KIM FLEMING In Person v FLINDERS UNIVERSITY In Person [2025] SASC 206

Applicant: KIM FLEMING In Person Respondent: FLINDERS UNIVERSITY In Person Counsel: MR N SWAN - Solicitor: HWL EBSWORTH LAWYERS Hearing Date/s: 15/10/2025, 29/10/2025, 19/11/2025 File No/s: CIV-22-014237 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. FLEMING v FLINDERS UNIVERSITY (No 2) [2025] SASC 206 Decision of the Honourable Justice Gray 17 December 2025 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - GENERAL MATTERS - POWER TO AWARD GENERALLY - GENERALLY PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INDEMNITY COSTS The applicant, Ms Fleming, filed a claim in negligence against the respondent, Flinders University, alleging a breach of the duty of care owed to her and breach of a statutory duty. That claim was dismissed by this Court on 15 October 2025. The respondent now seeks an order as to costs on an indemnity basis from the date of 14 days after a formal offer being filed for the applicant’s consideration, in addition to costs on a party/party basis prior to that date. The respondent contends that the formal offer is a relevant offer within the meaning of r 132.10 of the Uniform Civil Rules 2020 (SA). An application for costs on an indemnity basis pursuant to r 132.11 is made in the alternative, should r 132.10 be found not to apply in this case. The applicant does not dispute that costs should be awarded on a party/party basis to be taxed or agreed, but objects to an award of costs on an indemnity basis. The applicant contends the formal offer was not a relevant offer for the purposes of r 132.10 of the Uniform Civil Rules 2020 (SA) and indemnity costs orders should not be made as there was no misconduct and that the respondent could have made further attempts to settle the matter but did not do so. The applicant submitted it would be unconscionable to make an indemnity costs order. Held, granting the application for costs pursuant to r 132.11 of the Uniform Civil Rules 2020 (SA): 1. The purpose of r 132.10(1) of the Uniform Civil Rules 2020 (SA) is to limit the application of that rule to formal offers which are also relevant offers which comply with the criteria in that rule and compliance with all criteria is essential for the rule to have application: at [38]-[39]; 2. The formal offer in the form of a contract offer was not a relevant offer for the purposes of r 132.10 of the Uniform Civil Rules 2020 (SA) as there was no consideration payable to the applicant by the respondent, as required by r 132.10(1)(f): at [40]; and, -- 1 of 13 -- 3. Rule 132.10 not applying, the application for costs falls to be determined pursuant to r 132.11, and an order for costs on a party/party basis up to 31 May 2024, and on an indemnity basis from 31 May 2024, is appropriate: at [50]-[51]. Uniform Civil Rules 2020 (SA) rr 132.4, 132.10 and 132.11, referred to. Fleming v Flinders University [2025] SASC 171, applied. 100 PS Pty Ltd & Ors v Adelaide Equity Partners (No 2) [2022] SADC 47; Director of Public Prosecutions v Disorganized Developments Pty Ltd [2020] SASC 202; H, AW v K, S (No 2) [2023] SASCA 26, considered. -- 2 of 13 -- FLEMING v FLINDERS UNIVERSITY (No 2) [2025] SASC 206 Civil: Costs 1 GRAY J: On 15 October 2025 I delivered judgment in this matter. I dismissed the applicant’s claim.1 2 The applicant, Ms Fleming, had brought a claim in negligence alleging that the respondent, Flinders University (“the University”), breached the duty of care that the University owed to her. The applicant also claims that the University breached an applicable statutory duty of care. There were six factual issues in dispute between the parties. 3 In dismissing these claims, I rejected the evidence of the applicant in relation to the factual issues in dispute and accepted the version of events given at the trial by the respondent’s witnesses. 4 I found that the applicant had not established a cause of action in the tort of negligence. I found that the applicant had not on the evidence established any particular acts or omissions which could form the basis of such a cause of action and had not linked any identifiable acts or omissions to any identifiable loss or damage.2 5 I also found that the applicant had not established a statutory duty of care arising pursuant to s 18A of the Flinders University Act 1966 (SA) or pursuant to University Statute 6.4 and a breach of that duty giving rise to any identifiable loss or damage.3 I further found that no basis for the remedies sought had been established by the applicant.4 6 The respondent seeks the orders in respect of costs, including that costs be awarded on an indemnity basis. 7 The applicant does not oppose an order that she pay the respondent’s costs on a party/party basis to be taxed or agreed, however the applicant opposes the making of an indemnity costs order. Background 8 The proceedings were commenced by the applicant by statement of claim filed on 23 December 2022. 9 An application for summary judgment was brought by the respondent on 23 February 2023. By orders dated 7 December 2023, the application for summary judgment brought by the respondent was dismissed. Costs in respect of that 1 See Fleming v Flinders University [2025] SASC 171. 