Industrial Relations Commission of New South Wales in Court Session CITATION : Green and anor v AMP Financial Planning Pty Ltd and anor No 2 [2004] NSWIRComm 205 FIRST APPLICANT Gary Sydney Green SECOND APPLICANT Gary Green Pty Ltd (ACN 010 415 639) PARTIES : FIRST RESPONDENT AMP Financial Planning Pty Ltd (ABN 051 208 327) SECOND RESPONDENT AMP Life Limited (ABN 84 079 300 379) FILE NUMBER: 1028 of 2002 CORAM: Marks J CATCHWORDS : Interlocutory costs - whether payable forthwith - general principle applied - costs of interlocutory matters not payable until conclusion of substantive proceedings. Industrial Relations Act 1996 s106 LEGISLATION CITED : Industrial Relations Commission Rules 1996 r203 Supreme Court Rules Part 52A r9 CASES CITED : Hellen and Fordyce v Alex G Grivas Pty Ltd [2002] NSWSC 1019 Johnson v DOCS (No 2) [1999] NSWSC 1251 HEARING DATES: 07/08/2004 DATE OF JUDGMENT: 07/22/2004 APPLICANTS Mr J L Trew QC Solicitor: Mr M J Wright LEGAL REPRESENTATIVES: RESPONDENTS Socitor: Mr B Jones Mallesons Stephen Jacques JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 19 July 2004 Matter No IRC 1028 of 2002 GARY SYDNEY GREEN AND ANOR v AMP FINANCIAL PLANNING PTY LTD AND ANOR NO2 Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT ON COSTS 1 In these proceedings I delivered interlocutory judgment on 4 June 2004 in which I granted leave to the applicants after a contested hearing to amend the summons by the addition of a third respondent. Costs were reserved and agreement was reached between the parties during the course of a directions hearing on 8 July 2004 that the respondents were to pay the applicants' costs of and with respect to the notice of motion seeking the amendment to the summons. 2 However, the applicants sought that those costs be payable forthwith. Whether or not the costs should be so payable was the subject of written submissions. 3 In support of the application for payment forthwith Mr J L Trew QC, counsel for the applicants, submitted firstly that this court has jurisdiction and power to make such an order and that the applicants should not be out of pocket for the payment of those costs whilst the proceedings were being finally resolved, which might not occur for some considerable time. 4 Rule 203 of the Rules of this Court provides that the Commission may exercise its powers and discretion as to costs at any stage of the proceedings or after the conclusion of the proceedings, and subrule (2) makes specific provision for the making of an order that costs be paid forthwith, notwithstanding that the proceedings are not concluded. 5 The provisions of this rule may be contrasted with rule 9 contained within part 52A of the Supreme Court Rules. Part 52A.9 applies to proceedings other than those in the Commercial List or the Technology and Construction List and provides that costs shall not be payable until the conclusion of the proceedings "unless the court otherwise orders". Subrule (3) sets out a number of circumstances which permits an order for costs to be made payable "forthwith". These reasons include unreasonable delay or default on the part of any other party, the fact that proceedings are unreasonably protracted or "justice otherwise demands it". Whilst I am not aware of contentious applications of this kind having been made the subject of authoritative determination in this Court, the matter should, in my opinion, be approached on what I understand to be the general principle, namely that unless there are special or unusual circumstances, costs of interlocutory matters do not become payable until the conclusion of the substantive proceedings. The rationale behind this general principle was described by Campbell J in the Supreme Court of New South Wales in Hellen and Fordyce v Alex G Grivas Pty Ltd [2002] NSWSC 1019 as being "…it is wasteful to have the costs of interlocutory applications taxed separately, and paid separately rather than dealing with all matters of costs at the one time…" (at [25]). 6 Rolfe J in the New South Wales Supreme Court considered circumstances in which interlocutory costs might become payable forthwith in Johnson v DOCS (No 2) [1999] NSWSC 1251. His Honour gave examples where the general principle might be departed from as including "where the opponent's action has taken the other party, and perhaps, the Court by surprise; where a matter could have been raised earlier and costs have been unnecessarily incurred; where the interlocutory relief is distinct from the primary relief; and where the applicant would not recover costs for a significant period if obliged to wait until the conclusion of the proceedings." (at [12]). 7 In my opinion the only basis upon which the general principle might be displaced in the context of these proceedings would relate to any delay of a significant period before the proceedings are likely to be concluded. On one view of it, all proceedings in whatever Court which involve the filing of affidavit evidence and complex issues, as arise in these proceedings, will encounter some delay. I observe also that in the context of these proceedings a further delay will be occasioned by the fact that the applicants have amended the summons. The summons by which the proceedings are now constituted is a third further amended summons. In my opinion the totality of the circumstances applying to these proceedings do not justify the displacement of the general rule. 8 For these reasons I decline to order that the costs should be payable forthwith. Because the applicants had sought such an order and have failed, and because costs have been incurred in arguing this discrete point, the respondents should have an order for costs in their favour confined to argument as to whether the costs of the third further amended summons should become payable forthwith. Those discrete costs shall be in an amount assessed under the Legal Profession Act in default of agreement, and I so order. 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