Berwick and Ors v Kennett [2010] NSWIRComm 41

Industrial Court of New South Wales

CITATION: Berwick and Ors v Kennett [2010] NSWIRComm 41

Dr John P Berwick (Appellant in IRC 09/1200) PARTIES: Katarina Muc trading as G H Healey & Co. Hurstville (1st Appellant in IRC 09/1286) Gregory Harrison Healey trading as G H Healey & Co Sydney (2nd Appellant in IRC 09/1286) Keith Franklin Kennett (Respondent in IRC 09/1200; IRC 09/1286)

FILE NUMBER(S): IRC 1200 and 1286 of 2009

CORAM: Boland J President; Walton J Vice-President; Haylen J

APPEAL - UNFAIR CONTRACT - COSTS - cross-appeal by counsel for applicants in s 106 proceedings - appeal by solicitors for applicants in s 106 proceedings - at first instance costs orders made against counsel and solicitors for applicants for costs thrown away by their default and conduct of the applicants' case - costs orders made on motion filed by applicant in s 106 proceedings - illness of counsel leading to withdrawal from case at stage of submissions - case unable to be concluded - whether illness of counsel leading to withdrawal from case a "default" within the meaning of r 209 of the Industrial Relations Commission Rules 1996 - requirement for blameworthy or culpable conduct for which legal practitioner responsible for operation of rule - illness of counsel alone not a "default" within meaning of rule - cross-appeal upheld - costs order against counsel set aside - solicitors for applicants found responsible for costs thrown away as result of expert witness resiling from earlier opinions expressed - inadequacy of material briefed to expert witness - issue of liability for costs of counsel and instructing solicitors determined without deciding question of costs relating to applicants' motion seeking costs against his legal representatives - oversight drawn to attention of Court - supplementary judgment delivered imposing costs on counsel and solicitors without hearing or fully hearing from counsel and solicitors as to appropriate costs orders on motion - applicants' costs motion partially successful - legal representatives denied procedural fairness - cross-appeal and appeal upheld - costs order against counsel set aside - order substituted for applicant to bear costs of motion against counsel - costs orders against solicitors set aside - order substituted for applicant and solicitors to bear own costs of applicants' costs motion