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)   Solicitors: Marsdens Law Group (Appellant) Legal Services Branch, Department of Family & Community Services NSW (Respondent)
File Number(s):	2016/18022 (IRC 210 of 2015)
Decision under appeal	Court or tribunal: Industrial Relations Commission of New South Wales Jurisdiction: Industrial Relations Commission of New South Wales Citation: Ex Tempore decision delivered 23 March 2015 Date of Decision: 23 March 2015 Before: Newall C File Number(s): IRC 531 of 2014

Judgment

1. On 10 February 2016, the Court determined an amended application for leave to appeal and appeal (‘the amended appeal’) brought by Ms Joanne Kelly Beavan (‘the appellant’) pursuant to s 197B of the Industrial Relations Act 1996 (‘the Act’) against a decision of Commissioner Newall in matter number IRC 531 of 2014: Beavan v Family and Community Services (Housing NSW) [2016] NSWIC 1 (‘Beavan (No 1)’). The Court found that the reasoning in the impugned decision was possessed of appealable decisions on questions of law and errors had been demonstrated in that respect (see [163] to [165] of Beavan (No 1)).

2. The Court deferred, however, making orders until further hearing from the parties. At [166] to [171] of Beavan (No 1) the Court observed:

[166] The appellant sought the following relief in paragraph 10 of the appeal:

10.1 Leave to appeal granted.

10.2 The appeal is upheld.

10.3 The Commissioner's orders of 23 March 2015 are quashed.

10.4 The proceedings are returned to the Commissioner for programming and determination.

[167] Given the conclusions reached in [20] of this judgment, the appropriate form of order for the first of the claims is that, if leave to appeal is required, the leave is granted.

[168] The form of relief sought in paragraph 10.2 should be granted given the errors of law found in this judgment.

[169] Turning to the third ground of relief, the errors of law found in this judgment are such that the orders made by the Commissioner at first instance cannot stand. There is no discussion before the Court as to whether the orders should be quashed or set aside. In the circumstances, it would appear appropriate to make the order sought in paragraph 10.3, namely, that the orders of the Commissioner made on 23 March 2015 are quashed.

[170] That brings to consideration the last order sought.

[171] It was not entirely clear whether the final order sought by the appellant was predicated upon the provisions of s 197B(2)(a), namely, a remitter of a matter to the Commission for determination in accordance with this judgment or an alternative form of order that the matter be determined by this Court as if the Court were re-exercising the discretion exercised by the Commissioner under r 12.7. Given doubts may exist as to whether the Court may exercise the latter power under s 197B(2), it seems appropriate the Court give the parties a short opportunity to make submissions as to the form of relief that is appropriate having regard to this judgment. A related consideration would be whether any other orders should be made under s 197B(2) such as the expedition of any proceedings or other procedural matters.

3. In the result, the Court made the following direction in furtherance of the final disposal of the matter (at [172]):

The appellant shall file and serve further submissions in writing as to the relief claimed (and any amended orders sought) within seven days of this judgment and any reply by the respondent shall be filed and served within a further seven days. Accordingly, I direct that the appellant file and serve any further submissions as to the relief claimed in the light of this judgment on or before 4pm 17 February 2016. Any further judgment as to orders to be made in the disposition of the appeal will be undertaken on the papers unless there is an application for a short oral hearing or the Court forms a view that it would be assisted by further oral submissions of the parties.

4. In consequence of the receipt of submissions from the parties in conformity with those directions, the Court issued a further judgment granting relief in the proceedings: Beavan v Industrial Relations Secretary (No 2) [2016] NSWIC 3 (‘Beavan (No 2)’). The following orders were made in that judgment at [10]:

(1) The title of the judgment in Beavanv Family and Community Services (Housing NSW)[2016] NSWIC 1 shall be amended to: Beavanv Industrial Relations Secretary (No 1)[2016] NSWIC 1.

(2) To the extent that leave is required, leave to appeal is granted.

(3) The appeal is upheld.

(4) The order made by Commissioner Newall of 23 March 2015 is quashed.

(5) The matter is remitted to Commissioner Newall for determination in accordance with the decision of the Court in Beavan(No 1).

(6) Costs are reserved.

(7) The appellant shall file and serve any submissions in respect of costs on or before 4.00pm, Tuesday 15 March 2016. Liberty to apply is granted to each party to make submissions in reply in writing. In the exercise of such liberty, advice should be provided as to the attitude of the opposing party in that respect and a draft timetable.

(8) Any judgment as to costs will be made on the papers unless there is an application for a short oral hearing by either party or the Court forms a view that it would be assisted by further oral submissions from the parties.

5. The sixth to eighth orders set out above corresponded with the following aspects of the judgment of the Court in Beavan (No 2) at [6] and [7]:

6 The appellant also sought an order that the respondent pay the appellant’s costs as agreed or, if disputed, as assessed pursuant to s 181(1) of the Act, s 98 of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005. No submissions were advanced in support of that application (it may be noted that no orders were made to that effect in Beavan(No 1)).

7 The respondent resisted the appellant’s application for costs, submitting that the Court should order each party to bear their own costs of the appeal. The respondent made reasonably lengthy submissions in support of that position. It is appropriate that the Court receives submissions from the appellant before determining the issue of costs. Hence, costs shall be reserved and a timetable established to resolve that issue. In the absence of an application to do otherwise, the question of costs will be determined on the papers.

6. The reference to the “reasonably lengthy submissions” in the extract at [7] of the judgment in Beavan (No 2) is a reference to the outline of submissions filed by the respondent on 25 February 2016 (those submissions will be further discussed below and shall be described hereafter as ‘the respondent’s submissions’).

7. In consequence of the orders made in Beavan (No 2) the Court received an outline of submissions by the appellant as to costs filed on 14 March 2016 (‘the appellant’s submissions’) and subsequently an intimation from both the respondent and the appellant that the issue of costs should be decided on the papers. (It should be noted that the appellant adopted this approach on the basis that the respondent did not file a reply submission on costs. As no such submission was received the appellant’s position is as recorded.)

Issues as to costs

8. The resultant written submissions revealed the competing applications of the parties. The respondent made the aforementioned application that both parties bear their own costs (see [5] of this judgment). The appellant sought the following orders:

…

(a) Subject to (b) and (c) below, the Respondent is to pay the costs of the Appellant as agreed or, in the absence of agreement, as assessed.

(b) No costs be ordered in respect to the costs associated with the preparation of the Appellant’s fresh evidence which was not relied upon at the proceedings; and

(c) No costs are ordered in respect to the costs associated with the preparation of the Appellant’s first appeal.

(It should be noted that these orders were extracted from paragraph 3 of the appellant’s submissions. There is a typographical error earlier in that paragraph which refers to “the Respondent” seeking various orders which was plainly intended to be a reference to orders sought on behalf of the appellant.)

9. This judgment concerns the resolution of the reserved question of costs.

Relevant aspects of the judgment in Beavan (No 1)

10. In paragraph 15 of the appellant’s submissions there was a summary of the Court’s judgment in Beavan (No 1). Rather than adopting that summary, however, I propose to refer to particular aspects of the judgment in Beavan (No 1) which bear upon the question of costs (although I will return to parts of the summary later in this judgment).

11. At the outset of that judgment the Court set out aspects of the history of the proceedings below and those of the appeal.

12. In relation to the proceedings below, reference should be made to [2] to [5] and [7] of the judgment which are extracted below:

2 By a notice of appeal filed on 2 July 2014, the appellant brought an appeal against the decision to dismiss her pursuant to s 98 of the Industrial Relations Act 1996 (‘the Act’) (‘the notice of appeal’). The appellant sought, inter alia, that the Commission “set aside the employer’s disciplinary action decision”, and order she be reinstated to her former position or be employed in another position. The notice of appeal nominated “Family Community Services - Housing NSW” as the “Department/Authority/Organisation” which had dismissed the appellant. (The notice of appeal filed in this matter nominated a similar entity as the respondent to the proceedings.)

3 Those proceedings were the subject of an unsuccessful conciliation before Commissioner Tabbaa and ultimately came before Commissioner Newall for determination pursuant to Div 4 of Pt 7 of Ch 2 of the Act.

4 During the course of the proceedings at first instance, the respondent, as described above, filed, on 18 March 2015, a notice of motion (‘the motion’). By that motion, the respondent sought that the matter be dismissed “for want of prosecution under Reg. 17.5 of the Industrial Relations Commission Rules 2009 (NSW)”.

5 The reliance upon r 17.5 of the Industrial Relations Commission Rules 2009 (‘IRC Rules 2009’) was misplaced. Rule 17.5 of the IRC Rules 2009 fell in Pt 17 of those rules and concerned civil penalty proceedings under s 357 of the Act which were plainly inapplicable in the case before the Commissioner. Reference was made during the course of the proceedings to r 17.4 which concerned dismissal for want of prosecution but again this rule concerned a failure by a prosecutor to appear or proceed with a matter in civil penalty proceedings. (Issues associated with the operation of rr 17.4 and 17.5 of the IRC Rules 2009 and r 12.7 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) were discussed without resolution in Chivers v Commissioner of Police [2014] NSWIRComm 7 at [6] and [24].)

