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[2025] NSWCA 92
procedural. The Court confirmed the appellant must pay the respondent’s costs of the appeal on the ordinary basis; each party was to bear its own costs of the indemnity-costs submissions.
The Court had already dismissed Mr Warne's appeal and ordered him to pay the respondent's costs. It then considered whether those costs should be assessed on the more demanding indemnity basis. It refused. The Court treated his self-represented status as relevant to his handling of appeal issues and did not find that he should have realised from the outset that the appeal had no chance. The respondent's offer did include a costs discount, but it also required him to abandon the appeal and pay a substantial amount. The Court therefore held that rejecting it was not unreasonable. The costs of the appeal remained payable on the ordinary basis.
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2,455 words · generated 07/10/2026
This is a short, post-appeal costs judgment in Warne v ACN 603 541 411 Pty Ltd trading as Chandlers International Lawyers (No 2) [2025] NSWCA 92. It concerns the basis on which costs were to be assessed, not the merits of the underlying fee dispute or the appeal itself.
2 cited instruments linked from this judgment.
On 3 April 2025, the Court dismissed Mr Warne's appeal with costs. The appeal challenged District Court orders relating to a claim by the assignee of his former lawyer for unpaid legal fees ([1]). The underlying dispute arose from Mr Warne's dissatisfaction with the basis on which his former lawyers charged fees in litigation about two loan claims. He maintained that the charges were inconsistent with oral agreements he said he had made with his former lawyer ([3]).
The respondent then sought a special costs order. Its primary request was indemnity costs from 22 October 2024, when Mr Warne filed his Amended Notice of Appeal. Alternatively, it sought ordinary costs up to 25 February 2025 and indemnity costs from 26 February, relying on a Calderbank offer made the previous day. Its final alternative was ordinary costs ([4]). The Court noted that ordinary costs were already the default effect of the 3 April order unless it made a special order ([5]).
The respondent's conduct-based argument focused on Mr Warne's persistence, allegedly irrelevant appeal material, failures to comply with procedural requirements for appeal books, and allegations of misconduct against former lawyers ([8], [11]). Mr Warne's response returned to his complaint that the original estimate of $60,000 had grown to nearly $300,000, and that his former lawyer knew about his limited cash flow ([12]).
The offer-based argument concerned a written offer made on 25 February 2025. As corrected on 6 March, the respondent proposed accepting $43,000 in costs, against anticipated costs of $75,000, if Mr Warne withdrew the appeal ([26]). The offer remained open until 7 March, five days before the appeal hearing ([27]). The Court rejected both grounds for indemnity costs. It confirmed that the 3 April costs order operated on the ordinary basis and directed each party to bear its own costs of the submissions about indemnity costs ([35]).
The Court's starting point was its broad costs discretion under s 98 of the Civil Procedure Act 2005 (NSW) ([6]). It did not repeat general costs principles in full. Instead, it focused on whether the two specific grounds advanced by the respondent justified departing from the ordinary basis.
On the first ground, the respondent relied on the principle, drawn from Fountain Selected Meats, that indemnity costs may be appropriate where an unsuccessful party should have known there was no chance of success and nevertheless pressed on ([13]). The Court examined what Mr Warne had done and what he had been told, rather than treating the appeal's eventual failure as sufficient in itself.
Several appeal matters were misplaced. For example, the relief sought did not align with the pleaded claim, and some complaints about professional costs disclosure or negligence were not appropriate issues to raise on the appeal from the District Court judgment ([15]). But the Court considered that these features were explicable by Mr Warne's lack of legal qualifications. It also considered that his unfamiliarity with the proper forum for costs-related complaints was likely attributable to being unrepresented ([15]-[18]). His failure to comply with directions and rules relating to appeal books was not, without more, enough to support indemnity costs; the Court observed that procedural difficulties of this kind were not uncommon with self-represented litigants ([18]).
The Court was more concerned about serious accusations of dishonesty against former legal representatives. It emphasised that such allegations should not be made lightly and that allegations pleaded without a proper basis, and found to be baseless, may lead to indemnity costs ([19]). However, it distinguished the conduct before it: the accusations appeared in written and oral submissions, not in a pleading against the lawyers. It also placed them in the setting of a genuine dispute about legal fees and Mr Warne's strong sense of grievance. In those circumstances, the allegations did not warrant indemnity costs for the appeal ([19]).
