Brien v Harrisons Timber and Hardware [2005] NSWIRComm 1115

Brien v Harrisons Timber and Hardware [2005] NSWIRComm 1115

The employer unreasonably failed to agree to a settlement because its settlement position at conciliation was unrealistically rigid, did not involve a careful assessment of the strengths and weaknesses of its case, and it failed to respond at all to the applicant's solicitor's letter of 22 December 2003. However, its conduct was not so highly irregular or improper as to constitute special circumstances justifying indemnity costs, so costs were ordered on the usual basis.

Jurisdiction
Australia
Judgment Date
19 July 2005
Procedural Posture
Application for Costs in Unfair Dismissal Proceedings Pursuant to Section 84 of the Industrial Relations Act 1996 [nsw] / Decision on Costs After the Applicant Had Obtained Compensation Orders
Outcome
Application for costs succeeded; indemnity costs refused; costs ordered on the usual basis.
Legal Topics
['unfair Dismissal' 'costs in Unfair Dismissal Proceedings' 'unreasonable Failure to Agree to Settlement' 'indemnity Costs' 'party Party Costs']
['industrial Relations' 'employment Law' 'costs'] ['unfair Dismissal' 'costs in Unfair Dismissal Proceedings' 'unreasonable Failure to Agree to Settlement' 'indemnity Costs' 'party Party Costs']

Case Brief

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Procedural Posture

Application for Costs in Unfair Dismissal Proceedings Pursuant to Section 84 of the Industrial Relations Act 1996 [nsw] / Decision on Costs After the Applicant Had Obtained Compensation Orders

Legal Issues

  1. 1 ['Whether the employer unreasonably failed to agree to a settlement of the unfair dismissal claim within section 181(2)(c) of the Industrial Relations Act 1996 [NSW].' 'Whether costs should be ordered in favour of the applicant.' 'Whether any costs should be ordered on an indemnity basis.']

Ratio Decidendi

The employer unreasonably failed to agree to a settlement because its settlement position at conciliation was unrealistically rigid, did not involve a careful assessment of the strengths and weaknesses of its case, and it failed to respond at all to the applicant's solicitor's letter of 22 December 2003. However, its conduct was not so highly irregular or improper as to constitute special circumstances justifying indemnity costs, so costs were ordered on the usual basis.

Court Disposition

Application for costs succeeded; indemnity costs refused; costs ordered on the usual basis.

Orders

  • ["The employer is Ordered to pay the applicant's costs in respect of these proceedings and of an amount as agreed or assessed." 'Unless assessment of the amount of costs as provided for in Order 1 above is required, the employer shall pay the costs as Ordered within twenty one days from the date of this Decision.']