Cornwall v Rowan (No 2) - [2005] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORNWALL & ORS v ROWAN (No 2)
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Besanko and The Honourable Justice Sulan)
1 April 2005
RESTITUTION - OTHER MATTERS - RECOVERY OF MONEY PAID UNDER JUDGMENT OR ORDER
Multiple defendants pay damages and interest to plaintiff pursuant to judgment and contribution orders of trial Judge - Some defendants successful on appeal - Monies paid in satisfaction of judgment and orders set aside to be repaid - Right of successful appellants to recover interest on sum to be repaid - Principle of restitutio in integrum - Rate of interest applicable.

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - CO-DEFENDANTS
Orders for costs of trial and of appeal - Whether unsuccessful defendants should bear plaintiff's liability for costs of successful defendants - Circumstances where appropriate to make Bullock order - Whether justification for Bullock order - Costs where both successful and unsuccessful defendants represented by same solicitors and counsel - Reduction of plaintiff's costs to reflect failed claim of conspiracy and unsuccessful claims against some defendants - Effect on award of costs to successful defendant of raising additional unsuccessful defences leading to greater attendance at trial - No costs awarded for those attendances deemed unnecessary.
Supreme Court Act 1935 (SA) s 30C, s 40 and s 114; Supreme Court Rules 1987 (SA) r 84.19 and r 101.02, referred to.
Commonwealth v McCormack (1984) 155 CLR 273; Rodger v The Comptoir D'Escompte de Paris (1871) LR 3 PC 465; Heydon v NRMA Ltd & Ors (No.2) (2001) 53 NSWLR 600; Road & Traffic Authority v Ryan (No.2) [2002] NSWCA 128; Gould v Vaggelas (1985) 157 CLR 215; Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6; Glenmont Investments Pty Ltd v O'Loughlin & Ors (No.3) (2001) 79 SASR 288, applied.
Sianis v Barlow Fletcher and Royal Adelaide Hospital (1989) 154 LSJS 284, discussed.
Copping & Anor v ANZ McCaughan Ltd (No.1) (1995) 63 SASR 523; Cretazzo v Lombardi (1975) 13 SASR 4; Bullock v London General Omnibus Co [1907] 1 KB 264; Sanderson v Blyth Theatre Co [1903] 2 KB 533, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Bullock Order"

CORNWALL & ORS v ROWAN (No 2)
[2005] SASC 122
Full Court: Bleby, Besanko and Sulan JJ

