EVIDENCE – whether evidence of Calderbank offer inadmissible under s 53B of the Federal Court of Australia Act 1976 (Cth) – whether offer made by email to the mediator constitutes evidence of anything “said … at a conference conducted by a mediator” – offer held inadmissible.

COSTS – where respondent acceded to part of the relief sought without admission of liability and the balance of the relief was subsequently dismissed by consent save as to costs – whether (different) Calderbank offer can be a foundation for indemnity costs when proceeding terminated without a determination on the merits – whether accession to part of the relief amounted to capitulation – whether it can be said that either side would inevitably have succeeded – whether subsequent dismissal of the proceeding by consent should be treated the same as discontinuance with regard to costs – where both parties have incurred substantial sums in costs – no discernible reason why one party or the other should pay costs – each party to bear its own costs.

Jennifer Mee represented the respondent.

Reasons for the decision can be found here.