Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) v Roads and Maritime Services

Industrial Relations Commission (NSW)|2014-04-04|Before: Boland AJ

icers' Association Amalgamated Union of New South Wales (on behalf of Ganino) [2012] NSWIRComm 12 Vieira v O'Shea (No 2) [2012] NSWCA 121 Category: Costs Parties: Rosanna Ganino (Applicant) Roads and Maritime Services of the Government Service of New South Wales (Respondent) Representation: P Lowson of counsel (Applicant) K Eastman SC (Respondent) Coyne Legal (Applicant) Minter Ellison (Respondent) File Number(s): IRC 1141 of 2009, 499 0f 2013

DECISION 1This decision concerns costs of certain appeal proceedings (Matter No IRC 499 0f 2013) and the costs of subsequent remittal proceedings (Matter No IRC 1141 of 2009). The appeal proceedings (see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 106) ("Ganino 7") involved an appeal from a decision of Tabbaa C, given on 24 May 2013 in Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 1008 ("Ganino 6"). The remittal proceedings (Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) v Roads and Maritime Services [2014] NSWIRComm 8 ("Ganino 8")) flowed from the decision of the Full Bench in Ganino 7.

Relevant background 2Before addressing the respective cases of the parties, it is necessary to fill in some relevant background regarding numerous settlement offers that occurred between the parties. Whilst it is unnecessary to trace in any detail the litigation that has occurred since 2009 the context requires it to be noted that Ms Ganino was employed by Roads and Maritime Services ("RMS") (formerly the Roads and Traffic Authority) as a senior solicitor. She was summarily dismissed from her employment for serious misconduct on 23 July 2009. Ms Ganino was reinstated by order of Tabbaa C in 2012: see Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2012] NSWIRComm 1014 ("Ganino 5"). 3The application for relief under the unfair dismissal provisions of the Industrial Relations Act 1996 ("IR Act") (Pt 6 of Ch 2) was initiated on 4 August 2009 by the industrial organisation of which Ms Ganino was a member, namely, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA"). Between 2009 and through until May 2013, Ms Ganino would not have suffered any costs disadvantage as she was being represented by the PSA. Since May 2013, Ms Ganino has borne her own costs of the proceedings. 4The initial offer to settle the proceedings came from the respondent on 22 October 2009. The offer was rejected, principally it seems, because it did not contain an offer of reinstatement. A counter offer was made on 27 October 2009 by the applicant seeking, inter alia, reinstatement with continuity of service. 5The respondent made a 'Calderbank' offer (Calderbank v Calderbank [1975] All ER 333) on 12 February 2010 involving the payment of money, a statement of regret and proposing a deed of release. The offer did not contain an offer of reinstatement. 6The applicant responded to the offer on 26 February 2010 indicating the offer was declined. The response stated: Ms Ganino has from the outset sought reinstatement to the RTA, and continues to seek reinstatement to the RTA. Ms Ganino remains willing and committed to return to her role within the RTA and to restore her professional reputation which has been severely damaged by the allegations made against her by the RTA, the termination of her employment and all the circumstances leading up to her termination. 7The next offer was made by the respondent on 14 April 2010, a new element being that Ms Ganino would be re-employed, but would immediately submit her resignation. It appears that offer was rejected. Next, on 8 April 2011 the respondent made a Calderbank offer to re-employ Ms Ganino on the proviso that she immediately resign and, as well, increased the amount of money offered from six months to eight months' pay together with other elements including a deed of release. 8The applicant rejected this latest offer on 15 April 2011 in a letter rejecting assertions by the respondent that the Commission would find misconduct and indicating that the applicant was pressing for reinstatement. The offer and its rejection followed a decision by Tabbaa C on 8 March 2011 in Ganino v Road and Traffic Authority of NSW [2011] NSWIRComm 1008 ("Ganino 2") where the Commissioner found for the applicant that there was doubt regarding the validity of a delegation providing authority to dismiss Ms Ganino. The Commissioner held the delegation question needed to be determined as a threshold issue. 9The respondent made a further Calderbank offer on 18 May 2011 proposing re-employment and immediate resignation with new additional elements being: RMS to explore options for new employment for Ms Ganino with the NSW public sector at a rate at least equal to that received by the applicant immediately prior to termination; RMS to provide confidential statement of regret; RMS prepared to come to an agreed position re allegations. 10The applicant rejected the offer on 25 May 2011, with the applicant again pressing for reinstatement. 11On 26 September 2011, Tabbaa C issued a decision in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On behalf of Rosanna Ganino) and Roads and Traffic Authority of NSW, Division of Government Service [2011] NSWIRComm 1048 ("Ganino 3") in which the Commissioner determined that: The disciplinary processes were not validly delegated to any of the people who purported to exercise those functions. On that basis, there has been no dismissal of Ms Ganino by the Respondent. 12Notwithstanding that finding, the Commissioner proceeded to make the following orders: 1. The Commission orders that the Roads and Traffic Authority of NSW reinstate Ms Rosanna Ganino to her former position of Senior Solicitor Liability Litigation on terms not less favourable to her than those that would have been applicable if she had not been dismissed. Ms Ganino is to be reinstated as soon as practicable but no later than 9 November 2011 with full continuity of service. 2. The Commission orders that the Roads and Traffic Authority of NSW pay to Ms Rosanna Ganino an amount which equates with the remuneration that she would, but for being dismissed, have received in the intervening period between dismissal and reinstatement, less any amounts received as payments derived from alternative employment. This amount is to be paid as soon as practicable but no later than 23 November 2011 but may be subject to Settlement of Minutes of Order proceedings initiated by written request of either party by no later than 23 November 2011. 3. In relation to the issue of costs, the Applicant is to file and serve submissions by 9 November 2011 and the Respondent is to file and serve submissions by 23 November 2011. Unless either party requests that the Commission hear them, the issue of costs will be determined on the papers. 13The respondent appealed from the decision and orders in Ganino 3. Prior to the appeal being heard on 23 February 2012, Backman J conducted conciliation on 3, 11, 17, 24 and 29 November 2011 in the context of an application by the applicant for declaratory relief. On 10 November 2011, the respondent made a further Calderbank offer. The principal elements were: PSA to consent to Appeal PSA to consent to remittance of Unfair Dismissal Proceedings to Commissioner Tabbaa RMS to consent to reinstatement of RG [Rosanna Ganino] conditional on immediate resignation RG deemed to have continuous service from 23 July 2009 to date of acceptance of offer RG to receive backpay and accrued leave entitlements (less mitigation amount) RMS to pay for career coaching for RG up to $5,000 RMS to reimburse RG for any costs associated with maintaining a practising certificate since last paid for by RMS RMS to arrange for RG to have access to MCLE seminars at RMS panel law firms· RMS to reimburse RG for cost of attending any MCLE seminars since date of dismissal RMS to issue confidential statement of regret RMS to issue statement of service RMS and RG to enter into deed of release in respect of all claims other than workers compensation. 14The applicant did not accept the foregoing offer on 11 November 2011. However, discussions continued between the parties and the conciliation before Backman J was adjourned until 17 November 2011. It appears to have been proposed by the respondent in the conciliation proceedings that Ms Ganino be reinstated to immediately commence secondment at another NSW Government Agency for a limited period. The respondent made attempts to identify secondment opportunities including arranging a meeting with an officer of the Department of Education. Ms Ganino said she was unaware of any such meeting, and there was no agreement between the parties that any such meeting was ever agreed. 15On 28 November 2011, solicitors for the applicant wrote to the respondent's solicitors regarding the state of the respondent's offer indicating that while Ms Ganino would be: [C]ontent to go on an agreed secondment for a period of 12 months, she is not at this juncture inclined to agree, absent any further detail, to her employment with the RTA/RMS coming to an end upon the conclusion of the secondment. 16On 29 November 2011, the conciliation before Backman J resumed. Ms Ganino's position remained unchanged from what was stated in the previous day's letter. The conciliation was declared unsuccessful. 17 In Roads and Maritime Services v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Ganino) [2012] NSWIRComm 12 ("Ganino 4"), a decision handed down on 12 March 2012, the Full Bench set aside the decision and orders of Tabbaa C in Ganino 3 and remitted the matter to the Commissioner to be determined in accordance with the reasons of the Full Bench. 18In Ganino 5, a decision handed down by Tabbaa C on 13 July 2012, the Commissioner found the dismissal of Ms Ganino was harsh and made an order for reinstatement. 19In addition to reinstating Ms Ganino, the Commissioner ordered the respondent to pay her remuneration to compensate for the period during which she was off work. The amount of remuneration was subject to separate proceedings before Tabbaa C in order to determine the issue of mitigation of losses by Ms Ganino. 20In September 2012, the applicant (the PSA) and respondent reached a confidential agreement in relation to costs. Consent orders were made in which it was ordered that the Commission would make no order as to costs. Ms Ganino was not a party to the confidential agreement. 21 Following receipt of further evidence and submissions during July to October 2012 on the question of lost remuneration and mitigation of loss, Tabbaa C determined the question on the papers: see Ganino 6, a decision delivered on 24 May 2013. In that decision the Commissioner relevantly ordered the respondent to pay Ms Ganino her salary from 23 July 2009 to the date of her reinstatement, less the amounts earned by her during that period, through alternative employment; the amounts paid to her by the respondent in the period November 2011 to March 2012, less an amount equivalent to the amount she would have earned during nine calendar months' of employment with the respondent. 22The applicant sought to appeal the decision of Tabbaa C in Ganino 6 primarily in relation to the nine months' discount but also the applicant sought an order for continuity of service, an order to correct catchwords and an order for interest. On 20 June 2013, the respondent presented a Calderbank offer to the solicitors representing the applicant at the time, McArdle Legal, in relation to the appeal. The offer consisted of the following main elements: (1)discontinuance of the appeal with no order as to costs; (2)an amount equal to the annual leave and long service leave that Ms Ganino would have accrued between the termination of her employment in July 2009 up to the date of her reinstatement on 30 July 2012 had her employment not been terminated; (3)employer superannuation contributions for the period July 2009 to July 2012 ($30,878.42); (4)nine months' pay that the respondent would otherwise deduct arising from the decision of Tabbaa C in Ganino 6; (5)a confidential agreement on settlement terms including that Ms Ganino agreed to make no further claims in respect of her employment with RMS and the termination of her employment or any of the matters raised in the appeal.. 23There followed an exchange of correspondence regarding superannuation contributions and on 19 July 2013 the respondent made a revised offer identifying amounts to be paid, but seeking agreement that the settlement resolved all matters. On 2 August 2013, McArdle Legal responded, indicating Ms Ganino declined the offer on a number of bases including that she was not prepared to give RMS a general release as she was contemplating further action against the respondent, that it was inconsistent with model litigation principles that the respondent would proffer overdue annual leave and long service leave entitlements as negotiation items for settlement purposes and that the offer did not include interest. 24On 13 August 2013, the respondent replied to the applicant's letter of 2August 2013, indicating it was prepared to pay interest on the nine months' pay item previously offered and making an adjustment to superannuation. 25The hearing of the appeal from Ganino 6 commenced on 14 August 2013. Attached to the respondent's outline of submissions in the appeal was its letter of offer of 19 July 2013, which was rejected. Apparently a further offer was made prior to the commencement of the proceedings on 14 August, to which a response had not been forthcoming. The parties agreed that the proceedings be adjourned into conciliation, which was chaired by Walton J, Vice President. 26The proceedings were adjourned for report back on 25 September 2013, at which time the parties sought the further assistance of the Commission in conciliation. 27In the course of the conciliation proceedings short minutes of order were prepared containing an offer by the applicant. This was conveyed to the respondent attached to a letter dated 23 August 2013. The offer included payments of various kinds that had previously been the subject of correspondence between the parties, interest on the various payments, discontinuance of the appeal proceedings and that each party bear their own costs of the appeal. The respondent replied on 30 August 2013 with a counter offer involving the following main elements: (1)Payment by RMS of $79,111.43 on account of nine months remuneration deducted from the calculation of the payment made to Ms Ganino on 5 July 2013 (RMS had already made a payment of $194,980.92 to Ms Ganino in accordance with Tabbaa C's orders of 24 May 2013). (2)In recognition of continuity of service, payment of a sum of $28,953.55 on account of annual leave accrued by Ms Ganino during the period 24 July 2009 to 29 July 2012 plus annual leave loading of $5,066.87. (3)In recognition of continuity of service, payment of a sum of $15,924.44 on account of long service leave accrued by Ms Ganino during the period 24 July 2009 to 29 July 2012. (4)Interest on the above amounts to 23 August 2013. (5)Payment of a gross superannuation contribution into Ms Ganino's superannuation account of $35,015.94 for the period 24 July 2009 to 26 September 2012 plus $6,238.59 interest paid to 23 August 2013. (6)Payments to be in full and final settlement of all claims arising out of the various proceedings and Ms Ganino's termination of employment. (7)Catchwords to be amended. (8)Discontinuance of appeal proceedings. (9)Parties bear own costs of appeal proceedings. 28The respondent's counter offer mirrored the material elements of the applicant's 23 August offer except that: (i) the respondent declined to accept the applicant's proposal that the respondent pay interest on a daily basis until the relevant amounts were paid; and (ii) the respondent continued to insist on any settlement resolving all claims. 29On 16 September 2013, McArdle Legal wrote to RMS's lawyers indicating that it was willing to compromise on their offer of 30 August in the terms of a further amended draft of short minutes of order that was attached. The attached draft relevantly mirrored the respondent's counter offer, except it did not include a provision that the payments made to Ms Ganino would be in full and final settlement of all claims. 30On 3 October 2013, Staff J chaired a further conciliation of the parties, which failed to resolve the matter. 31On 15 November 2013 the respondent's lawyers wrote to the applicant's present solicitors, Coyne Legal, indicating a superannuation payment had been made to Ms Ganino. However, it was stated that "In RMS's view there is now no possibility of the matter being resolved through a negotiated agreement as Ms Ganino is unwilling to make any compromises". It was stated all offers had lapsed and would not be re-opened. 32In a letter dated 20 November 2013, the applicant's solicitors queried the amount of superannuation payment and disputed the proposition Ms Ganino was unwilling to compromise. 33In a decision given on 18 December 2013 in Ganino 7, the Full Bench found that Tabbaa C had erred in that the Commissioner had "failed to provide adequate proper reasons for the exercising of her discretion under s 89(3) of the IR Act." Section 89(3) provides: 3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. 34The Full Bench remitted to me the issue of the quantum of remuneration to be awarded to Ms Ganino in light of her reinstatement. 35There were matters referred to by the Full Bench that are relevant to the present proceedings and which I will later address. At [19]-[25] the Full Bench stated: [19] The notice of appeal and the grounds of appeal were expressed to be from a decision of Tabbaa C, given on 24 May 2013. As we have already explained, the subject matter of Tabbaa C's decision, dealt with a discrete issue, that being, the quantum of lost remuneration that should be awarded to Ms Ganino. Nevertheless, in summary, the notice of appeal challenged the following findings and matters: (1)The findings that the appellant had applied for positions that were not appropriate having regard to her qualifications; (2)Applied for jobs that were not commensurate with the level of responsibility and salary of the position she held with the respondent, and there were significant periods of inaction by the appellant in seeking alternate employment; (3)The inclusion in the catchwords to the decision that the salary to be awarded to the appellant was to be decreased "in recognition of finding of misconduct"; (4)Tabbaa C's order at paragraph 34 of her decision that the respondent deduct an amount equivalent to what the appellant would have earned during nine calendar months of employment with the respondent; (5)A failure to make an order with respect to continuity of service. [20] The grounds of appeal contended that Tabbaa C had erred in respect of these findings and the inclusion in the catchwords of a reference to "misconduct". In addition, the grounds contended that there had been a failure to accord procedural fairness to the appellant. [21] In addition, Ms Lowson sought leave to amend the notice of appeal to seek an order pursuant to s 89(8) of the IR Act that the respondent credit to Ms Ganino, entitlements in respect of annual leave, leave loading, and long service leave, consequent upon her reinstatement. This was reflected in an amended notice of appeal. [22] At the commencement of the hearing of the appeal on 21 November 2013, Ms Lowson made an application for leave to extend the time to appeal from Tabbaa C's decision of 13 July 2012. The basis was the failure of Tabbaa C to make an order for continuity of service in her decision. [23] These applications were opposed by the respondent on the basis that the powers of the Full Bench, pursuant to s 192(1)(a) are to confirm, quash or vary the decision of the Commission. [24] Ms Eastman submitted that the actual decision the subject of the appeal, did not deal with the matters identified in the amended notice of appeal. In addition, the respondent submitted that it would be prejudiced by what was described as the instanter application to extend time to appeal. [25] The Full Bench refused leave in respect of each of the applications. In short, the reason for refusing leave to amend the notice of appeal to include a prayer seeking orders for additional payments in respect of annual leave, leave loading and long service leave, is that the proposed amendments invite the Full Bench to make orders pursuant to s 89(8) of the IR Act, in circumstances where the powers of the Full Bench on appeal are limited by s 192 of the IR Act. Section 89(8) enables an order to be made under s 89, which deals with orders for reinstatement, re-employment, remuneration and compensation, on such terms and conditions as the Commission determines. 36In relation to catchwords, the Full Bench dismissed the claim: [49] The appellant seeks an order to correct the catchwords and/or the decision so as to reflect the findings made by Tabbaa C. In her decision of 24 May 2013, the catchwords included the words: "Exercise of discretion to decrease amount of back pay in recognition of finding of misconduct against the Applicant". [50] As we have already determined, no such finding was made by Tabbaa C in her decision of 24 May 2013. [51] However, in our view, the function of catchwords are to give a summary of the matters dealt with in a case: see Australian Institute of Judicial Administration; Guide to Uniform Production of Judgments, 2nd ed, 1999. Catchwords do not form part of the decision itself. They are indexing terms which describe the legal and factual subject matter of the case. [52] No appeal lies in respect of the formulation of catchwords. There is no foundation for this ground of appeal. It is dismissed. 37 The Full Bench also dismissed the claim regarding continuity of service: [53] The appellant seeks an order for continuity of service. During oral submissions, Ms Lowson conceded that the question of continuity of service arose in relation to Tabbaa C's decision of 13 July 2012 and that it was not a question that arose in relation to Tabbaa C's decision of 24 May 2013. [54] It was for this reason that the appellant brought an application for an extension of time to appeal Tabbaa C's decision of 13 July 2012. [55] While it is correct that Tabbaa C did not give reasons in her decision of 13 July 2012 for not making an order for continuity of service under s 89(4) of the IR Act, and this may have constituted a basis for appellate intervention, no appeal was brought in respect of that decision. The decision under appeal does not deal with the question of continuity of service. It follows that no error in relation to that decision is therefore identifiable. This ground of appeal is therefore incompetent and is dismissed. 38In correspondence dated 17 February 2014, but sent to the respondent's solicitors, Minter Ellison Lawyers, on 18 February 2014 by email, the applicant's solicitors sent a copy of the orders it was proposing to seek from me in the remittal proceedings. Coyne Legal presumed that the orders regarding payment of an amount of $79,111.43, payment of interest on that amount, continuity of service for the period 23 July 2009 to date of reinstatement would not be agreed. On 19 February 2014, the respondent's solicitors queried the amount of $79,111.43. On 20 February, Coyne Legal revealed its calculations regarding the claimed amount of $79,111.43. On 13 March 2014, Minter Ellison challenged the calculations, but indicated that in all of the circumstances RMS agreed that the amount to be paid to Ms Ganino was $79,111.43. 39In Ganino 8, a decision handed down on 14 March 2014, I determined the remitted issue. In the decision I observed at [3] and [14]-[15] that: [3] When the matter came on for hearing, the respondent advised that it largely agreed with orders proposed by the applicant to resolve the remitter and so the issue at the heart of the remitter had evaporated. However, three issues did arise from the applicant's proposed orders. Those issues concerned the payment of interest, continuity of service and costs, each of which I deal with below after addressing the background. ... [14] As I earlier mentioned, the issue at the heart of the remitter had evaporated to be replaced by three other issues arising from the applicant's proposed orders to resolve the remitter. The proposed orders were in the following terms:

