Compensation and Compromise: Deciding Costs in Ziade and Australian Postal Corporation

Date: April 10, 2025

Ziade and Australian Postal Corporation [2024] AATA 3162.

Key Points:

• The Tribunal was required to determine whether Australia Post was liable to pay Mr Ziade’s reasonable party/party costs and disbursements following a Calderbank offer.
• The Tribunal found that Mr Ziade was to bear his own costs from the date the Calderbank offer was made.

Background:

Alexander Ziade lodged two Applications for Review of Decisions made by the Australian Postal Corporation (Australia Post): Applications 2019/7152 and 2023/8320). On 11 October 2023, Australia Post made an offer of compromise to settle the dispute without proceeding to hearing for a closed period up to 6 November 2019. The applicant did not accept that offer and the matter proceeded to hearing on 28 May 2024. The Tribunal subsequently affirmed the reviewable decision in Application 2023/8320, and varied the reviewable decision in Application 2019/7512 as follows:

The decision under review in application 2019/7512 is varied to the extent that Star Track is liable to pay Mr Ziade compensation in respect of the 6 August 2019 ‘injury’ under s 14, s 16 and Division 3, Part II of the Safety, Rehabilitation and Compensation Act 1988 up to and including 6 November 2019.

The parties subsequently made submissions on costs in Application 2019/7512. Australia Post sought to limit recovery of costs by Mr Ziade up to the date on which it made an offer of compromise for the purposes of settlement without proceeding to a hearing. Mr Ziade contended that he was entitled to recover costs without being limited to the day on which he refused to accept the offer of compromise.

The Law:

Section 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) provides that each party bears their own costs, subject to various circumstances where the primary rule made be displaced.

Conclusion:

Mr Ziade submitted that the Tribunal’s decision was favourable to him, and it was no less favourable than the offer Australia Post made on 11 October 2023. Therefore, he should be entitled to recover his costs in the proceedings without orders being limited to the period prior to 11 October 2023.

The Tribunal noted that a letter setting out an offer of settlement consistent with the principles enunciated in Calderbank v Calderbank may be appropriately considered in relation to an award of costs in particular proceedings. The Tribunal was satisfied that the Calderbank offer was clear and precise in its terms, including in respect of the risk non-acceptance posed to any order for costs. The Tribunal went on to say that the timing of the offer was shortly prior to the hearing which was listed to commence on 16 October 2023 (and subsequently vacated), and that the offer was stated to be open for seven days. For these reasons, the Tribunal was satisfied that this was a reasonable period for Mr Ziade’s lawyer to obtain instructions and reply.

Accordingly, the Tribunal found that it was appropriate under section 67(8) of the SRC Act to order Australia Post to pay Mr Ziade’s reasonable party/party costs and disbursements in the proceedings up to 11 October 2023, as agreed or taxed, when the Calderbank offer of settlement was made. Thereafter, Mr Ziade was to bear his own costs.

Lessons Learnt:

This decision highlights the importance of ensuring that claims for compensation are thoroughly examined against the legal thresholds for liability and causation. For insurers seeking to limit their liability, this decision further highlights the necessity of Calderbank offers and acting reasonably in litigation.

Contact:

Download PDF here:  Ziade and Australian Postal Corporation [2024] AATA 3162

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