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[2020] FCA 1466
plaintiff. The Court held that the applicant's acceptance of the third respondent's offer was effective under Pt 25 and that she was entitled to an order under r 25.10. The parties were to be heard on the...
The third respondent made a court-rule settlement offer that said it would stay open for 28 days. The applicant rejected it, but that rejection did not cancel the offer under the Federal Court Rules. She accepted it on the final day of the stated period. The Court held that her acceptance was effective and that an order should give effect to it. The exact order was left for a further hearing.
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2,306 words · generated 30/09/2026
This was an interlocutory dispute within a defamation proceeding. The judgment concerned Melissa Parke, the applicant, and Dave Sharma, the third respondent. The proceeding had originally included a media organisation as a second respondent, but the applicant discontinued against that party on 3 April 2020. The first respondent, Colin Rubenstein, remained a party to the underlying proceeding, but the settlement-offer application concerned only the applicant and the third respondent [1].
5 cited instruments linked from this judgment.
On 15 July 2020, the third respondent served a Notice of offer to compromise under r 25.01 of the Federal Court Rules 2011 (Cth). It was signed by his solicitor and stated to be inclusive of costs [6]. The notice said: “This offer of compromise is open to be accepted for 28 days after service of this offer of compromise” [8]. The Court noted that r 25.05 permits an offer to be limited in time, subject to a minimum period of 14 days [7].
Two days after the offer was made, the applicant’s solicitor told the third respondent’s solicitor that the applicant rejected it. The applicant also made alternative settlement proposals: one for a specified sum, and another for a lesser sum together with an apology and retraction [13]. On or about 30 July, the applicant served her own offer to compromise [14]. But on 12 August, the twenty-eighth day after the third respondent’s offer was served, she served a notice accepting that original offer [2], [15].
The third respondent disputed the acceptance. His solicitor’s evidence was that she believed the express rejection meant the offer could no longer be accepted. She said that she undertook litigation work between 17 July and 12 August, including preparing evidence, considering pleadings, attending a case-management conference, and attending to discovery. She estimated that this work had resulted in further costs and disbursements of about $25,000 [17].
Besanko J concluded that the acceptance was effective under the Rules. The Court’s order did not itself set out the precise terms giving effect to the accepted offer. Instead, the parties were to be heard on those terms [29] and the orders.
The central question was whether ordinary common-law rules about offers and counter-offers governed the court-rule offer. Under ordinary contract principles, rejection generally terminates an offer, and a counter-offer is generally treated as an implied rejection. The Court described those principles, while noting that exceptions existed but were irrelevant to the issues before it [19].
The Court considered that if the matter were governed by those common-law principles, the third respondent’s offer would have ended when the applicant rejected it and made counter-offers. It would also have ended, on that analysis, when she made her own offer to compromise on 30 July [20]. But Besanko J held that the matter was governed by the Federal Court Rules, not by ordinary contractual principles [21]–[22].
The judgment relied on the distinction between a procedural offer scheme and a contract analysed in purely contractual terms. It referred to Berowra Holdings Pty Ltd v Gordon, where the High Court had said that an offer of compromise under court rules should not be analysed in purely contractual terms [21]. It also discussed Nationwide News Pty Ltd v Vass, in which the New South Wales Court of Appeal considered the relationship between a statutory offer-of-amends regime and a separate court-rule offer-of-compromise regime [21]. Besanko J used those authorities to support the conclusion that Pt 25 must be interpreted according to its own text and purpose, rather than by importing ordinary rules about counter-offers.
The relevant provisions gave the answer. Rule 25.08(1) states that an offer is open for acceptance within the time specified in the notice. Rule 25.08(3) allows acceptance by serving a notice of acceptance while the offer is open [10]. Rule 25.07, set out in the reasons, permits withdrawal within 14 days only if the Court gives leave or the offer is superseded by a more favourable offer to the offeree [9]. Besanko J observed that rejection by the offeree is not one of those stated grounds [23].
