Industrial Relations Commission New South Wales Medium Neutral Citation: Grahame Anthony Chevalley and Hilton Ross Grugeon v Inspector Rodney Morrison [2012] NSWIRComm 57 Hearing dates: Written submissions Decision date: 27 June 2012 Before: Walton J, Vice-President; Kavanagh J; Staff J Decision: Costs in Matter Numbers IRC 362 and 383 of 2012 shall be costs in the cause in Matter Numbers IRC 956 and 957 of 2007. Catchwords: COSTS - notice of motion by respondent prosecutor to alter orders made by Full Bench in Chevalley v Inspector Morrison [2012] NSWIRComm 18 as to costs granted - parties directed to provide written submissions as to appropriate costs order - Held: issues ventilated in the declaratory proceedings in Matter Number IRC 362 may be the subject of an appeal brought by the applicant defendant at the conclusion of Matter Numbers IRC 956 and 957 - costs in Matter Numbers IRC 362 and 383 of 2012 shall be costs in the cause in Matter Numbers IRC 956 and 957 of 2007. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Chevalley v Inspector Morrison [2012] NSWIRComm 10 Chevalley v Inspector Morrison [2012] NSWIRComm 18 Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8 Category: Costs Parties: Grahame Anthony Chevalley and Hilton Ross Grugeon (Applicant Defendants) Inspector Rodney Morrison (Respondent Prosecutor) Representation: A R Moses SC with D Mahendra of counsel (Applicant Defendants) R J Burbidge QC and I Taylor of counsel (Respondent Prosecutor) McDonald Johnson Lawyers (Applicant Defendants) Crown Solicitor's Office (Respondent Prosecutor) File Number(s): IRC 362 of 2012 IRC 383 of 2012 Judgment 1These proceedings stem from an application for declaratory relief brought by Graham Anthony Chevalley and Hilton Ross Grugeon ("the applicant defendants") on 23 February 2012 (Matter Number IRC 362 of 2012) pursuant to s 154 of the Industrial Relations Act 1996 ("the application"). The application was dismissed by the Full Bench on 23 March 2012 in Chevalley v Inspector Morrison [2012] NSWIRComm 18 ("the judgment"). On 5 April 2012 a notice of motion was filed by Inspector Rodney Morrison ("the respondent prosecutor") seeking variations to the orders made by the Full Bench in that judgment. On 11 May 2012, the Full Bench granted the notice of motion. 2This decision concerns the issue of costs in light of the Full Bench's acceptance of the variations proposed in the notice of motion to the orders in the judgment, in particular the variation made to order 2. 3The original orders made by the Full Bench in the judgment were as follows: (1)The Notice of Motion is dismissed. (2)Costs to be costs in the cause. 4In accordance with the orders proposed in the respondent prosecutor's notice of motion, the Full Bench made the following variations to the above orders: 1.Order 1 was varied to read: "The application for declaratory relief is dismissed." 2.Order 2 was varied to read: "The parties are directed to provide short written submissions as to what orders should be made as a consequence of the judgment handed down on 23 March 2012." 5The respondent prosecutor and the applicant defendants duly filed written submissions on 1 June and 14 June 2012 respectively. By consent, the hearing as to costs scheduled for 20 June 2012 was vacated to be determined by the Full Bench in chambers on the basis of the written submissions of the parties. 6It is noted that consent orders were made by the Full Bench in relation to Matter Number IRC 383 of 2012, in which the applicant defendants lodged an appeal against the judgment of Boland J in Chevalley v Inspector Morrison [2012] NSWIRComm 10, that the costs of those proceedings would be costs in the cause in Matter Number IRC 362 of 2012. Accordingly, any order we make in this decision as to costs in relation to the application for declaratory relief will encompass costs in relation to Matter Number IRC 383 of 2012. Submissions of the Parties re Background 7Each party outlined, in submissions, the history of proceedings leading to and including the application by the applicant defendants in some detail. The background to the proceedings was also canvassed by the Full Bench in the judgment. We do not propose to restate that background here. Submissions of the Respondent 8Mr Burbidge QC and Mr Taylor of counsel made written submissions as to costs on behalf of the respondent prosecutor which may be summarised as follows: 1. The applicant defendants should pay the respondent prosecutor's costs as agreed or as assessed in Matter Numbers IRC 362 and 383 of 2012. 2. The applicant defendants originally sought seven orders in the application, but abandoned three of those orders at the beginning of the hearing of the application on 8 March 2012. The respondent prosecutor incurred unnecessary costs in preparing for the hearing extensive written submissions for all seven orders sought. 3. In any event there was no proper basis for the application. 4. The applicant defendants were unsuccessful at every stage of proceedings in relation to the application and there is no reason why the usual order should not be made in respect of both proceedings on the basis that costs follow the event. 5. Costs of the proceedings in relation to the application, being discrete proceedings, should be ordered to be paid now rather than at the conclusion of proceedings in relation to Matter Numbers IRC 956 and 957 of 2007 before Backman J. Submissions of the Applicant 9Mr Moses SC and Mr Mahendra of counsel made written submissions on behalf of the applicant defendants as to costs which may be summarised as follows: 1. The appropriate costs order to be made is that which was originally contemplated by the Full Bench in the judgment, that is, that the costs of proceedings in relation to Matter Numbers IRC 362 and 383 of 2012 should be costs in the cause in proceedings in relation to Matter Numbers IRC 956 and 957 of 2007. 2. In the alternative, the appropriate costs order should either be that costs are reserved until the conclusion of proceedings in relation to Matter Numbers IRC 956 and 957 of 2007 or that costs be the respondent prosecutor's costs in the cause in proceedings in relation to those matters. 3. In any event, the respondent prosecutor should not be permitted to recover the costs of, and incidental to, the notice of motion. This is particularly so given the respondent prosecutor could have raised the point the subject of the notice of motion when the judgment was delivered by the Full Bench on 23 March 2012. 4. Whilst the applicant defendants accept that costs ordinarily follow the event, the Court retains discretion when making costs orders. 5. The proceedings in relation to the application were properly and reasonably brought by the applicant defendants. The issue of declaratory relief sought by the applicant defendants remains unsettled and it remains possible that the determination of the Court of Appeal in respect of an appeal from the decision of Haylen J in Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 may vindicate the contention advanced by the applicant defendants. 6. The three orders not pressed by the applicant defendants at the hearing on 8 March 2012 were not pressed to ensure the Court's time was not unduly wasted and that the matter could be determined expeditiously. 7. If the order for costs sought by the respondent prosecutor is made, it should be enforceable only at the conclusion of the substantive proceedings, not payable forthwith. The proceedings are not discrete, but closely related to the substantive proceedings. Consideration 10The proceedings in relation to the application are closely related to the proceedings in relation to Matter Numbers 956 and 957 of 2007. Whilst it is true the applicant defendants were unsuccessful in their application, the matter emerged in circumstances where no interlocutory appeal was available to the applicant defendants (Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8). However, as we noted in the judgment, the applicant defendants' rights of appeal are not exhausted, as the issues ventilated in the declaratory proceedings may be the subject of appeal brought by them in the event any final adverse determination at trial. 11In these circumstances the somewhat unusual course of making costs in Matter Numbers IRC 362 and 383 of 2012 costs in the cause in Matter Numbers IRC 956 and 957 of 2007 is, in our view, appropriate and we so order. Orders 12The Full Bench makes the following order: (1)Costs in Matter Numbers IRC 362 and 383 of 2012 shall be costs in the cause in Matter Numbers IRC 956 and 957 of 2007. ********** 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. Decision last updated: 27 June 2012