Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The application by the first respondent for the applicant to pay the first respondent’s costs of the appeal on an indemnity basis is refused.

2.    Subject to orders 2 and 3 below, the applicant is to pay the first respondent’s party/party costs on the appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), as agreed or taxed.

3.    The costs awarded to the first respondent under order 2 above do not include the first respondent’s costs of and incidental to the first respondent’s application for indemnity costs.

4.    The costs payable to the first respondent under order 2 are to be reduced by the applicant’s costs, as agreed or taxed, in defending the first respondent’s application for indemnity costs.

THE COURT NOTES THAT:

5.    The parties are to endeavour to agree the quantum of costs payable under order 2, fixed if possible in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This is an application for indemnity costs against the applicant, Mr Vernon Wills, by the first respondent, the Chief Executive Officer of the Australian Skills Quality Authority (ASQA), following judgment on the substantive issues delivered on 9 February 2022 (Wills v Chief Executive Officer of the Australian Skills Quality Authority [2022] FCAFC 10 (Wills (No. 1)). In Wills (No. 1), this Court unanimously dismissed the appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against the decision of the Administrative Appeals Tribunal (Tribunal) given on 30 November 2020 affirming ASQA’s decision relevantly rejecting the application by the second respondent, Site Skills Group Pty Ltd (SSG), for renewal of its registration as a registered training organisation (RTO). Mr Wills was the sole director and Chief Executive Officer of SSG.

2    Specifically, having regard to an offer of compromise made by ASQA on 23 February 2021 under r 25.01 of the Federal Court Rules 2011 (Cth) (FCR), ASQA seeks orders that Mr Wills pay its costs of and incidental to the appeal on an indemnity basis from 11am on 25 February 2021 pursuant to r 25.14(2) of the FCR. In the alternative, ASQA seeks an order that its costs be paid on an indemnity basis from 10 March 2021, consistent with the principles in Calderbank v Calderbank [1975] 3 All ER 333 (Calderbank).

3    The application for indemnity costs was heard on the papers pursuant to the orders of Justice Perry dated 18 February 2022. In support of the indemnity costs application, ASQA relied upon the affidavit of Jessica MacDonald affirmed 22 February 2022 (MacDonald affidavit).

4    For the reasons set out below, the application for indemnity costs is refused.

2.    BACKGROUND

2.1    The s 44 appeal and ASQA’s offer of compromise

5    Mr Wills filed a notice of appeal under s 44 of the AAT Act on 24 December 2020 (the Wills appeal) initially against part of the Tribunal’s decision, being its finding that Mr Wills did not satisfy the fit and proper person requirements in subparagraph (i) of Schedule 3 of the Standards for Registered Training Organisations (RTOs) 2015 (2015 RTO Standards) made under the National Vocational Education and Training Regulator Act 2011 (Cth). At that time, Mr Wills was also named as the second respondent in Federal Court proceeding QUD 400 of 2020, being an appeal under s 44 of the AAT Act instituted by SSG against the same Tribunal decision (the SSG appeal).

6    Two grounds were identified in the notice of appeal in the Wills appeal as originally filed, namely:

(1)    the Tribunal had denied Mr Wills procedural fairness (ground 1); and

(2)    the Tribunal had failed to consider a relevant consideration in failing to make findings on Mr Wills’ involvement in, and knowledge of, a fraudulent and dishonest manipulation of the system of public funding of vocational education engaged in by another RTO, Productivity Partners Proprietary Limited (PP), and consequently the Tribunal had failed to perform its statutory function of review (ground 2).

7    On 23 February 2021, the solicitors for ASQA wrote to Mr Wills’ solicitor on an open basis (the Open 23 February letter) suggesting that the Wills appeal be discontinued or significantly amended for the following reasons:

3. First, the second purported question [of law] does not give rise to a question of law. No “relevant consideration” arising from the subject matter, scope and purpose of the National Vocational Education and Training Regulator Act 2011 is identified in the Wills Appeal.

