Hyun Sung (Marco) Choi v Sin Young Yim and Anor [2007] NSWIRComm 113

Industrial Court of New South Wales

CITATION: Hyun Sung (Marco) Choi v Sin Young Yim and Anor [2007] NSWIRComm 113

Applicant: Hyun Sung (Marco) Choi PARTIES: Respondents: Sin Young Yim Tae Sik Kim

FILE NUMBER(S): IRC7002 of 2001

CORAM: Kavanagh J

CATCHWORDS: Section 106 - Court of Appeal judgment holds Industrial Court no jurisdiction to hear application - application brought by applicants in s106 Summons for costs "as reserved" by Full Bench of the Industrial Court - respondents make application for costs and an application to set aside two costs orders of Marks J on the Motion - Marks J's orders confirmed - order for applicant's costs before the Full Bench.

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 17/05/07 EXTEMPORE JUDGMENT DATE: 17 May 2007

Applicant: Mr I.C. Latham of counsel Solicitors: Mr H. Macken Beston Macken McManis LEGAL REPRESENTATIVES: Respondents: Mr J.M. Miller of counsel Solicitors: Ms B. McIntyre Dibbs Barker Gosling

JUDGMENT:

- 6 - INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: Kavanagh J

Tuesday 17 May 2007

Matter No IRC 7002 of 2001

HYUN SUNG (MARCO) CHOI v SIN YONG YIM AND ANOR

Application under s106 of the Industrial Relations Act 1996

EX TEMPORE JUDGMENT (Costs)

[2007] NSWIRComm 113

1 HER HONOUR: This matter came before me following a determination of the Court of Appeal on 4 April 2007 in Sin Yong Yim & Tae Sik Kim v Industrial Relations Commission of NSW & Hyun Sung (Marco) Choi [2007] NSWCA 77. The Court of Appeal considered two applications brought before it by the respondents in litigation filed under s106 of the Industrial Relations Act 1996. Relevantly, one of the applications was for a prerogative writ to prevent the Industrial Court of New South Wales from hearing the s106 application. 2 The s106 application had been set down for hearing before me for three days in September 2007. I initiated a mention as the judgment of the Court of Appeal had been brought to my attention, but no notification had been made to the Court by either party. The Court of Appeal determined the Industrial Court lacked the jurisdictional power to consider the particular s106 application. I therefore vacated the hearing dates for the matter listed on 25, 26 and 27 September 2007. 3 The question of costs, given the history of the litigation in the s106 application before the Court, remained outstanding. The parties entered into conciliation as to the question of costs but it was not resolved. Therefore, the Court must deal with the issue of costs. 4 The applicant moves the Court for an order for costs in the s106 summons. The applicant submits it is entitled to costs for the preparation of the matter up until 4 April 2007, the date the Court of Appeal delivered judgment. 5 The respondents oppose the application and make an alternative application that the court order costs to the respondents in the s106 proceedings.