Robinson v Ware[2012] QCA 70

SUPREME COURT OF QUEENSLAND

1. MUIR JA:  Fryberg J’s careful investigation of the facts of this unfortunate saga, for which I am grateful, enables me to state my reasons with relative brevity.

2. The litigation did not get off to a promising start. Mrs Ware’s statement of claim made the unfounded allegation that Orix was the “registered owner” of a Nissan vehicle which had collided with Mrs Ware’s vehicle. Mrs Ware’s insurers had been advised by the Australian Government Solicitor on behalf of ATSIC that their letter of demand had been forwarded to “Orix Australia Corporation Ltd, owners of the vehicle”. Mrs Ware’s solicitors drew from this advice that Orix was the owner of the Nissan driven by Mr Robinson and liable for damage caused by Mr Robinson through its use.

3. The statement of claim was not a model pleading. It contained a number of assertions of law rather than allegations of material fact, but the defendants made nothing of these; the case to be met by the defendants was clear enough. The important things to note for present purposes are that:

• Mr Robinson admitted that he was an employee and authorised agent of Orix. Orix denied that.

• Orix denied that it was vicariously liable for Mr Robinson’s negligence. Mr Robinson did not plead to the allegation with the consequence that he was deemed to have admitted it.^[1]

• Mrs Ware alleged that the accident was caused by Mr Robinson’s negligence in particularised respects.  Mr Robinson’s defence alleged that the collision was caused by Mrs Ware’s negligence as particularised by him.

• Mr Robinson claimed contribution against Orix in the event that he was found liable to Mrs Ware.

4. Mr Robinson, as a Commissioner of ATSIC, should have been well aware that he was not, as his pleading accepted, an employee or authorised agent of Orix.  The way in which Mr Robinson conducted his case shows that the pleaded defence was filed principally for tactical reasons.  The very brief evidence on trial established that Mrs Ware, keeping a careful lookout, drove through an intersection at about 50 kph, when her car was hit by a Nissan whose driver had ignored a stop sign. Mr Robinson did not contest a charge of failing to stop at a stop sign and was fined. He accepted that the front of the Nissan struck the middle of Mrs Ware’s car and that he did not see her car prior to the collision.  Mr Robinson’s focus at the trial was on obtaining an indemnity against Orix, not on defending Mrs Ware’s claim.

5. As well as having no reasonable prospects of defending Mrs Ware’s claim, of which it may be inferred he was well aware, Mr Robinson had no reasonable prospect of obtaining an indemnity against Orix. He did not come to the trial prepared to establish, and he did not establish, any basis for such an indemnity. That was not surprising. The solicitors for Orix were able to write to the solicitors for Mrs Ware on 10 August 2007 advising that Mr Robinson had admitted “that the accident was his fault [and]… that at the time of the accident he was employed by ATSIC and not Orix” and was driving a vehicle supplied to him by ATSIC.

6. If Mr Robinson had not instituted or pursued an unsustainable defence, the proceedings would have been greatly simplified.  Mr Robinson and Orix would have been free to focus on the relevant issues.  The likelihood is that contact between Mr Robinson and Orix would have led to an early identification of Mr Robinson’s problems.  That may have resulted in the joinder of an entity which was vicariously liable for Mr Robinson’s conduct or, more likely, the early resolution of the matter by the Nissan’s insurer.

7. Notwithstanding the obvious lack of evidence of negligence on the part of Mrs Ware, evidence which would support the claim that Orix was vicariously liable for Mr Robinson’s negligence and evidence which would support Mr Robinson’s claim for an indemnity against Orix, Mr Robinson appealed to the District Court against the Magistrate’s decision.  He sought judgment in his favour, presumably against both Mrs Ware and Orix. He alleged that she was negligent and, misguidedly, that the Magistrate erred in finding that Orix “was not vicariously liable to [him]”.  The only complaint about costs in the notice of appeal was to the effect that the Magistrate failed to give due weight to Mrs Ware’s and Orix’s delay in prosecuting the proceeding.  It should be noted that Mr Robinson’s conduct on the trial in the Magistrate’s Court and on appeal stands to be assessed in the light of his August 2007 admissions to Orix.

8. On the hearing of the District Court appeal, counsel for the appellant argued that the appellant had been denied procedural fairness by the Magistrate permitting evidence to be adduced of the registration of the vehicle driven by Mr Robinson without Orix having been given leave to withdraw its admission in that regard.  Counsel for Mr Robinson argued that if such leave had been sought, the Magistrate would have explained that the admission of the certificate of registration would not have been in Mr Robinson’s interest.  In relation to costs, it was argued, that neither Mrs Ware nor Orix had acted in a timely way with respect to the erroneous allegation and admission.

9. It is significant that the issue of registration on which so much attention was focussed in the Magistrates’ and District Courts was a peripheral issue at best. Mrs Ware’s claim against Mr Robinson did not depend on proof of ownership of the Nissan.

10. Having regard to the matters just discussed and the fact that it did not appear that Mr Robinson was prevented by the Magistrate’s orders from pursuing a claim for an indemnity against an entity liable to indemnify him, the Magistrate did not err in not advising that he seek an adjournment.  Also, even if the Magistrate had a duty to advise or assist Mr Robinson in the way his counsel identified in the District Court, it was not shown that any breach of that duty deprived Mr Robinson of the possibility of a successful defence or claim.^[2]  Thus, even if Mr Robinson had succeeded in showing such an error, it would not have entitled him to succeed on his appeal.

11. The notice of appeal filed in this Court contained 13 grounds of appeal. Grounds 1 to 3 inclusive were concerned with Mr Robinson’s liability to Mrs Ware or with a non-pleaded contributory negligence claim.  The only ground which, charitably construed, referred to costs, alleged that the judge erred in failing to find that the Magistrate had erred in failing to give due weight to Mrs Ware’s and Orix’s delay in prosecuting the proceeding.

12. Mr Robinson’s amended outline of submissions on this appeal was a little over eight pages.  Five and a half pages were devoted to an argument that Mr Robinson had been denied procedural fairness through the Magistrate’s failure to ask Mr Robinson if he would like an adjournment to seek legal advice with a view to serving a third party notice on ATSIC or ATSIS.  The remainder of the outline advanced an argument that if it was reasonable of Mrs Ware to sue Orix then it was not reasonable for her to keep Orix as a party once Orix had asserted that it was not Mr Robinson’s employer or principal.  For the reasons given by Fryberg J, Mr Robinson failed to make good his allegation of denial of procedural fairness.  His costs argument now needs to be considered.

13. In the light of the Australian Government Solicitor’s advice, Mrs Ware acted reasonably enough in instituting proceeding against Orix. Perhaps she should have abandoned her claim against Orix earlier, but one party can be forgiven for not acting promptly or at all on the advice of another and Mr Robinson had muddied the waters by admitting the allegation that he was the employee or agent of Orix; an admission which was never withdrawn. Nor did he withdraw the allegation that Orix was vicariously liable for his negligent conduct.  In fact, on the District Court appeal, Mr Robinson persisted in arguing that Orix was vicariously liable.  He also contested his liability to Mrs Ware.

