Perry and Bell v Australian Rail Track Corporation Ltd (No 2)

[2013] NSWSC 883

Supreme Court

New South Wales

Case Title:

Perry and Bell v Australian Rail Track Corporation Ltd & Ors (No 2)

Medium Neutral Citation:

[2013] NSWSC 883

Hearing Date(s):

29 June 2013

Decision Date:

29 June 2013

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

In the matter of Stanley William Bell v Australian Rail Track Corporation Ltd & Ors [2013] NSWSC 714, I amend the orders appearing in paragraph 259 of my judgment published on 7 June 2013 by adding the following:

(14) Each cross claim to which the third defendant is a party is dismissed.

(15) Each of the first, second and third defendants is to bear his or its own costs of the cross claims to which the third defendant is a party.

In the matter of William Charles Perry v Australian Rail Track Corporation Ltd & Ors [2013] NSWSC 714, I amend the orders set out in paragraph 309 of my judgment published on 7 June 2013 by adding the following:

(14) Each cross claim to which the third defendant is a party is dismissed.

(15) Each of the first, second and third defendants is to bear his or its own costs of the cross claims to which the third defendant is a party.

Catchwords:

COSTS - no question of principle

Cases Cited:

Perry and Bell v Australian Rail Track Corporation Ltd & Ors [2013] NSWSC 714

Category:

Costs

Parties:

William Charles Perry (plaintiff)
Stanley William Bell (plaintiff)
Australian Rail Track Corporation Limited (first defendant)
Kenneth William Eldridge (second defendant)
GrainCorp Operations Limited (third defendant)

Representation

- Counsel:

Counsel:
J. Catsanos (plaintiffs)
D. Talintyre with K. James (first defendant)
B. Hull (second defendant)
M. Moore, solicitor (third defendant)

- Solicitors:

Solicitors:
White Barnes (plaintiffs)
Wotton Kearney (first defendant)
George Mallos Lawyer (second defendant)
Goldbergs Lawyers (third defendant)

File Number(s):

2009/337578; 2009/337579

EX TEMPORE JUDGMENT

1. HIS HONOUR: It has been drawn to my attention that in my judgment of 7 June 2013 (Perry and Bell v Australian Rail Track Corporation Ltd & Ors [2013] NSWSC 714) I neglected to dispose of the crossclaims by and against the third defendant, who I referred to in my judgment as GrainCorp. The parties are agreed that those crossclaims and all of them should be dismissed, and I will make an order in that regard soon.

2. Mr Moore, solicitor, who appears for the third defendant, has applied for an order that the first and second defendants pay GrainCorp's costs of their unsuccessful crossclaims against GrainCorp. Mr Talintyre of counsel who appears for the first defendant, and Mr Hull of counsel who appears for the second defendant, have argued that the appropriate order in the circumstances is that as amongst themselves the first, second and third defendants each bear his or its own costs in relation to the crossclaims to which GrainCorp is a party. That submission is made on the basis that the general rule that costs follow the event would entitle the first and second defendants to an order for costs against GrainCorp, on GrainCorp's crossclaims against each of them. The same approach would prima facie entitle GrainCorp to an order for costs against each of the first and second defendants on his or its unsuccessful crossclaim against GrainCorp.

3. Mr Talintyre has argued that the Court should otherwise order because the practical effect of making orders that costs follow the event is likely to be that the costs orders would effectively cancel each other out. Mr Hull adopts Mr Talintyre's submission.

4. Mr Moore has pointed out that the costs order GrainCorp obtained against each plaintiff is likely to be regulated by the statutory regime covering costs in work injury damages cases, to which I made mention in the orders I made in favour of GrainCorp against each plaintiff. Under that regime Mr Moore argues that it may well be that there will be a very significant shortfall in respect of any costs that GrainCorp recovers from the plaintiffs.

5. I think there are two answers to that submission. The first is that the statutory regime is the statutory regime, and to the extent to which the costs provisions do not provide an adequate indemnity, one must understand that the legislative intention is that any shortfall will lie where it falls. I think the second answer to that submission is that any order I make in respect of the costs of the crossclaims to which GrainCorp is a party would be confined to the costs applicable to the crossclaim, and to that extent would not cover any shortfall in GrainCorp's costs relating to the actions of the plaintiffs.

6. For these reasons I think the appropriate order in relation to costs is that suggested by the first and second defendants that each party should bear his or its own costs.

7. Accordingly, in the matter of Stanley William Bell v Australian Rail Track Corporation Limited and others, I amend the orders appearing in paragraph 259 of my judgment published on 7 June 2013 by adding the following:

   (14) Each crossclaim to which the third defendant is a party is dismissed.

   (15) Each of the first, second and third defendants is to bear his or its own costs of the crossclaims to which the third defendant is a party.

8. In the matter of William Charles Perry v Australian Rail Track Corporation and others, I amend the orders set out in paragraph 309 of my judgment published on 7 June 2013 by adding the following:

   (14) Each crossclaim to which the third defendant is a party is dismissed.

   (15) Each of the first, second and third defendants is to bear his or its own costs of the crossclaims to which the third defendant is a party.

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