Kerle v BM Alliance Coal Operations Pty Ltd (No 2)

The case of Kerle v BM Alliance Coal Operations Pty Ltd (No 2) involved the plaintiff, Mr Kerle, who had successfully sued the defendants for damages. The amount of damages had been previously agreed upon between the parties. The court was tasked with resolving disputes regarding the appropriate costs orders and the basis on which the plaintiff's costs should be awarded. The plaintiff sought indemnity costs on the basis of the defendants' alleged imprudent rejection of settlement offers, a well-recognised ground for such an award. The defendants, however, argued that the plaintiff's costs should be on the standard basis. Additionally, the court needed to determine whether the costs should be apportioned according to the defendants' liability and whether the certification for senior and junior counsel should cover the entire proceedings or just the trial.

The court examined the distinctions between mandatory final offers made under statutory regimes and Calderbank offers, recognising that the former are not generally considered in determining costs on the indemnity basis. The court also considered the defendants' offers to each other and the plaintiff, which were all nil amounts. The court found that the plaintiff was entitled to indemnity costs unless the third defendant could show that a different order was appropriate. The court concluded that the plaintiff was entitled to indemnity costs from the first and second defendants and standard costs from the third defendant. The costs were to be apportioned according to the defendants' liability, and the certification for senior and junior counsel was to cover the whole of the matter.

The court's final orders were to be in accordance with the draft initialled by the judge and attached to the reasons for judgment. This comprehensive resolution ensured that the plaintiff received the costs he was entitled to, based on the established legal principles and the specific circumstances of the case.