2 Fleming v Flinders University [2025] SASC 171 at [181]. 3 Fleming v Flinders University [2025] SASC 171 at [191]-[192]. 4 Fleming v Flinders University [2025] SASC 171 at [198]. -- 3 of 13 -- [2025] SASC 206 Gray J 2 application were reserved, and the parties both agreed that there should be no order as to costs in respect of that application. I have made orders to that effect.5 10 On 17 May 2024, the respondent filed a formal offer.6 The offer was an offer to settle the entire matter. The offer was made on a without prejudice save as to costs basis. The offer was in the form of a contract offer.7 The terms of the offer were that the offeror, the respondent, offered to enter into an agreement with the offeree, the applicant. The terms of the agreement were that:8 1. The Action be dismissed. 2. The terms of the settlement are to be kept confidential. 3. The terms of the agreement are otherwise to be as set out in paragraphs 6 and 7 below. 11 Paragraphs 6 and 7 of the formal offer provided as follows:9 6. The offer is made on the terms that the [ ] judgment [ x ] agreement include the following term as to costs: … [ x ] the Offeror pay the costs of the Offeree [ x ] on a party/party basis in respect of the period: up to and including the date on which this Formal Offer is accepted or 14 days after service of this Formal Offer (whichever is earlier). … 7. The offer is subject to the following conditions: 1. In full and final satisfaction of all claims in the Action, in addition to payment of any costs which might become due under clause 6 of this Formal Offer, the Offeror (Respondent) will: a. waive the remaining accommodation expenses owed by the Applicant to the Respondent currently in the amount of $3,682.05 as at 13 May 2024; b. pay the tuition fees for and on behalf of the Applicant to complete a Graduate Diploma in Legal Practice (GDLP) with an external provider (but not the Leo Cussen Centre for Law or Leo Cussen Institute) in and 5 See Record of Outcome dated 29 October 2025 (FDN 112), Order 1. 6 Formal Offer dated 17 May 2024 (FDN 43). 7 Formal Offer dated 17 May 2024 (FDN 43). 8 Formal Offer dated 17 May 2024 (FDN 43) at [4]. 9 Formal Offer dated 17 May 2024 (FDN 43). -- 4 of 13 -- [2025] SASC 206 Gray J 3 amount totalling no more than $12,000, with such payment to be made by the respondent to the external provider within 14 days of the Applicant providing the Respondent with evidence of acceptance of her enrolment to the course; c. allow the Applicant to graduate from Flinders University with a degree of Bachelor of Laws and International Studies; and d. not disclose the details of the formal written warning provided to the Applicant on 13 June 2018 to any third party other than to its solicitors, consultants, accountants or as required by law. 2. The parties must execute a Release Agreement which will operate as an absolute bar to all claims past, present and future in relation to the Applicant’s studies with the Respondent University (including the matters the subject of these proceedings). 3. The terms of settlement are to be kept confidential. 12 The matter proceeded to mediation on 23 May 2024.10 13 On 28 May 2024, the applicant filed a response to the formal offer stating “offer is not accepted”.11 14 On 31 May 2024 the formal offer expired. Submissions of the parties 15 The respondent submits that the applicant did not establish a basis for the remedies she sought.12 The respondent notes that in the ordinary course in such circumstances, the respondent is entitled to an order for costs in its favour. 16 The respondent submits that in this case, the appropriate order is that the applicant pay the costs of the respondent on an ordinary basis until 31 May 2024, and thereafter on an indemnity basis, save for the costs incurred in respect of FDN 15, in respect of which no order as to costs should be made. 17 The respondent contends that the respondent openly pleaded in its defence,13 filed a month after the commencement of the proceedings, in January 2023, that, as far back as 23 July 2018, the respondent had offered an opportunity to the applicant to obtain an award of the degree of Bachelor of International Studies and the degree of Bachelor of Laws and that the respondent had identified an option for undertaking Practical Legal Training with an external provider.14 10 Respondent’s Written Submissions on Costs dated 4 November 2025 (FDN 113) at 3, [12] (‘RWS’). 11 Response to Formal Offer dated 28 May 2024 (FDN 47). 12 RWS at 2, [6]. The respondent refers in this regard to Fleming v Flinders University [2025] SASC 171 at [198]. 13 Defence filed 27 January 2023 (FDN 9). 14 RWS at 2, [7]. -- 5 of 13 -- [2025] SASC 206 Gray J 4 18 The respondent therefore advances the position that quite apart from the merits of the applicant’s claim, the applicant has been in a position since July 2018 to mitigate any loss she considers she had suffered. The respondent contends that in the ordinary course, that factor, in addition to the failure to establish any cause of action, would be sufficient to justify an application for indemnity costs. 