Industrial Relations Commission of New South Wales in Court Session CITATION : Bowman v Ricegrowers' Co-Operative Limited (No 2) [2004] NSWIRComm 158 APPLICANT Rod Bowman PARTIES : RESPONDENT Ricegrowers' Co-Operative Limited FILE NUMBER: 1061 of 2003 CORAM: Staff J CATCHWORDS : Section 106 summons for relief - Notice of motion - Dismissed - Application for costs to be paid forthwith - Rule 203 - Demands of justice not made out - United GlobalCom Inc & Ors v McRann considered - No departure from general rule - Costs payable at conclusion of proceedings LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Commission Rules United GlobalCom, Inc & Ors v McRann (No 2) [2004] NSWIRComm 16 CASES CITED : Fiduciary Ltd and Anor v Morningstar Research Pty Ltd and Ors (2002) 55 NSWLR 1 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 HEARING DATES: 04/05/2004 DATE OF JUDGMENT: 06/04/2004 APPLICANT Mr R Reitano of counsel Solicitor: Mr P Pasfield Slater & Gordon LEGAL REPRESENTATIVES: RESPONDENT Mr G Fredericks Freehills Solicitors JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 4 June 2004 Matter No IRC 1061 of 2003 ROD BOWMAN v RICEGROWERS' CO-OPERATIVE LTD Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT NO 2 - Assessment of Costs Forthwith - [2004] NSWIRComm 158 1. Rod Bowman ("the applicant") commenced proceedings against Ricegrowers' Co-Operative Ltd ("the respondent") claiming relief under s 106 of the Industrial Relations Act 1996 ("the Act"). 2. By notice of motion filed on 2 December 2003, the respondent moved the Court for an order that the summons for relief be set aside for want of jurisdiction relying on the provisions of s 109A of the Act. 3. During hearing of the motion the applicant submitted that in circumstances where the motion was dismissed, costs should be assessed forthwith. Submissions in support of that application were made by the applicant. 4. The Court delivered an interlocutory judgment on 23 April 2004 dismissing the motion: Bowman v Ricegrowers' Co-Operative Limited [2004] NSWIRComm 102. 5. Leave was given to the applicant to have the matter restored to the list for the purposes of hearing any further arguments that it may wish to advance in respect of costs. The applicant did not seek to advance any additional submissions but pressed the application. 6. The respondent opposed the application. I directed that the respondent file written submissions dealing with the question of costs on or before 19 May 2004. The applicant was required to file any submissions in reply within a further seven days. 7. This judgment deals with the question of whether the applicant's costs in respect of the motion should be assessable forthwith. Submissions of the Parties 8. Mr R Reitano of counsel who appeared for the applicant relied upon r 203 of the Industrial Relations Commission Rules ("the Rules") and a decision of the Full Bench of the Court Wright J President, Walton J Vice-President, Boland J in United GlobalCom, Inc & Ors v McRann (No 2) [2004] NSWIRComm 16. Counsel relied on essentially the same reasons as found by the Full Bench in United GlobalCom to warrant an order that costs be assessable forthwith. 9. Mr Fredericks solicitor who appeared for the respondent submitted that a general rule exists that costs arising in the course of interlocutory proceedings are to be paid at the conclusion of the primary proceedings and that no circumstances exist in this matter to warrant an exception to the general rule. 10. In considering whether an exception to the general rule was made out, Mr Fredericks submitted certain factors have been found relevant by the courts when determining if a departure from the general rule is warranted. These factors were summarised as follows: · that the interlocutory proceedings are discreet or distinguishable from the main proceedings of the matter; · that no further order is likely to be made in the proceedings; · unreasonable behaviour by the party ordered to pay costs; · lengthy delays until hearing; and · the complexity of the litigation. 11. Mr Fredericks sought to distinguish United GlobalCom submitting that none of the factors outlined by the Court in that case are relevant in the present matter, or that if elements of those factors exist, none are sufficient to warrant the Court to vary from the application of the general rule. In particular, Mr Fredericks noted that the Full Bench in United GlobalCom said at [11]: ... Unless it can be shown that there are overriding reasons why there should be an order that costs are paid forthwith, the fact that issues that were the subject of appeal remain potentially live issues would militate against such an order. 12. Finally, it was submitted that the respondent's application under s 109A of the Act was entirely meritorious and remains a live issue to be contested at the substantive hearing. Consideration 13. Rule 203 of the Rules provides as follows: Time for dealing with costs: 1. The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings. 2. Where the Commission makes an order in any proceedings for the payment of costs the Commission may require that the costs be paid forthwith notwithstanding that the proceedings are not concluded. 