Industrial Relations Commission of New South Wales in Court Session CITATION : Edwards v Kingsmede Pty Ltd and anor [2004] NSWIRComm 154 APPLICANT Peter John Edwards PARTIES : FIRST RESPONDENT Kingsmede Pty Ltd SECOND RESPONDENT Pamiers Pty Ltd FILE NUMBER: 5621 of 2002 CORAM: Marks J LEGISLATION CITED : Industrial Relations Act 1996 s 106 Legal Profession Act 1987 CASES CITED : Mitchforce Pty Ltd v Industrial Relations Commission and ors [2003] NSWCA 151 Mitchforce Pty Ltd v Starkey (No 2) [2003] NSWIRComm 458 HEARING DATES: 06/02/2004 EXTEMPORE JUDGMENT DATE : 06/02/2004 APPLICANT Solicitor: Mr K Pringle Gordon and Johnstone Lawyers LEGAL REPRESENTATIVES: RESPONDENTS Solicitor: Mr P A Biber Phillip A Biber, Lawyer JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 2 June 2004 Matter No IRC 5621 of 2002 PETER JOHN EDWARDS v KINGSMEDE PTY LTD AND ANOR Application under s 106 of the Industrial Relations Act 1996 EXTEMPORE JUDGMENT RE COSTS NSWIRComm 154 1 These proceedings concern the question of costs reserved by my judgment of 22 April last. The applicant commenced proceedings initially seeking relief under s106 of the Industrial Relations Act on 3 October 2002. Consequently the Mitchforce litigation resulted in these proceedings becoming untenable and outside the jurisdiction of this Court, as I held on 22 April last (Mitchforce Pty Ltd v Industrial Relations Commission and ors [2003] NSWCA 151; Mitchforce Pty Ltd v Starkey (No 2) [2003] NSWIRComm 458). After the Mitchforce decision in the Court of Appeal was handed down, the respondents' solicitors wrote to the applicant's solicitors suggesting that the applicant discontinue the proceedings. The applicant declined, leading to the filing of a notice of motion which, as I have said, was successful in having the summons struck out. 2 The applicant does not oppose a costs order with respect to the proceedings. The respondent has sought initially an order for indemnity costs with respect to the proceedings as a whole. I decline to grant indemnity costs because, in my opinion, there is just no reason why indemnity costs are applicable. At the time the proceedings were commenced, the applicant must have had some reasonable prospects of success, based on the then current state of the law, and it was not until after the decision of the Full Bench of this Court, consequent upon the Court of Appeal decision, that the applicant's position became less secure. The proceedings could not be constituted in any way as an abuse of process and, therefore, I decline to order indemnity costs as a whole. 3 As an alternative argument, the respondent seeks indemnity costs with respect to the notice of motion to strike out the summons. In my opinion, it is unusual for indemnity costs to be ordered in circumstances such as these, where basically arguments of law are considered, in terms of the jurisdiction of the Court, in connection with the proceedings. Whilst in retrospect the applicant's submissions on the notice of motion could not be seen as optimistically creating any expectations of success, nevertheless, I am not convinced that the circumstances are such as would justify imposing what is, in effect, a penalty on the applicant in seeking to resist the notice of motion for strike out. Indeed, to my knowledge, this is one of the first cases on which the ultimate Full Bench decision of this Court in Mitchforce was considered. In these circumstances, I decline to grant indemnity costs. 4 The orders, therefore, are that the applicant is to pay the respondents' costs of the proceedings in an amount as assessed under the Legal Profession Act 1987 in default of agreement. 5 Mr Biber has sensibly suggested there be no order for the costs of today's proceedings and Mr Pringle has readily agreed with this suggestion. 6 Accordingly, the costs order does not include any costs with respect to today's proceedings. 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.