14. In circumstances such as these it is necessary to take care not to assess the parties’ conduct with the benefit of hindsight. Mr Robinson did little to assist his cause before the Magistrate or the District Court.  He was plainly ill-prepared for the trial. In this Court his counsel submitted, accurately, that he had offered only “token resistance” to Mrs Ware’s claim, but even that was plainly unwarranted.  In the District Court, the substantive grounds of appeal were found unsustainable.  There was no error in that regard.

15. Mr Robinson’s conduct has been less than exemplary throughout the litigation.  He instituted and pursued an unmeritorious defence and an unsustainable claim against Orix.  It was Mr Robinson’s defence of Mrs Ware’s claim in circumstances in which he knew, or ought to have known, that he had no arguable defence that ensured that the proceeding went to trial.  Mr Robinson pursued an unmeritorious appeal to the District Court.  His conduct caused Mrs Ware and Orix to incur costs unnecessarily.  They were awarded costs on the standard basis and it is probable that there will be a substantial shortfall in the costs they are each able to recover. Mr Robinson’s conduct not only increased the costs burden of the other parties, but was likely to have been instrumental in the parties’ failure to resolve the proceedings without a trial.  He was very much the author of his own misfortune.

16. In my respectful opinion, the Magistrate’s costs orders were within his unfettered discretion. I am not satisfied that the Magistrate failed to have regard to the test propounded by Gibbs CJ in Gould & Anor v Vaggelas & Ors^[3] for the making of a “Bullock” order.  He quoted the relevant passages from Gibbs CJ’s reasons when dealing with the costs issues.  In my view when referring to Mr Robinson’s promotion and exacerbation of the joinder, the Magistrate probably had regard to the following observations of Gibbs CJ which he quoted:

“…It is sometimes said that the court may make an order of that kind – a Bullock order – where it was reasonable in all the circumstances for the plaintiff to bring the action against two or more defendants… There are some statements in the authorities which appear to support that view, including the judgment of Latham CJ in Johnsons Tyne Foundry Pty Ltd v Maffra Corporation.  In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff’s error or overcaution.

…

In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission, when he said that ‘there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant’.” (citations omitted)

17. Mr Robinson requires leave to appeal under s 118(3) of the District Court of Queensland Act.  Such leave will be granted normally “only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected”.^[4]

18. The amount involved in the costs orders in dispute is less than $10,000. If Mr Robinson’s substantive appeal is rejected, as in my view it ought to be, only the costs issue remains.  Courts are traditionally reluctant to permit the escalation of costs and the prolongation of litigation by the impugning of the exercise of discretions, particularly in relation to peripheral matters such as costs.  When s 140 of the Civil Proceedings Act 2011 comes into force it will insert a new s 118B in the District Court of Queensland Act 1967 which permits appeals to this Court only in relation to costs and only by leave of the judge who made the order or, if that judge is not available, another District Court judge.

19. At present appeals only in relation to costs are, for practical purposes, only by leave because of the monetary restrictions in s 118 of the District Court of Queensland Act.  Appeals from judges of the trial division of the Supreme Court in relation to costs are also only by leave of the judge making the order.^[5]

20. The question whether Mr Robinson has suffered substantial injustice requires consideration of more than whether the costs orders below were affected by error.  It is necessary also to consider where the overall merits of the matter in respect of costs lies between the parties.  The modesty of the sum involved combined with the costs of litigating over it is also a relevant consideration.  As I have sought to demonstrate in the preceding discussion, Mr Robinson’s conduct justified the Magistrate’s order for costs and it was appropriate that Mr Robinson pay the other parties’ costs of the unsuccessful District Court appeal.  But even if the costs orders below were affected by error, it does not seem to me that leave to appeal should be granted.

21. As I have explained, it was Mr Robinson’s conduct which led to an unnecessary trial and a District Court appeal in which the arguments advanced on substantive matters were lacking in merit.  The other parties have been put to unnecessary cost and inconvenience.  His proposed grounds of appeal, in the event he was given leave to appeal to this Court, were also unsustainable.  Mr Robinson has suffered no injustice, substantial or otherwise, as a result of the orders against which he seeks leave to appeal.  He has already had one review of the Magistrate’s decision.  He has not shown a reason why he should have another. 

22. Consequently, I would order that the application for leave to appeal be refused and that the applicant pay the respondent’s costs of the application.

23. CHESTERMAN JA:  I, too, am grateful to Fryberg J for his thorough recitation of the facts relevant to this application and his detailed analysis of the issues.  I agree with his Honour save with respect to whether the applicant should be given leave to appeal against the order for costs made by the Magistrate.  On that issue I agree with Muir JA leave should not be granted, for the reasons given by his Honour.

24. FRYBERG J:  It is impossible fully to understand what this application is about without a detailed knowledge of the history of the proceedings and the facts giving rise to them.

The place

25. Charleville stands on the banks of the Warrego River, some 750 km inland from the Queensland coast, in the heart of mulga country.  Proclaimed a town in 1868, it has a population of some 3,500.  Its tourism website proudly proclaims:

“Not many rural places have a choice of supermarkets or butcher’s shops.  We have two supermarkets, sundry corner stores, delis, cafes, three butchers and two bakeries.  No one should go hungry in Charleville.”^[6]

It also had a courthouse and a resident magistrate.  This year that magistrate is listed to sit there in civil jurisdiction for a total of 14 days spread over 12 months.^[7]  It is unlikely that sittings were any longer in 2004.^[8]

The parties

26. In that year Mrs Joan Ware, a retired lady, lived at Augathella, some 80 km to the north. She owned and drove a Ford Falcon motor vehicle. Mr Robert Raymond Lloyd Robinson then lived in Charleville. He was a Commissioner of the now defunct Aboriginal and Torres Straight Islander Commission (ATSIC).^[9]  As such he received salary and allowances determined by the Commonwealth Remuneration Tribunal, and he was provided with a vehicle, a Nissan Patrol four-wheel-drive.  It was owned by and registered in the name of ATSIC.

27. ATSIC evidently owned a substantial number of motor vehicles. On 25 October 2000 it entered into an agreement with Orix Australia Corporation Limited.^[10]  That agreement was still in operation in October 2004, and at least part of it covered the Nissan Patrol.  I shall revert to its provisions below.  For now it is sufficient to say that it contained two sections.  The first provided for Orix to lease vehicles to ATSIC and the second provided for Orix to provide fleet service and management for ATSIC.  ATSIC could invoke either section or both.

The accident

28. On 21 October 2004 Mrs Ware drove her niece, Tania Wong, to Charleville for a medical appointment. At the intersection of Sturt Street and Alfred Street, her vehicle was hit by the Nissan, then being driven by Mr Robinson.  He proceeded past a stop sign and did not give way to Mrs Ware.  At the time of the collision he was driving from his home to the office which he occupied as an ATSIC Commissioner, with his uncle as a passenger.  It is not now in dispute that the accident was entirely his fault.  Mrs Ware’s Ford was damaged and it cost $11,097 to have it repaired.

29. The Nissan was also damaged. Orix arranged for it to be repaired at B & W Body Works in Charleville. The work was paid for by “Lumley’s Insurance”.^[11]

The litigation in the Magistrates Court at Charleville

30. RACQ Insurance Limited, Mrs Ware’s insurer, wished to be reimbursed for the amount which it had paid for the cost of the repairs. It wrote letters of demand to Mr Robinson and forwarded copies to ATSIC. In May 2005 it received a reply from the Australian Government Solicitor on behalf of ATSIC advising that its letter had been forwarded to “Orix Australia Corporation Ltd, owners of the vehicle” and asked that all further queries be directed to that company. Thereupon it caused its solicitors to commence proceedings in Mrs Ware’s name against Mr Robinson and Orix in the Magistrates Court at Charleville.

