Industrial Relations Commission of New South Wales in Court Session CITATION : Heather Alison Maciver v Hilton Nursing Home Pty Limited [2000] NSWIRComm 82 APPLICANT: Heather Alison Maciver PARTIES : RESPONDENT: Hilton Nursing Home Pty Limited FILE NUMBER: 513 and 1788 of 1997 CORAM: Schmidt J CATCHWORDS : Costs - Respondent seeking order for costs after judgment - Respondent seeking indemnity costs under Rule 216 - Judgment earlier given in favour of applicant - Ordinary order as to costs made in favour of applicant - No submissions made opposing order - Too late to seek different order as to costs - Court functus - Respondent's application refused CASES CITED : McEwen & Ors v AIDC Limited & Anor (unreported Schmidt J, 10 April 2000) HEARING DATES: 05/19/2000 DATE OF JUDGMENT: 05/22/2000 APPLICANT: Mr R Moore of counsel SOLICITORS: Moin & Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr A Moses of counsel SOLICITORS: Fishburn Watson O'Brien Solicitors JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 22 May 2000 Matter Number IRC 513 of 1997 HEATHER ALISON MACIVER -v- HILTON NURSING HOME PTY LIMITED Application under section 106 of the Industrial Relations Act 1996 Matter Number IRC 1788 of 1997 HEATHER ALISON MACIVER -v- HILTON NURSING HOME PTY LIMITED Application for recovery of money under section 365 of the Industrial Relations Act 1996 FURTHER JUDGMENT 1 Orders were made in these matters in favour of the applicant in a judgment given on 20 April 2000. There have been a number of developments since then relevant to the matter which now arises for consideration. These were a request by the applicant for a correction of the orders made under the slip rule; both parties appealing various aspects of the judgments given in this matter and the respondent requesting the Court to make orders in accordance with Rule 216 of the Court's Rules, having regard to an offer of compromise made by the respondent in 1998. 2 The application under the slip rule was not pressed by the applicant, in circumstances where the correction sought was opposed by the respondent. Both parties confirmed that this matter was not relevant to the offer of compromise and the costs orders now sought by the respondent, having in mind the amount of the offer made. 3 At the hearing on 19 April, the parties were not agreed as to whether or not, having regard to the orders made on 20 April, the matter had been finally disposed of. The applicant submitted that the Court was functus, having made an order as to costs. The respondent submitted that not to be the case, having in mind Rule 203, which permitted the Court to exercise its powers and discretions as to costs after the conclusion of the proceedings and Rule 216, it being submitted that offers of compromise were always dealt with at the conclusion of proceedings, after the amount of the monetary orders made by the Court were known. 4 Further, the respondent sought an order for indemnity costs, a departure from what was contemplated in Rule 216 and the applicant sought relief from application of Rule 216, in the particular circumstances of this case. The parties were also not agreed as to whether the convenient course, in light of the appeals, was for me to deal with this matter now, or to await judgment in the appeals. 5 I announced to the parties that I took the view that the Court was functus in the matter. These are my reasons for that view. 6 The orders made in the judgment of 20 April included usual orders as to costs in favour of the applicant, namely, costs as agreed or assessed. Those orders were made in circumstances where the parties had finally addressed two competing formulations of the orders, having in mind the matters which were then disagreed between them, which are dealt with in the judgment of 20 April. 7 While in written submissions earlier filed, the respondent sought to reserve its position in relation to the question of its offer of compromise, no submissions were made opposing the order sought as to costs. In those circumstances, a costs order was made in favour of the applicant, the form of the costs order not being opposed. Having made the orders, the matter came to a conclusion, orders finally disposing of the matter having been made. 8 If the question of the offer of compromise were now to be visited, consideration would have to be given not only to the application of Rule 216 to the offer made, but also the departures from that Rule which each party seeks to advance. 9 The orders made on 20 April evidenced the Court's intention to deal finally with the matter, including the question of costs, in the light of the position which the parties took at the hearing. Had the respondent wished to pursue the question of compromise, the proper course would have plainly been to oppose the making of any costs order. It did not do so. In my view it is too late to seek a different order as to costs, given the orders which have already been made and the circumstances in which that occurred. 10 While reference was made to the judgment on costs in McEwen & Ors v AIDC Limited & Anor (unreported Schmidt J, 10 April 2000), it is not of assistance in this case, because there neither party had sought an order as to costs at the hearing, whereas here, the applicant sought a costs order, the form of which was not opposed by the respondent. 11 For all of these reasons, the respondents application was refused. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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