…

7 It was accepted in these proceedings, correctly in my view, that an application to dismiss for want of due dispatch in relation to proceedings brought under Pt 7 of Ch 2 of the Act was governed by r 12.7 of the UCPR: see s 4(1) and Sch 1 of the Civil Procedure Act 2005(‘CP Act’)and r 1.5(1) and Sch 1 of the UCPR. However, the parties accepted that the irregularities in the motion (the reliance on the IRC Rules 2009 and the particular parts thereof, the reference to dismissal for want of prosecution rather than dismissal for want of due dispatch and the reference to “Reg.” presumably meaning a regulation) was not an issue in these proceedings and that the Commissioner’s decision should be reviewed in the light of the requirements of r 12.7 of the UCPR.

13. As to the course of these proceedings, reference should initially be made to the judgment at [11] as follows:

By an application for leave to appeal and appeal filed 13 April 2015, the appellant appealed against the aforementioned ex tempore determination by the Commissioner. The proceedings were initially brought pursuant to s 188 of the Act but, by an amended appeal filed on 22 May 2015, the appellant sought leave to appeal and appeal pursuant to s 197B of the Act.

14. The reference to “the aforementioned ex tempore determination by the Commissioner” in that extracted paragraph refers to the impugned decision of Commissioner Newall given on 23 March 2015.

15. The Court then observed that the judgment concerned the determination of the amended appeal but referred to some relevant aspects of the history of the proceedings in which a shift in the approach of the appellant as to the prosecution of the appeal occurred. In doing so the Court dealt with the issue of leave to appeal. The relevant passages of the judgment are at [16] to [20] which appear below:

16 The original notice of appeal specified the questions raised by the appeal with little regard to whether those matters constituted decisions on questions of law.

17 Further, the early stages of the proceedings before the Court under the original notice of appeal saw attention being fixed upon whether leave to appeal was required in order to bring the appeal, whether grounds existed for the grant of leave and whether there was a capacity in the Court to receive further evidence on the appeal. The matter was fixed for preliminary hearing to consider those matters.

18 During the interlocutory hearing before the Court with respect to those preliminary matters (on 14 August 2015) questions were raised by the Court as to the relationship between those matters and an appeal under s 197B of the Act. It was in that context that the issues raised for preliminary consideration were either abandoned or eventually evaporated for two reasons.

19 First, the appellant abandoned (then and by latter submission) her application to call fresh evidence.

20 Secondly, the issue of leave later evaporated during the course of submissions of the parties. Consistently with the intimation given by the Court in Schoeman(at [131]), the respondent contended that leave to appeal was not required. Whilst the appellant was equivocal as to that legal question, her counsel, Mr A T Britt, accepted that the Court may adopt the approach in Schoeman (at [134]) whereby the Court may express the view that, if leave to appeal is required, it would, in the circumstances of the matter, grant it. That is the approach I adopt in this matter (although I maintain the earlier observations made in Schoeman). Whilst the principles to be applied to applications to dismiss proceedings for want of prosecution under r 146 of the IRC Rules 1996 have received attention in this Court, the application of r 12.7 of the UCPR has received less consideration, particularly in the context of proceedings before the Commission under Div 3 of Pt 7 of Ch 2 or, in a wider sense, Pt 6 of Ch 2. In that sense, the consideration of the relevant principles under r 12.7 of the UCPR in the present context is important.

16. Reference should also be made in this respect to [21] of the judgment which was in the following terms:

The amended appeal represented a recasting of the appeal to bring the matter into conformity with the dictates of s 197B of the Act.

17. The consideration of Beavan (No 1) should be interrupted at this juncture with an elaboration upon the passages of that judgment set out in [16] and [17] of this judgment above.

18. The original notice of appeal was brought under s 188 of the Act although Mr A Britt of counsel, who appeared for the appellant, indicated upon the first appearance that the notice of appeal should have properly referred to s 187 of the Act.

19. The matter originally proceeded before Kite AJ on 23 April 2015 for directions at which time the issue of the jurisdictional foundation for the appeal was raised by the Court and, in particular, a question was raised as to whether the appeal should properly have been brought under s 197B.

20. The appellant thereafter filed the amended appeal (on 22 May 2015). By that amendment, the appellant brought the proceedings under s 197B. The grounds of appeal were substantially amended.

21. Arising out of further proceedings before Kite AJ (on 25 May and 2 June 2015), it was agreed that certain questions should be posed with respect to the amended appeal. Those questions were as follows:

2. On 2 June 2015 the Court made directions concerning a number of interlocutory matters, they being:

(a) Whether the Appellant requires leave to appeal;

(b) If the answer to (a) is yes, whether leave should be granted; and

(c) Whether the Appellant may rely on new evidence in an appeal pursuant to s197B.

22. The third such question was viewed by both parties as preliminary in nature although the respondent contended that new evidence was not able to be adduced under s 197B of the Act.

23. Orders were made for the filing of submissions as to those questions resulting in written submissions for the appellant being filed on 9 July and (in reply) 3 August 2015 and written submissions for the respondent being filed on 7 and 11 August 2015. The appellant also filed an affidavit of Shane Robson, a solicitor in the employ of Marsdens Law Group, on 9 July 2015 attaching medical reports from Dr Charles Rhee, the appellant’s treating doctor. This represented the fresh evidence the appellant sought to bring if the third question was answered in the affirmative. The affidavit was included in the appeal book filed by the appellant. However, at the hearing of the appeal, the affidavit, together with other documents, was, with the appellant’s acquiescence, excluded from the appeal book as the affidavit was not relied upon in the proceedings.

22. When the matter was called before the Court as presently constituted, issues were raised about the appropriateness of any question being answered in a preliminary way rather than any such issues being addressed at a hearing of the appeal proper. In this respect, there was some further discussion as to whether further evidence may be admitted in an appeal brought under s 197B, other than evidence relevant to the resolution of an appeal from a decision on a question of law (in other words, relevant to the resolution of any question of law). Directions were made for the filing of further submissions to accommodate those considerations. The submissions, so filed, addressed, therefore, the whole of the issues on the appeal.

23. Subsequently, the various issues raised by the questions fell away as discussed in the extract from Beavan (No 1) appearing at [15] of this judgment.

24. I return, then, to the judgment proper in Beavan (No 1).

25. At [23] the Court set out the grounds of the amended appeal as follows:

The grounds of appeal were stated as follows:

In dismissing the Appellant’s appeal for want of due dispatch the Commissioner made the following errors in the proceedings on a question of law:

(a) erred in purporting to apply the principles set out in Aon Risk Management v Australian National University(2009) 258 ALR 14 in respect to the Court’s discretion;

(b) The Commission dismissed the proceedings without taking into account s163(1)(c) of the Act; and

(c) The Commission applied the wrong tests to dismiss proceedings pursuant to Rule 12.7 of the UCPR.

28. It was then observed, as to the amended appeal, that the appellant had effectively abandoned the second ground of appeal and no longer sought leave to bring fresh evidence (in its further submissions filed on the appeal proper the appellant had abandoned part of its earlier written submissions pressing for the receipt of fresh evidence, but the appellant’s final position as to the receipt of fresh evidence only became entirely clear at the hearing of the appeal). At [26] the Court stated:

Secondly, during the hearing of the appeal counsel for the appellant effectively abandoned the second ground of the appeal (ground (b)) by conceding that the appellant had acted in conformity with the requirements of s 163(1)(b). Further, as mentioned above, the appellant did not seek leave to call further evidence on the hearing of the appeal pursuant to s 191(2) of the Act.

(As the respondent correctly pointed out, this passage of the judgment should properly refer to s 163(1)(c) being the section referred to in the amended appeal: an erratum will be issued accordingly for Beavan (No 1)).

29. For the balance of the judgment in Beavan (No 1) the Court referred to ground (a) as the first ground of appeal and ground (b) as the second. I shall adopt the same descriptors for the balance of this judgment.

30. The issues under s 197B arising out of those grounds were refined by the submissions of the parties on the appeal. The joinder of issues was captured at [70] of the judgment as follows:

The respondent accepted, correctly in my view, that the impugned aspects of the decision of the Commissioner constituted decisions on the question of law. It was not necessary for the question of law to be explicitly stated by the Commissioner as it is sufficient if the decision is such that a resolution of a question of law is manifested by it (although in this case the Commissioner expressly stated a view regarding Aon Risk Services). The appellant identified conclusions reached by the Tribunal below with respect to some issues which required for their determination the identification of a relevant matter of law. First, by the reliance on an application of Aon Risk Services, it was said the Commissioner posed the wrong question (the attention should instead have been directed to the operation of the CP Act and UCPR and the balancing of considerations) or misapplied Aon Risk Services. Secondly the Commissioner failed, it was said, to undertake the balancing exercise required to be undertaken under r 12.7 (and s 56 of the CP Act) and, in consequence, failed to have regard to relevant considerations arising therefrom (additionally it was contended the Commissioner took into account an irrelevant factor).

