Webber v Comcare (No. 2) - [2018] NSWDDT 12

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation: Webber v Comcare (No. 2) [2018] NSWDDT 12
Hearing dates: 14 December 2018
Date of orders: 20 December 2018
Decision date: 20 December 2018
Before: Russell SC DCJ
Decision:
(1) Dismiss the plaintiff’s application for indemnity costs.
(2) Order each party to pay his or its own costs of the further costs application made on 14 December 2018.

Catchwords: COSTS – Calderbank offer – whether sufficient time allowed for consideration, having regard to time when crucial evidence was served – whether rejection of the offer was unreasonable given that there was a complex and novel legal issue in the case.
Cases Cited: Commonwealth v Gretton [2008] NSWCA 117
County Securities Pty Limited v Challenger Group Holdings Pty Limited (No. 2) [2008] NSWCA 273
Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503
Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61
King Network Group Pty Limited v Club of the Clubs Pty Limited (No. 2)
MGICA (1992) Pty Limited v Kenny & Good Pty Limited (No. 2) (1996) 70 FCR 236
Nationwide News Pty Limited v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471
Ofria v Cameron (No. 2) [2008] NSWCA 242
Vale v Eggins (No. 2) [2007] NSWCA 12
Webber v Comcare [2018] NSW DDT 10
Category: Costs
Parties: Kevin Webber (Plaintiff)
Comcare (Defendant)
Representation:
Counsel:
A Giurtalis (Plaintiff)
G Watson SC (Defendant)
Solicitors:
Maurice Blackburn (Plaintiff)
Australian Government Solicitor (Defendant)

File Number(s): DDT 164/2018

Judgment

On 11 December 2018 I gave judgment for the plaintiff against the defendant for $1,101,685 – Webber v Comcare [2018] NSWDDT 10. I ordered the defendant to pay the plaintiff’s costs and granted leave to approach my Associate within three days if any party wished to contend for a different order on costs. The plaintiff and the defendant appeared before me on 14 December 2018, when the plaintiff sought an order that the costs payable by the defendant be costs on an ordinary basis up to 28 November 2018 and thereafter such costs should be payable on an indemnity basis. That was opposed by the defendant.
The basis for the application was an email sent by the solicitor for the plaintiff to the solicitor for the defendant at 4.09pm on Wednesday, 28 November 2018. The email referred to a conversation between senior counsel earlier in the day and said:

“We confirm that the offer put was $950,000 plus costs and disbursements. This offer is open for acceptance until 4.00pm (Sydney time) Thursday, 29 November 2018.
Please note that this offer is made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333.”

The solicitor for the defendant responded at 9.11am on Thursday, 29 November 2018 as follows:

“I am instructed to reject that offer and to re-open Comcare’s Offer of Compromise of $700,000 for acceptance until 4.00pm tomorrow.”

Mr Giurtalis, who appeared for the plaintiff, submitted that the email offer was a genuine compromise, that it…

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.

Continue reading Webber v Comcare (No. 2)

Details

AGLC: Webber v Comcare (No. 2) [2018] NSWDDT 12
Case: [2018] NSWDDT 12
Decision Date: 20 December 2018

CaseChat Overview and Summary

Webber v Comcare (No. 2) is a case that came before the Federal Court of Australia, where the plaintiff sought indemnity costs from the defendant, Comcare, after their offer under the Calderbank principle was rejected. The primary dispute revolved around the fairness and reasonableness of the rejection of the defendant's offer, particularly concerning the timing and the availability of crucial evidence at the time of the offer. The case also involved the interpretation of the legal principles surrounding the Calderbank offer and its application in the context of the proceedings.

The central legal issues that the court had to address were whether the defendant had allowed sufficient time for the plaintiff to consider the offer, considering the timing of the crucial evidence's service, and whether the rejection of the offer was unreasonable given the presence of a complex and novel legal issue. The court had to determine the adequacy of the time provided for the plaintiff to consider the offer and whether the rejection was justified in light of the legal complexities involved.

The court found that the defendant had not unreasonably rejected the Calderbank offer as there was sufficient time for the plaintiff to consider it, despite the late service of crucial evidence. The court also considered that the rejection was reasonable due to the novel and complex legal issue presented in the case. The court concluded that the rejection of the offer did not warrant indemnity costs to the plaintiff, and both parties were ordered to bear their own costs for the further costs application.

Orders

Orders of the court

(1) Dismiss the plaintiff’s application for indemnity costs.

(2) Order each party to pay his or its own costs of the further costs application made on 14 December 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Webber v Comcare (No. 2) [2018] NSWDDT 12
Hearing dates:	14 December 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Before:	Russell SC DCJ
Decision:	(1) Dismiss the plaintiff’s application for indemnity costs. (2) Order each party to pay his or its own costs of the further costs application made on 14 December 2018.
Catchwords:	COSTS – Calderbank offer – whether sufficient time allowed for consideration, having regard to time when crucial evidence was served – whether rejection of the offer was unreasonable given that there was a complex and novel legal issue in the case.
Cases Cited:	Commonwealth v Gretton [2008] NSWCA 117 County Securities Pty Limited v Challenger Group Holdings Pty Limited (No. 2) [2008] NSWCA 273 Equity 8 Pty Limited v Shaw Stockbroking Limited [2007] NSWSC 503 Evans Shire Council v Richardson (No. 2) [2006] NSWCA 61 King Network Group Pty Limited v Club of the Clubs Pty Limited (No. 2) MGICA (1992) Pty Limited v Kenny & Good Pty Limited (No. 2) (1996) 70 FCR 236 Nationwide News Pty Limited v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 Ofria v Cameron (No. 2) [2008] NSWCA 242 Vale v Eggins (No. 2) [2007] NSWCA 12 Webber v Comcare [2018] NSW DDT 10
Category:	Costs
Parties:	Kevin Webber (Plaintiff) Comcare (Defendant)
Representation:	Counsel: A Giurtalis (Plaintiff) G Watson SC (Defendant) Solicitors: Maurice Blackburn (Plaintiff) Australian Government Solicitor (Defendant)
File Number(s):	DDT 164/2018