Islam v Javam

HIS HONOUR: I published reasons for judgment in this matter on 21 September 2018: see Islam v Javam [2018] NSWSC 1430. I directed that the proceedings be listed before me for directions on 22 October 2018.

The parties are now agreed that the dispute in the Tribunal should continue to be heard there upon the basis that the plaintiff “gets credit for his $20,000 against whatever is the outcome of that contest”. It will be apparent from my earlier reasons that I consider that approach to be an appropriate one in the circumstances.

The question of costs remains. Mr Hemsworth on behalf of the plaintiff submits that this issue should await the outcome in the Tribunal as the result there will or might helpfully inform my assessment of the question of who should pay the costs of the proceedings in this Court. Inherent in that submission is the proposition that I have not finally dealt with the plaintiff’s application and on one view may ultimately not be required to do so. Mr Doyle on behalf of the defendant submits on the contrary that the plaintiff was unsuccessful in this Court and that costs should follow that event. That submission proceeds upon the basis that I have effectively decided the plaintiff’s motion unfavourably to him, in the sense that I did not grant the relief claimed, and that costs should follow the event.

At [12] and [13] of my earlier decision I said the following:

It will be apparent that I have not yet finally determined the plaintiff’s appeal to this Court. Having regard to the agreement that the parties have sensibly reached, it seems unlikely that it will be necessary to do so. I accept that Mr Doyle wishes to contend that the plaintiff’s appeal was both ill-conceived and unnecessary, in particular having regard to certain correspondence passing between the parties, as well as being disproportionate to the amount in contest. It is not appropriate at this stage that I comment further upon these suggestions.

In my view, it is preferable to deal with the question of the costs in this Court when the outcome in the Tribunal is known. That is so for a number of reasons. One of those reasons is that any decision by me on the question of costs in this Court could arguably limit or even foreclose the possibility of a settlement of the Tribunal dispute by narrowing the scope of matters that the parties might take into account in negotiations in that respect.

I will therefore make the following orders: