Tom v Jenkins (No. 2)

Tom v Jenkins (No. 2) involved a dispute over costs in the Civil and Administrative Tribunal of New South Wales. The primary issue was whether the tribunal had the jurisdiction to make a costs order against Tom, who had made a Calderbank offer that was not accepted by Jenkins. The case followed a previous decision where the tribunal had declined to make a costs order against Tom. This appeal challenged that decision.

The central legal question was whether the tribunal had the jurisdiction to make a costs order against Tom, considering the unsuccessful Calderbank offer. The appeal hinged on interpreting the relevant statutory provisions and understanding the circumstances under which the tribunal could exercise its discretion to award costs.

The court reviewed the statutory framework governing costs orders in the tribunal. It determined that the tribunal did indeed have the jurisdiction to make such orders, even in the context of a Calderbank offer. The court emphasised that the tribunal's discretion was broad and could be exercised in cases where a party had made an offer of settlement that was not accepted, leading to a costs order. The court found that Tom's Calderbank offer, which was not accepted by Jenkins, provided a sufficient basis for the tribunal to exercise its discretion in favour of Jenkins.

Consequently, the court ruled that Tom must pay Jenkins' costs on the ordinary basis, with the costs to be assessed in accordance with the legal costs legislation as defined in the Legal Profession Uniform Law Application Act 2014. The tribunal's earlier decision not to make a costs order against Tom was overturned.