General Jones Pty Ltd v Wildridge & Sinclair Pty Ltd and Burnie Port Authority ( No 2)

[1989] TASSC 74

Serial No 74/1989
List "A"

CITATION:General Jones Pty Ltd v Wildridge & Sinclair Pty Ltd and Burnie Port Authority ( No 2) [1989] TASSC 74; A74/1989

PARTIES:  GENERAL JONES PTY LTD
  v
  WILDRIDGE & SINCLAIR PTY LTD

BURNIE PORT AUTHORITY

OLYMPIC GENERAL PRODUCTS PTY LTD
  v
  BURNIE PORT AUTHORITY

WILDRIDGE & SINCLAIR PTY LTD

BURNIE PORT AUTHORITY
  v
  WILDRIDGE & SINCLAIR PTY LTD
  OLYMPIC GENERAL PRODUCTS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  694/1981

2913/1981
  2860A/1982

DELIVERED ON:  19 December 1989
JUDGMENT OF:  Neasey J

Judgment Number:  A74/1989
Number of paragraphs:  12

Serial No 74/1989
List "A"
File Nos 694/1981

2913/1981
2860A/1982

GENERAL JONES PTY LTD v WILDRIDGE & SINCLAIR PTY LTD
and BURNIE PORT AUTHORITY
OLYMPIC GENERAL PRODUCTS PTY LTD v BURNIE PORT AUTHORITY
and WILDRIDGE & SINCLAIR PTY LTD
BURNIE PORT AUTHORITY v WILDRIDGE & SINCLAIR PTY LTD
and OLYMPIC GENERAL PRODUCTS PTY LTD

REASONS FOR JUDGMENT  NEASEY

19 December 1989

1. I am asked to make certain orders for costs in these three actions, which were heard together earlier this year – see my reasons for judgment Serial No 28/1988. Some orders have already been made, and some others now sought are not contested. I shall deal with each action in turn.

Action No 694 of 1981.

1. The plaintiff, General Jones Pty Ltd ("GJ") had been storing a quantity of frozen food in the second defendant's (Burnie Port Authority, "BPA") cool store at Burnie. The cool store, and the food, were largely destroyed by the fire which occurred in the roof space of the partly–constructed store on 20 December 1979. Shortly before the fire started in a pile of cartons of insulation material, workmen employed by the first defendant, Wildridge & Sinclair Pty Ltd ("WS"), were carrying out a welding operation in the roof space. The plaintiff GJ alleged that the fire was caused by negligence in the welding operation carried out by WS and that BPA was also negligent and in breach of contract in certain respects not directly connected with the welding operation. Both defendants, WS and BPA, joined Olympic General Products Pty Ltd ("OGP") as a third party, alleging that it was negligent in certain ways with regard to the supply of the insulating material. Each defendant claimed indemnity and/or contribution against the other.

1. The plaintiff succeeded in full against both defendants. The second defendant BPA succeeded in full against the first defendant WS on the mutual claims for indemnity and/or contribution. The third party, OGP, succeeded fully on the third party proceedings as between it and each defendant.

1. As stated earlier, certain orders have already been made and judgments entered. The contested orders now applied for are as follows. The second defendant, BPA, applies for a so–called "Sanderson" or like order against the first defendant – see Sanderson v Blythe Theatre Co [1903] 2 KB 533; namely for an order that if the third party recovers any costs from it pursuant to the third party’s judgment against it, BPA should be enabled to recover those costs against the first defendant, WS. A "Sanderson Order" is merely a more flexible version of a "Bullock Order", in that in Sanderson's case it was held that in appropriate circumstances the court has jurisdiction either to order an unsuccessful defendant to pay the costs of a successful defendant or to order the plaintiff to pay the costs of the successful defendant and then to add those costs to the costs which the unsuccessful defendant is ordered to pay to the plaintiff – see Vucadinovic v Lombardi [1967] VR 81 at p.85. The principle behind such orders is explained most clearly by Gibbs CJ in Gould v Vaggelas (1984) 58 ALJR 521, at pp565–566.

1. I see no reason to make such an order. BPA will have its costs against WS. Its unsuccessful third party joinder of OGP was not occasioned in any relevant way by anything WS did. Each defendant tried to protect itself by joining OGP, claiming that OGP was responsible or partly responsible for the fire, and each defendant failed on that allegation. Principal blame for causing the fire was visited upon WS, it is true, but the joinder of OGP by BPA was quite separate from and independent from that blameworthiness.

1. The next contested orders in this action are that OGP seeks joint orders for costs against each defendant in respect of the unsuccessful third party proceedings brought against it by each of those two defendants. That is to say, it seeks to have a double cover, against both defendants, against its costs of the third party proceedings brought by each; so that if, for example, only one defendant is able to pay, it can recover its costs of both sets of third party proceedings against that one. There is no good reason for making this order either, in my opinion. Why should either defendant be responsible for the unsuccessful third party proceedings brought by the other? OGP will have its order for costs against each separately.