The third respondent argued that the offer had been withdrawn, either actually or constructively, because of the applicant’s rejection. The Court rejected that submission. It reasoned that withdrawal is an act of the offeror, not of the offeree. The third respondent had identified no act by him that withdrew the offer, and there had been no informal notice of withdrawal [23]. The Court therefore treated the offer as remaining open under the Rules until the end of the period specified in the notice.
The Court also considered whether to decline to give effect to the acceptance. The third respondent relied on r 25.10, the Court’s general power under r 1.34, and the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) [24], [26]. The Court did not need to analyse the precise source of a power to grant relief, because it concluded that relief was not appropriate on these facts [24].
In considering the costs argument, the Court noted that the evidence did not clearly explain whether the third respondent would have postponed the litigation work until the offer period expired, or instead sought leave to withdraw the offer [25]. Besanko J also considered it inferable that the third respondent knew when he made the offer that it would remain open until 12 August [25]. The Court accepted that accepting the offer on 17 July would have avoided reasonably substantial costs, but held that the applicant’s later acceptance was a course permitted by the Rules [27]. It found no misrepresentation by the applicant [28].
The judgment sets out the common-law starting point: an offer may end through lapse of time, revocation, rejection, or failure of a condition. In the usual case, rejection terminates the offer, and a counter-offer implies rejection [19]. Besanko J expressly identified those rules as the result that would have applied if the dispute had been governed by common-law offer and acceptance principles [20].
The decision then states that this was not the governing framework. The third respondent’s offer was made under Pt 25 of the Federal Court Rules. The Rules provide a procedural regime that determines how long the offer remains open and how it may be withdrawn. On the Court’s reading, the common-law consequence of rejection could not be imported to override that regime [21]–[23].
The effect of the decision is specific to the construction of Pt 25 as applied to this offer. The Court held that an offeree’s rejection does not, by itself, withdraw a Pt 25 offer that remains open under its notice. The offeror must rely on a withdrawal mechanism recognised by the Rules or otherwise perform an act that amounts to withdrawal where permitted. In this case, the Court found neither a relevant act nor an informal notice of withdrawal [23].
There is an internal cross-reference inconsistency worth noticing when reading the reasons. Paragraph 22 refers to the withdrawal rule as r 25.10, but the text of the withdrawal provision quoted at [9] is r 25.07, and paragraph 23 also identifies r 25.07. The judgment’s operative discussion of the withdrawal grounds is set out in [9] and [23].
The result did not establish that rejection can never matter in any settlement context. Rather, the reasoning concerns offers made under Pt 25, the notice’s stated 28-day period, and the absence of a withdrawal by the offeror. The judgment does not consider every possible form of withdrawal, every form of offer, or the operation of other settlement regimes.
At [22], Besanko J stated: “The common law rules relating to offer and acceptance do not apply under Pt 25 of the Rules.” In plain English, a court-rule settlement offer is governed by the Rules that created the procedure, rather than automatically by the ordinary contract-law rules that would usually apply to private offers.
The same paragraph states: “An offer is open to be accepted within the time stated in the Notice.” The practical point was that the notice itself specified a 28-day acceptance period. The applicant’s rejection did not change that stated period under the Court’s interpretation of the Rules [8], [22].
At [23], the Court said that the withdrawal grounds in r 25.07 “do not include a rejection of an offer by the offeree.” In plain English, the applicant’s rejection was not itself a permitted method of withdrawing the offer. The Court also emphasised that withdrawal is an act of the offeror, rather than the offeree [23].
At [27], the Court said the applicant was entitled to “see if she could achieve a better result” while preserving the ability to accept the original offer. This describes the procedural consequence of an offer remaining open: the offeree may pursue a different settlement position without that conduct automatically extinguishing the existing Pt 25 offer.
