Jay v Baker (No 2); State of NSW (TAFE NSW Previously TAFE Commission) v Baker (No 2)

The case of Jay v Baker (No 2); State of NSW (TAFE NSW Previously TAFE Commission) v Baker (No 2) dealt with a complex web of costs associated with proceedings that had been adjourned multiple times, partly due to the late service of medical reports. The dispute involved two sets of proceedings: the 2015 proceedings between the plaintiff, Jay, and the defendant, Baker, and the 2016 proceedings between the plaintiff and two defendants, Baker and the State of NSW (TAFE NSW). The court was tasked with determining the appropriate allocation of costs related to these adjournments and the handling of an offer of compromise.

The primary legal issues before the court were whether an offer made by the plaintiff constituted a valid offer of compromise under the relevant rules and whether it could be considered a Calderbank offer, which might entitle the plaintiff to costs if the offer was not substantially accepted. The court had to evaluate the nature of the offer, its timing, and its acceptance or rejection by the defendants to decide on the appropriate cost orders.

The court concluded that the offer made by the plaintiff did not qualify as a Calderbank offer because it was not a genuine attempt to compromise the matter and did not meet the criteria for such an offer. Consequently, the plaintiff was not entitled to any costs associated with the offer. The court also varied the previous costs orders, directing that the plaintiff would bear the costs thrown away due to the adjournments in December 2017 and the costs of the costs application heard in November 2018. The defendants were relieved of the obligation to pay the plaintiff's costs for those adjournments.

In summary, the court issued specific orders varying the previous costs orders, ensuring the plaintiff would cover the costs incurred due to the adjournments and the costs application. The defendants were exempted from paying the plaintiff's costs for those particular adjournments. The court allowed the parties to apply within seven days for a different costs order if they disagreed with the current arrangement.