Bennett v Commissioner of Police

Industrial Relations Commission (NSW)|2010-05-21|Before: Haylen J

CITATION: Bennett v Commissioner of Police (No 2) [2010] NSWIRComm 70

PARTIES: Michelle Bennett (Applicant) Commissioner of Police (Respondent)

COSTS - recovery of money - Industrial Relations Act 1996 - s 365 - award interpretation - claim for lump sum benefit under award - award provides formula for calculating benefit for eligible employees - given personal details of employee's service amount of claim not in contest - eligibility for payment of the lump sum in contest - letter of offer by employee to settle claim for less than half the total sum of potential payment - no response from respondent - operation of r 216 Commission Rules - offer a real compromise and reasonable time provided to consider offer - employee succeeds in obtaining total claim - indemnity costs awarded CATCHWORDS: INDEMNITY COSTS - Industrial Relations Commission Rules 1996 - operation of r 216 - indemnity costs awarded for relevant period

Crown Employees (Police Officers Death and Disability) Award 2005, cl 9.3 Industrial Relations Act 1996, s 365, s 181 LEGISLATION CITED: Industrial Relations Commission Rules 1996, r 216 Supreme Court Act 1970, s 76(1) Supreme Court Rules, Part 52, r 28A, Pt 52 r 17(4), r 17(5)

Bennett v Commissioner of Police [2010] NSWIRComm 25 Bowman v Right Growers Ltd (formerly Rice Growers Co-Op Ltd) (No 2) [2007] NSWIRComm 267 at [25] CASES CITED: Cosmetic Suppliers Pty Ltd v Great Scott International Pty Ltd (No 2) (2008) 170 IR 348 Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425 Wheelahan v North Coast Area Health Service (No 2) [2008] NSWIRComm 244

Mr T Edwards of counsel (Applicant) Adam Leylands Lawyers LEGAL REPRESENTATIVES:

Mr A Britt of counsel (Respondent) Blake Dawson

MICHELLE BENNETT v NSW POLICE (No 2) Application by Michelle Bennett under s 365 of the Industrial Relations Act 1996

1 On 1 March 2010 the Court delivered judgment (Bennett v Commissioner of Police [20100] NSWIRComm 25) in an application by Ms Bennett for a lump sum payment under the terms of the Crown Employees (Police Officers Death and Disability) Award 2005 ("the Award"). Ms Bennett had been classified as being on Permanent Restricted Duties ("PRD"). Although attempts were made to find a suitable position for her, for personal, business and family reasons, Ms Bennett did not accept any of those positions that were identified. Under the terms of the Award, there was a mutual obligation on both the employer and the injured officer to identify suitable police positions for redeployment and it was the injured officer's responsibility to accept a reasonable offer made by the employer of a suitable police position, including transfer to another location. The Award specifically stated that a failure to accept one of three reasonable offers of a suitable police position would jeopardise any benefit or entitlements payable under the Award and may result in medical discharge. 2 Following Ms Bennett's refusal to accept the positions offered to her, she was medically discharged from the Police Service. Thereafter she brought proceedings pursuant to s 365 of the Industrial Relations Act 1996 claiming that the New South Wales Police were obliged to pay her a lump sum under the terms of the Award because, there were, in fact, no suitable positions available to her. Ms Bennett's claim was resisted by the Commissioner of Police but on the proper interpretation of the relevant provisions, the Court held that Ms Bennett was entitled to a lump sum payment under the terms of the Award. The parties were requested to submit Short Minutes of Order reflecting the decision of the Court. 3 It appears that, as a result of discussions between the parties, it was accepted that orders in the following form would adequately reflect the decision of the Court: 1. Ms Bennett qualifies for a payment under cl 9.3 of the Crown Employees (Police Officers Death and Disability) Award , 2005. 2. The respondent is to pay the applicant the amount of $439.956.97 within twenty-eight days . 4 The parties, however, were unable to agree upon the appropriate order as to costs. On the relisting of the matter to hear the parties on the outstanding issue of costs, it ultimately became clear that the respondent sought a reduction in the costs payable by the respondent because of repeated failures by the applicant to comply with the Court's timetable for the hearing and the failure to prosecute the claim without delay, resulting in the respondent incurring unjustified and additional costs that would otherwise not have been incurred. After discussion during the course of the proceedings, the parties agreed that the sum of $3,500 would be deducted from the reasonable costs of the applicant and that an order for costs in favour of the applicant could be made in a sum agreed or, in the absence of agreement, as assessed. 5 The remaining issue was Ms Bennett's claim for indemnity costs from 17 November 2009 or, alternatively, the payment of indemnity costs from 15 December 2008 when conciliation failed to resolve the claim. In this context it is to be noted that, after earlier hearing dates had been vacated and further hearing dates altered, the matter was heard over two days on 7 and 8 December 2009. By letter dated 6 November 2009, solicitors acting for the respondent confirmed to the Court that the respondent had now filed and served all of its evidence in response to the evidence filed by the applicant in the case. The respondent confirmed that, subject to receiving any evidence in reply from the applicant, the matter was considered to be ready for hearing on the dates listed, namely, 7, 8 and possibly 9 December 2009. 6 On 17 November 2009, solicitors for the applicant wrote to the respondent's solicitors "without prejudice", dealing with a number of matters concerning the hearing but also containing the following paragraph: We confirm that we have been instructed to place an offer in accordance with Calderbank v Calderbank before your office in the sum of $120,000 plus costs on a 'without prejudice' basis. We confirm that this offer will remain open until the close of business on 2 December 2009.

