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[2026] ACTSC 191
Supreme Court of the ACT
2026-06-10
Ainslie-Wallace AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Mason-Leonarder v Balfran Removals Pty Ltd (No 4) Citation: [2026] ACTSC 191 Hearing Date: On the papers Decision Date: 10 June 2026 Before: Ainslie-Wallace AJ Decision: (1) The application is dismissed. (2) If CIT wishes to make an application for the costs of the Plaintiff’s application it will be filed within 14 days of the making of these orders supported by submission of no more than five pages. The Plaintiff, if he wishes to respond, must do so within a further 14 days and supported by submissions of no more than five pages. The application will be dealt with on the papers. Catchwords: CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Costs – Application for special indemnity costs – Offers of compromise – Whether evidence of mediation is admissible – Whether the defence was unreasonable Legislation Cited: Evidence Act 2011 (ACT), s 131 Cases Cited: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Lewis v Chief Executive, Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196 Mason-Leonarder v Balfran Removals Pty Ltd & Anor (No 2) [2025] ACTSC 363 Mason-Leonarder v Balfran Removals Pty Ltd (No 3) [2026] ACTSC 76 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (No 3) [2004] FCA 1570; (2004) 214 ALR 621 Parties: Dean Mason-Leonarder (Plaintiff) Balfran Removals Pty Ltd (First Defendant) Canberra Institute of Technology (Second Defendant)
Representation: Counsel I Roberts SC with D Richards (Plaintiff) M Fordham SC (First Defendant) W Sharwood (Second Defendant) Solicitors United Legal (Plaintiff) Hall & Wilcox (First Defendant) ACT Government Solicitor (Second Defendant) File Number: SC 136 of 2024 AINSIE-WALLACE AJ: Introduction
By an amended Statement of Claim filed on 1 July 2024, the Plaintiff, Dean Mason- Leonarder, sued the defendants in negligence for injuries suffered by him while working for the first defendant (Balfran) at the second defendant’s premises (CIT). Balfran filed its defence on 25 July 2024 and CIT filed its defence on 29 July 2024.
On 26 August 2024, CIT filed and served on Balfran a Notice Claiming Contribution or Indemnity. On 2 April 2025, Balfran filed and served a Notice Claiming Contribution or Indemnity on CIT.
The matter was heard, commencing on 12 May 2025, and on 13 May the matter was settled. Judgment and verdict was entered for the Plaintiff against Balfran in the sum of $1,270,237.66 together with costs. The principal amount was amended on 15 May 2025 by the consent of parties to be $1,271,287.73, in addition to costs.
The issue as to the contribution of each defendant to the Plaintiff’s injury and damage remained in issue and, in a decision delivered on 15 August 2025, I determined that contribution to be 50% as to each of them and each defendant was ordered to contribute 50% of the plaintiff’s verdict amount and costs (see Mason-Leonarder v Balfran Removals Pty Ltd & Anor (No 2) [2025] ACTSC 363).
A question as to the costs as between Balfran and CIT was the subject of further argument and on 25 March 2026 costs orders were made (see Mason-Leonarder v Balfran Removals Pty Ltd (No 3) [2026] ACTSC 76).
The final issue to be determined concerns the Plaintiff’s application for a special indemnity costs order against CIT. The Plaintiff seeks an order that CIT pay its costs on an indemnity basis from the date on which the parties held an unsuccessful mediation on 26 November 2024 until the date on which the matter was settled, 15 May 2025.
Before turning to the bases on which the Plaintiff seeks that order, it is appropriate to consider the well-accepted principles governing the making of an order for indemnity costs. Those principles, while well-accepted, bear repeating as a context in which the application is to be considered.
The awarding of costs is discretionary and, absent any special circumstances, a successful litigant is entitled to recover their costs from the opposing party (see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [134]). The result must be a fair one having regard to the particular facts and circumstances of the proceedings in the interests of justice: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 at [8], citing Lewis v Chief Executive, Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196.
There is a strong public interest and interest of the litigants in the acceptance of reasonable offers of compromise.
