Federal Court of Australia

Roohizadegan v Technology One Limited (No 7) [2026] FCA 187

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is to pay the respondents’ costs of the proceeding from 6 April 2025, to be determined by a Registrar of the Court on a lump sum basis pursuant to r 40.02 of the Federal Court Rules 2011 (Cth).

2.    The determination of the respondents’ costs be in such method as determined by a Registrar who shall then make an order fixing the amount of costs which are to be paid within 14 days of the order.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The respondents apply to engage the discretion at s 570 of the Fair Work Act 2009 (Cth) consequent upon dismissal of the applicant’s proceeding on 18 December 2025: Roohizadegan v Technology One Ltd (No 6) [2025] 1619 (primary judgment).

2    As is well understood, a party may only be ordered to pay costs if one or more of the criteria at s 570(2) is satisfied. There are two questions: (1) should a costs order be made; and (2) if so, what type of order? This is not the occasion to restate the principles that inform the exercise of the discretion. Justice Dowling, if I may say so, pellucidly summarised those principles in Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Kwinana Bulk Jetty Case) (Costs) [2026] FCA 126 at [5]-[7].

3    The parties rely on written submissions and affidavit evidence.

4    The respondents do not seek a costs order for the first trial before Kerr J. They do not submit that the applicant instituted the proceeding without reasonable cause. The application relies on identified acts or omissions during the retrial that unreasonably caused them to incur costs and an unreasonable failure to accept Calderbank settlement offers (Calderbank v Calderbank [1976] Fam 93).

5    The applicant resists, submitting primarily that he succeeded decisively in the trial before Kerr J and was awarded approximately $5.2 million and did not know (and had no way of knowing) that he would lose the retrial. Considerable submissions and facts are relied on in support.

6    I have concluded that this is a clear case that engages the discretion to make a partial party and party costs order. Objectively and viewed prospectively as the circumstances were then known, there are identifiable matters that are relevant to assessing whether the applicant’s ultimate failure to accept a settlement offer made on 6 April 2025 to resolve the proceeding by a payment of $2.2 million (inclusive of costs) was unreasonable.

7    I find as follows. The applicant failed to focus the scope of his case to confine it within reasonable bounds to his core complaints: primary reasons at [4]-[6]. In the trial before Kerr J, the applicant pleaded 96 forms of proscribed adverse action which his counsel reduced to 10 by the time of closing submissions: Technology One Ltd v Roohizadegan [2021] FCAFC 137; (2021) 309 IR 262 at [8]. Before me, the Retrial Statement of Claim, when read with the Reply, asserted more than 350 combinations of how the respondents engaged in adverse action due to the multiplier effect of the Reply contention that 10 individuals in addition to Adrian Di Marco made the termination decision or materially influenced it for any one or more of the pleaded complaints or acts of discrimination, which exceeded 19 in number. How the multiplier operated was exposed in the written opening submissions of the respondents. By example for the s 340 claim, 13 events were pleaded as constituting 39 different forms of adverse action taken for 15 different reasons.

8    In several case management hearings, following the docketing of the matter to me, I raised with the applicant’s principal solicitor, Michael Harmer, the desirability of focusing the claim on the applicant’s strongest points consistently with the overarching purpose. I convened a case management hearing on 28 February 2023 at which I required the attendance of the applicant and a senior representative of Technology One for the purpose of exposing the real issues for determination and in consequence the efficient conduct of the trial. Contextually in closing submissions in the trial before Kerr J, the applicant abandoned allegations that he had been terminated because of temporary physical or mental disability, absence from work and a considerable number of non—termination adverse action claims. Despite the detailed discussions at the case management hearing, extending for 2 hours, the applicant maintained his right to pursue the expansive list of contentions in his retrial statement of claim. And thereafter, he further widened the scope of the claims in his Reply of 15 June 2023.

9    It is also the case that the respondent’s solicitors on 15 February 2023 sent correspondence to the applicant’s solicitor and explained in detail (over 15 pages) why many of the allegations in the retrial statement of claim should be reconsidered as having no proper basis in the evidence.

10    Many of those claims were inherently weak (primary reasons Part 18) and some were abandoned in closing submissions (primary reasons [189] – [195]). By maintaining these contentions, the applicant considerably extended the scope and length of the trial with consequential costs impacts of the respondents.

