Moore v State of New South Wales (No 2)

[2025] NSWSC 1260

Supreme Court

New South Wales

Medium Neutral Citation:

Moore v State of New South Wales (No 2) [2025] NSWSC 1260

Hearing dates:

17 October 2025

Date of orders:

17 October 2025

Decision date:

17 October 2025

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   Set aside the costs order made on 12 September 2025.

(2)   Order that the defendant pay the plaintiff’s costs as agreed or assessed, limited to 88% of those costs.

(3)   No order as to costs in respect of this application.

Catchwords:

COSTS – offers of compromise – Calderbank offers – UCPR rr 20.26 and 20.29 – where offer of compromise made by defendant not in proper form – need to specify essential terms of offer if relying on Calderbank

COSTS – variation of costs order – UCPR r 42.34 – whether proceedings could have been commenced in the District Court – commencement and continuation of proceedings in the Supreme Court warranted – pursuit of unmeritorious issues – reduction of plaintiff’s costs by a percentage

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 20.29, 42.14(2), 42.34, 42.34(2)

Cases Cited:

Calderbank v Calderbank [1975] 3 All ER 333

Daynes v I-MED Central Queensland Pty Ltd; I-MED Central Queensland Pty Ltd v Daynes [2025] NSWCA 150

Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Luke Brett Moore (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
D Campbell / D Woodbury (Plaintiff)
A Williams (Defendant)

Solicitors:
Foott Law & Co. Solicitors (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2022/00053460

Publication restriction:

Nil

REVISED EX TEMPORE JUDGMENT

1. On 12 September 2025, I entered judgment for the plaintiff for the sum of $456,160. I also ordered that the defendant pay the plaintiff’s costs.

2. Pursuant to a motion filed on 26 September 2025, the defendant seeks a variation of that costs order to the effect that there be no order as to the costs of the proceedings until 19 April 2024, with the plaintiff to pay the defendant’s costs of the proceedings on an indemnity basis thereafter. Further, the defendant seeks an order that it be relieved of its obligation to pay the judgment debt to the plaintiff, pending determination of this application or until further order of the court.

3. On the hearing of the application today, Mr Campbell of Senior Counsel appears with Mr Woodbury for the plaintiff, and Mr Williams appears for the defendant.

4. There is no application by the plaintiff for any alteration or variation of the orders made on 12 September 2025. I received helpful written submissions from the defendant, and both parties provided oral submissions.

5. In support of its application, the defendant relies on the affidavit of its solicitor, Sarah Therese Ryan, affirmed 20 September 2025. The plaintiff relies on an affidavit of its solicitor, Joseph Anthony Fahey, dated 16 October 2025. Exhibited to these affidavits are various offers and other correspondence between the parties relevant to the issues ventilated today.

6. There are really three parts to the defendant’s application for a variation of the cost order, being:

1. On 19 April 2024, the defendant served an Offer of Compromise in the sum of $480,000, accompanying which was a letter dated 19 April 2024, in which the defendant also relied on the principles set out in Calderbank v Calderbank [1975] 3 All ER 333 (“Calderbank”). The defendant submits that the amount of the judgment sum is less than the offer made on 19 April 2024, and thus, the costs orders should be varied in accordance with the Offer of Compromise and/or Calderbank principles;

2. The plaintiff did not recover more than the sum of $500,000 and, in those circumstances, r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) is enlivened such that the defendant should not be ordered to pay the plaintiff’s costs; and

3. The plaintiff did not succeed on a part of its claim, being the case pursued against Sergeant Comer, and the defendant should not be ordered to pay the plaintiff’s costs in respect of that part of the case.

7. Further, the defendant asserts that should there be a variation of the costs order and should it be entitled to recover costs from the plaintiff, I should make orders effectively staying the judgment, that is, not requiring the defendant to pay the judgment sum or a part thereof, until such time as the various issues relating to costs have not only been resolved, but the plaintiff has paid any costs which he might be liable pay the defendant.

