Dust Diseases Tribunal New South Wales Medium Neutral Citation: L & A Fazzini Pty Ltd v Amaca Pty Ltd [2021] NSWDDT 1 Hearing dates: 14 December 2020 Date of orders: 3 February 2021 Decision date: 03 February 2021 Before: Scotting J Decision: (1) Order (2) made on 27 November 2020 is set aside and is to be replaced with order (2) below. (2) Fazzini is to pay Amaca's costs of the first cross-claim on the ordinary basis up to 31 July 2020 and on the indemnity basis from 1 August 2020, as agreed or assessed. Catchwords: DUST DISEASES TRIBUNAL – argument as to costs – offer of compromise – indemnity costs Legislation Cited: Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Regulation 2013 Dust Diseases Tribunal Regulation 2019 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Category: Costs Parties: L & A Fazzini Pty Ltd (First Defendant/Cross Claimant) Amaca Pty Ltd (Second Defendant/Cross Defendant) Representation: Counsel: D T Miller SC/M Smith (First Defendant/Cross Claimant) J C Sheller SC (Second Defendant/Cross Defendant) Solicitors: Mills Oakley (First Defendant/Cross Claimant) Moray & Agnew (Second Defendant/Cross Defendant File Number(s): 2020/155084 Publication restriction: None Judgment 1. On 27 November 2020 I dismissed the first cross-claim in these proceedings and ordered that the cross-claimant (Fazzini) pay the costs of the cross-defendant (Amaca) on the ordinary basis. 2. Amaca seeks an order for indemnity costs on the basis that the result it obtained at hearing was superior to that contained in an Offer of Compromise dated 31 July 2020 and expressed to be made under cl 88 Dust Diseases Tribunal Regulation 2019 (the 2019 Regulation). 3. The offer made by Amaca was that there be a verdict for the cross-defendant and that each party would bear its own costs. It is clear that Amaca received a more favourable outcome. 4. Fazzini's primary submission is that the Offer of Compromise regime provided for by Part 5 of the 2019 Regulation, or alternatively Part 6 of the Dust Diseases Tribunal Regulation 2013 (the 2013 Regulation), does not apply to this case and accordingly the offer served is not an Offer of Compromise provided for by either Regulation. [1] The basis for this submission is that the information exchange provisions in cl 88(3) of the 2019 Regulation did not apply to the first cross-claim. In those circumstances, Fazzini submitted that Amaca's offer was no more than a Calderbank [2] offer and that Amaca had failed to discharge its onus that Fazzini's rejection of the offer was unreasonable. 5. The construction underlying Fazzini's primary submission ignores other provisions of Part 5 of the 2019 Regulation, but in particular cl 86 that provides that Part 5 displaces the rules of court with respect to the acceptance or rejection of an offer of compromise. The Note to cl 86 provides: This Part applies to all claims, not just claims that are subject to the claims resolution process under Part 4. 1. "Claim" is defined in cl 12 to mean a claim in proceedings in the Tribunal brought or to be brought under s 11 Dust Diseases Tribunal Act 1989 (the Act) or transferred under s 12 of the Act. The first cross-claim was a claim brought pursuant to either s 11(1A) of the Act or s 11(4) of the Act and was a claim within the meaning of cl 12 of the 2019 Regulation. 2. Clause 90(1) of the 2019 Regulation is satisfied in the present case, but the provisions in cl 90(2) cannot be strictly applied in a case, such as the present, where the plaintiff was wholly unsuccessful. The intent of cls 89(2) and 90(2) is clear that the Tribunal should, except "in an exceptional case and for the avoidance of substantial injustice", award indemnity costs in the circumstances outlined. Clause 90(2)(b) of the 2019 Regulation can and should be applied in this case, because Fazzini has not sought to argue that this is an exceptional case. In the period before that, costs should follow the event. 3. Having found against Fazzini on its primary submission, it is unnecessary to deal with its argument that Amaca's offer was no more than a Calderbank offer. 4. I will make the following orders: 1. Order (2) made on 27 November 2020 is set aside and is to be replaced with order (2) below. 2. Fazzini is to pay Amaca's costs of the first cross-claim on the ordinary basis up to 31 July 2020 and on the indemnity basis from 1 August 2020, as agreed or assessed. ********** Endnotes 1. The provisions of the 2013 Regulation and the 2019 Regulation are very similar. I will refer to the provisions of the 2019 Regulation only, unless there is a need to do otherwise. 2. Calderbank v Calderbank [1975] 3 All ER 333 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2021