Jay v Baker (No 2); State of NSW (TAFE NSW Previously TAFE Commission) v Baker (No 2) [2018] NSWDC 354

Jay v Baker (No 2); State of NSW (TAFE NSW Previously TAFE Commission) v Baker (No 2) [2018] NSWDC 354

The late service by Ms Jay of substantial new medical evidence, particularly updated psychiatric material, was the principal reason the December 2017 hearing dates were vacated, so she should pay the defendant's costs thrown away in the 2015 proceedings. The State's Offer of Compromise did not substantially comply with Part 20.26 because it did not identify proposed orders for disposal and did not state whether any balance of the proceedings was to be abandoned or pursued; it also was not shown to be intended as a Calderbank offer, was not a genuine compromise, and was not unreasonably rejected. The State was therefore not entitled to indemnity costs, and the defendants were not required...

Jurisdiction
Australia
Judgment Date
27 November 2018
Procedural Posture
Costs Application in Civil Proceedings Involving Personal Injury Damages and an Indemnity Claim Under S 151 Z(1)(d) of the Workers Compensation Act 1987 (nsw) / Post Judgment Costs Determination After Final Hearing
Outcome
Costs orders were varied. Ms Jay was ordered to pay the defendant's costs thrown away by the December 2017 adjournment in the 2015 proceedings. The State of NSW's application for a special or indemnity costs order was rejected, and the defendants were not required to pay the State's costs thrown away by the...
Legal Topics
['costs Thrown Away by Adjournment' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'late Service of Medical Evidence']
['civil Procedure' 'costs' 'personal Injury' 'workers Compensation Indemnity'] ['costs Thrown Away by Adjournment' 'offer of Compromise' 'calderbank Offer' 'indemnity Costs' 'late Service of Medical Evidence']

Case Brief

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Procedural Posture

Costs Application in Civil Proceedings Involving Personal Injury Damages and an Indemnity Claim Under S 151 Z(1)(d) of the Workers Compensation Act 1987 (nsw) / Post Judgment Costs Determination After Final Hearing

Legal Issues

  1. 1 ["Whether Ms Jay should pay the defendant's costs thrown away by the adjournment of the hearing dates on 5, 6 and 7 December 2017 in the 2015 proceedings." 'Whether the State of NSW was entitled to indemnity costs from 21 June 2017 based on an Offer of Compromise.' 'Whether the Offer of Compromise complied with Part 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the Offer of Compromise could operate as a Calderbank offer.' "Whether the defendants should pay the State of NSW's costs thrown away by the adjournment in the 2016 proceedings."]

Ratio Decidendi

The late service by Ms Jay of substantial new medical evidence, particularly updated psychiatric material, was the principal reason the December 2017 hearing dates were vacated, so she should pay the defendant's costs thrown away in the 2015 proceedings. The State's Offer of Compromise did not substantially comply with Part 20.26 because it did not identify proposed orders for disposal and did not state whether any balance of the proceedings was to be abandoned or pursued; it also was not shown to be intended as a Calderbank offer, was not a genuine compromise, and was not unreasonably rejected. The State was therefore not entitled to indemnity costs, and the defendants were not required...

Court Disposition

Costs orders were varied. Ms Jay was ordered to pay the defendant's costs thrown away by the December 2017 adjournment in the 2015 proceedings. The State of NSW's application for a special or indemnity costs order was rejected, and the defendants were not required to pay the State's costs thrown away by the...

Orders

  • ['In the 2015 proceedings, Order (2) made on 25 September 2018 is varied only to the extent that the plaintiff is to pay the costs thrown away of and occasioned by the adjournment of the hearing dates on 5, 6 and 7 December 2017.' "In the 2015 proceedings, the plaintiff is to pay the defendant's costs of the costs...