Fred Saad v State of New South Wales; Ashley Saad v State of New South Wales (No 2)

In the Federal Court, the plaintiffs, Fred Saad and Ashley Saad, sought costs against the State of New South Wales. The dispute arose from the aftermath of a tragic incident where Fred Saad's brother, who had been unlawfully detained by police, died in custody. The plaintiffs had previously obtained orders for costs against the State in relation to this incident. The current proceedings focused on the apportionment of costs among multiple parties with varying degrees of success, and the consideration of an offer of compromise.

The court was required to determine the appropriate allocation of costs given the complex litigation history and the differing outcomes for the parties. Specifically, the court needed to assess how the offer of compromise, made by the State, should affect the costs order. The offer, which was not accepted by the plaintiffs, was made at a stage when the outcome of the proceedings was uncertain, and it needed to be evaluated against the final result.

The court held that while the offer of compromise was not accepted, it was a factor to consider in the final costs order. The court recognised the plaintiffs' overall success in the proceedings and took into account the State's partial success. The court decided that the plaintiffs were entitled to a proportion of their costs from the State, reflecting the balance of success in the case. The final order recognised the State's contribution to the costs but also the plaintiffs' predominant success in achieving their objectives.