Industrial Relations Commission of New South Wales in Court Session CITATION : Bourke Air Charter v Easton (No 2) [2003] NSWIRComm 209 FIRST APPELLANT/FIRST CROSS RESPONDENT Bourke Air Charter Pty Limited SECOND APPELLANT/SECOND RESPONDENT Bourke Aerial Spraying Pty Limited PARTIES : THIRD APPELLANT/THIRD CROSS RESPONDENT Peter Ronald Smart RESPONDENT/CROSS APPELLANT Daniel Easton FILE NUMBER: IRC 4787 & 5838 of of 2000 CORAM: Wright J President; Glynn J; Boland J Practice and Procedure - Costs - Appeal - Unfair contract - Offers of compromise - Attempts at settlement - Adjustment made to earlier costs order CATCHWORDS : Costs - Appeal - Unfair contract - Offers of compromise - Attempts at settlement - Adjustment made to earlier costs order Bourke Air Charter v Easton (2001) 109 IR 443 CASES CITED : Partridge v Partridge (unreported, Young J, Supreme Court of New South Wales, 28 April 1998) Rosser v Maritime Services Board of NSW (No 3) (unreported, Young J, Supreme Court of New South Wales, 1624 of 1993, 16 October 1997, 25 November 1997) Walker v Crane Enfield Metals Pty Ltd (unreported, Holland J, Supreme Court of New South Wales, 1 December 1989) HEARING DATES: 05/02/2002 DATE OF JUDGMENT: 06/27/2003 APPELLANT: Mr A G Rogers of counsel Solicitor: Mr S Ewer Webb & Boland LEGAL REPRESENTATIVES: RESPONDENT: Mr N Dawson of counsel Solicitor: Ms D Banks Gilbert & Tobin Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President GLYNN J BOLAND J Friday 27 June, 2003 Matter No. IRC 4787 of 2000 BOURKE AIR CHARTER PTY LIMITED & ORS v DANIEL EASTON Application for leave to appeal and appeal against a decision of Justice Kavanagh given on 6 September 2000 in Matter No. IRC 6040 of 1998 Matter No. IRC 5838 of 2000 DANIEL EASTON v BOURKE AIR CHARTER PTY LIMITED & ORS Application for leave to appeal and appeal against decisions of Justice Kavanagh given on 6 September 2000 and 1 November 2000 in Matter No. IRC 6040 of 1998 JUDGMENT OF THE COURT RE COSTS [2003] NSWIRComm 209 1 Judgment on the substantive issues in this appeal and cross appeal was handed down on 29 November 2001: see Bourke Air Charter v Easton (2001) 109 IR 443. The orders made in those proceedings were as follows: 1. The appeal in Matter No IRC 4787 of 2000 is dismissed, except as to the decision and order of Kavanagh J relating to overtime payments. 2. Orders 2(a)(ii) and (vi) in the Orders made by Kavanagh J on 1 November 2000 are set aside. 3. The cross-appeal in Matter No. 5838 of 2000 is dismissed except as to the decision and order of Kavanagh J relating to costs. 4. Unless the appellants, within 10 days of delivery of judgment, apply in writing for orders otherwise, such application being accompanied by written submissions, orders 2(b) and (c) in the orders made by Kavanagh J on 1 November 2000 are set aside and the appellant in Matter No. 4787 of 2000 shall pay the respondent's costs of the proceedings before Kavanagh J as agreed or, failing agreement, as assessed. 5. The respondent shall, within 10 days, file and serve short minutes of order to give effect to this judgment and orders and for the lifting of the stay granted on 16 November 2000. The matter is listed before Boland J on Thursday 13 December 2001 at 9.30am for the making of final orders, unless the parties file consent orders in the meantime. 6. Leave to appeal is granted to the extent referred in the judgment and otherwise refused. 7. The appellants in Matter No. 4787 of 2000 and cross- respondents in Matter No 5838 of 2000 shall pay 80 per cent of Mr Easton's costs of the appeal and cross-appeal in an amount as agreed or assessed. 2 On 10 December 2001 the appellants made application in relation to costs in the following terms: (i) Order 2(b)(ii) made by Kavanagh J on 1 November 2000 be set aside. (ii) Order 2(c) made by Kavanagh J be set aside and replaced with an order in the following terms: The Applicant to pay the Respondent's costs on a party/party basis from 4 September 1999. (iii) In the alternative to (i) and (ii) above, that her Honour's orders not be upset or, in the further alternative, that each party pay their own costs, incurred on or after 4 September 2000, of the proceedings before her Honour. (iv) That the Respondent pay the Appellants costs of the appeal; or, that each party pay their own costs of the appeal and cross-appeal. 3 Mr A G Rogers of counsel for the appellants contended circumstances existed that justified an exception to the prima facie rule that costs follow the event. Mr Rogers submitted that the circumstances which the Court should have regard to in relation to the issue of costs before Kavanagh J were: (i) The offer (of compromise by the appellant) was very close to the Respondent on Appeal's result. (ii) The Respondent on Appeal's rejection of the offer was unreasonable. (iii) The figures are so close that had her Honour applied what she held was the award rate ($591.75) as the appropriate rate, the offer and the verdict for the Respondent on Appeal would have been almost identical – with the offer actually exceeding the verdict by a small margin. (iv) The Full Bench held that there was – as had been argued by the Appellants – no claim for overtime in the proceedings below. (v) The $1424 finally awarded was not claimed by the Applicant on any basis other than as overtime payment. (vi) The proposition apparently accepted by the Bench on appeal – that the payment of $1424 was available on the pleadings other than as an overtime payment – was not argued by the Applicant before her Honour, nor before the Full Bench. 