Hilton Nursing Home Pty Ltd v Maciver

Industrial Relations Commission (NSW)|2000-04-10|Before: Wright J, Hungerford J, Boland J, Schmidt J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Hilton Nursing Home Pty Ltd v Maciver [2000] NSWIRComm 252 APPELLANT/CROSS RESPONDENT: PARTIES : Hilton Nursing Home Pty Limited RESPONDENT/CROSS APPELLANT: Heather Alison Maciver FILE NUMBER: IRC 2139 and IRC 2185 of 2000 CORAM: Wright J President; Hungerford J; Boland J Unfair contract - Appeal and cross appeal - Offer of compromise - Whether Court functus officio - Costs - Slip rule - Whether s 106 could be utilised to defeat statutory limitation period under s 365 - Held, Court not functus - Offer of compromise and costs issue remitted back to trial judge - Held, arguable case that error made in calculation of monies awarded and consequently matter remitted back to trial judge for consideration under slip rule - Leave refused in relation to other matters raised on appeal and cross appeal

CATCHWORDS : Recovery of Wages - Appeal and cross appeal - Leave to appeal - Whether s 106 could be utilised to defeat statutory limitation period under s 365 - Leave refused

Appeal and cross appeal - Leave to appeal - Offer of compromise - Whether Court functus officio - Costs - Slip rule - Whether s 106 could be utilised to defeat statutory limitation period under s 365 - Held, Court not functus - Offer of compromise and costs issue remitted back to trial judge - Held, arguable case that error made in calculation of monies awarded and consequently matter remitted back to trial judge for consideration under slip rule - Leave refused in relation to other matters raised on appeal and cross appeal

Industrial Arbitration Act 1940 (Repealed) LEGISLATION CITED : Industrial Relations Act 1996 s106 s 188(2) s 365 Industrial Relations Commission Rules 1996 r 172(2) r 203 r 216 Supreme Court Act 1970 Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Huskisson RSL Sub Branch Ltd v Sullivan (1990) 20 NSWLR 332 [1990] 32 IR 404 CASES CITED : McEwen v AIDC Ltd (unreported, Schmidt J, 10 April 2000) Perrott v Xcellenet Australia Ltd (1998) 84 IR 255 Port Macquarie Golf Club Ltd v Stead (1995) 64 IR 53 Solicitors (State) Award (No 3) (1997) 72 IR 255 Stone Microsystems (Australia) Pty Ltd v Kwong (1997) 42 NSWLR 160, (1997) 85 IR 237 HEARING DATES: 11/23/2000 DATE OF JUDGMENT: 12/15/2000

APPELLANT/CROSS RESPONDENT Mr J W Shaw QC with Mr A R Moses of counsel Solicitor: Mr M Fishburn Fishburn Watson O'Brien

LEGAL REPRESENTATIVES: RESPONDENT/CROSS APPELLANT Mr R Moore of counsel Solicitor: Mr G Moin Sharpe Partners Legal (Incorporating Moin & Associates)

JUDGMENT:

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President HUNGERFORD J, BOLAND J Friday 15 December 2000

HILTON NURSING HOME PTY LIMITED v HEATHER ALISON MACIVER Application by Hilton Nursing Home Pty Limited for leave to appeal and appeal against decisions and orders of Justice Schmidt given on 20 April 1999, 13 August 1999, 20 April 2000 and 22 May 2000 in Matters Nos IRC 513 and 1788 of 1997

HEATHER ALISON MACIVER v HILTON NURSING HOME PTY LIMITED Application by Heather Alison Maciver for leave to appeal and appeal against decisions and orders of Justice Schmidt given on 13 August 1999, 20 April 2000 and 22 May 2000 in Matters Nos IRC 513 and 1788 of 1997. JUDGMENT OF THE COURT [2000] NSWIRComm 252 1 This is an appeal and cross-appeal from judgments and orders of Schmidt J dated 20 April 1999, 13 August 1999, 20 April 2000 and 22 May 2000. Leave to appeal is also sought in each case.

2 The proceedings below were brought by Heather Alison Maciver ("Mrs Maciver") against Hilton Nursing Home Pty Limited ("Hilton Nursing Home") under s 106 of the Industrial Relations Act 1996.