31. Before turning to the Court’s resolution of those grounds it is appropriate to refer to one aspect of the Court’s review of the proceedings before Newall C at [35] as follows:

In his submissions Mr Tully referred to the illness of the appellant. Mr Tully acknowledged that there had been “a little bit of slippage in terms of the timetable” and that the respondent had not objected to the delay, if not encouraged the delay. He argued that the respondent could not now complain. He said there were two periods, the first in which there was consent to adjournments and the second in which the delay was occasioned by the appellant’s ill health which had been advised to the respondent. The reasons advanced for the second period was “essentially … the applicant’s ill health”. The Commissioner was taken to parts of the medical evidence. Mr Tully pointed to the evidence of the appellant that she was seeking another or further medical certificate and that she was “hopeful of being able to assist and provide evidence to the [Commission]”. A document was produced in which the appellant had offered her solicitors a “prognosis supported on medical evidence that she [expected] to be able to complete her preparation within the next four weeks”. The appellant had been giving instructions to her solicitors regarding adjournment and had a conference with counsel in late 2014. After submitting that the respondent may need some additional time to put on evidence, counsel submitted:

I don’t see any particular reason why if the matter – no reason why the matter couldn’t progress fairly readily and at a prompt speed from this day forward and certainly the difficulty with respect to any sort of special prejudice that might be experienced by a future retirement of one of the witnesses that are involved, if that matter were listed for hearing and dealt with very quickly, I can’t see that as being a particular obstacle to the conclusion of the proceedings.

The appellant conceded that the reasons for delay had not been apparent to the respondent until the day of the hearing. The “applicant accepts that [she] did not relist the matter before the Commission” and “possibly should have done so”. However, the respondent was also in default in this respect. Further, it was indicated that the appellant would accept a guillotine order.

32. As to the first ground of the amended appeal, the Court identified that there were two limbs to the appellant’s challenge. This was described at [114] as follows:

By the first limb of the appellant’s challenge to the decision below, it was, in substance, contended that the Commissioner had erred in applying the judgment in Aon Risk Services to the application under r 12.7 before him (including the Commissioner’s regard to the future despatch by the appellant). Alternatively, it was submitted that Newall C had failed to identify important distinctions between the present proceedings and those under consideration inAon Risk Services, both as to subject matter, the nature of the issues and underpinning facts and circumstances (in particular, in contrast to the circumstances under consideration in Aon RiskServices, there was no extant or scheduled hearing in the proceedings below at the time the motion to dismiss was heard by the Commissioner).

33. As to the first limb the Court found at [118] to [120]:

118 It would have been preferable in the ordinary course for the Commissioner to refer to, and apply, the guidelines set out in Hoser and subsequent decisions in his adjudication of the application below, but he received no assistance from those appearing as to relevant principles. In any event, in my view, the reliance by the Commissioner upon the general principles discussed by the plurality in Aon Risk Services as to the consequences of delay and the resultant implications for the administration of justice did not, prima facie, constitute an error in the decision below: Pacanowskiat [27] and [28], particularly where he thereafter proceeded in his decision to engage in a discussion of discretionary factors. The Commissioner did not disclose error in observing, by analogous reasoning to that adopted by the plurality in Aon RiskServices, there was a wider discretion to dismiss proceedings for want of prosecution than had hitherto been the case, provided he ultimately undertook a balancing exercise in accordance with relevant principles.

119 The principles to which the Commissioner referred as arising from the judgment of the plurality in Aon RiskServiceswere, as earlier elaborated, based upon the objectives provided in the rules of court. The plurality found ss 56 to 60 of the CP Act were a relevant counterpart to those rules (at least in terms of the overriding purpose to facilitate the just resolution of civil proceedings with minimum delay and expense in order to reduce the deleterious effect of delay both to the immediate parties and other litigants).

120 Given that it was incumbent upon the Commissioner to have regard to the provisions of ss 56 to 58 of the CP Act in the exercise of his discretion under r 12.7, as a matter of logic the adoption of principles which appear to derive from a similar source or heritage (as the rule considered in Aon Risk Services) would not, on its face, constitute error. A similar conclusion may be reached by direct reference to the provisions of ss 56 to 58, which confirm that it was not irrelevant to have regard to the principles extracted by the Commissioner from Aon RiskServices. This may be illustrated by a brief reference to the subject rules below.

34. Further, reference should be made to conclusions of the Court at [123] as follows:

Contrary to the submissions of the appellant, these same considerations warranted the Commissioner examining whether the appellant would, if the motion were dismissed, proceed with due despatch in the future. …

35. The Court then identified that the aforementioned considerations did not entirely deal with the first ground of the amended appeal as it was necessary to examine the alternative or second limb of the appellant’s challenge to the impugned decision. This discussion was commenced at [124] as follows:

These considerations do not, however, dispose of the first ground of the appellant’s appeal as it submitted, in the alternative, that, even if some of the principles stated in Aon Risk Services may have been broadly relevant to the application before the Commissioner, he failed to distinguish that authority having regard to the facts and circumstances of this matter which were said to differ to those found in Aon Risk Services. In particular, the Commissioner failed to appreciate that the principles in Aon Risk Services were developed in circumstances where an amendment and adjournment were sought with respect to a part heard matter - circumstances distinguishable from the present where no hearing had been scheduled. This consideration was also relevant to the issue of prejudice.

36. After reviewing Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; 258 ALR 14 (‘Aon Risk Services’); Wakim v Tadros [2011] NSWSC 308, Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261, Hoser v Hartcher [1999] NSWSC 527 (‘Hoser’) and Bi v Mourad [2010] NSWCA 17, the Court accepted the second or alternative limb of the appellant’s first ground of the amended appeal for two reasons (at [131]) as follows:

…

(1) The Commissioner did not expressly take into account or weigh in the exercise of his discretion the fact that no hearing dates had been set down in the proceedings before him. There is no proper basis to infer he had regard to that consideration. The very nature of the observations the Commissioner made with respect to the applicable principles from Aon Risk Services, namely that judicial resources would be wasted and there would be an impact upon other litigants, would strongly suggest otherwise as those observations concern a loss or displacement of time allocated for hearing by the Commission.

(2) The Commissioner failed to recognise that the plurality in Aon Risk Services had specifically provided that the application of the principles to which they referred, whilst generally applicable to civil proceedings, depended upon the facts and circumstances of a case. In particular, the plurality recognised that it was necessary to have regard to the stage of the proceedings including whether a trial had commenced or was scheduled to commence, the very consideration, as I have found, the Commissioner did not have regard to in the matter below. In this sense, in so far as Aon Risk Services was applicable to the proceedings below, the Commissioner misapplied it. His decision on a question of law, in this respect, is erroneous (a consideration I will discuss further at the conclusion of this judgment).

37. The discussion of the second ground of the amended appeal commenced at [132] of the judgment in Beavan (No 1) as follows:

The appellant contended, on a broader basis in the second ground of appeal, that the decision at first instance did not represent a proper balancing of the prejudice to each party and, in that light, failed to recognise that justice demanded the application not be dismissed. Indeed, the appellant went so far as to contend that the only matters the Commissioner had regard to below were those which were adverse to the appellant.

38. The Court commenced that analysis by first identifying that the Commissioner had not had regard to the absence of a scheduled hearing in the impugned decision. This was said to also relate to the second limb of the first ground of the amended appeal.

39. After setting out the circumstances of the proceedings before the Commissioner (and prior to that the Deputy Industrial Registrar) the Court made the following observations at [138] concerning that matter as follows:

It was necessary to achieve a balance between the need for compliance with directions in order to efficiently dispose of the proceedings (and maintain compliance with the practice note given that delay may affect the proper disposition of the application for reinstatement or reemployment) with the consideration that, as at the hearing of the motion, no scheduled trial dates (or a trial per se) were affected by the default (again, at the time of the hearing of the motion, hearing dates were not even potentially affected as no dates had crystallised following inquiries of the legal representatives as to dates). Thus, it was available to the Commissioner, in lieu of dismissing the matter, to set hearing dates (subject to the limitation of available Commission resources which was referred to by the Commissioner) which could be maintained by guillotine order (offered in the proceedings below by the appellant’s counsel) without any displacement to existing hearing arrangements in the immediate case or otherwise. This factor had to be weighed in the interests of justice, but was omitted because the issue received no attention, most likely due to the focus upon the particular factors said to arise from the judgment inAon Risk Services. A question that should have been asked in this context was, what prejudice would the respondent suffer in the event a guillotine order, as proposed by the appellant’s counsel, was made in correspondence with the matter being listed for hearing?

40. There was then a discussion of the facts and circumstances of the matter more generally (at [141]) before the Court turned specifically to the question of prejudice.

41. Particular reference might be made to certain sub-paragraphs of [141] of the judgment.

42. At [141](7) the Court described the two explanations offered by the appellant for delay as follows:

The Commissioner properly had regard to the explanation proffered by the appellant for delay: Hoser at [22(3)]. Two explanations for delay were proffered below: the delay resulted from the consent of the parties to vary the timetable for the filing of evidence via alternative draft orders extending the time for the appellant to file her evidence (albeit ones not filed before the Commission or made the subject of an application for extension of time); and illness.

