Hampden Press Pty Ltd and anor v Cramond Publications Pty Ltd [2003] NSWIRComm 99 (28 February 2003)

Last Updated: 2 June 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Hampden Press Pty Ltd and anor v Cramond Publications Pty Ltd [2003] NSWIRComm 99

FILE NUMBER(S): IRC2683

HEARING DATE(S): 28/02/2003

EX TEMPORE DATE: 28/02/2003

PARTIES:

FIRST APPLICANT

Hampden Press Pty Ltd

SECOND APPLICANT

Saul Kamerman

RESPONDENT

Cramond Publications Pty Ltd

JUDGMENT OF: Peterson J

LEGAL REPRESENTATIVES

APPLICANTS

Mr A Britt of counsel

SOLICITOR

J Biady & Associates Pty Ltd

SYDNEY.

CASES CITED: Cornell v Titley [2002] NSWIRComm 326

LEGISLATION CITED: Industrial Relations Act 1996 s106

JUDGMENT:

- 4 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: PETERSON J

28 FEBRUARY 2003

Matter No IRC2683 of 2002

HAMPDEN PRESS PTY LTD AND ANOR v CRAMOND PUBLICATIONS PTY LTD

Application under s106 of the Industrial Relations Act 1996

JUDGMENT (Extempore)

1 This is an application by Hampden Press Pty Limited and the principal of that company, Saul Kamerman, in relation to a contract entered into between those parties and the respondent, Cramond Publications Pty Ltd. That contract is referred to in a letter dated 31 May 1999 annexed to the affidavit of Mr Kamerman over the signature of Ian Allan, the publisher and editor, on the evidence of the respondent company, and indeed the principal of that company.

2 That correspondence makes clear that the arrangement intended between the parties was that Mr Kamerman and Hampden Press would act as sales consultant in relation to a publication of the respondent named the "Australian Retail Business and Technology" magazine. The appointment was to take effect from 1 June 1999.

3 The evidence of Mr Kamerman was that he performed duties under that contract between 1 June 1999 and 27 August 1999, at which time he received such activities. His experience was that after receiving an expression of interest from potential advertisers he would refer them to Mr Allan who was intended to give them a commitment about editorial coverage, and then refer them back to Mr Kamerman for signing of the contract. In each case where Mr Kamerman referred clients to Mr Allan, he received no referral back. In a number of cases he made direct arrangements with the advertisers.

4 Exhibit 3 in the proceedings constitutes written indications from five such clients to Mr Kamerman of the fact that he was the initiator of their advertising in the Winter 1999 issue of the Retail Business Magazine. A copy of that magazine is also in evidence and depicts the particular advertisements in question.

5 Mr Kamerman's contention is that he has in relation to eight advertisements accrued under his arrangement or contract they might receive commission at the agreed level totalling $3,155, but that he has received no payment thereof.

6 In August 1999 Mr Alexander wrote to Mr Kamerman expressing the view he found the monthly exercise uneconomic and asking:

"Could you please bring your expenses up to date and forward them to me as well as the advertising leads list. I will then be able to settle promptly whatever is owed to you in terms of expenses and commission."

7 The expenses amount to $157.40 and again are the subject of detailed expression in his affidavit. On 13 September 1999 Mr Allan wrote to the applicant, Mr Kamerman, enclosing a cheque in the sum of $457.00 to cover his "July expenses and commission". The affidavit of Mr Kamerman explains that the cheque was unsigned and was not cashed. I accept the letter from Mr Allan of 13 September 1999 as indicating an acceptance by him that work pursuant to the contract was performed in part at least.

8 The applicants bring a summons for relief under s106 of the Industrial Relations Act 1996 in relation to the arrangement which is contended to be unfair in the statutory sense, and requiring variation to make express provision for and obligation to pay commission in relation to the advertisements to which I have already referred. An order in the sum of $3,312.85 is also sought to cover commission on advertisements and a reimbursement of the identified expenses. Interest from 9 May 2002 until the date of judgment is also sought at the Supreme Court rate.

9 I am satisfied having regard to what has been placed before the court that the applicants have demonstrated an arrangement which is within the court's jurisdiction. It was a contract under which work was performed within an industry in New South Wales, and accordingly the relevant jurisdiction prerequisite is satisfied.

10 I am also satisfied on the uncontested evidence that it would be appropriate to make the order of variation of the contract in terms of paragraph 3(a) of the summons for relief and I would order the contract be varied accordingly.

11 Two other issues require to be dealt with. The first is the procedure which has been adopted in this matter. The matter was allocated to me for conciliation and if appropriate for ex parte hearing. The evidence of James Biady, the solicitor for the applicants, establishes service of the summons for relief upon the respondent. It also establishes a serious attempt by Mr Biady to ensure that the respondent was aware of both the existence of the proceedings and the fact of their initial listing before the Registrar and subsequently in the various stages before the Commission. Those attempts have included contact with a firm of solicitors who had acted for the respondent at an earlier stage, and whilst at one stage creating the impression they might be continuing to act despite their denial, ultimately I think have satisfied perhaps Mr Biady, but certainly me, they were not acting for the respondent in relation to these proceedings.

12 I am not able to conclude that the applicant did not as a result of those activities actually receive any information about those proceedings, but the position is that no Notice of Appearance has ever been entered by the respondent and no response to all attempts both by Mr Biady and by the Court itself through the Registrar to inform the respondent of the stages of development of the matter have received any response.

13 In those circumstances, the court proceeded directly to hear the matter for the purpose of determining the summons for relief without making any attempt to conciliate with a non-existent party.

14 The final matter which I must direct is the issue of costs. The applicant seeks an order in relation to professional costs, counsel's fees and disbursements in the sum of $6,112 and be paid on an indemnity basis. It is obvious that in a case such as this an order for costs must go the applicant. The only question is whether the costs should be awarded on a party party basis or to cover the actual costs of the applicant. I take the view that this is a case in which an order for indemnity costs is appropriate. I will adopt the view expressed by Justice Haylen in Cornell v Titley [2002] NSWIRComm 326. His Honour's conclusions in relation to that matter both as a matter of principle and on the merits of the matter seem to me to be most apt in the present case. In that matter the respondent failed to appear at the conciliation stage and at the hearing of the matter which was also conducted on an ex parte basis. His Honour makes the point that the failure to appear a conciliation effectively removed the ability to inexpensively resolve what was in that case an issue of unpaid superannuation, and one can say precisely the same consequence applies here.

15 Having regard to the material now before me in relation to costs I am satisfied the amount claimed is an appropriate one. I therefore order that the applicant have his costs on an indemnity basis in the sum of $6,112.

LAST UPDATED: 27/05/2003