Finally, at [29], the Court concluded that the acceptance “was effective under the Rules” and that the applicant was entitled to an order under r 25.10. In plain English, the Court resolved the validity issue in the applicant’s favour, while reserving the precise wording of the order for a further hearing.
The reasoning is most directly engaged where a party makes an offer under Pt 25 of the Federal Court Rules, gives it a defined period for acceptance, and the offeree rejects it or makes a counter-offer before later serving acceptance within that period. The judgment treats the fact that the offer was made under the procedural Rules, rather than as an ordinary contractual offer, as central [21]–[23].
The decision is also relevant where the offeror says that an offeree’s rejection, counter-offer, or subsequent offer amounted to an actual or constructive withdrawal. The Court’s analysis asks whether the alleged withdrawal was made by the offeror and whether it fits the withdrawal provisions in the Rules [23].
The facts here included a 28-day period, a rejection two days after the offer, a separate offer by the applicant, and acceptance on the twenty-eighth day [8], [13]–[15]. The outcome also involved an argument that litigation work and costs incurred after rejection justified refusing effect to the acceptance. The Court considered that argument, but found the evidence unclear on what work would otherwise have been postponed and emphasised that the Rules permitted the applicant’s conduct [17], [25], [27]–[28].
The judgment does not determine how the same reasoning applies to offers made under different rules, statutory settlement regimes, or notices with different terms. It also does not decide a case where the offeror has obtained leave to withdraw, made a superseding offer in more favourable terms to the offeree, or given an informal notice of withdrawal after the first 14 days. Those situations were not the facts decided here.
The judgment text provided contains no discussion of later decisions applying, distinguishing, or questioning Parke v Rubenstein. It therefore does not support a claim about how later courts have treated the decision.
The authorities that Besanko J did discuss were earlier authorities. Berowra Holdings Pty Ltd v Gordon was cited for the proposition that a court-rule offer should not be analysed in purely contractual terms [21]. Brambles Holdings Ltd v Bathurst City Council and Nationwide News Pty Ltd v Vass were referred to in discussing common-law offer principles and exceptions, while Vass was also considered in relation to a separate statutory offer-of-amends scheme and a court-rule offer of compromise [19], [21]. These are part of the reasoning in Parke; they are not later treatment of Parke.
The judgment is a decision of a single judge of the Federal Court. The supplied text does not provide subsequent history, appeal information, or later judicial consideration. Any assessment of its later treatment would require sources beyond this judgment.
The decision leaves open questions that were not necessary to resolve the application. First, although the Court said the Rules do not address withdrawal after the first 14 days, it did not decide whether an informal notice of withdrawal would be sufficient in another case. It noted only that no such notice had been given here [23].
Second, the Court did not determine the precise source or scope of a power to relieve an offeror from the consequences of an effective acceptance. The third respondent relied on r 25.10 and r 1.34, but the Court said it did not need to analyse the source of power because relief should not be granted in any event [24].
Third, the reasons do not define how a court should assess reliance costs in a case where an offer is rejected but remains open. The Court considered the particular evidence about work undertaken and the uncertainty about what would otherwise have happened [25]. It also treated the applicant’s conduct as permitted by the Rules in the circumstances [27]–[28]. The judgment does not establish a general test for when reliance, prejudice, or costs might justify refusing an order in a different case.
Fourth, the Court did not decide whether every form of communication rejecting an offer has no effect under Pt 25. Its conclusion concerned the rules governing withdrawal and the offer notice in this case. The reasons distinguish the applicant’s rejection from an act of withdrawal by the offeror [23].
Finally, the precise terms of the order remained unresolved on 14 October 2020. The formal order directed that the parties be heard on those terms, having regard to the conclusions in the reasons. The supplied judgment does not record what final wording was later made.
