De Martin & Gasparini Pty Ltd v Bartlett (No 2)
[2025] NSWCA 95
•08 May 2025
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: De Martin & Gasparini Pty Ltd v Bartlett (No 2) [2025] NSWCA 95 Hearing dates: On the papers Decision date: 08 May 2025 Before: Leeming JA at [1];
McHugh JA at [1];
Price AJA at [1]Decision: 1. Judgment for the First Respondent against the Appellant in the sum of $1,503,624.20.
2. Judgment for the First Respondent against the Second Respondent in the sum of $1,038,241.80.
3. On the Cross-Claim by the Appellant against the Second Respondent, Judgment for the Appellant against the Second Respondent with the Second Respondent to contribute 10% of the amount the Appellant is liable to pay the First Respondent.
4. On the Cross-Claim by the Second Respondent against the Appellant, Judgment for the Second Respondent against the Appellant with the Appellant to contribute 90% of the amount the Second Respondent is liable to pay the First Respondent.
5. Set aside order 1(c) made by Elkaim AJ on 11 October 2024.
6. Appellant to pay First Respondent’s costs of the proceedings before Elkaim AJ on an ordinary basis up to 11 October 2024.
7. No order as to the parties’ costs of the appeal, with the intention that each party bears his or its costs of the appeal.
Catchwords: COSTS – appellant enjoys partial success on appeal – common ground usual rule as to costs displaced – how costs order should reflect partial success
Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Manhattan Homes Pty Ltd v Burnett [2025] NSWCA 32
Category: Costs Parties: De Martin & Gasparini Pty Ltd (Appellant)
Dustin Bartlett (First Respondent)
Workers Compensation Nominal Insurer (Second Respondent)Representation: Counsel:
Solicitors:
J Sexton SC and C O’Neill (Appellant)
L King SC and T F McKenzie (First Respondent)
I Todd (Second Respondent)
Makinson d’Apice Lawyers (Appellant)
Taylor & Scott Lawyers (First Respondent)
Turks Legal (Second Respondent)
File Number(s): 2024/381805 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Common Law
- Citation:
[2024] NSWSC 1172
- Date of Decision:
- 17 September 2024
- Before:
- Elkaim AJ
- File Number(s):
- 2021/309495
JUDGMENT
-
THE COURT: By judgment delivered on 2 April 2025, this Court allowed an appeal brought by De Martin & Gasparini Pty Ltd (“DMG”) from a judgment in an amount exceeding $2,500,000 entered against it in favour of Mr Dustin Bartlett, following an injury at a building site in the Sydney CBD on 26 April 2018: De Martin & Gasparini Pty Ltd v Bartlett [2025] NSWCA 56. DMG was only partly successful. DMG’s challenge to the finding of negligence failed, but DMG succeeded in relation to its challenges to the finding that there was no contributory negligence, and to aspects of the assessment of damages. The result was a reduction in its liability of slightly more than $1 million, from just over $2.5 million to just over $1.5 million.
-
The Court made orders directing the parties to exchange submissions as to the form of orders and costs. In accordance with that regime, the parties have supplied submissions (filed on 22, 23 and 24 April 2025) which resolve all aspects save for one. The judgment amounts to be entered on Mr Bartlett’s claims against DMG and the Workers Compensation Nominal Insurer and the cross-claims between those two defendants are now agreed, as is the re-exercise of the discretion as to costs of the trial (the latter is different from the orders made by the primary judge because the smaller judgment sum has the result that a Calderbank offer was not bettered). Orders 1-6 made today are in a form to which the parties have agreed.
-
The outstanding issue is the parties’ costs of the appeal. DMG submits that it succeeded on two of the three issues raised on appeal. It characterises the three “broad arguments” as negligence (grounds 1-5), contributory negligence (grounds 6-8) and damages (grounds 9-10), and emphasises that its success amounted to a reduction in liability of more than $1,000,000, as well as the overturning of a special costs order. It acknowledges that it would be wrong to apply the usual rule that costs follow the event, because the issue of negligence was “the issue that occupied most of the time spent by the parties and the Court”. Noting that it was always going to be necessary to examine the role of each worker and where responsibility lay, and that the appeal was always going to take the better part of a day, it proposes that the respondents pay 50% of its costs of the appeal.
