Shankar v The Uniting Church in Australia; Shankar v Domino's Pizza Enterprises Limited (No 2)
[2013] NSWSC 1323
•13 September 2013
Supreme Court
New South Wales
Medium Neutral Citation: Shankar v The Uniting Church in Australia; Shankar v Domino's Pizza Enterprises Limited (No 2) [2013] NSWSC 1323 Hearing dates: Written submissions Decision date: 13 September 2013 Jurisdiction: Common Law Before: Hidden J Decision: Plaintiff to pay 2nd defendant's costs
Catchwords: COSTS - plaintiff successful against 1 of 2 defendants - whether Bullock or Sanderson order appropriate Legislation Cited: Workers Compensation Act 1987 Cases Cited: - Gould v Vaggelas (1985) 157 CLR 215 Texts Cited: - Grljak v Trivan Pty Ltd [1996] NSWCA 233 Category: Costs Parties: Vinay Shankar (plaintiff)
The Uniting Church in Australia Property Trust (NSW) t/as Vision Valley Conference & Recreation Centre (1st defendant)
Domino's Pizza Enterprises Limited t/as Domino's Pizza (2nd defendant)
Domino's Pizza Enterprises Limited t/as Domino's Pizza (cross-claimant)
The Uniting Church of Australia Property Trust (NSW) t/as Vision Valley Conference and Recreation Centre (cross-defendant)Representation: Counsel:
AJ Lidden SC with JM Fraser (plaintiff)
S Torrington (1st defendant)
PN Khandhar (2nd defendant)
Solicitors:
Robert Bryden, Bryden's Law Office (plaintiff)
Gillian Davidson, Sparke Helmore (1st defendant)
Samuel Kennedy, TurksLegal (2nd defendant)
File Number(s): 2009/29762; 2009/29760
Judgment on costs
In these proceedings the plaintiff, Mr Shankar, succeeded in his claim against Vision Valley, the first defendant, but not against Domino's, the second defendant. It is accepted that he is entitled to an order for costs against Vision Valley, but he also seeks a Bullock or Sanderson order in respect of the costs of Domino's.
The principles governing such an order are to be found in the familiar passage from the passage of Gibbs CJ in Gould v Vaggelas (1985) 157 CLR 215 at 229 - 30, as follows:
"It is sometimes said that the court may make an order of that kind - a Bullock order - where it was reasonable in all the circumstances for the plaintiff to bring the action against two or more defendants: see The Supreme Court Practice (U.K.) 1982, par. 62/2/39 and Halsbury's Laws of England, 4th ed., vol. 37, par. 219. There are some statements in the authorities which appear to support that view, including the judgment of Latham C.J. in Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation [(1948) 77 CLR 544 at 556]. In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or overcaution.
The ground on which a Bullock order may be made is, in my opinion, more accurately stated in a passage in Sanderson v. Blyth Theatre Co. [[1903] 2KB 533 at 539], which was cited with approval in Bullock v. London General Omnibus Co. [[1907] 1KB 264 at 272] and Hong v. A. & R. Brown [[1948] 1KB 515 at 522], viz., that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed "are ordered to be paid by the unsuccessful defendant, on the ground that ... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant". In Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation, Williams J. [at 572-3] stated the principle in a similar way and Starke and Dixon JJ., in giving their reasons for making a Bullock order, both relied on the circumstance that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant [at 559-60, 566]. In my respectful opinion the true position was clearly stated by Blackburn C.J. in Steppke v. National Capital Development Commission [(1978) 39 LGRA 94 at 100], when he said that "there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant"."
It is necessary to sketch the procedural history of this matter, which was commenced in the District Court and later transferred to this court. Mr Shankar commenced proceedings against Vision Valley only by a statement of claim of 3 November 2006. Vision Valley filed a defence on 13 May 2007 in which, among other things, it alleged negligence on the part of Domino's and sought a reduction of any damages awarded against it pursuant to s 151Z(2)(c) of the Workers Compensation Act 1987.
On 31 October 2008 Mr Shankar commenced separate proceedings against Domino's by a statement of claim which alleged, among other things, that Domino's had required him to take part in the leap of faith despite the injury to his hand which he had suffered in the course of his employment. The reason for the delay was that, prior to that course being taken, the plaintiff had to undertake certain procedural steps which I need not recite.