4. Secondly, once question two is withdrawn, this leaves only the first question. The first question contains multiple grounds that are untenable and should be withdrawn. By way of example, [1b] of the grounds to the Wills Appeal states:

The First Respondent, in its Amended Statement of Facts Issues and Contentions lodged with the Tribunal did not allege or particularise any involvement by the Applicant in the affairs of Productivity Partners save for the fact that he was a director;

5. This is demonstrably incorrect. As but one example, ASQA, in its Amended Statement of Facts, Issues and Contentions: Standard 7.1 of 26 May 2020 (Ex 22) (7.1 SFIC [Statement of Facts, Issues and Contentions]), discusses evidence about the Advisory Board at [17] then goes on to explain Mr Wills’ role on the Advisory Board and its functions. Mr Wills’ roles are directly referenced to evidence, see [18] – [21]. His positions/roles during ASQA’s decision-making processes are also described in detail.

6. Thirdly, there is overlap with the issues raised in the SSG appeal in which Mr Wills is a party and in the only ground that potentially raises a question of law in the Wills Appeal. Ground 1(g) of the Wills Appeal substantially repeats question three raised in the SSG Appeal. In essence, both ask whether the Tribunal erred in making its finding about Mr Wills, because ASQA did not provide sufficient ‘particulars’ so that the parties were accorded procedural fairness.

8    The Open 23 February letter also addressed the SSG appeal and stated relevantly with respect to the third ground identified above which overlapped with the Wills appeal that:

13. The third question of law lacks merit. ASQA had no obligation to provide further particulars. In any event, the Tribunal did not adopt the contention which SSG says ought to have been particularised. Rather, the Tribunal determined whether Mr Wills was suitable for itself on the evidence, all of which was available to the parties.

9    Later on the same day, the solicitors for ASQA wrote to Mr Wills’ solicitors on a without prejudice basis (WP 23 February letter) which stated that it was to be read in conjunction with the Open 23 February letter. The WP 23 February letter stated relevantly that:

Calderbank offer

2. ASQA’s position is that the Tribunal’s decision is legally correct, and your client’s appeal therefore has limited prospects of success. We anticipate that at this stage all parties will have incurred costs, although more significant costs are likely to be incurred in the near future.

3. ASQA offers to agree to a notice of discontinuance foregoing its costs should your client discontinue their whole appeal. This offer is open until close of business on Wednesday, 10 March 2021. …

4. Should this offer not be accepted, this letter may be relied on by our client in respect of costs incurred from the earliest of (1) the institution of the Appeal or (2) the date of this letter.

10    The letter further stated that the offer was made on the basis of the principles in Calderbank and foreshadowed that it may be relied upon by ASQA including in seeking an order for indemnity costs. Enclosed with the WP 23 February letter was an offer of compromise made on Form 45 under r 25.01(1) of the FCR (the offer) for the whole of the proceeding to be discontinued and that there be no order as to costs. The offer was stated to be open to be accepted for 14 days after service of the offer and expired on 10 March 2021. No response to the offer was received.

11    On 28 May 2021, the first timetabling orders proposed by consent of the parties were provided to the Court and made by the Registrar on 25 June 2021.

12    Following discontinuance of the SSG appeal by agreement of the parties on 7 July 2021, ASQA filed a notice of objection to the competency of the Wills appeal on 27 July 2021 on the ground that Mr Wills sought to appeal under s 44 only from a finding of the Tribunal. In the alternative, ASQA contended that the Wills appeal should be permanently stayed as an abuse of process given that the SSG appeal had been discontinued with Mr Wills’ consent: see further Wills (No. 1) at [14].

13    By an interlocutory application filed on 29 July 2021, Mr Wills sought leave to amend the notice of appeal so as to appeal instead from the whole of the Tribunal’s decision, as opposed to appealing from the finding that Mr Wills did not satisfy the fit and proper person requirements in subparagraph (i) of Schedule 3 of the 2015 RTO Standards. He also amended the relief sought so as to set aside the whole of the Tribunal’s decision and omit any relief seeking that the matter be remitted to the Tribunal.

14    Subsequently, and in the light of observations in arguendo from the Bench at the start of the hearing of the s 44 appeal, Mr Wills sought to rely upon a further amended notice of appeal in which he sought relief further or in the alternative in terms of a declaration that the Tribunal denied him procedural fairness. ASQA opposed the grant of leave to amend on discretionary grounds.