11    Relatedly, it was objectively unreasonable for the applicant to maintain the allegations that many individuals, apart from Adrian DiMarco, made the termination decision or materially influenced it is pleaded in his Reply. The pleading of that allegation required the respondents to put on evidence from each of those individuals in the form of affidavits, unanimously to the effect that it was Adrian DiMarco who was the decision-maker and for Mr Riteveski, Mr Rogers, Mr Hooper and Mr Phare, they had nothing to do with the decision. Acting reasonably, and with the benefit of that evidence, the applicant should not have pursued all of his Reply contentions. He should at least have abandoned some of them before commencement of the trial. In consequence, the respondents unnecessarily incurred costs.

12    The quantum claim was pursued based on objectively large and unreasonable assumptions that the applicant would have remained in employment with Technology One to retirement or would have secured alternative employment in the industry with equivalent remuneration entitlements until retirement: primary reasons [870] – [888]. The framing of a total claim exceeding $55 million as particularised in the Retrial Statement of Claim was objectively untenable. It led to the need to engage remuneration, accounting and lost opportunity experts, joint expert reports and extensive trial interrogation. The evidence that was available to the applicant, at the latest by day one of the trial, objectively exposed the fatal flaw in the applicant’s assumptions. His tenure as the regional manager of the Victorian region was in peril after the Rebecca Gibbons email of 24 April 2016. His health had led to a marked deterioration in his work performance and he was unable to accept the management cultural changes that followed the appointment of Martin Harwood as his direct superior in October 2014. His employment only continued whilst he maintained the confidence of Adrian Di Marco which evaporated when he read the Rebecca Gibbons email. The attempt to undermine the truthfulness of Rebecca Gibbons in her evidence and in turn the serious allegations that she set out to manipulate the content of her report was baseless.

13    During the trial, the respondents attempted to agree aspects of the applicant’s quantum claims if he succeeded on liability. In particular, on 3 March 2025, the solicitor for the respondents corresponded with the applicant’s solicitor in considerable detail and proposed that agreement be reached on quantum in respect of the applicant’s claims for unpaid base salary, unpaid incentives, unpaid retained incentives, the loss of opportunity to sell shares acquired through the exercise of options, lost income from alternative employment and the contractual claim. The response was to the effect that the applicant was unable to agree with any of the proposals. There was follow-up correspondence from the respondent’s solicitor in late March 2025, that that did not result in any sensible agreement, save that the applicant did agree the quantum figure for his contract claim.

14    Whilst I accept the applicant’s submission to the effect that there were many other meetings and exchanges of correspondence whereby there was discussion as to whether aspects of the quantum claim could be agreed, what is telling is that the applicant’s solicitor by correspondence of 13 March 2025, whilst acknowledging that resolution of the quantum claims was “a highly desirable outcome and consistent with the overarching purpose” nonetheless then stated:

Regrettably, it does not appear that the parties are in a position to agree. We therefore suggest that the Respondents should proceed on the assumption that there will be live issues at the hearing of 31 March to 11 April 2025 about quantum.

The explanation for the Applicant’s inability to agree is that, with respect, many of the Respondents’ proposed figures which quantified the loss were unrealistic and unduly low. The Applicant will therefore seek to prove his loss in the ordinary way.

15    The applicant’s accounting expert, Mr Katehos, gave evidence on 3 April 2025. The cross-examination exposed the flaws in the assumptions that he was requested to make: primary judgment at [49]. The remuneration experts also gave evidence on 3 April 2025. The result was they largely agreed on the alternative remuneration calculations, which the respondents offered to agree in the correspondence of 3 March 2025. All the costs associated with preparing for these aspects of the case, and in conducting cross-examination, could have been avoided if the applicant had engaged more usefully with the respondents’ proposals. This caused the respondents to unnecessarily incur costs.

16    Overall, these aspects of the applicant’s conduct of the trial very considerably increased its length and complexity. The cross-examination of the applicant extended over 11 days because of the multiple allegations pressed by the applicant and the vast quantum of his claims: primary reasons at [107] – [108]. Inevitably this caused the respondents to incur considerable additional costs.

