McLeish v Stirling House (Guildford) Pty Ltd [2005] NSWIRComm 433

Industrial Relations Commission of New South Wales in Court Session

CITATION: McLeish v Stirling House (Guildford) Pty Ltd [2005] NSWIRComm 433

APPLICANT Hamish McLeish PARTIES: RESPONDENT Stirling House (Guildford) Pty Ltd

FILE NUMBER(S): 6873 of 2004

CORAM: Marks J

Industrial Relations Act 1996 LEGISLATION CITED: Legal Profession Act

HEARING DATES: 11/18/2005 EXTEMPORE JUDGMENT DATE: 11/18/2005

APPLICANT (RESPONDENT ON MOTION) Solicitor: Ms L Doust Maurice Blackburn Cashman

LEGAL REPRESENTATIVES:

RESPONDENT (APPLICANT ON MOTION) Solicitor: Mr C Touyz Hammond King Touyz

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Marks J Friday 18 November 2005

Matter No IRC 6873 of 2004

HAMISH MCLEISH v STIRLING HOUSE (GUILDFORD) PTY LIMITED Application under s.106 of the Industrial Relations Act 1996

EX TEMPORE JUDGMENT 433 [2005] NSWIRComm

1 Following a conciliation process, the applicant amended the summons issued by him against the respondent based on a claim under section 106 of the Industrial Relations Act 1996. The amendment deleted, in effect, a substantial and discrete part of the applicant's claim. The result was that the amount claimed was reduced from around $135,000 to about $19,000. The result, therefore, is that the proceedings continue before this court for a total claim of $24,800. 2 The respondent sought, in correspondence through its solicitors with the applicant's solicitors, an order that the applicant pay the respondent's costs thrown away by reason of the amendment. A figure of $20,000 was claimed. The applicant resisted any such order and said that the question of costs should be determined at the conclusion of the substantive hearing. 3 The motion before the court today concerns an application by the respondent for an order for costs thrown away. In my opinion, having regard to the variation to the claim made by the applicant, the respondent is entitled to an order in its favour with respect to costs thrown away by reason of the amendment. 4 There were discrete issues which no longer need be litigated. They are issues which revolve around a right asserted by the respondent to vary rates of commission payable to the applicant. As I have said, that issue is no longer part of the proceedings. Accordingly, in my opinion, those costs should not become payable until the conclusion of the substantive proceedings. 5 I have made comment to the respondent's solicitor concerning the level of costs incurred at the stage of conciliation and the level of costs incurred with respect to the claim made concerning costs thrown away. As has been observed now, on a number of occasions in this court, the proceedings leading up to conciliation are designed to minimise costs and to ensure that costs are kept at a low level so that conciliation is not frustrated. 6 In my experience the usual level of costs at conciliation stage for applicant and respondent should not exceed the sum of $10,000 for each party. There may well be occasions when a lower level of costs are appropriate but rarely should that level be exceeded. 7 In making these observations in connection with these proceedings I should not be seen to be critical of the respondent's solicitor. The respondent's business is conducted in Perth and the respondent's solicitor carries on business in Perth and no doubt that has increased the level of costs. 8 Whilst it is not appropriate for the court to become involved in the assessment process it seems to me, from my own knowledge of the practice of law, that the costs thrown away by reason of the amendment should be a relatively small part of the overall level of the respondent's costs. The order that I make is that the costs thrown away be assessed by an assessor under the Legal Profession Act and that the costs will not become payable until the conclusion of the substantive proceedings. 9 I have already said that the amount now involved is the sum of $24,000. It is obvious that the respondent's costs to date far exceed this amount and I venture to suggest that after today's hearing the applicant's costs may well exceed that amount. Even if they do not, it is quite clear that the aggregate costs of the litigation will exceed the amount of the claim by many times. 10 Accordingly, it is neither in the interests of the applicant, nor the respondent, that this litigation continue. If the further assistance of the court is required, by way of conciliation, to ensure that the matter settles appropriately and quickly, application may be made by either party to my Associate. 11 I direct the solicitor for the applicant and the solicitor for the respondent to ensure personally that a copy of this interlocutory judgment is forwarded to their respective clients, so that they will understand firsthand the concern expressed by the court about the continuation of this litigation. 12 With respect to the costs of the proceedings today, I note that the respondent has been successful. However, the applicant, in my opinion, had no alternative other than to resist the application faced with an assessment of $20,000. Having regard to the manner in which the proceedings have come before the court, and the communication between the solicitors, I propose to make no order for the costs of the proceedings today.