43. As to the first of those explanations, the Court considered (at [141](8)) the issues arising with respect to that explanation and, in the course of doing so, dealt adversely with a submission by the appellant that the Commissioner had only taken into account factors adverse to the appellant in his weighing process. An extract of that passage of the judgment appears below:

As to the first of those explanations, the evidence disclosed that there was agreement between the parties to extend the programme for the filing of the appellant’s evidence and other materials until 27 February, the last extension deriving from the appellant’s legal representative advising the respondent on 4 February that the appellant was ill. It is not entirely clear how the Commissioner dealt with this aspect of the matter. He certainly indicated that the extensions by consent could not be held against the defendant but, in the course of considering whether orders had been complied with, indicated that there had been multiple defaults and there was an obligation for the Commission to be advised of default and applications made for an indulgence to extend time. These competing considerations were not reconciled in the decision. Depending upon how this issue is resolved, the Commissioner’s approach, in this respect, may, in part, represent a rebuttal to the appellant’s contention that he only took into account factors adverse to the appellant in his weighing process. Further, there are other indications that the Commissioner did have regard to factors in favour of the appellant. Save for the issue just mentioned (if the Commissioner did, in fact, examine this as a matter favourable to the appellant), the Commissioner also examined the appellant’s explanation for delay and whether it was clear she would put on her evidence in the future, albeit forming views adverse to the contentions made on behalf of the appellant in both respects.

44. It is appropriate that mention also be made to the Court’s approach to acquiescence by the respondent in delay as a factor going to prejudice. The Court observed the following at [141](9):

The first explanation is relevant to the consideration of prejudice. A defendant who takes no steps to secure progress of the proceedings or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will bring an end to the proceedings or strengthen a case for a strike out runs a risk that that very behaviour will operate to the defendant’s disadvantage: Stollznowv Calvert(1980) 2 NSWLR 749 at 754 and Hoser at [24(5)]. Here the respondent did take active steps with respect to the progress of the proceedings but did so by entering into formal agreements with the appellant to extend time for the appellant to put on her case. It seems to me that is a factor going to whether the respondent, the party complaining about the lack of progress, may suffer prejudice. The respondent can hardly complain about delay occasioned by its acquiescence or waiver.

45. As to prejudice, the Court found the prejudice experienced by the respondent was minor or insignificant in the following passage from Beavan (No 1) at [145]:

It appears to me that the prejudice experienced by the respondent, on the evidence below, was minor or insignificant at the requisite time (that is, when the motion was heard). Mr Aslanis filed a lengthy statement on 16 October 2014. There is no evidence that, if the matter extended beyond the date of his retirement, he would not make himself available to give evidence or that there may be some particular difficulty in summonsing him to give evidence, for example, due to age, ill health or some geographic relocation. Perhaps more importantly, Mr Cureton’s evidence was led on 23 March 2015, some three months before Mr Aslanis’ retirement. The prejudice, such as it was, may have been avoided by guillotine orders having the effect of compelling the appellant’s evidence to be put on in such a way as would permit a hearing of the matter in which Mr Aslanis’ evidence was taken prior to his retirement (assuming hearing dates could be found before that date). No consideration appears to have been given as to whether a hearing of the matter was, in fact, available prior to the retirement date.

46. The Court found that the Commissioner was required to make an assessment of the veracity and significance of the prejudice asserted by the appellant in the impugned decision but his reasons for decision did not reveal such an assessment had been made. Nor did the reasons refer to the prejudice suffered by the appellant as a result of being deprived of an otherwise valid claim. This was discussed in the following passages of the judgment at [147] and [148]:

147 The appellant contended that she suffered prejudice by being deprived of an otherwise valid claim and that the prejudice, so described, was severe because statutory time limits precluded a fresh application being brought by her after dismissal. It was submitted that the Commissioner failed to take into account this consideration, a proposition rebutted by the respondent on the basis that, even though the Commissioner did not expressly allude to the matter, he must be taken as having an understanding of the impact of his decision to dismiss.

148 It is true that the Commissioner did not specifically allude to this consideration regarding prejudice. However, I do not accept that the Commissioner, given his experience, would not be cognisant that a prejudice would arise from the dismissal of a valid claim and so much may be inferred from his decision. However, one may be less sanguine about particular consideration being given below to the fact that the applicant would be precluded from bringing fresh proceedings in the absence of any reference to the matter by the Commission. I do not consider the Commissioner’s statement at the conclusion of his decision that he was “simply not prepared to extend the commission’s resources further to permit this matter to continue itself before this tribunal” would support a contention (although the respondent did not refer to this particular aspect of the Commissioner’s decision) that the Commissioner was cognisant in weighing prejudice that the appellant’s case would be extinguished as a result of being out of time. This is because the words used by the Commissioner, namely, “continue itself before the tribunal”, appear to make reference to the actual proceedings before him.

47. The Court concluded there was a proper legal foundation for the appellant’s submission in this respect (that is, the order for dismissal below would extinguish a valid claim without any capacity to bring a fresh claim) and then dealt with the implications as to prejudice as follows at [157] to [158]:

157 Neither party directly addressed the question as to whether the prejudice deriving from a dismissal of a valid claim which might be statute barred if dismissed would heighten the prejudice to an applicant, although this is implicit in the appellant’s submissions. In my view, that conclusion must follow; a conclusion supported by the decision of Bergin CJ at Eq in Baffico at [80].

158 Hence, whilst the Commissioner did, no doubt, have regard to the fact of the prejudice to the appellant arising from the dismissal of a valid claim, I do not consider that the Commissioner balanced, in the exercise of his discretion under r 12.7, the prejudice to the appellant occasioned by the fact that the dismissal of the valid claim would result in no prospects for the bringing of fresh proceedings of the character found in her application below and, therefore, the appellant was ultimately precluded from a hearing of her application under Pt 7 of Ch 2 on the merits. In other words, the Commissioner did not balance or sufficiently disclose in his reasons that he had balanced, in accordance with the requirements of r 12.7 and ss 56 to 58 of the CP Act, the prejudice to the appellant arising, in this respect, from the dismissal of the proceedings in accordance with the requirements of r 12.7 and ss 56 to 58 of the CP Act. (As this issue was not raised below there may not have been a sufficient foundation to support the appeal in this respect. However, given the likely limits of available relief in this appeal, there is utility in pronouncing upon the error in this respect.)

48. Having found error with respect to the relevant balancing exercise the Court went on to consider and reject a further contention by the appellant that the Commissioner had regard to an irrelevant factor. This conclusion was set out at [159] as follows:

For completeness I will deal with the final factor identified by the appellant as indicating that the Commissioner did not properly engage in the balancing process indicated by the judgment in Hoser. It was submitted that the Commissioner had regard to an irrelevant factor in his considerations in that he inappropriately took into account that the appellant had failed to inform the Commission as to the fact of and reason for delay. I do not accept this contention for the reasons earlier advanced, namely, that the practice note required the appellant to give notice of changes in directions or to seek some alleviation of the programme.

49. In summary, as to both the first and second grounds of the amended appeal, the Court reached the following conclusions at [163] to [165]:

163 Ultimately, the Court has found above that the reasoning of the Commissioner is possessed of an appealable decision on questions of law, namely, that the Commissioner reached conclusions with respect of matters that required, for their determination, the identification of a relevant matter of law and an error has been demonstrated with respect to that matter of law.

164 The error disclosed in relation to the alternative aspect of the first ground involved the Commissioner posing for himself an incorrect question. The question was not whether the general principles stated in Aon Risk Services as to the need to preserve judicial resources and taking into account the interests of other parties or the Court (to the extent applicable) should be applied generally to the proceedings, but whether or to what extent those principles should be applied having regard to the facts and circumstances of the case, namely, there was no fixture for hearing or arrangements for hearing in the subject proceedings and that the matter had effectively been called before the Commission for the first time. By this approach, the Commissioner misapplied the judgment of the plurality in Aon Risk Services by failing to have any or sufficient regard to the stage the proceedings had reached at the time he exercised his discretion under r 12.7. The error may be otherwise expressed as a failure to have regard to a relevant consideration.

165 The aforementioned consideration bears a close relationship to the second error. The Commissioner reached an unchallenged decision that the appellant had not proceeded with due despatch. This, as I have discussed, engaged the provisions of r 12.7, even though directed to a failure to comply with directions insofar as that consideration related to delay and prejudice. However, the exercise of a discretion under r 12.7 required a balancing process conforming with the aforementioned discussion of principles and ss 56 to 58 of the CP Act. Whilst the Commissioner engaged in the consideration of a range of discretionary factors in his decision, there was, in my view, a failure to properly or adequately engage in the balancing process in accordance with those principles and provisions. More specifically, the decision of the Commissioner on a question of law as to the factors he was required to take into account in the exercise of his discretion, manifested a failure to take into account relevant considerations which he was required to consider having regard to the aforementioned principles and statutory provisions for the reasons given above (which include the discussion as to a failure to have regard to no hearing dates being set).