The pleadings

31. The pleadings left something to be desired.

32. In para 1 of the statement of claim Mrs Ware pleaded that at all material times:

1. She was the “registered owner” and driver of the Ford and that Mr Robinson was the driver of the Nissan.  Mr Robinson, who at that stage was legally represented, admitted these allegations; Orix did not admit them.

2. Orix was the “registered owner” of the Nissan.  Both defendants admitted that allegation.

3. Mr Robinson was employed by Orix and was driving the Nissan with its full consent in the course of his duties as such.  Mr Robinson admitted these allegations and Orix did not admit them.  As its reason for so pleading, Orix asserted that they were not correct.

4. Orix was vicariously liable for the negligence of Mr Robinson.  Mr Robinson admitted this and Orix denied it.

33. Paragraph 2 set out the alleged circumstances of the collision and alleged negligence, giving particulars. Mr Robinson admitted some of the circumstances and denied others. Orix did not admit any of the allegations.

34. The remaining paragraphs dealt with quantum. It is unnecessary to describe them in detail.

35. Mr Robinson’s defence also alleged that the collision was caused by the plaintiff’s negligence (although, oddly, it did not allege contributory negligence and there was no counterclaim) and concluded with this puzzling paragraph:

“5.The First Defendant denies owing the Plaintiff the amount claimed and will be seeking indemnity from the Second defendant in the event that he is found liable to any extent for the damages claimed.”

36. As between the plaintiff and the defendants the pleadings closed in September 2005.  The record does not disclose what, if anything, happened between then and 2008.  In early April of that year Mr Robinson filed and presumably served a notice claiming contribution from Orix under r 208 of the Uniform Civil Procedure Rules.  By this time he was unrepresented, but it is apparent that the notice was prepared with the assistance of a firm of solicitors.  It claimed contribution under s 6 of the Law Reform Act 1995 and stated:

“This claim is made relying on the Plaintiff's allegations.  Unless you wish to rely on some matter not pleaded by you in your defence to the Plaintiff's statement of claim, you need not plead to this Notice and this Claim will be taken to be in issue.”

Orix did not plead to that notice.

The beginning of the trial

37. The trial took place before Magistrate Rinaudo on 18 April 2008. Notwithstanding the smallness of the sum at issue, both Mrs Ware and Orix were represented by counsel. Mr Robinson was unrepresented.^[12]  Mrs Ware very quickly proved her claim against Mr Robinson.^[13]  As senior counsel pointed out on his behalf in this court, he “offered only token resistance to the claim that he was solely negligent in causing damage to the plaintiff's property”.  In due course judgment was entered against him for the amount of the claim and for costs subsequently fixed at $6,589.30.  He does not now challenge that judgment and order.  His application for leave to appeal seeks to re-enliven the jurisdiction of the Magistrates Court so as to enable him to bring a claim for an indemnity on the ground that he was denied procedural fairness.  It also challenges an order for costs as between Mr Robinson and Orix.

38. At the outset of the trial counsel for Mrs Ware tendered a number of documents by consent. One was a document entitled “Current Registration Enquiry Result” issued by the Queensland Department of Transport. It related to the Nissan. It showed that on 20 January 2005 an organisation named Aboriginal & Torres Strait Islander Services (ATSIS) appeared in the records of the Department of Transport as that departments “customer” in respect of the Nissan. Why the plaintiff tendered that document was not explained – it did nothing to advance her case and did not even relate to the date of the accident. On the contrary, if she had been intending to advance a case based on some form of vicarious liability to be implied from ownership of the vehicle^[14], it tended to detract from her case.

39. Another document tendered by consent was the fleet agreement referred to above. It provided that if from time to time ATSIC desired to lease a vehicle from Orix and/or that Orix should supply fleet services in relation to a vehicle, a specified procedure should be followed which could lead to the fulfilment of that desire. The first schedule to the agreement set out the procedure for leased vehicles and the second schedule the procedure for vehicles the subject of fleet service and management. A particular vehicle could be brought under either one or both of the schedules.

40. If a vehicle were the subject of a fleet lease it remained the property of Orix; ATSIC became a bailee of it. During the lease ATSIC was required to ensure that at all times the vehicle was registered in accordance with the relevant State law. It was also required to keep the vehicle insured “in respect of … comprehensive insurance” unless it required Orix to provide such insurance under the Service and Management Schedule. As part of the services provided under the latter schedule, if the vehicle was involved in an accident or in need of panel repair Orix arranged to have it collected and delivered to a nominated repairer, controlled the collection of claim forms from the driver, lodged the documentation with the vehicle insurer and notified the driver when repairs were complete. If so required by ATSIC it was obliged to provide comprehensive insurance in respect of fleet vehicles, presumably through an insurance company.

41. No document was tendered to which directly proved the position of the Nissan under the agreement. The evidence supported an inference that it was subject at least to the Service and Management Schedule and in its written submissions at the end of the trial Orix conceded this.^[15]  The evidence also showed that comprehensive insurance existed in respect of it.  I shall return to the question of a lease agreement below.

42. The plaintiff and her niece gave short evidence about the circumstances of the collision and by consent an affidavit was tendered evidencing the quantum of her damages. No attempt was made to prove the case pleaded against Orix. In particular the allegations that Orix owned the Nissan and that Mr Robinson was its employee and was driving the Nissan with its consent and in the course of his employment were not pursued.

43. Upon the plaintiff closing her case, the following exchange occurred:

“BENCH: Now, Mr Robinson, who are you calling as witnesses?

DEFENDANT: Well, the thing is I think it's on the indemnity.  I've got a couple of witnesses, your Honour.  But also I've got - I've got-----

BENCH: So, just call the first one.

DEFENDANT: Well, I'd like to call Neil Black.”

44. Mr Black ran a panel shop and testified that on previous occasions, when Mr Robinson had damaged his vehicle, it would be repaired at that shop. The repairs were paid for by an insurance company, but his dealings were with ATSIC.

45. After Mr Black's evidence concluded, Mr Robinson sought to tender a copy of the invoice and receipt issued by B & W Body Works for the repair of the damage sustained by the Nissan in the collision, on the basis that it provided evidence that Orix had paid for the repairs. The invoice stated that the vehicle was owned by “Orix Leasing-Astic” (sic); the receipt acknowledged a payment from “Lumley's Insurance” of a quote apparently given to Orix Leasing.  He indicated his capacity to call the proprietor, Mr McLennan, to testify that he “got the go-ahead from Orix”.  Without formally objecting counsel for Orix seems to have opposed the tender on the ground that the document “doesn't purport to show Orix have paid for anything”.  However he did not submit that the document was irrelevant.  This led to a prolonged discussion between the bench and the bar table, particularly counsel for Orix.  The outcome was that the copy documents were admitted by consent, without the need to call Mr McLennan.

Ownership of the Nissan

46. Early in that discussion counsel disclosed what seems to have been regarded as his “killer point”:

“Exhibit 2 is a Queensland registration search which shows that it was ATSIC, or ASTIC as it's there, but by taking account of ATSIC and ASTIC effectively, for today argument, are one and the same.

