Industrial Relations Commission of New South Wales in Court Session CITATION : TAB Agents' Association of New South Wales v TAB Pty Limited (No 2) [2004] NSWIRComm 155 APPELLANT: TAB Agents' Association of New South Wales PARTIES : RESPONDENT: TAB Pty Limited FILE NUMBER: IRC 6102 of 2003 CORAM: Wright J President; Walton J Vice-President; Kavanagh J; Boland J CATCHWORDS : Costs - Appeal - Application for leave to appeal - Whether Full Bench has power to grant costs on appeal and for first instance proceedings where leave to appeal refused - Costs order made. LEGISLATION CITED : Industrial Relations Act 1996 s 181 s 188 Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 National Australia Bank Ltd v Cassino [2002] NSWIRComm 241 CASES CITED : Strathfield Group Ltd v Hall (2002) 121 IR 158 TAB Agents Association v TAB Limited [2004] NSWIRComm 88 TAB Agents' Association of NSW v TAB Limited [2003] NSWIRComm 316 HEARING DATES: DATE OF JUDGMENT: 06/09/2004 APPELLANT: Mr S Rothman, SC Solicitor: Mr J Catanzariti Clayton Utz LEGAL REPRESENTATIVES: RESPONDENT: Mr S G Finch, SC with Mr R S Warren of counsel Solicitor: Mr N Stevens Windeyer Dibbs JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President KAVANAGH J BOLAND J Wednesday 9 June 2004 Matter No IRC 6102 of 2003 TAB AGENTS' ASSOCIATION OF NEW SOUTH WALES v TAB PTY LIMITED Application by TAB Agents' Association of New South Wales for leave to appeal and appeal against an interlocutory judgment of Peterson J given on 1 October 2003 in Matter No IRC 5872 of 2002 JUDGMENT OF THE COURT [2004] NSWIRComm 155 1 The respondent in this matter seeks an order for costs of the proceedings before the Full Bench, which were determined on 23 March 2004 (see TAB Agents Association v TAB Limited [2004] NSWIRComm 88), and at first instance before Peterson J (see TAB Agents' Association of NSW v TAB Limited [2003] NSWIRComm 316). In both proceedings, the appellant was unsuccessful. 2 In the interlocutory proceedings before Peterson J, the appellant sought orders to restrain the respondent from entering into new contractual arrangements with agents licensed to operate TAB Betting Agencies or from engaging in any conduct intended to induce its members to enter into a new agency deed or similar agreement. The appellant submitted that the Commission in Court Session was empowered to make the orders sought so as to prevent its process from being thwarted. His Honour declined to grant such orders and dismissed the application. 3 On appeal, the Full Bench found that the exercise of discretion by Peterson J in declining to grant such relief was consistent with established principles. In refusing leave to appeal the Full Bench held: Given the basis of his Honour's decision, which we consider was correctly explained by the respondent, we do not consider this is an appropriate vehicle to address the extensive submissions of the appellant in relation to the Commission's power to grant interlocutory relief. Whilst the matter initially appeared to present a vehicle to resolve different lines of authority which were relied upon by the appellant as the foundation for its application for leave to appeal, it became clear during the course of argument that no real issue emerged as to the question of jurisdiction. Appellant's submission 4 The appellant submitted the respondent's application for costs should be rejected and the question of costs should be dealt with at the conclusion of proceedings and not at the interlocutory stage: The proceedings are at an early stage and the Applicant was seeking to maintain the status quo during the conduct of the proceedings. The Orders themselves do not seek monetary compensation for the Applicant, but rather seek to enforce the selective right of members of the Applicant as against the Respondent. In those circumstances, it is appropriate for the member of the Commission that ultimately makes final orders to deal with the question of costs in totality, including the costs of and incidental to this application for Leave to Appeal and the costs of any interlocutory proceedings during the course of the conduct of the matter. ... If the Full Bench of the Commission is, contrary to the previous submissions, of a view that the costs of the proceedings before it ought to be awarded to the successful party before them, then, the above submissions apply with greater force, to the proceedings below. 5 The appellant also submitted that because leave to appeal was refused an appeal was not "made" within the meaning of s 188(1): Further, and in the alternative, it is submitted that the structure of the Act is such that an appeal "may be made" only with the leave of the Full Bench (s.188(1) of the Act). Because the Application for Leave to Appeal has been refused, the appeal has not come before the Commission. Refusal of Leave to Appeal is an interlocutory order and the appeal is never on foot. ... As Leave to Appeal was refused, pursuant to the terms of s.188 of the Act, there was no "appeal to the Commission" on foot and the Full Bench of the Commission does not have power or jurisdiction to grant costs of or incidental to the proceedings giving rise to the appeal. Further, the provisions of paragraph 181(4)(b) of the Act are, in our respectful submission, intended for use in circumstances where the appeal reverses the outcome of the proceedings below such that the costs below are required to be adjusted. Respondent's submission 6 The respondent sought an award of costs in its favour: Pursuant to the provisions of section 181(1) of the Act, the Commission has broad discretion to award costs in proceedings and such