Submissions

50. As noted earlier, the submissions in support of the respective costs applications by the parties have, by consent, come forward entirely in writing. What follows is a summary of those submissions commencing with the respondent’s submissions as those submissions were received first in time (albeit responsive to the application for costs earlier made by the appellant as part of her submissions as to the proper form of orders arising from the judgment in Beavan (No 1)).

Submissions for the respondent

51. At the outset of the respondent’s submissions opposing any award of costs two grounds were provided as follows:

4. In relation to paragraph 5, the Respondent says costs ought not be awarded in circumstances where:

a. resiled from certain arguments and made concessions, including as to Part 8 of the Industrial Relations Commission Rules (NSW) and

b. the Appellant raised issues on the appeal not raised in the decision below.

The reference to Pt 8 of the Industrial Relations Commission Rules 2009 (‘the IRC Rules’) is presumably a reference to the appellant advancing her appeal under ss 187 and 188 of the Act. For the remainder of this judgment ground (a) shall be referred to as the respondent’s first ground for refusing costs and ground (b) shall be referred to as the respondent’s second ground for refusing costs.

52. Whilst not expressly contemplated in those grounds, it would appear that the respondent, in the development of its submissions on costs, also relied upon a contention that the appellant had not been entirely successful in making out the grounds of the amended appeal or the contentions advanced in support thereof.

53. I shall also have regard to that issue as part of the exercise of my discretion as to the award of costs.

54. As to the first ground, the respondent made the following submission:

In relation to the first of the above matters, the Applicant’s Appeal did not properly address the changes to the IR Act, including the need to identify an error or law, and required an amended application. During the appeal, counsel for the Appellant effectively abandoned the second ground of the appeal by conceding the Commission acted in conformity with section 163(1)(c) and did not press for leave to call further evidence pursuant to section 191(2) of the IR Act. These two points were consistent with the Respondent’s submissions on those matters before the Appeal. The Respondent deals with the second subparagraph (immediately above) below.

55. The final sentence of this extract would suggest the respondent’s submissions in support of the second ground are to be found in the paragraphs following, namely, paragraphs 5 to 10 of the submissions, although paragraphs 5 and 8 appear to also relate to a contention that certain parts of the appellant’s case were unsuccessful (paragraph 5 is simply an extract from Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 18) [2011] NSWIRComm 87 (‘Gough & Gilmour’) at [71] but emphasis was given to parts of the judgment supportive of such a contention – see [71](6), (7), (10) and (13)). Having made those observations, it must be said that it is not entirely clear how paragraph 6 supports the second ground as the submission outlines various submissions made by the respondent and the appellant as part of the hearing of the notice of motion below (although the final sub-paragraph may indicate that it is an introduction to following paragraphs which discuss matters raised on the amended appeal that were not raised below).

56. The submissions in paragraph 6 of the respondent’s submissions appear to also be advanced to support a contention that the respondent had, in both its submissions advanced on the notice of motion and the appeal proper, made “it clear that the Respondent relied upon Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW)”. There is some emphasis on this point without any correlation to the grounds advanced against an award of costs.

57. In any event, that part of the respondent’s submission does not properly record, in my view, just how the appellant approached the first instance proceedings vis-à-vis the motion and the appeal.

58. The notice of motion filed by the respondent sought the dismissal of the first instance proceedings under “Reg.17.5 of the Industrial Relations Commission Rules 2009 (NSW)”. The reference to a regulation is obviously a misnomer and should be taken as intending to refer to a rule. At no time did the respondent seek leave to amend the notice of motion so as to rely also on r 12.7 although it did seek to amend the reference to “Reg.17.5” to include a reference to “Reg 17.4” (not then nor later correcting the misnomer as to a regulation).

59. In written submissions in support of the notice of motion, the respondent continued to press for the dismissal of the proceedings under “Regulation 17.4 of the Industrial Relations Commission Rules 2009 (NSW)”. There is a footnote in those submissions in the following terms (omitting the setting out of the relevant rule): “Or Rule 7.2 of the Uniform Civil Procedure Rules 2005 (NSW)”. In written submissions on the appeal, the respondent continued to rely upon r 17.4 of the IRC Rules (although now referring to a rule rather than a regulation) but contended that that rule was in substantially the same terms as r 12.7 of the Uniform Civil Procedure Rules 2005 (‘UCPR’). It is contended that the Commissioner dismissed the matter pursuant to r 12.7 and r 17.4.

60. It was not until the further written submissions filed by the respondent on 11 June 2015 that the respondent noted “for completeness” that it accepted “Rule 17.4 of the IR Rules has no operation” and claimed that “the Commissioner at first instance had the power to dismiss for want of due dispatch, under rule 12.7”.

61. Thus, whilst the respondent did rely upon rule 12.7 of the UCPR in the proceedings below and on appeal, it was not until later in the appeal proceedings that the respondent accepted its reliance upon rule 17.4 of the IR Rules was misplaced. At no time in the proceedings below did the respondent amend the relief it sought to squarely bring in the provisions of rule 12.7.

62. Noting the earlier observations as to paragraph 8 of the respondent’s submissions, paragraphs 7 to 10 then represent the repository of the respondent’s submissions as to the second ground developed by it as to costs. It is convenient to set out paragraphs 7 to 10 in full below:

7. It is to be noted that the Amended Appeal did not challenge that part of the ruling that related to an adjournment but asserted errors were made as set out below.

a. The Commissioner erred in purporting to apply the principles set out in Aon Risk.

b. “only those matters, which were adverse to the appellant” were considered by the Commission. As set out in the Appeal, those matters included:

(i) The Commissioner failed to consider that by dismissing the appellant she was deprived of the opportunity to recommence proceedings;

(ii) That the Appellant failed to inform the Commission as to the reasons for the delay was not a relevant factor.

8. In relation to subparagraph 7a (above), the Respondent was successful in arguing that the Commissioner did not make and [sic] error of law in having regard to Aon Risk, or as put in the Appeal, in “observing, by analogous reasoning to that adopted by the plurality in Aon Risk Services, there was a wider discretion to dismiss proceedings for want of prosecution than had hitherto been the case, provided he ultimately undertook a balancing exercise in accordance with the relevant principles”. However, the Court on appeal ultimately upheld the Appellant’s appeal on the first ground (being paragraph 8(a) of the Amended Appeal) on the basis that:

a. “The Commissioner did not expressly take into account or weight in the exercise of his discretion the fact that no hearing dates had been set”; and

b. the Commissioner failed to “recognize that … the application of the principles to which they referred [being the plurality in Aon Risk], whilst generally applicable to civil proceedings, depended upon the facts and circumstances of a case… [and] [i]n particular, … that it was necessary to have regard to the stage of the proceedings including whether a trial had commenced… .”

9. The Court also upheld the “second ground” (which included the bases referred to in these submissions at subparagraph 7b (above)) on the following bases.

a. The fact that no hearing dates had been set was a relevant factor that ought to have been part of the balancing exercise in which the Commissioner was required to be engaged;

b. The Commissioner was required to make an assessment of the veracity and significance of the prejudice and did not explicitly do so in his reasons; and

c. The Commission failed to expressly consider the fact that Applicant [sic] could not commence proceedings again.

10. In relation to subparagraph 7b (above), the Appellant conceded that she did not advance argument as to the proper balancing exercise below and the Court in the Appeal, noted the fact that the Appellant could not commence proceedings again was not an issue expressly raised in the hearing below. While counsel for the Applicant at first instance did suggest setting a hearing date “quickly” and/or guillotine orders, neither he nor the Applicant’s instructing solicitor expressly argued that the fact that no hearing dates had been set ought to have been part of the balancing exercise. That is, neither of the matters listed in paragraph 7b (above) were argued at first instance.

