Industrial Relations Commission of New South Wales in Court Session CITATION : Selman v Sweet (No 2) [2003] NSWIRComm 53 FIRST APPLICANT Kim Bashkim Selman SECOND APPLICANT Barbara Kay Jecs FIRST RESPONDENT Frank Edward Sweet PARTIES : SECOND RESPONDENT Nellie Josephine Sweet THIRD RESPONDENT Ian Thomas Sweet FOURTH RESPONDENT Robrol Pty Limited FILE NUMBER: IRC 130 of 2003 CORAM: Boland J CATCHWORDS : Unfair Contract - Interlocutory proceedings - Costs - Whether costs should be determined prior to final determination - Costs reserved Industrial Relations Act 1996 LEGISLATION CITED : Industrial Relations Rules 1996 Legal Profession Act 1987 CASES CITED : Selman v Sweet [2003] NSWIRComm 14 HEARING DATES: 02/07/2003 DATE OF JUDGMENT: 03/18/2003 APPLICANT Dr J P Berwick of counsel Solicitor: Mr M Roper Michael Geoffrey Roper LEGAL REPRESENTATIVES: RESPONDENT Mr J G McVay of counsel Solicitor: Mr A Wylie Harris Wheeler Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Date: 18 March, 2003 Matter No IRC 130 of 2003 KIM BASHKIM SELMAN AND ANOTHER v FRANK EDWARD SWEET AND OTHERS Application under section 106 of the Industrial Relations Act 1996 JUDGMENT RE COSTS 1 In an interlocutory judgment in this matter (Selman v Sweet [2003] NSWIRComm 14) given on 7 February 2003 the Court decided to refuse the application by the applicants for an order restraining the respondents from approaching the Supreme Court for the purpose of appointing a Receiver. Neither party made any submission as to costs and the judgment did not deal with the question of costs. 2 At the handing down of the judgment the respondents sought costs. Directions were issued requiring the parties to file written submissions as to the question of costs and this judgment deals with that matter. 3 The respondents contended the applicants' notice of motion was "highly unusual and speculative at best" and was to be properly regarded as a proceeding on its own and not part of the proceedings under s 106. It follows, it was submitted, that the proceedings were concluded by the Court's judgment and the usual rule that costs follow the event should be applied. Alternatively, it was submitted that even if the Court considered the notice of motion was part of the s 106 proceedings the appropriate order is that costs be assessed forthwith on the basis that the respondents had incurred substantial costs as a result of the applicants' motion. 4 Relevantly, s 181 of the Industrial Relations Act 1996 provides: 181. Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. 5 Rule 203 of the Industrial Relations Commission Rules 1996 provides: 203. Time for dealing with costs (1) The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings. (2) Where the Commission makes an order in any proceedings for the payment of costs the Commission may require that the costs be paid forthwith notwithstanding that the proceedings are not concluded. 6 Rule 210 provides: 210. Costs reserved Where the costs of a motion under Rule 68 are reserved by the Commission, the costs so reserved shall, unless the Commission otherwise orders, be included in the final order for costs. 7 Rule 211 provides: 211. Costs of application or step within proceedings Subject to this Part, the costs of any application or other step in any proceedings shall, unless the Commission otherwise orders, be deemed to be part of the costs of the cause of the party in whose favour the application or other step is determined and shall be paid and otherwise dealt with in accordance with the provisions of this Part. 8 In the normal course I would have reserved the question of costs to be determined as part of the costs of the cause of the party in whose favour the application under s 106 is determined, but that was not done. I have now had the opportunity to consider the question of costs having regard to the submissions of the parties. However, I see no reason to depart from the normal course. I agree with the applicants' submission that: There is no ultimate consideration in regard to costs which points to a proposition that an interlocutory judgement must necessarily be a result in any proceeding which is complete in itself once judgement of the interlocutory application has been delivered. The Respondents point to no defining characteristic of this application to mark it out from the normal run of interlocutory applications. Rather to follow the Respondents reasoning in this regard would be to accept that all interlocutory applications are complete in and of themselves once a judgement in any particular application is delivered. This cannot be the case. 9 The costs of the applicants' motion are reserved. 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.