Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43

Federal Court of Australia

Wills v Chief Executive Officer of the Australian Skills Quality Authority (Costs) [2022] FCAFC 43 File number(s): QUD 401 of 2020

Judgment of: LOGAN, GRIFFITHS AND PERRY JJ

Date of judgment: 22 March 2022

Catchwords: COSTS – whether costs should be paid on an indemnity rather than a party/party basis – where Chief Executive of the Australian Skills Quality Authority (ASQA) made an offer of compromise – where ASQA seeks costs of and incidental to appeal on an indemnity basis under r 25.14(2) of the Federal Court Rules 2011 (Cth), or alternatively costs paid on an indemnity basis consistent with the principles in Calderbank v Calderbank – where ultimate question is whether the failure to accept an offer in all the circumstances warrants departure from the ordinary rules as to costs – whether an offer of compromise on the basis simply that there be no order as to costs is a genuine compromise for the purposes of rule 25.01(1) or the Calderbank principle – where applicant's rejection of the offer of compromise was not unreasonable in the circumstances – application for indemnity costs dismissed

Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44 National Vocational Education and Training Regulator Act 2011 (Cth) Federal Court Rules 1979 (Cth) (repealed) O 23 Federal Court Rules 2011 (Cth) rr 25.01, 25.14(2)

Cases cited: Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 Australian Competition and Consumer Commission v Black on White [2002] FCA 1605 Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; (2002) 201 ALR 618 Brymount Pty Ltd t/as Watson Toyota v Cummins (No 2) [2005] NSWCA 69 Calderbank v Calderbank [1975] 3 All ER 333 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 NMFM Property Pty Ltd v Citibank Ltd (No 2) (Court's "NMFM" Judgment No 11) [2001] FCA 480; (2001) 109 FCR 77 Nutrientwater Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304 University of Western Australia v Gray (No 21) [2008] FCA 1056; (2008) 249 ALR 360 Vasram v AMP Life Ltd [2002] FCA 1286 Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10