17    However, as I said at the outset these matters standing alone would not have satisfied me that it was appropriate to exercise the discretion to make a costs order against the applicant pursuant to s 570 of the FW Act. The applicant had very substantial success in the trial before Kerr J. The Full Court did not conclude that his claims lacked merit. A retrial was ordered. The retrial was a hard-fought contest by each of the parties. The stakes were high. The respondents on the adverse action claims carried the statutory onus at s 361 of the FW Act, which in practical terms required them to adduce evidence from each of the contended decision-makers and material influencers. Caution must be exercised in the approach to the discretion at s 570 because of “the potential for discouraging parties to pursue, in a complete and robust way, the claims they seek to make under the Act, or the defence to those claims, and to ensure that the spectre of costs does not loom so large as to discourage parties from commencing, continuing or responding to claims”: Kwinana at [6(2)].

18    But there is a basis for making a partial costs order in this proceeding when one turns to the settlement offer of 6 April 2025 and where the antecedent conduct of the applicant is relevant to the unreasonableness issue.

19    The cross-examination of the applicant concluded on 15 October 2024. The trial continued until 23 October 2024 and was then adjourned to resume on 31 March 2025. On 4 April 2025, the applicant’s solicitors made a written offer to the respondent’s solicitor in the form of a Calderbank offer which inter-alia provided:

The Applicant is confident that he will be successful in establishing most, if not all of the pleaded allegations against the respondents.

We anticipate that there is some value to the Respondents in avoiding another disastrous round of cross-examination for its founder and former Chief Executive Officer, Adrian De Marco and its current Chief Executive Officer, Ed Chung.

Accordingly, we make the following settlement offer:

1.    The Respondents pay the sum of $30,000,000 to the Applicant, in respect of his complete incapacity to engage in productive work dating from 16 May 2016; and

2.    The parties enter into a mutual deed of release, that contains:

a.     mutual releases from all available legal claims;

b.     mutual non-disparagement obligations;

c.    mutual confidentiality obligations.

20    The offer was expressed as open for acceptance until 9.45am on 7 April 2025. The basis for the extraordinary sum sought was not explained. On 6 April 2025, the respondents’ solicitor replied in the following terms:

We refer to your without prejudice offer of 4 April 2025, enclosing a settlement offer of $30,000,000 (your Offer).

Your Offer is rejected. It is completely divorced from the state of the evidence and is embarrassing.

Given the disastrous evidence given by Mr Roohizadegan last year, and the evidence given by the expert witnesses over the past week, it must be plain to you that the prospects of Mr Roohizadegan obtaining an award of compensation in the realm sought (even assuming he succeeds on liability) is negligible.

Contrary to the asserted value of your Offer to the Respondents, there is great value to the Respondents in Mr Di Marco and Mr Chung giving evidence so that the Respondents can establish that Mr Roohizadegan was not unlawfully terminated. We confirm that Mr Di Marco and Mr Chung are ready to give evidence this week in accordance with the trial plan.

As you will appreciate, we are nearing the end of this long running matter, putting aside any further appeal. As such, the Respondents are reluctant to engage in any settlement discussions having regard to the significant preparation already undertaken and significant costs already incurred.

However, there remains another week of trial, followed by intensive work required to prepare and present closing submissions in accordance with the Court's requirements. Accordingly, there remains significant further costs to be borne by each party.

Our clients' last offer was $2,600,000 made in February 2022. For the above reasons, this figure was, and is, very generous in the circumstances. Having regards to our observations above, the Respondents are willing to resolve the proceeding on the following basis:

1. a payment of $2,200,000 (inclusive of all costs); and

2. they will not pursue Mr Roohizadegan for costs, including in respect of his unreasonable conduct relating to the late amendment to paragraph 76 of the Retrial Statement of Claim.

(Counter Offer)

This Counter Offer is subject to the usual terms committed to writing, as per point 2 of your 4 April 2025 letter.

The Counter Offer is made without prejudice as to costs, and in accordance with the principles in Calderbank v Calderbank [1976] Fam 93. The offer will remain open for acceptance for until 10am on Monday, 7 April 2025 after which it will lapse.