3 The claim by Mrs Maciver and the background to it was set out in the first judgment of Schmidt J as follows: These applications were brought by Mrs Heather Alison Maciver, who until she was dismissed on account of redundancy in April 1996, was employed by the respondent, Hilton Nursing Home Pty Ltd ('Hilton'), as a grade 5 clerk under the Aged Care General Services Rates of Pay (State) Award and its predecessors. Mrs Maciver had been first employed by Hilton at its nursing home in Armidale on a part-time basis in 1985. Her hours of work increased by agreement over the ensuing years until her employment became full time in 1989. The terms of the agreement which was made at that time and how it later operated in practice has given rise to this litigation. The 1989 agreement had a number of features which were not in dispute. Firstly, that Mrs Maciver would have her ordinary working hours increased from some 32 hours per week to 38 hours; secondly, that Mrs Maciver would work from home, apart from some 8 hours per week on two days of the week, when she would work at the nursing home; thirdly, that the times at which she would otherwise perform her work were left to Mrs Maciver to determine, she being free to work at times which best suited her and her family circumstances; fourthly, that she would report to one of the proprietors of the nursing home, Mr Barry Cougle and fifthly, that she would be paid the applicable award rate for a full time grade 5 clerk. Mrs Maciver's employment continued on this footing until she was made redundant in 1996. On the evidence it can be inferred that the termination of Mrs Maciver's employment resulted from the consequences of a falling out which she had with the nursing home's director of nursing, Mrs Jenkins, who had been appointed to that position in late 1994. That falling out initially arose over differences between Mrs Maciver and Mrs Jenkins as to whether or not Mrs Maciver was obliged to report to Mrs Jenkins and the work she was obliged to perform. During the course of discussions about these differences in 1995, in which attempts were made for agreement to be reached upon a position description and job title for Mrs Maciver, she made a claim that she was working 60 to 70 hours per week to complete all of the duties she had been given over the course of her employment. That claim ultimately formed the basis of these two applications. The claim brought under s 365 of the Act sought total payment of $69,000 in respect of unpaid overtime and penalty payments in the period February 1989 to April 1996 ($50,000); unpaid work on public holidays ($8,250) and failure to reimburse expenses, including for use of Mrs Maciver's vehicle ($10,750). It was accepted by Mr Moore of counsel appearing for Mrs Maciver that due to the relevant statutory limitation period, this claim was only available in respect of the period after 3 April 1991. As to working hours, the claim in the s 365 case was calculated by reference to 22 hours per week overtime, (a total of 60, rather than 70, hours per week), the first 10 at time and a half, and the balance at double time worked throughout the period in question, in the performance of specified duties. The claim brought under s 106 of the Act made various allegations as to the unfairness of the contract between the parties and advanced the following claims: "(1) An order declaring void in whole or in part or varying in whole or in part either ab initio or from such other time the contract or arrangement between the Applicant and the Respondent ('the contract') whereby the Applicant performed work in an industry. (2) Further and in addition a declaration that the Contract between the Applicant and the Respondent was an unfair contract in the requisite sense in that it was unfair or harsh or unconscionable or contrary to the public interest. (3) Further and in addition a declaration that the Contract between the Applicant and the Respondent was an unfair contract in the requisite sense in that it was designed to, or does, avoid the provisions of an industrial instrument. (4) Orders varying the terms of the said Contract such as to provide: (a) a remuneration not less than that of a Clerk Grade 5 under the terms and conditions of the relevant awards as would otherwise apply to the operations of the Respondent and the work as performed by the Applicant for the hours as worked by the Applicant in the period 9 February 1989 to 15 April 1996 in lieu of the salary as fixed under the Contract and inclusive of all allowances, penalty payments and the like payable under the said awards; (b) an appropriate level of compensation by way of rent or the like to compensative for the use of part of the Applicant's home by way of office accommodation in the period 9 February 1989 to 15 April 1996 by the Respondent in order that the Applicant may properly have carried out her duties (c) an appropriate payment by way of severance payment, notice and the like as at 15 April 1996 such as to adequately compensate the Applicant for the loss of her employment with the Respondent. (d) an appropriate payment by way of compensation or reimbursement of expense in the period 9 February 1989 to 15 April 1996 from the Respondent to the Applicant in recognition of the use by the Applicant of her private motor vehicle for the benefit of the Respondent. (5). In the alternative, that the Respondent be ordered to pay to the Applicant compensation for the work as performed by the Applicant for the loss of employment and for the facilities as provided by the Applicant in the period 9 February 1989 to 15 April 1996 in such amount as the Commission considers just in the circumstances of the case. (6). Interest. (7). Costs. 4 Her Honour found that the contract was unfair. In her judgment Schmidt J said: What is to be rationally made of all of this evidence? It is unarguable that in some weeks Mrs Maciver was required to work for more than 38 hours per week. A case was however not made out that, on average, over the course of the whole of her employment as a full time employee, Mrs Maciver worked 60 to 70 hours per week. Proper findings available on the evidence were that Mrs Maciver's duties increased over the time that she was employed, from which it necessarily followed that her hours of work increased; that her duties increased as Mr Cougle's direct involvement in the nursing home decreased; that they increased further in connection with the building and operation of the Hilton Terraces; that there was a further increase in connection with additional work given in 1994 and 1995; but that as a result of steps taken by Mrs Maciver, her hours decreased from 30 August 1995. What must also be accepted is that Mrs Maciver performed work on days not specified in her timesheets, particularly on evenings and weekends and that additional work was performed to make up for her absences on annual leave. There was however insufficient evidence for it to be open to conclude that the claim in relation to work on public holidays was made out. It must be rejected. Should these findings be reflected in monetary orders made in favour of Mrs Maciver? I have thought very carefully about the respondent's complaints as to the nature of the case it was obliged to meet, particularly in relation to quantification. I have concluded however that much of this difficulty was of the respondent's own making. Despite my reservations about the case advanced by Mrs Maciver, I take the view that she must succeed in the claim which she has brought, with a monetary order being made in her favour. I accept however that the question of quantification must be approached rather cautiously. As to the hours upon which the calculations are to be based, having given careful consideration to the evidence and having weighed the various matters, I have earlier mentioned, I have concluded that the calculations should reflect the following hours: · From the commencement of the arrangement in 1989, 45 hours per week. · From the time the construction of the Hilton Terraces commenced, 47 hours per week. · From 1994, 51 hours per week. · From 30 August 1995 until Mrs Maciver ceased actually working later in 1995, 49 hours per week. Adjustments to the resulting calculations for matters such as leave taken, will need to be attended to. 5 In relation to orders, her Honour said: The orders to be made to give effect to this judgment must be prepared and the monetary order quantified. The orders should include a variation to the contract to reflect the conclusions reached as to the unfairness found. Mrs Maciver is not entitled to orders in respect of both claims advanced, but of course the orders made under s 106 will satisfy any moneys owing in respect of the s 365 claim. The applicant is to prepare and provide to the respondent draft orders which reflect this judgment, including an order for costs in favour of the applicant. The parties are directed to confer on the draft orders. They have liberty to apply in respect of any disagreement, particularly as to the quantification of the monetary order to be made under s 106(5). Otherwise, the orders should be filed within 28 days of this judgment. 6 The parties were unable to agree on appropriate orders and, having directed the parties to file their competing orders and written submissions, her Honour handed down a supplementary judgment on 13 August 1999. In that judgment, it was relevantly held: (i) An order would be made for interest on the net amount payable to Mrs Maciver as from the date of filing the claim in accordance with Schedule J of the Supreme Court Act 1970. (ii) Hilton Nursing Home to pay Mrs Maciver's costs as agreed or assessed. (iii) Mrs Maciver did make out a case with the "special characteristics" discussed in Huskisson RSL Sub Branch Club Ltd v Sullivan (1990) 20 NSWLR 332; and therefore the submission by Hilton Nursing Home that money orders should be limited within the period 3 April 1991 to April 1996, consistent with the statutory limitation period under s 365 of the Act, could not be accepted. (iv) The applicant to file minutes of the final orders within 21 days. 7 Further difficulties arose in relation to the calculation of the monetary order and the calculation of the net sum upon which interest would flow, as well as a claim for the payment to Mrs Maciver of meal allowance. These matters were addressed in a further judgment of her Honour on 20 April 2000 in which it was decided in relation to the meal allowance claim that it was too late for such claim to be advanced. The other matters were addressed in the order her Honour made which was in the following terms: In Matter No. IRC 513 of 1997: 1. The contract made on or about 9 February 1989 between the Applicant and the Respondent whereby the Applicant performed work in the nursing home industry until 15 April 1996 is declared to have been an unfair contract under section 106(1). 2. The said contract is to be varied as such as to provide: (a) that the Applicant in the period 9 February 1989 to 15 April 1996 be paid a remuneration equivalent to that paid to an employee classified as Clerk Grade 5 under the relevant awards then applying in the private nursing home industry. (b) that the remuneration of the Applicant be calculated in the periods as identified below by reference to the following total hours worked by the Applicant: (i) In the period 9 February 1989 to 30 October 1994: 45 hours per week (ii) In the period 31 October 1994 to 31 December 1994: 47 hours per week (iii) In the period 1 January 1995 to 29 August 1995: 51 hours per week (iv) In the period 30 August 1995 to 18 December 1995: 49 hours per week 3. That the Respondent pay to the Applicant an amount of $54,460.46 in connection with the said contract as varied together with interest from 5 February 1997 to date of Judgment calculated on the net amount of $33,621.46 and continuing thereafter in accordance with Schedule J to the Supreme Court Act 1970. 4. That the Respondent pay the costs of the Applicant as agreed or assessed. In Matter No. IRC 1788 of 1997: 1. That the Application be dismissed upon the basis that the Orders made by the Commission in Matter No. IRC 513 of 1997 fully satisfy any Orders which would have otherwise been made in relation to the said Application. 2. That the Respondent is to pay the Applicant's costs as agreed or assessed. 8 Subsequent to her Honour's further judgment of 20 April 2000 a number of developments occurred. These were: a request by Mrs Maciver for a correction of the orders made under the slip rule; both parties appealed various aspects of the earlier judgments of her Honour; and Hilton Nursing Home requested the Court to make orders in accordance with r 216 of the Industrial Relations Commission Rules 1996 having regard to an offer of compromise made by the respondent in 1998. Her Honour dealt with these matters in another judgment of 22 May 2000.

