Port Kembla Coal Terminal Limited v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (No 2) [2014] NSWIC 3

Industrial Court New South Wales

Medium Neutral Citation: Port Kembla Coal Terminal Limited v Construction, Forestry, Mining and Energy Union (New South Wales Branch) (No 2) [2014] NSWIC 3 Hearing dates: 15 August 2014; 26 September 2014 Decision date: 04 November 2014 Before: Walton J, President, Staff J, Boland AJ Decision: The Court makes the following orders: (1)In respect of proceedings in Matter No IRC 6506 of 2005: (a)The Construction, Forestry, Mining and Energy Union (New South Wales Branch) shall pay Port Kembla Coal Terminal Limited's costs: (i)Ordered on 24 May 2007 (in respect of the costs thrown away by the amendment of the proceedings); (ii)On an ordinary basis as agreed or assessed from 12 December 2005 to 1 October 2012; (iii)On an indemnity basis as agreed or assessed from 2 October 2012. (2)In respect of proceedings in Matter No IRC 895 of 2013, the Construction, Forestry, Mining and Energy Union (New South Wales Branch) shall pay Port Kembla Coal Terminal Limited's costs on an ordinary basis as agreed or assessed. Catchwords: COSTS - Costs of appeal and costs at first instance - Whether costs at first instance and on appeal should be on an indemnity basis following pre-trial offer of compromise by appellant - Whether offer was in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 - Whether a reasonable time was allowed for acceptance of the offer - Whether the offer was a genuine attempt to compromise - Whether a pre-trial offer of compromise is effective in relation to subsequent appeal proceedings - Indemnity costs ordered in relation to first instance proceedings - Costs on the ordinary basis in relation to the appeal proceedings Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005 Uniform Civil Procedure Rules (Amendment No 31) 2009 Cases Cited: Port Kembla Coal Terminal Limited v Construction, Forestry, Mining and Energy Union (New South Wales Branch) [2014] NSWIRComm 39 Calderbank v Calderbank [1975] 3 All ER 333 Construction Forestry Mining and Energy Union (New South Wales Branch) v Port Kembla Coal Terminal Limited [2013] NSWIRComm 92 Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141 Grace v Thomas Street Café Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Leichhardt Municipal Council v Green [2004] NSWCA 341 Melchior v Sydney Adventist Hospital Ltd (No 2) [2009] NSWSC 65 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Taheri v Vitek (No 2) [2014] NSWCA 344 Vagg v McPhee (No 2) [2012] NSWSC 187 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Category: Costs Parties: Port Kembla Coal Terminal Limited (Appellant) Construction, Forestry, Mining and Energy Union (New South Wales Branch) (Respondent) Representation: S E J Prince of counsel (Appellant) R Reitano of counsel (Respondent) Ashurst Australia Lawyers (Appellant) Slater & Gordon Lawyers (Respondent) File Number(s): IRC 895 of 2013 Decision under appeal Citation: [2013] NSWIRComm 92 Date of Decision: 2013-10-21 00:00:00 Before: Haylen J File Number(s): IRC 6506 of 2005