Submissions for the appellant

In support of the appellant’s application for costs (extracted above at [8]) the appellant contended, in summary, as follows:

Upon the proper exercise of the Court’s discretion, underpinned as is it by notions of fairness, the Court should in the circumstances of this case make a limited order for costs in favour of the appellant;

The appellant was entirely successful in respect of the amended appeal;

The matters upon which the appellant was unsuccessful took up an insignificant part of the trial;

The appellant’s proposed costs order addressed two of the matters relied upon by the respondent to resist orders for costs in favour of the appellant;

As to paragraph 4(a) of the respondent’s submissions, the s 163(1)(c) ground of the appeal was not dominant in the proceedings and should not be differentiated from those grounds upon which the appellant was successful;

In response to the second ground of the respondent’s submissions and, in particular, paragraph 7 of the respondent’s written submissions, the appellant contended the respondent failed to acknowledge that the Court ultimately accepted the appellant’s position that the Commissioner had erred and that its substantial arguments, on appeal, were rejected. Further, as to the second ground, just how the notice of motion was heard and determined in the Commission was not relevant to the question of costs on the appeal where that appeal was fully opposed by the respondent;

As to the entire submission by the respondent on costs, the appellant submitted:

34. Finally, in respect of the entire submission (in light of the costs orders sought):

(a) There is no basis to displace the presumption that costs follow the event in the Appeal;

(b) There was no issue in the appeal upon which the Appellant was not successful which could be said to be dominant and/or separable in the Appeal;

(c) The Respondent had no issue of any substance upon which it could be said they had “substantial success” in the Appeal;

(d) It is fair to award the appellant the costs as sought; and

(e) There is none and nor was their identified any distentitling conduct in the Appeal to deprive the Appellant of the costs sought

RELEVANT PRINCIPLES AS TO COSTS

In Stephen Bell v Commissioner of Police [2015] NSWIC 11 (‘Bell’) at [119] to [130], the Court dealt extensively with the jurisdiction of the Court to order costs in such proceedings before it and the principles relevant to the exercise of the Court’s discretion in relation to costs. I adopt that discussion for this judgment which is extracted below:

Costs

119 Section 4 of the CP Act provides that Div 2 of Pt 7 of that Act concerning costs in proceedings applies to these proceedings. Schedule 1 of the CP Act applies to all civil proceedings (of which the present matter is one) before this Court (see s 4(1)) and no exclusion arises under the UCPR (there is neither an exclusion of the provisions of the CP Act nor Div 1 of Pt 45 of the UCPR concerning entitlements as to costs). Section 98(1) of the CP Act provides a source of power for a court to award costs as well as conferring a discretion in that respect. That provision is made subject to any other Act.

120 Part 2 of Ch 7 of the IR Act confers a broad power on the Court to order costs (s 373). Further, s 181(1) of the Act provides a power and discretion in this Court as to costs in very similar terms to s 98(1) of the CP Act.

121 It is unnecessary to finally resolve the question as to which statutory regime applies in this matter given the similarity in the powers conferred (the minor difference, for present purposes, is that s 181(1)(c) omits the reference in s 98(1) of the CP Act to a “full power” to determine “to whom” costs are to be paid). (It would seem that, upon the principles of statutory construction, the words “any other Act” in s 181(1) would result in that provision giving way to the later CP Act in proceedings before this Court.)

122 It follows that there exists a statutory conferral of jurisdiction to award costs upon this Court which incorporates a full power to determine by whom, to whom and to what extent costs are to be paid.

123 Section 98(1)(a) of the CP Act makes explicit that costs are in the discretion of the Court (as does s 181(1)(b) of the IR Act). That discretion must be exercised judicially (see Hughes v Western Australian Cricket Association (Inc.) and Ors (1986) ATPR 40-676 at 48, 136 (per Toohey J) (‘Hughes’)) and is governed by the principle that the award of costs must be undertaken in such a manner as to do justice to the parties to the proceedings having regard to the particular circumstances of the case, the parties’ conduct and the ultimate result. Shortly stated, any order as to costs must be fair and just between the parties: Howitt v Alexander & Sons [1948] SC 154 at 159 and Earnshaw v Loy (No 2) [1959] VR 252 at 253.

124 The purpose and policy underpinning the award of costs is clearly stated in the judgment of McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (‘Oshlack’) as follows (at 97):

The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [Latoudis (v Casey) (1990) 170 CLR 534 at 543 per Mason CJ, at 562–563 per Toohey J, at 566–567 per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ]. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice.

125 The general power of the Court under s 98(1)(b) of the CP Act and the exercise of a discretion to award costs is subject to Div 1 of Pt 42 of the UCPR (the Industrial Relations Commission Rules 2009 do not apply: see r 12.1). It must be accepted that costs of these proceedings, then, should follow the event, in accordance with r 42.1, unless it appears to the Court that some other order should be made: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [76] (per Basten J with whom Tobias AJA agreed).

126 The consideration of the event for these purposes is not limited to the determination of either the proceedings as a whole or particular causes of action but may extend to disputed questions of fact or law: Hughes at 48, 136 (per Toohey J) and Cretazzo v Lombardi (1975) 13 SASR 4 (‘Cretazzo’) at 12.

127 The operation of r 42.1 depends upon what the event in question is. This requires consideration to be given to the particular outcome of the proceedings by reference to who is successful “bearing in mind the matters over which the parties joined issue”: Hansen t/as Derrawee Pastoral Co v Monterey (Coolah) Pty Ltd [2012] NSWSC 1383 at [29] (per Schmidt J).

128 Thus, the aim is to do substantial justice in relation to costs based on the outcomes of various matters joined in issue in the proceedings as between the entities that are parties to the proceedings. This may require a departure from the general rule where its operation may be unfair or inappropriate having regard, on the material before the Court, to the overall circumstances of the matter: Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84 at [17].

129 A successful party may be deprived of costs as to particular issues by the making of no order as to costs: Cretazzo at 12; X & Y (by her Tutor X) v Pal (CA(NSW), 7 June 1991, unreported at 3 per Clarke JA); Deputy Commissioner of Taxation v Government Insurance Office (NSW) (1992) 36 FCR 314 at 329 (per Wilcox J) and Permanent Trustee Australian Co Ltd and Another v FAI General Insurance Co Ltd (2001) 50 NSWLR 679 at [148], [150] and [151] (per Handley JA with whom Meagher and Powell JJA agreed).

130 Costs may, in appropriate cases, be apportioned. The nature of the apportionment task requires some analysis of the various issues in the proceedings including the success of the parties as to those issues and their actual impact on the costs of the proceedings. Apportionment or separate orders as to costs may be made when a successful party failed on matters that were dominant or significant issues.

In Chapman-Davis v State of New South Wales (No 2) 2015 NSWIC 13 (‘Chapman-Davis’), the Court discussed the principles stated in Bell and dealt with the question of an apportionment of costs (at [29], [30], [47] and [48]) as follows:

29 Section 181 of the IR Act confers a power to award costs in the discretion of the Court. The principles for the exercise of that discretion were recently discussed in Stephen Bell v Commissioner of Police [2015] NSWIC 11 (‘Bell’). I do not propose to repeat those principles in full but, rather, I shall adopt them for the purposes of this judgment (see, in particular, Bell at [123]-[130] including an extract from the judgment of McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97).

30 Upon those principles, it is clear that, although the expression ‘costs follow the event’ embodies the compensatory rule that a successful party is generally entitled to an award of costs in its favour, any order as to costs must be fair and just between the parties having regard to the particular circumstances of the case, the parties’ conduct and the ultimate result: see Howitt v Alexander & Sons [1948] SC 154 at 159 and Earnshaw v Loy (No 2) [1959] VR 252 at 253. Costs will not follow the event if it appears to the Court that some other order should be made: X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [76] (per Basten J with whom Tobias AJA agreed).

…

47 By their proposed orders as to costs, it was plain that the respondents considered that such a deduction may be made by making separate orders as to costs for three distinct time periods in the proceedings. It is possible that a costs order that awards costs over particular periods would do justice to the parties in certain circumstances: see, for example, Cretazzo v Lombardi (1975) 13 SASR 4 at 13–15 and X & Y (by her Tutor X) v Pal (CA(NSW), 7 June 1991, unreported at 3 per Clarke JA).

48 However, in my view, it is more appropriate to apportion costs in the circumstances of this matter: see Bell at [130]. That approach will do substantial justice between the parties in relation to costs by properly accounting for the various matters considered in this contest, namely, the deficiencies in the original application, the replication of the same in the amended application and the proportionate costs occasioned in this contest itself when balanced against the overall success of the applicant as to the second declaration. Further, it not only accounts for the success of the parties as to the issues described above but rationalises their actual impact on the costs of the proceedings: Bell at [130].

The passages extracted from in Bell and Chapman-Davis above indicate that the Court must exercise its discretion in regard to costs judicially and that any order must be fair and just between the parties in the circumstances of the case. Whilst costs will usually be awarded to the successful party, it remains within the discretion of the Court to make an alternative order where that would do justice between the parties.

63. In Gough & Gilmour, Boland J also elaborated on the principles relevant to sentencing at [42] to [71]. Both parties relied upon the principles in Gough & Gilmour to different effect. Given this reliance, it is useful to extract Boland J’s summary of relevant principles given at [71]:

The principles I draw from the foregoing discussion of the authorities, which are relevant to these proceedings, and which I propose to apply, may be summarised as follows:

(1) the Court has a wide discretion under s 181 of the IR Act to award costs and may determine by whom and to what extent costs are to be paid ;

(2) rule 42.1 of the UCPR places a limited proscription on the wide discretion to award costs in that the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs;

(3) rule 42.1 of the UCPR reflects the general law position that a successful party has a "reasonable expectation" of being awarded costs against the unsuccessful party. Thus, the presumption is that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. The qualification, however, means there is no absolute or automatic rule that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party;

(4) the purpose of an order for costs is to compensate the person in whose favour it is made and not to punish the person against whom the order is made;

(5) the discretion to award costs must be exercised judicially. The discretion cannot be exercised arbitrarily or capriciously and it cannot be exercised on grounds unconnected with the litigation or the circumstances leading to the litigation;

(6) although the ordinary rule is that costs follow the event, the "event" extends to any disputed question of fact or law and is not limited to "issues" in the technical sense;

(7) it is not necessary to first find in terms or to the effect that it is a most exceptional case, or a strong or exceptional case, before ordering a successful party to pay costs of an unsuccessful party, but there must be a proper basis to do so consistent with r 42.1 of the UCPR ;

(8) whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed;

(9) unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed;

(10) a separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter;

(11) it may be appropriate, where each party has had substantial success, to order that there be no order as to costs;

(12) the exercise of the discretion to award costs is underpinned by notions of fairness; fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the usual rule, it should be applied;

(13) it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument;

(14) where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation;

(15) a successful party may, in appropriate circumstances, be ordered to pay the costs of an unsuccessful party where the Court finds disentitling conduct, or misconduct, on the part of the successful party such as to warrant a costs order against it;

(16) the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute;

(17) in determining whether the successful party is guilty of misconduct (or disentitling conduct), the conduct must relate either or both to the litigation and/or the circumstances leading up to the litigation; and

(18) disentitling conduct does not necessarily need to amount to misconduct.

