Bell & Moir Corporation Pty Ltd v Crosby
[1998] QDC 361
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- Unreported Judgment
- Bell & Moir Corporation Pty Ltd v Crosby[1998] QDC 361
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Bell & Moir Corporation Pty Ltd v Crosby[1998] QDC 361
Bell & Moir Corporation Pty Ltd v Crosby[1998] QDC 361
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 31 of 1991 |
BETWEEN:
BELL & MOIR CORPORATION PTY LTD | Plaintiff |
AND:
RALPH JOHN CROSBY | First Defendant |
AND:
THOMAS CHARLES TOWERS | Second Defendant |
AND:
MOUNT ISA MINES LTD | Third Defendant |
AND:
MOUNT ISA MINES LTD | Third Party |
BETWEEN:
THOMAS CHARLES TOWERS | Plaintiff |
AND:
RALPH JOHN CROSBY | First Defendant |
AND:
BELL & MOIR CORPORATION PTY LTD | Second Defendant |
AND:
MOUNT ISA MINES LTD | Third Defendant |
AND:
MOUNT ISA MINES LTD | Third Party |
BEFORE HIS HONOUR JUDGE McLAUCHLAN Q.C.
COSTS ORDERS
Made the 8th day of December 1998
Costs orders are sought in action 31 of 1991 and in action 32 of 1991, which were heard together. Pursuant to Rule 365 District Court Rules, a court, registrar or taxing officer may only allow a cost under the schedule of scale of fees and costs. The scale makes provision in respect of solicitors' costs and counsels' fees. With respect to solicitors' costs there are prescribed amounts for numbered items, but in addition the judge may certify under item 27 for a higher amount than that prescribed by that item, and the registrar or taxing officer may then allow a higher amount under the certificate that he considers proper in the circumstances. There is, further, a power for a judge to direct that costs be more than prescribed, under General note D(c) to the scale, which confers a similar power in relation to counsel's fees, where the fees and costs are not adequate because of the work involved or the importance, difficulty or complexity of the action or matter.
So far as item 27 is concerned, which relates to what is generally described as “care and consideration”, the intention is no doubt that the judge should proceed generally in accordance with the provisions of item 27(3), where that is the only item requiring adjustment, and act under the general note in respect of other matters. However item 27(3) and General note D(c) appear to me both to apply to the amount prescribed in the item, so that a general direction given under the General note will apply to that amount as well as to other costs.
Counsel's fees are prescribed where the amount recovered or claimed, as the case may be, is not more than $50,000.00, and are otherwise within the discretion of the registrar or taxing officer:-
“Fees to counsel in any other action within the jurisdiction of the court are to be as the registrar or taxing officer considers proper in all the circumstances.”
Accordingly, the power to certify for two counsel (item 85) appears to apply only where the relevant amount does not exceed $50,000.00. This follows from the wording of the scale, and the provisions of Rule 365 (and see Paterson-Walls v FAI General Insurance Co Ltd (1995) 1 QdR 282.) The position is not, in my view, affected by the provisions of General note D(c). This applies only to amounts prescribed in items 75 to 89, i.e. where the relevant amount does not exceed $50,000.00. This is so, because, where the amount is more than $50,000.00, no amounts are prescribed. Even if “prescribed” can be construed to mean “the subject of provision” in the scale, there is an obvious difficulty in directing that fees shall be more than the taxing officer considers proper in all the circumstances, because it is not known at that stage what the taxing officer may consider proper. If fees for two counsel are sought but rejected by the taxing officer, then the judge, upon review, has power in relation to the items involved, to make such order as he may think just: Rule 364 DCR; O.91 r 119 RSC.
ACTION NO 31 OF 1991
In action No. 31 of 1991 the plaintiff, Bell & Moir Corporation Pty Ltd sued the first defendant, Crosby, the second defendant, Towers, and the third defendant, Mt Isa Mines Ltd, for damage to a Land Cruiser as a result of a collision between that vehicle, driven by Crosby and a vehicle driven by Towers at an intersection designed and constructed by Mt Isa Mines Ltd on land in Mt Isa occupied by it under a lease. Crosby was the bailee from the plaintiff of the land cruiser in question. The plaintiff's action against Crosby was grounded in bailment and also in negligence. The plaintiff's action against Towers and Mt Isa Mines Ltd was grounded in negligence - against Towers for negligent driving and against Mt Isa Mines for negligence in the design and construction of the intersection.