The Respondent shall pay to the Applicant her gross salary from 23 July 2009 until the date of her reinstatement, 30 July 2012, as if she had been employed during that period, less: a. The gross amounts earned by her in alternative employment in the sum of $14,817; b. The gross amounts paid to her by the respondent in the period November 2011 to March 2012 being $41,662.27; c. The gross amount of salary paid to her as a consequence of orders made by Tabbaa C on 24 May 2013 (those orders having been subsequently quashed by the Full Bench in its decision delivered on 18 December 2013).
In the event that the parties cannot agree as to the amount in (1), the parties are to file within 14 days of these orders documents outlining their method of calculating the said amount, and the Commission will determine the amount payable under (1) without further reference to the parties.
The amount in (1) is to be paid to the applicant net of income tax, if any, payable on that amount.
The respondent shall pay interest on the amount in (1) at the rates prescribed by s.100 of the Civil Procedure Act 2005 and as set out in the Uniform Civil Procedure Rules 2005, from 23 July 2009 up until the date of payment
Payment of the amounts in (1) and (4) to be made within 21 days of the date of the amount in (1) a. Being agreed by the parties; or b. Being ordered by the Commission.
Continuity of service for the period 23 July 2009 until the date of reinstatement, 30 July 2012.
The applicant file evidence and submissions on the question of the costs of the appeal and the remitter by no later than 14 days of the date of these Orders.
The respondent to file and serve evidence and submissions on the question of costs of the appeal and the remitter by no later than 14 days after the date of the applicant filing and serving its material.
The applicant to file and serve evidence and submissions in reply on the question of costs of the appeal and the remitter by no later than 7 days after the date of the respondent filing and serving its material.
Liberty to apply on 3 days notice. [15] Orders (1), (2), (3) and (5) were agreed. Order (4) was not agreed to the extent the respondent submitted interest should become payable from 24 May 2013 (date of first instance decision) and not the date of Ms Ganino's dismissal, that being 23 July 2009. 40At [23] I dealt with the continuity of service issue. I held that "my remit does not permit me to make an order providing for continuity of service during the period between dismissal and reinstatement." 41In Ganino 8 the applicant had sought that I also deal with the question of costs of the appeal. In that respect I stated: [24] The third issue I need to deal with is costs. The applicant seeks orders for the filing of further submissions on the question of costs of the appeal and costs on the remitter. As to the costs of the appeal, the Full Bench said nothing about costs in its reasons and made no orders in that respect. The remitter does not include the question of costs of the appeal. Accordingly, I do not regard costs of the appeal as a matter within my remit. 42As to the costs of the remitter I determined that: [25]...I will make orders for the filing of evidence and submissions. Unless a party wishes to be heard orally, costs of the remitter will be dealt with on the papers. 43The orders made by me in Ganino 8 were as follows: 1. The respondent shall pay to the applicant her gross salary from 23 July 2009 until the date of her reinstatement, 30 July 2012, as if she had been employed during that period, less: a. the gross amounts earned by her in alternative employment in the sum of $14,817, b. the gross amounts paid to her by the respondent in the period November 2011 to March 2012 being $41,662.27, c. the gross amount of salary paid to her as a consequence of orders made by Tabbaa C on 24 May 2013 (those orders having been subsequently quashed by the Full Bench in its decision delivered on 18 December 2013), resulting in an amount to be paid to the applicant of $79,111.43 2. The total of the amounts in (1) is to be paid to the applicant net of income tax, if any, payable on that amount. 3. The respondent shall pay interest on the total of the amounts in (1) at the rates prescribed by s 100 of the Civil Procedure Act 2005 and as set out in the Uniform Civil Procedure Rules 2005, from 23 July 2009 up until the date of payment. 4. Payment of the amounts in (1) and (3) to be made within 21 days of the date of these Orders. 5. The applicant file evidence and submissions on the question of costs of the remitter by no later than 14 days of the date of these Orders. 6. The respondent to file and serve evidence and submissions on the question of costs the remitter by no later than 14 days after the date of the applicant filing and serving its material. 7. The applicant to file and serve evidence and submissions in reply on the question of costs of the remitter by no later than 7 days after the date of the respondent filing and serving its material. 8. Unless a party indicates it wishes to be heard on costs of the remitter the matter will be dealt with on the papers. 9. Liberty to apply on reasonable notice. 44On 24 March 2014, the applicant's solicitors wrote to the respondent's solicitors seeking the payment of specified amounts in relation to accrued leave entitlements, together with outstanding superannuation contributions plus interest on all amounts. On 31 March 2014, the applicant offered to settle any costs order made in the remitter matter only for $12,000. 45On 4 April 2014, the parties consented to an order of the Full Bench that the question of costs of the appeal also be remitted to me to be dealt with on the papers. Also on 4 April 2014, the respondent replied to the offer of 31 March 2014 and the earlier letter dated 24 March 2014. The respondent indicated that whilst not conceding any entitlement, it was prepared to resolve matters by offering: 1. RMS will pay Ms Ganino's reasonable costs of the remitter; 2. RMS will pay the amounts sought by Ms Ganino, as set out in your letter of 24 March 2014, subject to agreement between the parties on the amount of superannuation and interest payable by RMS; and 3. Each party to pay its own costs of the appeal. 46Further, the offer was made on the basis that the parties would enter into a deed of settlement giving effect to the agreement, including a term to the effect that the payments made by RMS were in full and final settlement of all claims. 47The applicant replied to the respondent's offer on 8 April 2014, indicating it was unacceptable for the reason, inter alia, that Ms Ganino was not willing to provide RMS with a general release. The applicant indicated she would be in a position shortly to inform RMS of the employer superannuation contributions and interest thereon that she claimed. Further, that if RMS was prepared to pay for the period from 23 July 2009 to 29 July 2012 inclusive: A. annual leave B. long service leave C. annual leave loading D. superannuation E. interest on the above amounts F. 75% of the applicant's costs on the appeal G. 75% of the applicant's costs on the remitter, Ms Ganino was prepared to settle the matter with a release "in respect of the IRC proceedings and payments made by RMS in respect of backpay, accrued entitlements and superannuation, subject to appropriate calculation and payment of same." 48On 11 April 2014, the respondent's solicitors sought clarification of the applicant's proposal and in particular the amounts claimed for each category. On 14 April 2014, the applicant's solicitors inquired whether the respondent was prepared to settle without a deed of release and without any terms of confidentiality. If a deed of release was required the applicant sought information as to the terms. The respondent replied, indicating it was a matter for the applicant to specify the terms upon which the settlement offer was made. 49On 5 May 2014, the applicant identified the amounts she sought in relation to the various claimed items, including interest. The applicant indicated she was prepared to resolve the matter by providing the respondent with a release that was confined to the "present IRC proceedings in return for timely payment..." of the amounts claimed. The offer was to remain open until 12 May 2014 later extended to 13 May. The respondent did not respond to the 5 May offer. 50Whilst various offers of settlement were being made back and forth there was a continuing stream of communications between the parties' solicitors regarding amounts owed for superannuation and interest. It appears Ms Ganino eventually referred the superannuation issue to the Australian Taxation Office. Subsequently, RMS deposited an amount into Ms Ganino's First State Super account. On 28 April 2014, Ms Ganino filed in the Commission an application for recovery of money in relation to annual leave, annual leave loading, extended leave and interest.