19 The respondent further relies upon a formal offer, being FDN 43, that the respondent filed and served on 17 May 2024. The respondent identifies the main features of the formal offer as being:15 1. The respondent offered monetary consideration by way of waiving an existing debt of the applicant to the respondent in the sum of $3,682.05. The waiving of that debt was said by the respondent to be an offer which offered consideration beyond any matter which arose in the proceedings. 2. The respondent also offered to pay up to $12,000 to an external provider to enable the applicant to complete a Graduate Diploma in Legal Practice, again something which was said to go beyond what the applicant could achieve in these proceedings. 3. The respondent offered to facilitate the applicant graduating from the University with a degree of Bachelor of Laws and International Studies. 4. The respondent offered to pay the costs of the applicant on a party/party basis in respect of the period up to and including the date on which the offer was accepted or 14 days after service of the offer, whichever was the earlier. 20 The respondent identifies that the formal offer was made prior to a mediation which occurred before Bochner AsJ on 23 May 2024 and remained open after that mediation, namely until 31 May 2024. The respondent identifies that the significance of that time period is that the applicant had every opportunity to both consider that offer and, if the applicant considered it, to discuss it with Bochner AsJ at the mediation, and to consider the offer further after the mediation concluded. Further, the respondent submits that there is no doubt the applicant received the offer as she filed a response rejecting the offer on 28 May 2024.16 21 The respondent identifies that the offer FDN 43 is a formal offer for the purposes of r 132.4 of the Uniform Civil Rules 2020 (SA) (“the Rules”) in that the offer was filed in the prescribed form to resolve a proceeding in terms of a contract to come into existence upon acceptance including terms for the disposition for the proceeding, namely to be in full satisfaction of all claims in the action.17 15 RWS at 3, [11]. 16 Response to Formal Offer dated 27 May 2024 (FDN 47). 17 RWS at 3, [15]. -- 6 of 13 -- [2025] SASC 206 Gray J 5 22 The respondent’s primary contention is that FDN 43 also meets all of the relevant criteria of a relevant offer as defined in r 132.10. The respondent advances specific submissions as to why, having regard to the terms of r 132.10(1)(f), FDN 43 meets all of the applicable criteria to be a relevant offer. The respondent contends that r 132.10(1)(f) concerns itself with the “payment of money”, “by one party to the other”. The respondent also contends r 132.10(1)(f) provides that to be a relevant offer, money is to be payable within 28 days after acceptance of the offer. The respondent goes on to contend that FDN 43 did not provide for payment of money to the applicant and, therefore, r 132.10(1)(f) is not applicable and does not affect the matter. The respondent contends that the offer is in these circumstances a relevant offer for the purpose of the rule.18 23 The respondent contends that the consequence of this interpretation of the Rules is that r 132.10(3) then applies19 and20 subject to the overriding discretion of the Court…the respondent is entitled to an order against the applicant for the respondent’s costs of the action (after the 14 days from the service of the offer) on an indemnity basis. 24 The respondent also advances an alternative argument that if it was considered that the offer was not a relevant offer, the provisions of r 132.11 would then apply and the Court would have a general discretion as to costs. 25 The respondent identifies that r 132.11(4) provides that, without affecting the general discretion of the Court as to costs, the Court may order that costs incurred after the rejection of an offer, be paid on a specified basis. The respondent submits that the obvious specified basis would be an indemnity basis. The respondent contends that the rule makes clear that an important consideration in the ordinary course would be the unreasonable rejection of a formal offer.21 26 In summary, the respondent contends that the rejection of the formal offer FDN 43 in the context of the judgment in this matter, and the case put forward by the applicant, was unreasonable, and the appropriate order in this case is that sought by the respondent, namely that the applicant pay the costs of the respondent on an ordinary basis to 31 May 2024, and thereafter on an indemnity basis, save and except for costs incurred in respect of FDN 15, in respect of which there shall be no order as to costs. 27 The applicant did not oppose that there be an award of costs in the favour of the respondent, however, the applicant opposed the application for any form of indemnity costs. In opposition to the making of an indemnity costs order, the 18 RWS at 4, [18]-[19]. 19 RWS at 4, [20]. 20 Uniform Civil Rules 2020 (SA) r 132.10(3)(e). 