Escobar v Rainbow Printing Pty Ltd (No. 3)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ESCOBAR v RAINBOW PRINTING PTY LTD (No. 3) [2002] FMCA 160

PRACTICE AND PROCEDURE – Exercise of liberty to apply – extension of the appeal period.

COSTS – Assessment of costs.

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)

Cooke v Plauen Holdings Pty Limited [2001] FMCA 91
Shiels v James [2000] FMCA 2

Applicant: SANDRA ESCOBAR

Respondent: RAINBOW PRINTING PTY LTD

File No: SZ583 of 2001

Delivered on: 30 July 2002

Delivered at: Sydney

Hearing Date: 30 July 2002

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr S Beckett

Solicitors for the Applicant: Kingsford Legal Centre

Counsel for the Respondent: Mr R Moore

Solicitors for the Respondent: John H Maait & Co

ORDERS

1. The respondent is to pay the applicant’s costs and disbursements of the application, fixed at $12,000.

2. Time for appeal for either party from the principal judgment, delivered on 5 July 2002, be extended for 21 days from 30 July 2002, pursuant to Order 52, rule 15(1)(a)(iii) of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ583 of 2001

SANDRA ESCOBAR

Applicant

And

RAINBOW PRINTING PTY LTD

Respondent

REASONS FOR JUDGMENT

1. I have before me for ex tempore judgment an application for costs by the applicant, Sandra Escobar, in the principal proceedings which were dealt with by me by judgment delivered on 5 July 2002.  The applicant is exercising liberty to apply granted by me on that day, in respect of costs.  The application for costs is put on the basis that costs should follow the event and that the applicant has been wholly successful in the proceedings.  An order for costs is resisted by the respondent on the grounds that the outcome for the applicant was a modest order for damages in the sum of $7,325.73 plus an apology, whereas the application pursued by the applicant would, if granted in full, have produced a damages award in the order of $60,000. 

2. Mr Moore, for the respondent, tendered a series of documents which formed exhibit R1 for the purposes of the costs application, which detailed a history of negotiations between the parties concerning the principal application.  It is apparent from those documents that an initial offer was made on 8 June 2001 by the respondent to settle the proceedings for $3,000.

3. Subsequently, at a conciliation conference, the applicant offered to settle the proceedings for $18,000 and that was subsequently reduced by letter dated 21 August 2001 to an offer in the sum of $15,000 from the applicant.  Finally, on 28 February 2002 the respondent, through its solicitors, made a settlement offer of $5,000, with each party to bear their own costs.  No offer was made by the respondents which could satisfy the conditions necessary to establish a Calderbank offer for the purposes of this costs application, noting that the applicant has achieved an outcome better than either of the offers made by the respondent.  I also take into account that the applicant showed a willingness…