Case for applicant 51Costs sought by the applicant are: (1)costs of the appeal in Ganino 7 (matter No IRC 499 of 2013); (2)costs of the remitter in Ganino 8 on an indemnity basis including the costs of the costs application; 52The applicant relied on s 181 of the IR Act and, in particular, s 181(2)(c). The relevant provisions are in the following terms: (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: ... (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or ... 53Whilst the applicant was seeking her costs incurred only since June 2013 (on the appeal) and since 18 December 2013 (on the remitter), the applicant submitted it was plainly relevant that the respondent refused to settle the unfair dismissal proceedings in October 2009. Thus, the applicant relied on two distinct periods in asserting that the respondent unreasonably failed to agree to a settlement of the appeal and of the remitter, being the periods: a. Between 2009 and 2011; and b. Between June 2013 and April 2014.

Between 2009 and 2011 54In relation to the applicant's claim for the period between 2009 and 2011 the applicant relied on it submissions filed on 25 July 2012 in the proceedings before Tabbaa C involving issues of costs and mitigation. In particular, the applicant relied on her opening submission in the unfair dismissal proceedings made on 14 April 2010, which she contended would have dispelled any doubts about the difficulty the respondent faced in proving the allegations against the applicant of misconduct and why that should have brought the respondent to the realisation that it should settle the matter on the basis of reinstatement of the applicant. 55 The applicant's primary position was that the respondent unreasonably refused to agree to the settlement offered on 27 October 2009 that involved Ms Ganino being unconditionally reinstated with full payment of unpaid salary. The applicant, the PSA, was prepared to settle the matter without any payment of costs. 56Ultimately, it was submitted, Ms Ganino had achieved exactly what was proposed in the settlement offer. Had the respondent agreed to settle the matter on that basis during the 2009-2011 period there would have been no need for the most recent remitter proceedings at all, and Ms Ganino would not have incurred the costs associated with the remitter. 57Counsel for Ms Ganino submitted that the respondent subsequently throughout 2009, 2010 and 2011 (including after having heard the applicant's opening statement) unreasonably refused to countenance any settlement that involved Ms Ganino returning to her substantive position, yet that is exactly what Ms Ganino obtained from Tabbaa C in June 2012. The value of reinstatement to Ms Ganino was neither hypothetical nor nugatory. It was submitted: In short, whilst the PSA and Ms Ganino were prepared during the first instance proceedings to settle on the basis of Ms Ganino being reinstated to her former position with full-back pay on the basis that each party pay their own costs, the respondent unreasonably refused to countenance reinstatement to her former position unless it included resignation.

Between December 2013 and April 2014 58In relation to the costs on the appeal and on the remitter, the applicant relied on her offer dated 16 September 2013, which the respondent rejected. This offer, it was submitted, responded to the respondent's offer made on 30 August 2013, which in turn reflected earlier offers made by the respondent. Importantly, it was submitted, the applicant's 16 September offer adopted the parameters for settling the issues as set by the respondent, and for that reason extended to all matters in dispute between the parties arising from Ms Ganino's dismissal in July 2009. 59The applicant submitted the main (but not the only) difference between the parties' positions was the respondent's insistence that any settlement had to include the applicant providing a general release to the respondent in return for settling all matters. Further that: Ms Ganino refused to provide such a general release, and her stance in that regard has been vindicated in that she has achieved in the remitted proceedings everything that was capable of being achieved therein, and continues to have the right (which she will shortly exercise) to seek full payment of all other entitlements. Conversely, the respondent refused to accept the applicant's offer to settle because it insisted on the general release, but has now: a. lost the primary argument (in relation to whether or not Tabbaa C erred in deducting 25% from Ms Ganino's lost remuneration) on appeal - Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino ) v Roads and Maritime Services [2013] NSWIRComm 106 b. conceded the primary argument on remittal - Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino ) v Roads and Maritime Services [2014] NSWIRComm 8 c. lost the argument on interest on remittal - Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino ) v Roads and Maritime Services [2014] NSWIRComm 8. 60Counsel for Ms Ganino submitted that had the respondent accepted the 16 September 2013 offer, all matters would now have been resolved, with each party agreeing to bear their costs of the appeal and without either party having to occur the not insubstantial costs of the remitter. Further, that to the extent matters have been resolved, they have been resolved in Ms Ganino's favour. To the extent that matters remain outstanding, it remained open to Ms Ganino to pursue those matters to finality and without restriction. On their face, Ms Ganino was likely to succeed in her application for unpaid award entitlements to annual leave, annual leave loading and long service/extended leave, noting that the respondent has refused to pay those entitlements because of the failure of Tabbaa C to make an order for continuity of service (a matter about which Ms Ganino is continuing to seek resolution).

Indemnity costs 61The applicant sought her costs on the remitter to be paid on an indemnity basis for the following reasons: a. The respondent abandoned its opposition to Ms Ganino being paid the entire amount of unpaid salary (less agreed amounts) at the outset of the hearing of the matter. The applicant on 17 February 2014 expressly noted her assumption that the Orders would be opposed. The respondent induced the applicant into believing that the remitter would be fully contested. In fact, the respondent agreed to most of the Orders sought, but not until the hearing on 20 February 2014 when a substantial portion of the costs had already been unnecessarily incurred. See Citicorp Aust Ltd & Ors v. Cirillo & Anor (No. 4) [2001] SASC 233 at [28]. The respondent abandoned its opposition to the remitted matters without explanation and without notice, leaving the applicant entirely victorious on all remitted matters other than interest, which was resolved in the applicant's favour in Ganino 8. b. The quantum sought in the applicant's 17 February 2014 email was the same as that offered by RMS in its offer of 30 August 2013. There was no basis for RMS to dispute this amount, nor to cause the applicant to incur further costs in preparing the correspondence dated 21 February 2014 and corresponding with the Commission in that regard. c. The respondent ultimately abandoned its objection to the quantum of the salary payable, and agreed to an order essentially in the same form as that sent prior to the 20 February 2014 hearing, on 17 February 2014. d. The respondent had ample opportunity after 18 December 2013 to reconsider its opposition to the applicant's claim and advise its consent. Instead it engaged in conduct that required the Commission to hear a contested approach to the appeal (resolved in the applicant's favour in Orders made on 16 January 2014) and for the matter to be set down for an extra directions hearing to deal with the issue of dates (also resolved in the applicant's favour on 4 February 2014). e. Tabbaa C ordered that Ms Ganino be reinstated on terms no less favourable to her than those that would have applied had she not been dismissed. If Ms Ganino has to pay a significant proportion of costs this order will be diminished, as the costs of fighting and winning the matter on appeal and on remitter will detract from the success. As costs orders are compensatory, and as Ms Ganino's position on reinstatement and full back pay has been vindicated, it is appropriate that she receive the maximum compensation for her personal expenditure on costs. f. The respondent has stepped beyond the appropriate and proper robust defence of the matter, and in so doing has failed to meet its obligations under the Model Litigant Policy. The applicant submits in particular that the respondent in its conduct of the entire proceedings has not endeavoured to avoid litigation, but instead has encouraged it. In so doing it has caused Ms Ganino to incur costs for which she should be compensated.

Costs of the costs application 62The applicant sought her costs of this costs application on the ground that they were incidental to the costs of the remitter generally and, in any event, that RMS unreasonably refused to accept the settlement offer made on 31 March 2014. The respondent's 4 April 2014 response to the 31 March 2014 offer was conditional on a number of matters, including providing details of the costs, that there be no order for the costs of the appeal, and that Ms Ganino release the respondent from all further claims. 63Collectively and individually these conditions, it was submitted, undermined the genuineness of the respondent's response, and indicated "continued unreasonableness on the part of the respondent in settling issues between the parties." Further, it was submitted, the respondent's response was provided after the time for a response to the applicant's offer had elapsed, and in the intervening period further costs were incurred by the applicant in preparing the evidence and submissions on the costs issue.

Case for the respondent 64The respondent's position was that: (a) the Applicant's applications for costs should be dismissed; (b) the Applicant should pay the Respondent's costs of the appeal; (c) alternatively, the parties should bear their own costs.