Basis for the Plaintiff’s claim
The Plaintiff contends: (a) CIT filed and continued to rely on a defence which was “misconceived” because it claimed there was no contractual obligation owed by it to the Plaintiff; (b) The conduct of CIT during the compulsory court-ordered mediation “stood in the way of timely settlement of the proceedings” as a whole, compelling the Plaintiff to prepare his case for final hearing and to run his case up to and including the third day of the hearing; and (c) CIT, as a “model litigant” owed the Plaintiff an obligation to engage in sensible negotiations.
In the result, the Plaintiff claimed that he was entitled to adduce evidence of what occurred in the mediation and the offers there made and, because CIT was a “model litigant”, its conduct in the mediation should be held to a higher standard than that to which an ordinary litigant would be held.
On the point of adducing evidence as to what happened in the mediation, the Plaintiff filed four affidavits which purported to give details of the mediation. That evidence was controversial and the Plaintiff foreshadowed a hearing in which the evidence would be given. Ultimately it was agreed that this matter would be determined on the papers. Despite requests from Chambers, the Plaintiff did not indicate whether the four affidavits completed their evidence on costs. As a result, it was unclear what, if anything, the Plaintiff proposed to do about the witnesses who served the affidavits.
A Misconceived Defence
Following receipt of CIT’s defence, the Plaintiff sought particulars of the defence. In submissions, counsel for the Plaintiff characterised the answers as “evasive, obfuscational (sic) and repetitive”. Further, counsel contended that the defence represented a “complete failure to recognise proper principles of pleading in a defence”. In short, it was argued that the defence asserted that CIT bore no duty of care to the Plaintiff.
Having considered the request for particulars and CIT’s answers, I do not accept that the answers were “evasive” nor “obfuscational (sic)”. If the answers were repetitive it was in response to the same particular being sought in a number of contexts.
Correspondence followed CIT’s answers to the request for particulars in which the Plaintiff pointed out to CIT the deficiencies in the pleading, yet CIT continued to support the defence as filed.
The Plaintiff’s submissions contended: 10. A helpful suggestion was offered in the Plaintiff’s letter of 3 April 2025, that if the position adopted by the plaintiff was correct and the defence should have been struck out this would lead to a position whereby there could be some agreement between the plaintiff and respective defendants as to quantum leaving the first defendant and second defendant to go off and argue simply issues of contribution thus save an enormous amount of legal cost involved in running the whole hearing.
CIT did not respond to this suggestion. The Plaintiff did not move the court to strike out the defence despite the assertions of a failure to plead properly. The hearing proceeded with CIT’s defence as initially filed.
In its submissions, CIT observed that the defence was not as the Plaintiff asserted, but that by its defence CIT denied it owed a duty of care to the Plaintiff “as alleged by the Plaintiff in his amended statement of claim” and argued that the defence asserted that its duty of care was to be considered in light of the contract for services as between CIT and Balfran. The submissions for CIT note that in the correspondence between the Plaintiff and CIT, CIT attempted to explain this position to the Plaintiff, without success.
It is important to note that at no time during the hearing did the Plaintiff contend that the defence was “groundless” or “misconceived”, or make any application that it be struck out.
In the hearing of the matter, CIT relied on its contractual relationship with Balfran to limit its liability to the Plaintiff for his injury and asserted that, in contracting the work to Balfran, it relied on Balfran’s expertise in the work necessary to be done. Indeed, as the reasons on the contribution argument expose, it was the intervention of an employee of CIT in the way the work was to be conducted which led to a determination of equality of contribution.
I reject the argument that the defence was “misconceived” and a failure of pleading. While CIT’s defence may have been weak, it was not hopeless nor was it unreasonable to defend the action on that basis. Offers of compromise
Without, for the moment, delving into what occurred at the mediation, on 9 May 2025 the Plaintiff made an offer to both defendants to settle the proceedings in the sum of $1,420,000 plus costs. That offer was not accepted. As is apparent, on 14 May 2025 the proceedings were settled for $1,270,237.66 together with costs, amended on 15 May 2025 to be $1,271,287.73 together with costs. Clearly then, on its face, the Plaintiff in settling did not equal or better the offer previously made.