determination is clearly not limited only to final relief. Section 181(4) of the Act, further defines the term "costs" to be both of the proceedings, and costs incidental to such proceedings. Furthermore, on Appeal, the Commission is at large to consider costs of or incidental to the proceedings, which gave rise to the Appeal as well as a consideration of costs of or incidental to the Appeal proper. The Commission is not limited, as is suggested by the Appellant to a consideration of costs on an Appeal but only if leave is granted to Appeal (Appellant submissions, paragraphs 4,5 and 7). This narrow interpretation by the Appellant is simply not available on the clear words expressed in Section 181(4) of the Act. 7 The respondent claims to have been put to significant costs by the appellant's action: The Notice of Motion prosecuted by the Appellant/Applicant below was on its terms, unusual. It was not a Notice of Motion prosecuted by either party seeking orders for discovery or other similar orders which would be bound up with and essential to the grant of final orders. This was a Notice of Motion, bought by the Appellant/Applicant below, seeking by interlocutory relief, orders binding upon the Respondent, which orders would only have been available to the Applicant upon a finding by the Court that the Contract or arrangement was harsh, unjust or unconscionable to make such a finding the Court would first need to hear the case in full. In other words, a substantive part of the Orders sought by interlocutory relief were pre-emptory and an attempt to obtain by that interlocutory relief orders not available until substantive findings have been made by the Commission in Court Session. This approach by the Appellant/Applicant was rejected by Peterson J as being "premature", and such judgment was assessed by this Court as being proper and consistent with established law and principles. (Paragraph 8). ... The Respondent has been put to significant legal costs by the unnecessary and premature application of the Appellant. The Notice of Motion was properly found to be such by Peterson J below and his Honour's Judgment has been found by this Court to be a proper exercise of discretion and consistent with established law and principles. ... In the circumstances of this case the Respondent should be awarded its costs of and incidental to, these proceedings as well as the costs of and incidental to the proceedings before Peterson J. Consideration and conclusions 8 This matter comes before us by reason of the appellant's application for leave to appeal, and appeal, at the interlocutory stage. Such appeals are "generally deprecated and discouraged" not only by this Court, but also by its predecessors and in other jurisdictions: Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 265; National Australia Bank Ltd v Cassino [2002] NSWIRComm 241 at [7] and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [36]. 9 Section 181(1) of the Industrial Relations Act 1996 relevantly 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 Part 11 of the Legal Profession Act 1987 or on any other basis. (2) ... (3) ... (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. 10 This section and the relevant rules relating to costs provide the Court with a broad and general power and discretion to award costs at any stage of the proceedings or after the conclusion of the proceedings. The scope of s 181(1) is not limited to particular proceedings and even if it be accepted (which we do not) that the proceedings did not involve or relate to an appeal, there is no basis in s 181(1) to conclude that it does not provide power in respect of applications for leave to appeal. There is nothing in the statute to support the appellant's contention that where an application for leave to appeal is heard but leave to appeal is not granted, an appeal is not "made" within the meaning of s 188, and cannot, therefore, be the subject of a costs order. 11 The reference to appeals in subsection (4) of s 181 does not affect the breadth of the power in s 181(1). Section 181(4) is plainly not intended to derogate from the broad power conferred by s 181(1); its terms demonstrate that, when seen in context, its effect is to confirm the breadth of the primary head of power and also either to confirm or to extend the power of the Full Bench on appeal to deal with the costs of the proceedings at first instance. So considered, there is no basis to conclude that the Full Bench in refusing leave to appeal, lacks the power the deal with costs before the judge at first instance. 12 The general rule in the determination of costs is that they are to follow the event. The rule may apply with greater force in the circumstances of an interlocutory appeal, given the fact that such appeals are generally discouraged. 13 However, more significantly in this case, is the consideration that the application for interlocutory relief, both at first instance and before the Full Bench, represented a conceptually, and in practical terms, separate and discrete part of the proceedings in which the appellant was wholly unsuccessful. It is plain, in those circumstances, that any success the appellant might achieve in the substantive proceedings is unlikely to result in it being able to argue that costs should not follow the event in respect of this part of the proceedings. 14 Accordingly, we order that the appellant pay the costs of, and incidental to, the interlocutory proceedings at first instance and those before the Full Bench. The costs shall be assessed in default of agreement. _________________ 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.