Ranieri v Nominal Defendant
[2001] NSWSC 125
•8 March 2001
CITATION: Ranieri v Nominal Defendant & Ors [2001] NSWSC 125 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20860 of 1995; 20862 of 1995 HEARING DATE(S): 23 February 2001. JUDGMENT DATE:
8 March 2001PARTIES :
Jennifer Kathryn Ranieri (Plaintiff 20860/1995)
Phillip Mario Ranieri as Executor of the Estate of the late Denise Ranieri (Plaintiff 20862/1995)
v
In each matter:
The Nominal Defendant (First Defendant/First Cross Claimant to First Cross Claim/Fourth Cross-Defendant to Second Cross-Claim)
Dana Australia Pty Limited T/as Truckline Parts Centre (Second Defendant/Fourth Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim)
Roads And Traffic Authority Of New South Wales (Third Defendant/Third Cross-Defendant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim)
Shellharbour City Council (First Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim)
State of New South Wales (Second Cross-Defendant to First Cross-Claim/Third Cross-Defendant to Second Cross-Claim)
JUDGMENT OF: Master Malpass
COUNSEL : Dr A Morrison SC/Mr D Hooke (Plaintiffs)
Mr F S McAlary QC/Mr D Ronzani (First
Defendant/First Cross Claimant to First Cross Claim/Fourth Cross-Defendant to Second Cross-Claim)
Mr J Maconachie QC (Second Defendant/Fourth Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim)
Mr S Fonti (Third Defendant/Third Cross-Defendant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim)SOLICITORS: Robson & Oliver (Plaintiffs)
Abbott Tout (First Defendant/First Cross Claimant to First Cross Claim/Fourth Cross-Defendant to Second Cross-Claim)
Connery & Partners (Second Defendant/Fourth Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim)
I V Knight - Crown Solicitor (Third Defendant/Third Cross-Defendant to First Cross-Claim/ First Cross-Defendant to Second Cross-Claim)
CATCHWORDS: Costs - plaintiff is successful against one only of three defendants - claim for indemnity costs on question of liability against unsuccessful defendant and claim for Bullock or Sanderson Order - proliferation of parties and multiple cross-claims. LEGISLATION CITED: Motor Accidents Act 1988, s 45.
Supreme Court Act 1970, s 76.
Supreme Court Rules 1970, Pt 52A, r 32.CASES CITED: N/A DECISION: See Paragraphs 18, 23, 29-31.
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER MALPASS
THURSDAY 8 MARCH 2001
20862 OF 1995 PHILLIP MARIO RANIERI as Executor of the Estate of the Late DENISE RANIERI20860 of 1995 JENNIFER KATHRYN RANIERI v NOMINAL DEFENDANT & ORS
JUDGMENT
1 I have earlier delivered judgments in these matters. I do not propose to repeat what has been said in those judgments.
3 The plaintiffs seek the following orders in relation to costs in each of the two actions:-2 I am now asked to deal with certain questions of costs in proceedings numbered 20860 of 1995 and 20862 of 1995. The applications in each of those proceedings have been heard together. It is common ground that the result in one set of proceedings will be the result in the other set of proceedings.
“1.1 The First Defendant pay the Plaintiff’s costs of the proceedings including reserved costs (if any);
1.2 The First Defendant pay the costs of the Second Defendant and the Third Defendant of the proceedings; and
1.3 The First Defendant pay the Plaintiff’s costs in respect of liability on an indemnity basis.”
4 Both the second and third defendants seek an order for costs against each of the plaintiffs. The first defendant resists any Bullock or Sanderson order and any order as to indemnity costs.
5 The plaintiffs have relied on an affidavit sworn by their solicitor Mr Oliver. The first defendant has relied on an affidavit sworn by its solicitor, Mary Jane Learoyd. The second and third defendants did not adduce any evidence. There were references to transcript. Counsel for all parties addressed on the questions of costs.
