excuse the respondents' failure to comply with the Court's rules. Nor can the respondents' desire to meet with the applicants, rather than attending to the proceedings which the applicants have brought, as they are entitled to do. 8 The respondents assert that these proceedings are premature and have been wrongly taken against them. On the material before me the latter is plainly an issue to be determined in the proceedings, but cannot warrant the Court's rules being ignored. The respondents could have approached the Court to seek relief from compliance with the rules. They did not. 9 I am satisfied in these circumstances that a costs order is appropriate. I am, however, not convinced that an indemnity costs order is warranted, taking the view that the type of exceptional circumstances discussed by the President in Tuholi are not present here. 10 For all of these reasons, I make the orders earlier mentioned and, as to costs, order that the respondents in each matter pay the costs of the applicants, as agreed or assessed, in each matter of and incidental to the Notices of Motion filed on 11 October and determined in these proceedings today. ------------------------ 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.