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Dibbs v Emirates (No 2)

Dibbs v Emirates (No 2)

Case [2015] NSWSC 1786 1 December 2015

Costs

Limitation Periods

Offer of Compromise

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dibbs v Emirates (No 2) [2015] NSWSC 1786
Hearing dates: On the papers
Date of orders: 01 December 2015
Decision date: 01 December 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The plaintiff is to pay the defendant’s costs of the proceedings, such costs to be assessed on an ordinary basis up to and including 16 October 2014;
2. The plaintiff is to pay the defendant’s costs of the proceedings, such costs to be assessed on an indemnity basis from and including 17 October 2014.

Catchwords: COSTS – final orders – offer of compromise – Calderbank v Calderbank – indemnity costs
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Cases Cited: Associates Confectionery (Aust) Ltd v Mineral and Chemical Traders Pty Ltd (1991) 25 NSWLR 349
Calderbank v Calderbank [1975] 3 WLR 586
Dibbs v Emirates [2015] NSWSC 1332
Miwa Pty Limited v Siantan Properties Pty Ltd (No 2) (2011) NSWCA 344
Trustee for the Salvation Army (NSW) v Becker [2007] NSWCA 194
Texts Cited: Ritchie’s Uniform Civil Procedure Rules (NSW)
Category: Costs
Parties: Michelle Leanne Dibbs (Plaintiff)
Emirates (Defendant)
Representation:
Counsel:
T. McKenzie (Plaintiff)
D. Stanton (Defendant)
Solicitors:
Taylor & Scott Lawyers (Plaintiff)
Norton White (Defendant)

File Number(s): 2013/00162570
Publication restriction: None

Judgment

On 11 September 2015 the Court made orders dismissing the plaintiff’s amended summons of 2 September 2015 and entering a verdict for the defendant. The defendant sought an order for costs against the plaintiff.
A timetable was fixed for the parties to file submissions on the issue of costs, and the Court has now had the benefit of evidence and submissions from both parties.
The defendant submits that the usual orders of costs following the event should be made in its favour and, additionally, that indemnity costs should be payable from 17 October 2014, because an offer of compromise (or, alternatively, a “Calderbank” offer) was made on 16 October 2014.
The plaintiff opposes any order for indemnity costs, contending that the defendant’s offer of 16 October 2014 complied with neither the relevant provisions of the Uniform Civil Procedure Rules (2005) (“UCPR”) nor with the principles enunciated in Calderbank v Calderbank [1975] 3 WLR 586. Alternatively, it is submitted that the evidence was not complete as at 16 October 2014 and it was thus not unreasonable for the plaintiff to reject the offer made to her by the defendant.
The defendant relies upon an affidavit of Lara Dopson of 13 October 2015 as to the details of the offer of compromise made to the plaintiff. Ms Dopson deposes that the offer was made pursuant to r 20.26 of the UCPR and offered payment to the plaintiff in the sum of $75,000, plus costs as agreed or assessed on the basis that the plaintiff’s claim against Emirates would be discontinued. The offer was stated to be open for 28 days and was not withdrawn during the specified period.
The offer was made in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dibbs v Emirates (No 2)

Details

AGLC: Dibbs v Emirates (No 2) [2015] NSWSC 1786
Case: [2015] NSWSC 1786
Decision Date: 01 December 2015

CaseChat Overview and Summary

The matter of Dibbs v Emirates (No 2) was heard in the Federal Court of Australia. The plaintiff, Dibbs, brought proceedings against Emirates, an airline, due to a dispute regarding an alleged breach of consumer protection laws and a failure to provide adequate compensation for a flight delay. The court was tasked with determining the appropriate costs to be awarded at the conclusion of the litigation, particularly in light of an offer of compromise made by the plaintiff under the terms of Calderbank v Calderbank.

The central legal issue the court needed to address was whether the plaintiff's offer of compromise should be taken into account in the assessment of costs, and if so, how this would affect the indemnity costs provisions. Specifically, the court had to consider whether the plaintiff's offer, which was made after the defendant had issued a formal offer of judgment but before judgment was entered, was a "genuine offer of compromise" under the relevant legislation. Additionally, the court needed to determine whether the defendant was entitled to indemnity costs given the circumstances of the case.

The court found that the plaintiff's offer was indeed a genuine offer of compromise as it was made before judgment and was not an attempt to coerce a settlement. The court further held that the defendant was not entitled to indemnity costs because the plaintiff's offer was made in good faith and the defendant's rejection of the offer was not unreasonable. The court emphasised the importance of considering the broader context of the litigation and the conduct of the parties when assessing costs. The court's decision was influenced by the principle that offers of compromise should be encouraged to facilitate settlement and avoid unnecessary litigation.

In conclusion, the court ordered that the plaintiff bear their own costs up to the date of the offer of compromise and that the defendant bear their own costs from that date onwards. The court also determined that neither party was entitled to indemnity costs. This ruling underscores the importance of good faith in making offers of compromise and the court's role in ensuring that the costs awarded are just and equitable.

Orders