6 Since early 1995, the plaintiffs had been seeking an admission of liability from the first defendant. No admission of liability was made until the sixth day of the trial. Until then, the question of the liability of the first defendant (including any breach of duty) had remained in issue.
7 On 25 July 1997, the driver of the fire brigade tanker had been convicted of negligent driving. Earlier, there had been committal proceedings. The evidence in those proceedings established that shortly before the collision the driver had been travelling well in excess of the speed limit and that his vehicle had entered upon the incorrect side of the road. There also had been evidence of defective maintenance or repair in relation to the brakes of the tanker.
8 The proceedings have seen many amendments of process. Initially, the proceedings were brought by the plaintiffs against the first defendant only. The first defendant brought a Cross-Claim against inter alia the third defendant. The original proceedings were amended to add inter alia the third defendant. Subsequently, the plaintiffs made application to add the second defendant as a party to the original proceedings. The first defendant then made application to have the second defendant added as a party to its Cross-Claim. On 14 April 1997, leave was given for the addition of the second defendant as a defendant in the original proceedings and as a cross-defendant in the Cross-Claim.
9 On the 6th day of the trial, the plaintiffs closed their case in chief (subject to the tendering of reports from an accountant). The evidence on liability had been provided by Mr Ranieri and documentation (including a record of interview of the driver of the tanker).
10 There were further developments on the sixth day of the trial. The issues between the second and third defendants were disposed of by consent. The case for the first defendant was closed (without the leading of any evidence on the question of liability). The second and third defendants did not call any evidence. Judgment was entered for the second defendant against the plaintiffs. Judgment was entered for the third defendant against the plaintiffs. The first defendant made an admission of liability (by separate admissions of both breach of duty and of damages). Thereafter, the trial proceeded as an assessment of damages.
11 Counsel for the plaintiffs has submitted that the second and third defendants were joined because they had been brought into the proceedings by the first defendant by way of the Cross-Claim. It was further said that the plaintiffs joined these defendants as parties to the original proceedings, not because it was thought that the plaintiffs had any case against them, but merely to protect themselves. It was further submitted that the proposition that there was no liability on the part of the first defendant was always unarguable.
12 It was further submitted that the plaintiffs did not open against the second and third defendants. It is submitted that the case was opened on the basis of the clear negligence on the part of the first defendant and left the second and third defendants solely to the first defendant (this having always been the plaintiffs’ position). The plaintiffs did not lead any evidence against either the second or the third defendants.
13 Broadly speaking, the case pleaded against the second defendant is one of defective maintenance or repair in relation to the brakes of the tanker. The court has been told the issue of causation remains between the first and second defendants and that this issue is being litigated in other proceedings. It has been said that the first defendant’s admission of liability followed the reaching of some agreement between the first and second defendant.
14 The powers and discretions of the court in relation to costs are governed by the Supreme Court Act 1970 (the Act) and the Supreme Court Rules 1970 (the rules).
15 Section 76 of the Act provides inter alia that costs shall be in the discretion of the court. The section also enables the court to order costs to be assessed on an indemnity basis.
16 I shall first turn to the claim for indemnity costs. Part 52A r 32 of the rules provides that costs shall be payable on a party and party basis unless the rules or an order provide that they are payable on an indemnity basis.
17 Apart from what is said in the Act and the rules, there is abundant authority relating to the court’s inherent jurisdiction to award costs on an indemnity basis. There are cases inter alia which support the view that indemnity costs may be awarded in circumstances involving some “relevant delinquency”.
18 The party seeking an order for indemnity costs bears the onus of satisfying the court that such an order should be made. In the circumstances of this case, I am satisfied that such onus has been discharged. It seems to me that the making of an order for indemnity costs on the question of liability best serves the interests of justice.
19 The nature of the discretion had by the court has been the subject of many formulations and the cases throw up different approaches. Despite this uncertainty, some aspects seem to be clear. The discretion must be exercised in accordance with the Act and rules. It must be exercised judicially. The decided cases provide guidance as to circumstances in which an order may be made. The court is to have regard to the relevant circumstances of the particular case before it and the interests of justice.
