Subasic v Hewlett-Packard Australia Pty Ltd (No 2) - [2020] ACTSC 195

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Subasic v Hewlett-Packard Australia Pty Ltd (No 2)
Citation:	[2020] ACTSC 195
Hearing Dates:	On the papers
Submissions received: Decision Date:	18 February 2020 17 July 2020
Before:	McWilliam AsJ
Decision:	See [55]
Catchwords:	COSTS – PRE-LITIGATION OFFER OF COMPROMISE – Whether offer was a valid Calderbank offer – whether it was unreasonable to reject the offer – where offer did not sufficiently disclose anticipated cause of action – where later offer made pursuant to Court Procedure Rules 2006 (ACT), r 1002 – where orders made were no less favourable than the offer – solicitor and client costs awarded from date of formal offer
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1002, 1010(2)(b), 1726, 1739
Cases Cited:	Bankier v HAP2 Pty Ltd (No 3) [2019] QSC 186 Calderbank v Calderbank [1975] 3 WLR 586 Cross v Queensland Newspapers Pty Limited (No 2) [2008] NSWCA 120 Forge v Rewers (No 2) [2017] ACTSC 273 Hughes v Sangster (No 2) [2019] ACTSC 202 Hulanicki v Walton (No 2) [2015] ACTCA 45 Jones v Bradley (No 2) [2003] NSWCA 258 Key Infrastructure Australia Pty Ltd v Bensons Property Group Pty Ltd (No 2) [2019] VSC 763 Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391 Leichhardt Municipal Council v Green [2004] NSWCA 341 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Ofria v Cameron (No 2) [2008] NSWCA 242 Oliver v Roberts (No 2) [2018] ACTCA 44 Port Stephens Shire Council v Tellamist Pty Ltd (No 2) [2004] NSWCA 415 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Shaw v Jarldorn [1999] SASC 529; 76 SASR 28 Shellharbour City Council v Johnson (No 2) [2006] NSWCA 114; 67 NSWLR 308 Southwell v Staite (No 2) [2019] ACTSC 83 State of Victoria v McIver [2005] VSCA 50; 11 VR 458 Subasic v Hewlett-Packard [2020] ACTSC 2 Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd (No 2) [2011] FCA 283
Parties:	Melinda Subasic (Plaintiff) Hewlett-Packard Australia Pty Ltd (ACN 004 394 763) (Defendant)
Representation:	Solicitors Just Dispute Resolution (Plaintiff) Baker & Mackenzie (Defendant)
File Number:	SC 437 of 2016

McWilliam AsJ

On 30 January 2020, I made orders in relation to a claim for breach of contract concerning a former employee of Hewlett-Packard Australia Pty Ltd (ACN 004 394 763) (the plaintiff). Judgment was entered for the plaintiff in the sum of $309,750.39 plus interest in the sum of $61,568.19. Order 2 of the orders made on that day was that the defendant pay the plaintiff’s costs, but the parties were given the opportunity to seek a variation of the costs order: see Subasic v Hewlett-Packard [2020] ACTSC 2 (Subasic) at [117]-[118].

The plaintiff has subsequently applied to the Court for such a variation. She seeks that the defendant pay the plaintiff’s costs on an indemnity basis, or alternatively on a solicitor and client basis.…

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: [2020] ACTSC 195
Decision Date: 17 July 2020

CaseChat Overview and Summary

The case of Subasic v Hewlett-Packard Australia Pty Ltd (No 2) involved a dispute between the plaintiff and the defendant regarding the validity of a pre-litigation offer of compromise. The matter was heard in the Federal Circuit Court of Australia. The plaintiff claimed that the defendant had made a Calderbank offer that was unreasonably rejected. The primary issue before the court was whether the initial offer constituted a valid Calderbank offer and whether it was unreasonable for the defendant to reject it.

The court examined the nature of the initial offer and whether it sufficiently disclosed the anticipated cause of action. The court found that the initial offer did not sufficiently disclose the anticipated cause of action and therefore was not a valid Calderbank offer. The defendant subsequently made another offer in accordance with the Court Procedure Rules 2006 (ACT), rule 1002, which the plaintiff accepted. The court had to determine whether the orders made by it were no less favourable than the offer made by the defendant and whether the orders for costs were appropriate.

The court concluded that the orders it made were no less favourable than the offer and awarded the plaintiff solicitor and client costs from the date of the formal offer. The court held that the defendant's rejection of the initial offer was not unreasonable as it did not sufficiently disclose the anticipated cause of action. However, the court also found that the defendant's subsequent offer, which complied with the Court Procedure Rules, was reasonable and should have been accepted by the plaintiff. The court's decision highlights the importance of making a valid Calderbank offer that sufficiently discloses the anticipated cause of action.

Orders

Orders of the court

See [55]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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