Industrial Relations Commission of New South Wales in Court Session CITATION : McEwen v AIDC Limited; Brink v AIDC Limited; Hewitt v AIDC Equipment Finance Limited & Anor [2000] NSWIRComm 68 MATTER NUMBER IRC 6623 OF 1997 APPLICANT: Philip McEwen RESPONDENT: AIDC Limited ACN 054 553 394 _________________________________________________ MATTER NUMBER IRC 6624 OF 1997 APPLICANT: Michael Brink RESPONDENT: PARTIES : AIDC Limited ACN 054 553 394 __________________________________________________ MATTER NUMBER IRC 6625 OF 1997 APPLICANT: William Hewitt FIRST RESPONDENT: AIDC Equipment Finance Limited ACN 008 498 717 SECOND RESPONDENT: AIDC Limited ACN 054 553 394 _________________________________________________ FILE NUMBER: 6623, 6624 and 6625 of 1997 CORAM: Schmidt J CATCHWORDS : Unfair contract - notice of motion filed after judgment, seeking an order for costs - order opposed by applicants - costs were not sought by either party at the hearing and matter was not dealt with in the judgment - whether court functus - order for costs could be sought under the slip rule - court has jurisdiction and power to order costs - applicants' ordered to pay the respondents' costs as agreed or assessed LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Yeramba Estates Pty Ltd v Avery (unreported, Macken J, 17 April 1986) Elyard Corporation Pty Limited v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 HEARING DATES: 04/10/2000 EXTEMPORE JUDGMENT DATE : 04/10/2000 APPLICANTS: Mr G Hatcher of counsel SOLICITORS: Phillips Fox Lawyers LEGAL REPRESENTATIVES: RESPONDENTS: Mr B Hodgkinson of counsel SOLICITORS: Corrs Chambers Westgarth Lawyers JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 10 April 2000 Matter No IRC 6623 of 1997 PHILIP NICHOLAS McEWEN v AIDC LIMITED Application under s106 of the Industrial Relations Act 1996 Matter No IRC 6624 of 1997 MICHAEL BRINK v AIDC LIMITED Application under s106 of the Industrial Relations Act 1996 Matter No IRC 6625 of 1997 WILLIAM JAMES HEWITT v AIDC EQUIPMENT FINANCE LIMITED & ANOR Application under s106 of the Industrial Relations Act 1996 JUDGMENT (extempore) 1 Judgment in this matter was given on 23 September 1999. The application was dismissed, the conclusion having been reached that it had not been demonstrated that the contracts in question offended section 106 of the Industrial Relations Act 1996 ('the Act'). The question of costs was not dealt with in the judgment, no party having raised the matter at the hearing, although costs were sought by the applicant in the initiating summons. 2 After judgment was given, indeed on the day after the appeal period expired, the successful respondents raised the question of costs with the applicants, offering to accept 50 per cent of their costs in settlement. The offer was rejected. 3 By notice of motion filed 6 December 1999, the respondent sought an order for costs. The order was opposed by the applicants. The respondents submitted that the Court had jurisdiction to deal with the question of costs and should do so. The applicant argued that while there was jurisdiction and powers to make such an order, the court was functus in this matter, the judgment having been given. It was conceded by Mr Hatcher for the applicants, however, that this depended upon whether the court had intended to finally dispose of the matter in the judgment of 23 September, that being how the judgment read. The respondents argued that the Court was not functus because no application for costs was made by either party at the hearing. Section 181 of the Act and rule 203 of the Commission's rules were particularly relied on. 4 In any event, it was argued that the order for costs could be sought under the slip rule, where the failure to seek costs arose from the accidental omission by counsel; Yeramba Estates Pty Ltd v Avery (unreported, Macken J, 17 April 1986). For the applicants, it was submitted that for this approach to be adopted, the respondents would have to lead evidence that it was counsel's omission, rather than a tactic in proceedings which led to the failure to seek a costs order. 5 It was also submitted for the applicants, that the slip rule was not in any event available having regard to the approach of the Full Federal Court in Elyard Corporation Pty Limited v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206. Here the costs order would operate retrospectively to the date of the earlier judgment, at a time when the appeal period had expired. This, it was submitted would work injustice between the parties. Consideration 6 There is no question that the court has jurisdiction and power to order costs in this matter in accordance with the Act and the Rules. Costs were not sought by either party at the hearing and that matter was not dealt with in the judgment. It plainly follows that the Court is not functus as to that question in the circumstances. There was not, and cannot have been, any intention to deal finally with the costs question, neither party having pursued the matter at the hearing. Had there been such an intent, reasons for the decision to deal to finality with the matter of costs on a basis which departs from the ordinary rule that costs should follow the event, would have been given. They were not. If there is any doubt as to that matter, I am satisfied that costs might be sought by the successful party under the slip rule, if it were established that the failure to seek costs had arisen from an oversight by counsel (See Elyard). That this was so, can plainly be inferred in this case from the fact that neither party addressed the question of costs. 7 Costs have now been sought in this case by the successful party. Apart from the question of whether costs could now be dealt with by the Court at this stage of the proceedings, nothing was advanced by the applicants upon which a conclusion could be based that the ordinary rule, that costs should follow the event, should be departed from. 8 In those circumstances, I take the view that an order for costs in the usual terms should be made in favour of the respondents. Order 9 For all of these reasons I order that the applicants should pay the respondents' costs as agreed or 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.