THE COURT: The Court had before it four notices of appeal by different groups of defendants in the original proceedings, a notice of alternative contention by the plaintiff and a notice of cross-appeal by the plaintiff. Each of the notices of appeal contained a number of grounds affecting different components of the primary judgment of the trial Judge. The Court also had before it a notice of appeal and notice of cross-appeal concerning orders for contribution between the defendants made at a later stage by the trial Judge.
On 24 November 2004 we published reasons for decision in which we stated our conclusions on all but two appeals. Those appeals concerned the order for costs of the trial of Mr Sumner and Senator Ryan. We reserved for further argument the terms of the orders necessary to give effect to the various aspects of the decision on appeal, the question of interest on the judgment as varied, the costs of the appeal and costs of the trial and any consequential orders. We heard argument on those issues on 21 December 2004. This decision and the short form of orders attached are the result of that hearing.
The primary orders including interest on the judgment
In order to understand the nature of the orders to be made it is necessary to recite some history of what occurred in the making of orders by the trial Judge. What happened in relation to the preparation and sealing of the various orders reveals deficiencies in some of those orders which should have been avoided and an inexcusable failure to have one of them drawn up and sealed at all.
The trial Judge published his findings and reasons for decision on 21 June 2002. He then heard argument as to costs and interest. On 12 July 2002 he published a supplementary decision relating to those issues and made orders designed to give effect to his earlier reasons. The sealed judgment correctly records those orders as having been made on 12 July 2002: see r 84.02(1), Supreme Court Rules.
Having heard argument on the contribution notices, on 18 February 2003 the Judge gave a decision on the claims for contribution. The order giving effect to that decision was not drawn up or sealed until 14 March 2003. It correctly records the contribution orders as having been made on 18 February 2003.
One of the defendants then applied to vary the orders previously made because they did not reflect the reasons delivered on 18 February. It is not surprising that inconsistencies might result in a very complex case where arguments on discrete issues are widely separated in time. As a result, the Judge considered that paras.3 and 4 of the orders made on 12 July 2002 contained an error, and on 28 February 2003 he directed that paras.3 and 4 of the original judgment be amended. He pointed out that it would be necessary to make consequential variations to the contribution orders made on 18 February 2003. At that stage those latter orders had not been drawn up or sealed.
The original order on the contribution notices made on 18 February was then drawn up and sealed on 14 March 2003. On the same date there was sealed another judgment by which it was ordered in para.1 that the orders made on 18 February “be amended so that they read as provided in paragraph 2 hereof”. Paragraph 2 then repeated, without variation, para.1 of the orders of 18 February. Para.3 differed from para.2 of the 18 February orders. Paras.4 and 5 reflected paras.3 and 4 of the 18 February orders and para.6 was new. There was not drawn up or sealed any order giving effect to the amendments to paras.3 and 4 of the original judgment as the trial Judge directed. All of the sealed orders were rendered more confusing by the prominent endorsement “Date of document”, which in one case was not completed at all and which in two cases bore a date not relevant either to the date of the order or the date of sealing. In addition, the orders as sealed did not accurately reflect the terms of the Common Form Judgments published by the Court as required by Practice Direction 44.
All this reflects poorly on the standard of preparation of orders in this case. Regrettably, in the experience of members of this Court, this is not the only occasion when the preparation of minutes of order for settling has fallen below an acceptable standard.
Fortunately, the problems we have identified appear to have occasioned no practical difficulties in this case. The result of the appeal has substantial effects on both the original judgment and the judgments on the contribution proceedings. It will be convenient and indeed necessary to set aside all the orders made by the Judge and to substitute for them the orders which this Court has decided should have been made.
Interest
The effect of our decision is that the plaintiff has failed against a substantial number of the defendants, and judgment must be entered in their favour. The first defendant (Dr Cornwall) and the second defendant (Mrs Roberts) are liable to pay a reduced amount of damages now assessed at $280,425.10 on which interest is also payable. The first defendant is required to pay an additional $25,000 by way of exemplary damages on which interest does not run: s 30C(4)(ab) Supreme Court Act 1935.
We did not interfere with the trial Judge’s assessment of the respondent’s special damages or damages for economic loss. The reduction we made was from the sum of $225,000 to $190,000 for general damages for injury to the respondent’s reputation.
The trial Judge assessed interest on that item of general damages at $134,253. He then assessed interest on the special damages, which sum he fixed at $43,545, but because some of those expenses had been relatively recently incurred, he rounded down the total award of interest on general damages and special damages to $175,000. This means that the actual allowance for interest on special damages was:
Total interest assessed   $175,000
Less interest on general damages  $134,253
Interest on special damages  $40,747
In addition, the Judge assessed interest separately on the plaintiff’s economic loss at $70,235.
As mentioned above, the only variation to the interest calculation is that in respect of the component for the revised figure of general damages for loss of reputation. There has been no appeal by the first and second defendants against the award of interest or its method of calculation by the trial Judge. In the circumstances, it is appropriate that the calculation of interest on that sum should be by the same method as that adopted by the trial Judge.
Interest was calculated on that sum at the rate of 4% for 14 years 11 months. Applying the same calculation to the reduced sum of general damages results in a revised figure for interest on that component of $113,366.66.
The total interest payable on the revised judgment sum is therefore calculated as follows:
Interest on general damages  $113,366.66
Interest on special damages  $40,747.00
Interest on damages for economic loss  $70,235.00
$224,348.66
This figure differs slightly from the figure calculated by the State appellants and assented to at the hearing because of the allowance by the State appellants in their calculations of the full amount of $43,545 interest on special damages without discounting that figure in accordance with the reasoning of the trial Judge. The total liability of the first and second defendants for damages and interest to the date of judgment of the trial Judge is therefore:
Damages $280,425.10
Interest $224,348.66
$504,773.76
In addition, the first defendant remains liable for the additional sum of $25,000 by way of exemplary damages, making a total payment to the plaintiff of $529,773.76.
The State of South Australia
The State of South Australia was a party to the proceedings. In our reasons for judgment we indicated the nature of the respondent’s pleadings against the State of South Australia: see para.[813]. At paras.[814] to [817] we expressed the tentative view that the proceedings against the State of South Australia should be dismissed. We will not repeat the reasons for that. Nothing that the respondent has put persuades us to change the tentative view we then expressed. We propose to order that the action against the State of South Australia be dismissed.
Judgment sums paid by the defendants
On 5 August 2002 the State appellants, as we have referred to them in the reasons for judgment, and which include Dr Cornwall and Mrs Roberts, paid the following amount to the plaintiff:
Judgment sum plus interest $585,660.10
Post judgment interest (25 days @ 6%) $2,406.75
$588,066.85
The amount which should have been paid by the first and second defendants, assuming that payments were made on the same day, is calculated as follows:
Total amount of judgment and interest $529,773.76
Post judgment interest (25 days @ 6%) $2,177.15
$531,950.91
The amount repayable by the respondent to the State appellants is therefore calculated as follows:
Amount paid on 5 August 2002  $588,066.85
Less amount which should have been paid if
paid on the same day  $531,950.91
Balance  $56,115.94
There will be an order that the plaintiff repay this amount to the State appellants.
The defendants liable on the contribution notices paid their respective contributions to the State appellants. Their appeals have succeeded in full. They are entitled to orders for the repayment of the amounts actually paid to the State appellants.
The respective amounts paid and the dates on which they were paid, as asserted by the respective appellants and acquiesced in by the State appellants are set out below. The amounts include amounts paid in respect of interest:

Appellant

Date Paid

Amount

Fifth Defendant (the ABC)

17 March 2003

$87,278.00

The 7^th and 12^th Defendants

(Ms King and the Commonwealth)

12 March 2003

$28,730.69

13^th Defendant (TVB)

