Truenergy Pty Ltd v Dispute Resolution Panel (No 2) - [2009] VSC 612

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7650 of 2009

TRUENERGY PTY LTD	Plaintiff
v
DISPUTE RESOLUTION PANEL (APPOINTED ON 12 JANUARY 2009 UNDER CHAPTER 7 OF THE VICTORIAN GAS INDUSTRY MARKET AND SYSTEM OPERATION RULES) & ORS	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2009
DATE OF JUDGMENT:	11 December 2009 (Ex tempore reasons given orally). Revised reasons published 18 December 2009
CASE MAY BE CITED AS:	Truenergy Pty Ltd v Dispute Resolution Panel (No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 612

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COSTS – Judicial review – Calderbank offer by one of four defendants inviting plaintiff to walk away and accept small discount on costs previously awarded against plaintiff by statutory panel – Offer not clear or reasonable – No real and genuine element of compromise – Not unreasonable for plaintiff to refuse offer – Relevant defendant’s application for solicitor-client costs refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C M Caleo SC with Mr J D Pizer	Clayton Utz
For the Fourth Defendant	Mr P Gray	Minter Ellison

HIS HONOUR:

This is an application made orally, though foreshadowed by email on 8 December 2009, to vary the order as to costs made by the Court on 7 December 2009. On that occasion, I ordered that the plaintiff pay the four (separately represented) defendants’ costs on a party/party basis. The fourth defendant, AGL, seeks to have the order varied insofar as the order applies to it. It says that when judgment was pronounced on 7 December and the question of costs was raised, it overlooked the fact that on 25 September 2009 it, by its solicitors, had made an offer of compromise to the plaintiff by reference to Calderbank principles; and on that basis it now asks this Court to reopen and revisit the order as to costs made on 7 December and to order that the plaintiff pay AGL’s costs on a solicitor/client basis.

I am not persuaded that I should reopen the matter and I do not propose to do so.

It is true that the order for costs has not yet been authenticated.[1] Further, I will assume without deciding that this was a case in which, in the circumstances, there was some misapprehension of the facts on the part of counsel for AGL or, in any event, that it was a case where – to use the expression used in De L v Director-General, NSW Department of Community Services (No 2)[2] - “the interests of justice” might otherwise have called for the matter to be reconsidered. But one of the matters that goes both to the question of whether to reopen and then, after reopening, to the substantive determination of the application is the merit or strength of the application sought to be made or of the points sought to be raised. And in my view there is little or no strength in AGL’s application to have solicitor/client costs awarded…

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: [2009] VSC 612
Decision Date: 11 December 2009 (Ex tempore reasons given orally). Revised reasons published 18 December 2009

CaseChat Overview and Summary

Truenergy Pty Ltd brought proceedings against Dispute Resolution Panel, amongst others, seeking judicial review of the Panel's decision to reject the plaintiff's application for a tariff. One of the defendants made a Calderbank offer to Truenergy, which was conditional on the plaintiff abandoning its proceedings and accepting a discount on the costs previously awarded against it by the statutory panel. The plaintiff declined the offer, and the defendant subsequently applied for an order for costs on a solicitor-client basis. The court was required to determine whether the Calderbank offer was clear and reasonable and whether the plaintiff's refusal to accept the offer was unreasonable. The court found that the Calderbank offer was not clear or reasonable, as it contained a condition that was not genuine and was not an element of compromise. The court also found that it was not unreasonable for the plaintiff to refuse the offer, given the nature of the condition attached to it. As a result, the defendant's application for solicitor-client costs was refused. The court did not make any further orders in relation to the costs of the proceedings.

Orders