Eddy James Candido and L & M Scott Haulage Pty Ltd No. 2 [2003] NSWIRComm 248 (8 August 2003)

Last Updated: 11 August 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Eddy James Candido and L & M Scott Haulage Pty Ltd No. 2 [2003] NSWIRComm 248

FILE NUMBER(S): 1242

HEARING DATE(S): 14/03/2001, 17/04/2001, 16/07/2003

DECISION DATE: 08/08/2003

PARTIES:

Eddy James Candido

L & M Scott Haulage Pty Ltd

JUDGMENT OF: Grayson DP

LEGAL REPRESENTATIVES

Chricton Brown Crossley

(Mr K Gourlie, solicitor)

Mr D Allen of counsel instructed by

Hancocks (Mr J Hancock, solicitor)

CASES CITED: Calderbank v Calderbank (1975) 3 All ER 333

Bankstown City Council v Paris (1999) 93 IR 209

Copperart v Martin (1996) 68 IR 58

Blagojevch v Australian Industrial Relations Commission (2000) 98 IR 32

Krajewska v University of Adelaide No. 2 (1993) 50 IR 63

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 7 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Coram: Grayson DP

Date: 8 August 2003

Matter No IRC 1242 OF 2000

EDDY JAMES CANDIDO AND L & M SCOTT HAULAGE PTY LIMITED

Application by Eddy James Candido re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996

DECISION

[2003] NSWIRComm 248

1 This matter has been restored to the list, the file having been retrieved from the archives following a telephone call to my Associate from Mr. J Hancock, solicitor, acting for the employer. The telephone call from Mr. Hancock was received in late June 2003 enquiring about an application for costs against the applicant worker who obtained an award of compensation from the Commission on 7 February 2001. The worker had been unfairly dismissed by the employer. On 6 March 2001 Mr. Hancock filed a Notice of Motion seeking an order under s 181 (2) (c) of the Industrial Relations Act 1996 that the applicant worker pay the respondent employer's costs from 16 May 2000 or from such other date as the Commission may consider appropriate.

2 The Notice of Motion was accompanied by an affidavit sworn by John Leslie Hancock on 6 March 2001 in the following terms:

On 6 March 2001, John Leslie Hancock of Suite 33, 330 Wattle Street, Ultimo, New South Wales, Solicitor say on oath:

1. I am the solicitor for the respondent.

2. On 16 May 2000 I attended a conference at the Industrial Relations Commission in this matter. Dr Berwick appeared for the applicant.

3. In a settlement conference outside of the Court room.

Dr. Berwick said words to the effect, "the applicant wants $15000.00 which is $12000 nett".

I said to Dr Berwick words to the effect, "The respondent offers $12000.00".

I then said words to the effect, "This money is being borrowed from a third party. The respondent cannot afford to pay any more it is in a precarious financial position which your client is aware".

There were further discussions between Dr Berwick and the applicant and I telephoned Darren Scott a director of the Respondent in relation to the offers.

The settlement discussions resumed and Dr Berwick said words to the effect "the applicant will only accept $12,000 nett"

I said words to the effect "the respondent can only afford $12,000.00 which money is being borrowed"

The discussion between the parties ended

4. Shortly after on or about 18 May 2000 I received a letter a true copy of which is attached hereto and marked with the letter "A" from the solicitors for the applicant.

5. On 27 June 2000 I sent by facsimile to the applicant's solicitors a letter a true copy of which is annexed hereto and marked with the letter "B".

6. I did not receive a reply to this letter.

7. On 15 September 2000 I sent by facsimile a letter to the solicitors for the applicant, a true copy of which is annexed hereto and marked with the letter "C".

8. I did not receive a reply to this letter.

9. On 20 October 2000 I received a letter from the solicitors for the applicant, a true copy of which is annexed hereto and marked with the letter "D".

3 The letter referred to above as Annexure "A" to the affidavit indicated that the applicant worker would accept $20,000 from the respondent inclusive of costs in full and final settlement of the matter.