Period 2009 - 2011 65The respondent submitted that any costs associated with the appeal would necessarily be costs incurred after the commencement of the appeal. The appeal is a new and fresh proceeding; it is not a continuation of the earlier proceeding. Accordingly, the respondent submitted, it was not apparent how the period 2009 - 2011 was relevant to the costs of the appeal and/or the costs of the remitted application. Any costs incurred between 4 August 2009 (date of commencement of the proceeding) and 26 September 2011 (the Commissioner's final decision) could only be costs of the primary proceedings before Tabbaa C. 66The respondent's primary submission was that the parties' conduct in connection with the primary proceedings, which were concluded in September 2011, could not be relevant to the question of costs before the Commission in relation to proceedings commenced in 2013. This was particularly the case in circumstances where the applicant's costs of the proceedings up to 28 September 2012 were the subject of a confidential agreement between the applicant and the respondent and consent orders. 67In the alternative it was submitted that even if the period 2009 - 2011 was relevant to any consideration of the costs of the appeal or the remitted proceedings, the critical question was whether a party "unreasonably failed to agree to a settlement of the claim" (see s 181(2)(c)). 68Having regard to Bankstown City Council v Paris (1999) 93 IR 209, the respondent submitted s 181(2)(c) required the Commission to consider: (a) the offers of settlement made or measures taken to settle; (b) the context of a party's attempts to settle a proceeding; (c) the course of conduct; (d) whether the party took an obligation to settle seriously; (e) whether the party had an intention to settle; (f) whether the party acted inconsistently with an intention to settle; and (g) take an objective approach. 69Further, that if the Commission considered a party's response to the particular issue, then on an objective basis the following factors would be relevant to determining whether the rejection of an offer was unreasonable at the relevant time: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it. See Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435, followed with approval in Cong Xu v Austino Property Development Pty Ltd (No 2) [2013] NSWSC 1559 at [5] - [9]. 70The respondent submitted: (1)it initiated settlement of the proceeding before Tabbaa C and then the subsequent proceeding before Backman J. There was no evidence that the offers made by the respondent were other than genuine. The respondent clearly took its obligations to explore a genuine settlement based on a compromise of the parties' respective positions seriously; (2)in contrast, the applicant made only one offer in October 2009. The applicant's only offer was made prior to the evidence closing and before any assessment could be made on the relative strengths and weaknesses of the parties' respective positions; (3)the applicant's only offer during the period from 2009 to 2011 was made prior to the applicant's application to amend the application to raise a new issue, namely the delegations issue. The application to amend was made seven days into the hearing of the proceeding commenced. The applicant's reliance on the 'delegation issue' contributed to a significant delay in the final resolution of the proceeding and was a flawed and misconceived claim. The Commissioner's reasons in Ganino 3 reveal that the delegation issue had no bearing on the findings of the Commission about the harshness of the termination of employment; (4)having regard to the state of the application and the available evidence at October 2009, it was reasonable for the respondent to reject the offer; (5)on any objective assessment, the applicant's offer as at October 2009 was not an offer that involved "a real and genuine element of compromise" (cf Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) (2006) 67 NSWLR 706 at [8]; Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [25]); (6)the respondent continued to make offers to seek to settle the claim. There was no evidence that these subsequent offers, informed by the evidence and at various points in the course of the various proceeding were other than genuine and reasonable. The applicant made no counter-offer. The applicant did not restate her 'offer' with respect to a claim for reinstatement and the terms on which she would seek reinstatement.

Between December 2013 and April 2014 71The respondent submitted that the effect of the applicant's submission regarding the period December 2013 to April 2014 was that Ms Ganino was prepared to accept an offer made by the respondent with the exception of a requirement that she provide a general release in respect of all matters in dispute between the parties arising from Ms Ganino's dismissal in 2009. The application for costs was based on the applicant's contention that Ms Ganino's 'stance' was 'vindicated' because of the outcome of the remitted proceeding. 72The respondent submitted that the applicant failed to address the correct test, that is, the objective factors relevant to assessing the reasonableness of the respondent's conduct. Ms Ganino's view or stance was not a proper basis to assess whether the respondent's offer that all matters concerning the appeal and the earlier proceedings, together with any outstanding issues from the termination of her employment in 2009, be settled on a final basis was reasonable. 73The respondent's submissions traced the course of events, the offers made and the timing and circumstances in which the offers were made: (1)the application for leave to appeal and the appeal was lodged on 14 June 2013. On 20 June 2013, the respondent made an offer to settle the appeal, noting that the respondent considered that the applicant's prospects of success for the appeal were poor. The offer was made before any submissions had been filed. The offer lapsed. The applicant made no counter offer and did not seek to engage the respondent in an attempt to settle the appeal proceeding. (2)On 5 July 2013, the applicant's submissions with respect to leave to appeal and the appeal were filed. (3)On 19 July 2013, the respondent filed its submissions with respect to leave to appeal and the appeal. The respondent's submissions highlighted a number of weaknesses in the issues raised by the appeal. For example, the question of continuity of service did not arise for consideration. (4)On 19 July 2013, the respondent made an open offer to seek to resolve the appeal proceeding. The offer was made well before the hearing of the appeal. The offer was made in circumstances where the applicant had the benefit of the submissions. The respondent's offer proposed an outcome that was highly favourable to the applicant and went beyond the relief she might achieve by the appeal. Indeed, the offer assumed the applicant's success on an appeal and any orders she might seek beyond the appeal, assuming a remittal to the Commission. The offer only required the discontinuance of the appeal and an undertaking that the settlement terms resolved all matters relating to the termination of Ms Ganino's employment with RMS in 2009. (5)Given the issues raised by the appeal and the merits of the appeal, the respondent's offer was more than reasonable. It clearly was an offer intended to achieve finality and proposed in circumstances where the respondent considered that the applicant's appeal had some significant deficiencies. With respect to proceedings which had been on foot since August 2009, the respondent's objective of seeking finality was reasonable and an offer including a means of achieving finality of the whole of the dispute was appropriate at the time. (6)On 2 August 2013, the Applicant rejected the 19 July offer. Ms Ganino's reasons for rejecting the offer included, inter alia, her insistence on 'non-monetary relief', such as the amendment of the catchwords. She also objected to providing a release, sought the payment of interest, and alleged that there was uncertainty about the calculation of the amounts offered in respect of annual leave and long service leave. By open letter dated 5 May 2014 (received by the respondent's solicitors on 6 May 2014), the applicant accepts that the amounts the respondent offered to pay to her on 16 September 2013 in respect of annual leave and long service leave were the correct figures. (7)Ms Ganino's refusal to accept an offer that would have brought her finality because she wanted catchwords to be amended was unreasonable. The respondent's written submissions made it plain that this aspect of the appeal had no prospect of success. The respondent's submissions on this point were ultimately successful. The respondent noted that there was no evidence that the applicant took any steps to address her concerns about the catchwords with the Commission's Registry or address the concern administratively until February 2014, well after the offer made by the Respondent on 19 July 2013. In the context of the appeal proceedings, the applicant's refusal to accept that offer was unreasonable. (8)On 13 August 2013, the respondent made a further offer in a genuine attempt to settle the appeal proceedings. It agreed to pay interest and address the superannuation concerns raised by the Applicant in the 2 August 2013 correspondence. The offer was expressed to be open until 9am on 14 August 2013, when the appeal had been set down for hearing. The offer was not accepted. (9)At the commencement of the hearing of the appeal on 14 August 2013, the applicant sought leave to amend the Notice of Appeal. The application was refused. The respondent raised the open offer and contended that the offer, made without admissions, would provide Ms Ganino with an appropriate remedy, making the appeal futile. (10)The appeal was not heard on 14 August 2013 because further attempts were made by the parties to resolve the appeal proceedings. Later, the parties participated in conciliation with a member of the Full Bench. (11)Between 23 August 2013 and 30 August 2013, the parties corresponded about proposed orders with a view to resolving the appeal proceedings. The proposed orders included provision for continuity of the applicant's service, notwithstanding that the respondent disputed that the issue of continuity was properly part of the appeal. The Full Bench ultimately determined that continuity of service was not properly raised on the appeal. (12)On 16 September 2013, the applicant proposed orders in response to the respondent's proposed orders. The applicant refused to accept that the payments proposed would be in full and final settlement of all claims arising out of the proceedings and the termination of Ms Ganino's employment in 2009. On any objective assessment of the applicant's position, it is clear that Ms Ganino was not prepared to compromise any aspect of the claim and was not prepared to agree to orders which would bring finality to the dispute. On any objective assessment, the applicant's refusal to effect a final settlement of outstanding matters was not reasonable. The respondent's request for finality and agreement to an order for full and final settlement of all claims arising out of the proceedings and the termination of Ms Ganino's employment in 2009 was reasonable in the circumstances, particularly where its offer included a payment for continuity of service which was not properly raised by the appeal. (13)On 15 November 2013, the respondent observed that there was no possibility of the matter being resolved as Ms Ganino was unwilling to make any compromises. All earlier offers had lapsed and the respondent advised that the offers, include the offer made on 19 July 2013, would not be reopened. (14)On 21 November 2013, when the appeal was listed for hearing, the applicant made an application for leave to extend the time to appeal from Tabbaa C's decision of 13 July 2012. The basis of the application was the failure of Tabbaa C to make an order for continuity of service in her decision. This application was also refused. (15)When the Full Bench delivered its reasons for upholding the applicant's appeal, it was plain that the applicant failed on most of the grounds raised. The applicant succeeded on the ground that Tabbaa C had not provided adequate reasons. This was not a ground of appeal identified in the grounds of appeal but a point raised only with respect to seeking leave to appeal. (16)The applicant took no steps to make an application for costs to the Full Bench. She did not seek to have the appeal relisted to address costs. (17)The Full Bench remitted outstanding matters to Boland AJ. The 'remittal hearing' was listed for 20 February 2014. At the remittal hearing, the applicant sought to argue the continuity of service issue, notwithstanding the clear ruling made by the Full Bench. The respondent opposed the issue being raised again, but otherwise responded to proposed orders provided by the applicant's counsel a few minutes before the hearing commenced. With respect to the orders provided on the commencement of the hearing, the issues for the remittal were significantly narrowed. (18)The applicant's submissions with respect to the costs of the appeal and the costs of the remittal fail to address the offers and significant attempts made by the respondent to resolve the appeal and, importantly, achieve finality. The applicant's resolute refusal to make any compromise and the applicant's insistence on pursing futile points - such as amendment of catchwords and continuity of service - permit the Commission to find that that applicant's conduct was an unreasonable refusal to accept a number of reasonable offers. If a costs order is warranted, then it is warranted in favour of the respondent.

Indemnity costs 74The respondent opposed the applicant's application for costs of the remittal payable on an indemnity basis. It was submitted the respondent did not 'induce' the applicant into believing that the remittal would be fully contested. The applicant's solicitors emailed proposed orders to the respondent's solicitor after 4.30pm on 17 February 2014. No explanation or associated correspondence was provided with the proposed orders. The orders were one of a number of emails and correspondence received from the applicant's solicitors that day. In correspondence dated 17 February 2014, but first emailed to the respondent on 18 February 2014, the applicant's solicitor referred to the proposed orders and stated, "Please advise by 5pm 18 February if you have any issue with Order 6. We presume you will take issue with orders 1 - 5". It was submitted that: The proposed orders and associated correspondence were provided two days before the commencement of the remittal proceeding. In the circumstances, it was reasonable for the Respondent to consider the issues raised. The time provided was a relatively short period of time to consider the issues raised and seek and be provided with instructions. In any event, the applicant's final form of proposed orders was not provided until a few minutes before the hearing commenced and 'Order 6', the order which the applicant's solicitor requested the respondent's position on prior to the hearing, was in a different form to that emailed to the respondent's solicitor. 75It was further submitted that the applicant's attempts to cast the proposed orders of 17 February 2014 as simply a restatement of her position in August 2013 should be rejected. The applicant failed to acknowledge the context in which the earlier offers had been made and the scope of the issues raised on the appeal. 76The allegation that the respondent had not acted consistently with the Model Litigant Policy was a serious allegation that was not supported by evidence; it remained a mere assertion that was not accepted by the respondent. 77The respondent submitted that it appeared the applicant was seeking costs payable on an indemnity basis as a means of punishing the respondent, which was an improper basis for costs to be ordered: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. 78The respondent referred to County Securities Pty Limited v Challenger Group Holdings Pty Limited (No 2) [2008] NSWCA 273 where the Court of Appeal addressed the discretionary nature of awarding indemnity costs and held that the person making the application for indemnity costs bears the onus of proving that indemnity costs should be awarded. Further reference was made to what McColl JA (Spigelman CJ and Beazley JA agreeing) said: [32] An offer with no real element of compromise in it, which is designed merely to trigger the costs sanctions, will not be treated as a genuine offer of compromise. Whether or not an offer is a genuine offer of compromise or merely a demand to capitulate depends upon an assessment of all the circumstances of the case at the time: Leichhardt Municipal Council v Green (at [21], [27]) per Santow JA (with whom Stein JA agreed); 79The respondent submitted the applicant's proposed orders of 17 February 2014 did not contain any element of compromise. When assessed against the respondent's many attempts to resolve the dispute, the proposed orders were a demand that the respondent capitulate in the context where the applicant continued to raise issues that had been dismissed by the Full Bench.

