Adam Andrew MacDougall v National Rugby League Limited

[1999] NSWSC 337

CITATION:	Adam Andrew MacDougall v National Rugby League Limited [1999] NSWSC 337
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	1584/99
HEARING DATE(S):	14/04/1999
JUDGMENT DATE:	14 April 1999
PARTIES :	Adam Andrew MacDougall (P) National Rugby League Limited (ACN 082 088 962) (D)
JUDGMENT OF:	Santow J

COUNSEL :	M White (P) R S Hollo (D)
SOLICITORS:	Herrald Evans Brew by their city agent: Turner Whelan (P) Minter Ellison (D)
CATCHWORDS:	COSTS — Reserving costs — Varying cost order when Equity proceedings effectively replaced by proceedings in the Industrial Relations Commission.
DECISION:	Reserved costs replaced by cost order.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 1584/99

ADAM ANDREW MACDOUGALL
Plaintiff

NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962)
Defendant

JUDGMENT
14 April 1999

1 This is an application by the Defendant as applicant for costs now to be ordered which were reserved by Hodgson CJ in Eq, following the unsuccessful application by the Plaintiff for interim relief.
2 The circumstances are that the Plaintiff has subsequently commenced proceedings in the Industrial Relations Commission on the basis that wider powers can be brought to bear by that commission than would be available were the matter to proceed to a final hearing in the Equity Division of this Court. The Plaintiff is unable to say at this point whether or not all the issues before the Equity Division would have been brought before the Industrial Commission though it does appear that other issues may also be dealt with by the Industrial Commission.
3 Essentially what the Plaintiff says is that the purpose of reserving costs being ordinarily to enable the court that deals with the matter on a final basis to have regard to the matters then fully ventilated in deciding cost orders, that it follows that the proper order which I should now make is either to leave the existing orders undisturbed or, to give leave for the matter to come back to this court after the disposal of the Industrial Commission hearing.
4 The Defendant, as applicant before me, contends that the inescapable fact is that the Plaintiff failed in his application for interim relief and has effectively abandoned the Equity proceedings for proceedings in the Industrial Commission (though concededly the only order made by consent to-day is a stay of the Equity proceedings pending final determination of the IRC proceedings). Given that the IRC proceedings cannot be said necessarily to deal with the self same matters in the self same way as this Court would deal with the proceedings if pursued on a final basis, it cannot be appropriate for this Court now to continue to reserve costs from the unsuccessful interim application. Rather the normal rule of costs following the event should no longer be displaced nor suspended, especially where the “event” is the failure of an application for interim relief, where the hurdles of proof are lower than on a final hearing.
5 One way of testing the matter would be to ask what would likely have been done had the Plaintiff announced prior to delivery of judgment in the interim proceedings that it would be commencing final proceedings in the IRC, such that, at the least, any final proceedings in the Equity Division would be adjourned, though in reality effectively abandoned. In my view, the likely outcome would be that orders for costs would not have been reserved but would have been made immediately, simply because one could not assume that the IRC proceedings would simply be a ventilation of the very same issues as would have been before the Equity Division on an application for final relief. While there might have been a substantial overlap, that is by no means the same thing nor can it be assumed. If it were otherwise, why commence proceedings in the IRC instead of proceeding in this Court?
6 Accordingly, I consider that the appropriate order now to be made is that the Plaintiff should pay the Defendant’s costs on the interim application before Hodgson CJ in Eq. and thus that order substituted.
7 It also follows that the costs of to-day’s application being substantially in relation to the earlier matter of costs is to be paid by the Plaintiff.

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I certify that this and the 1 preceding pages are a true copy of the reasons for judgment herein of The Hon. Justice Santow

Associate
Date: 14 April, 1999

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