Ross v A E R Pty Ltd (No 2) [2005] NSWIRComm 1190

Industrial Relations Commission of New South Wales

CITATION: Ross v A E R Pty Ltd (No 2) [2005] NSWIRComm 1190

APPLICANT Helen Miriam Ross

PARTIES: RESPONDENT A E R Pty Ltd

FILE NUMBER(S): 5817 of 2003

CORAM: McLeay C

CATCHWORDS: Costs - unfair dismissal - decision as to credit of witnesses different to finding of CIM - found, application not frivolous or vexatious - found, not unreasonable failure to agree to settlement - no order as to costs

LEGISLATION CITED: Industrial Relations Act 1996

Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66 CASES CITED: Youssef and Western Sydney Area Health Service (No 3) [2004] NSWIRComm 124 Dee Donovan and Tanya Sullivan t/as Blaze on Stage Pty Ltd [2005] NSWIRComm 362

DATE OF JUDGMENT: 11/18/2005

APPLICANT Mr J Law, agent John F Law & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr T Fox, solicitor Fox & Associates Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C

18 November 2005

Matter No IRC 5817 of 2003

Helen Miriam Ross and A E R Pty Ltd

Application by Helen Miriam Ross re unfair dismissal pursuant to section 84 of the industrial Relations Act 1996

JUDGMENT

[2005] NSWIRComm 1190

1 A decision regarding the applicant's claim for unfair dismissal was handed down on 30 August 2005 in [2005] NSWIRComm 1140, following which a claim for costs was made by the respondent, pursuant to s 181(2) of the Industrial Relations Act 1996. Written submissions were received from both parties. 2 The respondent submitted that the applicant should be required to pay the respondent's reasonable costs on a party/party basis until 31 May 2004 (the date when the respondent's offer of settlement was put in writing to the applicant) and on an indemnity basis from that date until conclusion of the proceedings. 3 The relevant section of the Act reads as follows: (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (c1) ... (d) ... .... (3) ... .... (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.