Costs of the costs application 80The respondent rejected the applicant's submission that the respondent unreasonably refused to accept an offer made on 31 March 2014 with respect to the costs. It was submitted: (1)The offer was made by letter dated 31 March 2014 (sent by email at 11.42am) and was expressed to be open until 12 noon the following day. Twenty-four hours was, in the circumstances, an unreasonable time to expect that the offer could be properly considered. (2)The offer was made prior to any submissions being filed by the parties, so it was not an offer which could be considered in the context of the parties' respective submissions and evidence. (3)The offer was expressed to be $12,000 for the remittal proceeding. The applicant's solicitor provided no basis of any kind as to how the costs were calculated, what fees were incurred, when the fees were incurred, what disbursements were incurred and when disbursements were incurred. The Applicant provided nothing to assist the respondent make any assessment as to whether the proposed sum was a reasonable reflection of the costs actually incurred with respect to the remittal hearing. If the applicant relied on the 17 February 2014 correspondence, then the applicant should have provided some information to the respondent that demonstrated which costs had been incurred on 18 and 19 February 2014, as opposed to an earlier point in time. (4)The applicant had filed evidence, but had failed to provide any evidence with respect to the basis on which the claimed costs have been incurred. (5)On 4 April 2014 (two days after the 24 hour deadline), the respondent offered to pay Ms Ganino's reasonable costs of the remitter and requested further information about the amount sought by the applicant in her offer of 31 March 2014. The applicant's solicitor responded on 8 April 2014 and rejected the offer. The applicant sought 75% of her costs of remittal, but again provided no information as to the quantum of the costs or the basis on which the costs were incurred.

Applicant's reply 81The applicant's reply submission may be summarised as follows: (1)it was incorrect to assert that there was any final determination of the unfair dismissal proceedings ("the Proceedings") in September 2011; (2)the applicant does not seek costs of the Proceedings other than on remittal from the Full Bench on 18 December 2013; and, separately, in relation to the appeal lodged in June 2013. Notwithstanding that this application is only for costs incurred by Ms Ganino since June 2013 (on the appeal) and since 18 December 2013 (on the remitter), it is plainly relevant that the respondent refused to settle the Proceedings in October 2009 on the basis that Ms Ganino be reinstated with back pay (of no more than 3 months at that time) and with each party bearing their own costs, as had that occurred then none of the steps in the Proceedings that followed - including the remitter - would have been necessary; (3)the respondent's rejection of the offer in 2009, and its persistent refusal to countenance reinstatement thereafter, has caused the extensive, lengthy, and expensive litigation since that time: see Maitland Hospital v Fisher (1992) 27 NSWLR 723 at 724 as to the objects of the rules in relation to offers of compromise; (4)the respondent infers that the quantity of offers made by the respondent exculpates it from any responsibility for the rejection of the offer in October 2009. In reality, none of the offers made in 2010 or 2011 addressed Ms Ganino's concerns that, having been dismissed for serious misconduct, any settlement that left the findings of misconduct undisturbed would operate as a significant inhibitor for future employment; and that to address this, reinstatement based on findings that the misconduct was not proven (or, as it transpired in June 2010, the withdrawal by the respondent of the most serious allegations of misconduct) could help alleviate those inhibitors; (5)It is notable that even on an argument about costs incurred from June 2013 the respondent wishes to trawl through contentious matters from 2011 and continues to attempt to portray Ms Ganino adversely, notwithstanding that the multiple serious allegations that underpinned its dismissal of Ms Ganino were either withdrawn by the respondent (essentially, after their witnesses were discredited and the allegations were recognised, even by the respondent, to be unsustainable), or (in relation to less serious allegations that could not have justified Ms Ganino's dismissal on any objective assessment, even if they had been true) were found by Tabbaa C not to be made out. Ms Ganino was wholly successful in her quest for reinstatement with payment of all unpaid remuneration with interest; (6)the offers made by the respondent in November/December 2011 ignore that at that time Ms Ganino had the benefit of a decision by Tabbaa C in her favour, reinstating her with back pay; and at the time was receiving full salary (although not superannuation payments) pursuant to consent orders entered into by the respondent. Whilst the October 2011 decision was the subject of an appeal in which RMS was successful, the appeal was granted on grounds other than those outlined in the notice of appeal, and in any event the applicant subsequently obtained the same measure of success - reinstatement with full back pay - in decisions in July 2012, May 2013 and March 2014; (7)the respondent had the benefit of the applicant's case from its opening statement in April 2010. The respondent never opened its case, and the applicant was ultimately vindicated in every aspect of its attack on the reasons for Ms Ganino's dismissal. Notably, the respondent did not appeal the reinstatement decision; (8)although the respondent characterised the delegations issue as a new issue, Tabbaa C did not accept this characterisation of it - indeed it had been raised in part by Ms Ganino prior to her dismissal - and simply allowed the applicant to tender evidence in relation to the issue. In fact, the respondent then tendered the delegations manuals that the applicant had sought to tender, and sought leave to adduce further evidence. Leave was granted, causing delays in the hearing until June 2010 due to the unavailability of the witness necessary to give evidence about delegations. The respondent then sought further leave to re-open its case and adduce further evidence on the issue in April 2011 - leave was also granted to the respondent to do that, over the applicant's objection. It was the respondent that insisted that the delegations issue be treated as a threshold issue. Ultimately on the appeal the subject of decision on 12 March 2012 the respondent did not challenge the findings of invalidity made by Tabbaa C in relation to the delegations issue, and the Full Bench did not make findings one way or another about the findings of invalidity, instead finding error in the invalidity issue being dealt with as a threshold matter rather than as an element of unfairness. (9)the respondent had submitted the applicant's offer as at October 2009 was not an offer that involved "a real and genuine element of compromise" and that there was no evidence that subsequent offers by the respondent were other than genuine and reasonable. The applicant replied that the respondent was not prepared to negotiate around reinstatement, and that was not a reasonable position for it to hold, either at the time in 2009, nor at any subsequent time. The same intransigent attitude has polluted the respondent's approach to negotiations in the appeal and on the remitter, where it insists on a general release from Ms Ganino, in circumstances where Ms Ganino is willing to give releases in relation to the Proceedings - but not more generally; (10)in response to the respondent's submission critical of the applicant's failure to respond to its offer of 20 June 2013 to settle the appeal (in respect of which the respondent described the prospects as "poor"), the applicant submitted the offer: a. Did not allow for interest on the nine months' salary b. Did not address all unpaid entitlements or allow for any interest thereon c. Did not include an offer for costs d. Required a confidential settlement and a general release e. Did not address the Catchwords issue (which was subsequently addressed administratively) Also, the characterisation of the appeal as "poor" has been demonstrated to be wrong; (11)in respect of the respondent's offer of 19 July 2013 and which the respondent described as highly favourable to the applicant, going beyond the relief she might achieve by the appeal, the applicant replied that the offer a. did not provide for interest on the nine month's salary which has been ordered ); and b. did not provide for payment of costs c. provided for payment of superannuation of $14,564.87 in circumstances where RMS has since paid in excess of $33,000 in superannuation d. sought a general release , seeking that "no further proceedings will be brought which in any way relate to the termination" e. did not include an offer for annual leave loading f. did not involve payment of interest on the entitlements. The applicant submitted that whilst she was still litigating her entitlements, the general release would have prevented her litigating about entitlements not included in the offer. If the offer had been confined to the matters in the appeal, had included interest and canvassed costs, and had sought a release only in respect of the appeal proceedings, perhaps the respondent could have characterised the offer as reasonable. As it was, it was not unreasonable for the applicant to reject same. (12)the applicant noted that in relation to 16 September 2013, when the applicant proposed orders in response to the respondent's proposed orders, the respondent had submitted that the applicant refused to accept that the payments proposed would be in full and final settlement of all claims arising out of the proceedings and the termination of Ms Ganino's employment in 2009. The applicant noted further the respondent's submission that on any objective assessment of the applicant's position, it was clear that Ms Ganino was not prepared to compromise any aspect of the claim and was not prepared to agree to orders which would bring finality to the dispute and that the applicant's position was, therefore, unreasonable. The applicant submitted in reply that the applicant's offer mirrored the respondent's offer except in relation to three issues, the significant one being the issue of a release. It was submitted that given the applicant otherwise accepted the respondent's offer - and noting that the respondent's offer did not include payment of the applicant's costs of the appeal - it was unclear in what way it is said Ms Ganino "was not prepared to compromise any aspect of the claim". The amounts were agreed - the terms of the release were not. (13)In relation to the respondent's submission that it had significantly narrowed the issues to be determined in the remitter by responding to proposed orders by the applicant, the applicant submitted it was not until the hearing was about to commence that the respondent narrowed the issues - after the applicant had incurred the costs of preparing for a fully defended hearing; (14)at every step of these Proceedings and the appeal, the respondent has resolutely refused to compromise its position, has increased the costs of litigating the matters by its combative approach, and has sought to deflect attention from this behaviour by making offers to settle that were, in effect, crude attempts to induce the applicant into accepting payments to which she was and is reasonably entitled, in return for the one thing that the respondent values - a general release. The respondent does not value money, and that attitude should be taken into account when assessing its unreasonable refusal to agree to a settlement of these proceedings; (15)indemnity costs are not sought as a punishment of the respondent. Costs are compensatory; (16)the costs of the costs application are sought by the applicant primarily on the basis that the costs application is an ordinary incident of and extension to the: a. Appeal; and b. The remittal And that, if successful in prosecuting the costs application, then for the same reasons that the costs applications succeed, costs of the costs application should be paid. Additionally, the respondent failed to respond to the offer in relation to costs made on 31 March 2014. Whilst a short time frame was provided, it represents a costs quantum that was inevitably going to rise significantly if - as has occurred - an argument on costs ensued. In any event the respondent failed to respond within even the extended deadline of Tuesday 1 April 2014 and by the time it did respond it did not respond with a counter offer, but simply a request for particularisation - ensuring that the applicant would incur further costs simply in responding to the respondent. (17)The respondent's application for costs of the appeal should be refused. The applicant's application for costs of the appeal and the remittal should be granted.