Please give strong consideration to this Counter Offer. If what we have heard from the medical expert conclave on Wednesday is correct, it is in Mr Roohizadegan's best interests that this litigation is put behind him

21    There was no reply to that offer. A failure to accept a Calderbank offer may amount to an unreasonable act or omission for the purposes of the s 570 discretion. The Full Court in PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53 at [20] stated:

There is little doubt that the offer here in question was reasonable. The appellants do not contend otherwise. The rejection of a reasonable offer to compromise proceedings can (but does not necessarily) constitute an unreasonable act or omission of the kind to which s 570(2)(b) of the FW Act refers: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221, 255 [166] (Tracey, Gilmour, Jagot and Beach JJ, with whom White J agreed on that issue). Again, whether the rejection of an offer to compromise proceedings can be impugned as unreasonable will be a question of impression and degree, to be informed by all of the circumstances that surround it. At the least, those circumstances will include the objective attractiveness of the offer, whether a more beneficial result was realistically possible and whether the effort required to achieve a more beneficial result was proportionate to any marginal benefit.

22    The making of the settlement offer and the applicant’s failure to accept it is to be considered objectively and in the circumstances as then known: “The critical question is whether the rejection of the offer was unreasonable in the circumstances”: Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 at [23]. The usual list of matters to consider (though not a check list in all cases) were identified by Lee J in Partick Stevedores Holdings Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (No 5) [2021] FCA 1645 at [6].

23    The first and in my view most important consideration in this proceeding is that the offer was made well-after the applicant’s cross-examination had concluded and with the benefit of the end of year holiday period and Court vacation. The applicant, in consultation with his legal advisers, ought to have given a mature reflection on the progress of his case to that point in time. It was in my view objectively correct for the respondents’ solicitor to characterise the applicant’s evidence in cross-examination as “disastrous”, for all the reasons that I set out in my primary reasons, but particularly at [104]-[144]. The applicant was repeatedly challenged in his cross-examination that his evidence was false, implausible, made up and otherwise unsatisfactory. It was manifestly clear to any observer that adverse credibility findings were highly likely in consequence of the applicant’s oral evidence. Acting reasonably the applicant, in conjunction with his legal representatives, should have reflected very carefully on the prospects of succeeding on his multiple claims well before receipt of the settlement offer on 6 April 2025.

24    It is true that the primary witnesses for the respondents on the adverse action contentions had not yet entered the witness box, but nonetheless the applicant had the benefit of all their affidavit evidence. The offer was made at a time when the inherent weakness of the applicant’s claims was objectively clear. I explained why in detail in my primary reasons, particularly Parts 15-18. Acting reasonably on what was then known to the applicant, he should have concluded that his prospects of success were dim on his termination and non-termination adverse action and his discrimination claims which formed the bulk of his proceeding. Effectively that left his contract claim with a best-case quantum significantly less than the offer.

25    Added to these matters is the antecedent unreasonable conduct of the applicant in the manner of the prosecution of his claims as found above. Acting reasonably in considering the settlement offer he should have considered the expansive scope of his claims and whether each of his multitude of claims could then be maintained on the evidence as it had been emerged. Similarly, he ought to have considered whether maintenance of the multiple decision-maker and material influencer contentions and the assumptions underpinning his huge quantum claim were realistic. And all of this considering the offer then made to resolve the proceeding.

26    Mr Hyde Page submits that the unreasonableness of an omission to accept a settlement offer “requires a consideration of what the Applicant could have achieved if the Applicant’s contentions had been accepted” for which there is cited Pia Mortgage at [20]. I have set out that passage. That is not what the Court said. The relevant considerations adverted to included whether a better result “was realistically possible”, not what the applicant may have achieved on his best case. Acting reasonably at the time of the offer, the applicant ought to have understood that a more beneficial result was not a realistic possibility.

27    The offer was sent by email on 6 April 2025 and required acceptance, if at all, by 10am on 7 April 2025, without more a relatively short period. However, in this case that was not an unreasonable limitation of time. The trial was proceeding. The applicant had clearly reflected on his case before instructing his solicitor to make his offer of 4 April 2025, and as I have observed he had a very considerable period to reflect upon the merit of his case following the conclusion of his cross-examination and during the adjournment of the trial between late 2024 and early 2025. In the circumstances, the time limit was not unreasonable.

28    Mr Hyde Page makes a submission about the timing of the offer that is difficult to follow. He commences by erroneously stating that the offer was made on 14 April 2025, that being the first day of Adrian Di Marco’s evidence. At 3.30pm on 4 April 2025, the hearing adjourned to 10.15am on 7 April 2025. The applicant had the benefit of 6 April 2025 as a non-sitting day to consider the offer. On 7 April 2025, Gareth Pye continued his evidence, and Adrian Di Marco commenced his evidence at 10.42am. On 14 April 2025, I sat briefly to resolve outstanding evidentiary objections to documents.

