Copping v State of Sa; Lightbody; Mutual Community (No 2) No. DCCIV-94-41353 Judgment No. D3675

[1997] SADC 3675

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour Judge Robertson

Hearing

18/09/97.

Catchwords

Application by plaintiff for a Bullock order against the second defendant for the costs payable to the third defendant - principles to be applied in the exercise of the discretion - Bullock order granted in relation to costs of third defendant.

Materials Considered

• J.N. Taylor Holding Ltd (In Liquidation) &; J.N. Taylor Finance Pty Ltd (In Liquidation) v Alan Bond (1993) 59 SASR 432, referred to.
• Fennell v Supervison and Engineering Services Holding Pty Ltd and Santos Pty Ltd (1988) 47 SASR 6, applied.

Representation

Plaintiff Ben Layton COPPING an infant by his next friend Susan Mary COPPING:
Counsel: MR G. HOLLAND - Solicitors: WALLACE, WESTLEY &; CO

Defendant THE STATE OF SOUTH AUSTRALIA:
Counsel: MR J TELFER - Solicitors: CROWN SOLICITOR

Defendant Glen LIGHTBODY:
In Person

Defendant MUTUAL COMMUNITY GENERAL INSURANCE:
Counsel: MR MATHWIN - Solicitors: KELLY &; CO

DCCIV-94-41353

Judgment No. D3675

19 September 1997

(Civil)

COPPING V THE STATE OF SOUTH AUSTRALIA & LIGHTBODY & MUTUAL COMMUNITY GENERAL INSURANCE PTY LTD

Civil

Judge Robertson

I have ordered that the plaintiff pay the costs of the third defendant ("Mutual Community") from the date when the plaintiff first joined Mutual Community in the action as a defendant.I made this order following my refusal to make a declaration that Mutual Community indemnify the second defendant ("Glen Lightbody") under a policy of insurance issued by Mutual Community to his parents ("the insurance policy") for the liability incurred by him as a result of my judgment on this action.The plaintiff now seeks a Bullock Order against Glen Lightbody.In other words the plaintiff seeks an order that Glen Lightbody pay the costs which he has been ordered to pay to Mutual Community.

Before turning to consider the substance of the application and the principles which guide a court in the exercise of the discretion it is necessary to briefly examine the history of Mutual Community's involvement in the litigation.Glen Lightbody initially filed a Third Party Notice against Mutual Community seeking indemnity under the insurance policy. Leave was granted to file the Third Party Notice on 1 September 1995. The Third Party Notice was filed on 26 October 1995.I was told by Mr Mathwin, counsel for Mutual Community, that a Third Party Statement of Claim and a Third Party Defence were filed following the filing of the Third Party Notice.

On 6 November 1996 the plaintiff obtained leave to join Mutual Community as a defendant.The plaintiff's Statement of Claim was amended to seek a declaration that Mutual Community was obliged to indemnify Glen Lightbody pursuant to the insurance policy if, as a result of any judgment, he became liable to pay the plaintiff damages. It can be seen that the relief sought by the plaintiff was similar in principle to that sought by Glen Lightbody in the Third Party proceedings.Mr Holland, counsel for the plaintiff, informed me that at the time that the application was made to join Mutual Community as a defendant it had become apparent that Glen Lightbody might be impecunious, that he may not be represented at the trial and there was a suggestion that he may not proceed with his action at all.He said that as a result it was considered prudent by the plaintiff that he seek a declaration in accordance with the principles laid down in J.N. Taylor Holdings Ltd (In Liquidation) & J.N. Taylor Finance Pty Ltd (In Liquidation) v Alan Bond (1993) 59 SASR 432.

The comments of King C J in Fennell v Supervision and Engineering Services Holding Pty Ltdand Santos Pty Ltd (1988) 47 SASR 6 provide guidance regarding the relevant principles which should be applied in the exercise of the discretion whether or not to grant a Bullock order.At pages 7 and 8 King C J said:

"The final issue relates to the refusal of the trial judge to make an order, the so-called Bullock order, that Santos Ltd pay the costs which the appellant has been ordered to pay to the first defendant.The principle of justice upon which the Bullock order rests may, in my opinion, be stated thus.The unsuccessful defendant has caused the litigation by his wrongful act and by disputing liability for it.He therefore ought to pay all costs reasonably incurred by the plaintiff in connection with the litigation.If it was reasonable, as between the plaintiff and the unsuccessful defendant, for the plaintiff to sue the successful defendant, the unsuccessful defendant ought therefore in justice be liable to indemnify the plaintiff against the costs of so doing, including those which he is ordered to pay to the successful defendant.In many cases the basis for the plaintiff's claim of reasonableness in joining the successful defendant will be the conduct of the unsuccessful defendant in placing the blame on the successful defendant.That conduct is, however secondary to the underlying principle of justice indicated above.The principle is stated in Gould v Vaggelas (1984) 157 CLR 215 Wilson J (with whose judgment on the point Murphy J agreed) at 247 'Such an order may be made where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant.'Gibbs CJ (at 229) also formulated the principle in those terms.He approved, however, a formulation of the principle by Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGR 94 AT 100 in terms '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'.Of course, if the word 'conduct' is used in a sense wide enough to include the commission of the wrongful act and the contesting of liability, there may not be much difference between the two approaches.Brennan J also referred to conduct in his formulation of the principle.It is pertinent that in Gould v Vaggelas (supra) the justification for the Bullock order was the conduct of the unsuccessful defendant 'by denying inducement and placing reliance upon the independent advice tendered by the successful defendant', per Brennan J (at 260)." (Emphasis added).