12 March 2003

$87,278.42

There will be orders that the first and second defendants repay those respective amounts to the respective defendants.
Interest on judgment amounts to be repaid
The question arises as to the entitlement of those who paid portions of the judgment sum to interest on the amounts they paid from the date of payment until the date of this order. Such a claim was refused, it would appear with some reluctance, by the Full Court of this Court (Jacobs, Mohr and Duggan JJ) in Sianis v Barlow Fletcher and Royal Adelaide Hospital (1989) 154 LSJS 284. The judgment of the Court was delivered by Jacobs J. His Honour first concluded, on analysis of the somewhat limited authorities, that the justice of the case required the plaintiffs to repay the money that had been paid and that a court of appeal, in setting aside a final judgment, could order that monies paid under the judgment be refunded. However, the claim for interest was denied. It appears that the appellants relied solely on s 30C of the Supreme Court Act. Sub-sections (1) and (2) were then in the following terms:
“(1)Unless good cause is shown to the contrary, the court shall, upon the application of a party in favour of whom a judgment for the payment of damages, compensation or any other pecuniary amount has been, or is to be, pronounced, include in the judgment an award of interest in favour of the judgment creditor in accordance with the provisions of this section.
(2)    The interest –
(a)     shall be calculated at such rate of interest as may be fixed by the court;
(b)    shall be calculated –
(i)where the judgment is given upon an unliquidated claim – from the date of the commencement of the proceedings to the date of the judgment;
or
(ii)where the judgment is given upon a liquidated claim – from the date upon which the liability to pay the amount of the claim fell due to the date of the judgment,
or in respect of such other period as may be fixed by the court;
and
(c)    shall be payable in respect of the whole or any part of the amount for which judgment is given in accordance with the determination of the court.”
Jacobs J was not satisfied that s 30C had any application to that situation. It contemplated that “the date when the liability to pay fell due” is a different and earlier date from the date of the judgment. In the case in question they were the same date because no liability arose until the appeal court pronounced its judgment. His Honour considered that even if s 30C could be construed as being applicable to the case, he pointed out that interest could only run from the date of the order for repayment and not from a date prior to that on which the liability to pay fell due. The claim for interest was therefore refused.
In 1993 sub-section (2) of s 30C was amended to read as follows:
“(2)The interest –
(a)     will be calculated at a rate fixed by the court; and
(b)    will be calculated in respect of a period fixed by the court (which must, however, in the case of a judgment given on a liquidated claim, be the period running from when the liability to pay the amount of the claim fell due to the date of judgment unless the court otherwise determines); and
(c)    is payable, in accordance with the court’s determination, in respect of the whole or part of the amount for which judgment is given.”
The State appellants argued that the interpretation of the present section should not be constrained by the wording or meaning of the section before amendment. However, for present purposes there would appear to be no difference in substance between sub-section (2) before and after the amendment. The judgment for return of the monies is for a liquidated sum. On the authority of Sianis, the date when the liability to pay the amount of the claim falls due is the date of judgment. The provisions both before and after amendment, although expressed differently, allowed the court to fix a different period. If the only source of authority to order the payment of interest were s 30C of the Supreme Court Act, the Court as presently constituted would, on the authority of Sianis, be constrained to reject the claim for interest.
However, there is another basis on which the claim for interest is justified which appears not to have been argued in Sianis. An analogous situation arose in the Commonwealth v McCormack (1984) 155 CLR 273. In their joint judgment, Murphy, Wilson, Brennan, Deane and Dawson JJ said, at 276:
“‘Restitutio in integrum is the right of every successful appellant’: per Lord Field in Cox v Hakes (1890) 15 AC 506, at 547. An appellant who has satisfied a judgment for the payment of money is entitled, on the reversal of the judgment, to repayment of the money paid by him with interest: Rodger v The Comptoir D’Escompte de Paris (1871) LR 3 PC 465; Merchant Banking Co v Maud (1874) LR 18 Eq. 659. In the former case, Lord Cairns said , at 475:
‘… one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter to the highest Court which finally disposes of the case’.”
It must be acknowledged, however, that the Commonwealth, in that case, did not seek an order for interest on the amount to be repaid. It should be noted, however, that immediately following the passage from the speech of Lord Cairns in Rodger v The Comptoir D’Escompte de Paris quoted by the High Court the following passage appears in his Lordship’s judgment, at 475-476:
“It is contended, on the part of the Respondents here, that the principal sum being restored to the present Petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury, will be done to the Petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioners, and that the perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest, during the time that the money has been withheld.”
The position has also recently been considered and that approach reaffirmed in two decisions of the New South Wales Court of Appeal. In Heydon v NRMA Ltd & Ors(No.2) (2001) 53 NSWLR 600, the court was dealing with repayment of the amount of a judgment set aside on appeal. Mason P, with whom Beazley JA and Ipp A-JA agreed said, at 603-604:
“14.Some have looked to statutes and rules as the source of the power to award restitution with interest. In my opinion, the right exists at common law and is not based upon some discretionary invocation of statutes or rules relating to appeals. It is based on the ‘unifying legal concept’ of unjust enrichment identified by Deane J in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256-257. My views are developed in detail in Restitution Law in Australia, especially ch 7 (Judgments Reversed or Set Aside) and ch 28 (Interest). In brief, restitution is available regardless of the means whereby the judgment is discharged; and restitution with interest is the right of the ultimately successful party (see esp Rodger v Comptoir d’Escompte de Paris (1871) LR 3 PC 465; Commonwealth v McCormack (1984) 155 CLR 273; TCN Channel 9 Pty Ltd v Antoniadis(No.2) (1999) 48 NSWLR 381).”