9 In that judgment, her Honour noted that the application under the slip rule was not pressed by Mrs Maciver in circumstances where the correction sought was opposed by Hilton Nursing Home (this aspect became an issue on appeal). As to the issue of the offer of compromise, her Honour said: 3. At the hearing on 19 April, the parties were not agreed as to whether or not, having regard to the orders made on 20 April, the matter had been finally disposed of. The applicant submitted that the Court was functus, having made an order as to costs. The respondent submitted that not to be the case, having in mind Rule 203, which permitted the Court to exercise its powers and discretions as to costs after the conclusion of the proceedings and Rule 216, it being submitted that offers of compromise were always dealt with at the conclusion of proceedings, after the amount of the monetary orders made by the Court were known. 4. Further, the respondent sought an order for indemnity costs, a departure from what was contemplated in Rule 216 and the applicant sought relief from application of Rule 216, in the particular circumstances of this case. The parties were also not agreed as to whether the convenient course, in light of the appeals, was for me to deal with this matter now, or to await judgment in the appeals. 5. I announced to the parties that I took the view that the Court was functus in the matter. These are my reasons for that view. 6. The orders made in the judgment of 20 April included usual orders as to costs in favour of the applicant, namely, costs as agreed or assessed. Those orders were made in circumstances where the parties had finally addressed two competing formulations of the orders, having in mind the matters which were then disagreed between them, which are dealt with in the judgment of 20 April. 7. While in written submissions earlier filed, the respondent sought to reserve its position in relation to the question of its offer of compromise, no submissions were made opposing the order sought as to costs. In those circumstances, a costs order was made in favour of the applicant, the form of the costs order not being opposed. Having made the orders, the matter came to a conclusion, orders finally disposing of the matter having been made. 8. If the question of the offer of compromise were now to be visited, consideration would have to be given not only to the application of Rule 216 to the offer made, but also the departures from that Rule which each party seeks to advance. 9. The orders made on 20 April evidenced the Court's intention to deal finally with the matter, including the question of costs, in the light of the position which the parties took at the hearing. Had the respondent wished to pursue the question of compromise, the proper course would have plainly been to oppose the making of any costs order. It did not do so. In my view it is too late to seek a different order as to costs, given the orders which have already been made and the circumstances in which that occurred. 10. While reference was made to the judgment on costs in McEwen & Ors v AIDC Limited & Anor (unreported, Schmidt J, 10 April 2000), it is not of assistance in this case, because there neither party had sought an order as to costs at the hearing, whereas here, the applicant sought a costs order, the form of which was not opposed by the respondent. 11. For all of these reasons, the respondents application was refused. Issues on appeal 10 The Honourable J W Shaw QC with Mr A R Moses of counsel appeared for Hilton Nursing Home. The primary issues raised by Hilton Nursing Home on its appeal were as follows: (i) The issue of costs and whether Schmidt J applied wrong legal principles in determining that the Commission was functus officio and, accordingly, could not deal with Hilton Nursing Home's application pursuant to Rule 216 of the Industrial Relation Commission Rules; (ii) The statutory limitation period applying to claims brought under s 365 of the Industrial Relations Act and whether Schmidt J applied wrong legal principles in determining, in effect, that Mrs Maciver could utilise s 106 of the Act to defeat that statutory limitation period. Mr Shaw submitted that the statutory limitation period applied and that the 'special characteristics' referred to in Huskisson were not present in this case.

