Secretary, Department of Social Services & Commonwealth of Australia v Francesco Cassaniti and Maria Cassaniti (No. 2) [2015] NSWSC 1795

Secretary, Department of Social Services & Commonwealth of Australia v Francesco Cassaniti and Maria Cassaniti (No. 2) [2015] NSWSC 1795

Although the respondents succeeded on the motion, their 13 April 2015 letter overstated the position they would take in the AAT and was calculated to occasion unnecessary litigation and expense, thereby inducing the applicants to bring the motion. That justified depriving the respondents of their costs until a reasonable time after their 14 May 2015 clarification, but not beyond 21 May 2015. The applicants' motion was flawed and ultimately unsuccessful, but it was novel rather than hopeless, did not amount to an abuse of process, and did not fall below the Court's expectations of the applicants as litigants. The respondents' Calderbank offer did not justify indemnity costs because it...

Jurisdiction
Australia
Judgment Date
30 November 2015
Procedural Posture
Costs / Determination of Costs Following Unsuccessful Motion Dated 11 May 2015
Outcome
Applicants ordered to pay part of the respondents' costs on the ordinary basis; indemnity costs refused.
Legal Topics
['costs Following the Event' 'ordinary Basis Costs' 'indemnity Costs' 'abuse of Process' 'model Litigant Obligations' 'calderbank Offer' 'non Party Costs Jurisdiction']
['civil Procedure' 'costs'] ['costs Following the Event' 'ordinary Basis Costs' 'indemnity Costs' 'abuse of Process' 'model Litigant Obligations' 'calderbank Offer' 'non Party Costs Jurisdiction']

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Procedural Posture

Costs / Determination of Costs Following Unsuccessful Motion Dated 11 May 2015

Legal Issues

  1. 1 ['Whether the Court had jurisdiction to order costs for or against the applicants to the motion despite the applicants not being parties to the proceedings.' 'Whether the general rule that costs follow the event should apply where the respondents succeeded on the motion but had earlier induced the filing of the motion.' "Whether the applicants should pay the respondents' costs on an indemnity basis because the motion was said to be hopeless, an abuse of process, or inconsistent with model litigant obligations." "Whether the applicants unreasonably rejected the respondents' 14 May 2015 Calderbank offer."]

Ratio Decidendi

Although the respondents succeeded on the motion, their 13 April 2015 letter overstated the position they would take in the AAT and was calculated to occasion unnecessary litigation and expense, thereby inducing the applicants to bring the motion. That justified depriving the respondents of their costs until a reasonable time after their 14 May 2015 clarification, but not beyond 21 May 2015. The applicants' motion was flawed and ultimately unsuccessful, but it was novel rather than hopeless, did not amount to an abuse of process, and did not fall below the Court's expectations of the applicants as litigants. The respondents' Calderbank offer did not justify indemnity costs because it...

Court Disposition

Applicants ordered to pay part of the respondents' costs on the ordinary basis; indemnity costs refused.

Orders

  • ["The applicants pay the Cassanitis' costs of the applicants' motion of 11 May 2015 on the ordinary basis from 21 May 2015." 'Otherwise each party shall bear its own costs of the motion.']