The Court also considered the warnings about prospects. It discussed Reimers and Quach as examples where the circumstances supported indemnity costs after the litigant had been put on notice of the relevant difficulties ([20]-[22]). It found important differences. In Reimers, the same issues had been revisited after earlier proceedings and a further year had passed, strengthening the prejudice caused by delay ([21]). In Quach, the litigant had received specific explanations about the problems with the motions before proceeding ([22]). By contrast, the Court was not satisfied that Mr Warne had persistently revisited the same issues or that judicial scepticism about the merits, as distinct from deficiencies in the notice of appeal, had been expressed to him before the appeal hearing. It also noted that the respondent's attempt to strike out the appeal as an abuse of process had failed ([23]). The Court was therefore not persuaded that it should have been obvious to a self-represented appellant that the appeal was doomed from the outset ([24]-[25]).
The Calderbank offer required a separate assessment. The Court set out relevant factors, including the stage of proceedings, time to consider, degree of compromise, prospects assessed at the offer date, clarity of terms and whether indemnity costs were foreshadowed ([30]-[31]). It accepted that the offer allowed reasonable time, contained a genuine compromise, was relatively clear after correction and warned of a possible indemnity-costs application. It also accepted that the appeal prospects were poor, while noting that Mr Warne did not appreciate that ([32]).
The decisive counterweight was what acceptance required. In substance, it required Mr Warne to abandon the appeal and pay a not insignificant amount. The Court considered that this was a substantial capitulation, even though the offer reduced the costs otherwise claimed. As a result, rejecting it was not unreasonable in the circumstances ([33]-[34]).
The judgment does not purport to change the law on indemnity costs. Its task was to apply established costs principles to the particular conduct and offer before it. The relevant statutory source identified is s 98 of the Civil Procedure Act 2005 (NSW), which the Court described as conferring a wide discretion ([6]).
For conduct-based indemnity costs, the Court used the formulation from Fountain Selected Meats: an order may be appropriate where an unsuccessful party should have known there was no chance of success and pressed on ([13]). The judgment's contribution is its application of that principle in a case involving a self-represented litigant. It did not establish that self-representation prevents indemnity costs. Rather, the Court treated lack of legal qualifications and familiarity with court procedure as contextual matters, while still expressing concern about serious allegations of dishonesty ([15]-[19]).
For Calderbank offers, the judgment restated the requirement that the offeror establish that rejection was unreasonable where the offer is not a formal offer of compromise under the rules ([30]). It adopted a multifactor assessment, including the compromise offered and the offeree's prospects at the time of the offer ([31]). The outcome demonstrates that a genuine discount and a warning about indemnity costs do not alone make rejection unreasonable. The court must also examine the practical terms and what the offeree would have to give up to accept ([32]-[34]).
The judgment also explains the rationales for special costs orders after rejection of an offer: encouraging settlement, avoiding public costs of litigation that could have been avoided, and indemnifying a party where the other side's rejection becomes the real cause and occasion of further litigation ([29]). Those explanations are drawn from Maitland Hospital v Fisher (No 2), rather than presented as a new doctrine.
Nothing in the judgment establishes a new rule that all self-represented litigants receive latitude, or that an appeal with poor prospects cannot attract indemnity costs. The reasoning is fact-sensitive: the Court examined what warnings were given, whether the deficiencies were obvious, the litigant's position, and the terms of the offer.
At [13], the Court says indemnity costs may be appropriate when an unsuccessful party “should have known that he had no chance of success” and continued anyway. In plain English, losing is not enough by itself. The question includes whether it should have been clear to the party, in the circumstances, that continuing was unjustified.
At [18], the Court treats Mr Warne's procedural failures and misplaced appeal material as insufficient, by themselves, to show improper conduct. It regarded his lack of legal qualifications as a relevant explanation. This is not a blanket exemption from procedural rules; it is the Court's evaluation of the conduct in this case.