BENCH: Yes.

MR FITZSIMONS: The owner of the vehicle is ATSIC. It's Mr Robinson's work vehicle, to put that in inverted commas.  It's the company car, if you like.

BENCH: Yes.

MR FITZSIMONS: Orix is a fleet management business.

BENCH: All right.

MR FITZSIMONS: And so they provide a service to all sorts of [corporations] and such, to streamline or to manage their fleets; the manage everything to do with their vehicle fleets.

BENCH: Mmm.

MR FITZSIMONS: But that doesn't even make them the owner.

BENCH: No, no, no. But it-----

MR FITZSIMONS: But there could be an argument in terms of a lease or something like that.  But the point is, registered owner is ATSIC.  The beneficial owner is ATSIC-----

BENCH: Yes.

MR FITZSIMONS: It's a car provided by ATSIC to Mr Robinson.

BENCH: Mmm.

MR FITZSIMONS: Orix really has nothing to do with it to any - in any real sense.”^[16]

Counsel then debated the point with the bench a discussion which occupied the next seven pages of the transcript.

47. Although Mr Robinson had not, at least on the record, spelt out the basis for his claim for an indemnity, it is apparent that all parties were aware that he was relying on the alleged fact that Orix was the owner of the vehicle as an element of his claim. Mr Robinson was not pursuing Mrs Ware’s claim that he was employed by Orix (he had admitted that he was employed by ATSIC at a pre-trial directions hearing), but ownership of the Nissan was in dispute. A claim for an indemnity on such a basis was not viable, but that is not the point here. The issue for now is procedural fairness.

48. The statement of claim, which Mr Robinson had adopted^[17], alleged that Orix was the “registered owner” of the Nissan.  As an allegation of fact, that assertion really involved two propositions: that Orix owned the Nissan and that its ownership was registered somewhere.  The latter claim was irrelevant and should not have been pleaded.^[18]  It may be disregarded as surplusage.  By admitting the question of ownership the defendants removed it as an issue. 

49. Had Mr Robinson been aware of the rules of evidence, he could have objected to the tender of the Current Registration Enquiry Result as evidence of ownership on the ground of irrelevance. He could also have objected on the ground that it implicitly involved the withdrawal of an admission without leave under r 188 of the Uniform Civil Procedure Rules and, probably, that it involved the assertion of a positive case which had not been pleaded, in contravention of r 149 of those rules.  As he was unrepresented, it would have been appropriate for the Magistrate to have raised these questions.  In the event, nobody raised them explicitly; but Mr Robinson touched on the last point:

“DEFENDANT: … Look, our friend here is tap dancing.  The Orix - this - this matter has been before the Courts for three or four years or more.

BENCH: Long time.

DEFENDANT: Yes.  And Orix, in any letters to any of my previous solicitors have never said, ‘Look, we're not responsible for this; ATSIC's responsible for it’, or, ‘Lumley's responsible for it’. That's ridiculous what our friend is saying here now.”

And later:

“DEFENDANT: They've accepted all these Court actions and all these times in Court and all this legal paper that's gone back before one and another, at no time - and I'm sure Mrs Ware who's represented here could say the same thing.  They have never come back and said, ‘Look, Orix is not responsible for this.  Lumley's are responsible’, or, ‘Orix is not responsible for this; ATSIC's responsible for this’.  It just goes to show that the - that the whole defence here that they have is misleading the Court because-----

BENCH: Well-----

DEFENDANT: -----you know-----

BENCH: -----to be fair-----

DEFENDANT: Yeah.

BENCH: -----they don't really say much in their defence and once they put in there (sic) defence, it's not really up to them any more and that's fair enough.”

With great respect, his Honour was wrong.  If Orix contended that the wrong party had been sued, it was obliged to say so in its pleading.

50. There was another problem with what counsel for Orix told the Magistrate. Counsel asserted that ex 2 demonstrated that ATSIC or ATSIS was the owner of the vehicle. In so doing he misled his Honour. Doubtless it was inadvertent but it was relevant to the case. As already noted ex 2 referred to registration, but only to the organisation name of the “customer”. It did not on its face make any statement about ownership. Counsel’s assertion implied that as a matter of law, the organisation recorded in the exhibit was the owner because the law provided for registration of owners. That was not correct. At the time of the accident in October 2004, the relevant legislation^[19] made provision for the registration of vehicles^[20] and for the recording in the register of the name of the “registered operator”.^[21]  Anybody could apply to have a vehicle registered^[22] and registration certainly did not imply ownership.  Common sense suggests that vehicles under lease will ordinarily be registered in the name of the lessee.  As the words emphasised above show, counsel was aware of at least the possibility that the Nissan was leased by Orix to ATSIC.

51. The Magistrate was clearly puzzled by what was put to him.  He asked counsel for Mrs Ware why she had sued Orix.  Counsel responded without objection from any other party:

“A demand was made by letter to Mr Robinson and then a demand was made to the Australian Government Solicitor on behalf of ATSIC. They told us that Orix owned the vehicle and that we should sue Orix, and that was basically, the response was we sued Orix.”

52. The error in what was put to the Magistrate on behalf of Orix was influential. Thereafter the case proceeded on the basis that ATSIS or ATSIC in fact owned the Nissan. It should not have done so. Ownership had been admitted by Orix and the correctness of the admission was corroborated by what had been said by the Australian Government Solicitor. Such ownership was entirely consistent with the vehicle being under lease from Orix to ATSIC as envisaged in the agreement between them. The likely existence of such a lease was corroborated by the invoice from B & W Body Works. Nothing in the registration search suggested the contrary.

53. I have focused on the question of the ownership of the Nissan at such length because it had an effect on the subsequent appeal to the District Court. In the Magistrates Court it was perceived by Mr Robinson as a step in his claim against Orix for indemnity.  He eventually attempted to explain that claim:

“With - in my statement in regards to insurance, that Commission's are covered by, you can ring any previous form of commissioners or any regional council chair persons in Australia, your Honour and they will tell you that everything's covered by insurance.  And the contract we had at the time is with Orix in regards.  Orix is responsible for this.  I've had a number of accidents over the years.  I was an ATSIC commissioner for 11 years and five months and during that period of time, I've had a half a dozen or more accidents for hitting roo - kangaroos and things like that.  My insurance has already - always been covered.”

54. That is not how a lawyer would articulate a claim on an insurance policy, but in my view it is clear enough that Mr Robinson was saying that he was entitled to be indemnified under the comprehensive policy of insurance which existed for the Nissan. On the evidence such policy clearly existed. The coverage of such a policy is well known. It invariably provides liability insurance in respect of third party property damage for the insured and for any person driving a vehicle with the insured’s consent. There was abundant evidence that Lumley Insurance had been notified of the accident and had accepted liability. It probably did not matter whether the Nissan was owned by Orix or ATSIC; under the fleet lease agreement all insurance was required to be in the names of both Orix and ATSIC. The insurer would no doubt have been entitled to run Orix's defence under the usual terms of a comprehensive policy. Whether it was doing so is unknown. Given the turn of events, it would have been appropriate for his Honour to have considered suggesting to Mr Robinson that he obtain legal advice about seeking an adjournment to join Lumley Insurance as a third party.

