Silling v Corrective Services NSW (No 2) [2013] NSWIRComm 7

Industrial Relations Commission New South Wales Medium Neutral Citation: Silling v Corrective Services NSW (No 2) [2013] NSWIRComm 7 Hearing dates: On the papers Decision date: 12 February 2013 Jurisdiction: Industrial Relations Commission Before: Boland J, President Decision: Orders The respondent shall pay the applicant's costs of the proceedings in this matter incurred from 25 July 2011 on a party and party basis as agreed or, failing agreement, as assessed. Catchwords: COSTS - UNFAIR DISMISSAL - Application by applicant for costs on the basis that respondent unreasonably failed to agree to a settlement of the claim - Whether proceedings finalised and Commission functus officio - Consideration of Uniform Civil Procedure Rules regarding entry of judgments - Requirement to file notice of motion under r 36.16(3A) of UCPR dispensed with - Lack of evidence regarding costs issue - Commission not bound by formal rules of evidence - Whether settlement offer by applicant reasonable - Respondent's case weak - Refusal by respondent to countenance settlement - Policy underpinning s 181(2)(c) of Industrial Relations Act 1996 - Discretion exercised to order respondent to pay applicant's costs Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 Carlton and United Beverages Ltd v Brunt [2007] NSWIRComm 135; (2007) 164 IR 184 Department of Health v Perihan Kaplan (No 4) [2011] NSWIRComm 63 Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400 IGA Distribution Pty Ltd and Moses (No 3) [2003] NSWIRComm 230; (2003) 130 IR 145 Orr v Homes [1948] HCA 16; (1948) 76 CLR 632 Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [1988] HCA 2; (1988) 77 ALR 190 Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140 Silling v Corrective Services NSW [2011] NSWIRComm 1056 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Youssef v Western Sydney Area Health Service (No 3) [2004] NSWIRComm 124; (2004) 133 IR 210 Category: Costs Parties: Michael John Silling (Applicant) Department of Attorney General and Justice (Corrective Services NSW) (Respondent) Representation: Mr A Hatcher SC (Applicant) Mr S Prince of counsel (Respondent) W G McNally Jones Staff Lawyers (Applicant) I V Knight Crown Solicitor (Respondent) File Number(s): IRC 1199 of 2011