Industrial Court of New South Wales CITATION: Singh v The State of New South Wales (Department of Corrective Services and Anor [2008] NSWIRComm 206 APPLICANT (RESPONDENT ON THE MOTION) Gurbax Singh PARTIES: FIRST RESPONDENT The State of New South Wales (Department of Corrective Services) SECOND RESPONDENT (APPLICANT ON THE MOTION) Keith Smith FILE NUMBER(S): IRC 1411 of 2007 CORAM: Staff J CATCHWORDS: Unfair contract - Interlocutory proceedings - Notice of motion seeking that proceedings be dismissed against second respondent - Application for adjournment of hearing of notice of motion refused - Notice of motion not opposed by applicant - Indemnity costs LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 HEARING DATES: 28 October 2008 DATE OF JUDGMENT: 28 October 2008 APPLICANT (RESPONDENT ON THE MOTION) Mr A Norrie of counsel FIRST RESPONDENT Solicitor: Ms G Singer LEGAL REPRESENTATIVES: Department of Corrective Services SECOND RESPONDENT (APPLICANT ON THE MOTION) Mr A Hatcher of counsel Solicitor: Mr N Keats WG McNally Jones Staff JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Tuesday, 28 October 2008 Matter No IRC 1411 of 2007 GURBAX SINGH v THE STATE OF NEW SOUTH WALES (DEPARTMENT OF CORRECTIVE SERVICES) AND ANOR Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT [2008] NSWIRComm 206 1 Gurbax Singh has filed an amended summons under s 106 of the Industrial Relations Act 1996. He seeks an order declaring that the contract, arrangement or collateral arrangement between the applicant and the State of New South Wales (Department of Corrective Services) ("the first respondent") under which he performed work in the provision of correctional services, was unfair, harsh or unconscionable. 2 Keith Smith, the second respondent, is employed by the first respondent at the respondent's hospital at the Long Bay Correctional Centre. The applicant seeks an order that the respondents pay to the applicant such monies in connection with the contract so voided or varied as may be considered just in the circumstances. 3 The second respondent, by notice of motion, seeks orders that Mr Singh's proceedings be dismissed as against him. 4 The notice of motion was the subject of a directions hearing before me on 15 September 2008, when directions were made requiring the parties to file contentions and any additional affidavit material that was sought to be relied upon. The matter was fixed for hearing on 28 October 2008 to suit the convenience of counsel for the applicant and the second respondent. The second respondent complied with the Court's directions, however, no contentions were filed on behalf of the applicant. 5 At the commencement of the hearing today, Mr A Norrie of counsel, who appeared for the applicant, sought an adjournment of the hearing for two weeks to enable the execution of a Deed of Release between the applicant and the second respondent. Mr Norrie indicated that he was instructed to consent to an order for costs in respect of the adjournment. 6 Mr AA Hatcher of counsel, who appeared for the second respondent, opposed the adjournment on the basis that firstly, the applicant had failed to comply with directions made by the Commission in respect of the filing and serving of affidavit material and contentions. Secondly, Mr Hatcher submitted that his client had reached an agreement in principle with the applicant on 7 May 2008 at the conclusion of the second conciliation conference in this matter. The terms of the agreement were to be reflected in a Deed of Release. Thirdly, the applicant has declined to execute the Deed of Release. Mr Hatcher proposed an alternative course, that being the applicant agree to discontinue the proceedings against the second respondent, undertake to execute a Deed of Release within 14 days and the proceedings be adjourned for that period with costs reserved. If the notice of motion was finalised on this basis, Mr Hatcher submitted that there would be no issue as to costs. 7 I adjourned the proceedings to enable Mr Norrie to obtain instructions from the applicant. Upon resumption of the hearing, Mr Norrie advised that his client was not prepared to agree to the steps proposed by the second respondent. Mr Norrie subsequently sought an adjournment to enable him to contact counsel briefed in the matter who was appearing in proceedings before the District Court of New South Wales. I adjourned the proceedings until 12:00 noon, informing the parties that I intended to hear the notice of motion at that time. 8 When the matter resumed, Mr Hatcher argued the notice of motion on behalf of his client. At the conclusion of counsel's submissions, Mr Norrie submitted that he was not instructed to oppose the notice of motion. In these circumstances, Mr Hatcher sought indemnity costs in respect of the hearing of the notice of motion, relying on the applicant's conduct in the proceedings as entitling the second respondent to an indemnity order. In my view, such an order should be made as had the applicant made its position clear prior to the hearing, the second respondent would not have incurred the expense which it did. ORDERS 9 I make the following orders: 1. Pursuant to Pt 12, r 82(1) of the Industrial Relations Commission Rules 1996, the summons for relief filed on 29 August 2007 and amended on 6 November 2007 is dismissed, as against the second respondent. 2. The applicant is to pay the second respondent's costs of the proceedings, including the costs of the notice of motion on a party/party basis until 27 October 2008 and thereafter on an indemnity basis. ------------------------------------ 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.