However, the Plaintiff argues that at the mediation instructions were given to settle the matter at a minimum of $1,229,000. The Plaintiff argued that he was willing to negotiate in the mediation “but was restricted because of the stance taken by the second defendant and the effect that this had upon failure of the mediation to succeed.” The submissions boldly assert that, had CIT accepted its suggestion to concede liability and agree quantum, there would have been no need for a hearing.
The Plaintiff concedes that no formal offer of any kind was made because of what he says is CIT’s “attitude” which, it appears, is CIT’s reliance on its defence as filed.
The preservation of the confidentiality of the mediation process is a matter in the public interest. Section 131(1) of the Evidence Act 2011 (ACT) excludes the giving of evidence about a communication or document made in negotiations in an attempt to settle a dispute, except as provided in sub-s (2). Section 131(2)(h) relevantly provides that the exclusion does not apply where “the communication or document is relevant to deciding liability for costs”.
The Plaintiff’s submission sets out the basis of the mediation confidentiality which includes the phrase: The parties and the mediator will not disclose to anyone not involved in the mediation any information or document given to them during the mediation unless required by law to make such a disclosure.
The Plaintiff argued that evidence as to the offers made by the Plaintiff during the mediation should be permitted to be adduced because they bear directly on the question of costs.
In Silver Fox Co Pty Ltd v Lenard’s Pty Ltd (No 3) [2004] FCA 1570; (2004) 214 ALR 621, the court considered the issue of adducing evidence of offers made in the course of a mediation which was, in the result, unsuccessful. In that case, the mediation agreement contained the same provision as here, namely, that the information will not be disclosed unless required by law. Mansfield J said at [32] that, in his opinion, the terms of the mediation agreement did not permit the adducing of evidence of what offers were made in the course of the mediation, although he accepted that evidence of the offers were relevant to determining liability for costs at [33]. His Honour concluded at [36] that, where the issue of relevance was liability for costs, evidence of negotiations was able to adduced.
Thus it is open to the Plaintiff to rely on evidence of what occurred during the mediation so far only as it touches on the issue of costs. However, having received the submissions and affidavits filed by the Plaintiff touching on what occurred at the mediation, CIT objected to their being relied on without an opportunity for CIT to cross-examine the deponents. As I have indicated, despite enquiries, the Plaintiff did not indicate what he proposed to permit CIT’s cross-examination.
The deponents of the affidavits offer differing accounts of what occurred. There is an obvious controversy which cannot easily be resolved and for that reason alone I would decline to delve into the offers said to have been made and rejected in the mediation.
The offer made by the Plaintiff to settle for $1,420,000 was not equalled or bettered by the result agreed on and there is no foundation for an order for indemnity costs.
As I have said, the Plaintiff further contended for indemnity costs because CIT continued to propound its defence as filed which was described as being misconceived.
The defence, seen at this remove may appear weak, but was not hopeless or doomed to fail. That CIT continued to rely on it during the mediation and base its offers accordingly does not give rise to an order for indemnity costs.
A model litigant
The Plaintiff did not address this point in the written submissions and it is not thus necessary to consider it.
Finally, CIT contests the Plaintiff’s standing to bring the application. When the matter was settled, there was no application reserving costs or noting that the Plaintiff wished to reserve his rights to seek indemnity costs against CIT and it is relevant here to observe that the settlement was with Balfran, leaving the question of apportionment to be determined later.
The Plaintiff did not address his standing to bring this application, and at first blush there is merit in CIT’s contention, however, it is not necessary to consider it for the above reasons which are that there should be no order for indemnity costs against CIT.
The application will be dismissed. Costs
If CIT wishes to make an application for the costs of the Plaintiff’s application it will be filed within 14 days of the making of these orders supported by submission of no more than five pages. The Plaintiff, if he wishes to respond, must do so within a further 14 days and supported by submissions of no more than five pages. The application will be dealt with on the papers.
Orders
I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 8 July 2026
Mason-Leonarder
Balfran Removals Pty Ltd (No 4)
[2026] ACTSC 76
[1998] HCA 11
(2004) 214 ALR 621