Burgess & Ors v Mount Thorley Operations Pty Limited [2003] NSWIRComm 22

Burgess & Ors v Mount Thorley Operations Pty Limited [2003] NSWIRComm 22

No indemnity costs order is justified because settlement offers made at conciliation and in Calderbank letters, although more favourable than the final outcome, were not certain or individually tailored and included resolution of other proceedings (AIRC) for which no evidence was before the Court; applicants did not act unreasonably in rejecting, so the proper order is the usual party/party basis: applicants to bear respondent's costs as agreed or assessed.

Parties
Applicant: Michael John Burgess; Applicant: Raymond Gordon Wills; Applicant: Marvyn Smith; Applicant: Rodney William Jones; Applicant: Geoffrey Ian Bright; Applicant: Charles Anthony Mitchell; Applicant: Barry Fong; Applicant: Leslie James Irvine; Applicant: William Robert Hoye; Applicant: Frederick George Veigel; Applicant: Michael Bruce Sampson; Applicant: Ross Allen Brown; Applicant: Michael Mathew Phillips; Applicant: John Douglas Cuddigan; Respondent: Mount Thorley Operations Pty Limited
Jurisdiction
Australia
Judgment Date
13 February 2003
Procedural Posture
Application Under Section 106 of the Industrial Relations Act 1996 / Judgment on Costs After Dismissal of Applications
Outcome
Applicants to bear respondent's costs as agreed or assessed; no indemnity costs order.
Legal Topics
Costs, Jurisdiction, Offers of Settlement, Indemnity Costs, Calderbank Offers, Conciliation Conferencing
Industrial Law Costs Jurisdiction Offers of Settlement Indemnity Costs Calderbank Offers Conciliation Conferencing

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Parties

Michael John Burgess

Applicant

Raymond Gordon Wills

Applicant

Marvyn Smith

Applicant

Rodney William Jones

Applicant

Geoffrey Ian Bright

Applicant

Charles Anthony Mitchell

Applicant

Barry Fong

Applicant

Leslie James Irvine

Applicant

William Robert Hoye

Applicant

Frederick George Veigel

Applicant

Michael Bruce Sampson

Applicant

Ross Allen Brown

Applicant

Michael Mathew Phillips

Applicant

John Douglas Cuddigan

Applicant

Mount Thorley Operations Pty Limited

Respondent

Procedural Posture

Application Under Section 106 of the Industrial Relations Act 1996 / Judgment on Costs After Dismissal of Applications

Legal Issues

  1. 1 Whether offers made in conciliation and Calderbank offers entitle respondent to indemnity costs
  2. 2 Whether applicants acted unreasonably in rejecting settlement offers
  3. 3 Discretion regarding costs orders after dismissal based on jurisdiction

Ratio Decidendi

No indemnity costs order is justified because settlement offers made at conciliation and in Calderbank letters, although more favourable than the final outcome, were not certain or individually tailored and included resolution of other proceedings (AIRC) for which no evidence was before the Court; applicants did not act unreasonably in rejecting, so the proper order is the usual party/party basis: applicants to bear respondent's costs as agreed or assessed.

Court Disposition

Applicants to bear respondent's costs as agreed or assessed; no indemnity costs order.

Orders

  • Applicants to bear respondent's costs as agreed or assessed