Dominello v Dominello (No 2) - [2009] NSWCA 257

NEW SOUTH WALES COURT OF APPEAL

CITATION:
DOMINELLO v DOMINELLO & ANOR; DOMINELLO v THE NOMINAL DEFENDANT & ANOR [NO 2] [2009] NSWCA 257

FILE NUMBER(S):
CA 40045/2008; 40048/2008

HEARING DATE(S):
On the papers.

JUDGMENT DATE:
26 August 2009

PARTIES:
Kathleen Mary Dominello (Appellant 40045/08 )
The Nominal Defendant (First Respondent 40045/08)
Kathleen Mary Dominello (First Respondent 40048/08)
The Nominal Defendant (Second Respondent 40048/08)

JUDGMENT OF:
Beazley JA Macfarlan JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2987/2003

LOWER COURT JUDICIAL OFFICER:
Balla DCJ

LOWER COURT DATE OF DECISION:
13 December 2007

COUNSEL:
R Royle - Kathleen Mary Dominello
D Russell SC - The Nominal Defendant

SOLICITORS:
Stacks Goudkamp - Kathleen Mary Dominello
Ferguson Bolton - The Nominal Defendant

CATCHWORDS:
COSTS - Sanderson order - cases against defendants not alternative or interdependent - order not made.

LEGISLATION CITED:

CATEGORY:
Consequential orders

CASES CITED:
Besterman v British Motor Cab Co. Ltd [1914]
3 KB 181 CA
Bullock v The London General Omnibus Company & Ors [1907] 1 KB 269 CA
Goldsworthy v Brickell [1987] Ch 378 CA
Gould v Vaggelas [1985] HCA 85, 157 CLR 215
Johnson v Nominal Defendants [2003] NSWCA 153
Johnsons Tyne Foundry Pty Ltd v Maffra
Corporation [1948] HCA 46, 77 CLR 544
Norwest Refrigeration Services Pty Ltd v Bain
Dawes (WA) Pty Ltd [1984] HCA 59, 157 CLR 149
RTA v Dederer [2007] HCA 42, 234 CLR 330
RTA & Ors v Palmer (No. 2) [2005] NSWCA 140
Sanderson v Blyth Theatre Company [1903] 2 KB 533 CA

TEXTS CITED:

DECISION:
(1) Vacate the order made on 8 May 2009 that the Nominal Defendant pay the plaintiff’s costs of the action.
(2) In lieu thereof substitute orders that the Nominal Defendant pay the plaintiff’s costs of the action on the ordinary basis until and including 22 July 2007 and thereafter on the indemnity basis.
(3) Notice of Motion of 23 May 2009 otherwise dismissed.
(4) No order as to costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40048/08
BEAZLEY JA
MACFARLAN JA
HANDLEY AJA
Wednesday 26 August 2009

JOSEPH DOMINELLO v KATHLEEN MARY DOMINELLO & ANOR;
KATHLEEN DOMINELLO v THE NOMINAL DEFENDANT & ANOR [NO 2]

CATCHWORDS
COSTS - Sanderson order - cases against defendants not alternative or interdependent - order not made.
HEADNOTE
The plaintiff was injured when her husband lost control of their vehicle on a patch of diesel fuel that had been spilled on a bend in the Pacific Highway south of Grafton. Her case against the driver was based on excessive speed. Her case against the Nominal Defendant was based on the inferred negligence of the driver of an unidentified heavy vehicle in failing to replace the cap on the diesel tank which allowed the fuel to spill out on the bend. The liabilities of the defendants were not alternative or interdependent. The fact that one was or was not liable threw no light on the liability of…

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] NSWCA 257
Decision Date: 26 August 2009

CaseChat Overview and Summary

The case of *Dominello v Dominello (No 2)* concerned an appeal regarding costs orders made in the Supreme Court of New South Wales. The dispute involved a plaintiff and a Nominal Defendant, with the appeal focusing on the basis upon which costs should be awarded.

The primary legal issue before the Court of Appeal was whether a *Sanderson* order, which typically applies when a plaintiff pursues alternative or interdependent claims against multiple defendants and ultimately succeeds against only one, was appropriate in this instance. The court was required to determine if the claims against the Nominal Defendant were of such a nature as to warrant a departure from the usual costs order.

The Court of Appeal reasoned that the claims against the Nominal Defendant were neither alternative nor interdependent. Consequently, the court found that the criteria for making a *Sanderson* order were not met. The court therefore vacated the original order that the Nominal Defendant pay the plaintiff's costs of the action on the ordinary basis. In its place, the court substituted an order that the Nominal Defendant pay the plaintiff's costs on the ordinary basis up to and including 22 July 2007, and thereafter on the indemnity basis. The plaintiff's notice of motion was otherwise dismissed, with no order as to costs for that motion.

Orders

Orders of the court

(1) Vacate the order made on 8 May 2009 that the Nominal Defendant pay the plaintiff's costs of the action. (2) In lieu thereof substitute orders that the Nominal Defendant pay the plaintiff's costs of the action on the ordinary basis until and including 22 July 2007 and thereafter on the indemnity basis. (3) Notice of Motion of 23 May 2009 otherwise dismissed. (4) No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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