55. In his evidence Mr Robinson complained vehemently about the stance taken by Orix:

“In this case, Orix are the agents.  Now, when this accident occurred,

Orix had contacted me a couple of times and-----

And do you know who contacted you?-- Orix.

Yes, but who; do you know names?-- Yeah, I don't the names-----

No?-- -----yeah, in Orix.  But Orix had contacted me in a couple of occasions.  They asked me for these details and that details.  I then, at one stage, told them that they should contact the police.  They've contacted my solicitor on a numerous occasion.  I've told them to contact the police to get the - what occurred and - and more detailed statements and - and evidence.  I then, I think it was around about February or March, put that vehicle in - of 2005 - put that vehicle into Bill McLennan and I said, ‘Now, you need to contact Orix as far as the insurance was concerned to get that done’. … .  It - but that was always the procedure and how it went and you know, Orix wrote to - Orix wrote to me.  They wrote to my solicitors, Creevey, McClewett, Corser and Drummond and they wrote to them on a number of-----

You got any of those letters here; have you got any of those-----?-- No.  I haven't got any of them letters here with me, I'm - I'm sorry, your Honour. I didn't think I-----

But-----?-- I didn't think I'd need them because I know for a fact that a commissioner that I'm indemnified as far as my insurance is concerned … .

…

BENCH: Yes. It was 9th of April. Yes?-- So, you know – and Orix has - during all this period of time - and this is what gets me, your Honour, during all this period of time, Orix had never ever come up and said to me and my legal team, ‘Look, you know, you - you don't chase us. This is ATSIC's responsibility or this is Lumleys' responsibility’.

All right?-- They've never done that on any occasion and all - all of a sudden, we come to this Court case here and we're sitting in the Court here and all of a sudden, the counsels getting up and defending it and saying, ‘Look, it's not Orix's responsibility’.  Well, they had four or five years to say that, your Honour and never ever said it.  Then, all of a sudden, as - as part of a defence, they get up and want to say here and now.

All right.  Okay. Well-----?-- That's my evidence, your Honour.”

56. After giving his evidence, Mr Robinson closed his case. Orix called no evidence. Mr Robinson submitted orally in a fairly confused way that Orix was responsible for invoking the insurance and should indemnify him. In prepared written submissions, counsel for Orix submitted that it was not vicariously liable for Mr Robinson's conduct. Orally, he submitted that there should be no order for costs on the “notice of contribution indemnity”.

The decision of the Magistrates Court

57. In a reserved decision his Honour held that Mr Robinson was liable to Mrs Ware.  He held that Orix was not so liable.  He wrote:

“24 In so far as the second defendant is concerned, it seems clear that they have been joined as a party to the proceeding incorrectly.  The Plaintiff says that, in response to a claim served on the Australian Government Solicitors office, they were told to sue ‘ORIX’.  I was not shown a copy of this letter but have absolutely no reason to doubt that was what they were told.  It appears to have been bad advice, although again I say, I have not seen it.  In any event, given the defence filed in the proceedings and the apparent failure to establish the true position of the Second Defendant, it seems they should never have been made a party to the proceeding.

25. In so far as the first defendant is concerned, it is perfectly understandable that he would look to ‘Orix’ as he had done in the past.  He was an Atsic commissioner for a long time (as well as Deputy Chair for a period) and knows the role of ‘Orix’ and the process for making claims.  Indeed, his vehicle was fixed through ‘Orix’ in the usual way on this occasion as well as previous occasions.

26. However, on the evidence before me, it cannot be said that the second defendant is liable in any way in the proceedings.  It may have contractual obligations to Atsic, or its successor Atsis, but that is for another day.

27. A Reply, Further and Better Particulars, or Discovery could have sorted this all out a long time ago.  The first defendant could have commenced proceedings against ATSIC if they would not indemnify him.  In turn, Atsic could have taken proceedings against anyone it thought was liable to it.  But, this is speculation and a matter for legal advice for the First Defendant.

28. As to the delay, I accept that each of the parties is responsible to some degree for the delay as any of them could have pushed to action earlier.  However, I would be prepared to hear further on this issue.”

He gave judgment for Mrs Ware against Mr Robinson for $11,097 and for interest in the sum of $3,493.50.  He sought further submissions on costs.

58. All parties gave the Magistrate written submissions.  Orix sought indemnity costs against Mrs Ware and tendered letters sent to her solicitors containing without prejudice offers to settle.  In one of those letters it is tacitly admitted that Orix was the owner of the Nissan^[23] and in another that the vehicle was leased to ATSIC.^[24]  A third letter, dated 10 August 2007, read:

“We have now received further instructions in this matter following on from what was revealed at the Directions Conference.

As you would have noted Mr Robinson has admitted that the accident was his fault.  He also freely acknowledges that at the time of the accident he was employed by ATSIC and not Orix.  He acknowledges that he was driving a vehicle [supplied] to him by ATSIC.”

Mrs Ware submitted that any costs ordered against her should be on the standard basis and that the Magistrate should make a Sanderson or Bullock order against Mr Robinson.  In a written submission prepared by counsel, Mr Robinson submitted that had he been legally represented it was difficult to imagine that he would not have sought an adjournment to bring third-party proceedings against the correct party, because of the withdrawal of the admission of ownership of the Nissan.  He had been deprived of this opportunity by Orix's conduct.

59. On 13 August 2008 his Honour ordered Mr Robinson to pay Orix’s costs fixed at $8,040.16 (the standard basis). He wrote:

“49.In my view, the test is whether the Plaintiff joined the Second Defendant to the proceedings incorrectly, which it has.  It is therefore liable for their costs.  The test of whether the Plaintiff is entitled to indemnity from the First Defendant is whether the first defendant has done anything which promoted or exacerbated this.  On balance I am satisfied that he has.  Even though the Plaintiff says that it received a letter from the Australian Government solicitors Office, there is no doubt it was fortified in its view that the Second Defendant was a party to the proceedings by the First Defendant’s words and deeds.”

He gave no reason for refusing the second defendant’s application for costs on the indemnity basis. 

The appeal to the District Court

60. On 10 September 2008 Mr Robinson appealed to the District Court against the whole of the decision of the Charleville Magistrates Court. It was submitted on his behalf that the Magistrate in effect allowed Orix after the commencement of the trial to withdraw its admission of ownership of the Nissan. If the admission were to be withdrawn, it should have been done well before the trial and had that happened, Mr Robinson would have been in a position to join ATSIC (or the Commonwealth as successor to ATSIC) by third-party proceedings. Given the lateness of the change, the Magistrate should have enquired of Mr Robinson whether he wished an adjournment in order to obtain legal advice. That would have led to the joinder of the Commonwealth who would indemnify Mr Robinson.

61. Initially Mr Robinson did not appeal to the District Court on the question of costs alone. At the hearing of the appeal he applied for leave to amend the notice of appeal to raise the question and the parties argued the merits of the costs order at some length. Mrs Ware made the point that the appeal against that order was an appeal against the exercise of the discretion, and referred to House v The King.^[25]  It is true that Mr Robinson did not explicitly identify the error now relied on to impugn that exercise.  However Gould v Vaggelas had been quoted at length by the Magistrate and the passage must have been in the minds of those involved in the appeal.  Certainly the argument in the appeal took into account the possibility that error in the exercise of the discretion might be identified.  His Honour reserved his decision in relation to the amendment and it was agreed that if necessary, further submissions would be allowed.

