By Matthew Skelly, Special Counsel and Lucas Oraha, Lawyer

In the matter of Tattersall v Dormakaba Australia Pty Ltd [2025] ACTCA 30, we were recently involved in successfully defeating the plaintiff’s appeal in the Australian Capital Territory Court of Appeal seeking to overturn the finding that the plaintiff’s Offer of Compromise was invalid due to deficiencies in form and clarity.

This judgment relates to Rule 1002 of the Court Procedures Rules 2006 (ACT), which is analogous to the NSW Rule 20.26 of the Uniform Civil Procedure Rules 2005 (NSW).

Facts

The matter arises from a claim by the plaintiff against the defendants for personal injuries sustained when a chain box for a manually operated roller door fell on the plaintiff’s head.

On 12 October 2023, the plaintiff made an Offer of Compromise to the defendants in the sum of $245,000 (Offer).

On 14 December 2023, the plaintiff’s claim was successful against three remaining defendants and the Court found in favour of the plaintiff  in the sum of $347,470.

The plaintiff sought a special cost order, relying on the Offer, and seeking costs against the defendants on a solicitor and client basis for the whole of the proceedings.  Agreeing with our submissions resisting the special costs order, Mossop J held the offer was insufficiently clear in its terms to constitute a valid offer under the Court Procedures Rules 2006.  The plaintiff’s application failed.

This decision was appealed by the plaintiff, and was heard by Justice Baker, Justice Taylor, and Acting Justice Ainslie-Wallace constituting the ACT Court of Appeal.

The Court was unanimous in its decision (3:0) in finding that the Offer of Compromise prepared by the plaintiff was insufficient in its terms to comply with the Court’s rules, by failing to identify the proposed orders to dispose of the plaintiff’s claim.

Judgment

In its reasoning the Court of Appeal accepted, statutory offers require precision and clarity in the form setting out the orders to resolve the claim to ensure a statutory offer satisfied the Court rules. Acting Justice Ainsley-Wallace gave the detailed reasons with which Baker and Taylor JJ agreed.

Ainsley-Wallace AJ, limited the issue before the Court to answer the question “did the offer of compromise identify the proposed orders to dispose of the plaintiff’s claim?”

The Court of Appeal, agreeing with Mossop J, accepted the offer framed to resolve the whole of the plaintiff’s claim against multiple defendants, left unclear what was to happen if the offer was accepted by one, but not all of the defendants.

Taking the same approach as the NSW Supreme Court, the Court of Appeal accepted clarity of expression and formality of the orders offered, are essential to a valid statutory offer. This has been identified as a necessary condition to ensure the Offer of Compromise can be compliant with rule 1003(3) of the Court Procedures Rules 2006 (ACT) (UCPR 20.27) which provides any party with the power to approach the Court to have entered as judgment the terms of an accepted Offer of Compromise.

It was the appellant’s argument that the intended effect of the Offer could be inferred from the offer made. However, the Court found the notion of inference was itself justification for the finding that the Offer was not compliant with the Rules.

Additionally, the Court of Appeal accepted that if the inferences relied on by the appellant were sufficient, the Offer did not give sufficient guidance to render verdicts against non-participating defendants. It held that in this multi-defendant matter, if the Offer was accepted as a monetary judgment by one defendant, then the plaintiff’s claim against the other defendants would have remained on foot unresolved leaving exposed the plaintiff to adverse costs orders.

Commentary

The judgment has effect in both ACT and NSW, in the manner in which parties should be approaching offers of compromise.  The ACT Court of Appeal did not consider a plaintiff unable to make a valid offer of compromise in a multi-defendant matter, nor did it consider it necessary to provide guidance on a valid offer.

The judgment, in its simplest form, confirms the principle that any statutory offer must set out all orders a party seeks to resolve all or part of the claim to which the offer relates.  If the offer is to resolve the whole of the claim, the offer must provide a complete road map to finalising the claim.