Domino's filed a defence on 12 November 2008. On 30 January 2009 Vision Valley filed a cross-claim against Domino's alleging that it was in breach of its duty of care to Mr Shankar, and seeking contribution or indemnity. By a cross-claim of 2 February 2009 Domino's sought similar relief against Vision Valley. In its defence to that cross-claim Vision Valley also alleged that Mr Shankar's condition was the result of the incident of 20 March 2004, for which Domino's was said to be liable.
On 20 April 2010, during the trial in this court, Vision Valley filed an amended cross-claim incorporating that last allegation. At an earlier stage some of the pleadings were subject to amendments to which it is not necessary to refer for present purposes.
In written submissions on this costs issue counsel for the plaintiff, Mr Lidden SC and Ms Fraser, argued that Vision Valley's defence of 30 May 2007, raising s 151Z of the Workers Compensation Act, made it "imperative" that Domino's be joined in the proceedings. At that time, it was said, Mr Shankar could not have been fully aware of the arrangements between Domino's and Vision Valley concerning the use of the Vision Valley facilities, and could not have known whether those arrangements would be in contest in the proceedings.
It was argued that the subsequent pleadings, up to the time of trial and during the trial, could only have confirmed his impression that there would be "an active contest as between Domino's and Vision Valley as to the negligence of the respective defendants." It was submitted that in the circumstances, Vision Valley having "sought throughout to inculpate the successful defendant," it would be reasonable to order it to pay Domino's costs of defending the plaintiff's claim.
In my view, these arguments are met convincingly by the submissions of Ms Davidson, solicitor, for Vision Valley. The foundation of the plaintiff's argument is that the need to join Domino's as a party arose from Vision Valley's reliance on s 151Z(2) in its defence. However, it was not necessary to join Domino's to deal with the issue raised by that subsection. So much is apparent from the invaluable exegesis of the provision by Allen J in Leonard v Smith (1992) 27 NSWLR 5, at 6 - 13.
Ms Davidson relied upon the observations about s 151Z(2) of Handley JA (with whom Sheller and Powell JJA agreed) in Grljak v Trivan Pty Ltd [1996] NSWCA 233 at p 4, as follows:
"The statutory scheme is clear and rational. Pt5 reduces the common law damages recoverable by a worker from his employer, but does not affect his rights against a third party tortfeasor who is solely responsible. Where the employer and the third party are concurrent tortfeasors, the worker is not to be entitled to recover more directly or indirectly from his employer than he could if the employer was solely responsible, but the nett burden on the other tortfeasor was not to be increased. No part of the total burden was to be transferred from the employer to the other tortfeasor. To achieve this purpose Parliament provided that the damages recoverable against the other tortfeasor are to be reduced to reflect the worker's reduced rights against the employer."
As Ms Davidson put it, the plaintiff was entitled to bring his claim against Domino's if he wished, but by doing so he exposed himself to the risk of being unsuccessful in that claim. He was entitled to argue against Vision Valley's reliance on s 151Z(2) by challenging any notional finding of liability on the part of Domino's. That course would not have carried with it the risks and cost implications of joining Domino's.
Ms Davidson added that, although the statement of claim against Vision Valley included the allegation that Vision Valley staff were aware of the injury to the plaintiff's hand and of his reluctance to participate in the exercise, the claim subsequently made against Domino's raised allegations of which Vision Valley could not have been aware: that is, that the plaintiff had suffered the hand injury in the course of his employment, that Domino's was aware of it, and that he had told Domino's staff that he did not wish to participate in the activity. Domino's having been brought into the proceedings, it was inevitable that each defendant would cross-claim against the other as they did.
Ms Davidson submitted that this is a case where, to adopt the words of Gibbs CJ in the passage from Gould v Vaggelas cited above, "nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable ... ." She also relied upon the observation of Blackburn CJ in Steppke v National Capital Development Commission, cited by Gibbs CJ, that to secure a Bullock order it must be shown not only that it was reasonable to sue the successful defendant but also that "the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant."
I am not persuaded that the test enunciated by Gibbs CJ has been met in the present case. A Bullock or Sanderson order is not appropriate. The plaintiff is to pay Domino's costs.
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Decision last updated: 13 September 2013
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