It was not contested that the respondent did not reply to that letter at any stage prior to judgment being delivered by the Court. There was no evidence before the Court as to what consideration, if any, was given to the applicant's offer to settle the matter and there was no evidence or other material before the Court as to the reasonableness of the respondent's position in declining to accept or comment upon the offer. 7 It is appropriate to note that the operation of the Award has not been without its difficulties. On previous occasions the Court, constituted differently, had been called upon to grapple with some of its provisions but the precise question raised by Ms Bennett's application had never been the subject of a decision of this or any other Court or Tribunal. In the course of argument in the substantive hearing the parties freely acknowledged the difficulty of the provisions adopted in the making of the consent Award and much reference was made to policy documents and guidelines issued by the Commissioner of Police. The difficult task of interpretation was noted by the Court at [76] where it was stated: The difficulty of infelicitous expression is well alive in the present case. 8 The submissions on indemnity costs for the applicant were concise. The letter of 17 November 2009 was a Calderbank offer and the time allowed for consideration of the offer by the respondent was reasonable in all the circumstances. The filing of evidence had been completed prior to 17 November 2009 and the applicant's offer, at $120,000 plus costs, represented a real and genuine compromise of the applicant's claim. The failure of the respondent to reply to that reasonable offer representing, as it did, a significant reduction on the amount claimed in the Application therefore led to the applicant being entitled to indemnity costs after 17 November 2009. The claim for indemnity costs from 15 December 2008 was founded on the proposition that the application should have been settled at that time when costs were at a minimum. 9 The respondent opposed the application for indemnity costs. It was noted that the terms of r 216 of the previous Rules of the Commission (applicable, however, on 17 November 2009) in sub-rule (4) provided: Where an offer is made by an applicant and not accepted by the respondent, and the applicant obtains an order on the claim to which the offer relates no less favourable than the terms of the offer, then, unless the Commission otherwise orders, the applicant shall be entitled to an order against the respondent for costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to costs incurred before and on that day, assessed on a party and party basis. 10 Despite that provision of the previous rule, the respondent relied upon passages from a decision of the President, Boland J, in Wheelhop v North Coast Area Health Service (No 2) [2008] NSWIRComm 244 where his Honour noted that it was clear from the authorities that an offer and subsequent rejection of a Calderbank offer would not automatically result in indemnity costs in favour of the offeror. The award of indemnity costs based upon a Calderbank offer involved the exercise of the Court's discretion. His Honour cited authority that spoke of the discretionary nature of awarding indemnity costs and the fact that, in the application for indemnity costs, it was the applicant who bore the onus of proving that indemnity costs should be awarded. The offer of compromise had to be real and all the circumstances were to be considered. The ultimate question was whether the failure to accept the offer, in all the circumstances, warranted departure from the ordinary rule as to costs and there was also authority for the proposition that the offer must constitute a genuine offer of compromise which it was unreasonable for the recipient not to accept. The recipient of the offer was to be provided with an appropriate opportunity to consider and deal with the offer. 11 It was further submitted for the respondent that the 17 November 2009 letter of offer did not constitute a "Calderbank" offer as it made no reference to the costs consequences that would flow from non-acceptance. In this case the facts and circumstances of the claim and the application of the Award provision had characteristics and complexities that amounted to exceptional circumstances that should lead to a departure from the prima facie position set out in r 216. The terms of the Award were complex and there was a public interest beyond the parties in having the Award interpreted by the Court. On this basis the applicant had not discharged its onus such as to persuade the Court that indemnity costs were appropriate and justified in this case. DELIBERATION 12 The remaining issue in this case requires a consideration of the subtleties and complexities of an order for indemnity costs in the context of the operation of r 216. Those subtleties and complexities were highlighted in the judgment of Rolfe J in Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425. His Honour's discussion of the circumstances in which indemnity costs may be claimed where a prior offer made by a defendant that was not accepted and was not bettered in the judgment obtained, as well as the general operation of a similar rule of Court, is of direct relevance to the present proceedings. In Multicon his Honour was addressing an application by a successful defendant for indemnity costs in relation to an action brought under the Trade Practices Act. During the course of bitterly contested proceedings the defendant made an offer of settlement and later made an offer of compromise in accordance with the provisions of the Supreme Court Rules. 