At [19], the Court warns that serious allegations of dishonesty should not be made lightly and says unsupported allegations may result in indemnity costs. But it does not treat every serious accusation as automatically triggering that result. Here, the allegations were submissions rather than pleaded claims, and the Court considered the context of the fee dispute and Mr Warne's lack of legal training.
At [23], the Court distinguishes the circumstances from Reimers and Quach. It says Mr Warne had not persistently revisited the same issues in the way the Court understood had occurred in Reimers, and it was not clear that judicial doubts about the merits had been conveyed in advance in the way relevant to Quach. The plain-English point is that warnings from an opponent and a court's prior explanation of a problem are not necessarily equivalent.
At [27], the Court calls the respondent's assumption about Mr Warne's ability to assess the strength of its submissions “not obviously well-founded”. This shows that the existence of submissions explaining why an appeal is weak does not automatically establish that a self-represented party could properly evaluate the legal prospects.
At [33]-[34], the Court focuses on the offer's practical effect. Although the respondent offered a reduction in costs, acceptance required Mr Warne to abandon his appeal and pay a significant amount. The Court's conclusion was not that the offer was invalid, but that rejecting it was not unreasonable in the circumstances.
At [35], the operative result is clear: the appeal costs were to be assessed on the ordinary basis, not the indemnity basis.
The judgment is most relevant where a court is asked to award indemnity costs because a losing party continued proceedings after being told they had poor prospects. It indicates that the inquiry is contextual. Relevant matters may include whether the litigant repeatedly pursued the same issue, whether a court had clearly explained the defect before the relevant step, whether the deficiency concerned the merits or the form of the case, and whether the party was legally represented. In this case, the Court did not consider the opponent's warnings enough to establish that the appeal was obviously doomed to Mr Warne ([23]-[25]).
It is also relevant where a self-represented party has raised matters that are irrelevant, procedurally misplaced or not properly before the court. The decision shows that such conduct may be considered in light of the litigant's lack of legal experience. But the Court did not say that self-representation excuses all procedural non-compliance or all allegations made in submissions ([15]-[19]).
The decision is pertinent to applications based on serious accusations against lawyers or other professionals. It distinguishes between allegations made in submissions and allegations pleaded against a person, while warning that serious claims without a proper basis can carry costs consequences ([19]). It does not set out a complete test for when such accusations justify indemnity costs.
Finally, the decision is relevant where a Calderbank offer requires the recipient to discontinue a proceeding and pay costs. It confirms that a substantial discount is a relevant factor, but not conclusive. The court may examine how much litigation risk the offeror leaves with the offeree, what the offeree must surrender, and whether the amount and terms make rejection unreasonable viewed at the offer date ([30]-[34]).
The judgment supplies no information about later judicial treatment of Warne [2025] NSWCA 92. The supplied text therefore does not establish whether subsequent courts have followed, distinguished, applied or questioned its reasoning. Any statement about later treatment would require sources beyond this judgment.
The judgment itself discusses earlier authorities. It refers to Fountain Selected Meats for the general proposition about pursuing a case that should be known to have no chance ([13]). It discusses Reimers and Quach as examples in which the circumstances surrounding prior proceedings or advance warnings supported indemnity costs ([20]-[23]). It also refers to Maitland Hospital for the purposes of special costs orders following rejection of an offer, and to Miwa and Hazeldene's Chicken Farm for relevant factors in assessing a Calderbank offer ([29]-[31]). These are the authorities the Court relied on or discussed in this decision; they are not evidence of how later courts have treated this judgment.
The judgment does not define a precise threshold for when a self-represented litigant should be taken to understand that an appeal has no chance of success. It explains why the Court was not persuaded on these facts, but does not turn that assessment into a universal rule ([23]-[25]).
It also does not determine how much weight should generally be given to a warning from an opposing party, compared with a clear explanation from a court. The Court noted that it was not clear that judicial scepticism about the merits had been conveyed in advance, while the respondent had communicated its view of the appeal's prospects ([10], [23]-[24]).
The treatment of serious allegations is likewise fact-specific. The Court stated that unsupported allegations may warrant indemnity costs, but did not set out a comprehensive test for distinguishing forceful but permissible submissions from allegations sufficiently improper to justify a special costs order ([19]).
