Industrial Relations Commission of New South Wales in Court Session CITATION: Ross Hogan v Snorkel Elevating Work Platforms Pty Ltd [2005] NSWIRComm 267 Applicant: Ross Hogan PARTIES: Respondent: Snorkel Elevating Work Platforms Pty Ltd FILE NUMBER(S): 1909 of 2005 CORAM: Backman J Notice of Motion - stay application pending outcome of Court of Appeal decision - applicant given leave to discontinue proceedings - costs application made by respondent - costs granted - orders. CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Australian Conservation Foundation & Ors v Forestry Commission & Ors (1988) 81 ALR 166 CASES CITED: Aveling v UBS Capital Markets Australia Holdings Limited (2004) 135 IR 98 Suanne Colley v Futurebrand FHA Pty Limited [2005] NSWCA 223 HEARING DATES: 07/27/2005 EXTEMPORE JUDGMENT DATE: 07/27/2005 Applicant: Mr M. Harmer, solicitor Harmers Workplace Lawyers LEGAL REPRESENTATIVES: Respondent: Mr P. Moorhouse, of counsel Solicitors: Townsends Business & Corporate Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Backman J Wednesday, 27 July 2005 Matter No IRC 1909 of 2005 Ross Hogan v Snorkel Elevating Work Platforms Pty Ltd Application under s106 of the Industrial Relations Act 1996. EX TEMPORE JUDGMENT [2005] NSWIRComm 267 1 In the present proceedings an issue of jurisdiction was raised by the parties concerning the application of s108A of the Industrial Relations Act 1996 ("the Act") to the applicant's summons for relief filed on 14 April 2005 ("the summons"). Under s108A an applicant with a remuneration package in excess of $200,000 may be prevented in circumstances prescribed under the section from making a valid application under s106 of the Act. Under s108A a remuneration package is defined as the total value of any monetary remuneration allowing employment benefits payable or receivable under a contract of employment. 2 It appeared to be common ground between the parties here that the applicant's remuneration package was in excess of $200,000. The summons therefore fell potentially within s108A of the Act. The respondent by way of notice of motion filed 23 June 2005 sought an order that the summons be dismissed. 3 The applicant by way of notice of motion filed 7 July 2005 sought an order that the respondent's notice of motion be stayed pending judgment by the Court of Appeal in Suanne Colley v Futurebrand FHA Pty Limited [2005] NSWCA 223. 4 In the Colley proceedings the applicant (the claimant in the Court of Appeal) had contended that s108A did not apply to contracts made before its commencement (that is before 24 June 2002). The applicant in these proceedings relied on that contention to bring his claim within jurisdiction. 5 On 22 July 2005 the Court of Appeal dismissed the claimant's summons stating that the prevailing law concerning the application of s108A had been correctly stated by the Full Bench in Aveling v UBS Capital Markets Australia Holdings Limited (2004) 135 IR 98. 6 As a result of the Court of Appeal decision in Colley's case the applicant here today has sought leave to discontinue the proceedings. The respondent has no objection to this course but makes an application for its costs incurred for the whole of the proceedings. 7 In brief, the respondent says that the applicant asserted a view of the law, which he now accepts was incorrect. The applicant was also put on notice by the respondent that his claim fell within s108A on the current view of the law. 8 The applicant in response acknowledges that it commenced proceedings with a particular view of s108A but contends that there was, in effect, a public policy issue in pursuing the matter, namely, there are presently a number of other applicants before the Court whose applications under s106 also concern contracts which came into existence prior to 18 June 2002 but who commenced proceedings under s106 after that date. 9 The applicant also argues on this costs application that at all stages of the proceedings he sought to save costs. By way of example the applicant relies on a letter written to the Registrar of the Commission dated 14 April 2005. In that letter, legal representatives for the applicant informed the Registrar that the summons raised issues currently before the Court of Appeal in the Colley case and the Registrar was requested that the Commission not further progress the matter until such time as the outcome of the Colley case became known. 10 The applicant also sought to place some reliance on a decision of Burchett J in the Australian Conservation Foundation & Ors v Forestry Commission & Ors (1988) 81 ALR 166. At page 169 of that decision his Honour observed, A party against whom an unsustainable claim is prosecuted is not to be forced, at his peril in respect of costs, to abandon every defence he is not sure of maintaining, and oppose to his adversary only the barrier of one hopeful argument. He is entitled to raise his earthworks at every reasonable point along the path of assault. At the same time, if he multiplies issues unreasonably, he may suffer costs. Ultimately, the question is one of discretion and judgment. I note in that decision that costs were awarded to a respondent against the unsuccessful applicant in any event although on a limited basis. 11 Weighing up all these considerations, it is nevertheless my view that the applicant should pay the respondent's costs of these proceedings. The applicant's notice of motion sought among other things a stay of the respondent's notice of motion pending the result in Colley's case. When the stay was sought there was Full Bench authority of this Court (Aveling's case) on the issue which was resisted by the applicant. In addition, two judgments at first instance of which the applicant was aware refused the same application made by the applicant, that is an application to stay the proceedings pending the outcome of Colley's case. 12 Against the weight of this authority the applicant was only able to place reliance on two transcripts of directions hearings before two other single judges of this Court, both of whom stood over the proceedings in similar circumstances pending the outcome of the Colley decision but without the benefit of hearing any argument. 13 The applicant has been legally represented at all stages of the proceedings, which is another factor I take into account in my decision to award costs against the applicant. 14 I see no reason to depart from the general rule that costs be awarded. Orders 15 I make the following orders: 1. The applicant is granted leave to file a notice of discontinuance under Rule 138 of the Industrial Relations Commission Rules 1996 within 24 hours. 2. The applicant is to pay the respondent's costs of the proceedings as agreed or in the absence of agreement as assessed. ______________________ 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.