Martinero v Comiskey Management Services Pty Ltd - [2023] FCA 1184

FEDERAL COURT OF AUSTRALIA
Martinero v Comiskey Management Services Pty Ltd [2023] FCA 1184

File numbers: QUD 413 of 2022
NSD 999 of 2022

Judgment of: THOMAS J

Date of judgment: 6 October 2023

Catchwords: COSTS – costs of discontinued proceedings – application for indemnity costs – where proceedings have not progressed – where a Calderbank offer was made – whether the refusal of the Calderbank offer was unreasonable – whether conduct of the applicants flouting the norm by which litigation is normally conducted – order for costs on a party and party basis – indemnity costs not made

Legislation:
Disability Discrimination Act 1992 (Cth)

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:
Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246

Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (No 4) [2009] FCA 803

Calderbank v Calderbank [1975] 3 All ER 333

Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905

Drury v Andreco-Hurll Refractory Services Pty Ltd [2004] FMCA 398

FAIRA Aboriginal Corp v Minister for Aboriginal and Torres Strait Island Affairs [2002] FCA 9

Low v Australian Tax Office (unreported, Federal Magistrates Court of Australia, Driver FM, 23 October 2000)

MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236

Muradian v Jones Lang Lasalle (Qld) Pty Limited [2023] FCA 165

ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270

Ryan v Primesafe (2015) 323 ALR 107; [2015] FCA 8

Travaglini v Raccuia [2012] FCA 620

Zhao v Ausin Group (Australia) Pty Ltd (No 2) [2023] FCA 498

Division: General Division

Registry: Queensland
New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 40

Date of hearing: Determined on the papers

Solicitor for each Applicant: Mr L Humphries of JKR Lawyers

Solicitor for the Respondent: Mr L Gapes of Carter Newell Lawyers

ORDERS

QUD 413 of 2022

BETWEEN:
ANNETTE MARTINERO

Applicant

AND:
COMISKEY MANAGEMENT SERVICES PTY LTD TRADING AS SANDSTONE POINT HOTEL & FUNCTION CENTRE

Respondent

ORDER MADE BY:

THOMAS J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs on a party and party basis, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

NSD 999 of 202

BETWEEN:
JOHN MARTINERO

Applicant

AND:
COMISKEY MANAGEMENT SERVICES PTY LTD TRADING AS SANDSTONE POINT HOTEL & FUNCTION CENTRE

Respondent

ORDER MADE BY:

THOMAS J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs on a party and party basis, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
THOMAS J:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 1184
Decision Date: 6 October 2023

CaseChat Overview and Summary

Martinero and others brought proceedings against Comiskey Management Services Pty Ltd in the Federal Court. They sought leave to discontinue the proceedings, which was granted subject to the resolution of a costs application. The dispute concerned whether the applicants should be ordered to pay the respondent's costs and whether the applicants were entitled to indemnity costs. The applicants had brought a series of related proceedings, which were not consolidated. The respondent made a Calderbank offer, proposing to forgo its right to recover costs in return for the proceedings being discontinued. The applicants did not accept the offer and instead made their own settlement offers. The proceedings were discontinued before trial.

The court had to decide whether the refusal of the Calderbank offer was unreasonable and whether the applicants' conduct flouted the norms of litigation. The court found that the Calderbank offer was reasonable, and the applicants' refusal to accept it was unreasonable. The court also found that the applicants' conduct in making their own settlement offers was not so egregious as to justify an order for indemnity costs. The court held that the applicants should pay the respondent's costs on a party and party basis.

The Federal Court ordered that the applicants pay the respondent's costs on a party and party basis. The court did not order the applicants to pay indemnity costs, finding that their conduct, while not exemplary, did not warrant such a penalty. The court's order reflects the principles of proportionality and fairness in litigation costs. The applicants are required to pay the respondent's costs in accordance with the terms of the order, which may be agreed upon or taxed by the court.