4 The letter referred to above as Annexure "B" to the affidavit indicated firstly that the employer would pay $7,500 in full and final settlement of the worker's claim and secondly, that the letter should be regarded as a Calderbank letter (see Calderbank v Calderbank [1975] 3 All ER 333).

5 The letter referred to above as Annexure "C" to the affidavit was in terms identical to Annexure "B".

6 The final letter, referred to as Annexure "D" indicated that the worker would settle his claim for $17,500. The Commission was not informed at any stage prior to the Notice of Motion being filed that offers of settlement had been exchanged. In the absence of settlement, the matter went to hearing and the worker ultimately obtained an award of compensation in the amount of $6000.

7 The employer's motion was listed for directions on 14 March 2001 at which time the employer was given until 21 March 2001 to put on its evidence and the worker was given until 11 April 2001. In so directing the parties, the Commission said this:

HIS HONOUR: I think I will put it in sometime after 11 April by which time the affidavit material should be on from both sides. I will put it in for a directions hearing and would you anticipate being in a position to indicate on that day whether court time will be required to cross-examine deponents. Subject to that, we can move forward into a timetable for written submissions. What about Tuesday 17 April at 10am? I don't expect you need to be here or Dr Berwick but somebody has to be here to answer those questions. I will put it in for directions at 10 am on Tuesday 17 April.

8 On 17 April 2001, Mr K. Gourlie of Chrichton Brown Crossley, solicitors appeared for the worker and Mr. D. Allen of counsel for the employer. In the course of ascertaining compliance with the above directions, the Commission was informed that the worker had yet to be paid his compensation monies notwithstanding that they were to be paid by 28 April 2001. The transcript reveals the following exchange which I publish in order that later events are better understood:

HIS HONOUR: By the way, have you yet been paid?

GOURLIE: No.

HIS HONOUR: There is a real issue as to why this Commission should move to entertain the motion seeking costs against Mr Gourlie's client when your client does not come here with clean hands.

ALLEN: I agree with your Honour in that respect. I would seek a short adjournment and seek instructions, and hopefully an undertaking, that the monies will be forthcoming.

HIS HONOUR: I note for the record when the orders were made on 7 February 2001 that the amount of $6000 was ordered to paid within 21 days. So Mr Allen, would you take some instructions and I will stand the matter down momentarily for that purpose.

ALLEN: I am very grateful, your Honour.

SHORT ADJOURNMENT

ALLEN: I propose that the Commission make the order that a payment be made in full by the 27th of this month. Failing that, the application would be to permanently stay the motion.

I can give an explanation as to why the money has not been paid. My instructions are there has been nothing, it has been a miscommunication between my solicitor and the client as (sic) when the money would be paid. I am not in a position to give evidence on that, but I can depose that. I can say there has been nothing malicious in not paying. The Respondent admits it is at fault and proposes to pay by the 27th of this month and if it is not paid the motion should be dismissed.

GOURLIE: It was served directly on the Respondent, the judgment. So it is a bit surprising they were not aware of the obligation.

ALLEN: No, there is a miscommunication as to when and how the money was to be paid.

HIS HONOUR: Be that as it may, the terms of the judgment were in my humble opinion abundantly clear in that regard. For whatever reason there appears to be a delinquency on the part of your client, Mr Allen.

Mr Gourlie, having said that, is the course proposed by Mr Allen a convenient course for your side?

GOURLIE: It is a course we can leave (sic) with.

HIS HONOUR: The Commission would by and with consent of the parties order that the unpaid judgment monies be paid by 27 April 2001 in default of which this application will be permanently stayed.

In respect of progressing the motion it would seem as though an appropriate course in the interests of avoiding further costs and the interests of the parties would be to fix a timetable from 27 April 2001 by which time the Respondent, that is your side, Mr Allen, is directed to file and serve the written submissions in support of the motion no later than 11 May 2001.

