Sommerville v Open Arms Care Inc

Sommerville v Open Arms Care Inc - [2010] NSWIRComm 1040 - NSWIRComm 2010 case summary — Zoe

[10]

Background 1 Mr Andrew Jay Sommerville (the applicant) filed a claim for unfair dismissal under section 84 of the Industrial Relations Act 1996 on 21 October 2009. The applicant had been employed by Open Arms Care Inc (the respondent) from 1 March 2002 until 28 September 2009. He had stated that his weekly rate of pay was $1471.74 per week. 2 A conciliation by teleconference was held on 9 November 2009 and on 18 November 2009. A hearing of the matter took place on 16 February 2010. On 2 March 2010 the Commission as presently constituted brought down a decision in favour of the applicant. 3 In the Decision an Order was made requiring the respondent to pay to the applicant the sum of $17660 within 21 days of the Decision. 4 In correspondence dated 14 May 2010 from Ms Michelle Harding (solicitor for the applicant), costs were now being pressed and information was being sought with respect to a breakdown of the compensation awarded to her client. 5 As a consequence a mention of this matter by teleconference was held on 18 May 2010. Ms Harding on behalf of her client was pressing for costs and Mr Felle on behalf of the respondent ,was opposing costs. As a consequence a timetable for the filing and serving of evidence was provided to the parties. The applicant was to file and serve by 28 May 2010 and the respondent by 11 June 2010. 6 A further mention of this matter was held on 15 June 2010. It was the submission of Mr Felle that the timetable had not been adhered to by Ms Harding in that she had filed on 2 June 2010 a Notice of Motion attached to it an annexure of the applicant. 7 On 9 June 2010 an affidavit of the applicant was also filed with an annexure of the applicant attached. Mr Felle was confused as to which set of documents he had to reply to. Ms Harding stated that the applicant only wished to rely on the documentation as filed on 9 June 2010. 8 With that clarification the filing date for the respondent was amended to 25 June 2010. 9 Another mention was held on 29 June 2010 when the applicant was offered the opportunity to reply to the respondent's submission by 8 July 2010 which took place. 10 Both parties sought that the Decision on costs be based "on the papers" in chambers. Applicant's Case

[11]

11 The applicant stated that on or about 9 November 2009 the legal representative of the respondent offered the sum of $25,000. This offer included a long service leave component of $9686.04 and annual leave of $10,857.31 and other entitlements. The actual offer for settlement was approximately $4500. 12 The applicant stated that he made an offer at the first conciliation, to settle his claim with the payment of twelve weeks pay on or around 9 November 2009. Mr Felle for the respondent did not have authority to accept or reject this offer of settlement. 13 On 16 November 2009 ( prior to the second conciliation held on 18 November 2009) that offer of twelve weeks was again pressed. The respondent refused to accept the offer and the matter was set down for Hearing. 14 An offer was received by email by the applicant from Mr Felle on 16 December 2009 to settle the matter for approximately $11664.80. This offer was rejected and the matter proceeded to arbitration. 15 The applicant stated that he had engaged a solicitor for the matter and had therefore incurred legal costs of $3025. If the matter had settled after the first conciliation then his legal costs would have been approximately $550. 16 The applicant sought an Order from the Commission such that the respondent pay legal costs of $3025 as well as the legal costs associated with this application which amounted to $723. He also sought compensation for the travel expenses incurred in travelling from Nambucca Heads for consultation with his solicitor and to the Industrial Relations Commission at Coffs Harbour which amounted to approximately $299.25 making a total of $4047.25 . 17 The applicant stated that he has been unable to pay his legal costs as the money received from him winning his case was used to discharge accumulated debts and the cost of living expenses which resulted from his unemployment at the time of the proceedings and his limited employment thereafter. 18 In submissions in reply the applicant stated details that had not been expressed in the original costs submission. In reply the applicant stated that he had originally sought from the respondent a payment of 16 weeks to be paid as a redundancy as he believed that his termination was due to money problems. This was rejected by the respondent. 19 The offer on 16 December 2009 of the payment of 12 weeks by the respondent was also rejected by the applicant because of the deduction of what the respondent stated was an overpayment of annual leave of 147.652 hours. This resulted in an offer of $11,664.80. 20 The applicant stated that on 16 February 2010 he at first made an offer of 14 weeks and then 12 weeks. The offer of 14 weeks was not mentioned in the original costs submission nor the stated counter offer made by the respondent of 6 weeks.

[22]

It is well established that where the appeal is from a discretionary decision, the appellate court must not interfere with the decision unless "it reaches the clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a different view but has failed properly to exercise the discretion conferred": Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 at 428. The locus classicus for the principle is the judgment of the High Court in House v King at 504 - 505. See also Mace v Murray (1955) 92 CLR 370 at 378; Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 58 - 60; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446 and Abboud v The State of New South Wales (Department of School Education) at 42 - 43. 36 The Full Bench in Paris emphasised the risks which a party runs if it adopts a firm position or inflexible approach towards the settlement of the case, observing (at 220): Far from indicating any retreat from the inflexible approach adopted by the appellant, its approach in relation to settlement on this occasion, served only to emphasise the consistent position that had been adopted. We emphasise that there will be many circumstances in which parties to litigation, including unfair dismissal proceedings, may appropriately take a firm position generally, including on the question of conciliation or settlement. Nevertheless, such a position runs significant risks in terms of the exercise of the power and discretion under s 181(2)(c). This is particularly so where such a position is assumed without due regard to the policy of the Act which requires parties to take seriously their obligation to attempt to settle the proceedings. That in turn involves an obligation to consider in an objective way the strengths or limits upon the case that they will be propounding should the matter proceed to arbitration. On the material before us, we consider that the appellant failed to give appropriate consideration to such matters before it adopted its inflexible position. We consider that, in the circumstances of this matter, the criterion in the relevant provision has been made out. It has been met as to the proceedings both at first instance and on appeal. 37

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Judgment (28 paragraphs)

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Cases Cited (9)