The Court held that the default cost consequences under r 26.08(4) of the Supreme Court Rules are inconsistent with the regime established by s 1317AH of the Corporations Act for whistleblower claims, such that where only s 1317AH(3)(b) is relied upon, no costs should be awarded for the period prior to the claimant's unreasonable act or omission. The rejection of a Calderbank offer in whistleblower proceedings can constitute an 'unreasonable act or omission' under s 1317AH(3)(b), but the threshold is higher than mere imprudence; on the facts, rejection of the fourth offer of $300,000 (inclusive of costs) was unreasonable given the plaintiff's extremely poor evidentiary prospects, the misconceived nature of key aspects of the claim, and the generous quantum relative to viable claims. A requirement in a Calderbank offer that the parties execute a deed of settlement reflecting the offer's terms does not render the offer uncertain or incapable of acceptance, following Lee v Yap (No 2), nor does a requirement for medical evidence of capacity where the offeree's own solicitor had raised capacity concerns.
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