Chadwick v State of New South Wales

The interlocutory applications 4 Pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth), the award of costs is at the Court or Judge's discretion. In exercising that discretion, I have had regard to the written submissions filed by the parties. In all but formal terms, the summary judgment application brought by the respondents was effectively overtaken by the points of claim application brought by Ms Chadwick. Ms Chadwick sought the indulgence of the Court to allow the proposed points of claim (PPOC) to supersede the concise statement. At the time the respondents' summary judgment application was filed in November 2021 by reference to the concise statement as it then stood in the proceedings the respondents had a proper basis for bringing the application. After Ms Chadwick sought leave to supersede the existing concise statement with the PPOC, the respondents adopted a pragmatic and efficient approach which facilitated the determination of the real issues between the parties. In these circumstances, I do not regard the respondents as in substance having failed to obtain the relief which they sought. 5 In order to determine the competing interlocutory applications, consistent with the overarching purpose pursuant to s 37M of the Act, the dispute between the parties reduced to an argument as to whether leave should be given for an amended concise statement to be filed based on the PPOC. Ultimately on that issue, leave to amend the concise statement was granted for certain paragraphs, and refused for others. For this reason, I am satisfied that in substance the reality is that each party achieved some level of success on their respective competing interlocutory applications.

The Calderbank offer 6 In support of her submission that the respondents be ordered to pay the costs of the summary judgment application on an indemnity basis, Ms Chadwick relies on a letter sent by her counsel to lawyers for the respondents, dated 11 July 2022, which offered that the respondents withdraw the summary judgment application and for each party to pay their own costs of that application. The letter purported to be made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333. The respondents did not accept the offer. 7 The non-acceptance of a Calderbank offer can be relevant to the exercise of the discretion to award costs under s 43 of the Act on an indemnity basis in departure from the usual practice of ordering party-party costs if it was unreasonably rejected and is followed by a less favourable result to the offeree than the offer made: Taleb v GM Holden Limited [2011] FCAFC 168; 286 ALR 309 at [48]-[49]. 8 Ms Chadwick submitted that the respondents have not improved their position from the Calderbank offer. I reject that submission. In substance, the respondents improved their position on the offer. Indeed, shortly after making the Calderbank offer Ms Chadwick's counsel indicated to the respondents that Ms Chadwick no longer intended to rely on the concise statement in the proceedings, and would be seeking leave to rely on the PPOC instead as in effect an amended concise statement. This undoubtedly placed the respondents in a better position than the Calderbank offer. 9 In any event, I am not satisfied that the letter relied on in the context of the interlocutory dispute in this case was such as to attract the principles in Calderbank.

conclusion 10 For these reasons, having considered the submissions made by the parties I am satisfied that the appropriate order is that costs be costs in the cause. I will make orders accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.