2.2    The decision of the Full Court on the s 44 appeal

15    Relevantly, in Wills (No. 1), the Court first held that leave should be granted for Mr Wills to rely upon the further amended notice of appeal. The Court further held for the reasons there explained that “there is no abuse of process (at least insofar as declaratory relief is sought as opposed to setting aside the Tribunal’s decision) and that it is in the interests of justice to grant leave to amend” (at [15]). As such, the Court ultimately did not need to consider ASQA’s objections to the competency of the s 44 appeal insofar as they related to the notice of appeal before it was amended to include the claim for declaratory relief.

16    Secondly, with respect to ground 1 of the notice of appeal alleging a breach of procedural fairness, the Court held at [130] that:

Subject to only one caveat, with respect, it beggars belief that Mr Wills had any confusion about the case which ASQA sought to make and on which he had been on notice in the SSG Tribunal proceeding since the letter from AGS on 17 January 2019.

17    The caveat was that the letter from the Australian Government Solicitor (AGS) on 10 June 2020 was “arguably ambiguous” (Wills (No. 1) at [131]). However, the Court found that:

132. … any possible confusion about whether ASQA’s contentions had fundamentally changed since Mr Wills was joined to the SSG Tribunal proceeding was put beyond doubt by Ms Brennan QC … on day one of the second tranche of the Tribunal hearing. In unequivocal terms, Ms Brennan QC explained how ASQA sought to rely upon the ASQA PP decision and that, while ASQA was not “second-guessing” its reasoning, it was perfectly open to SSG or Mr Wills to challenge its reasoning if they disagreed with it. That position accorded with the case contained in ASQA’s Amended 7.1 SFIC, properly understood, for the reasons I have earlier explained. Furthermore, the Tribunal then ruled upon the issue, expressly accepting Ms Brennan QC’s submission as to the nature of ASQA’s case and, despite the Tribunal’s invitation for an adjournment to consider his position as a result, Mr Giles SC stated that he did not require any adjournment …

133.     The fact that Mr Wills (and SSG) continued to press a construction of SSG’s case in closing submissions as a confusing “half-way house” and may have made forensic decisions on the assumption that that construction would be ultimately accepted by the Tribunal, cannot alter the facts that:

(1)    as a result of the argument at the commencement of the first day of the second tranche of the hearing, Mr Wills (and SSG) were on clear notice as to the nature of ASQA’s case;

(2)    the Tribunal ruled at that point that the matter would proceed on the basis that that was ASQA’s case; and

(3)    Mr Wills (and SSG) had ample opportunity to meet that case notwithstanding any earlier confusion, given the invitation to have an adjournment to reconsider their position if they so wished.

134.     Nothing more was required to be done as a matter of procedural fairness. As Kirby J stated in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [38]:

Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

(Emphasis added.)

135. That being so, it also follows that there was no breach of procedural fairness in the Tribunal assessing material underlying the ASQA PP decision in order to satisfy itself as to whether Mr Wills met the [Fit and Proper Person] requirements as a step in its reasons for concluding that SSG had not complied with Standard 7.1.

18    The Court also held at [136] that the submission that ASQA had failed to particularise a specific fact which he performed in PP was “untenable”.

19    Thirdly, the Court rejected the submission that the Tribunal had found that PP was dishonest and therefore rejected ground 2 of the notice of appeal, as well as the ground 1 insofar as it proceeded on the wrong assumption that the Tribunal had made such a finding (at [142] and [144]).

3.    CONSIDERATION

3.1    Relevant principles

20    The Court’s discretion to award costs is wide. That discretion includes the power to order that costs be paid on an indemnity, rather than a party and party, basis: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (Colgate-Palmolive) at 232–233; NMFM Property Pty Ltd v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) [2001] FCA 480; (2001) 109 FCR 77 at [53]. As Sheppard J explained in Colgate-Palmolive at 233, there should be “some special or unusual feature in the case to justify the Court in departing from the ordinary practice” of awarding costs on a party and party basis.

21    Part 25 of the FCR dealing with offers to settle equates to the former Order 23 of the (now repealed) Federal Court Rules 1979 (Cth). Rule 25.01(1) of the FCR provides that “[a] party (the offeror) may make an offer to compromise by serving a notice, in accordance with Form 45, on another party (the offeree)”. Rule 25.14(2) of the FCR, upon which ASQA relies, in turn provides that:

(2)    If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant’s proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent’s costs:

(a)    before 11.00 am on the second business day after the offer was served—on a party and party basis; and

(b)    after the time mentioned in paragraph (a)—on an indemnity basis.

