By Paul Gregoire and Ugur Nedim
Justice Richard Cavanagh handed down the 12 September 2025 judgement in a civil suit to award plaintiff Luke Brett Moore $456,160 and also ordered that the defendant, the state of New South Wales, pay his legal costs in the case that involved New South Wales police having falsely imprisoning and maliciously prosecuting him, while a revised costs ruling has seen the state ordered to pay 88 percent of legal costs.
The state sought a variation on the initial ruling on 26 September 2025, with a view to persuading the court not to order costs incurred before 19 April 2024 and having Moore pay its legal costs on an indemnity basis, as per rule 42.5 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), which involves all costs incurred from lawyers. It also requested not to pay judgement debt, or total amount owing, until after resolution.
His Honour explained that the state of New South Wales initially made Moore an “Offer of Compromise’, or to settle the matter out-of-court, for $480,000 on 19 April 2024. This was made in line with the Calderbank principles, which means it was an offer to settle “without prejudice”, and therefore, if the case proceeded, there would be less certainty on recovery of indemnity or most legal expenses.
According to NSW, his Honour failed to award Moore at least $500,000 in damages, so this triggered rule 42.34 of the UCPR, which maintains that costs might not be awarded on finding that the plaintiff ought not to have proceeded due to the lack of compensation awarded. So, as Moore’s damages didn’t surpass the state’s 2024 settlement offer, he ought not to be compensated over court costs.
Indeed, following it being found that then NSW police constable Daniel Keneally had falsely claimed that Moore threatened the life of a Goulburn detective, the state of NSW considered that not only should it not cover Moore’s court costs, after he was found to have been maliciously prosecuted and wrongly detained in isolation for 22 days, but instead the victim ought to pay the state’s costs.
“Deficiencies in offer”
NSW Supreme Court Justice Cavanagh set out in his 17 October 2025 additional ruling on costs, that the state offered to settle the matter with Moore for $480,000 on 19 April 2024. This ‘Offer of Compromise’ was open for acceptance for the next 28 days after it was made, which is the regular time limit, and this was done in accordance with rule 20.26 of the UCPR.
A letter accompanying the offer involved the state outlining that it had been made in relation to the principles established in the 1975 UK Court of Appeal ruling Calderbank versus Calderbank. Such a letter must be marked with the statement “without prejudice save as to costs”, and it means that negotiators may use pressure in negotiations, which cannot be raised in any latter court proceedings.
A Calderbank offer can also result is a situation whereby if the damages being awarded, after the offer was rejected, are less than the settlement offer made, then there’s an option to order the defendant to pay costs on an ordinary basis, or only about 65 to 70 percent of total costs incurred, rather than on indemnity basis, which results in about 80 to 90 percent of costs recuperated.
Moore’s lawyers rejected this assertion based on the Offer of Compromise not being made in the correct form, which involved the defence having neglected to outline what offer the court should make to Moore if its variation submission on the original ruling was agreed to, which was based on the authority of the 2021 NSW Court of Appeal case Mount Arthur Coal versus Duffin.
This lack of citing a renewed court offer meant that rule 20.26 of the UCPR was not complied with. However, Justice Cavanagh noted that this was not as pronounced an issue as in the 2021 NSWCA case, and therefore, it did not hold in the current matter as “an alternative submission for indemnity costs based on the principles set out in Calderbank”, as had been submitted.
However, Moore’s legal team found further deficiencies in the state’s offer, asserting that it could not be accepted, as it was “vague and did not deal with essential terms”. So, in accordance with this line of argument, the state’s offer could not be accepted as it made no mention of “who would be paying the costs or to what orders the court might be making to finalise the proceedings”.
The plaintiff too put to the court that it was not unreasonable of Moore to have rejected the Offer of Compromise, as he was entitled to pursue the proceedings to re-establish his reputation, in accordance with the authority of 2025’s NSWCA case Daynes versus I-MED Central Queensland, I-MED Central Queensland versus Daynes. And these points were accepted by the court.
Another issue raised by Moore was that he couldn’t accept the offer as it was uncertain if he’d be permitted to argue his matter to a successful determination, or if the state of NSW would instead seek to end the matter by way of a deed of settlement, which can include a stipulation that the matter never appear in court. But it was found no unspecified deed could be imposed at this point.
The last matter of deficiencies in respect of the offer involved the defendant having not detailed any offer of payment of costs. A mention of a specific payment of costs is important, in terms of a situation where a defendant declines to pay an amount it has been ordered to pay by the court, as the plaintiff then can take legal action against them to recover the amount made in the offer.
“I accept the submission made on behalf of the plaintiff that absent any offer in respect of costs, that is, whether the offer was inclusive or plus costs, the plaintiff was not in a position to accept the offer,” Justice Cavanagh found on 17 October 2025.
“The onus is on the party making the offer to establish that it was unreasonable for the other party to have not accepted the offer,” his Honour continued. “In circumstances in which the offer did not deal with the question of costs, the defendant has not established that it was unreasonable for the plaintiff not to have accepted the offer.”
On the judgement resulting in less than $500,000
The second part of the state’s argument was that it not be required to pay indemnity costs, relying upon rule 42.34 of the UCPR, which maintains that if a defendant is made to pay the plaintiff less than $500,000, and the matter could have settled in the NSW District Court, then the defendant doesn’t have to pay the plaintiff’s court costs, unless the NSW Supreme Court finds it is warranted.
The state argued that the matter could have been cleared up in the lower court. However, his Honour didn’t accept this, and while he found an overreach on Moore’s part in terms of the number of officers he claimed were implicated in the malicious prosecution against him, it was important that the impact of rule 42.34 on costs be considered at trial.
Further, Justice Cavanagh explained that in terms of the claims Moore made and the damages he sought, if they’d been completely out of the ballpark, then rule 42.32 might have applied, and even though his claims relating to long-term psychiatric problems and loss of earning potential due to the impact of the malicious prosecution were not made out, there was basis to legitimately argue them.
“As I will not be making an order for costs in favour of the defendant,” his Honour added at this point, “it is unnecessary to further consider the defendant’s contention that I should in some way be staying payment of the judgment until such time as the issue of costs has been resolved.”
A successful outcome
Moore had sought to claim damages in respect of malicious prosecution relating to constable Keneally, who was criminally charged over his involvement in this matter, as well as two more officers, including sergeant Comer, who was not. Justice Cavanagh found the claim against Comer was an overreach, and therefore, the ruling on costs should reflect this.
There was also a matter relating to an expert report having been obtained and tendered by Moore without permission of the court, with the findings of the report having ultimately been rejected.
The state of NSW argued there should be a 25 percent reduction on payment of total court costs incurred by Moore, while the plaintiff argued 5 percent should be the case.
His Honour also noted that more than 50 percent of the proceedings dwelt on how much damages should be granted and further found that the state had admitted liability on the part of Keneally but not the other officers that Moore had cited.
“I propose to reduce the amount payable by the defendant to the plaintiff by 12 percent, to take account of the facts to which I have referred,” his Honour ordered a fortnight ago. “In the circumstances, I vary the costs order I made on 12 September 2025 and order that the defendant pay the plaintiff’s costs as agreed or assessed, but only 88 percent of those costs.”
And this “common sense approach” to the questions before the court resulted in the civil suit launched by Moore against the state of NSW and the NSW Police Force being a success, as if the costs ruling had not been as sizable an amount as it was, then the damages awarded would mainly have served to cover Luke Brett Moore’s court costs.
