Industrial Court of New South Wales CITATION: Crewdson v New South Wales Department of Community Services & Ors (No. 17) [2006] NSWIRComm 404 APPLICANT Gerard Crewdson PARTIES: RESPONDENT New South Wales Department of Community Services New South Wales Department of Ageing, Disability and Home Care Sydney South West Area Health Service FILE NUMBER(S): IRC 3140 of 2001 CORAM: Boland J CATCHWORDS: Costs - Application for declaratory relief - Application dismissed - Respondent sought costs - Costs award to Respondent as agreed or as assessed LEGISLATION CITED: Industrial Relations Act 1996 Crewdson v New South Wales Department of Community Services (No. 11) (2005) 145 IR 376 CASES CITED: Crewdson v New South Wales Department of Community Services (NSW) (No. 14) (2006) 152 IR 48 Crewdson v New South Wales Department of Community Services and Ors (No. 16) [2006] NSWIRComm 273 HEARING DATES: 09/09/2005 DATE OF JUDGMENT: 12/15/2006 APPLICANT Mr G Crewdson in person LEGAL REPRESENTATIVES: RESPONDENT Solicitor: Mr G J De Courcey Crown Solicitors Office JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J Friday 15 December 2006 Matter No IRC 3140 of 2001 GERARD CREWDSON v NEW SOUTH WALES DEPARTMENT OF COMMUNITY SERVICES & ORS Application by Gerard Crewdson for declaratory relief under s 154 of the Industrial Relations Act 1996 JUDGMENT [2006] NSWIRComm 404 1 In Crewdson v New South Wales Department of Community Services (No. 11) (2005) 145 IR 376 ("Crewdson (No 11)") the Court dismissed an application by Gerard Michael Crewdson seeking declaratory relief under s 154 of the Industrial Relations Act 1996. On the day judgment was given in the matter Mr De Courcey, for the respondents, indicated that he wished to make an application for costs. The Court expressed a degree of surprise at the application but, nevertheless, directed the parties to provide written submissions on the issue. The respondents duly provided written submissions seeking costs. The applicant did not provide any submissions. 2 Mr Crewdson subsequently applied for leave to appeal and to appeal Crewdson (No 11). That application was dismissed by the Full Bench: Crewdson v New South Wales Department of Community Services (NSW) (No 14) (2006) 152 IR 48. The respondents on the appeal sought their costs on the basis that they had been successful parties to the litigation and none of the traditional exceptions to the usual order as to costs applied so as to otherwise disentitle them to costs. The respondents also contended that there were no special circumstances that would displace the usual order. 3 In Crewdson v New South Wales Department of Community Services and Ors (No 16) [2006] NSWIRComm 273 the Full Bench found that: 1) there has been no misconduct shown on the part of the respondents either in the lead-up to or in the conduct of the case that should otherwise disentitle them to costs. An examination of the somewhat cursory submissions of the appellant does not suggest otherwise; (2) the fact that the parties seeking the costs order are Government departments and a Government corporation is not a proper reason for refusing to grant the order: Oshlack v Richmond River Council at [92] to [94]; (3) the usual order as to costs should therefore apply and the appellant should pay the respondents' costs. 4 The Full Bench ordered, inter alia, that: 2. The appellant shall pay the cost of this appeal to the New South Wales Department of Community Services, the Sydney South West Area Health Service and the New South Wales Department of Ageing, Disability and Home Care as agreed or, in the alternative, as assessed. 5 One of the matters that has concerned this Court regarding the issue of costs has been the obvious impecuniosity of the applicant. However, the Full Bench in Crewdson No 16 stated in this respect: 8 One further matter which should be mentioned here concerns the appellant's financial circumstances. Various documents which have been filed in the proceedings have indicated that the appellant is currently homeless and has limited financial means. The respondents have contended, in this regard, that the differences in the financial positions of the respective parties is not a matter which is relevant to a consideration by the Court of its discretion to award costs. 9 A similar submission was made in Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72 where the respondent government department applied for costs following the refusal by the Full Bench to grant leave to appeal. The respondent relied in support of its application on Oshlack v Richmond River Council at [96] where it was observed that costs orders were not made to punish unsuccessful parties but to indemnify successful parties and, in the absence of any misconduct on the part of the successful party, that party should be entitled to its costs. 10 We see no reason to depart from these principles, and accordingly exercise our discretion to award costs of the appeal to the respondents as agreed or in the absence of agreement as assessed. 6 Undoubtedly, the respondents have incurred, what I would estimate to be very substantial legal costs and it is understandable they would seek to be indemnified in that respect. Although it does seem to me, given the applicant's financial state, indemnification may prove elusive. In the circumstances, however, given the respondents have pressed the Court for a costs order and having regard to the approach of the Full Bench in Crewdson (No 16), the Court has no option but to make the order. Order 7 The Court makes the following Order: (1) The applicant shall pay the cost of these proceedings to the New South Wales Department of Community Services, the Sydney South West Area Health Service and the New South Wales Department of Ageing, Disability and Home Care as agreed or, in the alternative, as 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.