8. I will deal with each of these issues.

The settlement offer

9. On 19 April 2024, the defendant made an offer in the following terms:

“The defendant offers to compromise the whole of these proceedings on the following terms:

1   By paying the plaintiff the sum of $480,000.

2   This offer shall be open for acceptance for a period of 28 days only and is thereafter withdrawn.

3 This offer is made in accordance with Part 20 Rule 20.26 of the Uniform Civil Procedure Rules 2005.”

10. Accompanying that Offer of Compromise of 19 April 2024 was a letter of 19 April 2024, in which the solicitors for the defendant sought to rely on Calderbank v Calderbank [1975] 3 All ER 333. The Calderbank offer stated:

“If for any reason the defendant’s offer is found not to be made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005, the defendant reserves its right to tender this letter and the enclosed offer on any application for costs.”

11. The defendant says that because the plaintiff recovered less than the judgment sum, the ordinary Offer of Compromise rules apply.

12. The plaintiff resists this application on a number of grounds. Firstly, the plaintiff says that the Offer of Compromise was not in proper form, and thus, the defendant cannot rely on that offer. In this regard, the plaintiff relies on what was said by the Court of Appeal in Mount Arthur Coal Pty Ltd v Duffin [2021] NSWCA 49 at [78]-[83].

13. The plaintiff says that the offer did not comply with r 20.26 of the UCPR because it does not make reference to what orders the Court would make if the offer were accepted. In Mount Arthur Coal Pty Ltd v Duffin, Payne JA observed at [80] that the absence of any specification as to what orders the Court would make if the offer was accepted was a critical issue left unresolved by the terms of the offer. His Honour found that, by reason of this critical omission, there was no offer made under r 20.26 of the UCPR capable of engaging r 42.14(2) of the UCPR, that is, the costs provisions.

14. Mr Williams formally submitted that, for reasons he identified, in particular r 20.29 (which was not considered in Mount Arthur Coal Pty Ltd v Duffin), the decision in Mount Arthur Coal Pty Ltd v Duffin was wrong. However, he acknowledged that, subject to there being some basis on which I could distinguish what is said in Mount Arthur Coal Pty Ltd v Duffin, I must follow it.

15. It is true that the Court did not consider r 20.29 in Mount Arthur Coal Pty Ltd v Duffin, but I do not accept that r 20.29 necessarily has the significance that Mr Williams submits.

16. In the circumstances, as the defendant’s Offer of Compromise was not in a form which complied with the rules, it has no significance in terms of this application.

17. Unlike in Mount Arthur Coal Pty Ltd v Duffin, the defendant advances an alternative submission for indemnity costs based on the principles set out in Calderbank. This is because in its letter of 19 April 2024, it made specific regard to that alternative basis.

18. The plaintiff’s response is to again point to deficiencies in the Calderbank offer. The plaintiff submits that the offer was not capable of acceptance or was vague and did not deal with essential terms because it makes no reference to who would be paying the costs or to what orders the Court might be making to finalise the proceedings. The plaintiff also resists the application of the Calderbank principles on the basis that it was not unreasonable for him not to have accepted the offer at the time when it was made, that is, as of 19 April 2024.

19. The plaintiff says that he was entitled to pursue the proceedings to re-establish his reputation, relying on what was said in Daynes v I-MED Central Queensland Pty Ltd; I-MED Central Queensland Pty Ltd v Daynes [2025] NSWCA 150 (“Daynes”) at [185] and following. In Daynes, the Court overturned part of an order I made on the basis that my reasoning in my costs judgment did not specify that I had had regard to the submission of the plaintiff that it was not unreasonable for him to reject an offer made in his favour because he wished to pursue the matter to hearing to re-establish his reputation. The Court then went on to consider the issue afresh and accepted that it was not unreasonable for the plaintiff to have not accepted the offer having regard to the importance of his reputation at that time. Daynes involved a medical practitioner’s employment being terminated in part because of an instance of alleged sexual harassment. I found that whatever had happened was not sexual harassment.

20. In considering an application for costs pursuant to a Calderbank offer, it is necessary to take a practical approach. Mr Campbell submitted that the plaintiff would not be able to accept the offer because he would not know what would happen with the proceedings. That is, whether he would obtain a judgment in his favour or whether the defendant might be contemplating a deed or some other order.

21. Whilst it is correct to say that the Calderbank offer does not specify what would happen to the proceedings, unlike the Offer of Compromise rules, in assessing the terms of a Calderbank offer, the usual term would be implied into the offer.

22. I reject the plaintiff’s submission that if the plaintiff had accepted the defendant’s Calderbank offer made on 19 April 2024, he would not have known whether he was getting a judgment or the defendant might be suggesting a deed.

