Supreme Court New South Wales Medium Neutral Citation: Ma v Expeditors International Pty Limited (No 2) [2012] NSWSC 1089 Hearing dates: Written submissions Decision date: 13 September 2012 Before: Schmidt J Decision: In the event that the defendant files the foreshadowed cross- claim relying on s 1317H, Ms Ma must bear its costs of the motion, as agreed or assessed. Otherwise the costs of the motion are to be costs in the cause. Catchwords: PROCEDURE - costs - costs of motion Legislation Cited: Civil Procedure Act 2005 Corporations Act 2001 (Cth) Long Service Leave Act 1955 Uniform Civil Procedure Rules 2005 Cases Cited: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Ma v Expeditors International Pty Limited [2012] NSWSC 873 McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Category: Procedural and other rulings Parties: Susanna Ma (Plaintiff) Expeditors International Pty Limited (Defendant) Representation: Solicitors: Carroll & O'Dea Lawyers (Plaintiff) DLA Piper (Defendant) File Number(s): 2012/126458 Judgment 1By judgment given on 3 August 2012, I made orders transferring proceedings from the District Court and the Industrial Court to this Court, where they are to be heard together (see Ma v Expeditors International Pty Limited [2012] NSWSC 873). This judgment deals with costs. 2Ms Ma commenced proceedings in the District Court in 2012 after she was dismissed from her employment with the defendant, in relation to an alleged breach of her employment contract. The proceedings brought in the Industrial Court, concern an alleged underpayment of long service leave entitlements under the Long Service Leave Act 1955. These proceedings were commenced on 20 April. At the hearing on 27 June the position was that both claims were to be defended and that the defendant intended to bring a cross-claim, alleging breach of the employment contract by Ms Ma, as well as breach of certain statutory obligations imposed upon her by the Corporations Act 2001 (Cth), in respect of which it will seek to recover damages. 3Ms Ma pressed for orders by which the proceedings would all be dealt with by the Industrial Court and the defendant indicated that it would consent to orders sought in the alternative, that the proceedings be dealt with by this Court. I accepted that some of the defendant's claims could only be dealt with by this Court or by the Federal Court and so made the orders transferring the existing proceedings to this Court. That permitted all of the issues lying between the parties to be heard and determined in the one set of proceedings. 4Ms Ma's case was that no order should be made against her in relation to costs given that it was not until 17 May when written submissions for the defendant were served, that notice was given that s 1317H of the Corporations Act (Cth) would be relied on and the morning of the hearing that advice was given that the defendant was in a position to file a cross-claim. In the result she had no fair opportunity to consider that development, which turned out to be the critical consideration on which the decision turned. In the alternative, it was submitted that there should be no order as to costs prior to the service of the affidavit in which the defendant's instructions were revealed. 5It was also relevant that as yet the defendant had not filed its defences or cross-claims. In the result the question of whether the s 1317H claim, or indeed any defence was viable, could not be determined. In the result the appropriate costs order was an order for costs in the cause. In the alternative, costs could be reserved until judgment on the primary claims had been given. 6The defendant's case was that the submissions put for Ms Ma did not fairly reflect the circumstances in which it had indicated that it would consent to orders that transferred the other proceedings to this Court. Its position was originally communicated by telephone on 26 April and then by letter of 11 May. It was refused for Ms Ma by letter of 14 May, in which it was advised that Ms Ma's view was that the appropriate forum was the Industrial Court, irrespective of whether a cross-claim was to be pursued. Attention was drawn to s 154 of the Civil Procedure Act 2005. In the written submissions provided by the defendant on 17 May, the Industrial Court's lack of jurisdiction to deal with the foreshadowed cross-claim, given the s 1317H claim was again raised. The motion was heard on 27 June. 7It was disputed that in those circumstances, Ms Ma had been given no fair opportunity to consider the pursuit of such a cross-claim, or that Ms Ma had been taken by surprise at the hearing. Ms Ma's pursuit of orders transferring the proceedings to the Industrial Court was at the risk that a costs order would be made against her, if she did not succeed. In the result there would be no departure from the usual order, so that the defendant would have an order in its favour as to the costs of the motion. 8The Court has a discretion under s 98 of the Civil Procedure Act and Rule 42.1 of the Uniform Civil Procedure Rules 2005, to depart from the usual order, if that is what justice demands in the circumstances. An order for costs is compensatory in nature, reflecting the vindication of a successful claim, not punitive (see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534). The conduct of a party who unreasonably pursues or persists with points which have no merit, will be relevant to the question of costs, even where that party is generally successful (see Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 122). As Ward J discussed in McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306: "22 The exercise of the court's discretion as to costs ultimately requires an assessment of what is fair in all the circumstances. Mr Priestley referred to what was said in Bowen Investments Pty Limited v TAB Corp Holdings Limited (No 2) [2008] FCAFC 107 by Finkelstein and Gordon JJ in this regard (at [5]): Costs are in the court's discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. citing also Hodge v TCN Channel 9 (No 2) [2006] NSWSC 1272 and Standard Commodities Pty Limited v Societe Cocinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496." 9Whether or not a cross-claim in which reliance is placed on s 1317H is ultimately found to be 'viable' is not determinative of the question of the costs of the motion. 10At the time of the hearing of the motion on 27 June, the defendant had not brought its cross-claim, but its proposed reliance on s 1317H and the question of jurisdiction which it raised, had been known since service of the submissions on 17 May, where that issue had been squarely raised. Thus it was that at the hearing it was accepted for Ms Ma that there was some force in the submissions advanced for the defendant as to the s 1317H claim, with the result that there would be a need to pursue that claim in either the Supreme Court or the Federal Court. It was postulated that if that claim were pursued, further steps could be taken to consolidate the proceedings. It was in those circumstances that I refused to transfer the District Court proceedings to the Industrial Court and transferred the two proceedings to this Court. 11It follows that Ms Ma pressed her case that the proceedings should be dealt with by the Industrial Court, aware that only this Court or the Federal Court has the jurisdiction to determine a s 1317H claim, that she knew the defendant intended to pursue against her. In the circumstances, that order could not sensibly be made and the Court made orders on the basis the defendant had long indicated it would consent to. 12The only reason, it seems to me for refusing to determine the question of the costs of the motion at this stage, is that as yet, no cross-claim has been filed. Were such a claim not to eventuate, it would not be just that Ms Ma be ordered to bear the costs of the motion. 13In all of the circumstances, it seems to me that this relatively unlikely possibility can fairly be accommodated by an order that in the event that the defendant files the foreshadowed cross-claim relying on s 1317H, Ms Ma must bear its costs of the motion, as agreed or assessed. Otherwise, the costs of the motion are to be costs in the cause. Order 14For these reasons I order that: In the event that the defendant files the foreshadowed cross- claim relying on s 1317H, Ms Ma must bear its costs of the motion, as agreed or assessed. Otherwise the costs of the motion are to be costs in the cause. ********** 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: 13 September 2012