On Calderbank offers, the judgment identifies factors but does not assign fixed weights to them. In particular, it does not prescribe how courts should quantify the significance of a discount where acceptance also requires abandoning an appeal. Its conclusion depended on the particular combination of a genuine costs reduction and the substantial capitulation demanded ([31]-[34]).
Finally, this decision does not resolve the underlying dispute about the former lawyer's costs agreement, the amount of fees, or any separate complaint about professional conduct. The Court expressly treated investigation of the original agreement as a matter for Mr Warne to pursue separately and decided only the remaining costs-basis issue before it ([2]). This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Warne v ACN 603 541 411 Pty Ltd trading as Chandlers International Lawyers (No 2) [2025] NSWCA 92
Hearing dates: On the papers
Date of orders: 6 May 2025
Decision date: 06 May 2025
Before: Ward ACJ; Mitchelmore JA; Kirk JA
Decision: 1. For the avoidance of doubt, the order made on 3 April 2025 that the appellant pay the respondent’s costs is to operate as an order for costs on the ordinary basis.
Catchwords: COSTS – application for indemnity costs
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364
Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435; [2005] VSCA 298
Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721; [1992] NSWCA 721
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311
Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
Reimers v Health Care Complaints Commission [2013] NSWCA 366
Reimers v Health Care Complaints Commission [2012] NSWCA 317
Warne v ACN 603 541 411 Pty Ltd trading as Chandlers International Lawyers [2025] NSWCA 57
Category: Costs
Parties: Colin Phillip Warne (Appellant)
Chandlers International Lawyers (Respondent)
Representation: Counsel:
C Warne (Appellant) (Self-represented)
J Granger with S Steinhoff (Respondent)
Solicitors:
HT Law Pty Ltd (Respondent)
File Number(s): 2024/00282252
Publication restriction: Nil
THE COURT: On 3 April 2025, this Court dismissed with costs an appeal brought by Mr Warne challenging orders made against him in the District Court in relation to a claim by the assignee of his former lawyer in respect of unpaid legal fees (see Warne v ACN 603 541 411 Pty Ltd trading as Chandlers International Lawyers [2025] NSWCA 57). At that time, directions were made for the filing of any submissions as to the basis on which such costs should be ordered to be assessed, with a view to determining any such issue on the papers.
The respondent filed submissions accordingly on 11 April 2025. Mr Warne responded to those submissions by email on 17 April 2025. In that email, Mr Warne requested that the Court delay the “final costing” of the matter until he can have the 12 October 2018 costs agreement (i.e., the original costs agreement entered into with his former lawyer) “investigated by the correct court”. In circumstances where a costs order has already been made and we do not propose to order that this be on an indemnity basis, we do not see any basis for deferring our determination on the papers of the respondent’s submissions as to the basis of the costs order. These reasons now deal with the sole remaining issue in the proceedings in this Court. It is a matter for Mr Warne what steps he now chooses to take in relation to the investigation of the original costs agreement with his former lawyer.
The background to the dispute is outlined in the judgment of the presiding judge handed down on 3 April 2025. The nub of the dispute related to Mr Warne’s dissatisfaction with the basis on which he had been charged legal fees by the lawyers who formerly acted for him in relation to two claims for loans allegedly due to him; in particular, his assertion that this was inconsistent with oral agreements that he maintained had been reached with his former lawyer.
In its written submissions, the respondent seeks its costs against Mr Warne:
(a) on an indemnity basis from the date on which Mr Warne filed his Amended Notice of Appeal (22 October 2024); (b) alternatively, on an ordinary basis up to 25 February 2025 and on an indemnity basis from 26 February 2025 (the former being the date of a Calderbank offer made by the respondent – see below); (c) alternatively, on an ordinary basis.
The last alternative is strictly unnecessary to articulate since, in the absence of a special order as to costs, the order that has already been made that the appeal be dismissed with costs would operate as an order for costs on the ordinary basis.
The principles on which the Court’s wide discretion to make a special costs order under s 98 of the Civil Procedure Act 2005 (NSW) are well-known and will not here be repeated save as necessary to enable Mr Warne to understand the outcome in relation to costs.
We deal in turn with the two bases on which a special (indemnity) costs order is sought by the respondent.
