Visscher v Teekay Shipping (Australia) Pty Ltd (No 2)

In Visscher v Teekay Shipping (Australia) Pty Ltd (No 2), Mr Visscher appealed against the costs orders made by the primary judge in his favour. The dispute involved Mr Visscher's claim against Teekay Shipping for unpaid wages under the Navigation Act 1912 (Cth). The primary judge had dismissed Mr Visscher's application but later awarded him a sum under the Act. The court was tasked with determining the appropriate costs orders, given that Mr Visscher had rejected a substantial offer of compromise made by Teekay. The legal issues revolved around the applicability of the offer of compromise under r 25.14 of the Federal Court Rules 2011 (Cth) and the reasonableness of Mr Visscher's conduct in rejecting the offer.

The court examined whether Mr Visscher's rejection of the offer was unreasonable and whether the costs orders made by the primary judge should be upheld. Teekay argued that Mr Visscher's limited success on appeal meant he should be seen as the unsuccessful party. It contended that the primary judge's order should be upheld, and Mr Visscher should pay the costs of the appeal on an indemnity basis. Conversely, Mr Visscher argued that he had succeeded on appeal and that the costs orders should be set aside in his favour. He contended that the offer of compromise was made before Teekay's complete case was disclosed, and he should be awarded costs for both the proceedings below and the appeal.

The court found that Mr Visscher's rejection of the offer was unreasonable and that the primary judge's costs order was appropriate. The court noted that Mr Visscher's limited recovery on appeal meant he had not achieved a significant improvement over the terms of the offer. The court held that the offer of compromise was a genuine attempt to resolve the proceedings and that Mr Visscher's failure to accept it was unreasonable. Consequently, the court upheld the primary judge's costs order, allowing Teekay to set off its liability for the judgment sum and interest against the amount Mr Visscher owed for costs.

ORDERS:
1. The respondent pay the appellant’s costs.
2. The security provided by the appellant for the costs of the appeal be returned to him.
3. The respondent may set off its liability in the proceedings below to pay the judgment sum and interest the subject of Order 2 made by the Full Court on 13 February 2014 and its liability under Order 1 made today against the amount found to be due to it by the appellant pursuant to Order 1 made by the primary judge on 29 January 2013.