The issue of negligence, as it affected the responsibility of Crosby, Towers and Mt Isa Mines Ltd for the accident which resulted in damage to the plaintiff's vehicle, was unusually complex for a case involving a collision between two motor vehicles. The same issue arose in action no. 32 of 1991.
Crosby counter-claimed alleging a misrepresentation on the part of the plaintiff in relation to insurance on the vehicle but that claim was not in the end litigated and has been dismissed by consent. Crosby, Towers and Mt Isa Mines Ltd each claimed indemnity or contribution from the others in respect of the plaintiff's claim.
The quantum of the claim was agreed in the sum of $28,500.00 together with interest. Crosby and Mt Isa Mines were held to be equally responsible for the collision and Towers was absolved of any responsibility therefor. On the 10th March 1998 orders were made that the plaintiff have judgment against Crosby and Mt Isa Mines Ltd in the sum of $51,736.00, that the action against Towers be dismissed, and that Crosby's counter-claim be dismissed by consent.
Bell & Moir Corporation Pty Ltd seeks an order that the first defendant and third defendant pay its costs of the action, including any reserved costs, to be taxed on the District Court Scale applicable to judgments less than $50,000.00 and seeks as against Crosby that these costs be taxed on a solicitor and client basis because of an offer made by the plaintiff to Crosby on 15th December 1992 to settle the action against him for the sum of $28,000.00 plus costs. Payment of party and party costs upon the judgment against the first and third defendants is not resisted, but objection is taken by Crosby to the taxation of those costs against him on a solicitor and client basis. The objection is based on r119 of the District Court Rules. So far as is relevant that rule provides:-
- “119(1)Subject to subrule (2) where there are two or more defendants, the plaintiff may offer to settle with any defendant, and any defendant may offer to settle with the plaintiff
- (2)Where defendants are alleged to be jointly or jointly and severally liable to the plaintiff and rights of contribution or indemnity may exist between the defendants, this part does not apply to that offer to settle unless -
- (a)In the case of an offer made by the plaintiff - the offer is made to all of the defendants and is an offer to settle the claim against all the defendants;”
It is pointed out that, although at the time the offer was made Mt Isa Mines had not yet been joined as a defendant in the action, Towers was a defendant, and no offer to settle was made to him. Crosby and Towers were alleged to be jointly and severally liable to the plaintiff in negligence (in the sense that they were alleged to be “several” tort-feasors jointly and severally liable to the plaintiff for the same damage), so that rights of contribution or indemnity might therefore exist between them. In the circumstances I agree that the provisions of the Rules relating to offers to settle and their consequences would not apply to the purported offer made by the plaintiff on 15th December 1992.
Bell & Moir Corporation Pty Ltd seeks a certification under Item 27 of the scale of fees and costs to the effect that the registrar or taxing officer may allow a higher amount than the maximum allowance under subitem (1) of that item that the registrar or taxing officer considers proper in the circumstances. A party is enabled to make such an application if because of special circumstances the party considers that the maximum allowance under sub-item (1) is not enough for the work actually done. The certification enlivens a discretion in the registrar or taxing officer to allow such higher amount as he considers proper in the circumstances. The plaintiff was involved for over one week in the litigation of the issue of liability in respect of the collision which, as I have said, was unusually complex. It appears to me to be appropriate to give the certification on the basis that the degree of complexity of the liability issue constitutes a special circumstance, and it will be then for the taxing officer to consider whether the work actually done by the plaintiff in relation to that issue justifies a higher amount than that stipulated in Item 27(1). I certify accordingly.
In action no.31 the plaintiff must pay the second defendant's costs of the action including reserved costs to be taxed. However, since both the first and third defendants asserted that the second defendant was wholly or partly responsible for the damage suffered by the plaintiff in the collision, and conducted their cases on this footing it was reasonable for the plaintiff to issue proceedings against the second defendant and to maintain the action against the second defendant up to judgment. In the circumstances the costs payable by the plaintiff to the second defendant should be borne by the first and third defendants.
