Henry Kinstlinger v Sydney Talmudical College Association [2006] NSWIRComm 306

Henry Kinstlinger v Sydney Talmudical College Association [2006] NSWIRComm 306

Because the respondents failed to enter an appearance or file replies as required by the Rules, and gave no indication after notice of default that they intended to comply, the applicant was entitled to file the 9 February 2006 motion and the respondents should pay the applicant's costs of that motion up to and including 10 August 2006. The second and third respondents were not exempt from the costs of the respondents' motion because the applicant's refusal to submit to determination by a Rabbinical Court was known to all respondents, and the possibility that they might later be found not party to any unfairness was not a basis to avoid costs.

Jurisdiction
Australia
Judgment Date
22 September 2006
Procedural Posture
Application Under S 106 of the Industrial Relations Act 1996; Judgment on Costs in Unfair Contract Proceedings / Costs Determination After Interlocutory Motions and Failed Conciliation
Outcome
Costs orders made against the respondents; applicant's motion otherwise dismissed.
Legal Topics
['unfair Contract Proceedings' 'default Under Commission Rules' 'notice of Motion' 'conciliation' 'ex Parte Undefended Hearing' 'stay of Proceedings' 'costs of Interlocutory Motions']
['industrial Relations' 'costs' 'procedure'] ['unfair Contract Proceedings' 'default Under Commission Rules' 'notice of Motion' 'conciliation' 'ex Parte Undefended Hearing' 'stay of Proceedings' 'costs of Interlocutory Motions']

Case Brief

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Procedural Posture

Application Under S 106 of the Industrial Relations Act 1996; Judgment on Costs in Unfair Contract Proceedings / Costs Determination After Interlocutory Motions and Failed Conciliation

Legal Issues

  1. 1 ["Whether the respondents should pay the applicant's costs of the notice of motion filed 9 February 2006 seeking conciliation and an ex parte undefended hearing if conciliation was unsuccessful, where the respondents were in default of the Commission's Rules." "Whether all respondents should share the costs of the applicant's motion." "Whether the respondents should pay the applicant's costs of the respondents' notice of motion filed 17 February 2006 seeking a stay of proceedings, where that motion was not proceeded with."]

Ratio Decidendi

Because the respondents failed to enter an appearance or file replies as required by the Rules, and gave no indication after notice of default that they intended to comply, the applicant was entitled to file the 9 February 2006 motion and the respondents should pay the applicant's costs of that motion up to and including 10 August 2006. The second and third respondents were not exempt from the costs of the respondents' motion because the applicant's refusal to submit to determination by a Rabbinical Court was known to all respondents, and the possibility that they might later be found not party to any unfairness was not a basis to avoid costs.

Court Disposition

Costs orders made against the respondents; applicant's motion otherwise dismissed.

Orders

  • ["The respondents are to pay the applicant's costs of the applicant's motion filed 9 February 2006 as agreed or assessed in relation to costs incurred up to and including 10 August 2006." "The respondents are to pay the applicant's costs of the respondents' motion filed 17 February 2006 as agreed or assessed." "The...