20 Ultimately, for whatever reason, the first defendant did make an admission of liability. However, it delayed making the admission until the sixth day of the trial. By that time, liability had remained in issue for many years. The belatedness of the admission inevitably led to a waste of the court’s time and the incurring of needless expenditure.
21 The first defendant says that the case had been conducted as an assessment and that it had not sought to contest, either by cross-examination or by evidence, the plaintiffs’ case on liability. It is not suggested that the making of the admission was consequent upon the discovery of any new evidence or change in the state of knowledge had by the first defendant. The change may have been simply due to inter alia the reaching of some agreement with the second defendant.
22 The plaintiffs allege breach of provisions of s 45 of the Motor Accidents Act 1988 (subsection (1) imposes a duty on the insurer). They also allege that liability was kept in issue for reasons of tactical and financial advantage. For the purpose of determining this question of indemnity costs, it is unnecessary to further pursue these matters (indeed I do not consider that costs arguments in proceedings to which the relevant insurer is not a party provide an appropriate forum for the determining of questions of breach of duty). Although, it can be observed that the admission saw the plaintiffs’ damages being assessed having regard to the regime established by that Act (in contrast to the claim against the second defendant which would have been assessed as at common law).
23 I now turn to the position of the second and third defendants. They came into the original proceedings in different circumstances. Both have been sued by the plaintiffs and the plaintiffs have failed against each of them. In my view, each of the second and third defendants is entitled to an order for costs against the plaintiffs.
24 I then turn to the question of whether or not the plaintiffs should have a Bullock or Sanderson order. The making of such an order has been the subject of a considerable body of authority. As was the case in dealing with the application for indemnity costs, this application involves an exercise of discretion with the onus being borne by the party seeking the order. The approach taken in exercising that discretion is similar to that applied in dealing with an application for indemnity costs.
25 Orders have been made in cases where the conduct of the unsuccessful defendant has led to the joinder of other parties who were successful in the action. The granting of an order is not restricted to such cases.
26 I do not consider this to be one of those cases where it can be said that the conduct of the unsuccessful defendant led to the joinder of the other parties (indeed, the submissions made on behalf of the plaintiffs engender the view that the successful defendants were added as parties by the plaintiffs to cater for the possibility that evidence may have been led against them by other parties leading to a finding of negligence against both or either of them). Even if a different view were taken on these matters, in the circumstances of this case, I do not consider that it would justify a making of the order sought by the plaintiffs.
27 This was a case where the plaintiffs had ample evidence of breach of duty on the part of the first defendant. They regarded the first defendant’s denial of liability as being unarguable. It was not intended that evidence would be led by them against the second and third defendants. Indeed, the plaintiffs did not either intend to or in fact propound a case against either of these defendants.
28 For some time, there has been a tendency (well illustrated in this case) to join in proceedings any party having some connection with the events which give rise to the alleged course of action. Perhaps, it is motivated by the concern of lawyers to avoid the possibility of a negligence claim. So often, this tendency leads to a proliferation of parties and multiple cross-claims (in addition to the original proceedings) with a resulting unnecessary complexity of issues and throwing away of costs.
29 In the circumstances, I do not consider that it was reasonable to join the second and third defendants as parties and/or that the first defendant be ordered to pay their costs.
31 Accordingly, in both proceedings I make the following orders:-30 I am not satisfied that the plaintiffs have demonstrated a case of entitlement to either a Bullock or Sanderson order. I consider that justice is best served by the court refusing the application for such an order.
1. The first defendant is to pay the plaintiff’s costs of the proceedings;2. The plaintiff’s costs, save for the question of liability which are to be assessed on an indemnity basis, are to be assessed on a party and party basis;
4. The plaintiff is to pay the third defendant’s costs of the proceedings.3. The plaintiff is to pay the second defendant’s costs of the proceedings; and
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