13 Rolfe J noted that s 76(1) of the Supreme Court Act 1970 provided that, subject to the Act and the Rules and subject to any other Act, costs were to be in the discretion of the court and the court was to have full power to determine by whom and to what extent costs were to be paid. Section 181 of the Industrial Relations Act is in similar, but not identical, terms. Part 52, r 28A of the Supreme Court Rules recognised the power of the court to order costs on an indemnity basis. Part 52, r 17(4) provided as follows: Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable than the terms of the offer, then, unless the court otherwise orders, the plaintiff shall, subject to r 24, be entitled to an order against the defendant for his costs in respect of the claim from the day on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before and on that day, taxed on a party and party basis. 14 His Honour noted that Pt 52, r 17(4) had no counterpart for defendants who made an offer of settlement that was not bettered in the orders of the Court. In this situation his Honour, at 433, stated: Each rule therefore assumes that the party making the 'successful offer' ie an offer which is not bettered by the order or judgment in favour of the offeree, is entitled to have costs paid on the bases stated 'unless the Court otherwise orders' the justification for that entitlement being nothing more than the making of a 'successful offer'. Rule 5 assumes that the plaintiff will recover some order or judgment and hence provides for the plaintiff's costs up to the making of the offer. ... This court has held that where a completely successful defendant has made an offer of compromise, either by a document so entitled or by a Calderbank letter, to both of which I shall refer as an offer or an offer of compromise, the same principle should be applied, viz that as from the date of the offer the plaintiff should pay the defendant's costs on an indemnity basis, unless the court otherwise orders. Thus the obligation is on the plaintiff to satisfy the court that such an order should not be made, the presumption being that the making of the successful order (sic) (possibly offer) prima facie entitles the defendant to costs at that level. The effect of the Rules is, in my opinion, to displace certain accepted principles in relation to the award of costs, at least in the circumstances of the making of a successful order. In the absence of those circumstances the general rule is that the successful party is entitled to an order that the unsuccessful party pay its costs on a party and party basis. On the other hand, in the absence of an offer of compromise the circumstances in which the court will order indemnity costs are, generally speaking, confined to cases where there is some 'misconduct' in the bringing or prosecuting of the proceedings. The categories have been referred to in many authorities and do not require any repetition at the moment. Suffice to say that they are not closed and that the exercise of discretion will depend on the facts and circumstances of each case. However, in these cases the presumption is that costs will be paid on a party and party basis unless the party seeking costs on the more favourable basis can satisfy the court that it is entitled to such an order. ... 15 As to the formalities of an offer, Rolfe J referred to a number of authorities at 439, as follows: In Macquarie Bank Ltd v National Mutual Life Association of Australasia Ltd (SC(NSW) 27 July 1994, unreported) Cole J dealt with the effect of a Calderbank letter ... and whether an order for indemnity costs should be made. In doing so he referred to many authorities ... He also referred to his own previous decisions ..., at 3-4, he said: Three matters were put in opposition to the claim for indemnity costs by the fourth defendant. The first was that the provisions of Pt 22 constitute a code so that if a party wishes to obtain a cost advantage from an offer of compromise it must invoke the provisions of Pt 22 so as to attract the provision of Pt 52 r 17. I have previously held to the contrary … Secondly, it was put that the fourth defendant was successful on a basis different to that expressed in the Calderbank letter. I do not regard that as a disqualifying feature. There is no obligation upon a party making an offer of settlement in the Calderbank letter to specify with precision the reasons why the opposing party will fail, or should accept the offer in the letter. Thirdly, it was put that, as an exercise of general discretion conferred by s 76 of the Supreme Court Act and adopting the principles enunciated by Sheppard J in Colgate Palmolive , no order for indemnity costs should be made. His Honour continued, at 4: In my view none of these matters in opposition should prevail. From the date of the offer in the Calderbank letter, the plaintiff was at risk as to indemnity costs for the reasons stated in Maitland Hospital . At 274 of that decision, the Court of Appeal said: It is the obvious intention of the rule to oblige a defendant, which has received an offer of compromise, to give serious thought to the risk which it may run of losing the proceedings and then being ordered to pay costs on an indemnity basis. The objects of the rule include: (1) to encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff's real claim which can be placed before its opponent without risk that its 'bottom line' will be revealed to the court; (2) to save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and (3) to indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances, that party should ordinarily bear the costs of litigation. In the circumstances his Honour ordered the plaintiff to pay the fourth defendant's costs on an indemnity basis from a specified date .