Your side, Mr Gourlie, should file and serve written submissions by not later 25 May 2001.

When yours come in, Mr Allen, they should be accompanied by a letter from your instructing solicitor indicating that the judgment monies have been paid. Mr Gourlie, it is appropriate when yours come in that that payment should be acknowledged as well. Any further orders or directions? If not, the matter is adjourned.

9 The matter was thereafter removed from the list pending receipt of written submissions. None were filed as directed or otherwise transmitted to the Commission. Furthermore, the Commission was not informed as a directed condition precedent to this motion going forward, that the worker had received the benefits of his award. In the circumstances, I took the view that the matter was not pressed and on 15 February 2002, returned the file for archiving.

10 To the extent that such a course may have been somewhat unusual, it needs to be viewed against a background of general delinquency on the part of the employer from the outset with respect to compliance with directions. In that regard, I note although do not recite the Commission's detailed observations in the decision published on 7 February 2001. I note further the employer's non-compliance with orders for payment of compensation monies to which earlier reference has been made. I note further yet that the worker applied for and duly obtained a Certificate of Order under the Industrial Relations Act 1996 (see s 182) enabling him to enforce his award in the absence of payment by the employer.

11 At all events and following the telephone enquiry from Mr Hancock, the employer's solicitor, more than two years after the due date for submissions, the Commission was provided by facsimile transmission on 16 July 2003 with the written submissions of counsel for the employer Mr Allen which on the face of them were drafted on 17 April 2001 and presumably sent to Mr Hancock on or shortly after that date.

12 The absence of the usual registry stamp on the document and a search of the computerised registry record indicates that the submissions were never filed and it is inappropriate in the circumstances for Mr Hancock in a covering letter accompanying the written submissions on 16 July 2003 to refer to documents "which are not on the [court] file". Clearly, the written submissions were not on the file because prior to 16 July 2003, they were not filed or otherwise transmitted to the Commission.

13 Be that as it may, there is no warrant in my opinion for an order that the worker pay the employer's costs merely because he was offered more to settle his case than he was ultimately awarded. Indeed it may be that absent the directed confirmation that judgment monies have been paid by the due date, the motion cannot be enlivened and accordingly remains indefinitely stayed. Certainly, the Commission has been and remains uninformed in that regard notwithstanding directions to that effect which were made on 17 April 2001 and which appear, as with other directions to have been overlooked.

14 Leaving that consideration aside, however, in the interests of dealing with the substance of the employer's contention as to costs, it is well settled that costs will only be awarded in unfair dismissal proceedings where it is established that there has been an unreasonable failure to settle (see for example Bankstown City Council v Paris [1999] 93 IR 209; Copperart v Martin [1996] 68 IR 58 and others) and further, that there is no reason to give primacy in such considerations to the result of a mechanical comparison between an amount offered and the amount ultimately awarded (Blagojevch v Australian Industrial Relations Commission [2000] 98 IR 32). The question whether a person acts unreasonably in failing to discontinue or settle a matter before trial must be judged in the light of all of the circumstances known or which reasonably should have been known before the trial commences (Krajewska v University of Adelaide (No 2) [1993] 50 IR 63).

15 I do not consider in all of the circumstances of this case that the worker should be held to have acted unreasonably in refusing to settle his case, although I would observe that had the Commission been made aware in conciliation, as is regularly the case, of the bargaining positions of the parties in settlement negotiations, then more assistance may have been provided in the interests of achieving a conciliated outcome.

16 As it was, the Commission only learned of such matters in the aftermath of hearing and it is to be assumed, safely I think, that the worker who was in the hands of an experienced barrister and solicitor throughout the proceedings, was guided in that regard in the bargaining position he adopted during settlement negotiations.

17 In my opinion, there is no proper basis on which to make the orders sought by the employer and I dismiss the application accordingly.

LAST UPDATED: 08/08/2003