Di Paolo v Salta Constructions Pty Ltd (No 3)

[2016] VSC 810

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 04005

MASSIMO DI PAOLO	Plaintiff
v
SALTA CONSTRUCTIONS PTY LTD	First Defendant
- and -
SAFE LABOUR HIRE PTY LTD	Second Defendant
- and -
GCS RAPID ACCESS PTY LTD	Third Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2016 and written submissions filed 12 December 2016
DATE OF JUDGMENT:	21 December 2016
CASE MAY BE CITED AS:	Di Paolo v Salta Constructions Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2016] VSC 810

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COSTS – Choice of law – Contribution claims – Second and third defendants’ summary judgment applications against first defendant’s contribution claims – Third defendant’s summary judgment application successful – Second defendant’s summary judgment application unsuccessful – Appropriate costs order

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance	No appearance
For the First Defendant	Mr R Kumar	Wisewould Mahony
For the Second Defendant	Mr J C Simpson	DLA Piper
For the Third Defendant	Mr N Y Rattray	Moray & Agnew

HIS HONOUR:

1. The second defendant (‘Safe Labour Hire’) and the third defendant (‘GCS’) each made an application for summary judgment in respect of contribution claims made under contribution notices against them by the first defendant (‘Salta’).

1. On 6 December 2016, I delivered reasons for judgment in which I decided that GCS’s summary judgment application against Salta’s contribution claim succeeded.[1] However, I dismissed Safe Labour Hire’s application for summary judgment in respect of the Salta’s contribution claim against it.

   [1]Di Paolo v Salta Constructions Pty Ltd (No 2) [2016] VSC 741.

1. The parties made some submissions concerning costs on 6 December 2016, and have since filed the form of orders that they seek and, in the case of Salta and Safe Labour Hire, made short written submissions in support of those orders.

Conclusion: GCS’s summary judgment application against Salta’s contribution notice

1. With one exception, GCS is entitled to the orders that it seeks against Salta, as they follow the event of the dismissal of the contribution notice and the grant of summary judgment. That exception is that Salta should only have to pay GCS ninety per cent of its costs of the hearing on 15 June 2016, because a part of that hearing dealt with the making of orders to dismiss the plaintiff’s claim against GCS.

Conclusion: Safe Labour Hire’s summary judgment application against Salta’s contribution notice

1. I dismissed Safe Labour Hire’s application for summary judgment against Salta’s contribution notice. I considered that the summary judgment application was premature. [2] Again, I consider that the costs of that application should follow that event and that Safe Labour Hire should pay Salta’s costs of the summary judgement application. There is no reason to reserve those costs for any later determination. Although, it is unknown whether Salta will be permitted to amend its contribution notice after its discovery application is determined, Safe Labour Hire’s application for summary judgment was unsuccessful. I do not consider that that outcome should be assessed as a partial success for Safe Labour Hire, or that any separate order should be made in respect of ‘common costs’. Salta is entitled to its costs on a standard basis of opposing Safe Labour Hire’s summary judgment application. Those costs may have been incurred in respect of both the amended summons and the further amended summons. The order will refer to both summons.

   [2]Ibid, [21]-[28] and [66]-[83].

1. I will also give directions for the future conduct of this proceeding.

Orders

1. The orders I make are:

PART A

1.        The third defendant’s application for summary judgment against the first defendant be granted and the first defendant’s notice of contribution filed 16 September 2013, against the third defendant, be dismissed.

2.        The first defendant pay the third defendant’s costs, on a standard basis, of and incidental to the first defendant’s contribution proceeding against it filed 13 September 2013, including the third defendant’s further amended summons dated 15 June 2016, PROVIDED THAT the third defendant is only entitled to receive ninety per cent of its costs of the hearing of 15 June 2016.

PART B

1.        The second defendant’s application for summary judgment in respect of the first defendant’s claim for contribution against it, brought by paragraph 2A of its amended summons filed 8 March 2016 and further amended summons filed 15 June 2016 (‘the second defendant’s application’), be dismissed.

2.        The second defendant pay the first defendant’s costs of and incidental to the second defendant’s application referred to in paragraph 3, such costs to be taxed on a standard basis in default of agreement.

PART C

1.        The first defendant’s application for discovery by the second defendant, brought by summons filed 14 December 2015 (‘the discovery summons’), be listed for hearing on 31 January 2017 at 2:15 pm before Associate Justice Ierodiaconou.

2.        The first and second defendants file and serve and further affidavits with respect to the discovery summons by 4 pm on 23 January 2017.

1. The proceeding otherwise be listed for directions on 10 February 2017 together with the related proceeding S CI 2014 00027 (Victorian WorkCover Authority v Safe Labour Hire Pty Ltd & Anor).

1. Liberty to apply be reserved.

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