Legal principles 82The costs claimed by the applicant are: (1)costs of the appeal in Ganino 7; and (2)costs of the remitter in Ganino 8 on an indemnity basis including the costs of the costs application. 83As stated earlier, the basis upon which the applicant makes her claim is s 181(2)(c) of the IR Act, which relevantly provides that the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim. 84In Bankstown City Council & Paris [1999] NSWIRComm 585; (1999) 93 IR 209, the Full Bench considered the question of costs at first instance and on appeal in unfair dismissal proceedings on the basis of a claim by the respondent on appeal under s 181(2)(c). In relation to the application of s 181(2(c) the Full Bench stated at 219: Construing the relevant part of s 181(2)(c) in its overall statutory context, we conclude that the evident purpose of the provision is to encourage the settlement of proceedings to which it applies. The criterion set out in the provision is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim. We also consider that on the proper construction of the provision, an affirmative conclusion may be reached on at least two bases. First, where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party. The second situation in which the criterion could be satisfied is where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. We emphasise that, although the legislature has clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings, the legislature has also evinced a clear intention that costs orders be available in circumstances where there has been a failure on the part of a party to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. Once the statutory criterion has been met, the Commission's broad powers and discretions under s 181(1) are available for exercise. 85Thus, the criterion in s 181(2(c) is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim. Further, a conclusion that a party unreasonably failed to agree to a settlement of the claim may be reached on at least two bases: (i) where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party; and (ii) where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. 86 In exercising its power under s 181(2)(c) the Commission "is obliged to consider all relevant circumstances in deciding whether such failure has occurred" and that "[o]nce the statutory criterion has been met, the Commission's broad powers and discretions under s 181(1) are available for exercise." 87At 224, the Full Bench in Paris held in relation to indemnity costs: The Commission can properly, in the appropriate exercise of its discretion, make an order for indemnity costs. The power to make a costs order of that kind is clearly available because of the terms of s 181(1)(b). 88The decision in Paris was relevantly endorsed by the Court of Appeal in Phillips v Industrial Relations Commission of NSW [2006] NSWCA 183. In Cooma Rural Lands Protection Board v Phillips [2005] NSWIRComm 313 (the Full Bench decision considered in Phillips v Industrial Relations Commission of NSW) the Full Bench considered an appeal from Bishop C. The Commissioner had found that the dismissal was unfair but that reinstatement was impracticable. The Commissioner awarded compensation instead. 89The employer had made an offer of compromise and because the outcome in the unfair dismissal proceedings was significantly less than the employer had offered in the settlement letter, the employer made an application for costs pursuant to s 181(2)(c) of the IR Act. Bishop C found that the employer's offers were "in fact reasonable". However, the claimant was held to be reasonable in failing to accept them. The Commissioner said that "the respondent's settlement offer was untenable to Mr Phillips because of his desire for reinstatement, and his desire to seek to have matters redressed." 90As the Court of Appeal recorded at [26]-[28]: [26] The Full Bench's reasons show that it concluded that the Commissioner had failed properly to address the task of forming the requisite opinion referred to in s 181(2)(c). It found (at [52]) that the employer had made out its case on appeal, a case earlier summarised in the following terms: In her decision the Commissioner found and expressly found that the offers made by the employer were reasonable. That being so, the rejection of the offer by Mr Phillips was the objective basis upon which a cost order should have been made. The employer argues that in failing to do so, the Commissioner fell into error, an error which was compounded by her adoption of a subjective test namely whether Mr Phillips rejection of the offer was unreasonable. In essence, the employer argues, the Commissioner held that because Mr Phillips sought reinstatement to the exclusion of any other outcome, then an offer contemplating any other outcome would not be reasonable to him and therefore, his rejection of the employer's offer was not reasonable. [27] The Full Bench said at [44]: We consider that Mr Phillips' steadfast insistence on reinstatement to the exclusion of other negotiated outcomes disclosed a failure on his part to properly evaluate the strengths and limitations upon the case he was to propound and in such circumstances there can be little doubt on a proper application of the principles, that an order for costs against Mr Phillips was available and should have been made. [28] The Full Bench found (at [54]) that "the relevant criterion in s181 of the Act has been established to provide the jurisdictional basis upon which to grant costs against Mr Phillips and Bishop C erred in that regard". 91At [29] the Court of Appeal held: [29] The Full Bench found that the Commissioner committed an appealable error by her approach to the costs discretion because she assessed the reasonableness of the claimant's conduct solely by reference to the stance adopted and maintained by the claimant himself, giving controlling effect to his insistence upon vindication and reinstatement. It was well open to the Full Bench to conclude that this failed to recognise that the parameters of reasonableness in maintaining a claim (or defence) are not set by the litigant's own professed bottom line. Regard must be had to the range of possible outcomes having regard to the nature of the proceedings and the facts being advanced on both sides. 92In Cong Xu v Austino Property Development Pty Ltd (No 2) [2013] NSWSC 1559, Darke J referred to the Victorian Court of Appeal's summary in Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; 13 VR 435 at [23]-[25] of the principles and factors to be considered when assessing whether a rejection of an offer of settlement is unreasonable: The test of unreasonable rejection [23] In our view, these competing considerations can be sufficiently accommodated by applying a test of (un)reasonableness. The critical question is whether the rejection of the offer was unreasonable in the circumstances. We see no justification for a more stringent test such as "manifestly" or "plainly" unreasonable. [24] Of course, deciding whether conduct is "reasonable" or "unreasonable" will always involve matters of judgment and impression. These are questions about which different judges might properly arrive at different conclusions. As Gleeson, C.J. said recently, "unreasonableness is a protean concept". But a test of reasonableness is, we think, entirely appropriate to the exercise of a discretion such as this. Factors relevant to assessing reasonableness [25] The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. It is neither possible nor desirable to give an exhaustive list of relevant circumstances. At the same time, a court considering a submission that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree's prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; (f) whether the offer foreshadowed an application for an indemnity costs order in the event of the offeree's rejecting it. (Footnotes omitted.) 93Darke J noted that above list of relevant factors was cited with approval in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 344 at [12] and in Vieira v O'Shea (No 2) [2012] NSWCA 121 at [22]. 94In Miwa at [9] the Court of Appeal stated: [9] There is authority for the proposition that both an offer of compromise under the rules and an informal offer must involve "a real and genuine element of compromise": The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706 at [8]. While this terminology is not entirely apposite, it has been described as "serviceable": Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [25] (Spigelman CJ, Beazley and McColl JJA). To characterise an offer by reference to epithets such as "real" or "genuine" adds little to the requirement of compromise, and may imply (wrongly) that the appropriate inquiry is as to the subjective intentions of the offeror: Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [23] (Ipp, McColl and Basten JJA); Evans of Robb Evans & Associates v European Bank Ltd (No 2) [2009] NSWCA 170 at [17]- [18]. As explained by Giles J in Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 at 368: "Compromise connotes that a party gives something away. A plaintiff with a strong case, or a plaintiff with a firm belief in the strength of its case, is perfectly entitled to discount its claim by only a dollar, but it does not in any real sense give anything away, and I do not think that it can claim to have placed itself in a more favourable position in relation to costs unless it does so." 95In Miwa, the Court of Appeal also confirmed at [11] that "the response of the offeree must be assessed at the time it was made, and not with the benefit of hindsight resulting from a known outcome, recorded in a judgment": Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [33].

Factual summary relevant to appeal costs 96Against the background of those legal principles, the following factual summary is relevant in relation to the costs of the appeal: (1)There is a history of litigation (outlined earlier in this decision) preceding the filing of the appeal by the applicant in June 2013. During the course of the litigation settlement offers were made by both the applicant and by the respondent. The various offers failed to settle the matter mainly because the applicant insisted on unconditional reinstatement and the respondent declined to agree other than, ultimately, in circumstances where upon reinstatement the applicant agreed to immediately commence secondment at another NSW Government Agency for a limited period (proposal put by respondent in November 2011). The applicant declined. (2)In Ganino 5, a decision handed down on 13 July 2012, the Commissioner found the dismissal of Ms Ganino was harsh and made an order for reinstatement. The respondent did not seek to appeal from this decision. (3)In September 2012, the PSA and respondent reached a confidential agreement in relation to costs. (4)There was an outstanding question of lost remuneration and mitigation of loss in Ganino 5, which Tabbaa C determined in May 2013 (Ganino 6). The applicant appealed from the decision in Ganino 6 in June 2013. (5)On 20 June 2013, the respondent made a Calderbank offer. The offer did not include interest and sought agreement that acceptance of the offer would resolve all matters. This offer was revised in July 2013 to, relevantly, include interest on nine months' pay. However, the proposal of full and final settlement remained the respondent's position. On 2 August 2013, the applicant declined the offer on a number of bases including that she was not prepared to give RMS a general release as she was contemplating further action against the respondent, that it was inconsistent with model litigation principles that the respondent would proffer overdue annual leave and long service leave entitlements as negotiation items for settlement purposes and that the offer did not include interest. (6)In August and September 2013, offers and counter offers were made such that on 16 September 2013 the applicant was prepared to accept all the elements of an offer by the respondent with one material exception that being rejection of the respondent's position that the payments identified in the offer to Ms Ganino would be in full and final settlement of all claims arising in proceedings before the Commission and the termination of Ms Ganino's employment. The respondent subsequently indicated that in its view there was no possibility of the matter being resolved through a negotiated agreement "as Ms Ganino is unwilling to make any compromises". (7)Conciliation proceedings failed to resolve the impasse and the Full Bench proceeded to hear the appeal, issuing a decision in December 2013 in Ganino 7 and finding Tabbaa C had erred in her decision in Ganino 6. The Full Bench remitted to me the issue of the quantum of remuneration to be awarded to Ms Ganino in light of her reinstatement.