Mason P later continued, at 607:
“19.The purpose of an award of interest in these circumstances is restitutio in integrum (Commonwealth v McCormack (at 276)), that is, to put the parties in the position they should have been when the litigation was completed at first instance. A just restoration is the means whereby an attempt is made ‘to take care that the act of the Court does no injury to any of the Suitors’ (Rodger (at 475), cited in Commonwealth v McCormack (at 276). See also Heavener v Loomes (1924) 34 CLR 306 at 323-324). There is no aim of punishing or even coercing the ultimately unsuccessful litigant who, after all, cannot be at fault in having sought to obtain and retain the fruits of victory awarded by the court at first instance. In this circumstance, the moral claims of the parties are somewhat different to those that prevail prior to the initial judgment when, ex hypothesi according to the law declared at first instance, the judgment debtor was wrongfully withholding payment of the damages or debt due to the plaintiff.
20.In Meerkin & Apel v Rossett Pty Ltd (No.2) [1999] 2 VR 31 at 34, Callaway JA (Charles JA and Batt JA concurring) said:
‘… An appellate court is concerned to do justice to the parties, not solely to the appellant. The error was made by the court below, not by the respondent. There is no right to compensation as against the respondent but only to restitution. If interest measured by the appellant’s loss is awarded, all that the court will do is to shift the injustice occasioned by the erroneous judgment from the appellant to the respondent.’
21.This passage suggests a dichotomy between restitution and compensation that may be capable of being misunderstood. I agree that the court is not seeking to compensate the ultimately successful party for all indirect losses stemming from submission to the judgment later set aside on appeal (see National Australia Bank Ltd v Bond Brewing Holdings Ltd and Burger King Corporation v Hungry Jack’s Pty Ltd [2001] NSWCA 187 at [487]-[500] for instances where compensatory restitution was withheld). However, the present context (interest) is one where the court is seeking to achieve restitutio in integrum by seeking to restore the parties to the position they would have been when the litigation finished at first instance. In these circumstances, while the award of interest is restitutionary in intent as regards both parties, its effect is also broadly compensatory as regard the appellant.”
A differently constituted court of appeal reached a similar conclusion in Road & Traffic Authority v Ryan (No.2) [2002] NSWCA 128. Ipp A-JA, with whom Meagher JA agreed said, at [23]:
“In Heydon v NRMA & Ors (No 2) (2001) NSWCA 445 Mason P expressed the opinion (at para19) that the claim for interest on money paid under a judgment set aside was restitutionary in nature. Accordingly, ‘the purpose of an award of interest in these circumstances in restitutio in integrum … ie to put the parties in the position they should have been when the litigation was completed at first instance’. The learned President observed that (at para27), in the context of such a restitutionary claim, ‘doing justice to both sides also means that a respondent cannot be made hostage to the appellant’s particular susceptibility any more than the appellant can be made hostage to the respondent’s particular caution or carelessness’. I may say that, following the same reasoning, doing justice to both sides also means that an appellant cannot be made hostage to the respondent’s particular susceptibility.”
In a separate judgment Giles JA said, at [7]:
“An order for repayment of money paid under a judgment later set aside is restitutionary, made to restore the appellant to the position in which it would have been but for the erroneous judgment: Production Spray Painting and Panel Painting Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. Interest is part of the restitution (Heydon v NRMA (No 2) 2001 NSWCA 445), and is payable as of right not in the exercise of a discretion. It follows that the rate of interest is generally not governed by what the respondent did with the money between payment and repayment. It is governed by the need to provide appropriate restitution to the appellant.”
In both the above cases interest was awarded on the amount of the judgment debt to be repaid.
In accordance with the principles of unjust enrichment upon which these authorities are based, we consider that interest is payable on the amount of the judgment debt to be repaid by the respondent to the State appellants and by the State appellants to those defendants who paid the respective amounts of the judgment ordered in the contribution proceedings.
The rate of interest is not dependent upon the rate which the payee in fact earned (if any) on the amounts paid, nor on the rate which the payer could have earned on the money if retained. It is to be determined at a rate which provides appropriate restitution to the appellants.
In these circumstances the most appropriate guide is the rate of interest payable on judgments of the Court pursuant to s 114 of the Supreme Court Act. That rate is fixed by r 84.19 Supreme Court Rules and the Third Schedule to the Rules. If the amounts of the judgment had been unpaid, that is the rate of interest to which the respective payees would have been entitled. It is appropriate that where the judgment debt has been paid, the amount of the repayment should bear interest at the same rate. The rate so prescribed from the respective dates of payment to and including 1 August 2004 was 6% per annum and from and including 2 August 2004 the rate has been 6.5% per annum. There will be an order that interest be paid on the respective amounts to be repaid at those rates from the respective dates of payment until today. The actual amounts are reflected in the short form of order attached to these reasons.
Costs – Relevant principles
We turn now to the question of costs. Having regard to the orders which this Court will make on the appeal and the cross appeal, the costs of the trial must be considered afresh. The costs of the appeal must also be considered.
The relevant principles with respect to costs are well known.
By reason of s 40 of the Supreme Court Act 1935 (“SCA”) the costs of and incidental to all proceedings in the Court are in the discretion of the Court or Judge and the Court or Judge shall have full power to determine by whom and to what extent such costs are paid. The rule of court which deals extensively with the powers of the Court in relation to costs is r 101 of the Supreme Court Rules 1987. Rule 101.02 provides that subject to the Rules, the costs of and incidental to a proceeding shall follow the event unless the Court otherwise orders. This rule does not fetter the general discretion on costs given by s 40 of the SCA (Copping & Anor v ANZ McCaughan Ltd (No 1) (1995) 63 SASR 523).
In this case, three matters relating to costs are of particular relevance. The first is that a party may be successful in an action but unsuccessful in relation to one or more issues in the action and that the lack of success in relation to issues may be reflected in the order for costs either by depriving the party successful in the action of his costs on the issue, or by doing this and requiring the successful party to pay the costs of the issue to the other party. The power to make an order in these terms will be exercised with caution (Cretazzo v Lombardi (1975) 13 SASR 4 per Jacobs J at 16).
Secondly, in certain circumstances the court will order an unsuccessful defendant to pay not only the plaintiff’s costs but also the plaintiff’s liability for costs to a successful defendant (Bullock v London General Omnibus Co [1907] 1 KB 264: Bullock order), or to pay directly to a successful defendant his costs (Sanderson v Blyth Theatre Co [1903] 2 KB 533: Sanderson order).
For the purposes of this case it is sufficient to consider the circumstances in which a Bullock order may be made.
The circumstances in which a Bullock order may be made were considered by the High Court in Gould v Vaggelas (1985) 157 CLR 215. In that case the trial Judge made an order that the plaintiffs’ costs recovered against the unsuccessful defendant include the costs the plaintiffs were ordered to pay to the successful defendant.
The plaintiffs purchased a tourist resort which did not perform as expected and they sued the vendors and their own accountants. They obtained a judgment against the vendors but their claim against their accountants was dismissed. The trial Judge made a Bullock order which meant that the unsuccessful vendors were required to pay the accountants’ costs. Importantly, in Gould v Vaggelas (supra) the vendors had denied inducement and placed reliance on independent advice allegedly given to the plaintiffs by their accountants.
Gibbs CJ said that it was not enough to justify a Bullock order that it was reasonable for the plaintiff to bring his action against two or more defendants. Unless the unsuccessful defendant has said or done something to lead the plaintiff to sue the other defendant the unsuccessful defendant should not have to pay for the plaintiff’s error or over-caution (at 229). Gibbs CJ cited with approval the following statement of Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA 94 (at 100):
“… 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.”