21 RWS at 4, [22]. -- 7 of 13 -- [2025] SASC 206 Gray J 6 applicant submitted in general terms that indemnity costs are ordinarily awarded in circumstances involving misconduct.22 28 In addition, the applicant identified that the respondent’s formal offer was filed in advance of the mediation. The applicant identified the formal offer and the mediation offer as being in the same terms. The applicant’s complaint appears to be that as the mediation occurred prior to the expiry of the 14 days’ allowance by the respondent on their offer, and given that the offer was not accepted nor rejected, the respondent could have been in a position to make another formal offer with the current offer standing, as the Rules provide for the making of multiple offers. The applicant’s complaint appears to be that given the respondent’s offer was not accepted at mediation and prior to the formal offer’s 14-day expiry, the respondent had ample time to make multiple formal offers with a view to compromise, or at least put forward an offer that could be worked on presumably by the parties, but the respondent chose not to.23 29 The applicant submitted that the respondent could have reinstated her position in her studies.24 The gravamen of the applicant’s complaint appears to be that the Rules provided for multiple offers to be made, and the respondent did not make a second offer or provide another offer other than that put forward in FDN 43.25 30 The applicant further submitted the respondent could have made a relevant offer.26 The applicant also contended other terms could have been offered by the respondent27 and rejection of the offer was not unreasonable. The applicant stated that it would be unconscionable for indemnity costs to be awarded against her.28 Consideration 31 The starting point in respect of costs is that costs follow the event. The effect of this would be to entitle the respondent to an order that the applicant pay the respondent’s costs. The applicant does not dispute the entitlement of the respondent to an award of costs in the respondent’s favour, and the issue joined between the parties concerns the respondent’s application for indemnity costs from 14 days after the service of the formal offer. 32 Rule 132.4 of the Rules provides for the filing of a formal offer. Rule 132.6 concerns the response to an offer. 33 If the formal offer is a relevant offer, then r 132.10(3) applies concerning the manner in which, subject to the overriding discretion of the Court, the costs of the 22 Transcript of Proceedings dated 29 October 2025 at T3.1-2. 23 Affidavit of Kim Fleming sworn 12 November 2025 (FDN 115) at 3, [19]-[27]. 24 Transcript of Proceedings dated 19 November 2025 at T16.1. 25 Transcript of Proceedings dated 19 November 2025 at T16.8-14. 26 Transcript of Proceedings dated 19 November 2025 at T11.36-12.5. 27 Second Affidavit of Kim Fleming sworn 12 November 2025 (FDN 115) at 4, [33]. 28 Transcript of Proceedings dated 19 November 2025 at T16.17-8. -- 8 of 13 -- [2025] SASC 206 Gray J 7 proceedings may be determined. If the formal offer is not a relevant offer, then the question of costs falls to be determined in accordance with the provisions of r 132.11. In this case, there was an offer filed. Pursuant to the Rules, to determine the effect of the offer, it is necessary to consider whether the offer is a formal offer and whether the offer is a relevant offer. A formal offer may be either a judgment offer or a contract offer; the respondent’s offer was a contract offer. 34 The effect of a formal offer being a relevant offer is that, subject to the overriding discretion of the Court, in a proceeding in which costs are generally recoverable by a successful party, the respondent is entitled to an order against the applicant for the respondent’s costs of the action to which the relevant offer relates after the specified time on an indemnity basis.29 The effect of an offer not being a relevant offer is as indicated above, namely, the question of costs falls to be determined by reference to r 132.11. 35 On an ordinary reading of r 132.10, that rule provides that a relevant offer is a formal offer in compliance with r 132.4, if the offer complies, in the case of a contract offer, with each of the criteria set out in subparagraphs (a) to (f) of r 132.10(1). In other words, a formal offer may also be a relevant offer, but not every formal offer will be a relevant offer.30 On the construction of r 132.10(1) which I adopt, relevant offers are a subset of formal offers which in the case of a contract offer must meet each of the criteria in subparagraphs (a) to (f). 36 I find that the ordinary reading of the rule, and the construction I have set out above, is further supported by contextual and purposive considerations. 