In Wallace v Baulkham Hills Smash Repairs Pty Ltd (No 2) (SC(NSW) 21 August 1995, unreported) Young J said, at 5: Notwithstanding that I think with respect that Mr Whittle is correct when he said that there is a general policy to encourage settlement and that general policy is far better served if the general message gets through to litigants and the profession that it is more likely than not that where there has been a Calderbank letter, and where there is a falling short by more than a minimal degree of the offer that is made in the Calderbank letter, that litigants should expect that after time has expired for complying with the Calderbank letter the costs will be on an indemnity basis. If some sort of general policy like that does not underlie this type of litigation then settlements will be discouraged and there will be more and more hearings and all sorts of orders would have to be made which again takes up more time and costs everybody more money. Having considered all the factors that I have mentioned in this case it seems to me that after 11 am on 24 July 1995 the plaintiffs should pay the defendant's costs on an indemnity basis. Whether it is correct to say that there is a general policy or whether it is, perhaps, with respect, more correct to say that normally a Calderbank letter generally will be given effect according to its terms, and thus fulfil the functions of an offer of compromise, does not seem to me to differ in substance. However, all these authorities support the view, which in my opinion is correct, that when an offer of compromise is made in either of the forms to which I have referred, in circumstances where there can be no doubt that if the offeree does not accept it the making of the offer will be called in aid of an application for an award of indemnity costs if the offer is not bettered and, provided the offer reflects a compromise, the court commences its consideration of the application from the position that such an order should be made unless the offeree can persuade the court that it should not be. However, as I have said on several occasions the ultimate decision will depend on a consideration of the particular facts and circumstances in each case. 16 Rolfe J's extended consideration of the rule was brought about by the fact that, in terms, while there was a specific rule whereby indemnity costs could be claimed by a plaintiff where the offer of compromise made was bettered in the contested proceedings, there was no equivalent provision for defendants who had made an offer that was not bettered in the proceedings. Rolfe J concluded after an extensive consideration of authorities, that nevertheless there was a predisposition to take the same approach to defendant's offers as to plaintiff's offers and that it was unnecessary for defendants to show some misconduct or other culpable conduct by the plaintiff in order to obtain indemnity costs. It also appears from his Honour's survey of the cases that the substance of the offer was considered rather than its form and so long as it could properly be described as an offer of a genuine compromise of the litigation and a reasonable period allowed for consideration of the offer, then the party receiving the offer was to be taken to recognise that they were at risk of paying indemnity costs if they did not better the offer in the litigation. 17 The provision of the Supreme Court Rules referred to by Rolfe J were in substance reflected in r 216(4) of the Rules of the Commission, earlier referred to. Rule 216 was applicable at the time that the Calderbank offer was made by the legal representatives acting for Ms Bennett. 