23. In circumstances in which a defendant offers to pay a sum of money to the plaintiff in settlement of a case, absent any specification by the defendant that the defendant might be seeking some other means of bringing the proceedings to an end, it would be implied that the plaintiff would be entitled to a judgment in his favour.

24. This is because any settlement must enable the plaintiff to enforce the settlement. The defendant could hardly offer to enter into an agreement with the plaintiff to settle the matter by means of a payment of a sum of money to the plaintiff then refuse to sign terms by which the proceedings can come to an end.

25. Mr Campbell says that the defendant might have wanted a deed, but if the plaintiff had accepted the defendant’s offer, the agreement entered into between the parties at that time could not have included the obligation of the plaintiff to enter into a deed on terms yet to be specified by the defendant. Thus, I do not accept the submission that the Calderbank offer was not capable of acceptance for the same reason that the Notice of Offer of Compromise was not in proper form.

26. However, there is another basis on which the plaintiff asserts that the offer was not capable of acceptance. That is, it did not specify the payment of costs. The offer made by way of Offer of Compromise did not make any reference to costs. That is obviously because of the rules relating to Offers of Compromise at that time.

27. However, once the defendant decided to rely on that same offer in the alternative, it was necessary for any offer to deal with the question of costs. Again, by way of example, assuming that a party who made such an offer, such as the defendant, declined to actually pay the sum, it may be that the plaintiff would be entitled to enforce the agreement and obtain a judgment in his favour. However, on the face of the offer, there is no indication whether the defendant would be paying the plaintiff’s costs or whether the offer is plus costs.

28. The defendant does not have the benefit of the Offer of Compromise rules in adding meaning to the offer. To the extent that a party seeks to rely on the principles set out in Calderbank, it is necessary for that party to specify the essential terms of the offer, subject to any terms which might be implied.

29. In the circumstances, I accept the submission made on behalf of the plaintiff that absent any offer in respect of costs, that is, whether the offer was inclusive or plus costs, the plaintiff was not in a position to accept the offer. The onus is on the party making the offer to establish that it was unreasonable for the other party to have not accepted the offer. In circumstances in which the offer did not deal with the question of costs, the defendant has not established that it was unreasonable for the plaintiff not to have accepted the offer.

30. For completeness, I do not accept the other submissions made by the plaintiff relating to unreasonableness. In my view, the plaintiff was in a position to have accepted and understood the offer, leaving aside the question of costs, at that time if he wished to. Almost all of the evidence had been served, the issues had been defined, and of course, the plaintiff himself was making offers of sums not much higher than this amount a little while later.

31. However, having regard to my finding about the terms of the offer, the defendant is not entitled to rely on the offer for the purposes of costs, either as an Offer of Compromise or pursuant to Calderbank.

The judgment was less than $500,000

32. The second issue raised by the defendant is that the plaintiff recovered less than $500,000. The defendant relies on r 42.34 of the UCPR which is the following terms:

Costs order not to be made in proceedings in Supreme Court unless Court satisfied proceedings in appropriate court

(1) This rule applies if--

(a) in proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and

(b) the plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants.

(2) If the proceedings could have been commenced in the District Court, an order for costs must not be made unless the Supreme Court is satisfied that the commencement and continuation of the proceedings in the Supreme Court was warranted.

33. The effect of the defendant’s submissions is that these proceedings could have been commenced in the District Court, as set out in r 42.34(2), and I would not be satisfied that the commencement and continuation of the proceedings in the Supreme Court was warranted.

34. I do not accept the defendant’s submission in respect of r 42.34.

35. Whilst, as I have said in the judgment, there was an overreach on the part of the plaintiff in terms of the police officers identified who were said to have been guilty of malicious prosecution and I did not accept a substantial component of the plaintiff’s claim, it is important not to consider the application of r 42.34 in hindsight.

36. In determining whether the commencement and continuation of the proceedings in the Supreme Court was warranted, I must have regard to the nature of the claims pursued by the plaintiff and the potential damages sought. If those claims were so obviously untenable and bound to fail, the position would be somewhat different but, in this case, the basis of the plaintiff’s extensive claim for damages was really that he suffered from long-term psychiatric problems referrable to the tortious conduct of the defendant, and he would have been taking up work as a solicitor with the potential to earn a significant income if not for the conduct of the defendant.