37 A relevant contextual consideration is that the matters contained in each of subparagraphs (a) to (e) specify criteria that a relevant offer must contain and comply with. I consider that subparagraph (f) should be read in the same way. That is, subparagraph (f) should be read as also specifying criteria that a contract offer must contain and comply with. This means that for a contract offer to be a relevant offer, it must provide that the consideration payable by one party to the other is the payment of money.31 38 I consider that the purpose of the rule is to limit the application of r 132.10 to formal offers that are relevant offers that is, in the case of contract offers, offers which comply with each of the criteria in subparagraphs (a) to (f).32 I consider that this purpose is supported by compliance with each of the criteria in subparagraphs (a) to (f). That is, the requirements of each subparagraph must be met. I find that 29 See Uniform Civil Rules 2020 (SA) r 132.10. 30 See further, in respect of a judgment offer, H, AW v K, S (No 2) [2023] SASCA 26 at [47] (Livesey P, Doyle and Bleby JJA). The Court of Appeal held that a relevant offer in the form of a judgment offer must comply with subparagraphs (a) to (e). 31 See Uniform Civil Rules 2020 (SA) r 132.10(1)(f)(i). There is also a requirement for the timeframe within which money must be paid: see r 132.10(1)(f)(ii). 32 See also Director of Public Prosecutions (SA) v Disorganized Developments Pty Ltd [2020] SASC 202 at [108] (Blue J); 100 PS Pty Ltd & Ors v Adelaide Equity Partners Ltd (No 2) [2022] SADC 47 at [58] (Thomas DCJ). -- 9 of 13 -- [2025] SASC 206 Gray J 8 a contract offer must contain and comply with all of the matters referred to in each of subparagraphs (a) to (f). 39 Whilst I accept that the construction for which the respondent contends is arguable, I do not consider it is a preferable construction of the rule to the construction set out above. The respondent’s construction states that because FDN 43 did not provide for the payment of money to the applicant, r 132.10(1)(f) has no application to the facts of this case and does not affect the matter and the offer is a relevant offer for the purposes of the rule.33 That is, the respondent contends that it is sufficient that subparagraphs (a) to (e) are complied with, as subparagraph (f) is not applicable on the facts of this case. I reject the contention advanced by the respondent that compliance with subparagraph (f) is not required because FDN 43 did not provide for the payment of money to the applicant. I find that the respondent’s construction is contrary to an ordinary reading of the rule. 40 The offer filed in this case was a formal offer in the form of a contract offer.34 FDN 43 provided for terms of the agreement that would be entered into upon acceptance of the offer.35 For the offer to also be a relevant offer within the meaning of r 132.10, the offer would need to comply with subparagraphs (a) to (f) of r 132.10(1). I find that FDN 43 is not a relevant offer because it did not comply with subparagraph (f) of r 132.10. That is, whilst FDN 43 was a contract offer, the offer did not provide for consideration payable by the respondent to the applicant being the payout of money. On the construction of the rule I have adopted, the consequence of this is that FDN 43 is not a relevant offer. 41 FDN 43 being a formal offer in the form of a contract offer but not a relevant offer means that r 132.10 does not apply, and the question of costs falls to be determined by reference to r 132.11 of the Rules.36 Rule 132.11 provides that when a party has made a formal offer and the offer was not accepted and judgment is granted in respect of the action on terms no less favourable to the offeror than the terms of the offer, the Court is to take these matters into account in exercising the general discretion as to costs.37 42 Rule 132.11(3) and (4) provides as follows: (3) Without affecting the generality of the discretion of the Court, in exercising its discretion as to costs under subrule (2), the Court may— (a) order that the offeree pay the costs of the offeror in respect of the action or the part the subject of the offer from 14 days after service of the formal offer on a specified basis; 33 RWS at 4, [19]-[20]. 34 See Uniform Civil Rules 2020 (SA) r 132.4. 35 See Formal Offer dated 17 May 2024 (FDN 43) at [4]. 36 See Uniform Civil Rules 2020 (SA) r 132.11(1). 37 See Uniform Civil Rules 2020 (SA) r 132.11(2). -- 10 of 13 -- [2025] SASC 206 Gray J 9 (b) order that the offeree bear its own costs in respect of the action or the part the subject of the offer from 14 days after service of the formal offer; or (c) make such other or further order as to costs as it thinks fit. (4) Without affecting the generality of the discretion of the Court, in exercising its discretion as to costs, if the Court considers that a party unreasonably rejected a formal offer or failed to make a formal offer, the Court may— (a) order that that party pay the costs of the opposing party after the rejection or date when an offer should have been made on a specified basis; (b) order that that party bear its own costs after the rejection or date when an offer should have been made; or (c) make such other or further order as to costs as it thinks fit. 43 In this case, the respondent made a formal offer which was in the form a contract offer. The terms of that offer provided significant financial benefit to the applicant. The offer provided for waiver of what was said to be an amount of money that the applicant owed the respondent in the sum of $3,682.05 as at 13 May 2024. The offer also provided for the payment by the respondent of the tuition fees for and on behalf of the applicant to complete a Graduate Diploma in Legal Practice with an external provider other than the Leo Cussen Centre for Law or Leo Cussen Institute in an amount totalling no more than $12,000, with such payment to be made by the respondent to the external provider within 14 days of the applicant providing the respondent with evidence of acceptance of her enrolment into such a course. 