11 Mr R Moore of counsel appeared for Mrs Maciver. The primary issues raised by counsel in the cross-appeal were as follows: (i) The date from which interest should be paid. Her Honour had determined that interest should be paid from the date of filing the application, namely, 5 February 1997. Mrs Maciver claimed interest from 1 December 1995 or such earlier date as appeared appropriate to the Court in its discretion. (ii) The payment of meal money. Mrs Maciver sought a further $3,948.00 in compensation for meal allowances not paid. (iii) That if the Court rejects the claim relating to meal money, the amount of $33,621.46 appearing in order 3 in Matter No IRC 513 of 1997in her Honour's Further Judgment of 20 April 2000 should, nevertheless, be amended to be $42,751.48. The figure of $33,621.46 was a miscalculation and the slip rule should apply. Leave to appeal and nature of the appeal 12 An appeal brought under Pt 7 of Ch 4 of the Industrial Relations Act will generally attract the normal principles which apply to appeals stricto sensu on questions of fact and/or law: see Re Solicitors (State) Award (No 3) (1996) 72 IR 225 at 234 and Stone Microsystems (Australia) Pty Ltd v Kwong (1997) 42 NSWLR 160 at 163, (1997) 85 IR 237 at 239 and Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32. In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or is not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. 13 In Abboud (92 IR at 42-43) the Full Bench of the Court (Wright J, President, Walton J, Vice President, with Schmidt J dissenting but not on this point) said: In Port Macquarie Golf Club Limited v Stead (1995) 64 IR 53 at 59-60, the Full Bench of the then Industrial Court laid down a series of principles in relation to an appeal brought against a decision of a single judge finding that a contract is unfair. In relation to an appeal brought in respect of factual findings, the Full Bench relevantly said (at 59): "2. In determining whether a finding of unfairness or otherwise under the section has been established, the general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v. Coombes (1978) 142 CLR 531 at 551. … 4. In addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence : The Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107; Clarke & Walker Pty Ltd v Secretary of the Department of Industrial Relations (1985) 3 NSWLR 685 at 690-692; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff; Hussmann Australia Pty Ltd v Walker (1993) 48 IR 396 at 406; Walker v Industrial Court of New South Wales (1994) 53 IR 121 at 129; and Haynes at 154." These statements were made in relation to the previous legislation, however, in our view, the same principles apply to an appeal as to proceedings under s106 of the Act. We respectfully adopt and follow those principles. 14 As to the question of leave to appeal, the requisite test under s 188 of the Industrial Relations Act is not a mere formality and is to be applied judicially by the Full Bench upon a proper case being made out by the appellant: Perrott v Xcellenet Australia Ltd (1998) 84 IR 255 at 265-266.