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Introduction 1 This is an interlocutory application brought by an applicant in a proceeding for defamation in the Court. There were originally three respondents, two of whom are individuals (the first and third respondents) and the second was a media organisation. The applicant discontinued the proceeding against the second respondent on 3 April 2020. The interlocutory application concerns only the applicant and the third respondent. It is brought under r 25.10 which is in Pt 25 ("Offers to settle") of the Federal Court Rules 2011 (Cth) (the Rules) and the order sought is an order giving effect to the applicant's acceptance of the third respondent's Notice of offer to compromise dated 15 July 2020 which offer was, on the applicant's case, accepted by the applicant on 12 August 2020. The third respondent opposes the order sought by the applicant. He submits that the applicant had previously rejected his offer and it was not capable of acceptance on 12 August 2020. In the alternative, he submits that I should exercise a discretion under the Rules to refuse to give effect to the applicant's purported acceptance. 2 The proceeding is presently in its interlocutory stages and each party has been involved in carrying out work in compliance with orders of the Court designed to progress the matter to a stage where it is ready for hearing. The third respondent made an offer to settle the proceeding under r 25.01 of the Rules to the applicant. Shortly after receiving the offer, the applicant wrote to the third respondent advising him that the offer was rejected. The third respondent's solicitors believed that the rejection of the offer meant that it was no longer effective and they continued to carry out legal work on behalf of the third respondent. However, the period of 28 days during which the third respondent's offer was expressed to be open had not expired. On 12 August 2020, which was the twenty-eighth day after the offer had been served, the applicant purported to accept the offer. The third respondent responded by alleging that the applicant's acceptance was not valid because of her earlier rejection of the offer. 3 For the reasons which follow, I have concluded that the applicant's acceptance of the third respondent's offer was valid and effective and an order should be made giving effect to it.
The Facts 4 The applicant relies on an affidavit affirmed by her solicitor, Ms Abby Hamdan. Ms Hamdan deposes to the basic facts of the matter. The third respondent relies on an affidavit affirmed by his solicitor, Ms Rebekah Ruth Giles. Ms Giles' evidence is referred to below. 5 I am not the docket judge in relation to this proceeding. The interlocutory application has been referred to me in order to avoid any issue arising as to the docket judge's ability to hear the proceeding. 6 The third respondent's Notice of offer to compromise (the Offer) is dated 15 July 2020. The Offer is signed by the offeror's solicitor as required by r 25.02. The Offer provides that it is an offer inclusive of costs (see r 25.03). 7 Rule 25.05 provides that a party may make more than one offer, and that unless a notice provides otherwise, an offer is taken to be made without prejudice. In this case, the third respondent's Offer is stated to be made without prejudice. Rule 25.05(3) provides that an offer may be limited in time for which it is open to be accepted, however, the time must not be less than 14 days after the offer is made. 8 The third respondent's Offer states the following: This offer of compromise is open to be accepted for 28 days after service of this offer of compromise. 9 Rule 25.07 of the Rules is important. It provides as follows: 25.07 Withdrawal of offer An offer may be withdrawn within 14 days after it is made only if: (a) the Court, on an application by the offeror, gives leave; or (b) the offer is superseded by an offer in more favourable terms to the offeree. 10 Rule 25.08 provides as follows: 25.08 Acceptance of offer (1) An offer is open to be accepted within the time stated in the notice, which must not be less than 14 days after the offer has been made. (2) If no time for acceptance is stated in the notice, an offeree may accept the offer at any time before judgment is given. (3) An offeree may accept the offer by serving a notice of acceptance, in accordance with Form 46 on the offeror, at any time while the offer is open. 11 Rule 25.09 deals with the circumstances in which an offeree who has accepted an offer for a sum of money may withdraw the acceptance. 12 Rule 25.10 provides as follows: 25.10 Failure to comply with offer If, after acceptance of an offer by an offeree, an offeror fails to comply with the offer's terms, the offeree may apply to the Court for an order: (a) giving effect to the accepted offer; or (b) staying or dismissing the proceeding if the applicant is in default; or (c) striking out the respondent's defence if the respondent is in default; or (d) that a cross-claim, not the subject of the offer, proceed. 