Costs Awarded to Successful Party Despite Claimant's Financial Difficulties

The Industrial Relations Commission awarded costs to the respondents in a case involving an application for declaratory relief, despite the claimant's financial difficulties. The decision emphasised the principle that successful parties are generally entitled to costs unless there are exceptional circumstances.

Industrial Court of [NAME]: [NAME] v [NAME] Department of Community Services & Ors (No. 17) [2006] [NAME] 404

APPLICANT [NAME]

PARTIES: RESPONDENT [NAME] Department of Community [NAME] Department of Ageing, Disability and Home [NAME](S): IRC 3140 of 2001

CORAM: Boland J

CATCHWORDS: Costs - Application for declaratory relief - Application dismissed - Respondent sought costs - Costs award to Respondent as agreed or as assessed

LEGISLATION CITED: Industrial Relations Act 1996

[NAME] v [NAME] Department of Community Services (No. 11) (2005) 145 IR 376 CASES CITED: [NAME] v [NAME] Department of Community Services ([NAME]) (No. 14) (2006) 152 IR 48 [NAME] v [NAME] Department of Community Services and Ors (No. 16) [2006] [NAME] 273

HEARING DATES: 09/09/2005

DATE OF JUDGMENT: 12/15/2006

APPLICANT Mr G [NAME] in person

LEGAL REPRESENTATIVES: RESPONDENT Solicitor: [redacted]

JUDGMENT: INDUSTRIAL COURT OF [NAME]: BOLAND J

Friday 15 December 2006

Matter No IRC 3140 of 2001

[NAME] v [NAME] DEPARTMENT OF COMMUNITY SERVICES & ORS

Application by [NAME] for declaratory relief under s 154 of the Industrial Relations Act 1996

JUDGMENT

[2006] [NAME] 404

1 In [NAME] v [NAME] Department of Community Services (No. 11) (2005) 145 IR 376 ("[NAME] (No 11)") the Court dismissed an application by [NAME] seeking declaratory relief under s 154 of the Industrial Relations Act 1996. On the day judgment was given in the matter Mr De [NAME], for the respondents, indicated that he wished to make an application for costs. [ADDRESS] expressed a degree of surprise at the application but, nevertheless, directed the parties to provide written submissions on the issue. The respondents duly provided written submissions seeking costs. The applicant did not provide any submissions. 2 Mr [NAME] subsequently applied for leave to appeal and to appeal [NAME] (No 11). That application was dismissed by the [NAME]: [NAME] v [NAME] Department of Community Services ([NAME]) (No 14) (2006) 152 IR 48. The respondents on the appeal sought their costs on the basis that they had been successful parties to the litigation and none of the traditional exceptions to the usual order as to costs applied so as to otherwise disentitle them to costs. The respondents also contended that there were no special circumstances that would displace the usual order. 3 In [NAME] v [NAME] Department of Community Services and Ors (No 16) [2006] [NAME] 273 the [NAME] found that: 1) there has been no misconduct shown on the part of the respondents either in the lead-up to or in the conduct of the case that should otherwise disentitle them to costs. An examination of the somewhat cursory submissions of the appellant does not suggest otherwise; (2) the fact that the parties seeking the costs order are [NAME] and a Government corporation is not a proper reason for refusing to grant the order: [NAME] v Richmond River Council at [92] to [94];

(3) the usual order as to costs should therefore apply and the appellant should pay the respondents' costs. 4 The [NAME] ordered, inter alia, that:

2. The appellant shall pay the cost of this appeal to the [NAME] Department of Community Services, the [NAME] and the [NAME] Department of Ageing, Disability and Home Care as agreed or, in the alternative, as assessed. 5 One of the matters that has concerned this Court regarding the issue of costs has been the obvious impecuniosity of the applicant. However, the [NAME] in [NAME] No 16 stated in this respect: 8 One further matter which should be mentioned here concerns the appellant's financial circumstances. Various documents which have been filed in the proceedings have indicated that the appellant is currently homeless and has limited financial means. The respondents have contended, in this regard, that the differences in the financial positions of the respective parties is not a matter which is relevant to a consideration by the Court of its discretion to award costs. 9 A similar submission was made in [NAME] v [NAME] Department of Public Works and Services & Anor [2004] [NAME] 72 where the respondent government department applied for costs following the refusal by the [NAME] to grant leave to appeal. The respondent relied in support of its application on [NAME] v Richmond River Council at [96] where it was observed that costs orders were not made to punish unsuccessful parties but to indemnify successful parties and, in the absence of any misconduct on the part of the successful party, that party should be entitled to its costs. 10 We see no reason to depart from these principles, and accordingly exercise our discretion to award costs of the appeal to the respondents as agreed or in the absence of agreement as assessed. 6 Undoubtedly, the respondents have incurred, what I would estimate to be very substantial legal costs and it is understandable they would seek to be indemnified in that respect. Although it does seem to me, given the applicant's financial state, indemnification may prove elusive. In the circumstances, however, given the respondents have pressed the Court for a costs order and having regard to the approach of the [NAME] in [NAME] (No 16), the Court has no option but to make the order. Order

[ADDRESS] makes the following Order: (1) The applicant shall pay the cost of these proceedings to the [NAME] Department of Community Services, the [NAME] and the [NAME] Department of Ageing, Disability and Home Care as agreed or, in the alternative, as assessed.

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