Phillips v Industrial Relations Commission of NSW

The Supreme Court of New South Wales considered an appeal by Phillips against a decision of the Industrial Relations Commission of New South Wales (the Commission). The dispute concerned the Commission's discretion to award costs against a party who unreasonably failed to accept a settlement offer, pursuant to section 191 of the *Industrial Relations Act 1996* (NSW). Phillips had been ordered to pay the costs of the respondent in proceedings before the Commission, despite the Commission not being in Court Session at the time the costs order was made.

The central legal issue before the Supreme Court was whether the Commission had the power to make a costs order under section 191 of the *Industrial Relations Act 1996* (NSW) in circumstances where it was not sitting in Court Session. Specifically, the Court had to determine whether the determination of whether a party had unreasonably failed to accept a settlement offer was a jurisdictional fact, or a matter within the Commission's discretion.

The Court reasoned that the power to award costs under section 191 was not a jurisdictional prerequisite that required the Commission to be in Court Session. Instead, the determination of whether a failure to accept a settlement offer was unreasonable was a matter of fact and degree, to be assessed by the Commission in the exercise of its discretion. The Court held that the language of section 191 did not impose a jurisdictional limitation, and that the Commission had the power to make such an order even when not sitting in Court Session. The appeal was accordingly dismissed.