I have mentioned that this action involved greater difficulty or complexity and involved more work than is usual in actions arising out of a collision between two motor vehicles. For these reasons the second defendant's costs, payable by the plaintiff, should attract the certification which I have already given in respect of the plaintiff's costs in this action and I certify accordingly under Item 27 of the scale of fees and costs.
In addition to the costs of the action against him, the second defendant should also have the costs of the contribution proceedings between him and the first defendant and between him and the third defendant, including reserved costs, to be taxed.
Further, the first defendant should have his costs of the third party proceedings against the third defendant and in relation to these a certification under Item 27 of the scale of costs and fees is appropriate.
The first defendant should also pay the plaintiff's costs of the counter-claim including any reserved costs to be taxed on the District Court scale for judgments in excess of $50,000.00.
The costs orders in action 31 of 1991 are therefore as follows:-
- 1(a)That the first defendant and the third defendant pay the plaintiff's costs of the action, including any reserved costs, to be taxed on the District Court scale applicable for judgments less than $50,000.00.
- (b)Certify under Item 27 of the scale of costs and fees that the taxing officer may allow the plaintiff a higher amount under sub-item (i) thereof that the taxing officer considers appropriate in the circumstances.
- 2(a)That the plaintiff pay the second defendant's costs of the action, including reserved costs, to be taxed.
- (b)certify under Item 27 of the scale of costs and fees as in 1 (b) above.
- 3.That the first defendant and the third defendant pay to the plaintiff the taxed costs ordered to be paid by the plaintiff to the second defendant.
- 4.That the first defendant pay the plaintiff's costs of the counterclaim, including any reserved costs, to be taxed on the District Court scale for judgments in excess of $50,000.00.
- 5.That the first defendant and the third defendant pay to the second defendant the costs of contribution proceedings including reserved costs between him and them respectively, to be taxed.
- 6(a)That the third defendant pay the first defendant's costs of and incidental to the third party proceedings taken against the third defendant including reserved costs to be taxed on the scale where the amount involved is less than $50,000.00.
- (b)Certify under Item 27 of the scale of costs and fees as in 1 (b) above.
ACTION NO 32 OF 1991
In action no.32 of 1991, Towers sued Crosby, Bell & Moir Corporation Pty Ltd and Mt Isa Mines Ltd for loss and damage to his motor vehicle and for certain economic loss. Quantum was agreed in the sum of $80,000.00 representing $40,000.00 in respect of property damage and $40,000.00 in respect of economic loss. Crosby denied the material allegations of the plaintiff and alleged that the collision was caused or contributed to by his negligence. Crosby also counter-claimed for damages amounting to $1,200,000.00 for personal injuries. Bell & Moir Corporation Pty Ltd was sued on the basis that Crosby was its agent. It denied any liability for the plaintiff's loss and damage. Mt Isa Mines Ltd also contended that the collision was caused or contributed to by the plaintiff's negligence. Crosby claimed against Mt Isa Mines Ltd contribution or indemnity with respect to the plaintiff's claim against him, and further claimed against Mt Isa Mines the sum of $1,200,000.00 for damage for personal injuries suffered by him by reason of the negligence of that company. In response to that claim Mt Isa Mines Ltd denied liability and alleged contributory negligence on the part of Crosby. Towers also claimed contribution or indemnity against Mt Isa Mines Ltd in respect of the counter-claim of the first defendant, Crosby.
The orders made in the action were as follows:-
- 1.That there be judgment for the plaintiff against the first defendant and third defendant for the sum of $144,800.00.
- 2.That the plaintiff's action against the second defendant be dismissed.
- 3.That there be judgment for the first defendant in his third party claim against the third defendant for the sum of $290,570.37.
- 4.That the first defendant's counter-claim against the plaintiff be dismissed.
The first defendant and the third defendant should pay the plaintiff's costs of and incidental to the action including reserved costs to be taxed, and I would certify under Item 27 of the scale.
The plaintiff should pay the costs of the second defendant of and incidental to the action including reserved costs to be taxed. The plaintiff however seeks an order that the third defendant pay to the plaintiff the taxed costs ordered to be paid by him to the second defendant.