13 By letter dated 17 July 2020, Ms Hamdan wrote to Ms Giles advising her that she was instructed to reject the third respondent's Offer. Ms Hamdan, on behalf of the applicant, made what she referred to as alternative offers as follows: (1) the third respondent pay the applicant a specified sum of money in full and final settlement; or (2) the third respondent pay the applicant a lesser sum of money (i.e., less than the first offer) in full and final settlement plus an apology and retraction in terms of an attached draft. 14 On or about 30 July 2020, the applicant served her own Notice of offer to compromise the proceeding as between the applicant and the third respondent. The offer was that the third respondent pay the applicant a specified sum of money plus costs to be taxed if not agreed upon. The offer of compromise was open to be accepted any time after service of the offer of compromise. It was stated that the amount of the offer would be paid within 14 days of the acceptance of the offer. 15 On 12 August 2020, Ms Hamdan, on behalf of the applicant, served a Notice of acceptance of offer to compromise. The notice stated that the applicant "accepts your offer to compromise made on 15 July 2020". 16 On 17 August 2020, Ms Giles wrote to Ms Hamdan inquiring as to the basis upon which the applicant asserted that the Offer was open for acceptance following an express rejection of the Offer. Correspondence between the parties then ensued. It is not necessary to set out the terms of that correspondence. 17 Ms Giles was not required for cross-examination. In her affidavit she states that after the applicant rejected the Offer on 17 July 2020, the third respondent considered that the Offer was no longer capable of being accepted. Ms Giles then states: 9 As a result of the express rejection of the third respondent's Notice of Offer to Compromise on 17 July 2020, between 17 July and 12 August 2020 I proceeded to take steps in the proceedings on behalf of the third respondent which included: (a) prepared the third respondent's evidence in the proceedings; (b) considered the reply to the defence filed by the applicant; (c) participated in a case management conference and briefed counsel to appear at same; (d) reviewed, considered and responded to correspondence from the parties and the Court on various issues; (e) attended to the third respondent's discovery obligation in the proceedings; (f) reviewed the lists of documents filed by the applicant and the first respondent; 10 These steps resulted in further costs and disbursements to third respondent. I am yet to precisely quantify those costs but I estimate them to be in the order of $25,000. 11 The third respondent is a self-funded litigant.
Analysis 18 As I have said, the applicant rejected the third respondent's Offer and made alternative offers (i.e., counter-offers) by Ms Hamdan's letter dated 17 July 2020. Furthermore, on 30 July 2020, the applicant made her own Notice of offer to compromise under the Rules. 19 Under the common law principles relating to offers and acceptance, an offer may come to an end by any of the following means: (1) the lapse of time; (2) revocation by the offeror; (3) rejection by the offeree; and (4) a failure of a condition. In the usual case, rejection by the offeree terminates an offer and a counter-offer is an implied rejection of an offer (see Carter JW, Contract Law in Australia (7th ed, LexisNexis Butterworths, Australia 2018) at [3-42] and [3-51]). There are exceptions to the principle that rejection of an offer by the offeree brings the offer to an end, but they are not relevant in terms of the issues before me (see Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153; Nationwide News Pty Ltd v Vass [2018] NSWCA 259; (2018) 98 NSWLR 672 (Vass) at [54] per McColl JA). 20 The end of an offer by reason of the lapse of time or the failure of a condition are not relevant in this case. If this case was governed by common law principles, then, without more, the third respondent's Offer came to an end by reason of the rejection of the Offer on 17 July 2020 and the counter-offers on the same day and, in the alternative, by reason of the applicant's Notice of offer to compromise on 30 July 2020. 