62. Judge Dearden did not call for further submissions. He dismissed the appeal. He wrote:

“[5] The appellant denied liability and alleged that the first respondent was solely responsible for the collision, and claimed an indemnity from the second respondent to the extent that he [the appellant] was found negligent.  The second respondent filed a defence in which it admitted it was the owner of the vehicle.  Evidence at the trial indicated that this was factually incorrect, but at no stage did the second respondent seek leave to amend its pleadings as it was required to do pursuant to Uniform Civil Procedure Rules r. 188.  In fact, the evidence at the trial showed that the registered owner of the vehicle was Aboriginal and Torres Strait Islander Services (ATSIS).

…

[15]The learned magistrate concluded that the first respondent had incorrectly commenced proceedings against the second respondent, but that the appellant had failed to protect his interests in the litigation, and accordingly, pursuant to a ‘Bullock Order’, ordered that the second respondent's costs should be paid by the appellant.

[16]In addition, it was clear that the second respondent had, to some substantial degree, contributed to the confusion, because it had pleaded to owning the appellant's vehicle, a position which it only corrected at trial (but which was easily ascertainable prior to trial by a straightforward vehicle registration search).  No other entity (ATSIC, its successor entity ATSIS, or the Commonwealth of Australia), was ever substituted for the second respondent.

[17]In the circumstances, the learned magistrate concluded that the second respondent was entitled to costs, but restricted to costs on a standard basis ($7,825.16 plus $215.00 for the adjourned trial).  The learned magistrate ordered that the appellant pay those costs, on the basis that he had promoted or exacerbated the error of the first respondent in joining the second respondent to the proceedings.

[18]It is clear that all three parties to the Magistrates Court proceedings contributed in some way to the difficulties faced by the learned magistrate.  The first respondent incorrectly joined the second respondent as a party to the proceedings when (as would have been obvious from a motor vehicle registration search), the second respondent was not the owner of the motor vehicle, but only the fleet manager of the relevant motor vehicle.

[19]The appellant, as an ATSIC Commissioner, was well aware of the relationship of the second respondent to ATSlC and its successor entity (ATSIS), and was in the best position to join the appropriate entity (ATSIC or its successor entities) as a third party, and to facilitate the removal of the second respondent from the litigation.  The first respondent, of course, could also have easily identified the owner of the motor vehicle driven by the appellant with a motor vehicle registration search.

[20]In those circumstances, the learned magistrate exercised his discretion in respect of costs, to confine the costs order to the second respondent's standard costs (rather than ‘solicitor and own client’ costs), found the first respondent liable to pay those costs, but then ordered that they be paid by the appellant, given the learned magistrate's conclusion that the first respondent was entitled to an indemnity from the appellant, who had promoted or exacerbated the error of the first respondent.

[21]With respect, it again appears an inescapable conclusion that the learned magistrate has not erred in his discretion in coming to this conclusion.  It was a discretion which the learned magistrate was entitled to exercise, and he did so judicially, for sound and appropriate reasons, which he articulated.

[22]Turning then to the grounds of appeal, I reach the following conclusions:

…

6. Given the substantial delays that had already occurred prior to the trial on 18 April 2008, there was no error of law in allowing the matter to proceed to trial.  The issues as to the withdrawal of the admission by the second respondent as to ownership of the vehicle, did nothing to prejudice the appellant's defence, and was, in any event an issue which the appellant could have easily ascertained by his own enquiries.

7. The learned magistrate, in my view, did not err in any way arising from the fact that the appellant was unrepresented in the proceedings.  The appellant clearly received the fair trial that he was entitled to in the circumstances.

…

[24]… Further, I do not consider the learned magistrate has erred in the exercise of his discretion in respect of his orders as to the costs.  As set out above, I consider that the decision of the learned magistrate was, in the circumstances, the only reasonable decision, given the relevant contributions of all three parties to the unsatisfactory nature of the trial before the learned magistrate on 18 April 2008.”

63. His Honour granted leave to make the amendment and no party now challenges that decision. However he did not address the Magistrate's failure to consider whether Mrs Ware had acted reasonably in commencing proceedings against Orix. He made no reference to Gould v Vaggelas.  Instead he focused on the question of the ownership of the vehicle.  That may have had some relevance to the substantive appeal, but it was peripheral as far as the costs order was concerned; and the parties had recognised this.^[26]

The application for leave to appeal to the Court of Appeal

64. Mrs Ware submitted, and the other parties did not challenge, that leave to appeal under s 118(3) of the District Court of Queensland Act 1967 “will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected”.

An error to be corrected: lack of procedural fairness?

65. Senior counsel for Mr Robinson submitted that the trial in the Magistrates Court had been conducted with a lack of procedural fairness to Mr Robinson:

“20.The Applicant’s contention is that when the error of naming the wrong joint tortfeasor became evident, the Magistrate should have asked the First Defendant if he would like an adjournment and seek legal advice with a view to serving a Third Party Notice on ATSIC or ATSIS.  By that time the basis of his claim for indemnity was doomed to fail.  This step by the Court would not have caused any injustice to either of the other two parties.  If any prejudice were to be occasioned by such a course, one could not envisage any such detriment that could not be addressed by an appropriate order for costs.”

66. It will be observed that this is quite a different breach of procedural fairness from that argued in the District Court. There the breach relied upon was failure to adjourn when the admission of ownership of the Nissan was effectively withdrawn. In this court counsel submitted that the question of registered ownership was a “red herring” and an “irrelevancy”.

67. Mr Robinson did not contend that Mrs Ware’s judgment against him should be set aside. However he submitted that the matter should be remitted to the Magistrates Court to enable him to commence proceedings in that court against ATSIC (or the Commonwealth) and that in the meantime execution upon the judgment should be stayed.

68. In my judgment Mr Robinson has no prospects of success in an appeal on the ground of lack of procedural fairness. There are a number of reasons for this. First his submission assumed that there was some reason to think he might have been able to bring an action for indemnity against ATSIC. That assumption seemed to proceed on the basis that ATSIC would, if sued, have been vicariously liable to Mrs Ware for Mr Robinson's negligence; and that therefore he had a right of indemnity against it. The first of those propositions is by no means clear. The fact that Mr Robinson was driving from his home to his office with his uncle as a passenger is far from conclusive evidence of the foundation necessary for such liability. Even if the drive can be regarded as somehow having been in the course of his employment, on what ground did Mr Robinson have any right of indemnity against his employer? His counsel was unable to identify any cause of action open to him. Neither case nor statute was cited to support the existence of such a right. It may even be the law in Queensland that in the event that his employer was found liable to Mrs Ware, Mr Robinson would have been obliged to indemnify ATSIC.^[27]

69. In fact Mr Robinson seemed to be asserting at the trial that he was entitled to indemnity under the policy of comprehensive motor vehicle insurance issued by Lumley Insurance. On the face of things one would ordinarily expect the cover under that policy to extend to Mr Robinson^[28], and there is no suggestion that the policy was unusual in any way.  It would have been appropriate for the Magistrate to have asked Mr Robinson if he was aware of the existence of that insurance and if so, whether he had any claim against the insurance company under the policy.  There is no evidence of what the answer to the latter question would have been.  There was no evidence that Mr Robinson had notified the insurance company of Mrs Ware’s claim, although the company doubtless had notice of the accident.  There is some suggestion that he may not have done so.  He filed an affidavit in the Magistrates Court in support of his counsel’s written submissions as to costs.  Exhibited to that affidavit was a letter from ATSIS dated 16 June 2005 in which it was asserted that he had not followed ATSIC’s rules relating to the submission of a completed motor vehicle claims advice in respect of the accident.