Conduct of the parties 2009 - 2011 97Ms Ganino contended, in effect, that the relevance to her claims in these proceedings of the respondent's unreasonable refusal to settle the first instance proceedings by agreeing to reinstate her meant that, as a consequence, she was forced to pursue her reinstatement claim (and was vindicated), which in turn led to further proceedings including the appeal and remitter, causing her to incur costs. The applicant contended that if the respondent had acted reasonably and had reached a compromise settlement in the first instance proceedings that included her reinstatement, she would not have incurred the costs of the appeal and remitter. 98Paris requires that I consider "all relevant circumstances" in deciding whether there has been an unreasonable failure by one party or another to facilitate a settlement. It is a relevant circumstance, in my opinion, to consider the parties' conduct in settlement negotiations during the course of the first instance proceedings. I accept that if the respondent had been unreasonable in failing to settle, it would have had a "knock on" effect by placing the applicant in the position of having to engage in the further litigation that followed the decision in Ganino 5. 99If, of course, the respondent had acted reasonably in all the circumstances then it could not be held liable for the costs incurred by the applicant on appeal or on the remitter. 100The test for determining whether the respondent acted unreasonably in failing to agree to a settlement of the applicant's claim for reinstatement is not that the claim was later vindicated. What the applicant must show, according to Paris, is that on an objective consideration either there was a proposal put by her which could be described as a reasonable settlement of the claim and that was not agreed by the respondent, or the course of conduct of the respondent over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. The response of RMS to any offer by the applicant must be assessed at the time it was made and "not with the benefit of hindsight resulting from a known outcome, recorded in a judgment": Miwa. 101In the period between July 2009 and November 2011 the respondent made seven offers to settle the proceedings. The applicant rejected each offer because it did not provide for reinstatement. The applicant made one offer on 27 October 2009 seeking reinstatement with continuity of service. That was rejected and it lapsed. 102There was no element of compromise in the applicant's offer of 27 October 2009 and, as the respondent submitted, it was an offer made prior to the evidence closing and before any assessment could be made of the relative strengths and weaknesses of the parties' respective positions. Consequently, it could not be said that the respondent's rejection of the applicant's offer of 27 October 2009 was unreasonable and, therefore, on that basis costs should be awarded to the applicant. 103The question then becomes whether the course of conduct of the respondent between 2009 and 2011 could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable: Paris. The position over the period was that the applicant consistently insisted on reinstatement and the respondent, although prepared on seven occasions to attempt to settle the matter by making progressively improved offers, consistently declined to include reinstatement in any of its offers of settlement. 104The applicant relied on a number of propositions to support her contention that the respondent was unreasonable in consistently failing to settle her claim by reinstating the applicant in her former position. These included the following: (1)The termination of the applicant's employment was predicated on 22 allegations of misconduct. From about mid-October 2009 when the respondent filed its evidence it was aware it was not going to call evidence from a Ms Howes. Without that evidence it was always going to be difficult, if not impossible, for the respondent to prove four of the allegations (allegations17 to 20 inclusive). (2)From on or about 23 January 2010, when the applicant served her statement in reply, the respondent was aware of Ms Ganino's response to the allegations. From that time the respondent should have been aware that it faced significant hurdles in proving the misconduct upon which it relied to dismiss Ms Ganino. (3)The allegations were the subject of a "painstaking" opening statement by the applicant on 14 April 2010. If the respondent had any doubts prior to that date as to the difficulties it faced in proving the allegations, the opening statement should have dispelled those doubts. (4)By 18 June 2010 the respondent no longer relied on a further seven allegations (allegations 1 to 7). Allegations 1 to 7 were the more serious allegations. Without them and allegations 17 to 20, it was incumbent upon the respondent to carefully analyse the likely outcome of the proceedings and to carefully consider its position on offering reinstatement. (5)The respondent could have withdrawn its reliance of allegations 1 to 7 and 17 to 20 at an earlier point in time because it was evident on the respondent's own documents the allegations could not be sustained. It chose instead to advise its non-reliance on allegations 1 to 7 on the last day of the hearing. (6)The respondent's offer on 10 November 2011 whilst superficially more attractive than the offers made in April and May 2011, was made at a time when Ms Ganino had the benefit of the Commission's reinstatement and other orders made on 26 October 2011 and the applicant was entitled to hold the view that she had reasonable prospects of holding the reinstatement orders. The 10 November 2011 offer still imposed confidentiality on any statement of regret and on the settlement generally, making it difficult for Ms Ganino to overcome the negative impact of the termination. At the same time the respondent was prepared to withdraw the allegations, demonstrating a willingness to walk away from the alleged misconduct that had led to the termination in the first place. (7)In its decision of 13 July 2012, the Commission rejected a number of the other allegations pressed by the respondent. It was thus unreasonable for the respondent to persist in its belief that the Commission would sustain many of the remaining allegations of misconduct. A reasonable and objective assessment of the relative strengths and weaknesses of each parties' case from January 2010 onwards would have led overwhelmingly to the conclusion that reinstatement was a real, and not remote, possibility. The respondent's persistent refusal to countenance reinstatement as settlement of the proceedings reflected a refusal to settle the matter on a reasonable basis. (8)In the matter the respondent conducted itself in a way that was inimical to any resolution of the proceedings. This involved multiple interlocutory steps and applications made during the course of the hearing. 105Prior to the decision in Ganino 3 in September 2011, when orders were made reinstating Ms Ganino, the position was that the respondent had withdrawn seven of the allegations against the applicant, and as the applicant submitted, would have found it difficult to sustain a further four of those in the absence of evidence from Ms Howes. 106Furthermore, having read the applicant's opening statement made on 14 April 2010 (which counsel is obliged to make on the basis it is able to be supported with competent testimony and admissible evidence) and the - admittedly somewhat brief - findings of Tabbaa C in Ganino 5 going to merits of the application, one could not conclude the respondent's case - that the dismissal was not harsh, unreasonable or unjust - was a strong one. Nothing I have read in the proceedings would allow me to form the view that the respondent had a strong case against Ms Ganino justifying her dismissal for misconduct. 107In that respect, I note that in Ganino 5 Tabbaa C considered the five categories of alleged misconduct relied upon and found that none of them warranted dismissal. The Commissioner was "highly critical of the fact that Ms Ganino refused to participate/assist in the fact-finding or disciplinary interviews", but this was not found to constitute misconduct warranting dismissal and in the circumstances of the case nor could it, in my respectful opinion. 108At [24] of Ganino 5, Tabbaa C further held: [24] [...] [T]hat the nature of the misconduct contained in the remaining allegations relied on by the Respondent is not sufficient to warrant the termination of Ms Ganino. I accept the Applicant's submission that the penalty of dismissal is disproportionate given the circumstances described above and consider the termination to be harsh. 109But, of course, it must be acknowledged that prior to the decision in Ganino 3 it was far from certain any consideration of the merits would result in an order for reinstatement even though there might be a finding the dismissal was harsh, unreasonable or unjust. The IR Act provides for re-employment if the primary remedy, reinstatement, were to be impracticable, and for compensation if reinstatement and re-employment were both impracticable: see s 89(2) and s 89(3). 110By this time litigation had been on foot for two years involving at least three interlocutory proceedings before various members of the Commission and a hearing before Tabbaa C involving 16 hearing days (Ganino 2). To say the proceedings were hard fought would be an understatement and an obvious issue that would arise if the dismissal were found to be harsh, unreasonable or unjust would be the nature of the remedy. From my reading of the materials, relationships between the parties were extremely fraught. Both parties had made serious allegations - the respondent alleging serious misconduct by Ms Ganino, a senior solicitor, and Ms Ganino making allegations of corruption. It could not be discounted that the Commission would conclude there was a loss of trust and confidence: see Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186. Whether reinstatement was appropriate was potentially a moot point. 111In the period between October 2009 and September 2011 the respondent made four offers of settlement: none of them, as I earlier noted, offering reinstatement. The fact that reinstatement was not offered does not, in my opinion, mean that the respondent was unreasonable. 112 By November 2011, all of the evidence relating to Ms Ganino's dismissal had been tried and tested in the proceedings before Tabbaa C that resulted in the decision in Ganino 3. Tabbaa C found that Ms Ganino had been dismissed because the disciplinary processes applied to Ms Ganino were not validly delegated to any of the people who purported to exercise those functions. The Commissioner ordered Ms Ganino's reinstatement with full continuity of service. 113The respondent, however, had decided to appeal the decision in Ganino 3 and to contend that Ms Ganino had been dismissed and, accordingly, the only issue before the Commission was whether the dismissal was fair. RMS further intended to contend that the Commission's jurisdiction under Pt 6 of Ch 2 of the Act was limited to determining only whether the dismissal was harsh, unjust or unreasonable. It was also to be contended by RMS that the Commissioner could not determine the validity or invalidity of a dismissal under Pt 6 of Ch 2 of the Act. 114In the circumstances of the appeal it was on the cards that the Full Bench would find, as it did at [30] in Ganino 4, that: [30] [...] [I]n concluding that it was appropriate to determine only as a threshold question whether the purported dismissal was made without power and, therefore, a nullity and not consider the balance of the merits of the case, the Commissioner fell into error. 115The respondent could also reasonably have been on notice that one option for the Full Bench would have been to remit the matter to the Commissioner to hear and determine it on the merits, that is, to determine whether the dismissal was harsh, unjust or unreasonable. See Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 referred to by the Full Bench at [31]-[35]. Given the decision of Tabbaa C in Ganino 3 in which the Commissioner ordered reinstatement following a review of all of the evidence, it is not easy to see how the Commissioner would come to a different view regarding remedy if the matter were remitted to her by the Full Bench to deal with the question of whether the dismissal was harsh, unjust or unreasonable. 116On the other hand, in filing the appeal the respondent was seeking to have the orders of Tabbaa C set aside, the effect of which, according to the appellant, would be the end of the matter because in the absence of those orders the position would be that the decision to dismiss Ms Ganino would prevail and Ms Ganino would no longer be employed by the respondent. 117Against this background the respondent decided to make a further settlement offer on 10 November 2011. The terms of that offer are set out earlier in this decision. It is noteworthy that the offer contained the following elements: (1)backpay; (2)accrued leave entitlements; (3)continuity of service; (4)assistance to return to legal practice; (5)consent to Tabbaa C issuing orders in the unfair dismissal proceedings and that Ms Ganino is reinstated to her former position and orders reflecting an agreed position regarding allegations that formed the basis of the dismissal, provided that RMS' consent is conditional upon Ms Ganino's immediate resignation upon reinstatement; (6)provision by RMS of a confidential Statement of Regret in respect of her alleged hurt, humiliation, pain, suffering and damage to her reputation and statement of service; (7)the agreed position regarding the allegations against Ms Ganino which formed the basis of dismissal would be place on Ms Ganino's file; (8)a deed of release providing RMS with a general release from all claims arising from her termination of employment ; (9)the parties to keep confidential the facts and terms of settlement; (10)each party bear their own costs. 118It would appear the 10 November 2011 offer was refined/revised in an offer put to the applicant in the conciliation proceedings before Backman J so as to be in substitution for that part of the earlier offer relating to reinstatement conditional on immediate resignation. The revision consisted of the following "parameters": a) Ms Ganino is to be reinstated to her substantive position but will not return to that position. b) Instead taking up another role through a secondment arrangement for which RMS would pay her salary for 12 months. c) At the end of 12 months Ms Ganino's employment with RMS would come to an end, either by deletion of her substantive position, or by mutual agreement. d) If Ms Ganino's substantive position is deleted as part of a restructure of the legal branch of RMS prior to the secondment period ending then she will be offered a voluntary redundancy payment under the applicable Managing Excess Employees Policy and can choose to accept it and exit the public sector or continue to the end of the secondment period. 119A number of the elements of the 10 November 2011 offer were acceptable to the applicant or were to be the subject of further negotiations. However, whilst the applicant indicated that "she would be content to go on an agreed secondment for the period of 12 months..." Ms Ganino was not "at this juncture inclined to agree, absent any further detail, to her employment with the RTA/RMS coming to an end upon the conclusion of that secondment." Notwithstanding a degree of equivocation it is apparent that, as at November 2011, Ms Ganino had not relinquished her claim that any settlement had to include reinstatement. 120In deciding to make its November 2011 offers the respondent was in the position of having a decision against it reinstating Ms Ganino and having initiated an appeal that was likely to have some degree of success in overturning the first instance decision. I say that because it is difficult to see how the decision in Ganino 3 could be sustained in circumstances where orders had been made reinstating Ms Ganino in the absence of any finding that the dismissal was harsh, unreasonable or unjust. 121In those circumstances, one could not reasonably expect the respondent to make an offer in which reinstatement was unconditional because that would undermine completely the appeal, depriving it of any utility. 122The respondent's revised/refined November 2011 offer may be regarded as having a "real and genuine element of compromise". Nevertheless, it appears to have been the applicant's position that the respondent's continued failure to offer reinstatement free of conditions (apart from secondment) was unreasonable. The rationale for that position was that reinstatement was the only means by which the applicant could restore her reputation and professional standing and to fail to offer reinstatement was, in those circumstances, unreasonable given the applicant's position as a senior solicitor. 123Ms Ganino's concern about her reputation sits somewhat oddly with the position she took in relation to the internal disciplinary process between January and July 2009. There is substance in the respondent's position expressed in its submission filed on 10 August 2012 on mitigation, backpay and costs that if the applicant was genuinely concerned about her reputation she could have cooperated in that disciplinary process to answer the allegations against her. That process was confidential, yet Ms Ganino chose not to participate. The applicant sought to defend that non-participation. However, Tabbaa C does not appear to have been impressed by the applicant's defence of her non-participation and was highly critical. As it was, the applicant waited until the public proceedings before this Commission before she addressed the allegations. Inevitably in those proceedings, the allegations against Ms Ganino of misconduct were publicly aired. 124Moreover, the respondent was alive to Ms Ganino's concern with reputation. Its offer of 10 November 2011 sought to address that concern, at least to some degree, by proposing that the matters that were material to the restoration of the applicant's reputation would be the subject of an agreed statement before the Commission. That statement was to be included in Ms Ganino's personnel file. What was to be included in the agreed statement, and how the statement might have been used, was never finally determined because Ms Ganino's position regarding reinstatement seems to have precluded any meaningful negotiations regarding the offers. 125What then ensued after November 2011 was: the appeal from Ganino 3, in which the respondent was successful (Ganino 4); the decision of Tabbaa C on remittal in which the Commissioner found the applicant's dismissal was harsh and ordered reinstatement (Ganino 5); the decision in Ganino 6 regarding mitigation and backpay; the appeal from the decision in Ganino 6 by the applicant in which the applicant was largely successful (Ganino 7); and the consequential decision on the remitter from Ganino 7 regarding the quantum of remuneration to be paid to Ms Ganino (Ganino 8). 126No further settlement offers relating to the first instance proceedings were made by either party between November 2011 and June 2013. On 20 June 2013, the respondent presented a Calderbank offer to the applicant in relation to the appeal. 127In my opinion, having regard to the respondent's offers of settlement in November 2011, it could not be said that the respondent had adopted an unreasonable position in relation to the settlement of the proceedings. It had made a genuine attempt to settle notwithstanding it had appealed the decision in Ganino 3 with a legitimate expectation of some measure of success. 128The fact that the applicant was ultimately reinstated is not, as I earlier explained, the test to be applied. The test is whether the course of conduct of the respondent over the period from 2009 to November 2011 could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. One could not conclude the respondent conducted itself in a manner inconsistent with an intention to settle and on a basis that was unreasonable. I so find.

