Seven Network Limited v Commissioner of Taxation

THE COMMISSIONER'S SUBMISSIONS 6 It is not in contention that the question to be addressed is the reasonableness of the Commissioner in refusing Seven's offer. If that refusal was unreasonable, Seven will be entitled to indemnity costs. As explained in CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 at [75], that is to be assessed by reference to the circumstances facing the Commissioner at the time of the offer and not with the wisdom of hindsight. 7 The Commissioner emphasises that the fact that a person who rejects a Calderbank offer ultimately obtains a less favourable result at trial is a necessary but not sufficient condition for indemnity costs and that Seven must establish that his conduct was unreasonable (CGU Insurance at [75]; Taleb v GM Holden Limited (2011) 286 ALR 309 at [49]). 8 The Commissioner relies on the following: Seven's offer was made 48 hours prior to the commencement of the hearing and some seven and a half years after litigation had commenced. He had Senior Counsel's advice that his case was "arguable". The litigation involved novel issues of copyright law. It was in the public interest that the case be heard and determined, in particular because there was another case on similar facts waiting for determination. The offer was not clear, in that there was no quantification of the costs that formed that part of the offer relating to Seven paying its own costs. 9 It does not seem to be in dispute that the fact that the written offer repeated the oral offer made in the settlement conference was understood as a Calderbank offer, which foreshadowed an application for indemnity costs in the event of Seven's success in the proceedings.

The timing of the offer 10 It is the case that the offer was made immediately prior to the hearing and that one of the objectives in promoting offers of settlement is to encourage early settlements. However, the Statement of Agreed Facts had only recently been settled. That statement, in the context of a case involving reasonably complex questions of the characterisation of the technology, formed part of the foundation for an analysis of the questions of copyright. While there were some outstanding objections to evidence, they were not of great moment and generally related to Seven's preparedness to permit the Commissioner to read evidence that Seven objected to, if read on certain bases. 11 There is no evidence that the Commissioner had any difficulty in considering the offer in the available time. Seven restated an offer that had, as explained by the Commissioner's solicitor in his affidavit of 2 March 2015, already been 'fully considered… and rejected'. Further, the Commissioner immediately restated his own counter-offer in the Commissioner's Calderbank Letter, which offer was said to expire on 30 October 2013, later in the day that it was sent. 12 The timing of Seven's offer does not affect the reasonableness of the Commissioner's decision.

Senior Counsel's advice 13 Seven took a position as to the outcome of the case that was reflected in written advice from Senior Counsel that it had supplied to the Commissioner. That position, based on legal principle, did not change. 14 During the settlement conference, in private session, the Commissioner's Senior Counsel said to those representing the Commissioner words to the effect: Seven's view overstates their prospects of success. The Commissioner's case is arguable, but this is a test case that could go either way. 15 The Commissioner submits that, because he had advice that his case was arguable, it was not unreasonable to reject Seven's offer. 16 The existence of this advice does not, of itself, negate unreasonableness. First, if a case is not arguable, it would not be advanced by counsel. That applies to all litigation. Put another way, it is not sufficient to avoid the consequences of a Calderbank letter that counsel, even Senior Counsel, advised that the case is arguable. 17 In making the determination of unreasonableness, the parties' understanding of the strengths and weaknesses of their respective cases can be relevant considerations (Taleb at [49]). The advice that the Commissioner's case was arguable was qualified by the recognition that the outcome was uncertain. If the case was arguable but could go either way, a reasonable counter-offer might have been of the order of 50 per cent of the retained moneys. Instead, the Commissioner, in rejecting Seven's offer, offered only 30 per cent. 18 The circumstances of that counter-offer do not support reasonableness in rejecting Seven's offer. Indeed, they suggest a position not consistent with counsel's advice.

Novel issues of copyright law and the public interest 19 In Federal Commissioner of Taxation v Clark and Another (No 2) [2011] FCAFC 140 at [28], the Full Court said: Once the Court's jurisdiction is engaged the Commissioner becomes a litigant, subject to s 64 of the Judiciary Act, the provisions of the Federal Court Act and the Rules. His conduct is to be judged by reference to all circumstances including, in an appropriate case, his policies and procedures. 20 It follows that a decision to refuse an offer so that, in the public interest, a case is heard and determined, does not of itself make the refusal reasonable. It is necessary to look to all of the circumstances. 21 The Commissioner's determination to obtain a decision from the Court did not extend to failing to make a counter-offer. If that had been accepted by Seven, there would not have been a hearing. This suggests that the public interest factor was not determinative of the Commissioner's decision. Apart from a single other case on the same facts awaiting the Decision, the Commissioner points to the importance of the case to principles of copyright law. It has not been explained why the Commissioner has an interest in oversight of that law but, again, the Commissioner was prepared to forego the hearing if an advantageous settlement could be attained. 22 Further, if it were simply a matter of public interest that the matter be determined, it does not seem reasonable that Seven, as a private party, should bear the cost of the continuing litigation if it could have been settled in accordance with its offer. The Commissioner did not offer to pay any of Seven's costs of the "test case" after Seven's offer.

Each party to bear its own costs 23 The Commissioner says that he was entitled to know the value to Seven of its offer to pay its own costs. 24 I confess that I do not fully comprehend this submission. First, the Commissioner did not ask Seven to quantify its costs, either in the settlement meeting or after receipt of the Calderbank Letter. Secondly, the Commissioner would have known that Seven would have incurred significant legal costs over the seven and a half years since the dispute arose and that Seven had retained two Senior Counsel to appear at the hearing. Thirdly, if that matter were of such importance in the context of an offer, it is noteworthy that the Commissioner made his own offer in similar terms, to pay his own costs.

CONCLUSION 25 The outcome of the case, in Seven's favour, is not determinative of its entitlement to indemnity costs upon the serving of the Calderbank Letter but it is a factor and the condition precedent to the entitlement. The question is whether the Commissioner's refusal was, in the circumstances, unreasonable. In my view, it can be said that it was. None of the bases advanced by the Commissioner support the reasonableness of his refusal, for the reasons outlined above. 26 Seven made an offer by way of the Calderbank Letter which was refused. In the circumstances of the offer, the Commissioner's refusal to accept it was unreasonable. Seven obtained a more favourable outcome of the proceedings and Seven is entitled to indemnity costs after the date of expiry of its offer. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.