Buljat v Coles Supermarkets Australia Pty Ltd (No 2)

The Supreme Court of the Australian Capital Territory considered the costs of proceedings following an appeal by Ms Buljat against the dismissal of her personal injury claim. The Court of Appeal had previously allowed Ms Buljat's appeal, entering judgment in her favour and ordering that she receive costs, subject to written submissions on the specific orders. The dispute centred on the effect of a pre-trial offer of compromise and a Calderbank offer made by the respondent, Coles Supermarkets Australia Pty Ltd, on the costs of both the original proceedings and the appeal.

The legal issues before the Court were whether the respondent's pre-trial offer of compromise and Calderbank offer should influence the costs orders for the trial, and whether these offers should also apply to the costs of the appeal. Specifically, the respondent sought indemnity costs from the date of its offers, arguing that the appellant's failure to accept them was unreasonable, while the appellant contended that the rules-based offer of compromise should take precedence over the Calderbank offer and that the appeal should be treated as separate proceedings.

The Court reasoned that in the context of the Court Procedures Rules 2006 (ACT), offers of compromise made in accordance with the rules should be given effect over Calderbank offers, as the former are specifically designed to encourage settlement within the court process. The Court found no basis to attribute a more favourable cost consequence to the Calderbank offer than to the identical offer of compromise, particularly given the policy behind the rules in personal injury cases. Regarding the appeal, the Court followed established authority, including *Koundouris v The Owners - Units Plan No 1917 (No 2)*, holding that offers of compromise made in the primary proceedings do not automatically extend to the costs of a subsequent appeal unless specifically provided for or re-offered.

Consequently, the Court ordered that the respondent pay the appellant's costs of the proceedings below up to and including 4 January 2022, with no order as to costs thereafter. The respondent was also ordered to pay the appellant's costs of the appeal.