Industrial Relations Commission of New South Wales in Court Session CITATION: Sinadinos v EDI Rail Pty Limited (No 2) [2008] NSWIRComm 50 APPLICANT Tas Sinadinos PARTIES: RESPONDENT EDI Rail Pty Limited FILE NUMBER(S): 6325 of 2005 CORAM: Marks J CATCHWORDS: Costs - unfair contract proceedings with multiple issues - applicant successful only on one issue and failed on issue which took up preponderance of proceedings - each party to pay own costs - no costs order made LEGISLATION CITED: Industrial Relations Act 1996 s106 CASES CITED: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7 Sinadinos v EDI Rail Pty Limited [2007] NSWIRComm 294 HEARING DATES: 12 March 2008 DATE OF JUDGMENT: 28 March 2008 APPLICANT Mr P Coleman of counsel Solicitors Carroll & Associates Ms P Barry LEGAL REPRESENTATIVES: RESPONDENT Mr A Moses of counsel Solicitors Colin Biggers & Paisley Mr P Harkin JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 28 March 2008 Matter No IRC 6325 of 2005 Sinadinos v EDI Rail Pty Limited (No 2) Application under s 106 of the Industrial Relations Act 1996 JUDGMENT ON COSTS [2008] NSWIRComm 50 1 By amended summons for relief, the applicant, Tas Sinadinos, claimed that his contract of employment with the respondent, EDI Rail Pty Limited, was unfair for the purpose of s 106 of the Industrial Relations Act 1996 and that certain monetary compensation should be paid accordingly. The amended summons ultimately made a claim for the payment of remuneration in lieu of notice on termination of the contract of employment, monies for the payment of a pro rata incentive payment and outstanding annual leave entitlement of $654.96. 2 In judgment in Sinadinos v EDI Rail Pty Limited [2007] NSWIRComm 294, I dismissed the applicant's claim based on the unfairness associated with the termination of his employment, upheld his claim with respect to the pro rata entitlement to a payment under an incentive scheme and noted that the respondent had agreed to pay the outstanding annual leave entitlement during the course of the hearing. The applicant was awarded the sum of $10,172.31 together with interest. 3 Costs were reserved and this judgment deals with the question of costs. The applicant sought an order that the respondent pay his costs of the proceedings. The respondent sought an order that the applicant pay 50% of its costs of the proceedings. 4 The bulk of the controversy between the parties was the claim for payment in lieu of notice. The preponderance of the affidavit material filed in the proceedings and the evidence in the proceedings was directed to this issue. Only a small part of the proceedings dealt with the claim relating to the payment under the incentive scheme. The outstanding annual leave entitlement played a tiny part in the overall proceedings. 5 There can be no doubt that the bulk of the applicant's claim focussed on the circumstances of the termination of his employment and that this was an issue which was discrete from and able to be litigated separately from the claim for outstanding incentive scheme payment. The evidence of the applicant and the three witnesses called on behalf of the respondent all addressed both issues, but, in their preponderance, were devoted to the notice claim. 6 In these circumstances, it is necessary for the Court to determine what is an appropriate order that will, as a matter of justice, reflect where the burden of costs should lie in the overall proceedings. 7 The basic principle is that this Court has a discretion in the awarding of costs which must be exercised judicially. The manner in which the discretion will be exercised will depend upon all of the circumstances of the proceedings. There are a number of authorities that deal with the appropriate approach to the making of costs orders in proceedings where there are multiple issues and one party or the other succeeds or fails on some or more of those issues. 8 Fortunately, the relevant authorities and principles in this area have been collected by Barrett J in the Supreme Court of New South Wales in Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2008] NSWSC 7. They are to be found in [24] to [30] of his Honour's judgment. I gratefully acknowledge and adopt his Honour's summary of the relevant principles based on the authorities and extracts from judgments which his Honour has set out. 9 It is only necessary, therefore, that I need deal with the precise circumstances of these proceedings and the determination of the controversy between the parties. In determining this matter, I take into account the following: 1) Although the applicant succeeded in obtaining relief overall in the proceedings, the success was limited to an issue in the proceedings which was discrete, and which involved only a relevantly small part of the proceedings. 2) Overall, therefore, the respondent succeeded in defeating the significant claim brought against it by the applicant. 3) It would not be fair or appropriate for the respondent to pay all of the costs of the applicant, nor would it be fair or appropriate for the applicant to pay all of the costs of the respondent (noting that the respondent only sought 50% of its costs). 4) Although, overall, it is probable that the costs of the discrete, severable issue concerning the notice claim were much greater than the costs associated with the remainder of the proceedings, some accommodation needs to be afforded to the applicant by reference to costs which would have been incurred in any event by the applicant in connection with the proceedings no matter which of the particular issues were being litigated and were comprehended within the proceedings. Obvious examples are the need to issue a summons and participate in interlocutory processes. 10 For all of these reasons, I am of the opinion that an appropriate resolution of the costs argument is that each party should be required to pay his or its own costs and that, accordingly, there be no costs order made. I order accordingly. 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.