(re Dawson) Novek v Amaca Pty Limited (2) [2008] NSWDDT 15

Dust Diseases Tribunal of New South Wales

CITATION : (re Dawson) Novek v Amaca Pty Limited (2) [2008] NSWDDT 15

PARTIES : Carina Maria Novek as legal personal representative of the Estate of the Late Margaret Denise Dawson Amaca Pty Limited

MATTER NUMBER(S) : 7152 of 2007

JUDGMENT OF: Kearns J

DUST DISEASES TRIBUNAL :- costs indemnity costs CATCHWORDS: Calderbank offer reserved costs conduct of the parties

DATES OF HEARING: 20 May 2008

DATE OF JUDGMENT: 26 May 2008

Ms A Katzmann SC, instructed by Turner Freeman, appeared for the plaintiff. LEGAL REPRESENTATIVES: Mr D Russell SC, instructed by DLA Phillips Fox, appeared for the defendant.

JUDGMENT: 1. On 25 May 2008, there were two applications argued before me, though no notices of motion had been filed.

Plaintiff's application for indemnity costs 2. The first was the plaintiff's application for indemnity costs. On 22 January 2008, the plaintiff made a Calderbank offer to settle for $500,000 plus costs. The letter was a standard Calderbank letter and no point is taken as to any inadequacy in its form. The application was resisted essentially on three bases:

(1) the stage of the proceedings when the offer was made;

(2) the short time that the offer was left open for acceptance;

(3) the defendant's prospects of success and the genuineness and force of its arguments.

3. I do not think any of those three bases, either alone or together, warrant denying the plaintiff the relief she seeks. By 22 January 2008, the matter had been listed for hearing on 7 and 8 February 2008. On 22 January 2008, the hearing was brought forward to 24 January 2008. It was brought forward, I assume, because of a deterioration in Mrs Dawson's health. 4. By 22 January 2008, the whole of the plaintiff's affidavit evidence had been served. True it is that, when the offer was made, the defendant had not had an opportunity to cross-examine the deponents and the offer was to expire before that could occur. There is nothing novel in that. Offers of compromise and Calderbank offers are frequently, indeed mostly, made and lapse before evidence is taken and I do not see that as a basis for refusing the plaintiff's application.