Iliff v Sterling Commerce (Australia) Pty Ltd (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ILIFF v STERLING COMMERCE (AUSTRALIA) PTY LTD
(No.2) [2008] FMCA 38

HUMAN RIGHTS – INDUSTRIAL LAW – Costs application – relevance of Calderbank offer and offer of compromise – discretionary nature of costs.

Workplace Relations Act 1996, ss.824, 824(2)
Sex Discrimination Act 1984
Federal Court Rules 1979

Bahonko v Sterjov [2007] FCA 1341
Rosselli v Rosselli(No 2) [2007] VSC 438
Rural Press Ltd v Australian Competition & Consumer Commission
[2002] FCAFC 310
Sperandio v Lynch (No 3) [2007] FCA 1243

Applicant: BELINDA SUSAN ILIFF

Respondent: STERLING COMMERCE (AUSTRALIA) PTY LTD

File number: MLG 833 of 2006

Judgment of: Burchardt FM

Hearing date: 13 December 2007

Date of last submission: 13 December 2007

Delivered at: Melbourne

Delivered on: 24 January 2008

REPRESENTATION

Counsel for the Applicant: Mr R. Millar

Solicitor for the Applicant: Foster Harris Lawyers

Counsel for the Respondent: Mr T. Jacobs

Solicitor for the Respondent: Baker & McKenzie

ORDERS

1. The Respondent pay the Applicant’s interest on the sums ordered to be paid her on 3 December 2007 in the agreed sum of $3,794.83. 

2. Each party bear their own costs of and incidental to the hearing that took place on 12 November 2007. 

3. Otherwise, that the Respondent pay to the Applicant eighty per cent of her costs of this proceeding, to be taxed pursuant to the Federal Court Rules in default of agreement. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 833 of 2006

BELINDA SUSAN ILIFF

Applicant

And

STERLING COMMERCE (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

1. On 3 December 2007, I issued judgment in this matter.  I declared that the Respondent had contravened the Workplace Relations Act 1996 (“the WR Act”) and imposed a penalty of $33,000.00 for that contravention. Additionally, I ordered that the Respondent pay the Applicant $22,211.54 less tax for a contravention of the Sex Discrimination Act 1984 (“the SDA”). I would also, had it been necessary, have ordered that that latter sum be paid for breach of contract in any event.

2. On 13 December 2007, I heard argument as to costs.

3. It should be noted that the parties agreed that I should make an order in the sum of $3,794.83 in respect of interest in the Applicant's favour, this being interest upon the $22,000.00 sum from the date at which it accrued in 2005.

4. The sums that will be ordered to be paid to Ms Iliff therefore are $33,000.00, $22,211.54 and $3,794.83 interest, which cumulatively amount to $59,006.37.

5. The reason I set this out is because it now transpires that the Respondent, on 18 December 2006, served a Calderbank offer in the sum of $75,000.00 less applicable tax as a bona fide redundancy and thereafter, on 27 March 2007, served an offer of compromise.  I will return to the terms of both of those documents in due course.

6. The Respondent sought its costs on two bases.  The first was that the Applicant's SDA claim had largely failed.  It was submitted the authority of Bahonko…