70. Had the Magistrate considered adjourning the trial at the point when it emerged that Orix was not Mr Robinson's employer, that course would undoubtedly have been vigorously opposed by Mrs Ware. There is every reason to think that her opposition to an adjournment would have carried the day. Factors relevant to the exercise of the discretion included the following:

1. First, Mr Robinson was in the position in which he found himself as a result of his own negligence or that of his solicitors.  They had relied on the plaintiff's assertion that he was employed by Orix to found his claim for an indemnity against that company, and in Mr Robinson's defence had added to the confusion caused by Mrs Ware’s statement of claim by admitting the employment allegation;

2. Second, in the period between the pleadings and the trial they had done nothing toward commencing third-party proceedings;

3. Third, if Mr Robinson did have any rights enforceable by proceedings against a third party, refusing an adjournment would not have deprived him of those rights.  He would still be able to enforce them by a separate action;

4. Finally, nearly three years had elapsed since the proceedings commenced, the parties had finally come to trial at Charleville, with two of them legally represented by counsel, and the plaintiff was an elderly lady.

It seems unlikely that any application for an adjournment could properly have been granted.  Mr Robinson has certainly not demonstrated that it ought to have been.

71. Consequently, I would not grant leave to appeal to this court on this ground.

An error to be corrected: error in the order for costs?

72. At first sight two incongruities appear in the costs order made by the Magistrate. The first is that Orix expressly declined to ask for an order for costs in its favour against Mr Robinson, yet such an order was made. The second is that despite having found expressly that the plaintiff (or perhaps her insurer) was liable to Orix for its costs, the Magistrate made no such order and assigned no reason for the omission. Mr Robinson alone became responsible for Orix's costs. If he becomes insolvent, Orix will be out of pocket.

73. Those consequences would have been avoided had the Magistrate made a Bullock order rather than a Sanderson order. When it is appropriate to make such an order the question of which of the two types of order should be made involves an exercise of judicial discretion. Sometimes a Sanderson order may be made for reasons of administrative cleanliness^[29], but the court must also take into account the financial positions of the parties.^[30]  It is not apparent from the Magistrate’s reasons for judgment why he chose to make a Sanderson rather than a Bullock order.  However Orix neither appealed nor filed a notice of contention raising this question, so it need not detain us further.

74. It was Mrs Ware who submitted to the Magistrate that he should make a Bullock or a Sanderson order.  The test stated by Blackburn CJ for making such an order was approved in a well-known passage of the judgment of Gibbs CJ in Gould v Vaggelas.^[31]  It is unnecessary to quote the whole passage.  Blackburn CJ said:

“[T]here is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant.”^[32]

The application before us proceeded on the basis that this was a correct statement of the law.

75. The Magistrate quoted that passage in his reasons for judgment. Mr Robinson submitted in this court that despite having done so, his Honour failed to apply that test in that he considered only Mr Robinson's conduct and failed to take into account whether Mrs Ware’s actions in suing Orix were reasonable.

76. Orix submitted simply that it should get its costs from someone. If the court were minded to grant leave and allow the appeal, it should make the order which Orix originally sought, i.e. that Mrs Ware pay its costs. Mrs Ware accepted that submission, but submitted that in that event this court should make a partial Bullock order in her favour.

77. Mrs Ware submitted that the question of miscarriage of the Magistrate’s discretion for failure to consider the reasonableness of her commencing proceedings against Orix was not raised on the appeal to the District Court. For that reason leave to appeal should be refused. Alternatively she has submitted that when the question of reasonableness was considered, she had acted reasonably. Although she had incorrectly alleged that Orix was Mr Robinson's employer, he had admitted that fact and at all times pressed his claim for indemnity against Orix. He was in the best position of all the parties to know who his employer was. In considering the reasonableness of joinder what happened after the commencement of the proceedings was relevant, as well as what happened before they began. In any event, she submitted, Mr Robinson conceded that her commencement of the proceedings had been reasonable.

78. The last submission was incorrect. What counsel for Mr Robinson said was this:

“MR VASTA:  Well, your Honour, after four occasions of a communication by the second defendant they persist with it.  So that when you're talking about whether the - there's anything been done which promoted or exacerbated this it's really the plaintiff that continued in the light of these very, very cogent reasons as to why Orix shouldn't be there they had persisted with it.

FRYBERG J:  Presumably in reliance upon your admission that you were an employee.

MR VASTA:  Well, your Honour, with respect, can't make that assumption.  It just doesn't communicate what is a very reasonable offer to discontinue the matter for the cost of $500 when they say quite unequivocally, ‘We were not the employer of the first defendant.’  And they do that no less than three times.  So, the very first question which Gould and Vaggelas says was it reasonable for them to join the second defendant must be examined in the light of was it reasonable not only that they joined it but perhaps they could say, ‘Well, in view of what the AGS said to us, well, it was reasonable to initiate it.’”

If that constituted a concession, it was a very feeble one; and in any event it was made in relation to the ownership of the vehicle, not the allegation of employment.

79. The communications to which Mr Vasta referred were two letters and a facsimile sent by the solicitors for Orix to the solicitors for Mrs Ware in October 2005, March 2006 and August 2007, and a directions conference held some time prior to the sending of the facsimile. They were before the Magistrate.^[33]

80. In the first letter Orix clearly asserted that it was not Mr Robinson's employer and offered to settle for its costs incurred to date. The letter was marked “Without prejudice save as to costs”.

81. The second letter was similarly marked. It was evidently a response to an assertion by the solicitors for Mrs Ware that it had been reasonable to commence proceedings against Orix in light of the letter from the Australian Government Solicitor. As the solicitors for Orix put it, “That letter merely informs you that Orix Australia Corporation are the owners of the vehicle; it does not provide any basis for any cause of action against Orix.” It pointed out that Mrs Ware had not contacted Orix or even sent a letter of demand before commencing proceedings against it. It offered to settle for $500 for costs.

82. The facsimile recorded what had happened at a directions conference attended by Mr Robinson. Part of it is quoted above.^[34]  The facsimile offered Mrs Ware the opportunity to discontinue against Orix on the basis of paying its costs to date, which were subsequently said to have been $865.^[35]

Determining the application

83. I turn first to the question whether leave to appeal should be refused for failing to raise the proposed ground in the District Court. In my judgment leave should not be refused on that ground. The question of costs was squarely raised and argued in that court. It is true that Mr Robinson did not spell out in detail how the Magistrate’s exercise of discretion miscarried, but the fact that the appeal was against the exercise of discretion was raised, everything necessary to decide the point appeared on the face of the record and the merits were reargued. The District Court was seized of the issues. Mr Robinson should not be refused leave on the basis of how the appeal was presented below.

