Smith v Capella State High School Parents and Citizens Association
[2004] QSC 39
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- Unreported Judgment
- Smith v Capella State High School Parents and Citizens Association[2004] QSC 39
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Smith v Capella State High School Parents and Citizens Association[2004] QSC 39
Smith v Capella State High School Parents and Citizens Association[2004] QSC 39
SUPREME COURT OF QUEENSLAND
PARTIES: | JOHN WILLIAM SMITH |
FILE NO: | |
Trial Division | |
DELIVERED ON: | 8 March 2004 |
DELIVERED AT: | Rockhampton |
TRIAL HEARING DATES: | 25-28 November and 3 December 2003 in Mackay |
JUDGE: | Dutney J |
ORDERS: |
|
CATCHWORDS: | COSTS – INDEMNITY COSTS – where amount awarded exceeded the plaintiff’s offer to settle COSTS – BULLOCK ORDERS – SANDERSON ORDERS - where first defendant successfully defended the action – whether successful and unsuccessful defendants reasonably and properly joined – whether conduct on the part of the unsuccessful defendant might be regarded as encouragement to the plaintiff to continue to pursue the successful defendant Uniform Civil Procedure Rules 1999 (Qld), rule 360 Bullock v London General Omnibus Co [1907] 1 KB 264, cited Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544, cited Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149, cited Gould v Vaggelas (1984) 157 CLR 215, cited Sved & Anor v Council of the Municipality of Woollahra (Giles CJ Comm D – 19 February 1998 – 55096 of 1992 – unreported), cited Sanderson v Blyth Theatre Co [1903] 2 KB 533, cited Yamacoe v Michael Survey Group Pty Ltd [2002] QSC 393 (5 December 2002), cited |
COUNSEL: | Mr GF Crow for the plaintiff Mr DA Reid for the first defendant Mr JS Miles for the second and third defendants |
SOLICITORS: | Macrossan and Amiet for the plaintiff Jensen McConaghy for the first defendant Moray & Agnew for the second and third defendants |
[1]On 1 March 2004 I gave judgement in the action in favour of the plaintiff against the third defendant for the sum of $250,837.23. I dismissed the action against the first and second defendants. I invited submissions on costs.
[2]The plaintiff succeeded in the action against the third defendant on the basis of the strict liability of the owner of a known dangerous animal. I also indicated I would have found against the third defendant in negligence for releasing the bull into an area pedestrians were known to traverse without ensuring it was clear or warning of the presence of the bull. In the latter case, I would have found the plaintiff liable for contributory negligence. The actions against the first and third defendants were based upon their alleged occupation of the premises where the accident occurred and the safety of the premises for the activities being carried on there.
[3]The parties are agreed that the plaintiff is entitled to indemnity costs against the third defendant under the Uniform Civil Procedure Rules 1999 (Qld), rule 360 on the basis that the amount awarded exceeded the plaintiff’s offer to settle. Accordingly, I so order.
[4]The second defendant, which was represented by the same solicitors and counsel who represented the third defendant, does not seek its costs. Accordingly I propose to make no order in relation to them.
[5]The first defendant seeks costs of successfully defending the action. It primarily seeks those costs against the third defendant by means of a Bullock Order [1]. The circumstances in which such orders may be made have been variously described. In essence, such an order may be made in circumstances where both the successful defendant and the unsuccessful defendant were reasonably and properly joined.[2] The reasonableness of the joinder generally required there to be some conduct on the part of the unsuccessful defendant which might be regarded as an encouragement to the plaintiff to continue to pursue the successful defendant.[3]
[6]The plaintiff submits that it was reasonable to join the first defendant because when that defendant was first given notice of the claim it denied it was the occupier of the premises and referred the plaintiff to the second defendant. The second defendant in its defence pleaded that the first defendant was the occupier and both the second and third defendants gave notice of contribution to the first defendant in which they alleged the first defendant was the occupier of the premises. This later conduct is submitted to be a sufficient encouragement of the plaintiff to justify a Bullock Order.
[7]Had the plaintiff succeeded against the third defendant on a basis to which the occupation of the premises was relevant the submission would have some strength. The identity of the occupier of the premises was not, however, ultimately relevant to my conclusion. In those circumstances I do not consider the mere issue of a notice of contribution by one defendant to another after the commencement of the proceedings can be said to have encouraged the pursuit of a defendant who was not, in fact, liable.
[8]The same reasons militate against the making of a Sanderson Order.[4]
[9]In the circumstances, the plaintiff should pay the costs of the first defendant to be assessed on the standard basis.
Footnotes
[1] Named after the decision in Bullock v London General Omnibus Co [1907] 1 KB 264 where costs of a successful defendant were ordered to be paid directly by an unsuccessful defendant.
[2]See Johnsons Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544 at 556; Norwest Refrigeration Services Pty Ltd v Bain Dawes (WA) Pty Ltd (1984) 157 CLR 149 at 163; Gould v Vaggelas (1984) 157 CLR 215 at 247,229.
[3] Sved & Anor v Council of the Municipality of Woollahra (Giles CJ Comm D – 19 February 1998 – 55096 of 1992 – unreported at 17 – 18).
[4] Named after the decision in Sanderson v Blyth Theatre Co [1903] 2 KB 533 at 539. A Sanderson Order differs from a Bullock Order only in making the plaintiff primarily liable to the successful defendant for costs but permitting the inclusion of that amount in the amount the plaintiff can recover as costs from the unsuccessful defendant. The circumstances in which the two orders are made are similar but not identical: see Yamacoe v Michael Survey Group Pty Ltd [2002] QSC 393 (5 December 2002) at [51] ff.