18 In the present proceedings it is submitted on behalf of the Commissioner of Police that the letter of offer, although describing itself as a Calderbank letter, did not properly meet that description because it did not spell out with some precision the consequences in costs for non-acceptance of the offer. Adopting the approach of Rolfe J and looking at the substance of the matter, while adopting a shortened form, clearly the applicant was placing the respondent on notice that if the offer was no accepted within the timeframe laid down then according to the principles that apply to Calderbank letters, the offer would be used in proceedings to obtain indemnity costs should the applicant be successful in bettering the offer. In argument, the authorities relied upon by the Commissioner of Police included the following statement by the Boland J, President in Wheelahan v North Coast Area Health Service (No 2) [2008] NSWIRComm 244 at [97]: "Calderbank offers" are well recognised means of making offers of settlement in circumstances where the party making the offer ultimately seeks a costs advantage if the offer is not accepted. 19 The Court is satisfied that solicitors familiar with litigation would be well aware of the costs consequences of a Calderbank letter and on receipt of the offer made on behalf of Ms Bennett in the present case would be well aware that, if the offer was rejected and she exceeded the level of her offer by way of judgment, then thereafter they were at risk of being required to pay indemnity costs. Despite the shortened nature of the offer, it was clearly described as a "Calderbank" offer and a time for acceptance was specified. The costs purposes of that offer were transparent and obvious. Indeed, r 216(4), in terms, does not require a statement of the costs consequences to be included in a letter of compromise: the rule thus contemplates both letters of compromise and Calderbank offers. If the respondent was correct in its challenge to the applicant's offer as not constituting a Calderbank offer, the letter would nevertheless constitute a letter of compromise and r 216 would still apply. 20 It is to be remembered that in its written submissions, the respondent accepted that the "prima facie" position in favour of indemnity costs arising under r 216 (if applicable), needed to be overcome by the respondent in order to avoid the indemnity costs consequences. In South Eastern Sydney Area Health Service v King [2006] NSWCA 2, the Court of Appeal, dealing with the equivalent provision under the Supreme Court Rules stated: [83] Part 52 rule 22 provides that, where a plaintiff who has made an offer of compromise in accordance with Part 22 (Division I) which is not accepted by the defendant, and where the plaintiff obtains a judgment no less favourable than the terms of the offer, then, unless the Court otherwise orders, the plaintiff will be entitled to an order against the defendant for costs on an indemnity basis in relation to his costs incurred from the day after the offer was made. The onus is on the defendant to persuade the Court that indemnity costs should not be ordered. He must demonstrate the basis on which an order should be made denying the plaintiff's entitlement to indemnity costs. He must establish that he had given serious thought to the risk involved in non-acceptance of the offer, and that he had assessed the plaintiff's case properly and in the context of the rule and the achievement of its purpose - to encourage the proper compromise of litigation, in the private interests of the litigants and in the public interest of the prompt and economical disposal of litigation. Generally, exceptional circumstances are required to justify such an order denying the plaintiff's entitlement. See, generally, Fowdl v Fowdl , Court of Appeal, 4 November 1993, unreported, per Kirby P at 12, 16; Hillier v Sheather (1995) 36 NSWLR 414 at 422-423; Morgan v Johnson (1998) 44 NSWLR 578 at 581-582.