In Gough & Gilmour, Boland J made reference to the principles set out by the Full Bench in Cretney v Director General, New South Wales Department of Education and Training (No 4) [2010] NSWIRComm 17 (‘Cretney’) at [8]. There, the Court elaborated on its discretion to depart from the normal ruling as to costs where the successful party was unsuccessful on separable grounds. It is useful to identify those parts of the judgment in Cretney (at [8]) as they are relevant to the third ground of the respondent’s submissions:

…

(h) Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Elite Protective Personnel, citing Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported) (see also Bostik and Bonic). However, in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Finkelstein and Gordon JJ stated that:

Costs are in the court’s discretion. Fairness should dictate how that discretion is to be exercised. So, if an issue by issue approach will produce a result that is fairer than the traditional rule, it should be applied. See also Hodge v TCN Channel Nine (No 2) [2006] NSWSC 1272 and Standard Commodities Pty Ltd v Societe Socinter Department Centragel [2005] NSWSC 493; (2005) 54 ACSR 496.

(i) A separable issue can relate to ‘any disputed question of fact or law’ before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: Elite Protective Personnel citing James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] (see also Bostik and Bonic ).

(j) It may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Elite Protective Personnel, citing Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24] (see also Bostik and Bonic).

(k) If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Elite Protective Personnel, citing Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 at [27] (see also Bostik and Bonic).

…

64. In its submissions, the respondent submitted that the appellant raised arguments in the amended appeal which were not advanced before the Commissioner at first instance (that is, the second ground for refusing costs). In support of this contention, and its implication for a ruling on costs, reliance appeared to be placed on Boland J’s comments in Gough & Gilmour at [71](16). Where an appeal is successful on a ground different to that argued in the court (or tribunal) below, that may warrant a departure from the usual order as to costs: see for example Armstrong v Boulton [1990] VR 215. However, whether such a departure is warranted will depend on the particular circumstances of the case: Central Australian Aboriginal Congress Inc v CGU Insurance Ltd [2009] NTCA 2; (2009) 24 NTLR 222 (‘Central Australian’) at [12] to [14] (per Mildren J, Martin CJ and Angel J agreeing). In Central Australian, the respondent, who had been unsuccessful in the appeal, submitted that the principal point on which the appeal had been allowed was a new issue and that, accordingly, this warranted a departure from the usual rule in determining the costs for the appeal. At [12] of that judgment Mildren J noted that the arguments of the appellant were not “so different as to warrant an order depriving the appellant of its costs”. Mildren J, at [14], also made reference to the respondent’s vigorous opposition to the appeal as a factor leading to its conclusion that the respondent should pay the appellant’s costs for the appeal.

consideration

65. Upon the aforementioned discussion of the operation of s 98 of the Civil Procedure Act 2005 (‘CP Act’) and r 42.1 of the UCPR and relevant principles, it follows that the costs of these proceedings should follow the event unless it appears to the Court that some other order should be made so as to do justice between the parties to the proceedings having regard to, inter alia, the particular circumstances of the case, the parties’ conduct and the ultimate result. The consideration of the event for these purposes is not limited to the determination of either the proceedings as a whole or particular causes of action but may extend to disputed questions of fact or law such that consideration may be given to the particular outcome of the proceedings by reference to who is successful bearing in mind the matters over which the parties joined issue.

66. The ultimate result in these proceedings was that the appellant was, in substance, successful in obtaining the relief sought in the amended appeal (see Beavan (No 2) at [1] to [5]).

67. The appellant was also successful in making out her grounds of the amended appeal, after the abandonment of the second ground of the amended appeal.

68. The respondent contended that the appellant was unsuccessful in making out the first limb of the first ground of the amended appeal. That submission is correct but I do not consider it warrants any departure with respect to the general rule that costs will follow the event. Whilst the appellant only succeeded in making out the first ground of the amended appeal upon a second or alternative limb, that limb nonetheless established, in itself, the entirety of the substance of the first ground of the amended appeal (which ground was wholly contested by the respondent). Whilst the first limb of the first ground of the appellant’s challenge to the Commissioner’s decision overstated the effect of the alleged error in the decision below, as it was found the Commissioner was prima facie entitled to rely upon the general principles of the plurality in Aon Risk Services, the appellant made good the contention, by the second limb, that the Commissioner had misapplied Aon Risk Services. Very little time was wasted in the disposition of the first limb of the first ground of the amended appeal and, as I have noted, the appellant was ultimately successful in making out the first ground of the amended appeal, namely, there was a misapplication of Aon Risk Services (or the principles stated therein).

65. I note for completeness two other matters about which the appellant was unsuccessful in its contentions albeit these were not matters pressed in the submissions for the respondent on costs. The first of those concern a contention that the Commissioner had regard to an irrelevant factor in his considerations in that he inappropriately took into account the fact that the appellant had failed to inform the Commissioner as to the fact of and reason for delay (see [47] of this judgment). The second was that the Commissioner only had regard to matters adverse to the appellant in the weighing or balancing process (see [42] of this judgment). In my view, neither matter received significant attention in the submissions advanced on appeal and any time wasted by the issue was minor. They are not significant matters featuring in the judgment in Beavan (No 1). In the latter case, the Court found that the appellant had again overstated the contention, although ultimately found that the Commissioner had not adequately balanced factors in favour of the appellant. It follows that neither of these unsuccessful contentions would warrant any departure from the general rule as to costs.

66. It follows from the discussion above that I do not consider any of the factors there considered would warrant any departure from the general rule that costs should follow the event. There is required, however, consideration of the two factors relied upon by the respondent as disentitling considerations. I will deal with them in the order presented by the respondent as set out in [51] of this judgment.

Respondent’s first ground for refusing costs

71. Turning to the first of those matters, there are three bases for the respondent’s contention that costs ought not be awarded to the appellant because the appellant resiled from certain arguments or made certain concessions. Each contention essentially relates to time wasted or thrown away in the proceedings.

72. The first such contention was that the original appeal brought by the appellant was misconceived as it was brought under s 187 of the Act. The result was that an amended appeal was required to be lodged which then became the subject matter of the proceedings. This contention was indirectly accepted by the appellant by the second exclusion from the orders sought by her for costs of the appeal. The time wasted or thrown away effectively concerned the period from the service of the original appeal up to and including the second directions hearing before Kite AJ.

73. The second contention in this respect was that the appellant abandoned the second ground of the amended appeal. This contention was not conceded in the orders for costs sought by the appellant but was acknowledged in the contentions of the appellant (although with an accompanying submission as to why this concession should not disentitle the appellant as to costs). This was, in my view, an available contention for the respondent given that the second ground of the amended appeal was only abandoned at the hearing of the matter. However, any reduction in costs on this basis must be relatively minor as the issue was not a dominant feature in the proceedings and overlapped with other grounds of the appeal. The time wasted was minimal.

74. The third contention by the respondent as to matters abandoned concerned the appellant resiling from her application to call further evidence. This is the most significant matter raised by the respondent under the first ground as to costs, as the appellant’s application in this respect persisted, to some degree, after the filing of the amended appeal until the outset of the hearing of the amended appeal, and required the filing of a written submission as part of submissions filed on the preliminary questions stated out of the proceedings before Kite AJ. An affidavit was filed concerning that matter.

75. The appellant recognised that the abandonment of its application to call fresh evidence was a disentitling feature as to costs by the first exclusion in the proposed orders but only with respect to costs associated with the “preparation” of the fresh evidence. The effect of such an order, if made, is, however, somewhat ambiguous and, as I will later discuss, does not entirely represent the effect of costs wasted by the application for fresh evidence.

76. Nevertheless, I do not consider this factor could constitute a proper basis to make no order for costs in favour of the appellant. The issue did not feature in the hearing of the appeal proper and formed no part of the final adjudication by the Court as to the grounds of appeal. The appeal was resolved upon issues unrelated to the application for fresh evidence or the subject matter of that evidence.

