Victorian Consolidated Regulations

SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 - REG 26.12

    (1)     Where a copy of—

        (a)     an application for leave to appeal;

        (b)     a notice of appeal to the Court of Appeal;

        (c)     an application for leave to cross-appeal; or

        (d)     a notice of cross-appeal to the Court of Appeal—

has been served, a party may serve on another party an offer to compromise the application, appeal or cross-appeal (as the case may be) on the terms specified in the offer.

    (2)     The offer may be on terms that take into account any application, appeal or cross‑appeal of the other party.

    (3)     Where in relation to a matter being an application for leave to appeal, an appeal, an application for leave to cross-appeal or a cross-appeal—

        (a)     a party has made an offer in writing to the other party (whether or not expressed to be without prejudice) to compromise the matter on the terms specified in the offer;

        (b)     the offer was open to be accepted for a reasonable time, but was not accepted; and

        (c)     the party making the offer obtains an order on the matter no less favourable to that party than the terms of the offer—

the Court of Appeal shall take those things, and also the stage at which the offer was made, into account in determining what order for costs to make in respect of the matter or, where appropriate, in respect of the matter and the proceeding more generally.

    (4)     The Court of Appeal, in exercising its discretion as to costs in accordance with paragraph (3), may order that the party on whom the offer to compromise was served pay the costs of the party who made the offer, taxed on a basis other than the ordinarily applicable basis—

        (a)     from the commencement of the matter;

        (b)     from the day the offer was served; or

        (c)     from any other time that the Court thinks fit.

    (5)     Unless the offer to compromise provides that the offer is not made without prejudice, no statement of the fact that an offer to compromise has been made shall be contained in any affidavit and no communication with respect to the offer shall be made to the Court of Appeal until the matter has been determined save as to costs.