Wilson J (with whom Murphy J agreed on this point) described the relevant principle in terms of whether the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant (at 247). Brennan J (as he then was) said a Bullock order in a case where a plaintiff had sued two or more defendants for substantially the same damage and was unsuccessful against one of the defendants was only appropriate 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 secure recovery of the damages sought (at 260).
The circumstances in which it may be appropriate to make a Bullock order were considered by this Court in Fennell v Supervision & Engineering Services Holdings Pty Ltd (1988) 47 SASR 6. A worker was injured in the course of his employment. He sued his employer and the company which at the relevant time was utilising his services under a hiring arrangement. The worker was injured at the premises of the company and was under its direction at the relevant time. The plaintiff’s claim against his employer was dismissed but his claim against the company was successful. The Full Court considered that it was an appropriate case for the making of a Bullock order. King CJ referred to Gould v Vaggelas (supra) and said that the relevant “conduct” of the unsuccessful defendant might be constituted by the commission of the wrongful act and the contesting of liability (at 7 – 8). The Chief Justice said that it was entirely reasonable for the plaintiff to sue his employer who had the prima facie responsibility for his safety. Jacobs J referred to the view of Gibbs CJ and Brennan J in Gould v Vaggelas (supra) and the “broader view” taken by Murphy and Wilson JJ. In the end he did not think that it was possible to extract a clear principle and he said that the fact that the plaintiff’s decision to prosecute the action to a conclusion against both defendants was entirely reasonable was a proper foundation for a Bullock order (at 14 –15). In the opinion of von Doussa J there was no real difference of opinion between the four members of the Court in Gould v Vaggelas (supra) and he expressed the principle in the following terms (at 19):
“I am unable to detect any real difference of opinion between the four justices of the High Court in Gould v Vaggelas (1984) 157 CLR 215 who discussed the principle on which a Bullock order may be made against an unsuccessful defendant. Gibbs CJ considered that the mere fact that joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay directly or indirectly the costs of the successful defendant. He said (at 229-230):
‘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 [1903] 2 KB 533 at 539, which was cited with approval in Bullock v London General Omnibus Co [1907] 1 KB 264 at 272 and Hong v A & R Brown Ltd [1948] 1 KB 515 at 522, 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 Corp (1948) 77 CLR 544, Williams J (at 572-573), 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 (see at 559-560, 566). In my respectful opinion the true position was clearly stated by Blackburn CJ in Steppke v National Capital Development Commission (1978) 39 LGRA 94 at 100, 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'."
The circumstances in which it may be appropriate to make a Bullock order were considered again by this Court in Glenmont Investments Pty Ltd v O’Loughlin & Ors (No 3) (2001) 79 SASR 288. It is unnecessary to relate the facts of that case. There are two important passages in the reasons for judgment of the Chief Justice (with whom Nyland and Martin JJ agreed), the first relating to the relevant principle and the second involving the application of the relevant principle to the facts. Glenmont was the plaintiff and the Society was a successful defendant on appeal. Other defendants were unsuccessful at trial and on appeal. As to the relevant principle, the Chief Justice said (at 291 - 292):
“The principles by reference to which such an order may be made were canvassed by the members of the High Court in Gould v Vaggelas (1985) 157 CLR 215 (‘Gould’). The application of those principles was considered in this Court in Fennell v Supervision and Engineering Services Holdings Pty Ltd & Santos Ltd (1988) 47 SASR 6 (‘Fennell’). In Gould there is some difference in the manner in which the principle is expressed by the members of the High Court. For present purposes I consider the effect of that decision was accurately summarised by von Doussa J in Fennell (at 19) when he said:
‘In my opinion the principle to be discerned from Gould v Vaggelas is that a Bullock 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; as between them those costs will be so incurred where the conduct of the unsuccessful defendant in relation to the plaintiff’s claim show (sic) that the joinder of the successful defendant was reasonable and proper to ensure recovery.”
I emphasise that neither the observations of the members of the High Court in Gould, nor this passage from the judgment of von Doussa J, are to be treated like a statute. The Court is dealing with a discretion as to costs, which discretion is to be exercised on the basis of a principle. There is no precise rule.
In the present case it was reasonable for Glenmont to join the Society. Glenmont had an arguable case against the Society. But that alone is not enough. The issue is whether the conduct of the other Defendants, before proceedings were instituted and after they were instituted, made it reasonable that Glenmont should join the Society, and reasonable in the sense that the other Defendants should incur the costs resulting from that.”
As to the application of the principle to the facts, the Chief Justice said (at 292):
“But, in my opinion, this is not a case in which, from Glenmont’s point of view, liability turned on relationships between the Society and the other Defendants which were unknown to Glenmont, nor is it a case in which there was no way in which Glenmont could, before trial, identify the part played by the Society and the other Defendants respectively. It is not a case in which it was the other Defendants who raised issues that suggested that the Society might be liable. Nor did the other Defendants seek to escape liability on the basis that the Society was liable to Glenmont, rather than the other Defendants. It is not a case in which only the Defendants knew what had happened, and in which it was open to them to leave Glenmont in the dilemma of not knowing which Defendant might be liable, and running the risk of failing if it brought proceedings against some only of them. The case seems to me to be one in which Glenmont, quite reasonably, brought proceedings against all Defendants potentially liable, but that seems to me to reflect nothing more than a sensible decision that it was in Glenmont’s interests to do so. Nothing has been brought to the Court’s attention about the conduct of the Defendants before the proceedings were instituted, or afterwards, which makes it reasonable as between Glenmont and the other Defendants that those other Defendants should meet the costs payable by Glenmont to the Society. In particular, it is not a case in which the Defendants attempted to shift all of the blame to the Society.”
The third matter of relevance in this case is that a group of defendants, some of whom have been held liable and some of whom have been exonerated, was represented at trial and on appeal by one firm of solicitors and one counsel. In this case that fact has led us to adopt a different approach to costs than if each defendant (successful or unsuccessful) in the group had been separately represented.
We turn now to consider the circumstances of this case. We start with the costs of the trial.
The costs of the trial
It is convenient to divide the defendants into four groups, viz:
1.     Dr Cornwall, Mrs Roberts, Ms Blake, Ms Wighton (deceased), Ms Johnson, Ms Anderson, Mr Sumner and the State of South Australia (“the State defendants”);
2.     Senator Ryan, Ms King and the Commonwealth of Australia (“the Commonwealth defendants”);
3.     The Australian Broadcasting Corporation (“ABC”).
4.     Television Broadcasters Ltd (“TVB”).
At trial, the State defendants were represented by one firm of solicitors and one counsel, as were the Commonwealth defendants. These defendants were present throughout the trial. Each of the television stations was represented by a firm of solicitors and a counsel. Neither television station was present throughout the trial. It seems that the ABC attended more often than TVB.
At trial, the State defendants (other than Mr Sumner) were held liable (in differing amounts) to the plaintiff and the Commonwealth defendants (other than Senator Ryan) were held liable to the plaintiff. The television stations were each held liable to the plaintiff.
The Judge ordered that the defendants (other than Mr Sumner and Senator Ryan) pay the plaintiff’s costs on a party and party basis to 29^th June 2000 and 95 per cent of those costs thereafter. It seems that on or about 29^th June 2000 the plaintiff introduced her conspiracy claim which ultimately failed before the Judge and it was this fact which led to the reduced costs order after 29^th June 2000. The Judge made an order that TVB be liable for only 15 per cent of the plaintiff’s costs because of the limited role it played at trial. The costs orders made by the Judge included the following particular orders in relation to Mr Sumner and Senator Ryan.
“11The Plaintiff shall pay as the costs of the Defendant Sumner an amount equal to Counsel fees for two days for Ms Panagiotidis.
12The Plaintiff shall pay as the costs of the Defendant Ryan an amount equal to Counsel fees for two days for Mr Stanley and the defendant Ryan’s reasonable costs travelling and accommodation to give evidence.”