22    The purpose of Part 25 is to provide “a mechanism for the settlement of disputes by delivery of offers of compromise, and … cost consequences for the parties not accepting relevant offers within specified time periods”: Australian Competition and Consumer Commission v Black on White [2002] FCA 1605 at [6] (Spender J). Part 25, however, is not a code: University of Western Australia v Gray (No 21) [2008] FCA 1056; (2008) 249 ALR 360 at [31] (French J (as his Honour then was)). A party may rely upon a Calderbank offer notwithstanding that the party has not complied with the procedure set out in Part 25: Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [6] (Kenny J) (by analogy). In common with r 25.01 of the FCR, the common law principles concerning Calderbank offers are designed to encourage parties to give careful consideration to reasonable offers of compromise and to encourage such offers of compromise to be made. In this regard, the proposition that a Calderbank offer gives rise to a presumption that the party who rejected the offer should pay the offeror’s costs on an indemnity basis if the offeree receives a less favourable result has been rejected: Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 (Hazeldene) at [18]–[20] (Warren CJ, Maxwell P and Harper AJA); Brymount Pty Ltd t/as Watson Toyota v Cummins (No 2) [2005] NSWCA 69 (Brymount) at [12]–[13] (Beazley JA). Rather, the ultimate question is whether the failure to accept the offer in all of the circumstances warrants departure from the ordinary rules as to costs: Hazeldene at [20]; Brymount at [13].

23    The applicable principles for determining whether an offer was “unreasonable” were conveniently explained by the Full Court in Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112 as follows:

6. A well-established circumstance justifying an award of indemnity costs is an imprudent refusal of an offer to compromise (Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J). In such cases, a key question is whether the offeree’s refusal of the offer was “unreasonable” when viewed in light of the circumstances existing at the time the offer was rejected (Black v Lipovac & Ors (1998) 217 ALR 386 at 432 per Miles, Heerey and Madgwick JJ; CGU Insurance Ltd v Corrections Corporation of Australia Staff Superannuation Ltd [2008] FCAFC 173 at [75] per Moore, Finn and Jessup JJ).

7. The circumstances to be taken into account in determining whether rejection of an offer was “unreasonable” cannot be stated exhaustively but may include, for example:

(a)    the stage of the proceeding at which the offer was received;

(b)    the time allowed to the offeree to consider the offer;

(c)    the extent of the compromise offered;

(d)    the offeree’s prospects of success, assessed as at the date of the offer;

(e)    the clarity with which the terms of the offer were expressed; and

(f)    whether the offer foreshadowed an application for an indemnity costs in the event of the offeree rejecting it.

(Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) (2005) 13 VR 435 at [25] per Warren CJ, Maxwell P and Harper AJA; Beling v Sixty International S.A. (No 2) [2015] FCA 355 at [25] per Mortimer J).

8. An unsuccessful party is not liable to pay indemnity costs merely because it received an offer to settle on terms more favourable than it achieved at trial and rejected that offer (CGU Insurance at [75]; Black at [217]-[218]). As we observed in the Appeal Reasons, albeit in the context of r 25.14(2) of the FCRs, assessment of the “unreasonableness” of an offeree’s refusal of a settlement offer is a broad-ranging inquiry that is not restricted to consideration of the extent or quantum of the compromise offered.

3.2    The parties’ contentions

24    ASQA contends that the offer complied with the requirements of r 25.01 of the FCR and that Mr Wills unreasonably failed to accept its offer of compromise having regard to the following considerations:

(1)    ASQA’s offer was made early in the proceeding and, if accepted, would have avoided the incurring of significant costs and expenditure of Court time and resources;

(2)    Mr Wills was afforded a reasonable time within which to consider the matters raised by the two letters and to respond to the offer;

(3)    ASQA clearly communicated the issues it apprehended with the notice of appeal from the outset of the proceeding and its Open 23 February letter (which was to be read with its WP 23 February letter) clearly explained why ASQA considered the appeal would not succeed;

(4)    while Mr Wills could have clarified any aspect of ASQA’s position as explained in the Open 23 February letter or provided a response clarifying his position, no request for clarification, response to the matters raised by ASQA, or response to the offer, was ever received;

(5)    ASQA’s offer involved a genuine compromise, being the proposal that there be no order as to costs which, in judicial review proceedings, is the primary, and often only, form of compromise available; and

(6)    the WP 23 February letter clearly foreshadowed the application for indemnity costs.