77. Further, the time wasted by the application to call fresh evidence was essentially concentrated in the period from the filing of the amended appeal to the preparation of submissions on the preliminary question and, to some degree, the first directions before the Court as presently constituted in preparation for hearing. From that last directions hearing the appeal concentrated primarily upon the principal grounds of the appeal with the question as to fresh evidence being recessed. In fact, the application was partly abandoned in submissions advanced by the appellant prior to the hearing of the appeal and ultimately abandoned at the commencement of the hearing of the appeal proper. Further, as I will later discuss, written submissions as to the application for fresh evidence formed part of submissions as to “preliminary questions” which also dealt with the question of leave. No disentitlement to costs arises in relation to the appellant’s approach to the question of leave.

78. It follows from the aforementioned analysis that the respondent’s first ground on costs advanced by the respondent could not properly constitute a basis for making no order for costs in favour of the appellant. It rather represents a basis for a reduction in the costs which might otherwise have been awarded to a successful party. The appropriate assessment of that reduction shall remain for the conclusion of this judgment.

Respondent’s second ground for refusing costs

79. The second ground advanced by the respondent for refusing costs for the appellant was that the appellant had raised issues on the appeal which had not been raised in the proceedings below.

80. There were effectively three elements of the appellant’s case on appeal which the respondent contended had not been raised in the proceedings below (which to some extent overlap). It was submitted the appellant had freshly relied upon: a failure to have regard to the fact that no hearing dates were fixed in the matter although the respondent recognised that the appellant had submitted below that a hearing date could be obtained “quickly and/or guillotine orders might be made”; a failure to undertake a proper balancing exercise; and, a failure to recognise that the appellant would be barred from recommencing proceedings if the proceedings were dismissed.

81. The aforementioned discussion of relevant principles would suggest that this contention would be open to the respondent if it was demonstrated the case for the appellant on the appeal had not been raised below and the facts and circumstances of the case warranted some disentitlement as to costs in this respect.

82. In my view, this contention by the respondent should be rejected for two reasons. First, some of the factors relied upon by the respondent cannot properly be characterised as matters which the appellant, in substance, failed to raise below such that they would attract a disentitlement or reduction as to costs. Secondly, the facts and circumstances of the matter would warrant the balance of the factors not being properly taken into account as disentitling considerations.

83. As to the first of those reasons, whilst the appellant’s legal representative below did not direct attention to the absence of a date for hearing in precisely the same manner developed by counsel for the appellant on the appeal, it is clear that the appellant made submissions below, resisting the dismissal of the proceedings, called in aid the fact that a hearing had not been fixed by pleadings to the effect that the proceedings may be brought to a state of readiness for hearing within a short period of time, aided by guillotine orders, and that the hearing itself could be disposed of “quickly”. Those matters effectively and sufficiently focussed attention upon the fact that orders for dismissal of the proceedings were being sought in a context where the matter had only reached the stage of preparation for hearing and there was no fixture for the hearing of the matter (indeed no steps had been taken by either party or the Deputy Industrial Registrar to establish a hearing of the matter (see Beavan (No 1) at [137]) such as to make it unjust to deprive the appellant of costs of the appeal upon the basis the matter was raised freshly or as a new matter in these proceedings.

84. As to the failure to raise the need to undertake a proper balancing exercise below, it is true the Court recognised in Beavan (No 1) that the Commissioner had received no assistance from those appearing as to the principle stated in Hoser. Nor did the appellant specifically put a submission seeking that the Commissioner weigh in the balance the full range of matters mentioned in Hoser. Further, it was found, in Beavan (No 1), that, whilst the Commissioner had undertaken a weighing of factors, it had not been an adequate one having regard to the principles stated in Hoser.

85. It does not follow, however, that the appellant failed to make submissions bearing upon all of the discretionary (balancing) factors it was found the Commissioner failed to have regard to below.

86. In very brief summary form, the Court upheld the second ground of appeal on the basis that the Commissioner had not undertaken an appropriate balancing exercise by omitting the consideration of four matters which went, inter alia, to the question of prejudice. The first three of those matters were, in substance, the subject of attention by the appellant below.

87. The first of those concerned the failure to take into account the absence of a fixation of a hearing date. That matter has been dealt with adversely to the respondent in relation to the first ground on costs. The same considerations apply in this context. The second and third considerations both concerned the strength of any prejudice suffered by the respondent having regard, first, to the factual basis on which the respondent asserted prejudice (see [42] of this judgment) and, secondly, as to whether the capacity to complain about delay occasioning prejudice may be reduced where there was an acquiescence or waiver to that delay (see [44] of this judgment). Both of those matters were squarely raised by the appellant below. The fourth factor concerned whether the appellant had been deprived of an opportunity to recommence proceedings; a contention which was not raised below in the manner advanced on the appeal (this corresponds to the third element discussed at [85] of this judgment but for convenience will be hereafter referred to as ‘the fourth factor’).

88. The latter consideration brings the Court, then, to a second reason for not accepting this aspect of the respondent’s contentions to disentitle the appellant from an award of costs. This reason itself has two segments.

89. First, the fourth factor cannot sustain an argument in favour of a disentitlement as to costs so far as the first ground of appeal is concerned. That is because the absence of a capacity to recommence proceedings did not feature in any way in the first ground of the appeal nor the reasons of the Court in upholding that ground. This ground could, of itself, have resulted in the appeal being upheld.

90. Secondly, the nature of the respondent’s contentions and the Court’s deliberations of this aspect of the second ground of appeal go against any omission by the appellant to raise the issue of a bar to further proceedings below constituting a disentitling factor.

91. As to the former consideration, as the judgment in Beavan (No 1) reveals (see the extracts at [46] of this judgment), the respondent unsuccessfully contended that the Commissioner did, in fact, consider the implications of a dismissal of a valid claim below. In other words, the respondent contested, albeit unsuccessfully, the appeal, in part, upon the basis that the Commissioner had been seized of the issue below, notwithstanding the appellant had not raised the matter below. Having unsuccessfully joined issue in this manner, much of the force of the respondent’s argument about a failure to raise the issue of a bar to further proceedings below diminishes. This is because part of the time occupied in the appeal dealing with the subject matter of the issues to which the fourth factor related was devoted to matters unsuccessfully raised by the respondent.

92. As to the latter consideration of the second contention, the Court expressly considered in Beavan (No 1) whether a determination in favour of the appellant as to that aspect of ground two should be made because the issue had not been raised below. Nonetheless, the Court found that there was some utility in pronouncing upon the error because the matter could likely be the subject of a remitter (where such an pronouncement would assist in the further disposition of the proceedings). It follows that the Court considered that there was a sufficient and proper basis to pronounce upon the point notwithstanding the failure to raise it below. The determination to proceed in that manner is contraindicative of the exercise of a discretion to reduce costs on the basis of the failure to raise the issue below because the Court itself considered there was utility in deciding the issue. In fact, the Court rejected the submission advanced by the respondent on the appeal that the Court should not deal with the issue because it was raised afresh on the appeal.

93. By confirmation, then, I do not consider that the second ground advanced by the respondent against the award of costs in favour of the appellant may be sustained.

Conclusion

94. It follows from these conclusions that the orders sought by the respondent to the proceedings must be rejected.

95. I do not consider that the respondent has established a proper basis to deny the appellant costs of the proceedings having regard to the overall success of the appellant on the appeal, the success of the appellant in making out the grounds of appeal and the preponderance of its contentions in support thereof. The limited disentitling considerations made out by the respondent merely represent a modest basis for a reduction in costs based upon costs thrown away and time wasted in the proceedings.

96. Orders for costs should be made in favour of the appellant, but for reasons discussed below, the orders should not be made entirely in the form sought by the appellant.

Orders

97. Whilst the orders sought by the appellant are broadly consistent with the rulings I have made on this appeal, they are deficient in two respects. First, the form of the orders makes for difficulty in delineating the precise period for which costs may be excluded. Secondly, I do not consider the order with respect to the disentitlement to costs vis-à-vis the appellant’s claim for fresh evidence properly captures the appropriate width of the reduction of costs required in that respect as it would seem to only capture costs thrown away in “preparation” for the appellant’s fresh evidence and not appearances associated with the issue of fresh evidence and written submissions filed by the respondent on that issue.

98. It should, however, be noted that the submissions filed by both parties as to fresh evidence primarily engaged in submissions on preliminary questions. Those submissions also address the question of leave to appeal, about which it may not be said the appellant was unsuccessful (the Court ultimately did not find it necessary to rule upon whether leave was required because, if leave was required to bring the appeal it would, in the circumstances of the appeal, be granted).

99. Before turning to the actual form of the orders for costs it should also be mentioned that the appellant should have the costs associated with the dispute as to costs to which this judgment relates although the costs associated therewith were confined to written submissions. This conclusion must follow as the appellant has successfully contested the argument for costs order and the discount which the Court will make with respect to costs in large measure reflects that proposed by the appellant in her application for costs.

100. In my view, the proper balancing of these considerations is to make a proportionate order as to costs representing the overall success of the appellant in the appeal and in her application for costs reduced by the factors which I have discussed above.

101. On balance, in my view, an order should be made for the respondent to pay 80 per cent of the appellant’s costs.

102. In the result, 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.

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Decision last updated: 26 May 2016