4 Mr Rogers relied on Rosser v Maritime Services Board of NSW (No 3) (unreported, Young J, Supreme Court of New South Wales, 1624 of 1993, 16 October 1997; 25 November 1997) for the proposition that where one party's offer is very close to the amount awarded and the other party's offer (if any) at the relevant time is significantly above what it ultimately achieves, the court is obliged to bring those matters into account in assessing costs and may award costs against an otherwise successful applicant: see Walker v Crane Enfield Metals Pty Ltd (unreported, Holland J, Supreme Court of New South Wales, 1 December 1989). Reference was also made to Partridge v Partridge (unreported, Young J, Supreme Court of New South Wales, 28 April 1998). 5 Mr N Dawson of counsel for the respondent opposed the appellants' application essentially on the following grounds: 1) The matter relied upon by the applicant as to why the Court should make an exception to the usual rule that costs follow the event were largely an attempt to re-agitate issues that had already been determined by the Full Bench and should not be countenanced. 2) In Rosser the Court not only considered the amount of the offer but the general conduct of the other party in responding to the offer. 3) In the present case the respondent had also made offers to the appellant to settle and those offers were "close to the mark". Further, the respondent had made a number of attempts, more so than the appellants, to settle both at first instance and on appeal. 4) The Full Bench did not give liberty to the appellant to re-open the issues of costs on the appeal and cross-appeal and the appellants' submissions as to these costs should not be considered. 6 As we noted at pars [45] and [46] of the judgment, the respondent had made a claim for "payment of salary at the rate of pay prevailing in the industry for the period August 1996 to January 1998". The claim was in respect of hours worked in addition to or outside ordinary hours by the respondent for that period. In respect of this period Kavanagh J, using an overtime factor of 1.5, calculated the respondent's overtime entitlement to be $10, 506 less the amount of $5,388 already paid to the respondent for working additional hours, thereby arriving at a figure of $5,118. 7 Whilst we have upheld the appellants' contention that no claim for overtime was pressed before Kavanagh J and, therefore, her Honour erred in awarding any amount based on an overtime calculation, it is not right to say that the respondent never made or pursued a claim for payment for additional hours worked. The claim is in the pleadings and particularised in the respondent's final submission. Where Kavanagh J erred was in applying an overtime rate of 1.5 times in circumstances where no claim had been made in that respect. Consequently, the calculations we have made in par [47] of our judgment are correct and the conclusions flowing from them as to the amount to be awarded to the respondent for working hours in addition to or outside his ordinary hours are well within what was available on appeal in the exercise of discretion. 8 It follows that our preliminary conclusion in relation to costs at first instance was correct on the substantive matters argued by Mr Rogers. However, counsel submitted that consideration should also be given to the appellants' attempts to settle the matter. 9 Attempts at settlement appear to have commenced with a "global" offer by the respondent in May 1999 of $59,000. On 26 May 1999 the appellants made an offer inclusive of costs and interest of $30,000, which was open for 14 days. On 11 June 1999 the respondent rejected the offer of $30,000 and clarified its earlier offer of $59,000 as being made up of $51,500, plus costs of $8,500 but this did not include interest. The respondent's offer remained open for ten days. On 3 September 1999 the appellants made an offer of compromise of $22,515.76 plus interest from 5 January 1998, exclusive of costs. The offer was open for 28 days. On 28 February 2000 the respondent made an offer of compromise of $26,758.90 plus interest from 5 January 1998, exclusive of costs. The offer was open for 28 days. 10 It does not seem to us that either party was recalcitrant in attempting to settle the matter and clearly the appellants made a genuine effort in that respect. 11 Mr Rogers further submitted that if the calculations regarding the respondent's entitlements had been based on the relevant award rate as claimed (namely, $591.75) rather than the rounded up figure of $600 adopted by Kavanagh J, the amount awarded to the respondent would have been less than the appellants' offer of compromise of 3 September 1999 and the respondent would have been required to pay the appellants' costs from that date. However, the figure adopted by her Honour was open to her and was accepted on appeal. 12 As to the costs of the appeal and cross-appeal, Mr Rogers submitted that the appellants had improved their position on appeal by about 15 per cent of the total verdict yet they were required to pay 80 per cent of the respondent's costs of the appeal and cross-appeal. 13 We have decided that some adjustment needs to be made in relation to the burden of costs. Whilst we consider that our decision as to costs at first instance was correct, it may now be seen as a finely balanced issue. We consider the appropriate course is, on balance, not to amend the orders in relation to costs at first instance but a just outcome, overall, will be achieved if we amend our orders in relation to the costs on appeal and cross-appeal so that the appellants will be required to pay 70 per cent of the respondent's costs of the appeal and cross-appeal. Orders 14 We accordingly make the following order: 1) Order 7 in the orders made by this Full Bench in these proceedings on 29 November 2001 is amended by deleting the numeral "80" and inserting in lieu thereof the numeral "70". 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.