[84[ Although the Court may take into account the particular features of a case and the difficulty of putting an accurate estimate on its value in advance of the litigation, those considerations do not provide a basis by themselves for denying the party making the offer an order for indemnity costs: Hillier v Sheather (at 423). In Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 at 725, it was said that a miscalculation in a case with large imponderables, where the course taken by the party to whom the offer was made may have been perfectly reasonable, would provide a basis for denying an order, but the subsequent decision in Hillier v Sheather suggests that, whilst "large" imponderables may be a relevant factor in the particular case in denying an order for indemnity costs, in the general case a party's reasonable belief as to his own chances of success does not alone provide a basis for denying an order for indemnity costs. 21 The authorities cited by the respondent primarily deal with the general concept of indemnity costs absent on offer under provisions such as

r 216 as dealt with in Multicon and Wheelahan . In the present matter, the respondent has not demonstrated why the applicant should be denied her entitlement to indemnity costs: the respondent bore the onus in that regard. There was no evidence let alone evidence to establish that the respondent had given serious thought to the risk involved in the non-acceptance of the offer or that he had properly assessed the plaintiff's case in the context of the Rule and the achievement of its purpose, namely, to encourage the proper compromise of litigation. Further, no exceptional circumstances were established to justify an order denying the applicant's entitlement to indemnity costs. These matters are discussed further in the following paragraphs. In addition, it should be noted that the approach of Rolfe J in Multicon ( along with other authorities cited) has been adopted by a Full Bench of the Court in Cosmetic Suppliers Pty Ltd v Great Scott International Pty Ltd (No 2) (2008) 170 IR 348, while the approach of the Court of Appeal in South East Area Health Service has been adopted by the Full Bench of the Industrial Court in Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) (No 2) [2007] NSWIRComm 267 at [25]. 22 It is to be remembered that Ms Bennett's claim was framed by reference to a formula set out in the Award. If her entitlement under the Award could be established, the resultant figure was not at large as it might be in a general damages claim, but was to be calculated by reference to years of service at a relevant award rate, therefore being a sum certain in its total. The claim that was filed alleged that sum was approximately $350,000 although in opening arguments the respondent noted that, if successful, the sum would be higher because of a factor overlooked by the applicant in calculating what was due under the Award, if such an entitlement could be established. The offer of $120,000 plus costs, in those circumstances, was a genuine compromise. It may well have recognised the dangers of litigation and the fact that there was no precedent for the circumstances facing Ms Bennett as qualifying for a payment under the Award. As was conceded by the parties, Ms Bennett did not have the backing of the relevant union and this was not a matter taken by her or supported by any industrial institution as a test case, but was a case taken by an individual police officer who had been confined to restricted duties. 23 In all the circumstances, the offer was reasonable and on its face the time (approximately two weeks) given for responding to the offer was reasonable having regard to the matters referred to in [22]. In fact, the offer was not responded to nor was it ever suggested by the Commissioner of Police that more time was required to give consideration to the offer. It may well have been, although it is unknown, that the Commissioner of Police was interested in having an authoritative ruling on the interpretation of the Award clause because of his general liability under the Award to other police officers in similar circumstances. It is not known if this was indeed the case but such an approach would be both logical and understandable. There are occasions, notably in relation to appeals or in special leave applications in the High Court, where an institution having a direct interest in an authoritative determination of a particular or difficult question of law will undertake to pay the costs of the other party where the proceedings involve an individual who has simply been caught up in the issue and is not a party that might be otherwise regarded as representing an institution with an interest in establishing the true state of the law. Notwithstanding the difficulty of the task in construing the Award, it was the respondent who possessed the general public interest in obtaining a ruling as to the proper operation of the Award regarding the circumstances in which lump sum payments were to be made. Rather than constituting an exceptional circumstances justifying refusal of indemnity costs, fairness suggests that the respondent's important role in applying the Award justifies the payment of indemnity costs to the applicant. 24 Having regard to all of these matters, the Court is satisfied that the letter of 17 November 2009 was a Calderbank letter with all that attaches to such a document: it provided a true compromise on what might be obtained in the proceedings and provided sufficient time to the Commissioner of Police to consider the offer and to respond to it. In substance, that offer was an offer of compromise within the meaning of r 216. That being so, on the application of the authorities earlier referred to and in the absence of any response from the respondent, it is appropriate that the applicant in the present proceedings have an order in her favour for indemnity costs from the day after the letter of offer until the conclusion of the proceedings. Prior to that time the applicant is entitled to an order for costs calculated on the basis of party/party costs. There is, however, insufficient basis for awarding indemnity costs to the applicant from 15 December 2008: applying the general principles gathered in Wheelahan, that claim is refused. ORDERS 25 The Court makes the following orders: (a) Ms Bennett qualifies for a payment under cl 9.3 of the Crown Employees (Police Officers Death and Disability) Award 2005; (b) the respondent is to pay the applicant the amount of $439,956.97 within twenty-eight (28) days; (c) the applicant, Ms Bennett, is to be paid her costs of the application calculated on a party/party basis until and including 17 November 2009 and from 18 November 2009 is entitled to her costs calculated on an indemnity costs basis, less the sum of $3,500.

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