44 The offer also provided for non-financial benefit to the applicant, being graduation from Flinders University with Bachelor of Laws and Bachelor of International Studies degrees, and for limited non-disclosure of the formal written warning received by the applicant. I find, having regard to both the financial and non-financial benefits contained in the offer, that the judgment granted in this action was less favourable to the applicant than the terms of the offer. 45 The formal offer was made by the respondent prior to the mediation before an Associate Justice of this Court. As the respondent identifies, the effect of the timing of that offer was that the applicant as a self-represented litigant would have had the opportunity to properly consider the offer. The applicant did not present evidence that she responded with an offer that was capable of acceptance. 46 In considering the exercise of my discretion as to costs, I have also had regard to the fact that since 23 July 2018 the respondent offered an opportunity to the applicant to obtain an award of the Bachelor of International Studies and Bachelor of Laws degrees.38 The evidence adduced at the trial in this matter indicated that the applicant did not take up this offer and did not take other steps to mitigate the 38 As pleaded by the respondent: see Defence (FDN 9) at 2, [6]. This was admitted by the applicant in reply: see Reply (FDN 53) at 3, [8]. -- 11 of 13 -- [2025] SASC 206 Gray J 10 loss that she claimed she suffered.39 The failure to take steps to mitigate loss is a matter relevant to the exercise of the discretion as to costs. 47 I also have regard to the fact that the evidence of the applicant was not accepted at trial. The applicant was found not to be a witness of truth, and it was found that she held a false and distorted perception of events.40 The applicant’s version of events differed from that of a number of witnesses called by the respondent. 48 I find, having regard to the terms of the offer made by the respondent, the timing of that offer, and the failure of the applicant to take steps to mitigate the loss that she says she suffered, that the applicant acted unreasonably in not accepting the offer. 49 I have considered the submissions advanced by the applicant to the effect that respondent had the opportunity to develop the offer that the respondent advanced prior to the mediation and that the respondent could have made a relevant offer.41 Whilst the applicant may have preferred the respondent, having stated its position in the formal offer, to have advanced additional or different offers, I do not accept that the respondent’s failure to do so is a significant matter in the context of the application for costs now made by the respondent. 50 The respondent was entitled, having made a formal offer, to rely upon that offer, and there was no obligation upon the respondent to make additional or further offers. The effect of not making a relevant offer means that the matter will be governed by the general discretion as to costs and r 132.11 of the Rules, and the failure of the respondent to make further offers is not a matter which would in the circumstances of this case weigh significantly against the award of costs sought by the respondent. 51 I have considered all of the matters put forward by the parties concerning costs. In my view, having regard to the general discretionary considerations as to an award of costs, the matters referred to above, including the applicant’s conduct at trial in which she was found not to be a witness of truth and the findings I have set out above, it is appropriate to make an award for indemnity costs from 31 May 2024. Conclusion and orders 52 An award of indemnity costs is appropriate in this case. I have already made an order that there be no order as to costs in respect of FDN 15 and a further order concerning the costs of FDN 15 and no further order is required. 39 See also Trial Transcript at T175.6-6.21. 40 Fleming v Flinders University [2025] SASC 171 at [51]. 41 See Transcript of Proceedings dated 19 November 2025 at T11.36-12.5. See also Second Affidavit of Kim Fleming sworn 12 November 2025 (FDN 115). -- 12 of 13 -- [2025] SASC 206 Gray J 11 53 The orders of this Court are: 1. That the applicant pay the respondent’s costs on a party/party basis up to and including 31 May 2024; and, 2. That the applicant pay the respondent’s costs on an indemnity basis from 31 May 2024. -- 13 of 13 --