Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) (No 2) [2007] NSWIRComm 267

Industrial Court of New South Wales

CITATION: Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) (No 2) [2007] NSWIRComm 267

APPELLANT / CROSS RESPONDENT Rod Bowman PARTIES: RESPONDENT / CROSS APPELLANT Ricegrowers Limited (formerly Ricegrowers' Co-Operative Limited)

FILE NUMBER(S): IRC 325 and 476 of 2007

CORAM: Wright J President; Walton J Vice-President; Boland J

CATCHWORDS: Costs - Unfair contract - Appeal - Offer of compromise made under Industrial Relations Commission Rules 1996 by appellant prior to hearing at first instance - Offer rejected by respondent - Appellant successful on appeal - Order on appellant's claim more favourable than appellant's offer of compromise - Whether a genuine offer of compromise by the respondent made prior to the hearing of the appeal and rejected by the appellant was such that it displaced the appellant's entitlement to indemnity costs on and from the date of the respondent's offer of compromise - Respondent's offer of compromise inclusive of costs - Effect of including costs in offer of compromise - Orders made including order that respondent pays the appellant's costs on an indemnity basis

Industrial Relations Act 1996 s 106 LEGISLATION CITED: Industrial Relations Commission Rules 1996 r 168(4), r 168(5)(a), r 216, r 216(4) Supreme Court Rules 1970 Part 52, r 17 Uniform Civil Procedure Rules 2005 r 20.26(2)

Associated Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349 Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) [2007] NSWIRComm 204 Calderbank v Calderbank [1976] Fam 93 Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 Hanave Pty Limited v LFOT Pty Limited (formerly Jager Pty Ltd) & Ors [1998] 1429 FCA Hillier v Sheather (1995) 36 NSWLR 414 CASES CITED: Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 McLean v Commonwealth of Australia (unreported, Supreme Court, NSW, 021250 of 1995, Sperling J, 22 August 1996) Rod Bowman v Ricegrowers' Co-operative Limited [2007] NSWIRComm 27 Rosser v Maritime Services Board of NSW (No 3) (unreported, Supreme Court, NSW, 1624 of 1993, Young J, 25 November 1997) Sheather v Country Energy (No.2) [2007] NSWCA 280 Singh v Harika (No.2) [2005] NSWCA 212 Smallacombe and Others v Lockyer Investment Co Pty Ltd (1993) 114 ALR 568 South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2