25    ASQA further submitted that in these circumstances, the Court should infer from Mr Wills’ conduct that either:

26.1. the applicant took the view that his prospects were much higher than could objectively or reasonably be justified. Parties are required to approach settlement offers with some objectivity to fulfil their obligations under ss 37M and 37N of the Federal Court of Australia Act 1976. A failure to do so, or a misjudgement, particularly when a party is represented by senior counsel, only reinforces that an indemnity costs order is appropriate here. [or]

26.2. the applicant accepted the objectively high risk that he would be ordered to pay ASQA’s costs on an indemnity basis following rejection of ASQA’s reasonable offer, and he did nothing to attempt to settle the proceedings on a reasonable basis, including by making any counter offer or explaining his rejection of the offer. The seemingly accepted risk has been realised and the applicant ought to consent to this indemnity costs application.

26    It follows, in ASQA’s submission, that it was unreasonable for Mr Wills to reject the offer and therefore appropriate for him to pay ASQA’s costs on an indemnity basis consistent with r 25.14(2) of the FCR. Alternatively, if the offer did not satisfy the formal requirements for an order under r 25.14(2) of the FCR, ASQA submitted for the same reasons that it was unreasonable for Mr Wills to reject the offer and, as such, the Court has a sound basis on which to award indemnity costs in ASQA’s favour from 10 March 2021 in the exercise of discretion.

27    The application for indemnity costs is opposed by Mr Wills for reasons set out in his written submissions dated 1 March 2022 in response to those filed by ASQA on 22 February 2022.

28    Mr Wills contends that the court should find that the offer made by ASQA was not “a genuine compromise because, in the circumstances of judicial review of an administrative decision, an offer which amounts to the applicant abandoning the application with no success (practical or legal) is not a genuine compromise as that phrase is correctly understood”. Furthermore, even if the offer was a genuine compromise, Mr Wills submitted that the extent of compromise was relevant to determining whether rejection of the compromise was unreasonable or imprudent, and that in the circumstances, the only element of compromise by ASQA was in relation to its costs. Finally, and in any event, Mr Wills submitted that the appropriateness of offers of compromise in cases involving a public element has been questioned and that there is a strong policy of not discouraging applicants from seeking judicial review of the legality of administrative action “by the technique of an offer amounting to an invitation to capitulate coupled with the threat of indemnity costs”.

3.3    No order for indemnity costs should be made

29    We do not consider that this is an appropriate case in which an order for indemnity costs should be made on the basis of the offer by ASQA.

30    It is correct to say that there is significant support in the authorities for Mr Wills’ submission that an offer of compromise on the basis simply that there be no order as to costs is not a genuine compromise for the purposes of r 25.01(1) of the FCR or the Calderbank principle. For example, in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; (2002) 201 ALR 618 (approved by Stone J in Vasram v AMP Life Ltd [2002] FCA 1286 at [12]), Hill J held that:

60.     In Calderbank itself (Calderbank v Calderbank [1975] 3 All ER 333), the offer to settle divorce proceedings was one whereby the wife in divorce proceedings offered to transfer a house to the husband. It was an offer of a real compromise for a consideration of real value. By contrast the offer here made was to terminate the litigation with no cost orders being made. Spender J in Smallacombe v Lockyer Investment Co (1993) 42 FCR 97 at 102; 114 ALR 568 at 573–4 expressed the view that an offer to settle for a figure which included party and party costs fell outside the principle discussed in Calderbank. One reason for his Honour’s view was that there would be a genuine doubt as to the worth of the offer, a doubt that would not exist where there was payment into court under the court rules or by analogy an offer to pay the whole or some part of a claim contained in an open offer. His Honour’s view was followed by Goldberg J in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602; BC200002244, see at [24].

