Industrial Court of New South Wales CITATION: Ian King v Regulatory Concepts Pty Limited & Anor [2006] NSWIRComm 385 APPLICANT: Ian King PARTIES: FIRST RESPONDENT: Regulatory Concepts Pty Limited SECOND RESPONDENT: Helena Wanda Dickenson FILE NUMBER(S): IRC 5181 of 2003 CORAM: Schmidt J CATCHWORDS: Quantification of money orders - parties' competing calculations - applicant's calculations reflect claim and judgment - orders made - costs - respondents to pay applicant's costs as agreed or assessed other than respondents' costs thrown away as a result of adjournment of the hearing - applicant to bear those costs, as agreed or assessed DATE OF JUDGMENT: 12/12/2006 APPLICANT: Mr D Shoebridge of counsel SOLICITORS: LEGAL REPRESENTATIVES: Employment Lawyers RESPONDENTS: Ms Dickenson, Second Respondent JUDGMENT: - 4 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 12 December 2006 Matter No IRC 5181 of 2003 IAN KING v REGULATORY CONCEPTS PTY LIMITED AND OTHERS Application under s.106 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 385 1 Judgment was given in this matter on 27 September 2006 (see Ian King v Regulatory Concepts Pty Limited & Anor [2006] NSWIRComm 310). The orders made were: 1. The variation of the contract from 10 March 2003, to require Mr King to be paid for the work performed on the PharmaDirectory project at the agreed rate of $45 per hour, upon provision of the timesheets recording the work so performed. 2. That the respondents pay Mr King a sum calculated by reference to the sum agreed to be outstanding for the unpaid work performed by Mr King for ordinary Regulatory work, plus the sum claimed for the unpaid work on the PharmaDirectory project, plus the superannuation as claimed, plus interest on that sum calculated at Supreme Court rates, calculated from the date of termination of the contract, to the date of judgment. 3. That the respondents are to be jointly and severally liable for payment of the money order. The usual order as to costs would be that the respondents bear the applicant's costs, as agreed or assessed. The parties have liberty to approach in respect of the costs' order, if there is any issue as to the appropriate order in this case. They also have liberty to approach in the event of any disagreement about the calculation of the money order. Such liberty should be exercised within 28 days. 2 The parties were unable to agree on the calculation of the money and costs orders and were directed to file written submissions on the points at issue. 3 The applicant relied on the timesheets which were in evidence and which had been accepted as evidencing the work for which Mr King sought payment in the proceedings. Their calculation was that taking the lower of the figures available on the evidence, of 892.54, rather than 902.5 hours, paid at the agreed rate of $45 per hour, resulted in a sum due of $40,164.30, less $15,345 paid, leaving a money order of $24,819.30. To this figure had to be added the unpaid superannuation claim, which had also been found proven. This amounted to $2,233.74. Interest at Supreme Court rates on the total sum of $27,053.37, amounted to $7,697.89. 4 The respondents' submission involved an analysis of the timesheets and the provision of a 'summary of disputed tasks with justification why these do not represent work done for PharmaDirectory or Regulatory Concepts'. The disputed hours totalled 52.2. They were deducted from 'claimable' hours to arrive at 505.8 hours, costed at $45 per hour, to arrive at a sum of $22,761. Superannuation and interest were calculated on this reduced figure. The applicant's calculations were rejected, as 'not based on the original claim made by the applicant of 558 hours'. 5 Having considered the competing calculations, I concluded that the orders sought by the applicant must be made. As [5] of the September judgment shows, the underpayment of wages claimed in the initiating summons was $28,151.00, particulars of which were to be provided. The hours claimed were dealt with in the evidence led. The respondents' reliance on the 'original claim' is misplaced. It is too late at this stage of the proceedings to seek to establish that some work recorded in the timesheets was not done for the respondents. The money orders must be calculated on the basis of the case made out in the proceedings. 6 I am satisfied that the orders proposed by the applicant give effect to the judgment and must accordingly be made. 7 As to costs, the respondents submitted that the applicant unnecessarily dragged out the proceedings and caused delay; that the applicant was not ready to proceed on 23 May 2006, leading to unnecessary legal expenses being incurred by the respondent; that proper consideration could not be given to the claim because the respondent did not have relevant documents in its possession and the only settlement offer put forward by the applicant was an unreasonable one. It was also claimed that the respondents had made 'reasonable attempts' to settle the matter. What they were, was not disclosed. 8 The proceedings on 23 May adjourned during the course of the day, when the applicant was not in a position to proceed with its evidentiary case, when a witness could not be found. The respondents' rights were reserved in relation to the costs thrown away as the result of the adjournment. In the circumstances, I am satisfied that as a matter of justice, the applicant should bear the respondent's costs thrown away as the result of that adjournment. Otherwise, I can find no basis in the submissions advanced by the respondents, for any departure from the usual costs order. Orders 9 For the reasons given I make the following orders: 1. The first and second respondents to pay the applicant the amount outstanding for the unpaid work performed for ordinary Regulatory work, plus the sum claimed for the unpaid work on the PharmaDirectory in accordance with order 2 in the sum of $24,819.30; 2. The first and second respondents to pay the applicant the amount outstanding for unpaid superannuation in accordance with order 2 in the sum of $2,233.74. 3. The first and second respondents to pay the applicant interest from the date of termination to the date of judgment (27 September 2006) in the sum of $7,697.89. 4. The first and second respondents to be jointly and severally liable to pay the applicant's costs as agreed or assessed. The applicant is to pay the respondents' costs thrown away as the result of the adjournment of the hearing on 23 May, as agreed or assessed. ------------------------ 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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