Both Mr Sumner and Senator Ryan appealed against those orders claiming the awards for costs were manifestly inadequate. We do not consider it necessary to deal with those appeals as freestanding appeals. The fact is that as a result of the appeal a number of State defendants joined Mr Sumner as having successfully resisted the plaintiff’s claim, and the same may be said of the Commonwealth defendants and Senator Ryan. It is appropriate to consider Mr Sumner as being no different from the other successful State defendants and Senator Ryan as being no different from the other successful Commonwealth defendants.
The Commonwealth defendants and the two television stations have succeeded on appeal in having the judgments against them set aside and on the face of it each of them is entitled to their costs of trial.
The plaintiff submits that the ABC should not have its costs of trial because it persisted with the defence of justification and other defences at the trial and was unsuccessful in relation to those defences. The plaintiff also submits that TVB’s costs of trial should be reduced because although it did not plead justification it did plead other defences such as fair and accurate report in relation to which it was unsuccessful. It is convenient to deal with the submission in relation to TVB first. We reject the plaintiff’s submission. As the Judge said, TVB took a minimal part in the trial and the issues against it were fairly narrowly confined (Rowan v Cornwall (No 6) [2002] SASC 234). We see no reason why it should be deprived of any part of its costs.
Nor do we think the ABC should be deprived of any of its costs of the trial because it raised defences other than the defence of justification. However, the fact that the ABC raised the defence of justification stands in a different position. As the Judge said in Rowan v Cornwall (No 6) (supra) (at [17]) “the ABC relied on the defence of justification and so had to be present for the greater part of this trial”. While it is clear that not every successful defendant to a defamation action who unsuccessfully pleads a defence of justification will suffer a penalty in costs, we think that in a case where a greater attendance at trial than would otherwise be necessary flows from an unsuccessful plea of justification, that fact should be reflected in the award of costs. The fact that the State defendants were also maintaining a plea of justification does not lessen the force of the point as against the ABC. There are various ways in which the unsuccessful plea of justification might be reflected in the award of costs. The ABC might be deprived of its costs on that issue and, in addition, might be ordered to pay the plaintiff’s cost on that issue. However, we think the appropriate way to reflect the ABC’s unsuccessful plea of justification is to order that the ABC costs should be restricted in terms of attendance at trial such that it recovers costs for no greater attendance at trial than the attendance by TVB.
Subject to this qualification in relation to the ABC, the Commonwealth defendants and the two television stations are entitled to their costs of the trial, and on the face of it, those costs should be paid by the plaintiff. However, the plaintiff submits that it is appropriate to make a Bullock or Sanderson order against the unsuccessful State defendants in relation to the costs of the Commonwealth defendants and the two television stations.
In considering this submission it is convenient to start with the two television stations. The plaintiff submits that the first defendant, Dr Cornwall, set in train a course of events which led to harm being suffered by the plaintiff. She submits that Dr Cornwall told Mrs Roberts to deal with the media. The relevance of this particular fact was never made clear and we do not think that it is a reason to make a Bullock order. The plaintiff submits that it was reasonable for her to join the television stations. She submits that she cannot be criticised for failing to appreciate that the television stations would succeed on the basis of the defence of extended qualified privilege (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520). The plaintiff points to the fact that the State defendants sought substantial contributions from the television stations, and indeed a complete indemnity from TVB, and she submits that it was inevitable that the two television stations would be necessary parties to the action.
Counsel for the State defendants submits that it was not reasonable for the plaintiff to join the two television stations. He submits that it was not a case of alternative liability; the television stations were unlikely to be held liable to the plaintiff if Mrs Roberts was held not liable. The plaintiff was not going to recover additional damages by suing the two television stations. Counsel for the State defendants submits that the contribution proceedings, which were only brought after judgment was given, were irrelevant to the question of whether a Bullock or Sanderson order should be made.
We do not agree with the plaintiff’s submission that by reference to some broad test of causation the unsuccessful defendants, and in particular the first defendant Dr Cornwall, have caused all that has followed including the plaintiff’s decision to institute and maintain the proceedings against the two television stations. The plaintiff made that decision herself. Nor do we agree that it follows from the contribution proceedings, including the claim for an indemnity, that it was inevitable that the television stations would have been joined. The question whether to join the television stations as third parties would have been a decision for the State defendants to make having regard to a number of relevant matters including a possible liability for costs if they were unsuccessful. We agree with the submission of the State defendants that it was most unlikely the plaintiff would succeed against the television stations but not against Mrs Roberts.
We see this case as being similar to Glenmont Investments Pty Ltd v O’Loughlin & Ors (supra) in that it was probably reasonable for the plaintiff to join the television stations, but there is nothing about the unsuccessful State defendants’ conduct before the action was commenced or afterwards which makes it reasonable as between the plaintiff and the unsuccessful State defendants that those defendants should meet the costs payable by the plaintiff to the television stations.
The plaintiff must pay the costs of trial of each of the television stations.
