King v Cake It Away Pty Ltd & Ors [2003] NSWIRComm 2 (3 January 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : King v Cake It Away Pty Ltd & Ors [2003] NSWIRComm 2

FILE NUMBER(S): IRC 6142

HEARING DATE(S): 13/12/2002

DECISION DATE: 03/01/2003

PARTIES:

APPLICANT

Gregory John King

RESPONDENTS

First Respondent

Cake It Away Pty Ltd

Second Respondent

Cake It Away Franchising Pty Ltd

Third Respondent

Paul Tartak

Fourth Respondent

Michael Tartak

Fifth Respondent

Tony Tartak

Sixth Respondent

Pauline Tartak

Eighth Respondent

St George Bank Ltd

NinthRespondent

Advance Leasing Pty Ltd

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANT

Mr Gregory John King in person

RESPONDENTS

First to Seventh Respondents

Selby Levitt Solicitors & Attorneys

CASES CITED: Curtis, Coolee and Palmshell Pty Ltd v Veverka & Ors (2002) QSC 297

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MARKS J

Friday 3 January 2003

Matter No IRC 6142 of 1998

GREGORY JOHN KING v CAKE IT AWAY & ORS

Application under s 106 of the Industrial Relations Act 1996

JUDGMENT ON COSTS

1 By judgment delivered on 12 July 2002 I dismissed the applicant's summons brought against nine respondents under s 106 of the Industrial Relations Act 1996. I made no order for costs in favour of the first to seventh respondents against the applicant because Mr Levitt, solicitor who appeared for those respondents in the course of the proceedings said during the course of final submissions that his clients would not seek any order for costs against the applicant if they were successful in the proceedings. However, this statement was qualified to the extent that it applied if the applicant did not appeal any adverse decision.

2 The applicant has subsequently lodged an appeal and the first to seventh respondents have sought an order for costs against the applicant.

3 In the circumstances which occurred, and which I have summarised briefly, I do not regard myself as being functus and accordingly I am able to deal with this application for costs.

4 The normal rule is that costs follow the event. However there are recognised exceptions to this rule. One of those exceptions relates to misconduct. What is misconduct for this purpose has been succinctly described by Muir J in the Supreme Court of Queensland in Curtis, Coolee and Palmshell Pty Ltd v Veverka & Ors (2002) QSC 297, a decision to which I was referred by the applicant. His Honour said (at para 12):

"Misconduct in this context includes actions connected with the institution or conduct of litigation calculated to occasion unnecessary litigation and expense. It may also include actions which induce in a plaintiff's mind the reasonable belief that there is no valid defence to a claim or the goading of a plaintiff into litigation on which the plaintiff would not have embarked but for conduct of a reprehensible kind on the part of the defendant."

5 Mr King in his submission relied on three principal areas of misconduct by these respondents. The first was a delay in the filing of affidavit material, the second was untrue evidence allegedly given by Mr Tony Tartak in the course of the proceedings, and the third was the suppression of the production of documents during the interlocutory steps leading up to the hearing.

6 Whilst there were delays from time to time in the filing of affidavit material, the respondents sought to justify these delays on a number of bases. I am not satisfied that there was any extraordinary delay on the part of the respondents such that this would have some impact on the outcome of the proceedings or on the overall costs of the respondents.

7 Whilst the applicant has taken issue with some of the evidence given by Mr Tony Tartak, I am not satisfied that even if such allegations were sustained, that there would be a resultant impact on the litigation such as would justify the making of any costs order other than the usual order. The same comment applies to the difficulties encountered by the applicant in connection with the production of certain documentation, which the respondents sought to resist from time to time based on well known arguments concerning apparent relevance and the like.

8 Overall, the applicant has not satisfied me that the respondents should not have the usual order for costs in their favour, they having been successful overall in the litigation.

9 Accordingly, I order that the applicant pay the costs of the first to seventh respondents of the proceedings to be assessed in default of agreement. I note the undertaking of the first to seventh respondents given through their solicitor that they would not seek to pursue the payment of costs whilst the applicant's appeal proceedings have not been finalised.

___________________________________________________

LAST UPDATED: 18/02/2003