Industrial Relations Commission of New South Wales in Court Session CITATION: Carroll v Carroll [2008] NSWIRComm 103 SHANE CARROLL Appellant PARTIES: PATRICK CARROLL Respondent FILE NUMBER(S): IRC 189 of 2008 CORAM: Schmidt J; Staff J; Backman J CATCHWORDS: Appeal - leave to appeal and appeal from a decision - notice of discontinuance by appellant - discontinuance opposed - unrepresented litigants -proceedings discontinued - costs LEGISLATION CITED: Industrial Relations Act 1996 DATE OF JUDGMENT: 23 May 2008 APPELLANT: Shane Carroll, unrepresented LEGAL REPRESENTATIVES: RESPONDENT: Patrick Carroll, unrepresented JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: SCHMIDT J STAFF J BACKMAN J 23 May 2008 Matter No IRC 189 of 2008 SHANE JOSEPH CARROLL V PATRICK JOHN CARROLL T/AS SYDNEY OFFICE EQUIPMENT Application by Shane Joseph Carroll for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 29.1.2008 in matter No. CIM 58312/4 JUDGMENT [2008] NSWIRComm 103 1 In these proceedings Mr Shane Carroll sought leave to appeal and appeal from a decision of Chief Industrial Magistrate Hart, given on 29 January 2008. A stay of the orders made below was also sought, but that application was not pressed and was listed for hearing, together with the application for leave to appeal and appeal. 2 Summonses for the production of various documents were served on the applicant by Mr Patrick Carroll, the respondent. There was no answer to the summons by Mr Shane Carroll and the question of the production of the documents sought was listed for hearing on 19 May. 3 On 12 May 2008, Mr Shane Carroll filed a notice of discontinuance of the proceedings. The discontinuance was opposed by Mr Patrick Carroll for reasons outlined at a mention of the proceedings and in correspondence. Mr Shane Carroll also outlined the reasons why he wished to discontinue, at the mention and in correspondence. In the circumstances here before us, it is unnecessary for us to outline the matters raised. Suffice it to say that the parties each raised serious allegations against the other. 4 The discontinuance is governed by the Court's Rules, which provide relevantly: 138 Discontinuance (1) A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings so far as concerns the whole or any part of any application made by that party: (a) where the party or the party's solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent, or (b) with the leave of the tribunal. (2) Leave of the tribunal may be given in Chambers without the appearance of any person. 5 The dispute as to the production of documents was listed for hearing on 19 May and the application for stay, leave to appeal and appeal were listed for hearing on 5 June, even though Mr Shane Carroll had been offered an earlier date for the hearing of the stay. 6 In the circumstances, we take the view that Mr Shane Carroll does not strictly require the Court's leave to discontinue the proceedings, given the provision of Rule 138(1), the hearing of the matters brought before this Full Bench not having commenced. 7 Even though Mr Patrick Carroll advanced a number of forceful reasons for opposing the discontinuation of the proceedings, it is apparent that Mr Shane Carroll no longer wishes to resist the orders made against him in the proceedings below, for reasons which he has explained. It follows that even if leave was required, the public interest could not permit Mr Shane Carroll being compelled to pursue an appeal against a decision he no longer wishes to challenge. 8 It follows that the hearing of the matter listed for 5 June must be vacated. 9 With the discontinuation of these proceedings, there is no longer any question that the orders made in the proceedings below by the Chief Industrial Magistrate are effective and Mr Shane Carroll is obliged to obey them. 10 The final matter for us to consider is the question of the costs of these proceedings. The Rules relevantly provide: 215 Discontinuance Where pursuant to Part 19 a party to any proceeding discontinues the proceeding without leave as to whole or any part of the relief claimed against any other party, the discontinuing party shall, unless the Commission otherwise orders, pay the costs of the party against whom the discontinued claim was made incurred before service of notice of the discontinuance and the latter party may request the Commission or the Registrar to make an order accordingly. 11 Nothing has been raised by the parties thus far, which would lead to a departure from this Rule, which provides that as a consequence of Mr Shane Carroll's decision to discontinue the proceedings, he must pay the costs incurred by Mr Patrick Carroll in the proceedings, on the usual party/party basis, bearing in mind that Mr Patrick Carroll was an unrepresented litigant. 12 The parties have not addressed on the question of costs, however. Accordingly it is appropriate that they be given an opportunity to do so. If either party seeks an order departing from the usual order, they should file and serve a submission explaining the basis of the costs order which they seek. Any reply should be filed and served within a further period of seven days. 13 We observe that there has been difficulty in these proceedings as to service. Accordingly we also direct that any such submission must be accompanied by an affidavit of service. Orders 14 Accordingly, for the reasons given, the proceedings are discontinued and, unless either party acts within 7 days of this decision, to seek a departure from the usual costs order, the Court's order as to costs will be, that Mr Shane Carroll bear Mr Patrick Carroll's costs of these proceedings on a party/party basis, as agreed or assessed. 15 Any application for the assessment of costs should be directed to the Registrar of the Court, within 28 days of this decision, unless the liberty earlier outlined, is exercised by either party. ------------------------ 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. 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