We turn now to consider whether a Bullock order should be made in relation to the costs of the Commonwealth defendants. The thrust of the plaintiff’s submission is that it was reasonable for her to join the Commonwealth defendants and there was a good deal of material (the plaintiff submits) that the review which was carried out was a joint review under the SAAP Act and Agreement. We were told that the SAAP agreement was only discovered by the Commonwealth of Australia after the evidence had concluded and we were referred to a number of exhibits which suggested that the Commonwealth of Australia was, as the plaintiff put it, “a player in the review”. The plaintiff submits that some of the representations to this effect were made by the State of South Australia or its officers.
It must be said that it would seem that at least in the early stages of the action the precise role of the Commonwealth of Australia might have appeared unclear.
In their written submissions the State defendants deal with the exhibits identified by the plaintiff and make the point, correctly in our view, that most of the exhibits establish the involvement of Commonwealth of Australia in the decision to withdraw funding from CBWS which is a different matter from involvement in the carrying out of the review.
The plaintiff has not suggested that there was ever any reasonable possibility that she might fail against the State defendants but succeed against the Commonwealth defendants, nor has she identified any conduct by the unsuccessful State defendants other than the material suggesting the Commonwealth of Australia was involved in the decision to withdraw funding (a matter we have already dealt with) which contributed to the decision to join the Commonwealth defendants. It was the plaintiff who decided to cast the net widely.
Again, we see the case as being similar to Glenmont Investments Pty Ltd v O’Loughlin & Ors (supra). It might have been reasonable for the plaintiff to join the Commonwealth defendants, but there is nothing about the unsuccessful State defendants’ conduct before the action was commenced or afterwards which makes it reasonable as between the plaintiff and the unsuccessful State defendants that those defendants should meet the costs payable by the plaintiff to the Commonwealth defendants.
Before leaving this issue we must deal with a submission by the plaintiff that she was justified in joining the Commonwealth defendants (and we think the same submission was made in the context of the costs of the television stations) because there was uncertainty about the capacity of Mrs Roberts to satisfy a large award of damages. The plaintiff referred to the passage in the reasons for judgment of von Doussa J in Fennell v S & E Services Holdings (supra) (at 19) cited by the Chief Justice in Glenmont Investments Pty Ltd v O’Loughlin & Ors (supra) and set out in para.[51] above. We do not think that in referring to the joinder of a successful defendant as reasonable and proper to ensure recovery, von Doussa J was formulating a principle in terms of that put forward by the plaintiff. We think that he was referring to a case where either one defendant or the other defendant is liable. There is no authority in favour of the proposition advanced by the plaintiff and we reject it. In our opinion an unsuccessful defendant’s lack of resources at the commencement of an action cannot be a reason why he should pay the successful defendant’s costs.
The plaintiff must pay the costs of trial of the Commonwealth defendants.
We turn now to consider the costs of the trial as between the plaintiff and the State defendants.
As we have said, the State defendants were represented by one firm of solicitors and one counsel and they submit that in those circumstances the appropriate order as between the plaintiff and the unsuccessful State defendants was one of the following:
1. An order that the plaintiff be paid a certain percentage of her costs by the unsuccessful defendants and an order that she pay a certain percentage of the unsuccessful State defendants’ costs.
2. An order that the unsuccessful State defendants pay the plaintiff a certain percentage of her costs with the percentage to be fixed so as to reflect the fact that the plaintiff should be liable for a percentage of the unsuccessful State defendants’ costs.
The State defendants submit that the second alternative is the preferable approach and they submit that a figure of 50 per cent is appropriate. They submit that this figure is generous to the plaintiff. The State defendants submit that this is the position as between the plaintiff and the unsuccessful State defendants. They submit that as between the plaintiff and the successful State defendants the former should pay the latter’s costs.
We think that the appropriate course is to adopt the second alternative but to apply that as between the plaintiff and the State defendants as a group, that is, as including the successful and unsuccessful State defendants.
We have had regard to the tables and charts annexed to the submissions of the State defendants and the submissions of the parties. We think that it is appropriate to put ourselves in the position of a trial Judge and consider the appropriate order for costs having regard to the result which flows from our judgment on appeal. We note that the trial Judge in this case made an allowance against the plaintiff in his orders for costs for the failed conspiracy claim but he made no allowance for the failed claim in negligence or for the fact that the plaintiff did not recover all the damages she was seeking. We are not inclined to depart from that approach although other considerations are relevant as a result of the decision on appeal. On the one hand, it should now be assumed that at trial the plaintiff succeeded in obtaining a substantial award of damages from Dr Cornwall and Mrs Roberts. On the other hand, it should now be assumed that at trial she failed to establish that the members of the Review Committee and Ms Anderson were liable in defamation for the publication of the report by the Committee to Dr Cornwall. That matter must be reflected in the order for the costs of the trial and must mean the plaintiff is entitled to a lesser percentage of her costs than that fixed by the trial Judge. We think it is appropriate to fix one percentage to apply to all of the plaintiff’s costs. In other words, we would not “stagger” the order for costs as the Judge did.