The basis on which the respondent seeks an order for costs on an indemnity basis from the date of the filing of the Amended Notice of Appeal (22 October 2024) is, in essence, a complaint as to Mr Warne’s persistence in pursuing the appeal (after the respondent had drawn attention to its very poor prospects of success) and in raising irrelevant matters (the respondent here referring to what was said in the appeal judgment at [4], [11] and [25]). The respondent also complains that Mr Warne failed to comply with court orders and rules in relation to the preparation of the appeal (including failing or refusing to serve documents), with the consequence that the respondent says additional costs were incurred by it in the preparation and filing of supplementary appeal books and in making detailed objections to the Appeal Books.
The respondent submits that the fact that Mr Warne was “warned” about the poor prospects of success of his appeal is a significant factor in the determination as to whether to grant indemnity costs (citing Reimers v Health Care Complaints Commission [2013] NSWCA 366 (Reimers*)*). In Reimers, Barrett JA said that the applicant’s case was “so obviously doomed to fail as an abuse of process” and should have been seen from the beginning to be of that quality, particularly in light of the “clear flagging” of that matter.
In this regard, the respondent has referred in its submissions to its various written communications to Mr Warne drawing his attention to deficiencies in the Amended Notice of Appeal and in the preparation of the Appeal Books and as to his poor prospects of success. The respondent notes that the findings made by this Court were as to matters to which Mr Warne’s attention had been drawn in the respondent’s submissions on the appeal and in its 24 February 2025 letter (in which the intention to seek indemnity costs was again raised).
The respondent says that a further basis for indemnity costs is that the allegations made in Mr Warne’s submissions against Chandlers, Mr Treisman and other legal practitioners were serious and unfounded.
Mr Warne’s response to the respondent’s submissions is to reiterate his complaint about the way in which his former lawyer had estimated the costs of the case, noting that the initial estimate was $60,000 but that the cost of the case has been nearly $300,000; and pointing out that Mr Treisman was aware of his limited cash flow.
As explained in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; [1988] FCA 364, indemnity costs may be appropriate when the unsuccessful party “should have known that he had no chance of success” and pressed on regardless. The respondent accepts that allowances must be made in recognition of the difficulties faced by litigants in person. However, the respondent makes the (equally valid) point that account must be taken of the hardship and expense caused by allegations and claims that lawyers would recognise as allegations and claims that could not reasonably (or even properly) be made.
As to the complaint that Mr Warne persisted in raising irrelevant matters, the passages in the appeal judgment to which the respondent refers as examples of this do not greatly assist the respondent’s application.
At [4] of the appeal judgment, what was pointed out was a disconformity between the relief claimed (which included fees for the separate “Dominion” matter not the subject of the appeal) and the pleaded claim. This disconformity is in our view explicable by reference to Mr Warne’s lack of qualifications as a lawyer and can hardly have added greatly to the respondent’s costs of the appeal (it being able to be dealt with by a brief submission). While the complaints made by Mr Warne as to alleged non-compliance by Mr Treisman with his professional costs disclosure obligations or negligence were not appropriately raised on appeal from the District Court judgment, that again is likely to be explicable by reference to Mr Warne’s lack of representation on the appeal. Mr Warne’s apparent lack of appreciation that those matters would more appropriately be raised in a challenge, say, in the course of the costs assessment process (or perhaps by way of a complaint to the legal services commissioner) is likely attributable to unfamiliarity with the legal process. That said, the allegations by Mr Warne of dishonesty are of concern, as explained below.
As to the observations at [11], these again go to the proper forum for complaint as to the costs agreement process, to which we have referred above, and allegations of dishonesty (or a conspiracy of sorts) which we consider below.
The reference by the respondent in its submissions to [25] of the appeal judgment seems to be typographical error, since [25] simply sets out Chandler’s position, as at 3 September 2020, that there be no further financial accommodation for Mr Warne. It does not appear to have anything to do with the alleged raising of irrelevant matters by him.
Apart from the allegations and complaints of dishonesty, the fact that Mr Warne raised matters in the relief sought or submissions on appeal that were not matters raised at first instance nor properly dealt with on his appeal from the decision of the District Court judge goes in our view to his lack of qualifications as a lawyer, and does not of itself bespeak improper conduct on his part. And Mr Warne’s failure to comply with court orders and court rules in relation to the preparation of the appeal books and the like is hardly an uncommon experience when dealing with self-represented litigants to whom some latitude may be extended.
