Industrial Court of New South Wales CITATION: Subway Development of NSW-ACT Pty Limited v Costin [2007] NSWIRComm 95 APPELLANT: Subway Development of NSW/ACT Pty Limited PARTIES: RESPONDENT: Matthew Costin FILE NUMBER(S): IRC 2667 of 2006 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS: Appeal - Leave to appeal - Unfair contract - Clean hands - Issue of principle not raised at first instance - Doubt as to application of clean hands principle in s 106 proceedings - No issue as to findings of unfairness - Leave to appeal refused - Costs. Knowles v Anglican Chruch Property Trust (No 2) (1999) 95 IR 380 CASES CITED: Howitt v Retec Limited (No 2) (1995) 60 IR 93 FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 553 HEARING DATES: 14 March 2007 DATE OF JUDGMENT: 24 April 2007 APPELLANT: Mr J Phillips SC SOLICITORS: Mr J Pacchiarotta JP Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr M Heath of counsel SOLICITORS: Mr J Wilson Williams Love & Nicol, Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Tuesday 24 April 2007 Matter No IRC 2667 of 2006 SUBWAY DEVELOPMENT OF NSW/ACT PTY LIMITED v MATTHEW COSTIN Application by Subway Development of NSW/ACT Pty Limited for leave to appeal and appeal against a judgment of Justice Haylen given on 16 June 2006 in Matter No IRC 6387 of 2003 JUDGMENT OF THE COURT [2007] NSWIRComm 95 1 The decision of the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 remains the leading authority in this jurisdiction as to the question of leave to appeal. 2 In this matter that authority has some greater resonance, as many of the factors warranting the refusal of leave in Knowles may be found in this case. 3 As in Knowles, the primary challenge in this appeal essentially turns upon an issue of principle (in this case, the equitable principle described as the "clean hands principle") which was not, in substance, raised at first instance. It is not enough for a party to merely mention an issue in passing without any development in fact or principle at first instance and then seek to erect that matter with some considerable development as the central plank of its appeal. 4 Further, there must be real doubt about the application of the principle simpliciter in the exercise of the Court's discretion under s 106 in any event: cf Howitt v Retec Limited (No 2) (1995) 60 IR 93. There is no warrant for the erection of such a formula in substitution for the proper exercise of the discretion residing in the Court under s 106(5). There may be factors which may disentitle an applicant to discretionary relief, but these are factors which will arise in the circumstances of the particular case. We note in passing that the principle seems to have been in any event overstated in argument in this matter: see, for example, FAI Insurances Ltd v Pioneer Concrete Services Ltd (1987) 15 NSWLR 553 at 561. 5 Noting that no challenge was made as to the finding of unfairness at first instance, and having regard to the joinder of issues below, we do not consider that any error has been demonstrated in the exercise of the trial judge's discretion. We do not, therefore, consider that leave to appeal should be granted. 6 Normally costs would follow the event and although the parties will be given the opportunity to put any contrary view they wish, prima facie costs of the appeal would usually be awarded to the respondent on a party/party basis. 7 The Full Bench orders: 1. Leave to appeal is refused; 2. Appeal dismissed; 3. In the absence of any contrary submission filed and served within 14 days hereof, the appellant shall pay the respondent's costs of the appeal as agreed or, in default, 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.