Cook v City of Sydney (No 2)

In this matter I delivered judgment on 18 December 2015: Cook v City of Sydney [2015] NSWSC 1904. On that occasion, I ordered that the decision of the second defendant, along with the Medical Assessment Certificate issued by the second defendant in respect of the plaintiff, be quashed. I further ordered that the matter be remitted to the third defendant, the Registrar of the Workers Compensation Commission of NSW, to be further dealt with according to law.

At the time of handing down judgment I was informed by senior counsel for the plaintiff that an application would be made for a special costs order. In those circumstances, I ordered the parties to provide written submissions. Those submissions having been received, I am now in a position to deliver judgment.

On 17 June 2015 the first defendant made an offer to the plaintiff pursuant to Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”). That offer was in the following terms:

On 23 June 2015, the plaintiff’s solicitors wrote to the solicitors for the first defendant in the following terms:

The accompanying offer which was made by the plaintiff was in the following terms:

On 20 July 2015 the solicitors for the first defendant wrote to the solicitors for the plaintiff in (inter alia) the following terms:

Senior counsel for the plaintiff submitted that costs should follow the event and that an order should be made that the first defendant pay the plaintiff’s costs. However, senior counsel submitted that the plaintiff should be the beneficiary of an order that the first defendant pay his costs on an indemnity basis on and from 23 June 2015, that being the date of the offer of compromise which was not accepted.

It was submitted that the provisions of r. 42.14 applied because the plaintiff, by virtue of my previous orders, obtained a judgment no less favourable to him than the terms of the offer. It was submitted that in these circumstances the plaintiff was entitled, pursuant to r. 42.14(2), to an order that the first defendant pay his costs assessed on the ordinary basis up to and including 23 June 2015, and on an indemnity basis thereafter up until the date of my final orders.

It was further submitted that the offer made on 23 June 2015 had also been expressed as a Calderbank offer (see Calderbank v Calderbank [1975] 3 All ER 333; [1975] 3 WLR 586) and that, the defendant not having accepted it, the same principles applied and the plaintiff was entitled to the orders sought.

The first defendant submitted that its offer represented a genuine compromise because it:

It was submitted that the plaintiff’s purported offers, irrespective of the basis on which they were said to have been made, contained no real and genuine element of compromise but “simply demanded everything that the plaintiff sought to achieve under the Summons”. It was further submitted that the terms in which such offers had been expressed, namely that “the first defendant pay the plaintiff’s costs and disbursements of these proceedings as agreed or assessed”, did not specify the exact nature of those costs, or the precise period over which the costs would be payable, and therefore lacked the requisite certainty.

It was submitted that in these circumstances no special order for costs should be made.

Rule 20.26 of the Rules is in the following terms:

Rule 42.14 is in the following terms:

The schemes for offers of compromise, and for cost consequences in the event that such offers are not accepted, were intended to promote true compromise. True compromise connotes that a party gives something away: Hobartville Stud v Union Insurance Company (1991) 25 NSWLR 358 at 368 per Giles J. Accordingly in determining the present question, what the Court is required to do is to determine whether, in all of the circumstances, the offer of compromise made by the plaintiff represented any true element of compromise: Tickell v Trifleska Pty Limited (1990) 25 NSWLR 353 at 355 per Rogers CJ Comm D. The same principles apply to the Calderbank offer made by the plaintiff: Miwa Pty Limited v Siantan Properties Pte Limited (No. 2) [2011] NSWCA 344 at [8] per Basten JA (McColl and Campbell JJA agreeing).

In my view, the offer made on behalf of the plaintiff on 17 June 2015 contained no element of compromise at all. Rather, as the first defendant submitted, the offer represented what was, in fact, an offer to settle the proceedings on the basis of the very relief of the plaintiff sought to obtain by commencing the proceedings.

In these circumstances, no special costs order is warranted.

For the forgoing reasons, I make the following order: