LUC DAIGLE v SCT OPERATIONS PTY LIMITED [2022] NSWDC 518

District Court New South Wales

Medium Neutral Citation: LUC DAIGLE v SCT OPERATIONS PTY LIMITED [2022] NSWDC 518 Hearing dates: 27 October 2022 Date of orders: 27 October 2022 Decision date: 27 October 2022 Jurisdiction: Civil Before: Montgomery DCJ Decision: 1. I maintain the order made 19 August 2022 in relation to costs. 2. The defendant to pay the plaintiff's costs of today's hearing. Catchwords: CIVIL – costs – UCPR 42.1 – s 570(2)(b) Fair Work Act 2009 (Cth) Legislation Cited: Fair Work Act 2009 (Cth) s 570, Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Category: Costs Parties: Luc Daigle, Plaintiff/cross defendant SCT Operations Pty Limited, Defendant/cross claimant Representation: Counsel: Ms Kumar, Counsel for the plaintiff/cross defendant Mr Latham, Counsel for the defendant/cross claimant

Solicitors: Hall Payne Lawyers, Solicitors for the plaintiff/cross defendant Kells Lawyers Sydney, Solicitors for the defendant/cross claimant File Number(s): 2021/00173343

Judgment 1. HIS HONOUR: Thank you. I don't need to hear from you, Ms Kumar. I will be brief because nothing from that which has been said to me moves me from the preliminary view I expressed having had the privilege of the benefit of reading the submissions, affidavit evidence and whilst with the opportunity of the bundle of authorities provided by counsel for the defendant. 2. The offer of 1 July was for the short period of acceptance of a week, in circumstances, as I have more fully gone to, of there being to be contemplated not just the costs to be considered by the plaintiff in his contemplation of acceptance or rejection of the offer in this court, but also the value to him of the benefit of the costs order made in November 2021 in the Local Court, which benefit by inference was likely to fall to him. It would be unfair to him to suggest that be put aside from consideration because the prospects of his case were so risky that he might not succeed in the terms of that offer, order that for costs to follow the cause. The unfairness is inferred by the fact that all offers were for substantial sums to be paid toward the plaintiff. The offer, was significantly in those circumstances, inclusive of costs. 3. Neither party, on the evidence, was acting unreasonably and indeed they continued in good faith to negotiate. But my determination is as to the point of time. That is, the rejection on 8 July. The determination is as to that point of time. That is, the rejection on 8 July, the date set by the offer as its expiry and the date on which in compliance with that term, the plaintiff rejected it. 4. Ultimately, the decision in the judgement sum, was not so different in magnitude for the plaintiff, such that the offer of 1 July inclusive of costs, convinces me that it was unreasonable for the plaintiff to have rejected it. In the circumstances, I am mindful in that determination that the ultimate quantum of the judgment was determined from the result of several issues of factors making up that ultimate sum. In relation to each of those issues, there was a real contest. For all of those reasons, I confirm the order made 19 August 2022 that the defendant pay the plaintiff's costs of the proceedings. 5. [LATHAM: Your Honour, sorry I may have misunderstood. If your Honour reached a conclusion that 570 did apply and that is inescapable then that order can't be made. Well sorry, it can't be made unless the defendant acted unreasonably. 6. What I understood had occurred was that the issue of costs was going to be determined in the future and I assumed that there had been an error made in the original orders, but that I think the point is simply this. If s 570 of the Act applies a costs order can only be made if there is unreasonable act or omission or if there are no reasonable prospects of success and the Court would fall into error if it made a contrary order.] 7. Accordingly, as a matter of fact, my determination is that the plaintiff's rejection of the defendant's offer of 1 July was not an unreasonable rejection. 8. The defendant puts that s 570 of the Fair Work Act applies. That is a live question in a case such as this but there is a factual basis upon which the determination so far as my reasons have gone, finds that the argument under s 570 is not of utility for the defendant in this application. That is because ultimately the plaintiff succeeded in a judgment to the sum of $132,555.58. 9. The history of the negotiation shows that in the good faith continuation of offer and counter offer made by the parties to which I have referred. The day before the matter came before the Court, an offer was made by the plaintiff to the defendant, which sum was in substantial in excess of the plaintiff's success in the ultimate determination. 10. Then on the first day of the hearing, 3 August at approximately 1pm although the solicitor for the plaintiff, deponent of the affidavit, Ms Clark cannot remember the precise words, she received from Mr Potts, the communication that the defendant had been instructed her to make an offer of $130,000. At 6.19pm Ms Clark received a written correspondence from the attorney for the defendant offering to settle the proceedings upon the payment of $130,000 inclusive of costs. And then either on 3 or 4 August, the defendant made a verbal offer of $100,000 to resolve the proceedings. 11. The November 2021 costs in the cause order, for the purposes of the UCPR, the common law, and specifically for the purposes of s 570, were, in my view, costs associated with a unreasonable act of the defendant by opposing the amendment at that time, given the determinations as made ultimately in the judgment of the case. The offer made, 1 July 2021, for the reasons which I have given, was not an offer given in circumstances of reasonable opportunity to accept. Whereas, as Mr Latham properly directs attention to the statutory intent of s 570 to make parties be aware of the risk of not achieving costs; it was unreasonable, in circumstances of the hearing being three weeks away, the parties having been through a mediation, to make an inclusive offer of costs with an eight day time limit for the reasons which I have stated. Thereafter offers continued to be made in good faith as I said. 12. The plaintiff's offers, on the face of them, albeit again inclusive of costs, look to be perhaps beyond the benefit of the ultimate judgment. I am not in a position to assess. But the defendant's offers, including the offer of $130,000 on the first day of the hearing, which would be inclusive of costs as would then have been incurred, and including contemplation of the plaintiff's benefit of the costs in the cause offer made in the Local Court to which I have gone, and subsequently that an offer of that value having been offered at 6.19pm, and a lesser value having been offered that day or the next day, were all unreasonable, again in the meaning of s 570, in that all of them were expressed to be inclusive of costs in a complex case with the pre existing costs order of significant value. Even in the absence of evidence as to the costs of the hearing, the defendant offers are strongly inferred to have been below the ultimate result achieved by the plaintiff in the hearing. 13. Accordingly, in my determination, not only would the defendant not succeed in the application for costs on the basis on reasonable offers made according to common law or the UCPR 42.1, but the defendant does not succeed in its application for an order under the benefit of s 570 of the Fair Work Act. In my opinion, the offers made by the defendant were unreasonable in all of the circumstances because of the not unreasonable continuation of the proceedings by the plaintiff and the incurring by the plaintiff of costs. So, I maintain the order, as I said, made 19 August 2022 in relation to costs.