Another helpful exposition of those principles are found in the comments of Gibbs C J in Gould v Vaggelas (1983-1985) 157 CLR 215 at 219:-

"The ground on which a Bullock order may be made is, in my opinion, more accurately stated in a passage in Sanderson v Blyth Theatre Co. which was cited with approval in Bullock v London General Omnibus Co and Hong v A & R Brown, viz., that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed "are ordered to be paid by the unsuccessful defendant, on the ground that ... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant".In Johnsons Tyne Foundry Pty Ltd v Maffra Corporation, Williams J. stated the principle in a similar way and Starke and Dixon JJ., in giving their reasons for making a Bullock order, both relied on the circumstance that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant.In my respectful opinion the true position was clearly stated by Blackburn C J 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."

(Emphasis Added)

It was submitted by Mr Holland that in view of the circumstances outlined above it was reasonable and proper for the plaintiff to seek resolution of the issue of whether Mutual Community was obliged to indemnify Glen Lightbody pursuant to the insurance policy.It followed, he said, that the costs were reasonably and properly incurred by the plaintiff as between him and Glen Lightbody.

The present case is different than the usual case where a Bullock order is made.In most of those cases the central issue between the defendants and the plaintiff is the question of who is liable to the plaintiff in damages.It is when one of those defendants is found to be liable and the other is successful in avoiding liability to the plaintiff that the issue of the Bullock order arises.Here, the circumstances are different.Mutual Community was never involved in the issue of liability to the plaintiff for damages.Its involvement in the litigation was to determine whether it should indemnify Glen Lightbody under the insurance policy if he was found to be liable to the plaintiff.The question which then arises is whether the principles which apply in making a Bullock order can apply to the circumstances which pertain in this case.In my opinion they do apply.There is no reason to suggest the making of a Bullock order is confined only to defendants who have been involved in the question of liability to the plaintiff.A Bullock order is part of the wider question of costs and the discretion of a Judge to order costs.It involves questions of fairness and the purpose of the plaintiff in joining the successful defendant in the litigation.Such matters are of general application.They are not confined to specific factual scenarios which are often present in many cases where Bullock orders have been made.

In my opinion it is appropriate to make a Bullock Order in these circumstances. Glen Lightbody denied liability for the damages sought by the plaintiff.He is a young man without any financial substance.The State of South Australia denied liability for the plaintiff's claim for damages.If the plaintiff only succeeded against Glen Lightbody any award of damages could only be met if Mutual Community was contractually bound to indemnify Glen Lightbody under the insurance policy.It was clear that Glen Lightbody did not have financial resources to satisfy any award.Whilst the Third Party proceedings were still on foot it was possible that they would not be pursued or if they were pursued then they would not be pursued effectively because Glen Lightbody may be unrepresented.

The conduct of Glen Lightbody is relevant in the exercise of my discretion. That conduct initially was Glen Lightbody's action in causing the injury and denying liability.Then there was his conduct in bringing Third Party proceedings seeking indemnity under the insurance policy.Thereafter, as the action proceeded to trial he caused the plaintiff to become concerned that the indemnity issue may not be pursued at the trial or if it did it would be pursued by a party who may be unrepresented.The question of the indemnity was of great importance to the plaintiff.In view of Glen Lightbody's impecuniosity,a judgment against him only would leave the plaintiff in a position where he would not receive payment of any damages unless Mutual Community was obliged to indemnify Glen Lightbody.In my view "a prudent plaintiff really had no choice" but to join Mutual Community as a defendant (see: Fennell per Jacobs J at 15).It was reasonable to do so.

In those circumstances, it is my view that the costs incurred in seeking the indemnity against Mutual Community were reasonably and properly incurred by the plaintiff as between him and Glen Lightbody.Those circumstances also make it fair to impose those costs on Glen Lightbody.

Finally, it should not be forgotten that Glen Lightbody's Third Party proceedings were extant at the commencement of the trial.It can therefore be assumed that he wished to pursue his claim for indemnity under the insurance policy.His ability to do so as an unrepresented litigant would have been extremely difficult.Although, the plaintiff pursued his claim for a declaration for his own benefit he was at the same time, in effect, pursuing the claim for Glen Lightbody.If the plaintiff had been successful against Mutual Community this would also have benefited Glen Lightbody.In fact, if the plaintiff had been successful then Glen Lightbody could have sought judgment against Mutual Community in the Third Party proceedings.This fact further demonstrates the fairness in imposing liability for the costs of Mutual Community on Glen Lightbody.

I therefore grant the application for a Bullock order and accordingly order that as between the plaintiff and Glen Lightbody that Glen Lightbody pay the costs the plaintiff has been ordered to pay to Mutual Community.