FEDERAL COURT OF AUSTRALIA

Noel v Cook (No. 2) [2004] FCA 721

LORNA EVELIN NOEL V HARVEY COOK AND SAVINGS AUSTRALIA PTY LIMITED (ABN 94 006 457 987)

N1501 OF 2003

BENNETT J

4 JUNE 2004

SYDNEY

THE COURT ORDERS THAT:

1.      The applicant is to pay the second respondent’s costs on a party-party basis.

REASONS FOR JUDGMENT

1                     On 22 April 2004, I delivered judgment in this matter in favour of the respondents, dismissing an application for review of a decision of the Superannuation Complaint Tribunal (Noel v Cook [2004] FCA 479). When judgment was delivered the second respondent made an application for indemnity costs.

background

2                     On 18 November 2003, the applicant and the second respondent attended a case management conference conducted by a Registrar of this Court. On 16 December 2003, this matter was set down for hearing before me on 6 April 2004.

3                     The evidence is that, on 19 December 2003, the second respondent spoke to the applicant and in the course of that conversation offered the applicant an ex gratia payment of $5,000.00 ‘all inclusive in the interests of resolving this matter on a commercial basis’. The applicant accepted the offer during the conversation. On 22 December 2004, the applicant wrote to the second respondent. In that letter she:

(a)                rejected the offer made by the second respondent in the conversation on 19 December 2004; and

(b)               made an offer to the second respondent that the second respondent pay $4,000.00 of the death benefit to the first respondent and pay to the applicant the balance of the death benefit.

The second respondent did not accept the applicant’s offer.

4                     On 16 February 2004, a letter that the second respondent submits was in accordance Calderbank v Calderbank [1975] 3 All ER 333 (‘the letter’) was forwarded by the solicitors for the second respondent to the applicant. On or about 2 March 2004, the applicant rejected the second respondent’s settlement offer conveyed in the letter.

5                     During the course of the hearing, on 6 April 2004, the second respondent indicated that, if it were successful, it would make an application for indemnity costs. On 22 April 2004, the second respondent sought an order, based on the applicant’s rejection of the offer contained in the letter, that the applicant pay its costs on an indemnity basis. In support of this application, an affidavit was tendered annexing the letter. I gave directions for the filing of evidence and submissions in relation to the application for indemnity costs.

6                     On 4 May 2004, the solicitors for the second respondent informed me that their application for indemnity costs was not being pressed. On 17 May 2004, I gave directions for the filing of submissions in relation to costs.

the applicant’s submissions

7                     The only submission received from the applicant was that she ‘can not afford to pay the other party’s costs’ (original emphasis) and she seeks an order that each party pay her or its own costs.

the respondents’ submissions

8                     No submissions were received from the first respondent, who did not attend the hearing and did not seek an order as to costs.

9                     The second respondent submits that, in the circumstances, particularly as it does not, despite the offer that was made in the letter, press its application for indemnity costs, the applicant should pay the costs of the successful second respondent on a party-party basis.

consideration

10                  Section 43(2) of the Federal Court Act 1976 (Cth) provides that the award of costs is in the discretion of the Court or the judge. In these matters, the ordinary course is that an unsuccessful party pays the costs of the successful party on a party-party basis (Harrigan v Department of Health (1986) 72 ALR 293 at 297).

11                  The applicant has not demonstrated why the ordinary course should not be followed in this matter. Accordingly, I order the applicant to pay the costs of the second respondent on a party-party basis.

Associate:

Dated:              4 June 2004