As far as the State defendants are concerned, the plaintiff succeeded against two defendants and obtained a substantial award of damages against them. She failed against a number of other State defendants but it seems to us that, generally speaking, a good deal of the evidence relevant to those defendants was also relevant to the claims against the unsuccessful State defendants and would have been called in relation to those defendants. It is not possible to be precise, but we think the appropriate order is that the unsuccessful State defendants pay 75 per cent of the plaintiff’s costs of trial and that there be no order as to the costs of trial as between the plaintiff and the successful State defendants. The reduction of the plaintiff’s costs of 25 per cent reflects the failed conspiracy claim and the failure of the plaintiff’s claims against the successful State defendants.
The costs of the appeal
The Commonwealth defendants and the two television stations have been successful on appeal and they are entitled to their costs of the appeal. The plaintiff should pay those costs and for reasons similar to those we have given in relation to the plaintiff’s application for a Bullock order in relation to the costs of the trial, there is no reason why the unsuccessful State defendants should pay those costs. Having regard to the time occupied on the appeal, we do not consider it appropriate to reduce the costs of the television stations by reason of the fact that the television stations were unsuccessful in relation to some issues which they argued.
The plaintiff must pay the costs of appeal of the two television stations and the Commonwealth defendants.
As far as the costs of the appeal as between the plaintiff and the State defendants are concerned the following matters are relevant:
1The unsuccessful State defendants have had the damages awarded against them reduced. Mrs Roberts has had the finding that she was guilty of defamation in publishing the report of the Review Committee to Dr Cornwall set aside.
2The successful State defendants have been successful in having the orders made against them set aside.
3The plaintiff’s cross appeal and notice of alternative contentions have failed.
4The plaintiff has been successful in holding a substantial award of damages against two State defendants and in each case, particularly the case of the first defendant, Dr Cornwall, the arguments rejected on appeal were substantial.
5The plaintiff has been successful in resisting certain arguments (eg., justification) put by the successful State defendants on the appeal.
It is necessary to wield something of a broad-axe and we think that there should be no order as to the costs of the appeal as between the plaintiff and the State defendants.
Conclusions in relation to costs
In our opinion, in relation to the trial:
1The plaintiff should pay the costs of the Commonwealth defendants and the two television stations. The costs of the ABC for attendance at the trial should be calculated on the basis that its attendances at trial did not exceed those of TVB.
2The unsuccessful State defendants should pay 75 per cent of the plaintiff’s costs and there should be no order as to costs between the plaintiff and the successful State defendants.
In our opinion, in relation to the appeal and cross appeal:
3The plaintiff should pay the costs of the Commonwealth defendants and the two television stations.
4There should be no order as to costs as between the plaintiff and the State defendants.
These conclusions are also reflected in the short form of orders attached to these reasons.
ORDERS
1That the appeals of the first, second, third, fourth, fifth, seventh, eighth, ninth, tenth, twelfth and thirteenth defendants be allowed.
2That the cross-appeal of the plaintiff be dismissed.
3That the judgments dated 12 July 2002, 18 February 2003 and 28 February 2003 be set aside.
4That the following judgment be entered instead of the judgments referred to in para.3:
(1)That the plaintiff recover against the first and second defendants the sum of $280,425.10.
(2)That the plaintiff recover against the first and second defendants the sum of $224,348.66 interest on the amount of $280,425.10 referred to in para.(1).
(3)That the plaintiff recover against the first defendant the further sum of $25,000.
(4)That the plaintiff’s action against the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth defendants be dismissed.
(5)That the first and second defendants pay to the plaintiff 75% of the plaintiff’s costs of action.
(6)That the plaintiff’s costs of action shall include the reasonable out of pocket expenses of travel and accommodation for the purpose of conducting the action.
(7)That there be no order as to the costs of the third, fourth, sixth, eighth, ninth and tenth defendants.
(8)That, subject to para.(9) the plaintiff pay to the fifth, seventh, eleventh, twelfth and thirteenth defendants their costs of action provided that the costs payable to the fifth defendant of and incidental to its representation at the trial shall be in respect of no greater attendance than that of the thirteenth defendant at the trial.
(9)That the first and second defendants pay to the fifth, seventh, twelfth and thirteenth defendants their costs of the post-judgment contribution proceedings between the defendants.
5That the first, second, third, fourth, eighth, ninth and tenth defendants (“the State defendants”) recover from the plaintiff the sum of $56,115.94 overpaid to the plaintiff on account of the judgment and interest.
6That the State defendants recover from the plaintiff the sum of $9,124.61 interest on the sum of $56,115.94 referred to in para.5.
7That the fifth defendant recover from the State defendants the sum of $87,278 paid to the State defendants on account of the judgment and interest.
8That the fifth defendant recover from the State defendants the sum of $10,963.55 interest on the sum of $87,278 referred to in para.7.
9That the seventh and twelfth defendants recover from the State defendants the sum of $28,730.69 paid to the State defendants on account of the judgment and interest.
10That the seventh and twelfth defendants recover from the State defendants the sum of $3,632.66 interest on the sum of $28,730.69 referred to in para.9.
11That the thirteenth defendant recover from the State defendants the sum of $87,278.42 paid to the State defendants on account of the judgment and interest.
12That the thirteenth defendant recover from the State defendants the sum of $11,035.34 interest on the sum of $87,278.42 referred to in para.11.
13 That the plaintiff pay to the fifth, seventh, eleventh, twelfth and thirteenth defendants their costs of the appeal.
14That as between the plaintiff and the first, second, third, fourth, sixth, eighth, ninth and tenth defendants there be no order as to the costs of the appeal.

Appellant	Date Paid	Amount
Fifth Defendant (the ABC)	17 March 2003	$87,278.00
The 7^th and 12^th Defendants (Ms King and the Commonwealth)	12 March 2003	$28,730.69
13^th Defendant (TVB)	12 March 2003	$87,278.42