37. At least to a certain extent, I did not accept either of those claims, but it cannot be overlooked that at least until the joint report and the giving of oral evidence, his claim for a long-term psychiatric injury was supported by Dr Allnut. Further, he had completed his law degree and all that remained was for him to apply for admission. Again, it is not necessary to speculate on why he had not applied for admission, but this is not a case where a plaintiff was putting forward some fanciful proposition that he wanted to be a solicitor without even embarking upon a course of training. He had passed his course. It was not fanciful to suggest that he might have become a solicitor, albeit I did not accept that he would have been admitted.

38. In these circumstances, I consider that the commencement and continuation of these proceedings in the Supreme Court was warranted, and I reject the defendant’s contentions under r 42.34.

39. As I will not be making an order for costs in favour of the defendant, it is unnecessary to further consider the defendant’s contention that I should in some way be staying payment of the judgment until such time as the issue of costs has been resolved.

Pursuit of unmeritorious issues

40. As I said in the judgment, the case against Sergeant Comer was a complete overreach. It was unnecessary. It plainly caused Sergeant Comer considerable distress. In my view, contrary to the submissions of the plaintiff at the time, success would have added little to the damages recoverable by the plaintiff. There was a hint in the pursuit of Sergeant Comer of a desire on the part of the plaintiff to obtain orders about the conduct of as many police officers as possible involved in the events which occurred.

41. I have a broad discretion in respect of costs. In my view, the plaintiff should not be recovering any costs in respect of any issue relating to the involvement of Sergeant Comer in these proceedings, and indeed, the plaintiff should be paying the defendant’s costs in respect of any issue relating to Sergeant Comer. The reality is that the defendant admitted liability prior to the commencement of these proceedings and pursuit of Sergeant Comer was completely unnecessary.

42. The second aspect of the defendant’s point relates to the obtaining and serving of expert reports without permission of the Court, which ultimately were rejected or not relied upon. Again, I have concerns as to the conduct of the plaintiff in that regard, particularly as pointed out by the defendant, the matter was being case managed by Chen J and no reference was made by the plaintiff to obtaining the report of Dr Parry.

43. The question arises as to what orders should be made having regard to these two matters. The defendant submits that there should be a reduction in the plaintiff’s costs of 25%.

44. I do not accept that. However, I consider that the appropriate way to deal with this matter is to assess to what extent the hearing, the preparation for the hearing, and amendments to pleadings were unnecessarily incurred because of the two matters to which I have referred. The plaintiff submits that if I were to accede to the defendant’s requests, the reduction might only be in the order of 5% (not that the plaintiff accepts there should be any reduction). In my view, much of the court time and costs associated with this matter were taken up with damages issues. If I was required to apportion, I would accept that at least 50% of the hearing time and the costs were taken up with damages issues.

45. That leaves the question of liability. The defendant admitted liability in respect of the conduct of Constable Keneally, but denied liability in respect of the conduct of Sergeants Felgate and Comer. Plainly, as the defendant admitted liability in respect of Senior Constable Keneally, albeit late in the piece, not much of the hearing time was taken up with dealing with evidence in relation to Senior Constable Keneally. Further, I would accept that more time was taken up with dealing with issues relating to Sergeant Felgate than Senior Constable Keneally.

46. I propose to reduce the amount payable by the defendant to the plaintiff by 12%, to take account of the facts to which I have referred.

40. In the circumstances, I vary the costs order I made on 12 September 2025 and order that the defendant pay the plaintiff’s costs as agreed or assessed, but only 88% of those costs.

41. I hope that the approach I have taken facilitates a common sense approach to the question.

42. The plaintiff seeks costs of the application on the basis that the plaintiff submits that the defendant has not generally succeeded on its application. The defendant says that he was unaware of the approach to be taken by the plaintiff until yesterday evening. In any event, it has succeeded on its application to vary the costs order. It is true that the defendant has not obtained the orders it sought, but it has succeeded on the application because it obtained a variation of the costs order.

43. In my view, the appropriate order is no order as to costs in respect of this application. The effect of which is each party can pay their own costs for this application.

Orders

51. Accordingly, I make the following orders:

1. Set aside the costs order made on 12 September 2025.

2. Order that the defendant pay the plaintiff’s costs as agreed or assessed, limited to 88% of those costs.

3. No order as to costs in respect of this application.

**********

Decision last updated: 24 October 2025