Martires v Endura Paint Pty Ltd (No.3)

In *Martires v Endura Paint Pty Ltd (No.3)*, the applicant sought an order for costs following proceedings in the Industrial Relations Commission of New South Wales. The dispute concerned an application for unfair dismissal, which had been dismissed by the Commission. The applicant's claim for costs was based on a *Calderbank* offer made by the respondent.

The central legal issue before the Commission was whether the applicant had been afforded a reasonable opportunity to consider the respondent's *Calderbank* offer and whether the applicant's legal representatives had adequately advised them of the consequences of failing to accept that offer. The Commission was required to determine if the applicant's failure to accept the offer was a result of informed decision-making, or if it stemmed from inadequate advice regarding the potential cost implications.

Judge McNab reasoned that a *Calderbank* offer, to be effective in grounding a costs order, must be made in circumstances where the offeree has had a genuine and reasonable opportunity to consider its terms and implications. Crucially, the advice provided by legal representatives must be sufficient to enable the offeree to make an informed decision. In this instance, the Commission found that the applicant's legal representatives had failed to adequately explain the potential adverse cost consequences of rejecting the offer and proceeding to a hearing that ultimately proved unsuccessful. This failure meant the applicant was not in a position to make a truly informed decision about the offer.

Consequently, the application for costs was refused.