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 2005Cases 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 261Category: Costs Parties: Joanne Kelly Beavan (Appellant)
Industrial Relations Secretary (Respondent)Representation: Counsel:
Solicitors:
A T Britt (Appellant)
K A Edwards (Respondent)
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Details
- Case
- [2016] NSWIC 5
- Decision Date
CaseChat Overview and Summary
In the case of Beavan v Industrial Relations Secretary (No 3), the appellant, Beavan, appealed against a decision of the Industrial Relations Secretary. The primary dispute centred on the costs incurred during the appeal process. The case was heard in the Queensland Court of Appeal, presided over by Justices Applegarth and Byrne.
The central legal issue was the allocation of costs between the parties in the appeal proceedings. Beavan sought an order that the costs follow the event, subject to a modification, whereas the respondent, the Industrial Relations Secretary, sought an order that each party bear their own costs. The court had to determine the appropriate principles to apply in the allocation of costs, considering factors such as the success of the parties and the presence of any disentitling factors.
In its reasoning, the Court noted that the general rule is that costs follow the event unless a departure is in the interests of justice. While Beavan was successful in the ultimate result, the court considered several factors that could justify a deviation from the general rule. The court acknowledged that the original appeal was incorrectly brought under section 187 of the Industrial Relations Act 1996 and that Beavan had amended the application and abandoned certain grounds of appeal. However, these factors did not fully disentitle Beavan from receiving costs. The court also found that Beavan did not raise new issues on appeal that were fresh in substance. The Court concluded that while there were grounds to reduce costs, it was not appropriate to refuse costs entirely.
The Court ordered that the respondent pay 80 per cent of the appellant's costs of these proceedings, as agreed or, in the absence of agreement, as assessed. This order reflected the Court's view that while there were mitigating factors, Beavan's overall success in the appeal warranted a proportionate allocation of costs in their favour.
The central legal issue was the allocation of costs between the parties in the appeal proceedings. Beavan sought an order that the costs follow the event, subject to a modification, whereas the respondent, the Industrial Relations Secretary, sought an order that each party bear their own costs. The court had to determine the appropriate principles to apply in the allocation of costs, considering factors such as the success of the parties and the presence of any disentitling factors.
In its reasoning, the Court noted that the general rule is that costs follow the event unless a departure is in the interests of justice. While Beavan was successful in the ultimate result, the court considered several factors that could justify a deviation from the general rule. The court acknowledged that the original appeal was incorrectly brought under section 187 of the Industrial Relations Act 1996 and that Beavan had amended the application and abandoned certain grounds of appeal. However, these factors did not fully disentitle Beavan from receiving costs. The court also found that Beavan did not raise new issues on appeal that were fresh in substance. The Court concluded that while there were grounds to reduce costs, it was not appropriate to refuse costs entirely.
The Court ordered that the respondent pay 80 per cent of the appellant's costs of these proceedings, as agreed or, in the absence of agreement, as assessed. This order reflected the Court's view that while there were mitigating factors, Beavan's overall success in the appeal warranted a proportionate allocation of costs in their favour.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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