14. In United GlobalCom the Full Bench said at [8]: Rule 203 provides the Commission with a wide discretion to order that costs be paid forthwith notwithstanding that the proceedings are not concluded. Similar powers are to be found in the Supreme Court Rules 1970 (Part 52A, Rule 9) and the Federal Court Rules (Order 62, Rule 3). 15. Their Honours then reviewed a number of authorities that considered applications for costs orders after the determination of an interlocutory matter and referred in particular to Fiduciary Ltd and Anor v Morningstar Research Pty Ltd and Ors (2002) 55 NSWLR 1 where Barrett J held that factors which had led the courts to depart from the normal rule in Pt 52A, r 9(1) of the Supreme Court Rules that costs are payable at the conclusion of the proceedings, include: a) where the application or aspect in respect of which the particular costs order is made before conclusion of the proceedings represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect; b) some unreasonable conduct on the part of the party against whom costs have been ordered; c) there is much to come in the proceedings and one can see a fairly long time before the proceedings are disposed of. 16. Their Honours then said at [16]: Barrett J also held in Fiduciary that it is the demands of justice that determine how an exception of the kind referred to in Pt 52A, r 9(1) should be approached. We consider that is how we should approach r 203(2) of the Court's Rules. 17. As I observed in Bowman at [41] dismissal of the motion does not close the issue of s 109A: Virtue v New South Wales Department of Education and Training (1999) 92 IR 428. The determination of whether part of the summons falls within the operation of s 109A will require a detailed examination of the substance of the claims and the circumstances of the case during the trial. 18. It does not seem to me, therefore, that the interlocutory proceedings can be considered to be discrete or distinguishable from the primary proceedings. 19. The summons for relief was filed on 28 February 2003. In accordance with s 109 of the Act a conciliation conference was held on 1 December 2003. A certificate of unsuccessful conciliation was issued on that day. On 2 December 2003 the respondents filed their notice of motion. It is therefore, in my opinion, not open for the Court to find that the respondent in exercising its rights to seek to challenge the jurisdiction of the Court was behaving unreasonably. I accept Mr Fredericks' submission that the respondent's application under s 109A was entirely meritorious. 20. I turn to consider the issue of the final disposal of the proceedings. Mr Fredericks submitted that this matter was distinguishable from United GlobalCom. I agree with this submission. 21. The applicant in United GlobalCom commenced proceedings on 23 April 1998 in the United States District Court for the District of Colorado. 22. On 4 May 2001 the applicant commenced s 106 proceedings and on 15 May and 8 June 2001 the various respondents filed motions seeking to strike the proceedings out. 23. On 9 July 2001 the s 106 proceedings came on for directions, during which the representatives of the respondent indicated that they were prepared to have the motions await the final determination of proceedings in Colorado. As a result of various legal steps and appeals the Colorado proceedings were not finalised until 23 May 2002. 24. The respondent's motions filed in the s 106 proceedings were heard on 12 and 13 December 2002 and judgment delivered on 24 April 2003. 25. Leave to appeal that judgment was refused by a Full Bench of this Court on 26 September 2003. 26. It was against this background that the Full Bench determined that it was in the interests of justice that the appellants pay forthwith the respondent's costs of the appeal notwithstanding that the proceedings were not concluded. In doing so the Court took into account, amongst other things, the delay and expense caused to the respondent (applicant) in defending the appeal; that the proceedings had been commenced in May 2001; that it would be a considerable period of time before the proceedings were finally disposed of and that the appeal relating to estoppel was not entirely meritorious. 27. I am of the opinion that this matter is not so overly complex as to warrant a departure from the general rule nor, in my opinion, can it be contended that the anticipated delay until the final hearing can be said to be lengthy in the ordinary course of matters of this nature. 28. For these reasons I am not satisfied that the facts and circumstances of this matter, nor the demands of justice, require a departure from the general rule that costs are payable at the conclusion of the primary proceedings. 29. I refer this matter to the President for s 106 case management allocation. 30. I make the following order: ORDER The costs in respect of the notice of motion heard on 5 April 2004 shall be costs in the cause. 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.