21 However, this matter is not governed by common law principles, but it is governed by the Rules of Court. In Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364, the High Court made the point that it was not correct to analyse an offer of compromise made pursuant to Pt 19A, rule 1(1) of the District Court Rules 1973 (NSW) in purely contractual terms (at [44] and [55] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). In Vass, the New South Wales Court of Appeal considered the offer of amends regime for the resolution of civil disputes without litigation in Pt 3 Div 1 of the Defamation Act 2005 (NSW). The facts in that case were that a media outlet made an offer of amends to a claimant. The offer was expressed to be open to be accepted until commencement of the trial unless withdrawn in writing. The claimant made an offer of compromise pursuant to r 20.26 of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR). The media outlet did not respond to the offer. The claimant subsequently wrote to the media outlet and purported to accept the offer of amends. The position adopted by the media outlet was that the offer of amends was no longer open for acceptance as it had been rejected by the claimant when he made the offer of compromise. The primary judge held that the offer of compromise under the UCPR did not reject the making of an offer of amends under the Defamation Act by necessary implication. The media outlet was granted leave to appeal, but its appeal was dismissed. McColl JA referred to the position under the common law principles relating to offer and acceptance (at [52]-[54]). Her Honour noted that the amends provisions in the Defamation Act used words conceptually common to the common law of contracts such as "offer", "accept" and "not accept[ed]", but do not use the word "reject". Her Honour held that the offer of compromise under the UCPR did not operate as a counter-offer to the offer of amends. Her Honour expressed her conclusions as follows: 110 In my view, it is apparent from the text of the amends provisions, their legislative history and the purpose they seek to achieve that the legislature did not intend the amends provisions to be construed by reference to ordinary contractual principles. 111 Both Mr Vass's offers of compromise were made pursuant to the provisions of the UCPR "instead of" under the amends provisions as was expressly contemplated by s 12(2) of the 2005 Act. 112 The consequence is that Mr Vass's second offer of compromise made pursuant to a separate statutory scheme did not operate as a counteroffer to the second offer of amends. (citation omitted; see also Basten JA at [161]). 22 The common law rules relating to offer and acceptance do not apply under Pt 25 of the Rules. As I have said, the Rules provide that an offer made must remain open to be accepted for not less than 14 days after the offer is made (r 25.05). The offer may be withdrawn within the 14 day period, but only if the offeror makes another offer in more favourable terms to the offeree, or the offeror makes an application to the Court for leave to withdraw the offer and that application is granted (r 25.10). The terms of r 25.08 are quite clear. An offer is open to be accepted within the time stated in the Notice. 23 As I understood it, the third respondent sought to avoid the consequences of the Rules by submitting that the Offer had been withdrawn by an actual withdrawal, or a constructive withdrawal. The matter which was said to have given rise to the withdrawal, or constructive withdrawal, of the Offer was the applicant's rejection of the Offer. I reject this submission. The rejection was within 14 days after the Offer had been made and the Rules specifically provide that an offer may be withdrawn only in the two circumstances indicated in r 25.07. They do not include a rejection of an offer by the offeree. Furthermore, the withdrawal of an offer is an act on the part of the offeror, not an act on the part of the offeree. Insofar as the third respondent relies on conduct outside the 14 day period, or conduct which is said to become relevant and operative upon the expiration of a 14 day period, it fails because the only conduct he has identified is conduct on the part of the applicant. He identifies no conduct on his own part which might amount to a withdrawal of the Offer by him. The Rules do not address the withdrawal of an offer after the 14 day period, but even if an informal notice of withdrawal is sufficient, that did not occur in this case. 24 As I have said, the third respondent submits, in the alternative, that I should decline to recognise and give effect to the acceptance of the Offer in the exercise of the Court's discretion. He submits that the Court has a discretion under r 25.10 to refuse to make an order. In the alternative, he relies on the general power of the Court in r 1.34 to dispense with compliance with the Rules. As to this latter submission, the third respondent did not identify the rule which he claims should be made the subject of the dispensation, but I proceed on the basis that he is seeking dispensation from any requirement in the Rules or implied by the Rules that the leave of the Court be obtained or a notice of withdrawal be given in order for an offer to be withdrawn. I do not need to analyse the source of the Court's power to grant relief to the third respondent because I have reached the conclusion that, in any event, this is not a case where such relief should be granted. 