Consideration 15 There are five issues we consider need to be addressed in these present applications, namely: (i) Hilton Nursing Home's primary ground of appeal that her Honour applied wrong legal principles in determining that Mrs Maciver could utilise s 106 to defeat the relevant statutory limitation period applying to claims brought under s 365 of the Industrial Relations Act . This involves a consideration of Huskisson. (ii) The finding of her Honour in her judgment of 22 May 2000 that she was functus officio in relation to the offer of compromise/costs issue. (iii) The issue whether the amount of the verdict monies upon which interest should be calculated in her Honour's order was correctly stated as being $33,621.46 or whether it should have been $42,751.48 as submitted by Mrs Maciver. (iv) Other issues on appeal and cross-appeal including the issues of meal money and the date from which interest should be paid. (v) Costs. 16 Leave to appeal is refused on the issue raised by Hilton Nursing Home that the statutory limitation period applying to claims brought under s 365 should apply in this case. There was nothing in the circumstances of this particular case, or what was put in submissions on appeal, to cause us to regard this issue as being of such importance to the necessary standard that leave should be granted. Consistent with the Court's practice we do not propose to elaborate on our reasons for so refusing leave, except to say that while it may become appropriate to consider the application of Huskisson in the context of the somewhat different statutory scheme that applies under the present 1996 Act rather than the then applicable Industrial Arbitration Act 1940, this case was not the appropriate vehicle for that to occur.

