Centre Staffing Sydney v Scott [2001] NSWIRComm 165

Industrial Relations Commission of New South Wales

CITATION : Centre Staffing Sydney v Scott [2001] NSWIRComm 165 revised - 10/09/2001 PARTIES : Centre Staffing Sydney Pty Ltd Elissa Scott FILE NUMBER: IRC4920 of 2000 CORAM: Harrison DP Application for costs - parties not unreasonable CATCHWORDS : Application for costs dismissed LEGISLATION CITED : Industrial Relations Act 1996 Bankstown City Council v Paris (1999) 93 IR 209 CASES CITED : Copperart Ltd v Martin (1995) 68 IR 58 Talbot v Rostcom Pty Ltd [2000] NSWIRComm 500 Sparks v Fred Hoskings Pty Ltd [1999] NSWIRComm 69 HEARING DATES: 05/31/2001 DATE OF JUDGMENT: 07/24/2001

APPLICANT Mr J Anthony, Solicitor Braye Cragg Solicitors

LEGAL REPRESENTATIVES: RESPONDENT Mr A Duc Independent IR

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 24 July 2001 Matter No IRC 4920 of 2000

Elissa Scott & Centre Staffing Sydney Pty Ltd

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION RE COSTS 1 The substantive issues in this is matter were determined in favour of the respondent in a decision published on 10 April 2001. A subsequent application for an award of costs pursuant to s181(2)(c) of the Industrial Relations Act 1996 ('the Act') was made by Braye Cragg Solicitors, acting on behalf of Centre Staffing Sydney Pty Ltd, the respondent. 2 Mr A Duc of Independent I.R., acting on behalf of the applicant, Mrs Scott, opposed an order of costs. 3 In proceedings on 31 May 2001 the parties proposed an arrangement whereby Mr J Anthony, solicitor of Braye Cragg Solicitors, was allowed 21 days to make written submissions in respect to costs and Mr Duc a further 21 days to reply; the issue of costs to be then determined on the basis of those submissions. This arrangement was accepted and directions issued. 4 The written submissions of Mr Anthony were received on 19 June 2001. 5 Mr Anthony seeks an order of costs on the grounds that the applicant unreasonably failed to agree to settlement of the claim. 6 The written submissions of Mr Anthony set out the history of negotiations between the parties in which negotiations, commencing with an offer of three weeks pay by the respondent met by a proposal by the applicant of settlement on the basis of three months pay, developed to an offer by the respondent of payment of $2,500.00, being in addition to an amount of $961.53 previously paid to the applicant on termination, met by a counter offer from the applicant that full and final settlement could be achieved for $3,000.00. Mr Anthony submitted that the settlement proposition of $3,000.00 was not accepted and the offer by the respondent of $2,500.00 in addition to payment made on termination was held open and available up to commencement of arbitration proceedings. 7 Mr Anthony further submitted that in making this offer the respondent was mindful of the legal costs to be incurred in preparing and conducting arbitration proceedings. 8 An order of costs is sought in the amount of $2,352.63 inclusive of GST. 9 In his written submission filed on 12 July 2001 Mr Duc describes the negotiation process in the following terms: · On 13 November 2000 the Applicant offered to settle for three months pay. The Respondent's offer was three weeks pay. A later offer of four weeks with a reference was also made. · On 14 November 2000 the Applicant contacted the Respondent and offered to settle for two and a half month's pay. · At the conciliation conference on 15 November 2000 lengthy negotiations took place at the conciliation. The Applicant's final position was $5,000.00. The Respondent's final offer was $2,800.00. · The Applicant wrote to the Respondent on 25 November 2000 offering to settle the matter for $3,000.00 net. · Prior to the hearing on 12 February 2001 conciliation again took place. At this time the Applicant offered to settle the matter for $2,400.00 net. The Respondent offered $2,500.00 gross, equivalent to about $1,750.00 net. 10 In his written submissions Mr Anthony notes that the matter was subsequently decided against the applicant, the Commission declining to intervene. 11 Mr Anthony concludes his submissions with the argument that the decision not to intervene on behalf of the applicant reveals the offer of $2,500.00 in addition to previous benefits paid as a reasonable offer of settlement. 12 Both Mr Anthony and Mr Duc relied upon the judgement of a Full Bench of this Commission in Bankstown City Council v Paris (1999) 93 IR 209 where at 218 the Bench states: