Industrial Relations Commission of New South Wales in Court Session CITATION: Burrows v Attorney General's Department of NSW (No 2) [2008] NSWIRComm 194 APPLICANT: Suzanne Burrows PARTIES: RESPONDENT: Attorney General's Department of NSW FILE NUMBER(S): IRC 2105 of 2007 CORAM: Schmidt J CATCHWORDS: Costs - application for declaratory relief - declaratory relief refused - respondent seeking costs - applicant ordered to pay respondent's costs, as agreed or assessed LEGISLATION CITED: Industrial Relations Act 1996 Burrows v Attorney General's Department of NSW [2008] NSWIRComm 40 Commissioner for Children and Young People v "A" (No 2) (2004) 132 IR 112 CASES CITED: Crewdson v New South Wales Department of Community Services and Others (No 17)[2006] NSWIRComm 404 Oshlack v Richmond River Council (1998) 193 CLR 72 Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72 HEARING DATES: 13 October 2008 EXTEMPORE JUDGMENT DATE: 13 October 2008 APPLICANT: Ms S Burrows, unrepresented LEGAL REPRESENTATIVES: RESPONDENT: Ms E Brus, counsel SOLICITORS: Crown Solicitor's Office JUDGMENT: - 5 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 13 October 2008 Matter No IRC 2105 of 2007 SUZANNE BURROWS v ATTORNEY GENERAL'S DEPARTMENT OF NSW Application by Suzanne Burrows for declaratory relief under section 154 of the Industrial Relations Act 1996 JUDGMENT (EX-TEMPORE) [2008] NSWIRComm 194 1 Judgment was given in this matter in March 2008, refusing an application for declaratory relief brought under s 154 of the Industrial Relations Act 1996 ('the Act'). (See Burrows v Attorney General's Department of NSW [2008] NSWIRComm 40). This judgment deals with the question of costs. 2 The Department sought an order for costs in its favour, in accordance with s 181 of the Act, relying on the observations of McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [67] - [69]: 67 The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [ Latoudis [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ, at 562-563 per Toohey J, at 566-567 per McHugh J; Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 at 410 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. 68 As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice. 69 The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, Devlin J formulated the relevant principle as follows: "No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct." "Misconduct" in this context means misconduct relating to the litigation King & Co v Gillard & Co [1905] 2 Ch 7; Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 812, or the circumstances leading up to the litigation [ Bostock v Ramsey Urban District Council [1900] 2 QB 616]. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation [ Jones v McKie [1964] 1 WLR 960; [1964] 2 All ER 842; Bostock [1900] 2 QB 616 at 622, 625, 627.]; unnecessarily protracts the proceedings [ Forbes v Samuel [1913] 3 KB 706]; succeeds on a point not argued before a lower court [ Armstrong v Boulton [1990] VR 215 at 223]; prosecutes the matter solely for the purpose of increasing the costs recoverable [ Hobbs v Marlowe [1978] AC 16]; or obtains relief which the unsuccessful party had already offered in settlement of the dispute [ Jenkins v Hope [1896] 1 Ch 278]. 3 It was submitted that there were no special circumstances in this case which would warrant any departure from the usual costs order. Reliance was placed on the approach of O'Keefe J in CF State of New South Wales [2003] NSWSC 620 and to the similar approach adopted by this Court in Pascale Bourot v New South Wales Department of Public Works and Services & Anor [2004] NSWIRComm 72 and Crewdson v New South Wales Department of Community Services and Others (No 17)[2006] NSWIRComm 404. 4 Ms Burrows' case was that she was aware that her application had been brought in a costs jurisdiction and that this was a case where it was appropriate to depart from the usual costs order. Ms Burrows was of the view that there were various errors in the judgment, which I did not permit her to elaborate on, taking the view that errors of that kind were a matter for Ms Burrows to pursue on appeal, if she wished, but could not be relied on to oppose a costs order. 5 Ms Burrows also made a number of serious allegations in support of the submission, that there would be a departure from the usual costs order in this case, alleging that witnesses who had given evidence in these proceedings had departed in relevant and substantial ways from the evidence given in this case, when giving evidence in other proceedings on foot between the parties before the GREAT tribunal. 6 Ms Burrows argued that the result was that there should not be a costs order made in favour of the Department, about whom there should be no hint of wrongdoing, including in its obligations to her in her former employment as a court reporter. Ms Burrows, however, led no evidence in support of the very serious allegations which she made against the Department and other of its employees. 7 For the Department it was submitted that these opinions could provide no basis for any departure from the usual order, given that they were unsupported by any evidence and were denied by the Department. Consideration 8 It is well settled that in proceedings such as this, the usual costs order is that the unsuccessful party should bear the costs of the successful party, as agreed or assessed and that any departure from that approach ordinarily requires a finding that there has been some misconduct by the successful party, which must result in it being deprived of the costs order it would otherwise receive. 9 Here there was no evidence on which such a conclusion could be based. There was also no evidence from which it could be concluded that the issues raised in these proceedings were intimately connected with the industrial or arbitral jurisdiction of the Commission, or that they concerned a matter of general importance to the industrial relationship between the Department and a number of the members of its workforce, as was the case dealt with by a Full Bench of the Commission in Commissioner for Children and Young People v "A" (No 2) (2004) 132 IR 112. 10 Ms Burrows did not rely on her financial situation to support her submission that no costs would be ordered against her. Her case rested on the alleged misbehaviour of the Department and various of its employees. Those views, while undoubtedly held strongly, could not provide a foundation for the result which Ms Burrows sought, in the absence of any evidence. Ms Burrows made no attempt to lead such evidence, but relied on the allegations which she advanced from the bar table. 11 While Ms Burrows was an unrepresented litigant, she is a frequent one, aware of the need to lead evidence, if her views are to be capable of acceptance by the Court. She made no attempt to put any evidence forward, which could provide a foundation for the very serious allegations made. Plainly, they cannot be accepted as having been established. 12 In the circumstances, I am satisfied that the usual order must be made. Orders 13 For the reasons given, I order that Ms Burrows pay the Department's costs of the proceedings, 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. 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