Commonwealth of Australia v Ryan (No 2)

The Commonwealth of Australia appealed a decision of the Federal Court of Australia. The respondent, Mr. Ryan, had made a *Calderbank* offer prior to the appeal hearing. The appeal was ultimately dismissed by the Full Federal Court. Following the dismissal, the Commonwealth applied for indemnity costs.

The central legal issue before the Full Federal Court was whether the Commonwealth should be awarded indemnity costs, notwithstanding the dismissal of its appeal, by reason of Mr. Ryan's *Calderbank* offer. The court was required to consider the nature of the offer and whether it demonstrated a genuine element of compromise that would justify departing from the usual order for costs.

The court reasoned that a *Calderbank* offer, to attract indemnity costs, must contain a real element of compromise. In this instance, the court found that Mr. Ryan's offer did not present a genuine compromise, but rather was framed in a way that did not facilitate settlement. Consequently, the court determined that the circumstances did not warrant an award of indemnity costs. The application for indemnity costs was therefore dismissed.