61.     The Supreme Court of New South Wales in McKerlie v New South Wales (No 2) [2000] NSWSC 1159; BC200007818 expressly held that an offer to settle a case by dismissing it with no order as to costs did not carry with it the consequences of a Calderbank letter. Dunford J in that case expressed the view that an offer in relation only to costs was not really a genuine offer of compromise.

31    Similarly, in Nutrientwater Pty Ltd v Baco Pty Ltd (No 2) [2010] FCA 304, Kenny J held that:

31. … the offer, even if not accurately described as just a ‘walk away offer’, was not far from such an offer. Save for Baco’s modest payment of $3,000 to Nutrientwater, each party was to walk away from the proceeding bearing its own costs. There are authorities to the effect that a defendant’s offer to settle on the basis that each party bears its own costs is not a Calderbank offer and, in any event, may not be considered a genuine offer of compromise: see Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In liq) (No 2) [2006] FCA 755 at [20]; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) (2002) 201 ALR 618 at [59]-[60]; McKerlie v State of New South Wales (No 2) [2000] NSWSC 1159; Vasram v AMP Life Limited [2002] FCA 1286 at [12]; and Fyna Foods Australia Pty Ltd v Cobannah Holdings Pty Ltd (No 2) [2004] FCA 1212 at [10]. It is unnecessary to consider whether these authorities directly assist here and whether a similar approach should apply in the context of O 23 r 11(6). It is sufficient to say that the extent of the compromise involved is a relevant consideration in determining whether there should be a departure from the prima facie position in r 11(6); or whether the rejection of the compromise offer was unreasonable or imprudent for common law purposes: compare Fyna Foods at [11] and Vasram at [13].

32    However, it is not necessary to determine this question here. Quite apart from the question of whether there was any genuine offer of compromise for present purposes, we do not consider that Mr Wills’ rejection of the offer of compromise was unreasonable in the circumstances existing at the time that the offer was made, notwithstanding the matters referred to at paragraphs [24(1)–(4) and (6)] above.

33    First, in the context of holding that there was no abuse of process in Mr Wills pursuing his s 44 appeal after the SSG appeal was discontinued and that it was in the interests of justice to grant leave to amend to permit Mr Wills to seek declaratory relief, this Court at [15] held that:

…

(1)     Mr Wills was a party to the Tribunal proceeding and therefore had a right of appeal under s 44 of the AAT Act;

(2)     as the Tribunal expressly recognised, he was joined for the reason that he had “a vital interest in these proceedings insofar as his reputation was at stake”;

…

34    It follows that Mr Wills had a real and significant personal interest in bringing the appeal, as he submitted.

35    Secondly, the offer was effectively a “walk away” offer only with each party bearing their own costs notwithstanding that an offer in such terms is likely to be the primary or only basis on which an offer of compromise might be made in judicial review proceedings, which also guides the issue in a s 44 appeal.

36    Thirdly, it was not in issue that a breach of procedural fairness would constitute an error of law for the purposes of s 44 (Wills (No. 1) at [15(3)]).

37    Fourthly, ground 1 was not untenable because of the arguably ambiguous statement in the letter from the AGS on 10 June 2020 which apparently “confirmed” the misapprehension by Mr Wills’ legal advisers as to the nature of ASQA’s case: see Wills (No. 1) at [131]–[134]. Furthermore, with respect to ground 2 and as an aspect of ground 1, Mr Will argued that the Tribunal had acted in breach of procedural fairness in finding that PP and/or Mr Wills had knowingly participated in fraud or dishonesty as encapsulated in the concept of a “rort” (see Tribunal’s reasons at [154] and [156]). While this Court held that no such finding was made by the Tribunal (Wills (No. 1) at [142] and [144]), it is fair to say, with respect, that the relevant findings by the Tribunal were not as clearly expressed as they might have been, as a consequence of which it cannot be said that Mr Wills’ construction of the Tribunal’s reasons was unarguable.

4.    CONCLUSION

38    For these reasons, the application for indemnity costs is refused. The appropriate orders are that Mr Wills is to pay the first respondent’s costs on a party/party basis on the s 44 appeal as agreed or taxed, save for the costs on the first respondent’s application for indemnity costs. The costs of the appeal payable to the first respondent should be reduced by the applicant’s party/party costs of and incidental to the application for indemnity costs.

Associate:

Dated:    22 March 2022