Industrial Relations Commission of New South Wales in Court Session CITATION: Hansen Yuncken Pty Ltd v Costopoulos (No 2) [2005] NSWIRComm 52 APPELLANT Hansen Yuncken Pty Ltd PARTIES: RESPONDENT Andreas Costopoulos FILE NUMBER(S): IRC 6778 of 2003 CORAM: Wright J President; Boland J; Staff J Appeal - Costs - Whether appellant entitled to costs at first instance and costs of the appeal - Suitors' Fund - Costs awarded for appeal proceedings - Suitors' Fund certificate granted. CATCHWORDS: Costs - Appeal - Whether appellant entitled to costs at first instance and costs of the appeal - Suitors' Fund - Costs awarded for appeal proceedings - Suitors' Fund certificate granted. LEGISLATION CITED: Suitors Fund Act 1951 Hansen Yuncken Pty Ltd v Andreas Costopoulos [2004] NSWIRComm 249 (2004) 136 IR 61 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Oshlack v Richmond River Council (1998) 193 CLR 72 DATE OF JUDGMENT: 03/23/2005 APPELLANT Mr A Britt of counsel Mr D Murray Master Builders Association of NSW LEGAL REPRESENTATIVES: RESPONDENT Mr J H Pearce of counsel Solicitor: Ms R Mallia Construction Forestry Mining & Energy Union JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright J, President Boland J Staff J Wednesday 23 March 2005 Matter No IRC 6778 of 2003 HANSEN YUNCKEN PTY LTD v ANDREAS COSTOPOULOS Application by Hansen Yuncken Pty Ltd for leave to appeal and appeal against a judgment of Justice Kavanagh given on 6 November 2003 in Matter No IRC 3868 of 2001 JUDGMENT OF THE COURT [2005] NSWIRComm 52 1 In Hansen Yuncken Pty Ltd v Costopoulos [2004] NSWIRComm 249 (2004) 136 IR 61, an appeal from a judgment of Kavanagh J, the Full Bench granted leave and upheld the appeal. Her Honour's judgment was set aside and orders made by her Honour in favour of the respondent were quashed. 2 At the request of the parties, the question of costs at first instance and on appeal was reserved pending any application accompanied by written submissions. This judgment deals with the costs issue. 3 Counsel for Mr Costopoulos contended that costs ought be awarded to him in relation to all of the proceedings at first instance including the preparation of the claim, conciliation and preparation of the proceedings. Further, that in relation to the costs of the appeal, in the exercise of the Court's discretion, no order for costs should be made against Mr Costopoulos. In any event, it was submitted in relation to the appeal, the respondent on the appeal should be entitled to a certificate under s 6 of the Suitors' Fund Act 1951 if such a certificate is available in the proceedings. 4 The basis of Mr Costopoulos' claim for costs at first instance was that it was claimed in conciliation proceedings, in response to a question from Walton J Vice-President who was conducting the conciliation proceedings, the representative of the respondent at first instance indicated that it did not intend to take any jurisdictional point concerning the application of a federal award to Mr Costopoulos' employment. It was submitted that Hansen Yuncken only raised the jurisdictional point and indicated reliance on it at the commencement of the trial before Kavanagh J. 5 In relation to the costs of the appeal, the respondent submitted that the Court should exercise its discretion to make no order as to costs against the respondent because of the conduct of the appellant in indicating in conciliation that it did not intend to rely on any jurisdictional point and then changing its position in its opening address at trial. 6 The appellant sought the following orders as to costs: 1 The Respondent pay the Appellant's costs as agreed or assessed of the Appeal. 2 The Respondent to pay the Appellant's costs as agreed or assessed at first instance before Her Honour Justice Kavanagh from 12 May 2003. 7 As to the costs of the appeal, the appellant submitted that the Full Bench should adopt the usual rule that costs follow the event and as the successful party the appellant should have its costs. It was submitted there was no "disentitling conduct" by the appellant that would deprive it of the costs of the appeal (see Latoudis v Casey (1990) 170 CLR 534 at 565 - 566; Oshlack v Richmond River Council (1998) 193 CLR 72 at [70]). 8 In relation to costs at first instance, the appellant relied on the affidavit of Daniel Murray, Industrial Advocate with the Master Builders' Association of New South Wales. Mr Murray deposed as follows: 1 In relation to paragraph 2a of the submissions as to costs from the Respondent it is said that "At the Conciliation hearing before Walton VP, in the presence of the Applicant, the representative of the Respondent indicated that the Respondent did not intend to take any jurisdictional point concerning the Federal Award in the proceedings any such jurisdictional point would not be relied on" 2 I appeared for the Appellant (then Respondent) in the conciliation of the proceedings at first instance, with Mr John Wilson of the Appellant. I do not recall any such question being asked in those proceedings, nor do I recall making any such "indication". 3 Instead, I recall the fact that there was considerable discussion in the conciliation of the issue of the then Applicant being employed under a Federal Award and a Federal Agreement. This issue was raised by me, as it had been raised in the then Respondent's Reply filed 25 July 2001. Among other matters raised by me and discussed in the conciliation was that the Respondent would rely upon the provisions of the award and agreement in relation to the Applicant's claim. 9 Nonetheless, the appellant conceded that it did not formally raise the jurisdictional issue until the commencement of the trial on 12 May 2003 and, therefore, that it should not receive its costs prior to that date. It was further submitted by Mr Britt of counsel for the appellant: [E]ven accepting the matters described in paragraph 2 of the written submissions of the Respondent, at best, they provide a basis for not awarding costs to the Appellant in relation to the matter at first instance before Justice Kavanagh but do not provide a basis for awarding costs to the Respondent. Further, even if the jurisdictional point had been raised earlier, the Appellant submits that the Respondent would have continued on with the proceedings. This is supported by the Respondent's conduct once the jurisdictional matter was formally raised on 12 May 2003 and such conduct continued in defending the Appeal. Consideration 10 We observe that there was no issue as to the Court's power to award costs. As to the proceedings at first instance, Mr Murray deposed that there was no indication that the appellant did not intend to take any jurisdictional point concerning the application of a federal award. Nonetheless, the appellant quite fairly conceded that it did not formally raise the jurisdictional issue until its opening at trial and that up to the time it should not receive its costs. 11 It is to be noted that the only amount for costs claimed by the appellant for the proceedings at first instance is a small amount of counsels fees for advice given in July 2003 (after Kavanagh J reserved judgment) on the issue of s 78B of the Judiciary Act 1903 (Cth). 12 During the hearing of the appeal, albeit before written submissions were filed on the costs issue, counsel for the appellant accepted there should be no order for costs of the proceedings at first instance. We consider that is the appropriate course to adopt. 13 Turning to the costs of the appeal, the claim by the appellant for its costs is limited to counsel's fees apparently on the basis that, as was stated by its counsel during the hearing of the appeal, it was represented by an industrial organisation which did not and could not charge legal costs in respect of the proceedings. 14 The appellant should have the costs of the appeal limited in the manner we have noted. Nothing has been put that would lead us to depart from the usual rule that costs follow the event. The respondent has sought a certificate under the Suitors' Fund Act 1951 if such a certificate is available in the proceedings. There was clearly a question of law involved in the appeal on which the appellant succeeded and the respondent is therefore entitled to a certificate. Orders 15 The Full Bench makes the following orders 1. The respondent shall pay the appellant's costs of the appeal, to be assessed in default of agreement. 2. The respondent shall have a certificate pursuant to the provisions of s 6 of the Suitors' Fund Act 1951. 3. There shall be no order as to the costs of the proceedings at first instance. _____________________________ 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.