IGA Distribution Pty Limited and Moses (No 3) [2003] NSWIRComm 230

IGA Distribution Pty Limited and Moses (No 3) [2003] NSWIRComm 230

The appellant unreasonably failed to agree to a settlement of the unfair dismissal claim because, despite the respondent's repeated offers involving reinstatement or re-employment, it made no actual offer to the respondent and required him to bargain away the primary statutory remedy of reinstatement. The respondent's insistence on employment did not make it futile or unnecessary for the appellant to make an appropriate settlement offer, and the appellant did not properly have regard to its settlement obligations under s 181(2)(c). However, the unusual circumstances, partial grant of leave to appeal, conciliation history, health and safety concerns, and the respondent's own settlement...

Jurisdiction
Australia
Judgment Date
30 July 2003
Procedural Posture
Costs Application in Unfair Dismissal Appeal / Full Bench Determination of Reserved Costs After Leave to Appeal Was Granted in Part and the Appeal Was Dismissed
Outcome
Costs awarded to the respondent in the ordinary way; application for indemnity costs declined.
Legal Topics
['unfair Dismissal' 'costs' 'appeal' 'reinstatement' 'settlement Offers' 'indemnity Costs']
['industrial Relations' 'employment Law' 'practice and Procedure'] ['unfair Dismissal' 'costs' 'appeal' 'reinstatement' 'settlement Offers' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Costs Application in Unfair Dismissal Appeal / Full Bench Determination of Reserved Costs After Leave to Appeal Was Granted in Part and the Appeal Was Dismissed

Legal Issues

  1. 1 ["Whether the appellant should pay the respondent's costs of the unfair dismissal proceedings at first instance and on appeal." 'Whether the appellant instituted the appeal proceedings without reasonable cause under s 181(2)(b) of the Industrial Relations Act 1996.' 'Whether the appellant unreasonably failed to agree to a settlement of the claim under s 181(2)(c) of the Industrial Relations Act 1996.' 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

The appellant unreasonably failed to agree to a settlement of the unfair dismissal claim because, despite the respondent's repeated offers involving reinstatement or re-employment, it made no actual offer to the respondent and required him to bargain away the primary statutory remedy of reinstatement. The respondent's insistence on employment did not make it futile or unnecessary for the appellant to make an appropriate settlement offer, and the appellant did not properly have regard to its settlement obligations under s 181(2)(c). However, the unusual circumstances, partial grant of leave to appeal, conciliation history, health and safety concerns, and the respondent's own settlement...

Court Disposition

Costs awarded to the respondent in the ordinary way; application for indemnity costs declined.

Orders

  • ["The appellant is to pay the respondent's costs of, and incidental to, the proceedings both before Cambridge C and on appeal, in an amount as agreed or, failing agreement, as assessed."]