Federal Court of Australia Chadwick v State of New South Wales (Costs) [2022] FCA 1279 File number: NSD 1307 of 2020 Judgment of: CHEESEMAN J Date of judgment: 28 October 2022 Catchwords: PRACTICE AND PROCEDURE – where applicant and respondents both successful in interlocutory applications – whether costs should be costs in the cause – Held: costs to be costs in the cause. Legislation: Federal Court of Australia Act 1976 (Cth), ss 37M, 43 Cases cited: Calderbank v Calderbank [1975] 3 All ER 333 Taleb v GM Holden Limited [2011] FCAFC 168; 286 ALR 309 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: Determined on the papers. Counsel for the Applicant: Ms M Dulhunty Counsel for the First and Second Respondents: Mr R Lee Solicitor for the First and Second Respondents: MinterEllison ORDERS NSD 1307 of 2020 BETWEEN: SANDRA-ANNE NGAONE CHADWICK Applicant AND: STATE OF NEW SOUTH WALES First Respondent NEW SOUTH WALES LAND AND HOUSING CORPORATION Second Respondent order made by: CHEESEMAN J DATE OF ORDER: 28 oCTOBER 2022 THE COURT ORDERS THAT: 1. The parties' applications for alternative costs orders pursuant to order 3 of the orders dated 27 September 2022 be dismissed. 2. The costs of the interlocutory applications the subject of the reasons for judgment in Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138 be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHEESEMAN J: introduction 1 There are two applications for costs before the Court which follow from the determination of two interlocutory applications in Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138 (Chadwick (Amendment Application)). 2 In Chadwick (Amendment Application), I made orders, relevantly, that subject to any party seeking to be heard on an alternative costs order, costs of the interlocutory applications the subject of the reasons for judgment be costs in the cause. For the purpose of these reasons, familiarity with that judgment is otherwise assumed. 3 The parties have since applied for alternative costs orders as follows: (1) Ms Chadwick seeks that the respondents pay the costs of the summary judgment application on an indemnity basis, and pay the costs of the points of claim application on the ordinary basis. (2) The respondents seek that Ms Chadwick pays the costs of the summary judgment application and points of claim application, and/or that costs be ordered on the basis of their "substantial success" in those applications. consideration The interlocutory applications 4 Pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth), the award of costs is at the Court or Judge's discretion. In exercising that discretion, I have had regard to the written submissions filed by the parties. In all but formal terms, the summary judgment application brought by the respondents was effectively overtaken by the points of claim application brought by Ms Chadwick. Ms Chadwick sought the indulgence of the Court to allow the proposed points of claim (PPOC) to supersede the concise statement. At the time the respondents' summary judgment application was filed in November 2021 by reference to the concise statement as it then stood in the proceedings the respondents had a proper basis for bringing the application. After Ms Chadwick sought leave to supersede the existing concise statement with the PPOC, the respondents adopted a pragmatic and efficient approach which facilitated the determination of the real issues between the parties. In these circumstances, I do not regard the respondents as in substance having failed to obtain the relief which they sought. 5 In order to determine the competing interlocutory applications, consistent with the overarching purpose pursuant to s 37M of the Act, the dispute between the parties reduced to an argument as to whether leave should be given for an amended concise statement to be filed based on the PPOC. Ultimately on that issue, leave to amend the concise statement was granted for certain paragraphs, and refused for others. For this reason, I am satisfied that in substance the reality is that each party achieved some level of success on their respective competing interlocutory applications. The Calderbank offer 6 In support of her submission that the respondents be ordered to pay the costs of the summary judgment application on an indemnity basis, Ms Chadwick relies on a letter sent by her counsel to lawyers for the respondents, dated 11 July 2022, which offered that the respondents withdraw the summary judgment application and for each party to pay their own costs of that application. The letter purported to be made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333. The respondents did not accept the offer. 7 The non-acceptance of a Calderbank offer can be relevant to the exercise of the discretion to award costs under s 43 of the Act on an indemnity basis in departure from the usual practice of ordering party-party costs if it was unreasonably rejected and is followed by a less favourable result to the offeree than the offer made: Taleb v GM Holden Limited [2011] FCAFC 168; 286 ALR 309 at [48]–[49]. 8 Ms Chadwick submitted that the respondents have not improved their position from the Calderbank offer. I reject that submission. In substance, the respondents improved their position on the offer. Indeed, shortly after making the Calderbank offer Ms Chadwick's counsel indicated to the respondents that Ms Chadwick no longer intended to rely on the concise statement in the proceedings, and would be seeking leave to rely on the PPOC instead as in effect an amended concise statement. This undoubtedly placed the respondents in a better position than the Calderbank offer. 9 In any event, I am not satisfied that the letter relied on in the context of the interlocutory dispute in this case was such as to attract the principles in Calderbank. conclusion 10 For these reasons, having considered the submissions made by the parties I am satisfied that the appropriate order is that costs be costs in the cause. I will make orders accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate: Dated: 28 October 2022