Orders

Orders of the court

1. The applicant pay the respondent’s costs on a party and party basis, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

During a case management hearing on 2 August 2023, the applicants sought leave to file notices of discontinuance. Orders were made granting the applicants leave to file the notices of discontinuance subject to the filing of submissions on the question of costs.BACKGROUND On 22 November 2022, the applicants filed originating applications and statements of claim in separate proceedings. The applicants joined with 33 other applicants to bring an interlocutory application to have the various proceedings consolidated (the Consolidation Application). The Consolidation Application was heard before Logan J on 1 February 2023 and the respondent appeared as an interested party. The Consolidation Application was dismissed and an order was made that the respondent’s costs (as an interested party) be “that interested party’s costs in the interested parties’ respective proceedings in any event” (Muradian v Jones Lang Lasalle (Qld) Pty Limited [2023] FCA 165). Following the dismissal of the Consolidation Application, on 2 February 2023, the applicants’ solicitors wrote to the respondent’s solicitors suggesting that the proceedings be stayed pending the outcome of the Muradian v Jones Lang Lasalle (Qld) Pty Limited proceeding (the Muradian proceeding) before Logan J. The parties did not approach the Court seeking a stay of the proceedings, nor does there seem to be any express agreement that the proceedings were stayed pending the outcome of the Muradian proceeding, but the parties appear to have proceeded as though the proceedings were stayed. On 7 February 2023, the respondent’s solicitors sent a letter by email to the applicants’ solicitors and expressed the view that the applicants’ claim would fail and offered to resolve the proceedings on the basis that the respondent would forgo its right to recover the costs of the Consolidation Application (the Calderbank offer). The respondent denied the allegations of the applicants, noting that it was standard policy at the venue to allow any person entry if the person informed door staff that they had a medical condition which prevented that person from wearing a mask and that the venue did not have any record of the applicants attending on the relevant date. The letter was marked “Without prejudice save as to costs” and purported to be made subject to the principles in Calderbank v Calderbank [1975] 3 All ER 333 (Calderbank). The Calderbank offer was accompanied by a Deed of Settlement which has not been provided to the Court. The offer was specified to lapse on 21 February 2023. On 15 February 2023, the applicants’ solicitors sent an email to the respondent’s solicitors seeking to resolve the proceedings by payment to each applicant of the sum of $10,000 plus costs. On 28 March 2023, the applicants’ solicitors again wrote to the respondent’s solicitors repeating the offer of 15 February 2023. On 17 May 2023, the Muradian proceeding before Logan J was discontinued by consent without a trial.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File numbers:	QUD 413 of 2022 NSD 999 of 2022
Judgment of:	THOMAS J
Date of judgment:	6 October 2023
Catchwords:	COSTS – costs of discontinued proceedings – application for indemnity costs – where proceedings have not progressed – where a Calderbank offer was made – whether the refusal of the Calderbank offer was unreasonable – whether conduct of the applicants flouting the norm by which litigation is normally conducted – order for costs on a party and party basis – indemnity costs not made
Legislation:	Disability Discrimination Act 1992 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112 Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 5) (2021) 151 ACSR 26; [2021] FCA 246 Brookfield Multiplex Limited v International Litigation Funding Partners Pte Ltd (No 4) [2009] FCA 803 Calderbank v Calderbank [1975] 3 All ER 333 Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd [2018] FCA 905 Drury v Andreco-Hurll Refractory Services Pty Ltd [2004] FMCA 398 FAIRA Aboriginal Corp v Minister for Aboriginal and Torres Strait Island Affairs [2002] FCA 9 Low v Australian Tax Office (unreported, Federal Magistrates Court of Australia, Driver FM, 23 October 2000) MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 70 FCR 236 Muradian v Jones Lang Lasalle (Qld) Pty Limited [2023] FCA 165 ONE.TEL Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Ryan v Primesafe (2015) 323 ALR 107; [2015] FCA 8 Travaglini v Raccuia [2012] FCA 620 Zhao v Ausin Group (Australia) Pty Ltd (No 2) [2023] FCA 498
Division:	General Division
Registry:	Queensland New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	40
Date of hearing:	Determined on the papers
Solicitor for each Applicant:	Mr L Humphries of JKR Lawyers
Solicitor for the Respondent:	Mr L Gapes of Carter Newell Lawyers

ORDER MADE BY:	THOMAS J
DATE OF ORDER:	6 OCTOBER 2023