Rail Corporation of New South Wales v Elleray (No 2) [2015] NSWIC 12

Industrial Court New South Wales

Medium Neutral Citation: Rail Corporation of New South Wales v Elleray (No 2) [2015] NSWIC 12 Hearing dates: 25 June 2015 and 10 July 2015 (written submissions) Date of orders: 16 September 2015 Decision date: 16 September 2015 Before: Kite AJ Decision: The respondent shall pay the applicant's costs. Catchwords: COSTS – costs for the whole of the proceedings – applicant wholly successful – no reason to displace usual rules – court's discretion in exercising power to award costs – principles to be applied – no circumstances to warrant a departure from the ordinary rule that costs follow the event – respondent shall pay the applicant's costs. Legislation Cited: Industrial Relations Act 1996 s 181 Cases Cited: Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87 Milne v Attorney-General (Tas) (1956) 95 CLR 460 Nash v Glennies Creek Coal Management Pty Ltd (No 8) [2015] NSWIC 2 Oshlack v Richmond River Council (1998) 198 CLR 72 Rail Corporation of New South Wales v Elleray [2015] NSWIC 6 Category: Costs Parties: Rail Corporation of New South Wales (Applicant) David John Elleray (Respondent) Representation: Counsel: N L Sharp of counsel (Applicant)

Solicitors: Marque Lawyers (Applicant) John Stonham & Co Lawyers (Respondent) File Number(s): IRC 177 of 2014

Judgment 1. In Rail Corporation of New South Wales v Elleray [2015] NSWIC 6 the Court ordered that matter IRC 177 of 2014 be referred to the Industrial Registrar for the commencement of proceedings under s 180 of the Industrial Relations Act 1996 (NSW) ("IR Act") for punishment of the respondent's alleged contempt of the Commission. Reasons for judgment were handed down on 21 May 2015 2. On 9 June 2015, the Court received, by email, correspondence from the respondent noting that, in the course of the proceedings, the applicant had made applications in relation to costs and drawing attention to the fact that the question of costs had not been dealt with in the published reasons. Consent orders were proposed, and subsequently made, for the filing of submissions in relation to costs. Those submissions were duly received, and the question of costs was to be dealt with on the papers. This judgment deals with that question.