The alternative basis on which indemnity costs are sought is in reliance on a without prejudice offer made by the respondent to Mr Warne on 25 February 2025 in accordance with the principles in Calderbank v Calderbank [1975] 3 All ER 333; 3 WLR 586. The effect of that offer (after correction on 6 March 2025 of what is described as, and clearly must have been, a typographical error) was that the respondent was prepared to accept a discounted amount of its costs of the appeal ($43,000, against anticipated costs of $75,000) if Mr Warne’s appeal was withdrawn.
This offer was made two weeks after the respondent’s submissions had been filed and following the 24 February 2025 letter in which Mr Warne’s attention had been drawn to the poor prospects of the appeal. The offer was left open for acceptance until 7 March 2025 (5 days before the appeal hearing). The respondent submits that, by this stage, Mr Warne was properly able to assess his prospects of appeal. Pausing here, that involves a not obviously well-founded assumption as to Mr Warne’s ability to assess the force of the respondent’s submissions.
The respondent submits that the offer was a genuine compromise in that it was offering a discount on fees to which, if successful, it would have been entitled at least on an ordinary basis, and potentially on an indemnity basis. The respondent argues that the amount of the costs sought was also less than an amount which would be payable on any costs assessment, even on an ordinary basis; being approximately 57% of the respondent’s then anticipated costs. Hence, the respondent submits that the offer was a reasonable compromise which it was unreasonable for Mr Warne not to accept.
As to this alternative basis for an indemnity costs order, the rationale for special costs orders, where a party has not accepted an offer of compromise or Calderbank offer that is more favourable than the ultimate judgment, is that articulated in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721; [1992] NSWCA 721. In summary, those are: 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; to save the public costs necessarily incurred in litigation ultimately found to have been unnecessary; and to indemnify the party making a reasonable offer of compromise because, from the time made, notionally the real cause and occasion of the litigation is the attitude adopted by the party rejecting the offer.
Where the offer is a Calderbank offer (and not an offer of compromise under the rules), it must be established by the offeror that the rejection of it (assuming it embodied a genuine element of compromise) was unreasonable in order to warrant an indemnity costs order.
In considering the reasonableness of the rejection of the offer, one takes into account factors such as the stage of the proceeding at which the offer was received; the time allowed to the offeree to consider the offer; the extent of the compromise offered; the offeree’s prospects of success, assessed as at the date of the offer; the clarity with which the terms of the offer were expressed; and whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it (see [2011] NSWCA 344 where it was noted that relevant factors include those identified by the Court of Appeal in Victoria in (2005) 13 VR 435; [2005] VSCA 298).
**********
Warne
ACN 603 541 411 Pty Ltd trading as Chandlers International Lawyers
(1988) 81 ALR 397
(2005) 13 VR 435
(1992) 27 NSWLR 721
The Court confirmed the appellant must pay the respondent’s costs of the appeal on the ordinary basis; each party was to bear its own costs of the indemnity-costs submissions.
More troubling is the fact that Mr Warne was prone to make serious accusations of misconduct against his former legal representatives. Allegations of dishonesty and the like should not be made lightly (and, where pleaded without a proper basis and found to be without foundation, may well result in an order for indemnity costs). However, this is not a case where such allegations were made in a pleading against the legal practitioners; rather, they were made in written and oral submissions on the appeal. While we do not condone the indiscriminate making of serious allegations of dishonesty, some allowance must be made for the fact that Mr Warne is not legally qualified and clearly feels strongly that he has been poorly treated in the course of the litigation. There can be no doubt that the costs escalated dramatically over the period of the litigation in which Mr Warne was legally represented (although we note that Mr Treisman was at pains to notify Mr Warne in advance of those increases in the estimated fees). Considered in the context of the dispute between Mr Warne and his former lawyer in relation to the quantum of fees, the submissions raising misconduct or dishonesty on the part of the former legal representatives do not in our view warrant an indemnity costs order in respect of the appeal costs.