Conduct of the parties - 2013 129In Ganino 5, Tabbaa C found, inter alia, the dismissal of the applicant was harsh and ordered reinstatement. There was no appeal from that decision. There was, however, an appeal from the May 2013 decision in Ganino 6 by the applicant, primarily in relation to the question of lost remuneration and mitigation of loss. 130In June 2013, the respondent sought to settle those appeal proceedings in the terms outlined earlier in this decision. The applicant rejected that offer because the respondent, as part of its offer, sought a general release and Ms Ganino was of the view that agreeing to a general release would preclude her from pursuing monies she believed she was entitled to including interest on nine months' salary and certain unpaid entitlements plus interest thereon. 131Further offers and counter offers were made during August 2013 and then on 16 September 2013 the applicant indicated she was willing to compromise on the respondent's offer of 30 August. The applicant's counter offer mirrored the respondent's offer except in relation to three issues, the significant one being the issue of a release. The applicant's counter offer did not include a provision that the payments made to Ms Ganino would be in full and final settlement of all claims. 132It is not entirely clear to me why the applicant refused to include a release in her counter offer as proposed by the respondent. Such releases are a common feature of settlements in this jurisdiction. All of the amounts relating to entitlements and interest as proposed by the respondent were agreed. There was no indication at the time that the applicant intended to pursue further remedies or other relief that might be estopped by a release in the form of short minutes of order. The applicant's explanation at the time for not including a release provision in the terms of settlement was that as part of her counter offer (which was simply the respondent's document containing its offer of 30 August 2013 with words struck out or added by the applicant) she had deleted the provision having regard to: (i) the fact that RMS did not propose such a provision when the parties were before the Commission on 14 August and, axiomatically, no agreement was reached at that time as to such a provision being included; and (ii) the fact that the various matters referred to by number have now all been finalised (including the current proceedings, once agreement on the SMOs is reached). The finalisation of those proceedings provides the usual protection to the parties, and the proposed wording does not add or detract from the legal consequences of those proceedings having been commenced and determined. 133The only matter the applicant now seems to rely on in rejecting the release is that the offer did not contain a provision for costs incurred by the applicant in relation to her appeal from the decision in Ganino 6. I do not consider that to be a reasonable basis for withholding agreement to the offer. In any event, in her counter offer of 16 September 2013 the applicant agreed to a term that the parties bear their own costs of the appeal proceedings. 134The respondent's offer of 30 August 2013 involved a real compromise. By proposing payments in respect of accrued entitlements, the respondent was accepting that the applicant had continuity of service from the date of her dismissal notwithstanding that the respondent disputed that the issue of continuity was properly part of the appeal (a matter about which it was ultimately successful) and made the applicant aware that issue would be disputed. Moreover, the proposal for a general release was perfectly reasonable in the circumstances. The release was in the following terms: The payments are in full and final settlement of all claims arising out of proceedings IRC 499 of 2009, IRC 1720 of 2011, IRC 1608 of 2011 and IRC 1141 of 2009, and the termination of Ms Ganino's employment on 23 July 2009. 135The applicant's contention that the respondent unreasonably failed to settle on the basis of her counter offer of 26 September 2013 cannot be accepted. As I have found, the respondent's offer of 30 August 2013, including as it did the terms of a release, was a real attempt to compromise and a reasonable offer of settlement. It was not unreasonable, therefore, for the respondent to reject the applicant's counter offer that did not include the release. 136I am unable to find the respondent unreasonably failed to agree to a settlement of the appeal proceedings.

Costs of the remittal proceedings 137The applicant seeks costs of the remitter on an indemnity basis. The remitter arose out of the Full Bench's decision in the appeal in Ganino 7. In those proceedings Ms Ganino had sought an order for continuity of service. The Full Bench held the decision under appeal did not deal with the question of continuity of service. It followed that no error in relation to that decision was, therefore, identifiable. The Full Bench held that the ground of appeal was incompetent and dismissed it. 138On the remitter, the Commission held that the scope of the remitter did not allow it to deal with the issue of continuity of service. 139There being no extant order for continuity of service under s 89(4) of the IR Act the respondent apparently took the view following the decision in Ganino 7 (and following its unsuccessful attempt to settle the appeal) that it was not obliged under that statutory provision to regard the period since Ms Ganino was dismissed as continuous and, therefore, attracting payment for any accruals during that period. 140Having made these observations, the relevant sequence of events was as follows: (1)In correspondence dated 17 February 2014, but emailed to the respondent's solicitors on 18 February, the applicant's solicitors sent a copy of the orders it was proposing to seek in the remittal proceedings. The solicitors presumed that the orders regarding payment of an amount of $79, 111.43, payment of interest on that amount, continuity of service for the period 23 July 2009 to date of reinstatement, would not be agreed. (2)Immediately prior to the commencement of the hearing of the remitter on 20 February 2014, the applicant provided to the respondent the final form of proposed orders. The final form differed to some extent from that sent to the respondent on 18 February 2014. (3)The respondent indicated at the outset of the remittal hearing that it agreed with the applicant's proposed orders except in three respects, viz, payment of interest, continuity of service and costs. (4)On 14 March 2014, the Commission delivered its decision and orders in Ganino 8. In that decision the Commission approved those orders that had been agreed between the parties (in particular, the payment of an amount of $79, 111.43 to the applicant) and held that interest was payable from the date of dismissal. The Commission rejected the claim for continuity of service and directed that submissions be filed on the question of costs except in relation to the claim for costs of the appeal, which was rejected. (5)On 24 March 2014, the applicant's solicitors wrote to the respondent's solicitors seeking payment of accrued leave entitlements, superannuation and interest. (6)On 31 March 2014, the applicant put an offer to settle any costs order made in the remitter matter only for $12,000. (7)On 4 April 2014, the parties consented to an order of the Full Bench that the question of costs of the appeal also be remitted to me to be dealt with on the papers. (8)Also on 4 April 2014, the respondent replied to the offer of 31 March 2014 and the earlier letter dated 24 March 2014, indicating that it was prepared to resolve matters by offering: reasonable costs of the remitter; the amounts sought by Ms Ganino in the letter of 24 March 2014, subject to agreement between the parties on the amount of superannuation and interest payable by RMS; and that each party pay its own costs of the appeal. This offer was made on the basis that the parties would enter into a deed of settlement giving effect to the agreement, including a term to the effect that the payments made by RMS were in full and final settlement of all claims. (9)The applicant replied to the respondent's offer on 8 April 2014, indicating it was unacceptable for the reason, inter alia, that Ms Ganino was not willing to provide RMS with a general release. The applicant indicated she would be in a position shortly to inform RMS of the employer superannuation contributions and interest thereon that she claimed. Further, that if RMS was prepared to pay for the period from 23 July 2009 to 29 July 2012 inclusive: A. annual leave B. long service leave C. annual leave loading D. superannuation E. interest on the above amounts F. 75% of the applicant's costs on the appeal G. 75% of the applicant's costs on the remitter, Ms Ganino was prepared to settle the matter with a release "in respect of the IRC proceedings and payments made by RMS in respect of backpay, accrued entitlements and superannuation, subject to appropriate calculation and payment of same." (10)On 11 April 2014, the respondent's solicitors sought clarification of the applicant's proposal and in particular the amounts claimed for each category. On 14 April, the applicant's solicitors inquired whether the respondent was prepared to settle without a deed of release and without any terms of confidentiality. If a deed of release was required the applicant sought information as to the terms. The respondent replied, indicating it was a matter for the applicant to specify the terms upon which the settlement offer was made. (11)On 5 May 2014, the applicant identified the amounts she sought in relation to the various claimed items, including interest. The applicant indicated she was prepared to resolve the matter by providing the respondent with a release that was confined to the "present IRC proceedings in return for timely payment..." of the amounts claimed. The offer was to remain open until 12 May 2014 later extended to 13 May. The respondent did not respond to the 5 May offer. (12)It appears Ms Ganino eventually referred the superannuation issue to the Australian Taxation Office. Subsequently, RMS deposited an amount into Ms Ganino's First State Super account. On 28 April 2014, Ms Ganino filed in the Commission an application for recovery of money in relation to annual leave, annual leave loading, extended leave and interest. 141The applicant contended she was entitled to indemnity costs in respect of the remitter because the respondent abandoned its opposition to Ms Ganino being paid the entire amount of unpaid salary (less agreed amounts) at the "door of the court" without notice or explanation. It was submitted the respondent induced the applicant into believing that the remitter would be fully contested in circumstances where the respondent agreed to most of the orders sought, but not until the hearing on 20 February 2014 when a substantial portion of the costs had already been unnecessarily incurred. 142It was further submitted: The quantum sought in the 17 February 2014 email was the same as that offered by RMS in its offer of 30 August 2013. There was no basis for RMS to dispute this amount, nor to cause the applicant to incur further costs in preparing the correspondence dated 21 February 2014 and corresponding with the Commission in that regard. ... Tabbaa C ordered that Ms Ganino be reinstated on terms no less favourable to her than those that would have applied had she not been dismissed. If Ms Ganino has to pay a significant proportion of costs this order will be diminished, as the costs of fighting and winning the matter on appeal and on remitter will detract from the success. As costs orders are compensatory, and as Ms Ganino's position on reinstatement and full back pay has been vindicated, it is appropriate that she receive the maximum compensation for her personal expenditure on costs. The respondent has stepped beyond the appropriate and proper robust defence of the matter, and in so doing has failed to meet its obligations under the Model Litigant Policy.... 143As I have found, the respondent made a reasonable offer to settle the appeal. It involved real compromise. Indeed, it offered everything the applicant had sought except that the respondent sought a release from any further liability arising from the termination of the applicant's employment. The applicant refused to agree to the release. In the absence of any settlement the appeal proceeded. Relevantly, the applicant was unsuccessful in having the Full Bench make orders in relation to continuity of service. 144It is to be acknowledged that the respondent's agreement to the applicant's proposed orders on the remitter in relation to the claimed amount of $79,111.43 was not forthcoming until the outset of the hearing. 145In considering whether that late agreement justified an orders for costs in the applicant's favour - indeed an order for indemnity costs - one has to consider all of the circumstances, which include: (1)The respondent had made a reasonable attempt to settle the appeal proceedings. The applicant rejected the offer and the respondent was put to the cost of those proceedings. (2)The applicant's proposed orders on the remitter, sent to the respondent on 18 February 2014, contained no element of compromise and continued to press for continuity of service when the Full Bench had rejected that claim. (3)Whilst the respondent ultimately agreed to the amount of $79,111.43 (having had reservations about the amount) the respondent did not agree to the proposed orders in respect of continuity of service, costs of the appeal and interest and contested those matters on the remitter. 146The respondent had, for all intents and purposes, offered continuity of service as part of its offer to settle the appeal. The applicant rejected that offer and the respondent incurred the costs of the appeal. Having rejected a reasonable offer of compromise to settle the appeal proceedings and having put the respondent to the costs of the appeal, neither the applicant nor this Commission could reasonably expect the respondent to have unconditionally agreed to Ms Ganino's short minutes of order of 17 February 2014. The proposed short minutes contained no compromise and sought orders for continuity of service, notwithstanding the rejection of that claim by the Full Bench. 147It appears that the applicant single-mindedly continues to insist on her costs because ultimately she won her reinstatement case, thus vindicating her stance. As I have said now more than once that is not the test under s 181(2(c) of the IR Act. 148I find there is no basis for the applicant to be paid the costs of the remittal proceedings.

Costs of the costs application 149The applicant seeks her costs of this costs application on the basis they are incidental to the costs of the remitter generally and, in any event, that the respondent unreasonably refused to accept the settlement offer made on 31 March 2014. 150Given my finding regarding costs of the remittal proceedings, the applicant must fail on her contention that she should receive costs of the costs application because they are incidental to the remitter. 151The offer put by the applicant on 31 March 2014 was an offer to settle any costs order made in the remitter matter only for $12,000. That offer was sent by email at 11.42 am and was expressed to be open until 12 noon the following day. Given the complexity of issues the respondent would have needed to consider (evidenced by its detailed response on 4 April 2014), 24 hours was not a reasonable amount of time in which to respond. 152Moreover, as the respondent submitted: [T]he offer was made prior to any submissions being filed by the parties, so it was not an offer which could be considered in the context of the parties' respective submissions and evidence. [T]he offer was expressed to be $12,000 for the remittal proceeding. The Applicant's solicitor provided no basis of any kind as to how the costs were calculated, what fees were incurred, when the fees were incurred, what disbursements were incurred and when disbursements were incurred. The Applicant provided nothing to assist the Respondent make any assessment as to whether the proposed sum was a reasonable reflection of the costs actually incurred with respect to the remittal hearing.... 153Furthermore, an important consideration relating to reasonableness is that on 4 April 2014, the respondent offered to pay Ms Ganino's reasonable costs of the remitter (requesting further information about the amount sought by the applicant in her offer of 31 March 2014); agreed to pay the amounts sought by Ms Ganino in the letter of 24 March 2014 (subject to agreement between the parties on the amount of superannuation and interest payable by RMS); and that each party pay its own costs of the appeal. As mentioned earlier, this offer was made on the basis that the parties would enter into a deed of settlement giving effect to the agreement, including a term to the effect that the payments made by RMS were in full and final settlement of all claims. 154The applicant's solicitor responded on 8 April 2014 and rejected the offer. The applicant sought 75 per cent of her costs of the remitter, but again provided no information as to the quantum of the costs or the basis on which the costs were incurred. 155I find that the applicant has not made out a case for costs of the costs application.

Orders 156The Commission makes the following orders: (1)Ms Ganino's application for costs of the appeal in Matter No IRC 499 of 2013 is dismissed. (2)Ms Ganino's application for costs of the proceedings remitted to Boland AJ by the Full Bench on 18 December 2013 (including the costs of the costs application) is dismissed. (3)The parties shall bear their own costs of the appeal and the remittal proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2014

[1999] NSWIRComm 585

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