25 As I said earlier, Ms Giles, on behalf of the third respondent, gave evidence that after the applicant rejected the third respondent's Offer on 17 July 2020, the third respondent considered the Notice was no longer capable of being accepted. She also deposed in paragraph 9 that, as a result of the express rejection of the third respondent's Offer, she proceeded to take the steps in the proceedings on behalf of the third respondent set out above (at [17]). It is not clear what Ms Giles means when she deposes to the fact that she proceeded to do various things as a result of the express rejection of the third respondent's Offer. It is not clear whether she is saying that she would have postponed that work until after 12 August 2020 when the 28 day period had expired, or whether, had she known that the express rejection of the third respondent's Offer did not mean that the Offer was no longer capable of being accepted, she would have approached the Court with a view to obtaining leave to withdraw the Offer. The docket judge made a number of procedural orders on 26 June 2020, including an order in paragraph 8 that the time within which the third respondent was to file and serve an affidavit containing his evidence in chief on the defined topics be extended retrospectively from 23 June 2020 to 17 July 2020. Furthermore, the docket judge in notes recorded in the orders noted that the parties would be conferring with respect to issues of discovery and with respect to the proper scope of the evidence to be led at the trial. The third respondent made his offer on 15 July 2020 and that offer was open to be accepted for a period of 28 days. The twenty-eighth day was 12 August 2020. It may be inferred that when the Offer was served, the third respondent was aware that it was open to be accepted up to and including 12 August 2020. 26 The third respondent referred to the overarching purpose of civil practice and procedure provisions identified in s 37M of the Federal Court of Australia Act 1976 (Cth) and the obligation on parties to a civil proceeding to act consistently with the overarching purpose in s 37N of the Act. The civil practice and procedure provisions include the Rules of Court and the Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (s 37M(3)). The overarching purpose and various objectives are set out in s 37M(1) and (2) which are as follows: (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 27 As I understood the third respondent's submission, it is that it is not consistent with the overarching purpose for the applicant to refuse the third respondent's Offer and to make counter-offers, and then when the counter-offers have not been accepted and the third respondent has incurred further costs, to turn around and accept the initial offer. There can be no doubt that if the applicant had accepted the third respondent's Offer on 17 July 2020, then costs incurred by the third respondent of a reasonably substantial amount would have been avoided. The difficulty with this argument is that what the applicant did in this case was, in my respectful opinion, clearly permitted under the Rules. The third respondent's Offer was said to be open for a period of 28 days. The applicant was entitled to, in effect, see if she could achieve a better result, but at the same time, preserve the ability to accept the initial offer. It seems to me that that is the effect of the Rules and certainty in the construction of the Rules and in their application, particularly in the area of offers and the effects offers can have in terms of the costs of proceedings, is important. 28 In any event, there was nothing done on the applicant's side which would justify departing from the effect of the Rules. The third respondent seemed to suggest at one point that the applicant had misrepresented the position by rejecting the Offer and then later accepting it. I cannot see that there was any misrepresentation by the applicant. She was entitled to do what she did under the Rules.
Conclusion 29 The applicant's acceptance of the third respondent's Offer was effective under the Rules and the applicant is entitled to an order under r 25.10. I will hear the parties as to the precise terms of the order. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.
Parke
Rubenstein
(2006) 225 CLR 364
(2001) 53 NSWLR 153
(2018) 98 NSWLR 672
The Court held that the applicant's acceptance of the third respondent's offer was effective under Pt 25 and that she was entitled to an order under r 25.10. The parties were to be heard on the precise terms of the order.