Stockwell International Pty Ltd v Solyali [2014] NSWIC 7

Industrial Court New South Wales

Medium Neutral Citation: Stockwell International Pty Ltd v Solyali [2014] NSWIC 7 Hearing dates: 15 December 2014 Decision date: 19 December 2014 Before: Boland AJ Decision: The Court makes the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed except to the extent that it is upheld on the question of costs at first instance. (3) The decision and orders of Acting Chief Industrial Magistrate Wahlquist to award indemnity costs is quashed. (4) The appellant shall pay the respondent's costs of the first instance proceedings on a party/party basis as agreed or assessed. (5) The appellant shall pay the respondent's costs of the appeal as agreed or assessed. Catchwords: APPEAL - Appeal from Local Court pursuant to s 197(1)(a) of Industrial Relations Act 1996 - Appeal from decision and orders at first instance by Acting Chief Industrial Magistrate granting application for recovery of money - Pro rata long service leave under Long Service Leave Act 1955 - Tests to be applied in considering claim for payment for long service leave on the ground that employee had terminated his employment on account of illness - Medical evidence not challenged at first instance - No error at first instance - COSTS - Indemnity costs awarded - Whether Acting CIM erred in failing to consider disadvantage of appellant in circumstances where appellant represented by agent who was not an Australian legal practitioner and respondent was represented by counsel and solicitor - Whether it is the practice of the CIM's court to award costs - Whether costs awarded are to be taken into account in determining whether jurisdictional limit on amount that may be awarded has been exceeded - Error in awarding indemnity costs Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Industrial Relations Amendment (Industrial Court) Act 2013 Industrial Relations (General) Regulation 2001 Industrial Relations Commission Rules 2009 Long Service Leave Act 1955 Uniform Civil Procedure Rules 2005 Cases Cited: Anderson v Crown Melbourne Ltd [2008] FMCA 152; (2008) 216 FLR 164 AWU v Sunshine Coast Private Hospital [2003] QIRComm 241 Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 British Motor Corporation v Chance [1965] AR (NSW) 364 Bronwyn Aileen Loudon v Keith Matheson Proprietary Limited [2002] NSWCIMC 87 Calderbank v Calderbank [1976] Fam Law 93; [1975] All ER 333 Colin Mooney v Northern Group (Aust) Pty Ltd [2006] NSWCIMC 33 Computer Sciences of Australia Pty Ltd v Leslie [1983] AR (NSW) 828 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Fiona Canham v 002y Wood Films Pty Ltd T/As Segers Realty [2004] NSWCIMC 47 Lisa Maree De Costa v Rhonda Wark T/a: Earth Works Real Estate [2006] NSWCIMC 7 Old v McInnes and Hodgkinson [2011] NSWCA 410 Pamela Rowles v Combined Packaging Co Pty Ltd [2005] NSWCIMC 82 Roma Marshall v Havenwax Pty Ltd Trading As Sos Visiting Nursing Service Home Help and Cleaning Agency [2005] NSWCIMC 116 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Westbus v Bartush [2000] NSWIRComm 26 Category: Principal judgment Parties: Stockwell International Pty Limited (Appellant) Mr Sezer Solyali (Respondent) Representation: B Obradovic of counsel (Respondent) Rochfort Associates Pty Limited as Agent (Appellant) Maclarens Lawyers (Respondent) File Number(s): IRC 656 of 2014