An error to be corrected

84. In my judgment Mr Robinson's submission that the Magistrate failed to consider whether it was reasonable for Mrs Ware to include Orix as a defendant is correct. Its correctness is demonstrated by the absence of any reference to that issue in the reasons for judgment. In fact Mr Robinson's submission understates the position, for the Magistrate held, “The test of whether the plaintiff is entitled to indemnity from the first defendant is whether the first defendant has done anything which promoted or exacerbated this [semble, the situation]”.  That was wrong.  His Honour should have applied the passage which he cited from Gould  v Vaggelas.^[36]

85. It follows that the District Court judge should have held that this was a case where, the discretion having miscarried, it was necessary for him to exercise the discretion afresh. He did not perceive that the discretion had miscarried and did not attempt to re-exercise the discretion. Had he done so he would not have made a Bullock or Sanderson order.

Substantial injustice

86. Mr Robinson has been ordered to pay Orix a little over $8,000 for costs. The order was wrongly made. Mrs Ware, who unjustifiably joined Orix in the first place, has to pay Orix nothing. An injustice has in my judgment been done.

87. But is it a substantial injustice? The order was made in a context where Mr Robinson was rightly ordered to pay Mrs Ware over $21,000 for her claim, interest and costs. Moreover, as will appear, a proper costs order would require Mr Robinson to pay a little over $1,200 for Orix's costs. In today's money the remaining $6,800 is not a large amount. On the other hand it is not a trivial amount. There is no evidence of Mr Robinson's financial position, but I would not assume that an Aboriginal person living in Charleville, even a former ATSIC Commissioner, would find it a bagatelle. Most people in Mr Robinson's position would be covered by the comprehensive insurance policy. We do not know why Mr Robinson has no such cover. Mr Robinson's lawyers must bear at least some responsibility for his position.

88. Whether an injustice amounts to substantial injustice cannot in my judgment be measured by dollars alone. Context matters. This injustice was attended by substantial and annoying ineptitude on the part of the lawyers for all parties. While Mr Robinson is not a figure to attract sympathy, he has in my judgment suffered a substantial injustice.

Conclusion

89. It follows that leave to appeal should be granted.

The appeal

90. The parties did not explicitly request the court to treat the argument on the application as the argument on the appeal. They seem to have assumed that this would happen. All the issues were argued in full and nothing would be gained by a further hearing. I would determine the matter immediately.

91. It follows from what has already been written that the Sanderson order must be set aside. It also follows, as Mrs Ware recognised, that there must be an order against her for the payment of Orix's costs. Such of those costs as were incurred after Orix first offered to settle on 5 October 2005 should be assessed on the indemnity basis. In the event that the Magistrate’s order was set aside, Mrs Ware applied for what was loosely called a partial Bullock order. No Bullock order can be made, but there remain the questions: is there jurisdiction to make an order partially indemnifying her in respect of Orix's costs, and if so, should such an order be made?

92. Mrs Ware’s claim against Orix was not the only proceeding before the Charleville Magistrates Court on 18 April 2008. Mr Robinson had also commenced proceedings against Orix. He had done so on 9 April 2008 by the notice drawn by his solicitors claiming contribution under r 208 of the Uniform Civil Procedure Rules.  That was the wrong form for third-party proceedings (he should have used a notice under r 192) and it was served out of time, but nothing turns on any of that.  There was no objection and had there been, it was all curable.  His claim was for an indemnity and it was that claim which occupied the bulk of the time on 18 April 2008.  It relied on the facts alleged in Mrs Ware’s statement of claim and for the reasons specified above^[37], it was doomed to failure.  The Magistrate did not dismiss it, apparently by oversight, but he should have done so.  Had Orix claimed costs of the proceeding brought against it by Mr Robinson, an order in its favour would have been inevitable.

93. It follows that from 9 April 2008 Orix was in effect the defendant in two concurrent proceedings brought against it by two independent “plaintiffs”. Mr Robinson could not have been held liable for costs incurred before that date. Orix’s costs incurred after that date were:

These costs were recoverable against both Mrs Ware and Mr Robinson.

94. As already noted, the Magistrate ordered Mr Robinson to pay Mrs Ware’s costs.^[39]  The source of power for that order was r 681 of the Uniform Civil Procedure Rules:

“681General rule about costs

(1)Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2)Subrule (1) applies unless these rules provide otherwise.”

Under that rule (which is the successor to O 91, r 1 in the previous Rules of the Supreme Court of Queensland) his Honour had a discretion as to costs which was not to be read down by importing implications not inherent in the words of the rule.  That discretion:

“does not, of course, mean that a judge has an unfettered discretion to make any order that he or she chooses.  The wide jurisdiction conferred by the rule ‘must be exercised judicially and in accordance with general legal principles pertaining to the law of costs’, to take up the words of Lambert J.A. in Oasis Hotel Ltd. v. Zurich Insurance Co. (36) (1981) 124 DLR (3d) 455, at p 462.”^[40]

95. Sanderson and Bullock were both examples of the exercise of that discretion, and they have stood the test of time. They demonstrate that the discretionary power is wide enough to support an order that one party contribute to another in respect of costs ordered to be paid by the latter to a third party. They exemplify one type of case in which the exercise of the power accords with principle. They do not exhaust the range of cases which may do so. As to the width of the discretion, which is what is presently material, Stirling LJ wrote:

“I think that the term costs in s 5 of the Judicature Act, 1890, ought to be read as including costs which a particular party may be ordered to pay in the first instance and then to hand over against another.”^[41]

That was applied in Bullock.^[42]

96. It is unnecessary to consider what would have been the position had Orix sought and obtained costs orders against both Mrs Ware and Mr Robinson. It may be that in such circumstances each would have a right of contribution against the other in respect of items common to both bills without any special order for contribution. If an order were necessary, it would often provide an example of the principled exercise of the discretion. The fact that Orix did not seek an order for costs against Mr Robinson, with the consequence that only an order against Mrs Ware could be made, cannot oust any right to contribution. Any contribution is to be included in the order for costs made as between Mrs Ware and Mr Robinson.

97. In the circumstances of this case, it accords with principle to order Mr Robinson to contribute half of the costs payable by Mrs Ware after Mr Robinson commenced his proceedings. Those costs all related to the trial and its consequences. Each of those claiming against Orix was equally at fault. It is true that most of the time at the trial was occupied in relation to Mr Robinson’s claim, but that did not affect the amount of the costs. It would not be just to increase the burden on Mrs Ware simply because Orix chose to make no application for costs against Mr Robinson.

Orders

98. I propose the following orders:

1. Application for leave to appeal granted and appeal allowed with costs to be assessed.

2. Set aside the order of the District Court made on 8 April 2011 and in lieu thereof order:

1. appeal allowed with costs to be assessed;

2. vary the order of the Magistrates Court at Charleville made on 13 August 2008:

1. by substituting for the sum of $6,804.30 in paragraph 3 the sum of $8,004.38;

2. by deleting paragraph 4 and inserting in lieu the following paragraphs:

“4.That there be judgment for the second defendant against the plaintiff with costs to be assessed.

5. That the second defendant’s costs as against the plaintiff be assessed on the standard basis up to and including 5 October 2005 and on the indemnity basis thereafter.

6. That there be judgment for the second defendant against the first defendant on the notice claiming contribution dated 9 April 2008.”