1. Finally, the defendant BPA seeks a Bullock (or Sanderson) Order against the other defendant WS in respect of the costs it has been ordered, along with WS, to pay to the plaintiff for the action, in which the plaintiff succeeded against both defendants. WS opposes the order. I think it is not right to make the order, for the following reasons. WS was held responsible for starting the fire by conducting its welding operations negligently. BPA was held liable on the basis that as an occupier of land it was liable for the escape of fire from its premises to those of another (in this case, from part of its premises to another part being occupied under licence by a third party), caused by the negligence of its independent contractor, WS – see H & N Emanuel Ltd v Greater London Council & Anor [1971] 2 All ER 835. WS was the independent contractor of BPA, and was the primary cause of the fire by its negligence, and so its actions have been the actuating cause of BPA’s liability. However, the causes of action were, in a legal sense quite separate and independent. GJ, sensibly no doubt joined BPA as second defendant, in order to have an additional string to its bow. BPA, which strenuously denied liability on legal grounds could have admitted liability and confined itself to its indemnity rights against WS. It was not entitled to fight GJ at the expense of WS. The further orders to be made in this action will therefore be as follows –

(e)That the first named defendant pay the second named defendant's costs of and incidental to the action including the costs of the trial of the issue of liability and any costs reserved up to and including the pronouncement and entry of these orders.

(f)That the first named defendant pay to the third party its taxed costs of and incidental to the third party proceedings initiated by the first named defendant against the third party including the costs of the trial of the issue of liability and any costs reserved up to and including the pronouncement and entry of these orders.

(g)That the second named defendant pay to the third party its taxed costs of and incidental to the third party proceedings initiated by the second named defendant against the third party including the costs of the trial of the issue of liability and any costs reserved up to and including the pronouncement and entry of these orders.

Action No 2913 of 1981.

1. In this case, OGP sued BP and WS as first and second defendants respectively. The plaintiff’s case against BPA was based on negligence and breach of contract by alleged failure to take adequate safety precautions or supervise adequately the welding operation of WS. The plaintiff's case against WS was based upon the allegations of negligence relating to the welding operation as set out earlier. There were cross claims for indemnity and/or contribution between the two defendants. The plaintiff OGP succeeded in full against WS. The defendant BPA won as against OGP and also against WS on the issues of contribution and indemnity. The plaintiff seeks a Bullock Order against WS in respect of the costs it must pay BPA, and this is contested. I see no sufficient reason to make such an order. The two actions were quite separate and distinct. OGP took its own risk in suing the Port Authority. The negligence of WS did not, nor did any other action by WS, relevantly, cause OGP to add the additional defendant. This is the only contested matter. The orders will be as follows:–

(a)That the second named defendant pay the plaintiff’s taxed costs of and incidental to the issue ordered to be tried by Cosgrove J. on the 25 February 1985 and any costs reserved up to and including the pronouncing and entering of these orders.

(b)That the plaintiff pay the first named defendant's taxed costs of and incidental to the issue ordered to be tried by Cosgrove J. on the 25 February 1985 and any costs reserved up to and including the pronouncing and entering of these orders.

(c)That the second named defendant pay the first named defendant’s taxed costs of and incidental to the claim for contribution in respect of the issue ordered to be tried by Cosgrove J. on the 25 February 1985 and any costs reserved up to and including the pronouncement and entering of these orders.

Action No 2860A of 1982.

1. In this action, BPA sued WS as first defendant and OGP as second defendant. The allegations of negligence against WS were the same as in the other actions; and as against the second defendant, OGP, the allegations were of negligence in and concerning the supply of the insulation materials, failing to test them adequately for flammability, failing to give adequate warning of the same, and the like. The allegations against OGP were of a similar kind to those made by WS and BPA in Action No. 694. There was a counterclaim by the first defendant WS against the plaintiff BPA for the value of the work done by WS up to the time of the fire, and mutual notices of contribution between the defendants.

1. BPA applies for a Bullock Order against WS in respect of costs recovered by OGP against BPA. The application is opposed. I see no reason to make a Bullock Order, again on the basis that the two causes of action were quite separate and distinct in concept.

1. The second defendant, OGP, applies for an order that the plaintiff BPA, against which it succeeded, should not only pay its taxed costs of and incidental to the issues of liability in the action, but should also pay costs of and incidental to the contribution proceedings between OGP and the first defendant, WS. Again I find no reason to make such an order. OGP will have its order for costs against WS, and there is no reason why BPA should be liable to pay these costs. The causes of action as between BPA and WS and BPA and OGP were quite separate and distinct, and nothing relevantly done by BPA actuated or partly so the contribution proceedings between the two defendants.

1. The orders in this action will be:–

(a)That there be judgment for the plaintiff against the first named defendant for damages to be assessed.

(b)That the first named defendant pay the plaintiff's taxed costs of and incidental to the issues of liability in this action including any costs reserved up to and including the pronouncement and entry of these orders.

(c)That there be judgment for the second named defendant against the plaintiff.

(d)That there be judgment for the second named defendant against the first named defendant on the contribution proceedings between the first and second named defendants.

(e)That the first named defendant pay the second named defendant’s taxed costs of and incidental to claims for contribution in this action including any costs reserved up to and including the pronouncement and entry of these orders.