Beavan v Industrial Relations Secretary (No 3) [2016] NSWIC 5

Industrial Court New South Wales

Medium Neutral Citation: Beavan v Industrial Relations Secretary (No 3) [2016] NSWIC 5 Hearing dates: 25 February and 14 March 2016 (written submissions) Date of orders: 26 May 2016 Decision date: 26 May 2016 Before: Walton J, President Decision: The Court orders that the respondent shall pay 80 per cent of the appellant's costs of these proceedings, as agreed or, in the absence of agreement, as assessed. Catchwords: COSTS – appeal against initial decision upheld on basis of error of law – contest as to costs of appeal – appellant sought order that costs follow the event subject to a modification – respondent sought order that parties pay their own costs – principles regarding costs – general rule that costs follow the event unless departure in interests of justice – appellant successful in ultimate result – appellant made out grounds of appeal after abandoning one ground – loss of first limb of ground one of the appeal not warrant reduction in costs – two disentitling factors relied upon – first ground to resist costs – amendment to application and abandonment of grounds and contentions – original appeal brought incorrectly under s 187 of Industrial Relations Act 1996 – abandonment of ground of appeal – appellant resiled from application to bring further evidence – proper basis to reduce costs but not to refuse costs – second ground – resisting costs – contention that appellant raised new issues on appeal – failure to make out issues new or fresh in substance such as to disentitle costs – one matter not raised below – not proper basis to reduce costs in circumstances of the case – orders – reject order sought by respondent – form of orders sought by appellant not appropriate – proportionate order as to costs. Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Uniform Civil Procedure Rules 2005 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 Armstrong v Boulton [1990] VR 215 Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 Beavan v Industrial Relations Secretary (No 2) [2016] NSWIC 3 Bi v Mourad [2010] NSWCA 17 Central Australian Aboriginal Congress Inc v CGU Insurance Ltd [2009] NTCA 2; (2009) 24 NTLR 222 Chapman-Davis v State of New South Wales (No 2) 2015 NSWIC 13 Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87 Hoser v Hartcher [1999] NSWSC 527 Stephen Bell v Commissioner of Police [2015] NSWIC 11 Wakim v Tadros [2011] NSWSC 308, Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 Category: Costs Parties: Joanne Kelly Beavan (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: A T Britt (Appellant) K A Edwards (Respondent)