17 Leave to appeal is granted in relation to the finding of her Honour in the judgment of 22 May 2000 that she was functus officio in relation to the offer of compromise/costs issue. We consider her Honour's finding that she was unable to further deal with the matter was, with respect, wrong. 18 In arriving at this view we note, firstly, r 172(2) of the Industrial Relations Commission Rules which provides that: Where an offer has not been accepted, then, except as provided by Rule 216(9), no communication with respect to the offer must be made to the Commission at the hearing until after all questions of liability and the relief to be granted have been determined. 19 Rule 203 of the Rules provides that: 203. Time for dealing with costs (1) The Commission may in any proceedings exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings. (2) Where the Commission makes an order in any proceedings for the payment of costs the Commission may require that the costs be paid forthwith notwithstanding that the proceedings are not concluded. 20 Rule 216 of the Rules provides that: 216. Offer of compromise (1) Upon the making of an order under Rule 168 (9), a party entitled to costs may, unless the Commission otherwise orders, have those costs assessed up to and including the day the offer was accepted. (2) If a notice of offer contains a term which purports to negative or limit the entitlement to costs, that term shall, unless the Commission otherwise orders, be of no effect for any purpose under Part 23 or this Rule. (3) Subrules (4)-(7) apply to an offer which has not been accepted at the time prescribed by Rule 168 (8). (4) Where an offer is made by an applicant and not accepted by the respondent, and the applicant obtains an order on the claim to which the offer relates no less favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to costs incurred before and on that day, assessed on a party and party basis. (5) For the purpose of subrule (4), where the offer was made on the first or a later day of the hearing of the proceedings, then, unless the Commission otherwise orders, the applicant shall be entitled to costs in respect of the claim from 11 am. on the day following the day on which the offer was made, assessed on an indemnity basis, in addition to costs incurred before that time, assessed on a party and party basis. (6) Where an offer is made by a respondent and not accepted by the applicant, and the applicant obtains an order on the claim to which the offer relates not more favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the respondent shall be entitled to an order against the applicant for costs in respect of the claim thereafter, assessed on a party and party basis. (7) For the purpose of subrule (6), where the offer was made on the first or a later day of the hearing of the proceedings, then, unless the Commission otherwise orders, the applicant shall be entitled to costs in respect of the claim up to 11 am. on the day following the day on which the offer was made, assessed on a party and party basis, and the respondent shall be entitled to costs in respect of the claim thereafter, assessed on a party and party basis. (8) Where an applicant obtains an order for the payment of a remuneration, compensation or damages and: (a) the amount payable under the order includes interest or damages in the nature of interest; or (b) by or under any Act the Commission awards the applicant interest or damages in the nature of interest in respect of the amount, then, for the purpose of determining the consequences as to costs referred to in subrules (4) and (6), the Commission shall disregard so much of the interest as relates to the period after the day the offer was made. (9) For the purpose only of subrule (8), the Commission may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms. (10) Subrules (4) and (6) shall not apply unless the Commission is satisfied by the party making the offer that the party was at all material times willing and able to carry out what the party offered. 21 In the second judgment of 13 August 1999, after making the position known on a number of the disputed matters relating to the form and content of orders, her Honour directed the applicant to file minutes of the final orders consistent with what had been determined. Further difficulties arose in relation to the calculation of the monetary order and the calculation of the net sum upon which interest would flow. Consequently, the matter was relisted for 14 December 1999. At that time, Mr Moore said to her Honour: On the last occasion your Honour was made aware there were various compromises filed in this case. There may or may not be further issues on the costs question depending on how the final orders are settled as to the monetary amounts. Subject to what your Honour's views of it are, we suggest that it would be perhaps appropriate for your Honour to see the draft orders taking into account the three matters I have raised where they range in terms of the final orders, for your Honour to be given a brief summary as to what the issues are for your Honour to reach a final view on what order reflects your Honour's decision and at the time of doing that to receive submissions on the question of costs under Rule 216(6) depending on which order you make as to what direction of costs to make. 22 Mr Moses responded by saying: As to the question of offer of compromises, that ought not be dealt with until your Honour has made final orders which will then trigger any argument under Rule 216. 23 In Hilton Nursing Home's Outline of Respondent's Submissions in Reply to the Submission Filed on Behalf of the Applicant on 4 February 2000 dated 1 March 2000, par 6 stated: Taking into consideration the Commission's Supplementary Judgment of 13 August 1999 (and the Respondent reserving its right to argue about the application of Rule 216 of the Industrial Relations (sic) Rules), the Respondent respectfully submits that the enclosed draft Orders reflect the findings that have been made in this case. 24 In her judgment of 20 April, and after considering the positions put by the parties and the competing versions of draft orders, Schmidt J made orders in favour of Mrs Maciver. 25 In the judgment of 22 May 2000, where she declared the Court to be functus officio in relation to the costs issue, her Honour took the view that, and although Hilton Nursing Home had - with the acquiescence of Mrs Maciver - reserved its position on the question of its offer of compromise, no submissions were made opposing the order sought as to costs. Her Honour said: The orders made on 20 April evidenced the Court's intention to deal finally with the matter, including the question of costs, in the light of the position which the parties took at the hearing. Had the respondent wished to pursue any question of compromise, the proper course would have plainly been to oppose the making of any costs order. 26 It may have been that from 14 December 1999, when the issue of an offer of compromise surfaced as an issue, Hilton Nursing Home should have placed more emphasis on reserving its position and on ensuring the question of costs remained open. However, Hilton Nursing Home was entitled to know, with certainty, the extent of its liability arising out of any orders Schmidt J might make. That was not known until her Honour had made the orders on 20 April 2000. Hilton Nursing Home had reserved the issue of its offer of compromise pending any orders and this was by consent of the parties. Once the extent of its liability became clear, Hilton Nursing Home was then entitled to raise its offer of compromise and the implications that that had for costs in the matter. Her Honour was not relevantly functus officio. Accordingly, we remit this matter to Schmidt J for determination.

