Industrial Relations Commission of New South Wales in Court Session CITATION: Small v Tyco Projects (Australia) Pty Ltd (No 2) [2007] NSWIRComm 120 APPELLANT: Elke Small PARTIES: RESPONDENT: Tyco Projects (Australia) Pty Ltd FILE NUMBER(S): IRC 1012 of 2006 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS: Costs - Appeal - Costs in respect of proceedings at first instance and on appeal - Power of Full Bench - Slip rule - Rule 203 - Order made as to costs at first instance - Application for costs of appeal on indemnity basis refused. LEGISLATION CITED: Industrial Relations Commission Rules 2006 Rule 203(1) CASES CITED: Small v Tyco Projects (Australia) Pty Ltd [2007] NSWIRComm 97 HEARING DATES: 22 May 2007 EXTEMPORE JUDGMENT DATE: 22 May 2007 APPELLANT: Mr R de Meyrick of counsel Solicitor: Mr P Carr Paris J Carr & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr A Moses of counsel Solicitor: Mr S Price Corrs Chambers Westgarth JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Tuesday 22 May 2007 Matter No IRC 1012 of 2006 ELKE SMALL v TYCO PROJECTS (AUSTRALIA) PTY LIMITED Application by Elke Small for leave to appeal and appeal against a judgment of Justice Staff given on 7 February 2006 in Matter No IRC 2008 of 2003 JUDGMENT OF THE COURT [2007] NSWIRComm 120 (Extempore) 1 This final part of these proceedings today relates to the issue of costs of the proceedings at first instance in the situation where the Full Bench on appeal, although upholding the appeal in a substantial respect, and ordering the respondent to pay the appellant's costs of the appeal, did not make any order as to the costs of the proceedings at first instance: see Small v Tyco Projects (Australia) Pty Ltd [2007] NSWIRComm 97. Further issues have also been raised by the parties as to the costs of the appeal. 2 The appellant contends that she should have an order for the costs of the proceedings at first instance and an indemnity costs order in respect of the appeal proceedings. The respondent, although accepting the Court has power to make the costs orders sought, has referred to certain authorities on the limited power of the Court to reopen or revisit its orders, but has also specifically conceded that the Court has power to make the costs orders in this matter under the slip rule. 3 We consider the Court has power to make the various orders sought today pursuant to the slip rule, and also pursuant to Rule 203 of the Court's rules. Rule 203 is entitled "Time for Dealing with Costs", and relevantly provides in Rule 203(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. 4 As to the proceedings at first instance, the respondent contends that, because of the appellant's limited success at first instance as a result of the appeal, each party should pay her or its own costs or, alternatively, the appellant should only receive a proportion of her costs. As to the appeal, the respondent makes a similar submission to that it makes in respect of the proceedings at first instance. 5 In respect of the proceedings at first instance, we consider that as a result of the appeal proceedings, the appellant was successful in a substantial respect concerning her claims, although that success did not extend to all matters. On balance, we consider the appellant should have a costs order as to the proceedings at first instance, thus reflecting the costs order earlier made on appeal. 6 In respect of the appeal proceedings, and noting that there is a limited basis in the appellant's argument for the making of a costs order on an indemnity basis, we consider that the costs of the appeal proceedings should be dealt with on the basis of an overall exercise of discretion, as they were initially. 7 We therefore do not intend to revisit the order originally made as to the costs of the appeal, except to make it clear that that order originally made extends to the costs argument leading to today's proceedings. We therefore make the following orders: 1. The costs order made by his Honour Justice Staff at first instance is set aside. In lieu thereof the Court orders that the respondent pay the appellant's costs of the proceedings at first instance as agreed or as assessed. 2. The Court, for more abundant caution, makes clear that the original costs order made in our judgment of 2 May 2007 in respect of the appeal extends to the costs of the arguments today on the issue of costs. 8 These proceedings are now concluded. _______________ 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.