29    Having corrected those aspects of the submission, Mr Hyde Page further submits that Adrian Di Marco was a crucial witness (which is correct), that his version of the events had been comprehensively rejected by Kerr J and at the retrial “a great deal depended on whether the Court accepted his testimony”. Further, that the applicant could not have known that I would accept Adrian Di Marco as a credible witness.

30    It is true that Adrian Di Marco’s evidence was centrally important, but it was not the only evidence to establish that the termination was not for any contended prohibited reason. There was a vast amount of contemporaneous documentary evidence that the Full Court found Kerr J overlooked. There was the poor performance evidence of Martin Harwood, Edward Chung and Stuart MacDonald. And then there was the crucial Rebecca Gibbons email. The contemporaneous evidence weighed heavily in favour of the valid reasons that Technology One gave for terminating the applicant. Acting reasonably, the applicant ought to have assessed the offer by reference to all the evidence as then known (he had all the affidavits and the documents) and not simply pin his hopes on a future adverse credibility finding of Adrian Di Marco.

31    Further, the submission bespeaks the heavy reliance the applicant in the retrial placed on what occurred before Kerr J: primary reasons at [8], [19]. When the offer was made the applicant and his lawyers acting reasonably ought to have focused on what had occurred to that point in the retrial to assess his reasonable prospects of success. Not only was the applicant intensely probed in cross-examination to expose many falsehoods in his evidence and more broadly his case, he also had the benefit of the respondents’ written and oral opening submissions which set out in considerable detail the reasons relied on for the termination (poor financial performance, inability to accept the management hierarchy, poor interaction with subordinates, flatline licence fee revenue) with extensive reference to the contemporaneous documents relied on. In cross-examination, conformably with Browne v Dunn, all these matters were directly and in detail put to the applicant. These are the matters that ought to have been considered in assessing the applicant’s prospects of success when the offer was made.

32    A submission is now made by Mr Hyde Page to the effect that the length of the trial “is solely attributable” to the length of the applicant’s cross-examination. That is plainly incorrect. It ignores the large number of witnesses that the respondents were obliged to call to meet the applicant’s multifaceted claims and the glaring fact that the applicant prolonged his cross-examination by his conduct that I found at [106] of my primary reasons. It also amounts to a belated attempt to revisit the question of oppression that I raised twice during the cross-examination and which the applicant’s counsel did not take up: primary reasons at [107]-[108].

33    The extent of the compromise offered was significant. It was not the first Calderbank offer made by the respondents. In his affidavit Mr Gardner tabulates the history of all offers made by the parties:

34    Mr Gardner’s evidence is that the 6 April 2025 offer was less than the offer of $2.6 million made in February 2022 to reflect the fact that when it was made the respondents had incurred significant legal costs, the trial had already proceeded for 22 days and on their assessment the applicant’s prospects of success had reduced.

35    Although not all these matters were explained in the text of the settlement offer, in the circumstances as they were then known the applicant with the benefit of his legal representation, ought reasonably to have understood that the respondents would have incurred significant legal costs since the offer of February 2022. Indeed so much is obvious. The settlement sum offered was quite significant and on the disclosed basis that on the respondents’ assessment of the applicant’s chances of succeeding in obtaining an award of compensation in the amount sought were “negligible”. The offer reflected a genuine attempt at compromise on commercial terms which favoured the applicant at that time. Objectively at the time the applicant’s prospects of success at all, or in achieving an award at anywhere near the sum offered, were poor. Acting reasonably, the applicant should have understood that. Despite the respondents’ assessment at the time that in all likelihood the proceeding would fail, nonetheless the offer was a very significant compromise on that anticipated outcome. It was clearly a genuine commercially based offer designed to end the proceeding, extinguish the litigation risk for each party and save future significant costs.

36    Indeed, the last consideration may be taken further. At the time, the applicant held an unreasonable view of his prospects of success in believing that his proposal to settle for $30,000,000 reasonably reflected his prospects of success. The respondent’s solicitor was correct to describe the offer as “completely divorced from the state of the evidence”.