The action against the second defendant was based upon the proposition that the first defendant Crosby was, in the circumstances of his use of the Land Cruiser, constituted the agent of the second defendant, which was therefore liable for his negligence. That argument was held to be untenable.
In support of the plaintiff's argument that the third defendant should pay the costs payable by him to the second defendant it is said that it was reasonable and proper for him to pursue a claim against the second defendant in action no.32 of 1991, since in action no.31 of 1991 the third defendant pleaded that at all material times Crosby was acting within the scope of his power and authority as the agent of Bell & Moir Corporation Pty Ltd. The question would seem to be, then, whether by defending an action by Bell & Moir Corporation Pty Ltd for damage to its vehicle arising out of the collision, in part by alleging that Crosby was the agent of the plaintiff in that action, and that the plaintiff's damages should be reduced on that account, Mt Isa Mines Ltd made it reasonable for Towers in his claim for property damage and loss of profit to join Bell & Moir Corporation Pty Ltd as an additional defendant. The answer, I think, is that it was, or should have been, a matter for independent decision by Towers' legal advisers as to whether such an allegation was maintainable in law upon the facts as to the bailment. There is nothing to suggest that those were matters exclusively within the knowledge of Mt Isa Mines Ltd. The relevant allegation by Mt Isa Mines Ltd in action no.31 did not in my opinion make it reasonable for Towers in action no. 32 to join Bell & Moir Corporation Pty Ltd as a defendant, and he should not therefore recover the costs of having done so from Mt Isa Mines Ltd.
I do not consider it appropriate to certify under Item 27(3) with respect to the costs of Bell & Moir Corporation Pty Ltd in this action.
Crosby must pay the costs of his unsuccessful counterclaim against Towers, and in relation to these costs, I shall certify under Item 27(3).
Crosby seeks an order that Mt Isa Mines Ltd pay the costs payable by him to Towers on his (Crosby's) counter-claim, which is to be viewed in the context of his concurrent third party claim against Mt Isa Mines Ltd. Both the counterclaim and claim sought damages in the sum of $1,200,000.00 for personal injuries sustained by Crosby in the collision. The counter-claim and the third party claim against Mt Isa Mines Ltd were filed in the Mt Isa District Court on the same day. In its defence to the third party claim Mt Isa Mines Ltd denied liability for the first defendant's injuries, but did not allege that Towers was responsible for those injuries. Nor did it issue a notice against Towers claiming indemnity or contribution in respect of that claim. It cannot be said, then, that Crosby instituted proceedings against Towers by reason of any conduct on the part of Mt Isa Mines Ltd, nor that Crosby was encouraged to proceed against Towers by any pleading on the part of Mt Isa Mines Ltd in the relevant action, other than its mere denial of liability. However it is not irrelevant, in my view, that in action no.31 of 1991 which was heard together with the action presently being considered, and in which the same issue of liability in negligence for the collision was litigated, Mt Isa Mines Ltd did seek indemnity or contribution from Towers with respect to the claim against it by the plaintiff, Bell & Moir Corporation Pty Ltd for damages arising from the collision. Moreover, Mt Isa Mines Ltd's pleaded defence, and the conduct thereof, in seeking to show that there had been no negligence in the design and construction of the intersection (and in particular that there was no “blind spot”) causative of the plaintiff's injuries, necessarily raised for consideration the quality of Towers' driving, as the other party involved in the collision. If the defence succeeded the only person from whom Crosby might recover damages was Towers. Moreover, the conduct of the defence in fact sought to show negligence on the part of both Crosby and Towers.
I take the applicable principle to be that stated by Brennan J (as he then was) in Gould v Vaggelas (1983-1985) 157 CLR 215, at 260:-
“A judicial discretion can be exercised to make a Bullock order against an unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiff's claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought...”
I consider that the “conduct” referred to in this passage includes a defence which, while not alleging fault on the part of others, nevertheless in the circumstances of the case has necessary implications for the potential liability of another or others, and the matter is to be judged, not at the point of joinder of the successful defendant but at the conclusion of the trial. See also Lackersteen v Jones & Ors (1988) 93 FLR 442. However, as I have said, in this case the thrust of the defence was in part, to show negligent driving on the part of Towers.