27 The third issue relates to the amount of the verdict monies upon which interest should be calculated. It seems to us an arguable case exists that a factual error was made in the calculation of the amount of the monies and, therefore, leave to appeal is granted. Mr Shaw indicated in his submissions that there was no objection to this matter being remitted to Schmidt J. Accordingly, we do so and, if appropriate, any error may be corrected under the slip rule.

28 The fourth issue involves the other matters raised on appeal and cross-appeal, including meal money and the date from which interest should be paid. Leave to appeal is refused in relation to these matters. It is our view that the decisions her Honour made regarding these matters were reasonably open to her and they are not of the requisite importance to attract leave to appeal.

29 The final issue relates to the question of costs. Treating the appeal and cross-appeal as the one proceeding, and having regard to the outcome, we consider that Hilton Nursing Home should pay 80 per cent of Mrs Maciver's costs of the appeal proceedings considered as a whole.

The appeal in Matter No IRC 2139 of 2000 is dismissed, except as to the appellant's application pursuant to Rule 216 of the Industrial Relations Commission Rules 1996, which is remitted to Schmidt J for hearing and determination.
The cross-appeal in Matter No IRC 2185 of 2000 is dismissed, except as to the issue of the amount of verdict monies upon which interest is to be calculated. This issue is remitted to Schmidt J to deal with, as appropriate, in accordance with Rule 151 of the Industrial Relations Commission Rules 1996.
Leave to appeal is granted as to the matters remitted to Schmidt J in terms of orders 1 and 2, and otherwise refused.
The appellant in Matter No. 2139 of 2000 and cross-respondent in Matter No 2185 of 2000 shall pay 80 per cent of Mrs Maciver's costs on the appeal and cross- appeal in an amount as agreed or assessed.

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Judgment (21 paragraphs)

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Cases Cited (15)

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