-
Mr Bartlett’s submissions focus on the hearing time, relied on as a proxy for the preparation time. He contends this is chiefly relevant to the exercise of the discretion. He relies in particular on the approach to costs in Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373, Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 esp at [38] and Manhattan Homes Pty Ltd v Burnett [2025] NSWCA 32, although acknowledges that each case turns on its own facts. The submissions rely on notes taken by Mr Bartlett’s solicitor which suggest that submissions on liability and vicarious liability occupied about 3 hours of an overall 3½ hour hearing time. The result is that while DMG succeeded, it did so on issues which occupied much less time than the time taken up by liability. On that basis, he contends that an appropriate order is one that gives Mr Bartlett “the bulk of his costs in respect of the hearing time, namely, 70-75%, as an appropriate reflection of the comparison between the time involved in the success [he] enjoyed compared with the First Respondent’s success”.
-
The Workers Compensation Nominal Insurer submits that it and DMG should bear their own costs, and makes no submission as to the costs of Mr Bartlett.
-
The principles are not in dispute, although as may be seen in the divergent approaches taken by all three parties, their application is contentious. In Bostik Australia Pty Ltd v Liddiard (No 2) at [38] the following principles were identified by this Court (omitting citation to authority):
“Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.”
“In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument. … A similar approach is adopted on appeal.”
“If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue.”
“Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed.”
“A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter.”
“Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation.”
-
The question is what is the appropriate exercise of discretion to reflect the parties’ partial success on appeal. A number of matters inform the discretion. They include the two matters which are prominent in the submissions of DMG and Mr Bartlett, namely, the “bottom line” or the amount to which particular issues affected the defendants’ liability to the plaintiff, and the extent to which issues occupied court time, which is ordinarily a reasonable proxy for costs incurred. The transcript establishes that of the 21 pages occupying Mr Sexton’s submissions in chief, the last four were directed to economic loss, and a small component of the earlier was addressed to contributory negligence. We agree with Mr Bartlett that the large majority of the parties’ submissions were directed to grounds 1-5, as to which DMG was unsuccessful.
-
In the present case, DMG advanced a substantial appeal, which included fairly straightforward challenges to aspects of the primary judge’s reasons which were difficult to defend, and a much more ambitious challenge to the finding that DMG was liable, which dominated the hearing time as well as the parties’ submissions. If DMG had confined its challenge to contributory negligence and damages, it would have enjoyed a costs order in its favour. If Mr Bartlett had conceded all or parts of the challenged aspects of the assessment of damages, he would have been entitled, or at least well placed, to enjoy a costs order in his favour. The foregoing is not to criticise the forensic decisions of any party, but merely to emphasise that there were steps which both active parties could take to improve their position as to costs.
-
It is necessary to bear in mind that mathematical precision in this area is illusory and the exercise of the costs discretion will often depend upon matters of impression and evaluation.
-
Focussing on the position as between the active parties to the appeal, DMG enjoyed substantial success on relatively discrete aspects of its appeal, but Mr Bartlett likewise maintained a judgment in the order of $1.5 million in his favour, the challenge to which occupied the majority of time and consumed the majority of the parties’ costs. The considerations bearing on the discretion as to costs approximately balance out. The appropriate order as to costs is that there be no order as to the costs, with the intention that each of DMG and Mr Bartlett bear its and his own costs of the appeal.
-
The Workers Compensation Nominal Insurer, which played a subsidiary role in the appeal, does not seek its costs. That stance reflects the view we would have reached in any event had its position been otherwise.
-
The Court’s orders are as follows, noting that orders 1-6 are by consent:
1. Judgment for the First Respondent against the Appellant in the sum of $1,503,624.20.
2. Judgment for the First Respondent against the Second Respondent in the sum of $1,038,241.80.
3. On the Cross-Claim by the Appellant against the Second Respondent, Judgment for the Appellant against the Second Respondent with the Second Respondent to contribute 10% of the amount the Appellant is liable to pay the First Respondent.
4. On the Cross-Claim by the Second Respondent against the Appellant, Judgment for the Second Respondent against the Appellant with the Appellant to contribute 90% of the amount the Second Respondent is liable to pay the First Respondent.
5. Set aside order 1(c) made by Elkaim AJ on 11 October 2024.
6. Appellant to pay First Respondent’s costs of the proceedings before Elkaim AJ on an ordinary basis up to 11 October 2024.
7. No order as to the parties’ costs of the appeal, with the intention that each party bears his or its costs of the appeal.
**********
Decision last updated: 08 May 2025
0
5
0