In my view, Mt Isa Mines Ltd's defence as pleaded and conducted showed that the proceedings against Towers were reasonable and proper to ensure recovery of the damages sought. Mt Isa Mines Ltd is therefore ordered to pay the costs payable by Crosby to Towers in action no.32.
The first defendant succeeded in his claim against the third defendant subject to a reduction of damages for his contributory negligence. The third defendant is therefore ordered to pay the costs of the first defendant of and incidental to that claim including reserved costs to be taxed.
In relation to these costs, I shall direct pursuant to General note D(c) that they be taxed at the rate ordinarily allowed in complex matters on a party and party taxation in the Supreme Court. The major burden on the issues of both negligence and quantum in this litigation fell on the first and third defendants. As I have already said, the issue of negligence was complex and quantum was even more so. The action was essentially a complex Supreme Court personal injuries case, litigated in the District Court. It was plainly a case where it would be proper to certify for two counsel were that possible under the Scale of Fees and Costs.
I am not aware of any contribution proceedings between Bell & Moir Corporation Pty Ltd and either Crosby or Mt Isa Mines Ltd. If any such proceedings were initiated by Crosby or Mt Isa Mines Ltd then they are ordered to pay the second defendant's costs of such proceedings including any reserved costs to be taxed on the scale for judgments in excess of $50,000.00. In action no.32 the plaintiff Towers was represented by two firms of solicitors and, at different times, two counsel. Mr Eliadas represented the plaintiff in respect of his claim for property damage and economic loss, and Mr Pope represented him in the defence of Crosby's counterclaim. Broadly speaking the two counsel appeared separately in respect of those matters. They were both present in court during the evidence pertaining to liability since that involved the same issue both in the claim and in the counter-claim. It is suggested that the two firms of solicitors should present a joint bill of costs. That may be administratively convenient and I regard it as a matter for the taxing officer. Certainly it is the case, as is also suggested, that any duplication of expenses by reason of there having been two firms of solicitors instructed in the action should be disallowed. I direct accordingly in terms of general note F to the scale of fees and costs, and it will be a matter for the taxing officer to determine whether any step taken by either firm of solicitors was in fact unnecessary for the proper conduct of the proceedings on behalf of the plaintiff Towers.
Mr Eliadas' fees should be allowed in respect of Towers' claim in action no. 32 and Mr Pope's fees should be allowed in the counter-claim brought by the first defendant in that action.
The costs orders in action no.32 of 1991 are as follows:--
- 1(a)That the first defendant and the third defendant pay the plaintiff's costs of the action including reserved costs' to be taxed.
- (b)Certify under Item 27 of the scale of costs and fees that the taxing officer may allow the plaintiff a higher amount under sub-section (i) thereof that the taxing officer considers appropriate in the circumstances.
- 2.That the plaintiff pay the costs of the second defendant of the action including reserved costs to be taxed.
- 3(a)That the first defendant pay the plaintiff's costs of the counter-claim by the first defendant including reserved costs to be taxed.
- (b)Certify under Item 27 of the scale of costs and fees as in 1(b) above.
- 4.That the third defendant pay to the first defendant the costs ordered to be paid by the first defendant to the plaintiff.
- 5(a)That the third defendant pay to the first defendant the first defendant's costs of his third party claim against the third defendant including reserved costs, to be taxed.
- (b)I direct pursuant to General note D(c) that such costs be taxed at a rate ordinarily allowed in complex matters on a party and party taxation in the Supreme Court.
- 6.That on any contribution proceedings taken against the second defendant by the first defendant, the first defendant pay the costs of such proceedings including reserved costs to be taxed.
- 7.That on any contribution proceedings taken against the second defendant by the third defendant, the third defendant pay the costs of such proceedings including reserved costs to be taxed.
- 8.That on any contribution proceedings taken against the first defendant by the third defendant the first defendant pay the costs of such proceedings including reserved costs to be taxed.
- 9.That on any contribution proceedings taken against the third defendant by the first defendant the third defendant pay the costs of such proceedings including reserved costs to be taxed.