Central Goldfields Shire v Haley & Ors (No 2) - [2009] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3750 of 2007

CENTRAL GOLDFIELDS SHIRE	Appellant
v
MARGARET FAY HALEY & ORS (No 2)	Respondents

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JUDGES:	NEAVE and REDLICH JJA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	24 June 2009
DATE OF COSTS HEARING:	24 June 2009
DATE OF COSTS ORDER:	25 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 203	1^st Revision 25 September 2009 – [13]

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COSTS – Whether Bullock or Sanderson order should be made against unsuccessful defendant for costs of trial or appeal – Whether successful defendant reasonably joined – Relevance of conduct of unsuccessful defendant.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D E Curtain QC with Mr S A O’Meara	Ligeti Partners
For the 1^st Respondent	Mr R P Gorton QC with Mr D Purcell	Saines Lucas Solicitors
For the 2^nd – 4^th Respondents	Mr W R Middleton QC	DLA Phillips Fox

NEAVE JA:

I agree with the costs orders proposed by Redlich JA for the reasons he gives.

REDLICH JA:

The Court allowed an appeal against an award of damages by a County Court jury for injuries sustained by the first respondent (’plaintiff’). She had slipped and fallen on a temporary footpath in the appellant (’Council’) municipality. The second, third and fourth respondents (’the hoteliers’), were undertaking renovations to their hotel and had obtained a permit from the Council to construct the temporary footpath on the roadway in front of the hotel. The plaintiff’s case was that the Council and the hoteliers occupied and controlled the temporary footpath and that by reason of their negligence the plaintiff suffered injury. The jury found all of the respondent’s liable and apportioned liability as to 75 per cent against the Council and 25 per cent against the hoteliers who were jointly represented.

At trial, over the Council’s objection, the plaintiff had obtained a ruling from the trial judge that the Council was not acting in the capacity of a highway authority and that the Council was an occupier of the footpath. Furthermore the plaintiff successfully opposed the council’s submission that the Council’s duty of care was that formulated in Brodie v Singleton Shire Council.[1]The trial judge accordingly instructed the jury that the Council was an occupier of the footpath and that it had a duty of care as ‘occupier’ pursuant to s 14B Wrongs Act 1958.
[1] (2001) 206 CLR 512.

The Council successfully appealed against these rulings and the consequential directions given to the jury. It is now necessary to determine what orders as to costs are appropriate with respect to the trial and the appeal, the hoteliers having joined with the plaintiff, in seeking to uphold the jury verdict on appeal.

Written submissions have duly been filed by the Council the plaintiff and the hoteliers. Each party consented to determination of the question of costs on the basis of these submissions, without further oral argument, but advanced the following different positions as to costs:

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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Details

Case: [2009] VSCA 203
Decision Date: 24 June 2009

CaseChat Overview and Summary

The Central Goldfields Shire sought costs from Haley and others, with the primary focus on whether an order under Bullock or Sanderson should be made against the unsuccessful defendant for the costs of the trial or appeal. The successful defendant had reasonably joined in the case. The case was heard in the Supreme Court of Victoria. The central issue was whether the unsuccessful defendant should bear the costs of the trial or appeal under the Bullock or Sanderson principles, considering the conduct of the unsuccessful defendant and whether the successful defendant had reasonably joined the case.

The court examined the principles set out in Bullock and Sanderson to determine the appropriate costs order. It considered the conduct of the unsuccessful defendant, which was found to be unreasonable, and whether the successful defendant had reasonably joined the proceedings. The court determined that the unsuccessful defendant's conduct was such that it warranted a costs order under Sanderson. The successful defendant's reasonable joinder did not affect the applicability of the Sanderson order.

The Supreme Court of Victoria ruled that an order should be made under Sanderson, as the unsuccessful defendant's conduct warranted such an order. The court found that the unsuccessful defendant's actions were unreasonable and contributed to the costs incurred. The conduct of the unsuccessful defendant was a significant factor in the court's decision, outweighing any consideration of the successful defendant's reasonable joinder. The court ordered the unsuccessful defendant to pay the costs of the trial and appeal as per the Sanderson principle.

Orders