Hanlon v Hanlon (No 2)
[2006] TASSC 3
•9 February 2006
[2006] TASSC 3
CITATION: Hanlon v Hanlon (No 2) [2006] TASSC 3
PARTIES: HANLON, Colleen Margaret on her own behalf
and as Litigation Guardian of
HANLON, Joel Raymond
HANLON, Adam James
v
HANLON, Raymond Eric
BIRD, Kevin
BIRD, Heather
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1075/2001
DELIVERED ON: 9 February 2006
DELIVERED AT: Hobart
HEARING DATE: 3 February 2006
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Procedure – Costs – General rule – Costs follow the event – Co-defendants – Circumstances in which the unsuccessful defendant will be ordered to pay the costs of the successful defendant – Relevance of conduct of the unsuccessful defendant.
Gould v Vaggelas (1984) 157 CLR 215, applied.
Altamura v Victorian Railways Commissioners [1974] VR 33, followed.
Aust Dig Procedure [558]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips and S Taglieri
First Defendant: D J Gunson SC
Second and Third Defendants: C A Cunningham
Solicitors:
Plaintiff: Phillips Taglieri
First Defendant: Gunson Williams
Second and Third Defendants Simmons Wolfhagen
Judgment Number: [2006] TASSC 3
Number of paragraphs: 21
Serial No 3/2006
File No 1075/2001
COLLEEN MARGARET HANLON on her own behalf and as
Litigation Guardian of JOEL RAYMOND HANLON
and ADAM JAMES HANLON
v RAYMOND HANLON, KEVIN BIRD and HEATHER BIRD
REASONS FOR JUDGMENT UNDERWOOD CJ
9 February 2006
These reasons are to be read as an addendum to the reasons for judgment in this action, published on 19 January 2006; [2006] TASSC 1.
Mr Cunningham, counsel for the second and third defendants, seeks an order against the plaintiff that she pay the second and third defendants' taxed costs of the action.
Mr Phillips, senior counsel for the plaintiff, submits that the appropriate costs orders are:
· the first defendant pay the plaintiff's cost of the action taxed on an indemnity or solicitor/client basis; and
· the first defendant pay the second and third defendants' taxed costs of the action.
Mr Gunson SC, counsel for the first defendant, accepts that his client should pay the plaintiff's costs, but disputes that they should be taxed on a solicitor/client basis. He also disputes that the first defendant should be ordered to pay the costs of the second and third defendants.
A Sanderson order
As noted in the reasons for judgment, the only surviving eye witness to the relevant events was the first defendant. At the time the proceedings were commenced, there was substantial material that tended to show that the first defendant did not breach the duty of care he owed to the deceased and that the fatal accident was caused by the faulty design and/or manufacture of the boat. This material included coronial affidavits sworn by Inspector Williams and Constable Bidgood. The coronial findings included a reference to the chine of the boat causing the violent heel to port. There was no coronial criticism of the first defendant, who told the coroner that he was travelling at about 35 kilometres per hour when the accident happened.
In the circumstances, it was prudent for the plaintiff to bring proceedings against all three defendants. Mr Gunson did not submit to the contrary.
In the course of preparing the case for trial, the plaintiff administered interrogatories to the first defendant. They were answered on 4 July 2002. The first defendant deposed that he had tested the boat when it was fitted with the 70 horsepower motor to ascertain its maximum speed, "on several occasions on Arthurs Lake". He also deposed that prior to the accident he had operated the boat when it was fitted with the 70 horsepower motor with the throttle at 90 per cent of full forward, that the speed was then 40 kilometres per hour and that this had no affect on the stability of the boat. He swore that he had done this on various fishing trips on Arthurs Lake, but was unable to recall the dates of these trips.
The whole thrust of the first defendant's case at trial was that the violent heel to port was totally unexpected because on several occasions prior to the accident, the first defendant had turned the boat hard to starboard when travelling at top speed and nothing untoward had occurred. However, the cross-examination of the first defendant revealed that this was not the case in that he had never before executed such a turn after the boat had been fitted with the 70 horsepower motor.
What the defendant knew prior to trial, but was not revealed until shortly before trial, was that, at his request, Mr Fisher conducted several tests on the boat and had modified the chine, the pod and the keel to ascertain the cause of the accident. Mr Fisher found that the boat's top speed with himself and an apprentice on board was approximately 74 kilometres per hour, nearly twice the speed deposed to by the first defendant in answer to his interrogatories. Mr Fisher's tests also showed that the boat was quite safe doing all sorts of manoeuvres until it exceeded about 64 kilometres per hour and then it "chine walked" when turned at speed. Mr Fisher's careful testing and modifications made the cause of the accident quite clear and tended to show that the first defendant's affidavit in answer to interrogatories that the boat's speed was 40 kilometres per hour with the throttle 90 per cent open was not correct. Mr Fisher's testing and modifications also demonstrated that the second and third defendants' design and/or construction of the boat did not amount to a breach of a duty of care.
