Hendrika Misiani (As Executor of the Will of Alfredo Antonio Misiani (Dec)) v Welshpool Engineering Pty Ltd 008 669 421 (in Liq)
[2003] WASC 263 (S2)
•19 DECEMBER 2003
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC)) -v- WELSHPOOL ENGINEERING PTY LTD 008 669 421 (IN LIQ) & ANOR [2003] WASC 263 (S2) |
| CORAM | : BARKER J | ||
| HEARD |
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| DELIVERED | : 19 DECEMBER 2003 | ||
| SUPPLEMENTARY | |||
| DECISION | : 31 MARCH 2004 | ||
| FILE NO/S |
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| BETWEEN |
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AND
WELSHPOOL ENGINEERING PTY LTD 008 669
421 (IN LIQ)First Defendant
AMACA PTY LTD 000 035 512 (Formerly JAMES
HARDIE & COY PTY LTD)Second Defendant
Catchwords:
Contribution proceedings - Joint tortfeasors - Appropriate order in respect of plaintiff's costs
[2003] WASC 263 (S2)
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
(WA), s 7
Result:
Costs orders made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr T J Hammond |
| First Defendant | : | Mr M A McAuliffe |
| Second Defendant | : | Ms J M Kubacz |
Solicitors:
| Plaintiff | : | Slater & Gordon |
| First Defendant | : | Dibbs Barker Gosling (Formerly McAuliffe |
Williams & Partners)
| Second Defendant | : | Minter Ellison |
Case(s) referred to in judgment(s):
James Hardie & Coy Pty Ltd v Wyong Shire Council [2000] NSWCA 107;
(2000) 48 NSWLR 679
Case(s) also cited:
David Syme & Co Ltd v Swinburne (1909) 10 CLR 43
Gould v Vaggelas (1985) 157 CLR 215
Holtby v Hodgson (1889) 24 QBD 103
Hysler Australia Pty Ltd v Anti-Dumping Authority (No 2) (1992) 41 FCR 259
Mickelberg v Aerodata Holdings Ltd [2004] WADC 28
Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263(S)
[2003] WASC 263 (S2)
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Harrison's Share Under A Settlement; Harrison v Harrison [1955] Ch 160
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
[2003] WASC 263 (S2)
BARKER J
BARKER J: These reasons are supplementary to the reasons concerning costs in the contribution proceedings that I published on 24 March 2004.
In my reasons published on 24 March 2004, I indicated that I was prepared in the contribution proceedings to make orders as follows:
(a) The first defendant pay the second defendant's costs and disbursements as incurred after 17 May 2002 as taxed to the extent of two-thirds if not agreed; (b) there be a certificate for two counsel in the action; (c) there be a certificate for costs of transcript.
I then sought submissions from counsel as to the appropriate orders to be made.
3 Counsel for the second defendant submitted that it was appropriate
for orders to be made in those terms, but also submitted that the Court should make an order concerning the contributions that each of the first defendant and the second defendant should make to the plaintiff's costs in the action. Counsel for the second defendant submitted that the contribution be in the same proportion as liability was apportioned between the defendants in the main action, namely, 97:3 in favour of the second defendant. Alternatively, counsel for the second defendant submitted that the contribution be two-thirds:one-third, having regard to the costs order outlined in my reasons of 24 March 2004.
4 Counsel for the first defendant opposed the making of any such order
concerning contribution to the plaintiff's costs in the action and referred to par [6] of my reasons dated 24 March 2004 in which I stated that, because I had already made an order in the action that each of the defendants should pay the plaintiff's costs, a separate order that the first defendant should pay the plaintiff's costs would appear to be redundant.
5 In further written submissions on the point, the first defendant
contends that, by reason of the statement I made in par [6] of the reasons dated 24 March 2004, the question of an order concerning contribution to the plaintiff's costs cannot now be agitated.
6 I apprehend that the manner in which I dealt with the question of the
plaintiff's costs in par [6] of my reasons dated 24 March 2004 has been the cause of this difficulty. In that paragraph, I was anxious to make clear that I would not revisit the order made in the main action on 19 December 2003, that the first and second defendants should pay the plaintiff's costs and disbursements of the action to be taxed if not agreed. The plaintiff
[2003] WASC 263 (S2)
BARKER J
plainly was entitled to a costs order against each defendant. I was concerned that the first order that the second defendant proposed in the contribution proceedings, to the effect that the first defendant should pay the plaintiff's costs, might be thought to have countermanded that order and would disentitle the plaintiff to an order for costs against both defendants.
7 The question that remained for consideration was what costs order
should be made in the contribution proceedings between the two defendants. In that regard, two questions remained for determination: first, what costs order should be made in relation to the plaintiff's costs as between the defendants; secondly, what effect should the Calderbank offer be considered to have on costs between the defendants incurred after 17 May 2002.
In the orders I proposed in my published reasons on 24 March 2004, I dealt with the second of these questions, but not the first. It is appropriate now to deal with the first question explicitly. This does not involve any reopening of the trial and no question in that regard arises. The Court simply omitted fully to comprehend the extent of the submissions of the second defendant concerning the costs order in this regard.
9 In any event, to the extent that it may be said the second defendant
did not advance or make plain its submission concerning the first costs question, the law and usual practice is clear concerning its entitlements where liability has been apportioned between multiple defendants under s 7(2) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA). Under s 7(1)(c) of that Act, any tortfeasor liable in respect of "damage" recovered by a plaintiff may recover contribution from another tortfeasor who is liable in respect of the same "damage". Under s 7(2), the Court may make such contribution order as it considers to be "just and equitable". In the contribution proceedings, I found that the second defendant should contribute to the plaintiff's damages in the proportion 97:3.
10 It is well-understood that "damage" in the context of these
contribution provisions is in respect of both damages awarded and costs. The fact that s 7(1)(c) of the Act does not merely refer to "damages", but utilises the expression "in respect of that damage" indicates that the Act is concerned with the consequential liability of a defendant for a plaintiff's award including costs.
[2003] WASC 263 (S2)
BARKER J
11 The authorities recognise that both textual analysis and sound reason
support this outcome: see James Hardie & Coy Pty Ltd v Wyong Shire Council [2000] NSWCA 107; (2000) 48 NSWLR 679, especially per Giles JA (with whom Heydon JA agreed) at 685 - 690.
12 In effect, it is not open to the Court, having apportioned liability in
the contribution proceedings in the manner that it has in this case, to do other than make an order that the defendants should respectively contribute to the plaintiff's costs of the action in the same proportion.
13 However, the second question concerning the contribution to the
second defendant's own costs falls to be considered by the discretionary matters fully outlined and determined in my reasons published on 24 March 2004.
In these circumstances, the following orders should be made additional to those ordered on 19 December 2003:
(a) In relation to the plaintiff's costs in the action as taxed or agreed, the first defendant and the second defendant contribute respectively in the proportion 97:3; (b) the first defendant pay the second defendant's costs and disbursements as incurred after 17 May 2002 as taxed to the extent of two-thirds if not agreed; (c) there be a certificate for counsel in the action; (d) there be a certificate for costs of transcript.
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