37    Mr Hyde Page further submits that a relevant consideration is also the quantum of legal costs and the “effort required to obtain the better outcome”. I accept this can be relevant, but there is no elaboration why in the submission. What was objectively known at the time was that each party had incurred very significant costs in the initial trial, the appeal and in the conduct of a good proportion of the retrial in a prima facie no costs jurisdiction. The respondents were nonetheless prepared to pay the applicant $2.2 million to resolve his claims, forgo any claims for costs that they then had and settle despite their assessment that the applicant would fail overall. That speaks to the reasonableness of the offer.

38    The offer was expressed in clear terms and was capable of immediate acceptance, subject to the requirement to enter into a deed of release containing the terms of that the applicant had earlier specified in his offer.

39     The offer contained the usual Calderbank warning in the event of non-acceptance.

40    There is also the antecedent conduct of the applicant that I have identified as unreasonable in the manner of the conduct of the proceeding. Acting reasonably the applicant in assessing the settlement offer should have considered how his conduct in the prosecution of his claims may later be relied on by the respondents in support of the s 570 discretion if he failed to achieve a better result by pressing on. He ought to have understood and assessed how those matters considerably increased the length and complexity of the trial and added to the costs burden of the respondents, but nonetheless the respondents were offering a very significant sum to end the proceeding. The applicant’s antecedent conduct and his failure to accept the settlement offer must also be viewed through the lens of the overarching purpose at s 37M and 37N of the Federal Court of Australia Act 1976 (Cth). The applicant was duty bound to conduct his proceeding, including his assessment of the settlement offer, in a manner consistent with the overarching purpose which is a relevant consideration in the exercise of the discretion at s 570 of the FW Act. Objectively, acting consistently and reasonably with that duty the applicant ought to have accepted the offer.

41    Michael Harmer in his affidavit in opposition to the application, adverts to the applicant’s health during the trial as a basis to explain that he was “distressed during the course of settlement discussions and particularly in the context of the retrial order” and his psychiatric condition caused him to distrust the Australian legal system that made it “difficult for him to reach decisions about the conduct of this litigation”.

42    That evidence is distinctly unsatisfactory. If the applicant was incapable of giving instructions to his lawyers in the conduct of this proceeding, then long ago an application should have been made for the appointment of a litigation guardian under division 9.6 of the Federal Court Rules 2011 (Cth). Indeed that is a matter that I raised at a case management hearing on 19 June 2024. Further, the applicant’s apparent distrust of the Australian legal system did not prevent him from instructing his lawyers to draft the expansive retrial statement of claim, to conduct the proceeding and, at a late stage, to put his settlement offer of $30 million. And none of the five psychiatrists who gave joint expert evidence expressed the opinion the applicant was incapable of giving instructions to his lawyers in the conduct of the proceeding, despite that Dr King touched on the applicant’s distrust in his report of 16 August 2023. Notably however, Dr King’s opinion was that the applicant’s distrust had no psychiatric basis. Considering these matters, I place no weight on this evidence of Michael Harmer.

43    For these reasons I have concluded that the applicant’s failure to accept the settlement offer was unreasonable which caused the respondents to occur additional legal costs from 6 April 2025. The whole of the respondent’s costs from that point were caused by the applicant’s unreasonable decision not to accept (indeed not to respond to) the offer. The discretion to make a costs order is therefore engaged and, in my view, a partial costs order is appropriate from the date of the offer. For completeness I explain why I have not reached a similar view concerning the respondents’ Calderbank offer of $2.6 million made on 14 February 2022. At that time there was a reasonable basis for the applicant to believe that his case had reasonable prospects of success, based on the findings of Kerr J that were not overturned by the Full Court and that the same or similar findings were open to be made on the retrial resulting in a award of significant compensation. Those prospects dramatically reduced during the retrial to the point when the offer of 6 April 2025 was made there was a seismic shift in the litigation risk. That the earlier offer was better than the ultimate outcome is not standing alone a dispositive consideration.

44    The respondents do not seek indemnity costs. In my view the appropriate order is that the applicant pay the respondents’ costs of the proceeding as between party and party from 6 April 2025 to be determined by a Registrar on a lump sum basis pursuant to r 40.02 of the Federal Court Rules 2011 (Cth). In my view a lump sum assessment is appropriate, having regard to the length and complexity of this proceeding and the matters referred to at cl 17 of the Central Practice Note (CPN-1).

Associate:

Dated:    4 March 2026