FD v State of New South Wales & 2 Ors; Armidale & District Women's Centre v Waters (Costs)

The case involves a plaintiff, FD, and the State of New South Wales, along with two other defendants. The plaintiff sought damages for alleged abuse and emotional harm experienced during a previous legal proceeding. The matter was heard in the Supreme Court of New South Wales. The plaintiff's claim was ultimately unsuccessful, and the defendants sought indemnity costs under section 83 of the Supreme Court Act 1970. The plaintiff sought to have the defendants' costs application dismissed, arguing that the letter they had provided to the plaintiff did not constitute a Calderbank offer.

The court had to determine whether the letter sent by the defendants to the plaintiff was a genuine Calderbank offer. If it was, then the court would need to consider the circumstances in which indemnity costs should be awarded under section 83 of the Supreme Court Act 1970. The court examined the contents of the letter and the circumstances surrounding its delivery, including whether the offer was made in good faith, whether the plaintiff had a reasonable prospect of success, and whether the defendants' costs application was just and equitable in all the circumstances.

The court found that the letter did not constitute a Calderbank offer as it did not meet the criteria set out in the relevant case law. The court held that the letter was not made in good faith as it was sent after the plaintiff had already served their statement of claim, and there was no evidence to suggest that the defendants had considered the merits of the plaintiff's claim before making the offer. The court also found that the plaintiff had a reasonable prospect of success, and that the defendants' costs application was not just and equitable in all the circumstances. As a result, the court refused the defendants' application for indemnity costs.

The court ordered that the defendants pay the plaintiff's costs of the proceeding in the Supreme Court up to the hearing of the costs application, and that the plaintiff pay the defendants' costs of the proceeding in the Supreme Court from the hearing of the costs application to the conclusion of the proceeding. The court also ordered that the plaintiff pay the defendants' costs of an appeal to the Court of Appeal, and that the defendants pay the plaintiff's costs of the appeal.