Gilberg v Maritime Super Pty Ltd (No. 2)

The case of *Gilberg v Maritime Super Pty Ltd (No. 2)* concerned an appeal before the Full Court of the Federal Court of Australia, comprising Allsop P, Hodgson and Campbell JJA. The dispute revolved around the costs orders made at first instance and on appeal, following a successful appeal by the appellant, although the relief ultimately obtained was substantially less than originally sought. The appellant had initiated proceedings because the respondent repeatedly refused to reconsider the appellant's claim for a Total and Permanent Disablement (TPD) benefit.

The primary legal issues before the Full Court were whether the costs orders at first instance and on appeal should follow the event, and if not, what alternative orders were appropriate. Specifically, the court considered the appellant's submission that proceedings were necessary due to the respondent's refusal to reconsider the claim, and the respondent's argument that a settlement offer made during negotiations, which included the original benefit amount but excluded interest and costs, should influence the costs outcome. The court also had to determine the reasonableness of the appellant's pursuit of interest and costs during settlement discussions.

The Full Court reasoned that while the appellant was successful on appeal, the relief obtained was less than initially sought. The court noted that the respondent had made a settlement offer that included the original benefit amount, albeit without interest or costs. However, the court found that the appellant's claim for interest at the time of settlement negotiations was unreasonable, given the specific rules governing the fund and the timing of entitlement. Despite the appellant's success in compelling reconsideration, the court determined that the appellant's conduct regarding settlement negotiations, particularly the pursuit of interest, warranted a departure from the usual costs order at first instance.

Consequently, the Full Court ordered that there be no order as to costs at first instance, meaning each party was to bear its own costs. However, the respondent was ordered to pay the appellant's costs of the appeal.