Finally, as to the conduct of Mr Warne in pursuing the appeal notwithstanding the respondent having drawn his attention to its poor prospects, we note that reliance has been placed by the respondent on Reimers, which was cited in Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 (Quach).
In Reimers, the applicant had sought the Court’s intervention in relation to a determination made by the Medical Tribunal (the Tribunal) on 4 November 2003. The proceedings before the Court in Reimers were not the first in which Mr Reimers had sought the Court’s intervention in relation to the Tribunal’s decision. Mr Reimers initiated an appeal but did not do so until some eight years after the statutory deadline (see Reimers v Health Care Complaints Commission [2012] NSWCA 317). The earlier proceedings were disposed of on the footing that the passage of time warranted exercise of the Court’s discretion against the grant of the relief sought, even if some substantive basis for the grant of the relief had been shown. A further year had passed and the same considerations of prejudice through the passage of time operated even more strongly in favour of the same exercise of discretion. As such the Court was of the opinion that Mr Reimers should have seen that the case was obviously doomed.
In Quach, two notices of motion filed by Mr Quach were dismissed with costs. On two occasions prior to the hearing of these motions, Mr Quach was informed that his chances of successfully obtaining the relief sought in the underlying proceedings for judicial review were most doubtful. On 15 June 2015, the Registrar of the Court of Appeal advised Mr Quach that the Court may not make orders of the kind sought by him. This was also explained by Sackville AJA in proceedings brought in this Court in relation to a challenge to an earlier decision of the New South Wales Civil and Administrative Tribunal (see Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [51]). On 18 June 2015, the solicitor acting for the Health Care Complaints Commission wrote to Mr Quach outlining why the first notice of motion was “misconceived and [would] not be granted by a court”. The Court determined at [11] that while the decision of Mr Quach to file the notices of motion might have been excused on account of his lack of legal expertise, no such allowance should be made after their difficulties were brought to his attention in June 2015. In these circumstances, the Court determined that Mr Quach’s conduct justified an order for the payment of costs on an indemnity basis.
In the present case, what is very clear both from the observations of the primary judge and from our observation of Mr Warne gleaned from his oral submissions in this Court, is that Mr Warne has a firmly held belief in the merit of his claims and a genuine sense of grievance in relation to the costs incurred in the unsuccessful litigation in which his former lawyer (Mr Treisman) acted for him and in relation to his proposed claim in the Dominion matter. However, it cannot be said that he has persistently revisited the same issues (as in Reimers) nor is it clear that judicial scepticism as the merits of his appeal (as opposed to deficiencies in his notice of appeal) was expressed to him in advance of the appeal itself (as in Quach). Indeed, it may be noted that the respondent’s attempt to strike out the claim as an abuse of process prior to the hearing by this Court was unsuccessful.
As a self-represented litigant, it might be expected that Mr Warne would be sceptical of protestations by his opponent as to the lack of merit of his appeal. In any event, we are not persuaded that it would necessarily have been obvious to Mr Warne, as a self-represented litigant, that his appeal was doomed to failure at the outset.
In all the circumstances, we do not consider that an order for indemnity costs should be made on the first basis put forward by the respondent for such an order.
In the present case, addressing those factors, the Calderbank offer that was made allowed a reasonable time for its consideration, it offered a genuine compromise (though only as to costs of the appeal), and it was expressed in relatively clear terms (though there may have been some potential for uncertainty since the appeal itself concerned the question of costs in the form of unpaid fees and the offer when originally sent referred to an amount considerably more than the corrected offer). The offer certainly foreshadowed an application for indemnity costs and it may be accepted that the prospects of success of the appeal were poor (though Mr Warne clearly did not appreciate this).
However, in substance, the offer required complete capitulation by Mr Warne in respect of his appeal. Although there was an element of compromise in the offer in that it reduced the amount of costs that would otherwise be sought if the appeal was dismissed, it effectively required Mr Warne to accept that the prospects of a successful appeal were nil or so negligible as to discontinue his appeal.
In all the circumstances, we do not accept that rejection of the offer was unreasonable so as to warrant indemnity costs. True it is that Mr Warne lost on each of the “grounds” of appeal raised (as the respondent had foreshadowed would be the case). However, this offer required an abandonment of the appeal with a not insignificant payment of costs for the privilege of so doing.