However, the solicitors for the plaintiff were unaware of the existence of Mr Fisher until just one week before trial commenced. It appears that for some reason, Mr Fisher spoke to the solicitors for the second and third defendants. Those solicitors took a statement from Mr Fisher and gave it to Mr Phillips on 10 October 2005. Mr Phillips spoke to Mr Fisher on 11 October. Mr Fisher's statement did not disclose the dates he tested and made modifications to the boat. On 14 October 2005, Mr Phillips spoke to Mr Gunson and the latter discovered Mr Fisher's invoice for work he did on the first defendant's boat. The invoice showed that this work had been done before the first defendant answered his interrogatories. I interpolate here that it is common ground that Mr Gunson was unaware of the existence of the invoice and, I infer, of Mr Fisher's role in the relevant events, until spoken to by Mr Phillips. The trial commenced three days later. The defendants had exchanged notices of contribution.
It has long been established that where the facts are such that it was reasonable to join several defendants in an action, and reasonable for a plaintiff to be uncertain as to which of the defendants had been in breach of a duty of care, the costs of the successful defendant should be borne by the unsuccessful defendant. See Besterman v British Motor Cab Company Ltd [1914] 3 KB 181; Mulready v J H & W Bell Ltd [1953] 2 All ER 215.
The High Court turned its attention to the circumstances in which such an order should be made in Gould v Vaggelas (1984) 157 CLR 215. In that case, Gibbs CJ held that to be entitled to a so-called Bullock or Sanderson order, the successful party had to show that not only was it reasonable to join the successful defendant in the action, but also that the conduct of the unsuccessful defendant was such that it was fair that he should pay the costs of the successful defendant. Brennan J put the question in these terms at 260:
"A judicial discretion can be exercised to make a Bullock order against an unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiffs' claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought."
In Altamura v Victorian Railways Commissioners [1974] VR 33, Kaye J said, at 35:
"Whether the decision to join a party at the commencement of the action was justified may have to be assessed in the light of the plaintiff's, and his legal adviser's, knowledge at that time. On the other hand, the circumstances of the case may require that his decision should be adjudged by the conduct of the defendants after the joinder of the successful defendant and even up till the jury's verdict."
Having regard to the coronial material and findings, and having regard to the fact that the first defendant was the only surviving eye witness of the relevant events, it was reasonable for the plaintiff to join the second and third defendants in the action. I am satisfied that the pre-trial conduct of the first defendant, failing to make discovery which would have led to early awareness of Mr Fisher's evidence, incorrectly answering interrogatories, and generally suggesting that the only possible cause of the accident was some fault in the design and/or manufacture of the boat, makes it just that he should pay the costs of the successful defendants, at least until the commencement of trial.
However, by the time the trial commenced, the plaintiff knew that her case against the first defendant was much stronger, and her case against the other defendants much weaker, than had hitherto been thought to be the case. That this was so is reflected in the fact that at trial, the plaintiff adduced virtually no evidence against the second and third defendants and her senior counsel made no closing submissions that the second and third defendants were liable.
I was told that just before trial, Mr Cunningham asked Mr Gunson, and then Mr Phillips, if they would discontinue against his clients. Mr Gunson apparently said "no" and Mr Phillips said the same when he learnt of Mr Gunson's attitude.
As I say in my reasons for judgment, Mr Gunson conducted the first defendant's case upon the basis that some very unusual and unexpected event must have been the cause of the accident. Although the first defendant adduced some expert opinion evidence concerning the boat's design and manufacture, it did not really sheet home liability against the second and third defendants. I do not regard the fact that at trial the first defendant initially maintained that he was not travelling at a speed anywhere near as fast as he was in fact travelling, and that he had made similar high speed starboard turns previously. I do not regard that conduct as making it reasonable that he should bear the trial costs of the second and third defendants.
Although the plaintiff became aware of Mr Fisher's evidence late in the piece, she proceeded to trial against the second and third defendants in the light of knowledge that success against them was unlikely. I can understand that the plaintiff would be reluctant to let the second and third defendants out of the action at such a late stage, especially as there were notices of contribution between defendants. However, by the time trial commenced, any pre-trial conduct by the first defendant that made it fair that he should bear the costs of the successful defendants had ceased to have any effect.
Indemnity or solicitor/client costs
It is well established that costs are payable on a solicitor/client basis only in an unusual case. The authorities are set out in Law Society of Tasmania v Richardson (No 2) [2003] TASSC 71, pars11 – 13, and Burnie Port Corporation Pty Ltd v Bank of Western Australia Limited (No 3) (2003) 12 Tas R 325, pars20 – 21.
To support the claim that the plaintiff is entitled to her costs taxed on a solicitor/client basis, Mr Phillips relied, in substance, upon the matters he relied upon to support his submission that the first defendant should pay the costs of the successful defendants. Although the categories of circumstances that will justify ordering payment of costs on a solicitor/client basis are not closed, the decided cases show that the circumstances of this case do not justify the making of such an order. There was no fraud. There was no defence of proceedings for an ulterior motive. There was no wilful disregard of known facts, nor allegations that ought not to have been made. See Burnie Port Corporation Pty Ltd, par21. With respect to a costs order between the plaintiff and the first defendant, this was an ordinary case calling for the making of an ordinary costs order.
It is ordered that:
(a)the first defendant pay the plaintiff's costs of the action, taxed on a party and party basis;
(b)the first defendant pay the second and third defendants' costs of the action up to the commencement of trial and the costs of the application for an order for costs, taxed on a party and party basis;
(c)the plaintiff pay the second and third defendants' costs of the action after the commencement of trial up to the making of an application for an order for costs, taxed on a party and party basis.
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