PARTIES: 40302/07 ACQ Pty Limited - Appellant Gregory Michael Cook - First Respondent Country Energy (formerly known as NorthPower) - Second Respondent 40303/07 Aircair Moree Pty Ltd - Appellant Gregory Michael Cook - First Respondent Country Energy (formerly known as NorthPower) - Second Respondent 40363/07 Gregory Michael Cook - Appellant Country Energy (formerly known as NorthPower) - Respondent 40454/07 Country Energy (formerly known as NorthPower) - Appellant Michael Gregory Cook - First Respondent Aircair Moree Pty Limited - Second Respondent
JUDGMENT OF: Beazley JA Giles JA Campbell JA
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL: B Walker SC; G Curtin; Y Cachia (ACQ Pty Ltd & Aircair Moree Pty Ltd) P Menzies QC; G Giagios (Gregory Cook) M Elkaim SC; P Khandhar (Country Energy)
CATCHWORDS: COSTS – Bullock order – Sanderson order – discretion – principles governing grant of orders – whether reasonable and proper for plaintiff to have sued successful defendant – where joinder of successful defendant by plaintiff occurred at a time when it was already joined to the proceedings by way of cross-claim by the parties against whom costs order is sought – where those parties denied liability – where those parties were sued under statute while the successful defendant was sued in tort
DECISION: In Appeal 40302/07 (1) ACQ to pay the costs of NorthPower of the appeal. (2) ACQ to pay the costs of Mr Cook of the appeal on an indemnity basis. In Appeal 40303/07 (1) Aircair to pay the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
ACQ v Cook (No 2) [2008] NSWCA 306
Case
[2008] NSWCA 306
Decision Date
CaseChat Overview and Summary
The case of ACQ v Cook (No 2) concerned appeals before the Court of Appeal of New South Wales, presided over by Beazley JA, Giles JA, and Campbell JA. The central dispute revolved around the appropriate orders for costs in proceedings where Mr Cook had suffered injury. Specifically, the appeals addressed whether ACQ and Aircair, or Aircair alone, should bear the costs incurred by NorthPower, a party that had been joined to the litigation.
The primary legal issues before the Court of Appeal were whether to grant a Bullock order or a Sanderson order, and the principles governing the exercise of discretion in making such orders. This required the court to determine whether it was reasonable and proper for Mr Cook to have sued NorthPower, particularly given that NorthPower had already been joined to the proceedings by way of a cross-claim from other parties who denied liability. The court also had to consider the circumstances under which NorthPower was joined, including the fact that the limitation period had expired at that time, and the basis upon which NorthPower was sued (under statute) compared to the successful defendant (in tort).
The Court of Appeal reasoned that the joinder of NorthPower was a critical factor in determining costs. It noted that Aircair had, early in the proceedings, questioned why NorthPower was not a defendant and suggested Mr Cook consider joining them. NorthPower was ultimately joined after the limitation period had expired, requiring leave of the court. The court considered the evidence that Mr Cook only obtained a report indicating a whole person impairment exceeding 15% on 21 April 2004, which was a significant factor in his ability to proceed against NorthPower. The court ultimately determined that ACQ and Aircair should pay Mr Cook's costs on an ordinary basis up to 17 November 2006, and on an indemnity basis thereafter, and also pay NorthPower's costs.
Orders
Orders of the court
In Appeal 40302/07 (1) ACQ to pay the costs of NorthPower of the appeal. (2) ACQ to pay the costs of Mr Cook of the appeal on an indemnity basis. In Appeal 40303/07 (1) Aircair to pay the costs of NorthPower of the appeal. (2) Aircair to pay the costs of Mr Cook of the appeal on an indemnity basis. In Appeal 40363/07 (1) ACQ and Aircair to pay the costs of NorthPower of the appeal, otherwise no order as to costs. In Appeal 40454/07 (1) Aircair and ACQ to pay the costs of NorthPower of the appeal, otherwise no order as to costs. In All Appeals (1) Note that the appeals in matters 40302/07, 40303/07, 40363/07 and 40454/07 were in substance conducted as a single appeal, and direct that any assessment of costs be made accordingly. (2) ACQ and Aircair to pay costs of the submissions relating to orders for costs. (3) Orders for costs in the court below vacated, and in lieu thereof: (a) ACQ and Aircair to pay Mr Cook's costs on the ordinary basis to 17 November 2006, and on the indemnity basis from 17 November 2006. (b) ACQ and Aircair to pay NorthPower's costs.
Background
Background to the litigation
The dispute relates only to the orders that should be made in 40363/07 and 40454/07. There is a consensus that NorthPower should receive its costs of those appeals, and its costs in the court below, from someone, but there is a dispute about from whom those costs should be received. The dispute concerns whether ACQ and Aircair (or Aircair alone) should ultimately bear all of those costs, pursuant to either a Bullock Order, or a Sanderson Order. Resolution of that dispute requires examination of the circumstances in which NorthPower came to be joined to the litigation.Facts Relating to Joinder of NorthPower The accident in which Mr Cook was injured occurred on 28 December 2000. NorthPower was aware of his injury on the day it happened. As the evidence in the case shows, it conducted its own investigation into the circumstances of the accident, and it participated in a WorkCover investigation. Its workers compensation insurer was notified promptly. On 28 May 2002 the solicitor for NorthPower requested payment from Aircair, pursuant to section 151Z Workers Compensation Act 1987, of workers compensation payments that had been made to Mr Cook. On 27 June 2002 the solicitors for Aircair responded, saying:“… we fail to see … why our client has any liability in relation to the injuries allegedly suffered by Mr Cook.Could you please send all future correspondence to this firm regarding the claim.If your client is intent on serving a statement of claim we have instructions to accept service.” On 19 December 2003 Mr Cook commenced proceedings against Aircair in the District Court. At that stage, Aircair was the only defendant sued. On 9 February 2004 the solicitors for Aircair wrote to Mr Cook’s solicitors, enclosing a Notice of Appearance, foreshadowing a request for particulars, and saying:“… could you please explain how our client could be liable at all and further why NorthPower is not a defendant to the proceedings if your client is prepared to continue with them at all.” On 21 April 2004 several events happened. Aircair filed a Defence in which it denied liability. Also, Aircair’s solicitors wrote to Mr Cook’s solicitors, saying:“… we ask that you please explain how our client could be liable for the plaintiff’s injuries in circumstances where, we are instructed, your client:-(a)entered the cotton field without first ensuring that the power line was not still live; and(b)failed to see and avoid the live power line before making contact with it.We maintain our view that our client has no liability in relation to the injuries suffered by the plaintiff, and suggest that your client consider joining NorthPower to the proceedings.” At the time that NorthPower was ultimately joined to the proceedings, on 21 March 2006, the limitation period had expired. NorthPower was able to be joined only because Judicial Registrar McDonald, on 17 March 2006, gave Mr Cook leave to proceed against NorthPower and to amend his Statement of Claim. For the purpose of the application for that leave Mr Cook’s solicitor swore an affidavit that set out the circumstances of the delay in joining NorthPower. A theme of that affidavit is that it was only after some considerable delay that Mr Cook had evidence that he suffered more than 15% whole person impairment. The first evidence that Mr Cook had more than 15% whole person impairment came into his solicitor’s hands on 21 April 2004, when a report from a Dr Macarthur was received.